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WRIGHT, The defendant, Junius Beale, filed in this court a petition nunc pro tunc from a conviction in absentia for passing a school bus in violation of 75 Pa.C.S §3345(a). At the conclusion of a hearing held January 7, 1993, this court granted Beale’s petition which allowed him to proceed on his summary appeal nunc pro tunc. The Commonwealth filed a timely appeal, necessitating this opinion. At the hearing, Beale testified as follows: On December 2,1991, a police officer stopped Beale for passing a school bus and issued a citation. Beale subsequently checked the not guilty plea and returned the citation with the full amount of the fine. Thereafter, Beale received a notice from the Pennsylvania Department of Transportation, dated June 2, 1992, informing him that his license was suspended due to a conviction on February 10, 1992. Pursuant to the instructions in that notice, Beale filed an appeal on July 1, 1992, in Philadelphia Court of Common Pleas, the county of his residence. That appeal was referred to our court where Judge Bradley entered an order, as agreed to between the parties, withdrawing the suspension appeal and postponing the suspension. Consequently, Beale filed the present petition. Conversely, the Commonwealth presented no testimony at the hearing. They conceded that Beale did not have notice of the hearing or notice of the criminal conviction until receiving notice of his suspension. The Commonwealth did argue, however, that Beale failed to present grounds for an appeal nunc pro tunc, or in the alternative, Beale filed an untimely petition. Pennsylvania law requires that an appeal be filed within 30 days after entry of the order from which the appeal is taken. That applies to appeals from summary convictions. The only exceptions are circumstances such as ineffectiveness of counsel, fraud, or a breakdown in the court’s operations. Commonwealth v. Jarema, 404 Pa. Super. 121, 123, 590 A.2d 310, 311 (1991). (citations omitted) In the present case, the court found a breakdown in the judicial system. The Pennsylvania Rules of Criminal Procedure mandate that the issuing authority, upon receiving a plea of not guilty, notify the defendant of the date and hour fixed for trial. Pa.R.Crim.P. 63(b)(3). The Rules also require that the issuing authority advise the defendant of his right of appeal and the time within which to exercise that right. Pa.R.Crim.P. 83(e). See also, Pa.R.Crim.P. 63(b)(3). Beale was never notified of his hearing. As a result, Beale was involuntarily convicted in absentia and denied advice concerning his right to file a timely appeal. Despite the foregoing, the Commonwealth argued at the hearing, and presumably will do so on appeal, that the failure to give notice of the hearing is irrelevant in light of the decision in Commonwealth v. Liptac, 392 Pa. Super. 468, 573 A.2d 559 (1990). Clearly, a party who seeks leave to appeal nunc pro tunc has the burden of establishing that he acted promptly to assert such right upon learning of the existence of the ground relied on for such relief. Liptac at 474, 573 A.2d at 562. However, this court found that the circumstances leading to the denial of an appeal nunc pro tunc in Liptac were distinguishable from the present matter. In Liptac, the defendant initially pled guilty, in writing, to his alleged violation. Only after an unsuccessful attempt to appeal the license suspension did the defendant petition for an allowance of an appeal nunc pro tunc, contending that the guilty plea itself was the result of misrepresentations about the collateral consequences of his plea made to him by the officer who issued the citation. Liptac at 470, 573 A.2d at 560. The court found that the defendant’s allegations did not amount to “fraud or a wrongful or negligent act of a court official” since a police officer is not responsible for the administration of the judicial system. Id. at 473, 573 A.2d at 561. Furthermore, even if the defendant had alleged sufficient grounds to appeal nunc pro tunc, the court noted that he lacked the requisite promptness. Id. at 474, 573 A.2d at 562. In the instant matter, Beale pled not guilty from the inception of his case. Due to the failure to provide notice, Beale was denied a hearing and was not given the proper advice on how to proceed with an appeal on the criminal conviction. When Beale received the notice of license suspension, which was also the first time he was put on notice of the conviction, he promptly followed the accompanying appeal instructions, which advised him to appeal in the county of his residence. Subsequently, Beale discovered that the court in the county of his residence was the wrong court in which to appeal the underlying conviction which gave rise to the license suspension. For the above reasons, this court entered its order dated January 6, 1993, granting Beale’s petition to appeal nunc pro tunc.

ORDER PER CURIAM. AND NOW, this 13th day of June, 2002, probable jurisdiction is noted and the order appealed is affirmed.

CAIAZZA, J., This case appears before the court on a motion for summary judgment filed by the defendant, Nationwide Insurance Co. The record in its present form reveals that a fire occurred to the plaintiffs’ residence on January 19, 1989. At that time, the plaintiffs were insured by an insurance policy issued by Nationwide Insurance Co., which included the following provision: “No action can be brought unless there has been compliance with the policy provisions, and the action is started within one year after the date of loss or damage.” See section I, Conditions, page 9, paragraph 7, Policy of Insurance, Exhibit 2, appended to answer and new matter. Because of the apparent failure of the defendant to provide payment pursuant to the terms of the insurance policy, the plaintiffs filed a writ of summons on January 17, 1992. The defendant contends that the plaintiffs’ action is barred by the one-year limitation of suit provision appearing in the insurance policy. The plaintiffs counter by alleging that the action of the insurer, Nationwide, led the insureds, Gary and Darlene Gray, to believe that the contractual provision in the policy relating to the limitation period would not be strictly enforced. The validity of the statutorily mandated limitation of suit provision appearing in the Nationwide policy here has been consistently upheld by the Pennsylvania appellate courts. See e.g. General State Authority v. Planet Insurance Co., 464 Pa. 161, 346 A.2d 265 (1975); Lardis v. Underwriters Insurance Co., 426 Pa. 47, 231 A.2d 740 (1967); See also Act of May 17, 1921, P.L. 682, §506, added August 23, 1961, P.L. 1081, §1, 40 P.S. §636. However, a limitation of suit provision will not be permitted to bar a delayed action where the actions of the insurer lead the insured to believe the contractual limitation period will not be enforced. See General State Authority v. Planet Insurance Co., supra; see also, Commonwealth v. Trans America Insurance Co., 462 Pa. 268, 341 A.2d 74 (1975). Also, there may be an express waiver of the limitation of suit provision in the insurance contract; and, where a waiver exists, it is no longer effectual and the general statutory limitation that pertains to contracts becomes applicable. See O’Conner v. Allemannia Fire Insurance Co., 128 Pa. Super 336, 339-40, 194 A. 217, 218-19 (1937). The expanded facts which relate to the issues raised by counsel reveal that by letter dated May 15, 1989, defendant Nationwide, through its district claims manager, notified the plaintiffs that Nationwide rejected the sworn statement proof of loss submitted by the plaintiffs. In explanation of its action, the defendant cited the plaintiffs’ failure to reasonably submit themselves to examinations under oath. In an affidavit in opposition of motion for summary judgment, counsel for the plaintiffs stated the following: “I notified Nationwide Insurance Co. on November 15, 1989, by letter, of my intent to represent the Grays regarding their coverage under their homeowners policy.... Between 1989 and 1990, several conversations were held with Daniel E. Leone of Nationwide Insurance Co. On December 12, 1989, Mr. Leone forwarded a sworn statement in proof of loss and requested statements from the Grays. He indicated in his correspondence that he would notify my office as to when those statements would be taken. (See Exhibit no. 1). A sworn statement was not taken until September 24, 1992, subsequent to the filing of their lawsuit.” As a factual matter, the record reveals that the lawsuit was filed on January 17, 1992. Here, there exists a triable issue of fact regarding the question of the waiver of the enforceability of the limitation of suit provision because the defendant proceeded to take the sworn statement of the plaintiffs following the filing of the lawsuit, which was clearly beyond the one-year limitation of suit provision appearing in the insurance contract. ORDER For reasons which appear in the appended opinion, the motion for summary judgment filed on behalf of the defendant, Nationwide Insurance Co., is denied.

MILLER, J., On or about December 17, 1992, at approximately 11:30 p.m., three Borough of Stroudsburg police officers, accompanied by a Stroud Township police officer, went to the residence of the defendant herein, Shadeque Johnson, to execute a search warrant. Officer Greene was in full uniform. Officers Mikowski, Kimmins and Bortz were in plain clothes. Officer Greene knocked on defendant’s door to gain entry. A voice from inside asked “Who?” Officer Greene responded “Chris.” The voice inside once again asked “Who?” Officer Greene once again answered “Chris.” Another voice inside was then heard to say “Chris, open the door.” At that time, co-defendant, Ralph R. McNeill, opened the door, saw the police officer in uniform and immediately tried to close the door. Officer Greene then shouted “Police, search warrant” and pushed open the door before McNeill was able to close it fully. Once in the apartment, the police found the defendant as well as Ralph R. McNeill, and after searching the premises discovered numerous bags of cocaine as well as drug paraphernalia commonly used in the packaging and delivery of cocaine, and numerous other items including U.S. currency, $60 of which were marked bills which had been used by the same policemen earlier that evening to make a controlled buy by an informant in this same apartment from the two occupants. Defendant has filed an omnibus pretrial motion which includes a motion to suppress based on an illegal search, a motion to suppress the search warrant alleging a deficient affidavit, and a motion to suppress for illegality of arrest. Defendant argues that this case squarely fits into the cases of Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991) and Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (1992). Both of these cases involve the necessity of the police waiting a sufficient length of time before entering the premises when executing a search warrant after they have announced their authority and purpose. After reviewing these cases, we believe the defendant’s reliance on them is misplaced. This court is of the opinion that the cases of Commonwealth v. Regan, 254 Pa. Super. 555, 386 A.2d 89 (1978); Commonwealth v. McCarthy, 257 Pa. Super. 42, 390 A.2d 236 (1978), and most recently the case of Commonwealth v. Ceriani, 411 Pa. Super. 96, 600 A.2d 1282 (1991) are the controlling cases in this matter and must be read along with Chambers, supra. In this case, the police used a ruse in order to get the defendant to open the door, specifically the name “Chris,” which they had been told would be familiar to the defendant. The ruse worked, and the door opened. However, after opening the door and seeing the officer in uniform, McNeill immediately tried to close the door. It was at that point that the officers announced their purpose and authority and pushed open the door. We believe that the attempt to close the door and evade the police and the search warrant qualify as exigent circumstances as set out in Chambers which would not require the police to wait more than five to ten seconds before making forcible entry. Defendant has also raised a technical argument in reference to the affidavit attached to the search warrant. While the court admits that this was a somewhat confusing part of the omnibus hearing, the testimony of District Justice Anthony Mangan was able to clear the confusion and the record now in front of the court is complete, and the original search warrant as well as attachments including the proper affidavits are in the record. While we do not condone sloppiness on the part of the Commonwealth, we cannot say as a matter of law that the mix-up of copying and stapling the affidavits and warrants is a violation of defendant’s constitutional rights. Nor do we find a violation of defendant’s rights in that the police opted to obtain a search warrant prior to obtaining an arrest warrant of the defendant. Defendant also asks us to suppress a statement made by him in which he stated, “Excuse me, I smoke that stuff.” Officer Kimmins testified at the hearing that this was made gratuitously to the officers while they were involved in conversation on another matter. The statement was not made in response to any questions asked by the police and it is irrelevant whether or not the defendant was in custody or considered under arrest at the time. For the reasons above cited, we enter the following ORDER And now, April 28,1993, after a hearing in this matter, the defendant’s motion for omnibus pretrial relief is denied.

O’BRIEN, J., Shortly after midnight on September 19, 1992, pedestrian George Pavolsky Jr. was struck and thrown to the highway by a vehicle operated by Jennifer Lynn Kinsley. Although the impact by the Kinsley vehicle resulted in non-hfe-threatening injuries to the pedestrian, approximately 20 seconds later, a second vehicle struck the victim causing his death. When the police failed to file any criminal charges against Jennifer Lynn Kinsley, the victim’s father filed a private complaint which was disapproved by a district attorney. Thereafter, the victim’s father filed a petition requesting this court to approve the private complaint. Following the submission of briefs and argument by counsel for both parties on April 5, 1993, the issue is now before the court for disposition. Our Superior Court has held that the district attorney enjoys prosecutorial discretion as to whether to approve or disapprove a private criminal complaint and that courts should not interfere with that discretion unless there has been a gross abuse thereof. Commonwealth v. Eisemann, 308 Pa. Super. 16, 453 A.2d 1045 (1982). The discretionary power of the district attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence of probable cause. For this reason, courts have been wary of interfering with or attempting to supervise the district attorney in the exercise of his discretion in controlling criminal prosecutions. Commonwealth v. Muroski, 351 Pa. Super. 15, 506 A.2d 1312 (1986). In the case at bar, petitioner alleges that the district attorney has committed such a gross abuse of discretion by failing to charge Jennifer Lynn Kinsley with a violation of either 75 Pa.C.S. §3742(a) or 3744(a). Those statutory provisions provide in relevant part as follows: “§3742. Accidents involving death or personal injury— “(a) General rule — The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.” “§3744. Duty to give information and render aid— “(a) General rule — The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving, and shall upon request exhibit his driver’s license and information relating to financial responsibility to any person injured in the accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident and shall give the information and upon request exhibit the license and information relating to financial responsibility to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in the accident reasonable assistance, including the making of arrangements for the carrying of the injured person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if requested by the injured person.” In Commonwealth v. Gosnell, 327 Pa. Super. 465, 476 A.2d 46 (1984), the Superior Court reversed a conviction for a violation of section 3742(a) on facts most similar to the case at bar. In that proceeding, as in the case at bar, the motor vehicle operator left the scene but then returned shortly thereafter and provided the police with all relevant information. In that case, as in the case at bar, there was no evidence to establish that the temporary departure from the scene of the accident by the motor vehicle operator was in any way related to the victim’s tragic death. In view of the foregoing holding by our appellate court, the disapproval of the private criminal complaint by the district attorney for “insufficient evidence, ” “lack of prosecutorial merit, ” “lack of criminal intent” and “civil dispute” does not constitute a gross abuse of discretion. Counsel at argument advised the court that civil litigation by the victim’s father against the motor vehicle operator was pending. Our Superior Court has held that criminal prosecution should not be utilized to settle private grievances but are intended to rectify injury done to the Commonwealth. Commonwealth v. Malloy, 304 Pa. Super. 297, 450 A.2d 689 (1982). Further, the standard of proof applicable in a civil proceeding for money damages is considerably different than the burden of proof involved in a criminal prosecution. We conclude that civil litigation is the proper vehicle for addressing the grievous loss suffered by the petitioner in this proceeding. ORDER And now, April 20, 1993, the petition of George Pavolsky Sr. for approval of his private criminal complaint against Jennifer Lynn Kinsley is dismissed.

KIESTER, S.J., Is the Parental Liability Act (23 Pa.C.S. §5501) applicable to the facts in the above-captioned case? FACTS On January 6,1992, Jennifer Kelly and Alan J. Seachrist, a minor, were operating their respective vehicles in Buffalo Township when a collision occurred. Each operator filed a cause of action against the other. These complaints, filed at A.D. no. 92-544 and A.D. no. 92-719, were consolidated for trial by order of court on October 9, 1992. The cases were heard by a Board of Arbitrators. On December 9,1992, Roger A. Kelly and Kimberly L. Kelly, plaintiffs, were awarded $750 against the defendant, Alan J. Seachrist. In the action at A.D. no. 92-719, Seachrist v. Kelly, the award was for defendant, Kelly. A judgment was entered against Alan J. Seachrist and on March 3, 1993 plaintiffs petitioned for a rule to show cause why judgment should not be entered against John H. Seachrist Jr. and Darlene L. Seachrist for $750 plus court costs. The said John H. Seachrist Jr. and Darlene L. Seachrist answered the petition stating that there is no statutory authority for entering judgment against them. DISCUSSION The liability of the parent under the Act of Assembly (23 Pa.C.S. §5501 etc.) requires a finding that the child (one under 18 years of age) committed a willful tortious act resulting in injury. A tortious act is so defined. Establishing liability of the parent for the tortious act of the child in criminal or juvenile proceedings is specific and clear. 23 Pa.C.S. §5503. The liability of the parent is limited to $300 for injuries to one person and $1,000 regardless of the number of persons. 23 Pa.C.S. §5505. The Act of Assembly establishing liability in civil proceedings of the parent for the tortious act of the child sets forth the petition procedure for obtaining judgment against the parent (23 Pa.C.S. §5504) with the same limitations as provided in criminal or juvenile matters. The parents maintain that in civil proceedings the tortious act must be willful and that the act of Alan was not willful, and that the Parental Liability Act relates to the actions and conduct of delinquent children and not to a solely negligent act. There is not available to the court a transcript of the pleadings before the Board of Arbitrators. The pleadings do establish that Alan was operating an all-terrain Yamaha vehicle. The complaint filed by the Kellys as plaintiffs aver nine “negligent” acts by Alan including operating without an operator’s license an unlicensed vehicle on a highway. No case in point has been cited. The paucity of authority can be attributed to the fact that liability in this factual situation is limited to $300. A transcript of the arbitration hearing could establish that Alan was operating in a negligent manner on the highway without a driver’s license an unlicensed vehicle. With that record the conclusion would be that Alan committed a willful tortious act. A tort is defined as any wrongful act. It is a breach of legal duty. A willful tortious act is something done willfully, intentionally or on purpose. The Kelly complaint charged Alan with willful tortious acts. The Board of Arbitrators found for plaintiff Kelly and against defendant Alan. Under the Parental Liability Act the parents of Alan are liable. ORDER And now, April 14, 1993, the rule to show cause why judgment should not be entered returnable and heard March 24, 1993, is made absolute. The facts establish that Alan committed a willful tortious act resulting in injury to plaintiffs. A hearing on the petition and answer are unnecessary. The only issue is the applicability of the Parental Liability Act to the facts. It is ordered that judgment be entered in favor of plaintiffs, Roger A. Kelly and Kimberly L. Kelly and against John H. Seachrist Jr. and Darlene L. Seachrist in the amount of $300.

KAYE, J., Peggy J. McKnight has filed suit against Wilson College in an effort to recover compensatory and punitive damages for injuries which she allegedly suffered as the result of a sexual assault which occurred on August 29, 1989, while plaintiff was performing her work duties as a housekeeper for defendant. Plaintiff alleges, inter alia, that defendant’s negligent failure to warn or to provide adequate security in the building in which the attack occurred was the direct result of her injuries. Prehminary objections to the complaint have been filed by defendant. Included among the preliminary objections is a challenge to this court’s subject matter jurisdiction on the ground that plaintiff is precluded from filing suit by the exclusivity provision of section 303(a) of the Pennsylvania Workmen’s Compensation Act. It is, in fact, undisputed that plaintiff has received worker’s compensation benefits for her injuries, has executed a final receipt and has resumed her employment with defendant. For the reasons which follow, we conclude that plaintiff’s employment status with defendant acts to bar the tort action filed in this matter. Section 303(a) of the Act provides, pertinently, as follows: “The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees ... otherwise entitled to damages in any action at law or otherwise on account of any injury ... as defined in section 501(c)(1) and (2)...” Section 303(a) has been interpreted, as its terms require, to provide the exclusive remedy for a worker against his employer for an injury incurred in the course and scope of his employment. Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988). It has been recognized that the exclusivity provision “provides that in return for the benefit of strict liability the employee receives under the Act, the employee surrenders his or her rights to any form of compensation for any injury occurring in the course of employment other than that provided under the terms of the Act.” Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 250, 439 A.2d 1162, 1163 (1982). (footnote omitted) Similarly, while the Act requires that the employer accept liability without fault for a work-related injury, it also precludes the possibility of a larger damage verdict in a common law action. Lewis, supra. Plaintiff contends that the “dual capacity doctrine” is applicable to her case and avoids the statutory bar of the exclusivity provision of the Act. The “dual capacity doctrine” provides that an employer, who is normally protected from tort liability by the exclusive remedy provision of the Act, may nevertheless become liable in tort to its employee. “[I]f it occupies, in addition to its capacity as employer, a second capacity that confers upon it obligations independent of those imposed upon it as employer.” Taynton v. Dersham, 358 Pa. Super. 178, 185, 516 A.2d 1241, 1245 (1986), allocatur denied, 515 Pa. 569, 526 A.2d 1190 (1987). Thus in the case of Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982), it was held that a hospital employee who became ill while at work and was injured while undergoing treatment in the hospital’s emergency room, was not barred from instituting a tort action against her employer. Justice Roberts reasoned in his concurring opinion, which constituted the majority opinion of the court, as follows: “In holding itself out to the public as a provider of medical services, appellee hospital owed a duty to all its patients. There is no basis for distinguishing appellant, a paying customer, from any other member of the public injured during the course of treatment.” Id. at 255-56, 439 A.2d at 1166. Subsequent Pennsylvania case law has demonstrated the extremely limited nature of the “dual capacity doctrine.” In Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1983), it was held that an employee who sought damages for injuries suffered as the result of allegedly negligent medical treatment at the employer’s dispensary was limited to his remedy under the Workmen’s Compensation Act. The court distinguished Tatrai on the basis that the treatment received by the worker at the Bell dispensary was not available to the general public, but was limited to Bell employees. “Bell was not operating in a ‘dual capacity,’ but rather only in its capacity as employer of appellant. Thus Bell’s liability is circumscribed by the Act.” Id. at 168, 469 A.2d at 115. More recent case law has changed the analytical focus in “dual capacity” cases away from an analysis of whether the employer was acting in a separate capacity at the time of injury. Instead the analysis initially focuses on whether the employee was acting in the course of his employment. If the injury occurred while the employee was engaged in the performance of his work, the “dual capacity doctrine” is rendered inapplicable. Callender v. Goodyear Tire and Rubber Co., 387 Pa. Super. 283, 564 A.2d 180 (1989), allocatur denied, 575 A.2d 560 (1990). Thus, in Heath v. Church’s Fried Chicken Inc., 519 Pa. 274, 546 A.2d 1120 (1988), it was held that the employer was immune from a products liability claim brought by an employee who was injured by machinery which her employer manufactured. The court ruled that the fact that the employee was injured while performing her job rendered the “dual capacity” exception inapplicable. Accord, Lewis v. School District of Philadelphia, supra. In the matter now before us, plaintiff alleges that defendant owed a duty to provide adequate security on its premises and that the duty was of the same nature and flowed equally to the general public as it did to plaintiff. Plaintiff contends that there is no reason to distinguish her from any other member of the public. Plaintiff’s argument is closely analogous to that presented in Coleman v. City of Philadelphia, 131 Pa. Commw. 605, 571 A.2d 528 (1990). In Coleman, a trash collector was injured when a city street on which he was walking collapsed under him. It was undisputed that at the time of his injury he was engaged in work activities. Coleman argued that the city owed a duty to provide and maintain reasonably safe streets and that this same duty was owed to the public. The court concluded, however, that since Coleman was performing his work duties at the time of the accident and was injured in the course of his employment, his remedy was limited to that available under the Workmen’s Compensation Act. Clearly the initial focus must be on whether the employee was engaged in performance of his job at the time of injury. It is important to note that the fact that an employer may owe a duty to the general public is not alone sufficient to invoke the “dual capacity” exception to the exclusivity provision of the Act. Sutmire v. Andrews, 108 Pa. Commw. 90, 529 A.2d 68 (1987). Our initial inquiry, therefore, must address whether plaintiff was acting in the course of her employment at the time of the assault. Our review of the alleged facts reveals that plaintiff was indeed engaged in her duties as a housekeeper at the time her injuries occurred. For this reason, we must conclude that the “dual capacity doctrine” is inapplicable to this case. Since plaintiff would not have been injured absent the fact that she was on duty as an employee of defendant, it is clear that defendant was acting solely in its capacity as plaintiff’s employer when the injury occurred. We will, accordingly, sustain defendant’s preliminary objection and dismiss plaintiff’s complaint for lack of subject matter jurisdiction. ORDER Now, March 1, 1991, the defendant’s preliminary objection raising a question of jurisdiction is sustained and the above-captioned action is hereby dismissed. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §481(a). . Given our disposition of defendant’s jurisdictional objection, we need not address the remaining motions to strike and for a more specific pleading.

BUCKINGHAM, S.J., This matter is before the court on the motion of the defendant, Adams County, to dismiss the motion of the defendant, John C. Zepp III to join the county as an additional defendant on the plaintiff’s complaint against Zepp. Neither the county nor Zepp has asked for oral argument. The background of this case is not complicated. The plaintiff originally sued Zepp, an elected district justice in Adams County, and the county, alleging that Zepp refused to hire her as his clerk because she was pregnant. The complaint alleged that she was required to take a clerical test administered by the county, which she passed. Zepp thereupon offered her the job subject to final approval by the county. However, several days later, upon learning from the plaintiff that she was pregnant, Zepp refused to hire her. The county preliminarily objected to the complaint on the ground that it was not the employer of Zepp and, therefore, not liable to the plaintiff. The plaintiff contended that the county was liable to her on the theory of respondeat superior. By an opinion and order dated September 20, 1991, we agreed with the county, granted its preliminary objection and dismissed the county from the case. This was on the basis that, while the plaintiff, if hired by Zepp, would have been a county employee, Zepp was not an employee of the county but was rather an independent elected official, a member of the Pennsylvania Unified Court System and, like common pleas court judges, absolutely independent of the county, even though the county was responsible to (1) provide him with a staff and (2) pay his expenses, including the salaries of his staff. Under these facts we held that Zepp had the unquestioned authority to hire his own staff as he was the one responsible for choosing his employees. Subsequently, Zepp moved to join the county as an additional defendant under Pa.R.C.P. 2253 on the theory that the county, by implication or operation of law, must indemnify Zepp in all employment-related claims and satisfy any employment-related judgments against him. Zepp concedes that there is no express or specific requirement in the law classifying the county as his indemnitor. The county requests the court to dismiss Zepp’s motion and raises two issues. First, the county contends that Zepp waited too long to join the county as an additional defendant. Second, the county contends that it is not an indemnitor for Zepp in this situation. In view of our disposition of the second issue we need not address the first. Zepp’s theory relies on the following quoted portions of Allegheny County v. Commonwealth of Pennsylvania, 517 Pa. 65, 534 A.2d 760 (1987): “The Judicial Code required that county officials provide adequate staff for the courts: ‘“Whenever necessary, it shall be the duty of county officers to appoint or detail such county staff as shall enable the judges of the courts embracing the county to properly transact the business before their respective courts.’ 42 Pa.C.S. §2302. “Further, the county is required to establish and maintain a judicial and related account. 42 Pa.C.S. §3541. Out of this account the county must pay: ‘“(1) Salaries, fees and expenses of: “‘(i) Appointive judicial officers. ‘“(ii) Other system and related personnel which by statute are required to be paid by the political subdivision. “‘(2) Salaries, fees and expenses of jurors, witnesses and all other persons paid under authority of law by the political subdivision for the maintenance of judicial and related functions.’ 42 Pa.C.S. §3544. “The code also provides: “‘Except as otherwise provided by statute, each county shall continue to furnish to the court of common pleas and community court embracing the county, to the minor judiciary established for the county and to all personnel of the system, including central staff entitled thereto, located within the county, all necessary accommodations, goods and necessary services which by law have heretofore been furnished by the county.’ 42 Pa.C.S. §3722. “Finally, we note that the Second Class County Code mandates that a salary board shall fix the compensation of certain court employees: “‘The board, subject to limitations imposed by law, shall fix the compensation of all appointed county officers, and the number and compensation of all deputies, assistants, clerks and other persons whose compensation is paid out of the county treasury, and of all court criers, tipstaves and other court employees, and of all officers, clerks, stenographers and employees appointed by the judges of any court and who are paid from the county treasury.’ 16 P.S. §4823. “See also The County Code, 116 P.S. §1623, where similar obligations are imposed upon counties of the third through eighth classes. In sum, it is apparent that the General Assembly intended to create a legislative scheme in which funding of the various judicial districts was primarily a responsibility of the counties, and that these responsibilities include the funding of salaries, services and accommodations for the judicial system. “The Supreme Court went on to hold that the existing statutory scheme described above ‘is in conflict with the intent clearly expressed in the [Pennsylvania] constitution that the judicial system be unified.’ However, this judgment was and remains stayed ‘to afford the General Assembly an opportunity to enact appropriate funding legislation consistent with this holding. Until this is done, the prior system of county funding shall remain in place.’” We have examined the cited portions of Allegheny and believe that there is nothing therein which even remotely suggests that the county is an indemnitor of a district justice on claims arising out of his decision not to hire someone for his staff. Allegheny simply stands for the proposition, which everyone concedes, that the county is responsible for (1) funding the expenses and salaries of its employees, including the staff of common pleas court judges and district justices, and (2) providing facilities for the judges and district justices free of charge to them. As we indicated earlier, a district justice is entirely independent of the county, being, like the common pleas court judges, a member of the Pennsylvania Unified Court System, even though the county must pay his expenses and the salaries of his staff and even though, in the present case, the county participated to some extent in helping the district justice in his decision whether to hire someone. As we pointed out in our previous opinion, in the final analysis, it is the district justice who alone is responsible for hiring his employees, not the county. This conclusion is supported by Lehigh County v. Commonwealth of Pennsylvania Labor Relations Board, 507 Pa. 270, 489 A.2d 1325 (1985). There the court stated at 275, 489 A.2d at 1327: “The power to appoint necessary personnel is inherent in the judicial power. Sweet v. Pennsylvania Labor Relations Board (Sweet I), 457 Pa. 456, 322 A.2d 362 (1974); see also 42 Pa.C.S. §2301. The authority to supervise and to discharge court-appointed employees is not only a necessary corollary to this appointment power but also is essential to the maintenance of an independent judiciary. See Commonwealth ex rel.Bradley v. Pennsylvania Labor Relations Board, [479 Pa. 440, 388 A.2d 736 (1978)]; Ellenbogen v. County of Allegheny, 479 Pa. 429, 388 A.2d 730 (1978). Since the court has the inherent right to hire, discharge and supervise, an employer-employee relationship exists by definition between the judges and their appointees. Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, supra; Sweet I, supra; see Costigan v. Philadelphia Finance Department Employees Local 696, AFSCME, 462 Pa. 425, 341 A.2d 456 (1975). The fact that those employees are paid by the county does not alter the court’s employer status.” Sweet I, supra, (emphasis added) It also stated at page 276, 489 A.2d at 1328: “16 P.S. §1620 (Supp. 1984-85), section 1620 now provides: “‘The salaries and compensation of county officers shall be as now or hereafter fixed by law. The salaries and compensation of all appointed officers and employees who are paid from the county treasury shall be fixed by the salary board created by this act for such purposes.... “‘The exercise of such responsibilities by the county commissioners shall in no way affect the hiring, discharging and supervising rights and obligations with respect to such employees as may be vested in the judges...’” (emphasis added) Thus, since we continue to hold that the county is not responsible in any way to anyone who applies for a job with the district justice until such time as she is hired by the district justice, we here now hold that the county is not liable to Zepp by way of indemnification for any claim which the plaintiff may have against him for his refusing to hire her. We shall enter an order granting the county’s motion to dismiss Zepp’s petition to join the county as an additional defendant in this case. ORDER And now, January 8,1993, the motion of Adams County to dismiss the petition of the defendant John C. Zepp III to join Adams County as an additional defendant is granted. An exception is granted to the defendant, John C. Zepp III.

POPOVICH, Judge: Appellant Edward Watson appeals from the trial court’s May 4, 1995 Order denying his request for a new trial. Herein, appellant contends that a new trial is warranted for the following reasons: (1) The trial court misinterpreted the provision of the group disability insurance policy at issue; (2) The trial court’s verdict was against the weight of the evidence; (3) The trial court erred in not permitting him to testify that semilente is absorbed more slowly than regular insulin; and, (4) The trial court improperly excluded Dr. Allen Zechowy’s videotaped deposition. We affirm. The relevant facts and procedural history are as follows: In February 1980, appellant filed a complaint against American Home Assurance Company (American Home) seeking coverage under a group disability insurance policy issued to appellant’s former employer, Ebasco Services, Inc. (Ebasco). The insurance policy covered accidental death, dismemberment and total disability. In his complaint, appellant claimed that on November 15, 1976, while he was working at the Ebasco office in New York City, he tripped over a wastepaper basket and hit his head. He further claimed that the injury to his head caused him serious brain damage resulting in total disability. American Home refused to pay under appellant’s policy because it believed that appellant’s brain damage resulted exclusively from his extensive history of diabetes and not from an alleged fall at the Ebasco office. Specifically, American Home believed that appellant’s brain damage resulted from a pre-existing disease (diabetes) and not from an “accident” as was required by the policy. By its terms, the policy at issue provided that coverage for disability due to injury was permitted where “injury” was “caused by an accident ... resulting directly and independently of all other causes in loss covered by this policy.” Following a bench trial held on June 6, 1994, the trial court entered a verdict in favor of American Home, thereby determining that American Home’s denial of appellant’s claim was not a breach of the policy. The trial court specifically found that appellant’s disability was due to repeated episodes of hypoglycemia (low blood sugar) associated with diabetes, and that his disability was not due to an alleged fall at the Ebasco office. Accordingly, the trial court found that appellant’s disability was not due to an “accident resulting directly and independently of all other causes,” as was required under the policy for appellant to recover. Appellant filed post-trial motions on August 29, 1994, and on March 6, 1995. The trial court denied appellant’s post-trial motions. This appeal followed. Appellant’s first claim is that the trial court misinterpreted the provision of the group disability policy at issue. Specifically, he claims that the trial court erred in concluding that he had the burden of proving that his disability was caused by an accident resulting “directly and independently of all other causes.” Instead, appellant claims, the trial court should have held that he only had the burden of proving that his disability was caused by an “accident,” regardless of whether the accident was “the direct and independent cause” of his disability. Appellant fur ther argues that if this Court determines that he had the burden of proving that an accident was the “direct and independent cause of his disability,” we must find that the trial court misapplied the law in holding that he failed to meet this burden. We disagree. Preliminarily, “we note that federal law governs this issue, including the construction of the policy provision. Congress, in adopting the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., expected that ‘a federal common law of rights and obligations under ERISA-regulated plans would develop.’ ” Todd v. AIG Life Ins. Co., 47 F.Sd 1448, 1451 (5th Cir.1995) (citation omitted). See McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129 (9th Cir.1996). State law does not control the construction of ERISA accidental death, dismemberment and permanent disability policies such as the one at issue in this case. McClure, supra. However, in ascertaining the applicable federal common law, courts may draw guidance from analogous state law. Todd, supra; Saltarelli v. Bob Baker Group Medical Trust, 35 F.3d 382 (9th Cir.1994). Here, appellant seeks coverage under the policy provision which provides coverage for “bodily injury caused by an accident occurring while this policy is in force as to the insured and resulting directly and independently of all other causes in loss covered by this policy.” The trial court interpreted this provision to mean that appellant was required to demonstrate that an accident was the direct and independent cause of his brain damage. After hearing all the evidence, the trial court found that appellant’s disability resulted exclusively from repeated episodes of hypoglycemia associated with diabetes. The trial court found incredible appellant’s assertion that his disability resulted from a head injury sustained when he allegedly fell over a wastepaper can at the Ebasco office. Having found that appellant’s disability re-suited exclusively from repeated episodes of hypoglycemia, the trial court concluded that there was no accident which caused appellant’s disability independent of his diabetes (a preexisting disease). Therefore, the trial court determined that under the dictates of the policy appellant did not suffer “a bodily injury caused by an accident resulting directly and independently of all other causes.” We find that this was not error. From the clear, express language of the policy, coverage is provided for “bodily injury caused by an accident ... resulting directly and independently of all other causes.... ” Because the policy unambiguously states that coverage is limited to accidents resulting “directly and independently of all other causes,” the trial court did not err in examining and using these words in determining appellant’s coverage under the policy. See McClure, supra (the unambiguous language of the policy controls). We must next determine whether the trial court’s interpretation and application of this phrase to the facts of this case was error. Recently, in McClure v. Life Ins. Co. of N. Am., 84 F.3d 1129 (9th Cir.1996), the United States Court of Appeals for the Ninth Circuit examined the extensive and conflicting federal law regarding the interpretation of accident policies. Specifically, the court analyzed the numerous tests which have emerged concerning coverage of preexisting conditions and the interpretation of the phrase “accidental body injury resulting directly and independently of all other causes.” After a thorough analysis, the federal court fashioned the following rules which guide our resolution of appellant’s claim in this case: We hold that if the exclusionary language here in question [“directly and independently of all other cause”] is conspicuous, it would bar recovery if a preexisting condition substantially contributed to the disability. This could result in a denial of recovery even though the claimed injury was the predominant or proximate cause of the disability. On the other hand, we hold that if the language [“directly and independently of all other causes”] is inconspicuous, a policy holder reasonably would expect coverage if the accident were the predominant or proximate cause of the disability. This means that recovery is permitted if the accident was not the remote cause of the injury. McClure, 84 F.3d at 1136. Here, the parties did not discuss the manner in which the exclusion appeared, nor did the trial court determine whether the “directly and independently” language was conspicuous or buried in general policy language. However, we find that in this ease it is unnecessary for us to determine whether the language was conspicuous or buried in general policy language because under both tests appellant must be denied recovery. As stated previously, the trial court found that appellant’s brain damage was caused exclusively by his repeated episodes of hypoglycemia associated with diabetes. The trial court further found that appellant’s allegation of falling over the wastepaper can, even if true, was not related in anyway to his disability. As such, applying the rules enunciated in McClure, appellant is barred from recovery because his diabetes (a preexisting disease) substantially contributed to his brain damage and it was the predominant or proximate cause of his brain damage. See McClure, supra; Henry v. Home Ins. Co., 907 F.Supp. 1392 (C.D.Cal.1995). Accordingly, we find that the trial court did not err in denying appellant coverage because his disability was not “caused by an accident resulting directly and independently of all other causes.” Appellant’s next contention is that a new trial is warranted because the trial court’s verdict was contrary to the weight of the evidence. “The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but his discretion is not absolute. This Court will review the trial court’s action and will reverse if it determines that the trial court abused its discretion.” Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516, 517 (1970) (citation omitted). A new trial will be granted on the grounds that the verdict is against the weight of the evidence “only where the verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.... [The appellant] is not entitled to a new trial where the evidence is conflicting and the [finder of fact] could have decided either way.” Gottfried v. American Can Co., 339 Pa.Super. 403, 489 A.2d 222, 225 (1985). Here, in order to recover under the policy at issue, appellant was required to prove that he suffered a bodily injury resulting from an “accident resulting directly and independently of all other causes.” Based on the evidence presented, the trial court determined that appellant’s bodily injury did not result from an accident but was the result of repeated episodes of hypoglycemia associated with diabetes. Our review of the trial record persuades us that the conflicting testimony offered at trial was adequate to support the trial court’s verdict for American Home. At trial, American Home presented the expert testimony of Stanley Schwartz, M.D., an endocrinologist at the Hospital of the University of Pennsylvania, and Stephen Sil-berstein, M.D., the Chief of Neurology at the Germantown Hospital. Both experts testified that appellant’s disability resulted from repeated episodes of hypoglycemia (low blood sugar) associated with diabetes. Both experts also testified that appellant’s disability could not have resulted from appellant’s alleged fall at the Ebasco office. Specifically, Dr. Schwartz testified that in his opinion the likelihood that appellant’s brain damage was the result of a head injury was “nil” and that diabetes accounted “for everything.” To further support its position, American Home presented appellant’s medical records to establish that appellant had a lengthy history of diabetes. Appellant’s medical records indicated that since 1962, appellant has suffered numerous episodes of hypoglycemia, causing him to enter a semi-comatose or comatose condition. Appellant’s medical records further indicated that on the day that appellant allegedly tripped and hit his head while working at the Ebasco office, he was rushed by ambulance to an emergency room. The hospital’s records indicated that appellant was treated for “hypoglycemia due to insulin.” Similarly, the ambulance call report indicated that the nature of appellant’s problem was “diabetic.” Although there were specific blocks that the ambulance crew could have marked under “head injury” or “laceration,” the blocks remained unchecked. At trial, appellant testified that he tripped and hit his head at approximately 8:30 a.m. while working at the Ebasco office. He further testified that after he fell, the next event he remembered was being assisted by his coworkers at around 4:45 p.m. when the ambulance arrived. Appellant could not remember whether he had eaten that afternoon. He then testified that his brain damage resulted from either the injury to his head or from his failing to eat that afternoon which resulted in hypoglycemia. He then surmised that if he forgot to eat that afternoon it was because of his head injury. Accordingly, appellant argued that his fall contributed to his hypoglycemia because as a result of the fall he forgot to eat lunch. In any event, whether his brain damage resulted directly from his head injury or from his failure to eat lunch after the fall, appellant argued that his injury was an “accident.” Appellant further argued that Dr. Schwartz’s and Dr. Silber-stein’s opinions to the contrary were incorrect, and that the trial court erred in finding their inconsistent testimony credible. We find that under the circumstances in this case, the trial court did not err in finding that a new trial was not required. It is black letter law in this jurisdiction that a new trial should not be granted because of a mere conflict in testimony, and that the finder of fact is free be believe all, part or none of a witness’ testimony. Bur-rell, supra. The trial court did not find credible appellant’s testimony that his disability resulted from a head injury he allegedly sustained when he fell over a wastebasket at the Ebasco office. The trial court further found that even if appellant’s allegation of falling was true, it was not related in any manner to his disability. Instead, the trial court found credible American Home’s expert testimony that appellant’s disability was a result of repeated episodes of hypoglycemia, which were unconnected to appellant’s alleged fall in any manner. We will not disturb this finding on appeal. The fact that there is evidence which appellant believes is inconsistent with the evidence presented by American Home does not justify a conclusion that the trial court’s verdict favoring American Home “shocks the conscience” or was “clearly contrary to the law.” Appellant’s next contention is that the trial court erred in not permitting him to offer his opinion that semilente is absorbed more slowly than regular insulin. In addition, while offering that opinion, appellant contends that the trial court should have permitted him to quote figures from a diabetic magazine indicating that semilente is absorbed more slowly than regular insulin. Our review of the record indicates that the trial court permitted appellant to testify on the basis of his own personal experience that when he used semilente, it was absorbed more slowly than regular insulin. However, the trial court would not permit appellant to testify concerning figures he read in a diabetic magazine which supported this argument. We find that this was not error. “Admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court may reverse only upon a showing that the trial court abused its discretion.” Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610, 621 (1989). In this jurisdiction, “a lay witness’ opinion is admissible so long as it is based on his perception of that which he observes and would be helpful in clarifying an ultimate fact for the trier.” McKee by McKee v. Evans, 380 Pa.Super. 120, 551 A.2d 260, 268 (1988). Even though a lay witness’ opinion is admissible, statements contained therein must comport with the other relevant rules of evidence, including the hearsay rule. Hammel v. Christian, 416 Pa.Super. 78, 610 A.2d 979 (1992). We find that the trial court properly permitted appellant to testify on the basis of his own personal experience that when he used semilente it was absorbed more slowly than regular insulin because such an opinion was based on his perception and was helpful to the trier of fact. McKee, supra. We also find that the trial court properly precluded appellant from quoting figures from a magazine to support his argument concerning semilente. Such testimony would have been inadmissible hearsay because it was an out-of-court-statement offered to prove the truth of the matter asserted. Hammel, supra (hearsay is an out-of-court-statement, verbal or written, offered to prove the truth of the matter stated). Appellant’s final contention is that the trial court improperly excluded Dr. Allen Zeehowy’s videotaped deposition. At trial, the trial court admitted a written transcript of Dr. Zechowy’s deposition, but it excluded a videotape containing his deposition. According to Pa.R.Civ.P. 4017.1(g) “a videotape deposition of a medical witness or any witness called as an expert, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.” (emphasis added). Moreover, as discussed previously, under the dictates of Pennsylvania law, the admissibility of evidence is a matter addressed to the sound discretion of the trial court. Tedford, supra. Our review of the record reveals that appellant did not present this issue to the trial court in either of his post-trial motions. Because this issue was raised for the first time on appeal, the trial court never addressed appellant’s contention that it was error to exclude Dr. Zechowy’s videotaped deposition. Therefore, the trial court’s reasons for excluding the videotaped deposition do not appear in the record. Appellant’s failure to raise this claim in either of his post-trial motions prevents us from making a meaningful review of the claim, and, accordingly, we find that appellant has waived this issue on appeal. Dollar Bank v. Swartz, 540 Pa. 369, 657 A.2d 1242 (1995) (appellate court will deem waived issues which were not presented in post-trial motions; an appellate court does not sit to review questions that were neither raised nor considered in the trial court). “This is not a rule without a reason. To maximize our efficiency and to maintain and enhance the quality of our dispute resolution process, strict compliance with the procedures designed for issue preservation is essential.” Dollar Bank, 657 A.2d at 1245. For all of the foregoing reasons, we affirm the trial court’s Order denying appellant’s request for a new trial. Affirmed. . We note that the rather lengthy delay between the filing of appellant’s complaint and the resolution of his appeal are not attributable to this Court. . Under ERISA, the "savings clause" exempts from preemption "any law of any state which regulates insurance." 29 U.S.C. § 1144(b)(2)(A). However, "state laws of insurance policy interpretation do not qualify for the ‘savings clause’ exception and are preempted. The interpretation of ERISA insurance polices is governed by a unifoim federal common law.” McClure, 84 F.3d at 1132-1133. It is well-settled that group disability insurance policies like the one at issue in this case are ERISA insurance policies, and, therefore, the policy at issue is governed by federal common law. McClure, supra. . We note that in this case the parties stipulated that New York law was applicable because that is where the insurance contract was issued. Accordingly, the trial court analyzed the "directly and independently” clause under the dictates of New York insurance law. As previously discussed, the insurance policy in this case is an ERISA policy, and, therefore, its interpretation is governed by the federal common law. Although the trial court did not interpret the insurance clause in the same manner as this Court, it ultimately reached the proper conclusion denying appellant recovery on the basis of the facts in this case. Since we have the power to affirm the trial court’s correct decision on any legal basis, we affirm the trial court’s conclusion of law on the basis of the aforementioned analysis. Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981). . The risk of hypoglycemia is increased when diabetics fail to eat regular meals. . Appellant alleges that semilente is a type of insulin which is short-acting, meaning that it is absorbed into the body quicker than other types of insulin. He also alleges that this testimony was significant because it could pinpoint at what time during the day he entered his comatose state. . We note that in his March 6, 1995 post-trial motion, appellant asserted that "plaintiff had expected to use the video of Dr. Zechowy to compete with the live testimony of the defense's doctors.” This assertion was not made to argue that the trial court improperly excluded Dr. Ze-chowy’s videotaped deposition. Rather, the assertion was made to enhance appellant's argument that the trial court erred in ruling that depositions were to be read during the trial at some point later than the presentation of the case.

BECK, Judge: Appellant-plaintiff Rosemarie Fenderson, as Executrix of the Will of Bryan Fenderson, sought an ownership interest in real property under the following theories: (1) resulting trust; (2) constructive trust; and (3) an express oral agreement. A judgment was entered by the court refusing to impose a resulting or constructive trust. The chancellor found that appellant failed to prove by clear, explicit and direct evidence that Bryan Fend-erson’s estate was entitled to an ownership interest in the property by way of a resulting trust or constructive trust and in the alternative that a resulting or constructive trust would be invalid. Upon review of the chancellor’s findings of fact which are supported by clear, explicit and direct evidence, a resulting trust exists in favor of Bryan Fender-son’s estate. Furthermore, we find that the resulting trust is not invalid. Our scope of review of an equity decree is limited. Dudash v. Dudash, 313 Pa.Super. 547, 460 A.2d 323 (1983). See De-Mar chis v. D’Amico, 432 Pa.Super. 152, 637 A.2d 1029 (1994). The chancellor’s findings of fact will not be reversed unless it appears that the chancellor clearly committed an abuse of discretion or an error of law. Id. However, the chancellor’s conclusions of law, which are derived from nothing more than reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable. Id.; Linnet v. Hitchcock, 324 Pa.Super. 209, 471 A.2d 537 (1984) (appellate court is not bound by trial court’s conclusions of law based on its findings of fact). See In re Estate of Cornell, 511 Pa. 475, 515 A.2d 555 (1986) (whether the evidence presented was clear, direct, precise and convincing is a question of law). The following is an account of the facts based on the chancellor’s findings of fact. The instant action involves property purchased by members of the Fenderson family. The Fenderson family consisted of Lydia Fenderson, the mother of Bryan Fenderson, Lewis Fenderson and Elizabeth Fenderson Craft. Charles Craft is Elizabeth Fenderson Craft’s husband and Rosemarie Fenderson is Bryan Fenderson’s wife. Lettie A. Fender-son is Lewis Fenderson’s wife. Rosemarie Fenderson is the appellant-plaintiff and the Executrix of Bryan’s will, while Lettie Fend-erson is the appellee-defendant and the Executrix of the Will of Elizabeth Craft. Prior to the purchase of the real estate involved in the present action, Lydia, Bryan, Elizabeth and Charles Craft lived with Bryan Fenderson in his home. For the time relevant to this case, Lewis Fenderson lived in Washington D.C. In 1961, the family decided to purchase a family home at 15 Pelham Road (“the Property”) for $24,279.11. Lewis Fenderson paid the initial deposit of $2,300. At settlement, Charles Craft provided $ 6,890.32 in cash and Bryan Fenderson provided $4,388.37. This amount was in the form of a settlement check from the sale of Bryan’s home which he endorsed and made payable to Lewis, Lydia and Elizabeth and which they in turn endorsed and made payable to the title company. The remainder of the purchase price was provided for by a $13,000 mortgage acquired by Lewis. Lewis Fenderson, Elizabeth Craft and Lydia Fenderson took title to the property as joint tenants with right of survivorship. Bryan Fenderson was not named in the deed. Testimony revealed that Bryan was not a title owner because at the time the property was purchased, there was a lawsuit filed against Bryan. Even though Bryan was not a legal owner of the property, he and Rosemarie along with Lydia and Elizabeth and Charles Craft lived on the property until 1969. In 1969, Elizabeth and Lydia moved out and Bryan and Rosemarie occupied a portion of the property and rented the remainder. Bryan Fender-son reimbursed Lewis and Elizabeth for 50% of the expenses and mortgage payments associated with the property, as well as, paid $2,254 directly to the mortgage company. In 1991, Elizabeth and Biyan were the only parties still alive who were initially involved in the purchase of the property. Elizabeth passed away in January of 1991. Since Bryan was not a title owner of the property, the property was distributed according to Elizabeth’s will. After Bryan’s death in March of 1991, appellant, as executrix of Bryan Fenderson’s estate, initiated the present action seeking an ownership interest in the property. Appellant claimed Bryan Fenderson’s estate had an ownership interest in the property under an express oral agreement to add Bryan’s name to the deed or by a resulting or constructive trust. There was a hearing before a judge pro tern. After the hearing, the chancellor issued a decree nisi refusing to find that Bryan Fenderson’s estate had an ownership interest in the property. After issuing findings of fact, the chancellor concluded that appellant had failed to sustain her burden of proving that Bryan’s estate was entitled to a resulting trust by clear, explicit, direct, unequivocal and convincing evidence. The chancellor then determined that even if a resulting trust existed, it was invalid, because the trust was created to avoid the claims of potential creditors. The chancellor concluded that while the parties discussed adding Bryan’s name to the deed, they never reached an agreement. However, the chancellor did create a life estate in Rosemarie Fenderson’s favor. He found that Elizabeth Craft entered into a contract with Bryan promising to make a will in which Rosemarie would possess a life estate in the property. After exceptions were filed by appellant and denied by the trial court, the decree nisi was made final and entered as a judgment. Rosemarie filed the appeal presently before us. We reverse. CONTRACT TO MAKE A WILL AND PROVIDE A LIFE ESTATE FOR PLAINTIFF The chancellor’s order declaring a life estate for the benefit of Rosemarie cannot be affirmed on appeal. A trial court errs when it rules on an issue not presented to it, because an issue not raised is deemed waived. Pennsylvania Department of Transportation v. Reott, 56 Pa. Commw. 252, 424 A.2d 991 (1981). We find that it was error for the chancellor to grant Rosemarie a life estate interest in the property, when neither the plaintiff nor the defendant set forth the theory of a promise to make a will benefiting Rosemarie as a basis for establishing an interest in the property. RESULTING TRUST We also find the chancellor erred in failing to impose a resulting trust in favor of Bryan Fenderson’s estate. Based on the chancellor’s findings of fact, supported by clear, precise, direct and unequivocal evidence, a resulting trust exists. Furthermore, the resulting trust is not invalid. A resulting trust arises when a person makes a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have a beneficial interest in the property. Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975); Policarpo v. Policarpo, 410 Pa. 543, 189 A.2d 171 (1963). A purchase-money resulting trust arises in favor of the person who paid the purchase price, when the transfer of property is made to one person and the purchase price is paid by another. Masgai, supra; Grubb v. Delathauwer, 274 Pa.Super. 511, 418 A.2d 523 (1980); Potoczny v. Dydek, 192 Pa.Super. 550, 162 A.2d 70 (1960). See Restatement (Second) of Trusts § 440. In or der for a purchase-money resulting trust to arise, the following is required: (1) the transfer is made to one person and the purchase price is paid by another; (2) the payor does not have the intention that no resulting trust shall arise; (3) the transferee is not the natural object of the transferor’s bounty. Fitzpatrick v. Fitzpatrick, 346 Pa. 202, 29 A.2d 790 (1943). A purchase-money resulting trust can even arise when several persons contribute to the payment of the purchase price and title is not in the names of all contributing payors. Zahorsky v. Leschinsky, 394 Pa. 368, 147 A.2d 362 (1959); Potoczny, supra. When this occurs, a resulting trust arises in favor of the person who paid the purchase price in the proportion that the amount paid bears to the total purchase price. Lewis v. Spitler, 226 Pa.Super. 201, 207, 403 A.2d 994 (1979). See Restatement (Second) of Trusts § 454. A resulting trust must arise at the time title is transferred. Musselman v. Myers, 240 Pa. 5, 87 A. 425 (1913). Payment of the purchase price by the beneficiary subsequent to the transfer of title without a prior obligation on the part of the beneficiary to pay fails to raise a resulting trust. Id. As a result, the purchase money must be paid at the time title passes or the beneficiary must be obligated to pay. Id. See United States of America v. Premises Known as 717 South Woodard Street Allentown, Pennsylvania, 804 F.Supp. 716 (1992), modified, 2 F.3d 529. The law requires clear, direct, precise and convincing evidence of a resulting trust before it will convert absolute ownership into an estate of lesser quality. Mas-gai, supra; Grubb, supra. The person seeking the imposition of the resulting trust has the burden of meeting the evidentiary standard. The law is clear that once the evidence establishes that a party has made a partial payment towards the purchase price, the beneficiary has a prima facie case for a purchase-money resulting trust in his favor in the proportion that the amount paid by him bears to the total purchase price. Purman v. Johnston, 343 Pa. 647, 22 A.2d 722 (1941) (mere payment of purchase price is sufficient to create a resulting trust); Fitzpatrick, supra; Lewis, supra. See Restatement (Second) of Trusts § 440. In the present case, after setting forth the findings of fact the chancellor found that appellant failed to meet the burden of providing clear, direct, precise and convincing evidence that a resulting trust existed. We disagree. The chancellor found that “the cash portion of the acquisition was provided in part by the settlement check from the sale of Bryan Fenderson’s home in the amount of $4,388.37 which he endorsed and made payable to Lewis Fenderson, Lydia Fenderson and Elizabeth Craft and which, they, in turn, endorsed and made payable to the title company.” Chancellor’s Findings of Fact. According to this finding of fact, Bryan contributed of the amount towards the purchase price at the time title passed to Lewis Fend-erson, Elizabeth Craft and Lydia Fenderson. This finding is clear, precise, direct evidence that Bryan Fenderson contributed a portion of the purchase price at settlement and establishes a prima facie case for a partial purchase-money resulting trust. A prima facie case established by the party seeking a resulting trust can be rebutted by evidence showing that the payor did not intend to receive a resulting trust or any beneficial interest in the land. Masgai, supra; Lewis, supra. See Restatement (Second) of Trusts § 441. When there is no evidence as to the intention of the payor, it is inferred that the payor intended to acquire a beneficial interest in the property in such proportion as the part paid by him bears to the total purchase price. Restatement (Second) of Trusts § 454 emt. b. In the present case, appellee failed to produce direct evidence that Bryan did not intend to have a beneficial interest in the property. As a result, we can infer that Bryan intended to acquire a beneficial interest in the property to the extent of his contribution to the purchase price. In fact, the chancellor’s findings of fact (1) that the only reason Bryan’s name was not added to the deed was because a lawsuit had been filed against Bryan and (2) that Bryan had reimbursed Lewis and Elizabeth for the mortgage payments they made, support the assertion that Bryan did intend to have a beneficial interest in the property. In order to impose a resulting trust, the transferee must not be the natural object of the transferor’s bounty. When the transfer of property is made to a wife, child or other natural object of the bounty of the person who contributed to the purchase price, it is presumed that the transaction was intended as a gift and a resulting trust does not arise. Hornyak v. Sell, 427 Pa.Super. 356, 629 A.2d 138 (1993); Kohr v. Kohr, 271 Pa.Super. 321, 413 A.2d 687 (1979). See Restatement (Second) of Trusts § 443. However, the relationship of brother and sister, does not, per se, give rise to a presumption that one is the object of the other’s bounty. Fitzpatrick, supra. In the present case, there was no evidence admitted to show that Bryan’s contribution was a gift. As a result, the fact that Bryan Fenderson is the brother of Lewis and Elizabeth does not give rise to a presumption of a gift and does not interfere with the finding of a resulting trust in favor of Bryan Fenderson’s estate. Upon review of the chancellor’s findings of fact, there is clear, direct evidence that Bryan contributed to the purchase price and there is no evidence that he did not intend to receive a resulting trust. As a result, we find that a resulting trust was created at the time of settlement in Bryan Fenderson’s favor in proportion to the amount he contributed. In the present case, a partial purchase-money resulting trust arose at the time of settlement which must be enforced unless the trust was established for an improper purpose, i.e. the purpose of defrauding the creditors of the payor. Policarpo v. Policarpo, supra; In re Summers Estate, 424 Pa. 195, 226 A.2d 197 (1967). The chancellor found that the reason Bryan Fenderson’s name was not included in the deed was because of a lawsuit filed against him. The plaintiff in the lawsuit had fallen on Bryan Fenderson’s property and had initiated a personal injury action. The plaintiff in the lawsuit filed against Bryan Fenderson is considered a creditor of Bryan’s under the Pennsylvania Uniform Fraudulent Transfer Act. 12 Pa.C.S. § 5101(b) (Pennsylvania Uniform Fraudulent Transfer Act defines creditor as any person who has a claim, right to payment regardless of whether it is reduced to judgment, liquidated, fixed, contingent, matured, unmatured or disputed). Therefore, it would seem as if a resulting trust cannot arise in favor of Bryan Fenderson because he contributed to the purchase price without taking little in order to defraud a potential creditor. However, section 444 of the Restatement (Second) of Trusts allows a resulting trust created for an illegal purpose to arise unless it is against public policy to enforce such a resulting trust. Restatement (Second) of Trusts § 444 cmt. a. In the present case, the chancellor also found that the lawsuit was dismissed with prejudice. We find that it is not against public policy to enforce the instant resulting trust when the filed lawsuit was dismissed without any evidence that the claim which Bryan sought to avoid had any substantial foundation. As a result, the resulting trust in favor of Bryan Fenderson is valid and must be enforced. As set forth above, at the time title passed in the property, a resulting trust was created in Bryan Fenderson’s favor. By contributing $4,388.67 to the purchase price of $24,279.11 at the time of settlement, Bryan Fenderson obtained a ]é fractional undivided interest in the property. In the present case, Lewis Fenderson, Elizabeth Craft and Lydia Fenderson (the parties whose names appear on the deed) had an interest in the property as joint tenants with right of surviv-orship. As a result, we must determine whether Bryan holds his interest as joint tenant with right of survivorship or as a tenant in common. There is no case law on the subject to guide us under these particular facts, and as set forth below, we find that Bryan Fenderson’s ownership interest in the property is as a joint tenant with right of survivorship. The only ease law dealing with ownership interest in the property concerns the situation where title is taken by a person who pays a portion of the purchase price, and the other portion is paid by another who does not take title. Lends, swpra. In this situation, the court created a partial purchase-money resulting trust for the benefit of the payor who held his interest in the property as a tenant in common with the transferor. Id. Because the theory of a resulting trust depends on the parties’ intent and because the deed provides for joint tenancy -with right of survivorship, we find that Bryan Fenderson holds an interest in the property as a joint tenant with right of survivorship. The doctrine of resulting trusts is based on the presumption of the intent of the parties arising from and shown by their acts at the time of the transaction. Peoples-Pittsburgh Trust Co. v. Saupp, 320 Pa. 138, 182 A. 376 (1936). In the present case, at the time the deed was created, it provided for joint tenancy with right of survivorship. As set forth above, the resulting trust was also created at the same time the deed was transferred. By acting in a manner which lead to the creation of a resulting trust, as well as providing for joint tenancy with right of survivorship, the parties taking title to the deed not only intended to hold their interests as joint tenants with right of survivorship, but also intended for Bryan Fenderson’s interest to be as a joint tenant with right of survivorship. The law is clear that to hold property as joint tenants with right of surviv-orship, the four unities must be present: unity of time, unity of possession, unity of title and unity of interest. See Summary of Pennsylvania Jurisprudence (Second) Property § 6:4. We find that the creation of a resulting trust does not destroy the four unities. Unity of time requires that the interests of the tenants vest at the same time. Unity of title requires the tenants to have obtained their title by the same instrument. Because a resulting trust is created at the time title is transferred, Bryan’s interest in the property was created at the same time that Lewis, Elizabeth and Lydia received an interest in the property, as well as from the same instrument. Unity of possession requires the tenants to have an undivided interest in the whole estate. This unity is satisfied because by contributing a portion of the purchase money at the time of settlement, Bryan Fenderson received a 14 undivided interest in the property. Unity of interest requires the tenants to have estates in the property of the same type, duration and amount. Because a resulting trust arises at the time title passes and is established from the same instrument, Bryan’s interest is the same type, duration and amount as the remainder of the parties listed in the deed. Since Bryan Fenderson is a joint tenant with right of survivorship, Bryan Fenderson, as the last remaining survivor, had sole ownership and control over the property prior to his death. In re Parkhurst’s Estate 402 Pa. 527, 167 A.2d 476 (1961) (essence of joint tenancy with right of survivorship is the vesting of two or more persons with joint ownership during lifetime with sole ownership and control passing to survivor at the death of other joint tenants). Once Bryan passed away, the property should have been disposed of under Bryan Fenderson’s estate. Order reversed. Trial court is directed to enter order imposing resulting trust on the property known as 15 Pelham Road, Philadelphia, PA in favor of the estate of Bryan Fenderson. Jurisdiction relinquished. . The lawsuit against Bryan was dismissed with prejudice in 1975. . The chancellor found that in addition to the money Bryan paid to reimburse his brother and sister, Bryan paid $80,057.47, including mortgage payments, to maintain and pay expenses on the property. It was determined that Bryan contributed 61% of the total costs while Lewis and Elizabeth jointly contributed 39% of the total costs of the property. . Elizabeth’s will provided for a life estate in Bryan Fenderson. Upon his death or vacating the properly, the premises were to be sold and the proceeds distributed 10% to Bryan Fender-son, 50% to Lettie Fenderson and 40% to charities. .This conclusion was based on the chancellor's interpretation of a conversation between Elizabeth and Biyan. Elizabeth promised to "do the right thing” after Biyan expressed his concern over what would happen to his wife once he died.

ORDER PER CURIAM. AND NOW, this 30th day of December, 1996, the Petition for Allowance of Appeal is GRANTED. The order of the Commonwealth Court is REVERSED and the matter is REMANDED to that Court for further proceedings consistent with this Court’s opinion in Commonwealth, Dept. of Transportation, Bureau of Driver Licensing v. Scott, — Pa. — , 684 A.2d 539 (1996).

CARSON, Member, Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement. HISTORY OF PROCEEDINGS The petitioner, [ ], was admitted to practice law in Pennsylvania in 1967 and was suspended on July 15, 1988, for a period of three months. On September 11, 1989, he was again suspended for a period of six months. These suspensions were the result of several instances of client neglect coupled with at least one instance of misrepresentation to the client as to the status of the matter. In addition, the petitioner’s record includes three previous informal admonitions and a private reprimand with three years’ probation, all for neglect and/or misrepresentation. FINDINGS OF FACT (1) Petitioner’s disciplinary problems all center around procrastination sometimes followed by misrepresentation to the client concerning the true status of the legal matter. (2) Petitioner candidly admits that these problems were compounded by a period of alcohol abuse. (3) Petitioner has been sober for over six years (since March 23, 1986). (4) For the past six years petitioner has been active in Alcoholics Anonymous (AA) and has sponsored and otherwise counseled and helped numerous recovering alcoholics. (5) The Hearing Committee heard testimony from seven individuals, in addition to petitioner and his wife, all of whom recommended reinstatement, and which included: (a) Two attorneys petitioner knows through AA; (b) A national accounts manager for a major firm; (c) Petitioner’s sponsor in AA who has known petitioner for 10 years; (d) A psychiatrist who has known petitioner through A A, handled petitioner’s divorce, and who gave his professional opinion that petitioner handles stress in an appropriate manner and is emotionally capable of practicing law; (e) A retired businessman and former client who presently manages a significant amount of real estate; and (f) An attorney for whom petitioner has done legal research during his period of suspension, and has observed no problems with procrastination and who testified that the petitioner does excellent and thorough legal research in a timely fashion. (6) At the hearing, it was established that the petitioner: (a) has done legal research during the entire time of his suspension as well as remodeling four homes, assisting in his father-in-law’s business, assisting with his father-in-law’s estate, and working for his wife’s travel agency; (b) has learned to handle stress as demonstrated by his conduct during the two-year period in which his son was battling Hodgkins disease; (c) has kept current by doing research on a daily basis for the law firm where he is employed and by attending the Pennsylvania Bar Institute Seminar at [ ]. (7) In the event that the petitioner is reinstated, his intentions are to practice law in the areas of family law, estates and small business. He indicated he intends to ease back into the practice of law and will not take an overly ambitious caseload. CONCLUSIONS OF LAW Petitioner has sustained his burden of proving he possesses the moral qualifications, competency, and learning in the law required of an attorney licensed to practice law in the Commonwealth of Pennsylvania. Petitioner’s resumption of the practice of law will neither compromise the integrity of the bar nor subvert the interests of the public. DISCUSSION The Hearing Committee concluded that during the four years that the petitioner has been under suspension he has done virtually everything possible to address his problems. While admitting that he is a recovering alcoholic, he does not attempt to blame all of his problems on alcohol. He has recognized that his procrastination is caused primarily by fear and that he must carefully monitor his work so that he does not fall into the pattern of avoiding a difficult task. He has attended group therapy sessions, AA, and seems to clearly understand himself and his problems and tendencies. He also realizes that it would be beneficial for him to practice with a group as opposed to being a sole practitioner. The petitioner has not only ended his alcohol dependency, but has obviously assisted others, many of whom testified, in ending their dependency. While it is impossible to predict future behavior with absolute certainty, the Hearing Committee concluded that it would be most unlikely that the petitioner, if reinstated, would exhibit the type of conduct that created his past disciplinary problems. The Hearing Committee believed that the petitioner had met his burden of proving that he has the requisite good character and ability to practice law and is, therefore, entitled to be reinstated. RECOMMENDATION The evidence of the record clearly suggests that due to the petitioner’s participation in AA, counseling, self-help, and awareness of his problem, he should be capable of practicing law in an appropriate manner. In accordance with the foregoing findings, the board unanimously concurs with the Hearing Committee’s decision and recommends that [petitioner] be reinstated to the practice of law. The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement. Messrs. Paris and Witherel did not participate in the adjudication. ORDER And now, November 5, 1992, upon consideration of the report and recommendations of the Disciplinary Board dated October 15, 1992, the petition for reinstatement is granted. Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.

OPINION BY BROSKY, J. ¶ 1 J.D. appeals the dispositional order imposed following a delinquency adjudication based upon a finding of guilt on charges of attempted theft and conspiracy. Pursuant to that adjudication, Appellant was ordered to be committed to the State Department of Public Welfare for appropriate placement, and he was ordered not to obtain his driver’s permit or license without the juvenile court’s approval. On appeal, he alleges that the evidence was insufficient to adjudge him guilty of attempted theft in the third degree. Also, Appellant argues that the juvenile court lacked statutory authority to impose the restrictions relating to driving privileges. After review, we affirm. ¶ 2 The juvenile court set forth the facts as elicited from the sole witness who testified at the delinquency hearing as follows: The Commonwealth presented the testimony of Sergeant Susan Green who testified that on December 18, 2000 at approximately 12:05 a.m. she was off duty at her residence when she saw [Appellant] and another male on the 6000 block of Hegerman Street, Philadelphia, in the middle of the street pulling the handles of car doors. (N.T., February 20, 2001, at 4-7). The two males pulled the handles of the first car door and it didn’t open. They then tried a second vehicle, the van, which they opened. [Appellant] got in the van on the passenger side. The other male entered on the driver’s side and turned on the interior light. [Appellant] rifled through the passenger compartment of the van while the other male lowered his head and tampered with the steering column. (N.T., at 7-8). The males exited the van and walked to the parking lot of a nearby apartment complex. They pulled the door handles on two cars in that lot. Sergeant Green called 911 and police apprehended [Appellant] and the other male at the intersection of Hegerman and Benner Streets. (N.T., at 9-10). Trial Court Opinion, May 14, 2001, at 2. ¶ 3 Appellant advances an insufficiency claim on the basis that the Commonwealth did not prove that Appellant actually was guilty of the third degree felony of attempted theft of an automobile; but rather, the evidence presented was only sufficient to prove his guilt of misdemeanor attempted theft. ¶ 4 In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. Commonwealth v. Askins, 761 A.2d 601, 603 (Pa.Super.2000). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence. Commonwealth v. Seibert, 424 Pa.Super. 242, 622 A.2d 361, 362 (1993), appeal denied, 537 Pa. 631, 642 A.2d 485 (1994). As we stated in Commonwealth v. Devine, 750 A.2d 899, 904 (Pa.Super.2000), The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence, but the question of any doubt is for the trier of fact unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Id. (citing Seibert, supra). ¶ 5 When viewing the evidence in the light most favorable to the Commonwealth, we find that the evidence was certainly sufficient to prove Appellant’s guilt of attempted automobile theft. ¶ 6 According to the Crimes Code, 18 Pa.C.S.A. § 901(a), “[a] person commits an attempt when, with intent to commit a specific crime he does any act which constitutes a substantial step toward the commission of that crime.” The elements of theft are: (1) unlawful taking or exercising unlawful control over (2) movable property of another (3) with the intent to deprive the owner thereof. 18 Pa.C.S.A. § 3921(a). ¶ 7 We agree with the juvenile court’s analysis that by entering the van and his co-conspirator’s tampering with the steering wheel once inside, these acts clearly constitute “substantial steps” toward the commission of automobile theft. The fact that Appellant and his co-conspirator never actually stole the car is of no import here as Appellant was convicted of attempted theft. Clearly, here the Commonwealth proved certain elements of the crime by circumstantial evidence. Our review of the evidence reveals that the Commonwealth sustained its burden of proving each element of the offense beyond a reasonable doubt. Therefore, Appellant’s argument must fail. ¶8 Next, Appellant argues that the juvenile court exceeded its authority by ordering commitment to a juvenile facility and restriction of Appellant’s driving privileges. This Court will not disturb the juvenile court’s disposition absent a manifest abuse of discretion. In re Love, 435 Pa.Super. 555, 646 A.2d 1233 (1994). We note that after adjudicating a child delinquent, the juvenile court’s authority is limited to selecting from the specific options listed in the Juvenile Act; and, an order which does not comport with one or more of the enumerated options is void for lack of statutory authority. In re R.A., 761 A.2d 1220 (Pa.Super.2000) (emphasis added). ¶ 9 42 Pa.C.S.A. § 6352 reads, in pertinent part, as follows: Disposition of delinquent child (a) General rule. — If the child is found to be a delinquent child the court may make any of the following orders of disposition determined to be consistent with the protection of the public interest and best suited to the child’s treatment, supervision, rehabilitation, and welfare, which disposition shall, as appropriate to the individual circumstances of the child’s case, provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable the child to become a responsible and productive member of the community: (2) Placing the child on probation under supervision of the probation officer of the court or the court of another state as provided in section 6363 (relating to ordering foreign supervision), under conditions and limitations the court prescribes. (4) If the child is 12 years of age or older, committing the child to an institution operated by the Department of Public Welfare. ¶ 10 As the Official Comment to subsection (a) clearly states, “among the probationary limitations that the court may require would be suspension or modification of motor vehicle operating privileges.” 42 Pa.C.S.A. § 6352, Official Comment. Appellant incorrectly argues that the statute limits the court’s authority to impose more than one of the enumerated options. Our reading of the statute permits the court to employ any of the enumerated options when making a delinquency disposition. Even though the court did not specifically title its disposition regarding suspension of driving privileges a “probation”, this disposition amounts to a de facto form of probation. ¶ 11 Furthermore, the juvenile court provided the following explanation in support of its disposition: In the instant case, [Appellant], who is fourteen years old, was attempting to steal a van. He has two prior adjudications for theft, unlawful taking, which are very likely car cases as well. As driving is not a fundamental right, [Commonwealth v. Strunk, 400 Pa.Super. 25, 582 A.2d 1326 (1990)], but rather a privilege, and [Appellant] has already abused that privilege prior to reaching the legal age for obtaining said privilege, it is in the community’s interest to revoke that privilege until the [Appellant] has shown that he can handle the responsibilities that go with it. Trial Court Opinion, May 14, 2001, at 5-6. We agree with the court’s decision to revoke Appellant’s driving privileges and we note that this disposition is consistent with both the aim and purpose of the Juvenile Act as stated in § 6352(a). ¶ 12 Accordingly, we affirm the Order of the Juvenile Court. ¶ 13 Order affirmed. . 18 Pa.C.S.A. § 3921(F3) and 18 Pa.C.S.A. § 903(F3). . Appellant is presently 14 years of age. . See 18 Pa.C.S.A. § 3903(a.1-b) for grading of theft offenses. . We need not address the conspiracy conviction as Appellant only argues insufficiency as to attempted theft.

TODD, J. ¶ 1 In these consolidated cross-appeals, Contraves, Inc. appeals the judgment entered in favor of the plaintiffs below, Thomas Rigging & Construction Company, Inc., t/d/b/a Thomas Technologies, Benjamin F. Thomas, Wayne Dash, and Pauline Doorley, as the executrix of the estate of Richard B. Doorley (collectively, “Licensors”), in their suit for royalty fees allegedly due under their license agreement with Contraves, and Licensors in turn appeal the trial court’s denial of their claim for counsel fees. We reverse in part, affirm in part, and remand. ¶ 2 This case concerns a dispute over royalty payments allegedly due under an exclusive license agreement for the manufacture and sale of rail yard snowblowers which employ a “microjet” engine invented by Richard B. Doorley, now deceased. In October 1997, Contraves entered into this multi-year license agreement with Li-censors (including Doorley). The license agreement provided for royalty payments by Contraves to Licensors based on the number of engines and snowblowers sold by Contraves. At issue in the present litigation was whether the agreement required yearly minimum payments of $75,000 in the first year and $100,000 in subsequent years. The agreement further provided for a minimum payment of $1,260,000 to Licensors after the first three years, and a similar payment of $2,800,000 after seven years, to avoid automatic termination of the agreement. ¶ 3 Contraves did not make any snow-blower sales the first year of the agreement and Licensors brought suit in November 1998 when Contraves refused to make a $75,000 minimum payment which Licensors alleged was due. In year two, Contraves made royalty payments of $38,000 based on its actual sales, but did not make the allegedly-required minimum payment of $100,000. In response to Li-censor’s suit, Contraves argued, inter alia, that the minimum payments of $75,000 after year one, and $100,000 at the end of years two and three were optional, and filed a motion for summary judgment to that effect. The Honorable Judith L.A. Friedman denied this motion but sua sponte granted summary judgment to Li-censors for $251,687.84, concluding that certain minimum payments were required under the license agreement. Licensors’ additional claim for the three-year payment of $1,260,000, and their claim for counsel fees under the agreement, were tried before the Honorable Max Baer, who denied the claims. Post-trial motions were denied, and this timely appeal followed. ¶ 4 In its appeal, Contraves asserts that the trial court erred in finding that the license agreement mandated certain minimum payments by Contraves. In their cross-appeal, Licensors argue that the trial court erred in rejecting their claim for counsel fees. ¶ 5 Our role in the interpretation of a contract is well settled: Determining the intention of the parties is a paramount consideration in the interpretation of any contract. Robert F. Felte, Inc. v. White, 451 Pa. 137, 143, 302 A.2d 347, 351 (1973); Unit Vending Corp. v. Lacas, 410 Pa. 614, 617, 190 A.2d 298, 300 (1963). The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous. Steuart v. McChesney, 498 Pa. 45, 48-49, 444 A.2d 659, 661 (1982); In re Estate of Breyer, 475 Pa. 108, 115, 379 A.2d 1305, 1309 (1977). However, as this Court stated in Herr Estate, 400 Pa. 90, 161 A.2d 32 (1960), “where an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or collateral circumstances.” Id. at 94, 161 A.2d at 34. We first analyze the lease to determine whether an ambiguity exists requiring the use of extrinsic evidence. A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Metzger v. Clifford Realty Corp., 327 Pa.Superior Ct. 377, 386, 476 A.2d 1, 5 (1984); Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., 59 Pa.Commonwealth Ct. 246, 251, 430 A.2d 328, 330 (1981). See also Black’s Law Dictionary 73 (Rev. 5th ed.1979). The court, as a matter of law, determines the existence of an ambiguity and interprets the contract whereas the resolution of conflicting parol evidence relevant to what the parties intended by the ambiguous provision is for the trier of fact. Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957); Fischer & Porter Co. v. Porter, 364 Pa. 495, 72 A.2d 98 (1950). See generally 4 Williston on Contracts § 616 (3d ed.1961). Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 200-01, 519 A.2d 385, 389-90 (1986). ¶ 6 Contraves asserts on appeal that the trial court erred in awarding Li-censors approximately $251,000 in minimum royalty payments, claiming instead that the license agreement does not require any minimum payments. (No one disputes that Contraves properly paid $38,000 in per-unit royalty payments, based on its actual sales, under articles 4.1 and 4.2 of the agreement.) Specifically, Contraves asserts that under article 4.3.1 of the agreement, the provision at issue, it was not required to pay the minimum royalty payments of $75,000 after the first year, and $100,000 after subsequent years. Article 4.3.1 reads in full as follows: 4.3.1 Minimum Payment Per License Year. If LICENSEE [Contraves] has not paid to LICENSORS under Articles 4.1 and 4.2 of this Agreement a total amount of ONE HUNDRED THOUSAND U.S. DOLLARS ($100,-000) by three (3) days after the end of every License Year for sales during that License Year, excluding the First License Year for which LICENSEE is only required to make a minimum payment of SEVENTY-FIVE THOUSAND U.S. DOLLARS ($75,000) by three (3) days after the end of the first License Year for sales during the first License Year, this Agreement may be terminated by LICENSORS and INVENTOR provided, however, LICENSEE may, at its option, pay the difference between its actual payments and ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000), or SEVENTY FIVE THOUSAND U.S. DOLLARS ($75,000) for the first License Year, within three (3) days from the end of the License Year in question of this Agreement in which case this Agreement shall continue in full force and effect in accordance with its terms. LICENSORS and INVENTOR may, pursuant to a writing signed by the President of TRC, waive the requirement that LICENSEE shall have paid ONE HUNDRED THOUSAND U.S. DOLLARS ($100,-000) within three (3) days from the end of the License Year in question, or SEVENTY FIVE THOUSAND U.S. DOLLARS ($75,000) within three (3) days from the end of the first License Year, and allow LICENSEE to continue under this Agreement under alternative arrangements if LICENSEE so agrees. Such minimum payment of ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000) within three (3) days from the end of the License Year in question, or SEVENTY FIVE THOUSAND U.S, DOLLARS ($75,000) -within three (8) days from the end of the first License Year, by LICENSEE shall constitute diligent and active, development of the Products by LICENSEE such that public utilization shall result therefrom during License Years one (1) through seven (7) of this Agreement and shall fully satisfy any obligation of LICENSEE to diligently and actively develop, market, or sell the Products. (License Agreement, 10/81/97 (Exhibit A to Complaint) (hereinafter, “License Agreement”), at 14 (emphasis added).) The parties do not dispute that this agreement is unambiguous; rather, they ascribe to it different meanings. ¶ 7 Contraves argues that it had the option whether to pay the minimum royalty payments, and that payment was only required to avoid termination if Licensors sought termination for Contraves’ failure to pay. (Brief for Appellees, at 16-17.) Conversely, Licensors argue that the minimum payments were mandatory, and that the only option Contraves had was whether to “revive” the agreement if Licensors sought termination. (Brief for Appellants as Appellees in Appeal No. 833 WDA 2001, at 9.) While the trial court essentially agreed with Licensors, we find this interpretation untenable and the trial court’s conclusion to be erroneous. ¶ 8 Rather, we conclude that the contract clearly states that, if Contraves failed to make the minimum yearly payment, Licensors then had the option of terminating the contract. Edited for simplicity, the first clause of this provision reads: “If LICENSEE has not paid to LICENSORS [the yearly minimum per unit royalty payments] this Agreement may be terminated by LICENSORS and INVENTOR .... ” (License Agreement, at 14 (emphasis added).) It is apparent to this Court that this “if-may” structure of the provision simply gives Licensors the option to terminate the contract if insufficient payments are made by Contraves and is not a mandate of minimum payments by Contraves. ¶ 9 This provision continues: “provided, however, LICENSEE may, at its option, pay the difference between its actual payments and [the minimum royalty payments] in which case this Agreement shall continue in full force and effect in accordance with its terms.” (Id. (emphasis added).) Thus, had Licensors sought to terminate the contract for Contraves’ failure to pay, Contraves then had the option to avoid termination by making the minimum payment. We see no other interpretation that makes sense of the “if-may-provided” structure of this provision. ¶ 10 Licensors’ argument that Contraves was required to make the minimum payments and only had the option to “revive” the agreement once Licensors had terminated it is nonsensical, as unless Contraves failed to make the minimum payment, Li-censors had no right to terminate: “If LICENSEE has not paid to LICENSORS ...” then “this Agreement may be terminated by” Licensors. (Id. (emphasis added).) Both Licensors and the trial court ignore the plain language of this provision. ¶ 11 Therefore, given the plain, unambiguous language of the contract, we conclude Contraves was not required to make the contested minimum yearly royalty payments. Accordingly, we reverse the grant of summary judgment in favor of Li-censors for $251,687.84 and remand this matter with instructions that the trial court enter judgment in favor of Contraves on this point. ¶ 12 In their cross-appeal, Li-censors argue that the trial court erred in denying their claim for counsel fees against Contraves. Licensors cite to article 7 of the license agreement which provides that Contraves must indemnify Licensors for, inter alia, counsel fees “arising from any obligation of LICENSEE” under the agreement. (Agreement, at 19-20; see also Brief for Appellants, at 17 n. 3, 20-21.) ¶ 13 Given Judge Friedman’s conclusion that Contraves had an obligation to pay Licensors approximately $251,000 in minimum royalty payments under article 4.3.1 of the agreement, this case went to trial before Judge Baer to determine, inter alia, whether article 7 supported an award of counsel fees “arising from [the] obligation” of Contraves to make the minimum royalty payments. Judge Baer ultimately concluded that Licensors were not entitled to recover these counsel fees. Regardless, we need not address the propriety of this conclusion. As we have determined that the trial court erroneously held that Con-traves was obligated to pay any minimum royalty payments, Contraves had no obligation “arising from” the agreement; thus under Licensors’ argument, article 7 is not triggered. Accordingly, on this alternate ground, we affirm the trial court’s denial of counsel fees. See Shearer v. Naftzinger, 560 Pa. 634, 638, 747 A.2d 859, 861 (2000) (noting that a lower court may be affirmed on any basis). ¶ 14 Judgment reversed in part and affirmed in part. Case remanded with instructions. Jurisdiction relinquished. . We note that in their briefs to this Court, the parties indicate that they are appealing various pre-judgment orders. An appeal to this Court properly lies from a judgment entered subsequent to the trial court’s disposition of any summary judgment motions or post-trial motions. See Johnston the Florist, Inc. v. TEDCO Constr. Corp., 441 Pa.Super. 281, 287, 657 A.2d 511, 514 (1995). Therefore, these appeals properly lie from the judgment entered April 30, 2001. . It is undisputed that Licensors never sought to terminate the agreement. . The trial court’s interpretation is as follows: Essentially, [Contraves] claimed that under the contract at issue, which was a licensing agreement, [Contraves] had the option to pay or not pay the annual licensing fee. The Court denied [Contraves’] Motion for Summary Judgment and ruled that the "option” meant by the clear and unambiguous language of the relevant clause was an option to pay either a certain dollar amount or that amount less a credit for any "per unit royalty fees" that [Contraves] had already paid [Licensor] for each of the first three years of the twenty-year licensing agreement. (Trial Court Opinion, 5/31/01, at 2 n. 1.) We agree with Contraves that this interpretation of the contract is unreasonable: it apparently implies that, for example, in year two when Contraves made a royalty payment of approximately $38,000, that Contraves then had the "option” of paying $100,000 (the minimum payment), or $62,000 (the difference between the minimum payment and the actual royalty payments). We cannot accept this unreasonable interpretation.

SMITH, J., This opinion is written in response to the prehminary objections filed by defendants to the complaint commencing-the instant action. The defendants contend that the plaintiff’s complaint should be stricken for use of the term “John Doe” in the caption, rather than naming a specific person or entity. This court disagrees. The defendants also contend that plaintiff’s complaint should be stricken for failure to show a waiver of sovereign immunity in regard to the alleged activities of defendants. This court agrees with this second argument. FACTS AND PROCEDURAL HISTORY The plaintiff initiated the present action by filing a writ of summons. The defendants filed a praecipe seeking a rule directing plaintiff to file a complaint. See praecipe filed on September 23, 1991, rule issued on September 25,1991. On October 14,1991, plaintiff filed a complaint in the instant action, alleging that three employees of the Pennsylvania Board of Probation and Parole “intentionally and/or recklessly” beat or otherwise physically abused him. See paragraph 7 of plaintiff’s complaint. The defendants filed preliminary objections to plaintiff’s complaint, raising two issues. See preliminary objections filed October 28, 1991. This court will address these issues seriatim. DISCUSSION The first preliminary objection asserted by defendants is in the form of a motion to strike plaintiff’s complaint for failure to conform to Pa.R.C.P. 1018. In pertinent part, Rule 1018 states: “The caption of a complaint shall set forth the form of the action and the names of all the parties....” The defendants contend that plaintiff’s use of the phrase “John Doe, an unidentified employee of the Board of Probation and Parole,” is not a “sufficient designation” of a party defendant within the contemplation of Pa.R.C.P. 1018. However, its reading of the sparse precedent on this issue leads this court to conclude that the evil to be prevented by this rule, as expressed by our esteemed colleague Thomas Raup, P.J., is the emersion of an individual in a lawsuit without “notice of the existence of the claim,” nor an “opportunity to muster and preserve evidence....” Rightmire v. Minier, 12 D.&C.3d 234, 237 (1979); see also Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971); Boatman v. Thomas, 320 F. Supp. 1079 (M.D. Pa. 1971). Viewing the facts of the instant complaint in the light most favorable to the plaintiff, this court determines that the unnamed defendant was placed on notice of the existence of a claim and had been afforded an opportunity to muster and preserve evidence at the time of the battery perpetrated on the plaintiff. In addition, this court finds that the description of the unnamed defendant as an employee of the Board of Probation and Parole, combined with his alleged action in concert with two named individuals, renders his identity easily ascertainable by, if not already known to, defendants; therefore, the defendants will not be heard to complain of an alleged inability to formulate a defense due to plaintiff’s failure to specifically identify all defendants. The second preliminary objection asserted by the defendants is in the form of a demurrer to plaintiff’s complaint. The defendants contend that the plaintiff’s averment of intentional or reckless torts is not within the express waivers of sovereign immunity from civil actions. See 42 Pa.C.S. §8522. Thus, the defendants aver that since they are employees and an entity within the shelter of the doctrine of sovereign immunity, see generally, Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990); Jimenez v. Lakeland’s Racing Assoc. Inc., 567 F. Supp. 1298 (D.C. 1983), plaintiff would be unable to recover, even if all of the allegations contained in the complaint were true. Yakowicz v. McDermott, 120 Pa. Commw. 479, 548 A.2d 1330 (1988), alloc. denied, 523 Pa. 644, 565 A.2d 1168 (1989) (civil lawsuits in regard to intentional torts will not lie against the government). In response to this position, plaintiff’s counsel presented a proposed amendment to the complaint at the oral argument scheduled for defendants’ preliminary objections, January 7, 1992. After review, it appears to this court that the sole material difference between the original complaint and the proposed amendment lies in the addition of a third alternative averment alleging that the actions of the individual defendants were either intentionally reckless, or negligent. Although constituting a valiant attempt to save a swiftly sinking complaint, this court finds that the mere inclusion of a negligence theory is not sufficient to alter the intentional nature of plaintiff’s cause of action. See Romeo and Juliet, William Shakespeare, Act II, scene ii (Washington Square Press: New York, 1958) (“What’s in a name? That which we call a rose/by any other name would smell as sweet.”) The facts alleged in the complaint simply would not support a theory of negligence, and they would also preclude the pleading of any additional facts that would support a negligence claim. This court will not address defendants’ several objections to the proffered amendment, since it finds this document to be ineffective in its attempt to evade the doctrine of sovereign immunity. CONCLUSION For the aforementioned reasons, this court issues the following ORDER And now, April 2, 1992, it is hereby ordered that defendants’ preliminary objections, filed on October 28, 1991, are denied in part and granted in part, as follows: (1) Defendants’ prehminary objection in the form of a motion to strike plaintiff’s complaint for lack of conformity to law, to wit: Pa.R.C.R 1018, is denied, and (2) Defendants’ preliminary objection in the nature of a demurrer to plaintiff’s complaint is granted, and plaintiff’s complaint is dismissed. The bard of English literature eloquently demonstrates the logical impotence of plaintiff’s attempt to evade the doctrine of sovereign immunity by using the word “negligent” to describe an assault, which is inherently intentional.

ORDER PER CURIAM. AND NOW, this 11th day of December, 1996, the Petition for Allowance of Appeal is hereby GRANTED but LIMITED to the following issue: Did the Superior Court err in holding that the totality of the circumstances regarding petitioner’s representation at trial obviated the waiver of counsel requirement of Pa. Rule of Crim. Pro. 818(d)?

ORDER PER CURIAM. AND NOW, this 13th day of June, 2002, probable jurisdiction is noted and the order appealed is affirmed.

MOTT, HISTORY On February 28, 1991, the plaintiffs filed a complaint against the defendants alleging that Catherine Cruz suffered a median nerve injury as a result of a negligently performed cardiac catherization or a negligently performed brachial arteiy bypass. At one point during her treatment for pain and numbness in her right arm and back, Catherine Cruz sought a second opinion from John Presper, M.D. Later, the plaintiffs’ attorney, in anticipation of this litigation, sought and received an expert opinion from Dr. Presper in connection with the conditions complained of in this suit. Dr. Presper’s report did not support the plaintiffs’ claims, and, consequently, the plaintiffs do not intend to call Dr. Presper as an expert witness at trial. The defendants have obtained a copy of the expert report prepared by Dr. Presper. The defendants claim that the plaintiffs voluntarily provided the report in response to a discovery request, while the plaintiffs state that the defendants obtained the report by subpoenaing Geisinger Medical Group records. The defendants now intend to call Dr. Presper as an expert witness at trial. The plaintiffs have filed a motion for a “protective order” seeking to prevent the defendants’ from utilizing Dr. Presper’s expert opinion and report. This motion is now before this court for disposition. DISCUSSION The plaintiffs have labeled their motion as one for a protective order. It is apparent upon a reading of Pa.R.C.P. 4012, however, that a protective order is intended to be a mechanism through which a court may limit or control the discovery of information which might subject a party to “unreasonable annoyance, embarrassment, oppression, burden or expense.” Although a motion for a protective order in this case may have been appropriate prior to discovery of Dr. Presper’s expert report, the defendants have already discovered the report. The relief sought by the plaintiffs is more consistent with a motion in limine, which is a device “whereby exclusion is sought of anticipated prejudicial evidence, keeping extraneous issues out of the underlying proceeding, precluding reference to prejudicial matters, or preventing encumbering the record with immaterial matters.” Commonwealth v. Pikur Enterprises Inc., 142 Pa. Commw. 114, 127, 596 A.2d 1253, 1259 (1991). The plaintiffs’ motion requests that this court “prevent the defendants’ utilization of the expert report of John Presper, M.D.” We interpret the relief sought to be consistent with a motion in limine, and we will treat the plaintiffs’ motion as such. The issue before this court is whether it is proper for the defendants to use Dr. Presper’s expert opinion or report at trial. Several factors complicate this question. First, Dr. Presper was formerly retained by the plaintiffs as an expert witness, but the plaintiffs do not intend to call him to testify as an expert. Second, Dr. Presper was consulted by Catherine Cruz for a second opinion prior to his retention by the plaintiffs as an expert. And finally, Dr. Presper is apparently willing to testify on behalf of the defendants. This combination of these three factors gives rise to an issue that has not yet been addressed by a Pennsylvania appellate court. In Columbia Gas Transmission Corp. v. Piper, 150 Pa. Commw. 404, 615 A.2d 979 (1992), the Commonwealth Court addressed a tangential issue: whether a trial court should compel the testimony of an individual who was retained as an expert by an opposing party but who is not expected to testify on behalf of that party. Id. The court affirmed the trial court’s refusal to compel testimony by the expert. Id. at 418, 615 A.2d at 987. The Commonwealth Court also affirmed the exclusion of an expert report in Westinghouse Electric Corp. v. Board of Assessment, 138 Pa. Commw. 30, 587 A.2d 820 (1991). In that case, Westinghouse attempted to introduce a report prepared by an expert who had been retained by the board, though the expert did not testify for the board. Id. Instrumental in both the Columbia Gas and Westinghouse decisions was the rationale supporting Pa.R.C.P. 4003.5(a)(3). That rule provides: “A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or prosecution for trial and who is not expected to be called as a witness at trial ... except on order of court ... upon a showing of exceptional circumstances under which it is impracticable for the party seeking dis coveiy to obtain facts or opinions on the same subject by any other means, subject to such restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate.” Id. (emphasis added) The Columbia Gas court stated that an order directing an expert to testify on behalf of one party about the contents of an expert report rendered for that party’s adversary “definitely would violate the spirit and purpose of Rule 40035(a)(3).” Columbia Gas at 412, 615 A.2d at 984. “The purpose of Rule 4003.5(a)(3) is to encourage parties to consult freely with experts by minimizing the likelihood that the information provided to an expert and the opinions that the expert forms may be used against any party who obtained or specially employed this expert. ” Goldblum v. Insurance Co. of North America, 11 D.&C.3d 354, 356 (1979). See Claster v. Citizens General Hospital, 14 D.&C.3d 243, 251 (1980). We believe that the purpose and spirit of Pa.R.C.P. 4003.4(a)(3) would also be violated if the defendants were permitted to call Dr. Presper as an expert witness or introduce his expert report into evidence. The Rule reflects a choice to encourage the use of expert witnesses. Such experts are indispensable in the context of modem litigation where the technology and specialized knowledge which is often the basis of a lawsuit is well beyond the ken of the average juror. For an attorney to zealously represent a client, he or she must frequently seek expert support for the client’s case. The Rule implicitly recognizes that the fear of discovery of an unfavorable opinion rendered by an expert may deter zealous and thorough preparation by counsel. The express language of Pa.R.C.P. 4003.5(a)(3) alleviates that fear. Notwithstanding the limited express protection of the Rule, we believe that when a party has somehow discovered an expert opinion rendered for his adversary that is un favorable to his adversary, the spirit and purpose of the Rule should prevent him from using it at trial. The defendants claim that the plaintiffs waived any arguments based on Pa.R.C.P. 4003.5(a)(3) when they turned Dr. Presper’s report over in response to a discovery request. We disagree. First, we cannot be sure on the record now existing just how the defendants obtained Dr. Presper’s report. Second, we do not believe it matters how the defendants obtained the report. No matter how the opinion was obtained, the purpose of 4003.5(a)(3) would be contravened if the defendants were allowed to utilize it at trial. Moreover, it is noteworthy that the defendants ground their waiver argument in the context of confidentiality. Pa.R.C.P. 4003.5(a)(3) closely parallels F.R.C.P. 26(b)(4)(B). The notes following the Federal Rule expressly state that it is not based on a status privilege (akin to attorney-client privilege or physician-patient privilege), or on the work-product doctrine. F.R.C.P. 26 advisory committee’s notes (1970). Such bases would be consistent with the concept of a waiver of confidentiality. But the Federal Rule is based instead on the doctrine of “unfairness.” Id. “[Discovery would result in unfairness to the party from which discovery is sought, in that it is unfair for that person to pay the cost of obtaining expert knowledge and opinions and require him to disclose them to his opponent...” U.S. v. 23.76 Acres of Land, 32 F.R.D. 593, 596 (D.Md. 1963) (cited in F.R.C.P. 26 advisory committee’s notes). This court does not consider this doctrine of “unfairness” to be consistent with the concept of waiver based on confidentiality as it applies to status-based privileges and work-product doctrine. Any unfairness that would result from disclosure of an unfavorable expert opinion could only be exacerbated by the opinion’s introduction into evidence at trial. The defendants also contend that the fact that Catherine Cruz consulted with Dr. Presper for a second opinion prior to his retention as an expert for the plaintiffs should exempt his expert opinion from exclusion. The defendants argue that a litigant should not be able to conceal information obtained by a treating physician by hiring that physician as an expert without any intention of using the physician as an expert witness at trial. This argument does not squarely address the issues raised by the plaintiffs’ motion, however. The plaintiffs seek an order prohibiting utilization of Dr. Presper’s expert report and opinion by the defendants. This request does not encompass information that Dr. Presper may have obtained as a physician consulted for a second opinion. Thus, none of the knowledge that Dr. Presper acquired in his role as one of Catherine Cruz’s physicians will be “concealed” or “hidden” as a result of this court excluding Dr. Presper’s expert opinion and report from evidence. CONCLUSION The plaintiffs retained Dr. Presper as an expert in anticipation of litigation and will not call him to testify at trial. Although the defendants somehow discovered his expert report prepared for the plaintiffs, the policy underlying Pa.R.C.P. 4003.5(a)(3) prohibits the defendants from using Dr. Presper’s expert opinion or report at trial. Accordingly, the court enters the following ORDER And now, April 22, 1993, in accord with the opinion filed this date, the plaintiff’s motion for a protective order, which is in the nature of a motion in limine, is granted. Therefore, all evidence pertaining to Dr. Presper’s expert opinion and report rendered on behalf of the plaintiffs in this matter is hereby excluded from evidence at trial.

KUHN, At issue is the applicability of section 1786(d) of the Vehicle Code, 75 Pa.C.S. § 1786(d). The following facts appear of record. Petitioner, Calvin Lee Bixler, is the registered owner of a 1987 Chevrolet pickup and a 1981 VW Jetta which were insured by the Brotherly Aid Liability Plan. On February 28, 1992, the insurer notified petitioner that the second payment on his premium was due on or before May 13, 1992. That notice stated “Grace periods cannot be granted for partial payments. If a payment is not received in the office by the due date, coverage for the vehicles listed will be cancelled.” Petitioner failed to make that payment and his insurance lapsed. Petitioner did obtain coverage for the vehicles on June 23, 1992. By notice dated August 7, 1992, the Department of Transportation notified petitioner that his registration would be suspended for three months effective September 14, 1992, for having a lapse of insurance coverage in excess of 21 days. Petitioner filed a timely appeal and hearing was held before the undersigned on October 21, 1992. I questioned DOT’S interpretation of section 1786(d) and gave counsel an opportunity to submit memorandum: “§ 1786(d) provides: “The Department of Transportation shall suspend the registration of a vehicle if it determines the required financial responsibility was not secured as required by this chapter and shall suspend the operating privilege of the owner or registrant for a period of three months if the department determines that the owner or registrant has operated or permitted the operation of the vehicle without the required financial responsibility.... Whenever the department revokes or suspends the registration of any vehicle under this chapter, the department shall not restore the registration until the vehicle owner furnishes proof of financial responsibility in a manner determined by the department and submits an application for registration to the department, accompanied by the fee for restoration of registration provided by section 1960. This subsection shall not apply in the following circumstances: “(1) The owner or registrant proves to the satisfaction of the department that the lapse in financial responsibility coverage was for a period of less than 21 days and that the owner or registrant did not operate or permit the operation of the vehicle during the period of lapse in financial responsibility.” I conclude, as I did at hearing, that the three-month suspension provided for in section 1786(d) applies only to operating privileges if the vehicle was operated during the period of lapse and not to the suspension of registration as DOT has imposed in this case. This same issue has recently come before several other courts of this Commonwealth who have reached the same conclusion. See Knopsnider v. Tobin, Fayette County Court of Common Pleas, no. 2594 of 1991 (February 13, 1992), PennDOT v. Sassaman, 42 Cumb. LJ. 179 (1992). I would adopt the reasoning in those opinions. For this reason the suspension as imposed must be reversed. Petitioner also claims that section 1786(d) is inapplicable because his lapse of coverage did not exceed 21 days. He contends that his policy allowed a 30- day grace period beyond the lapse date of May 13, 1992. Thus, his lapse was only 11 days (June 12-23, 1992). However, petitioner provided no evidence to corroborate this contention. His unsupported testimony is contradicted by the notice sent to him by the insurer on February 28, 1992, which states that no grace period would be in effect [even] if partial payment was not made by the due date. Therefore, I decline to hold that the exemption found in section 1786(b) is applicable. I make no ruling whether petitioner, who is now insured, must nevertheless submit a fee and file an application for restoration of registration privileges because, unlike Sassaman, supra, there was no stipulation in the instant record that petitioner did not operate the vehicles during the period of insurance lapse. ORDER OF COURT And now, December 16, 1992, the order of suspension of petitioner’s registration privileges for a period of three months by notice dated August 7, 1992, is reversed. DOT did not file a memorandum.

TURGEON,/., On June 10,1992, following a six-day jury trial in the above-captioned medical malpractice action, a 10-2 jury verdict was returned in favor of defendants Robert G. Little, M.D. and Community Medical Associates, P.C. and against defendant Polyclinic Medical Center in the amount of $100,000. On June 11, 1992, juror no. 2, who voted against the verdict, composed a letter to this court outlining her complaints with the jury’s deliberations and verdict. In her letter she stated: “As I understood your instructions to the jury, we were to use our experiences and common sense in our deliberations and decision — in my case this involved some research, copies of which I had in my hand but was not allowed to submit for consideration until late in the day when the verdict had already been reached.” Later in her letter the juror stated that “[M]y input was received but I still had no opportunity to have copies of my ‘research’ accepted for consideration.” The letter also contained complaints about her treatment, including what she perceived as misogyny and ageism by the other jurors. The plaintiff has filed post-verdict motions including motions for a new trial or for judgment non obstante veredicto based in part on the statements made by the juror in her letter regarding her possession of materials not properly admitted into evidence and her statements that she was prevented from participating in the jury process. The plaintiffs argue that this juror is competent to testify as to the existence of extraneous influences during jury deliberations which, plaintiffs assert, ultimately prejudiced the jury. The defendants argue that any issues raised in the juror’s letter do not require any further development of the evidentiary record noting in particular that there is a strong condemnation in Pennsylvania regarding the interviewing of discharged jurors as to what transpired in the jury room. The law in Pennsylvania is clear that a juror may not give post-trial evidence which impeaches the jury’s verdict; what occurs among jurors in a jury room is inadmissible for such purposes. Pittsburgh National Bank v. The Mutual Life Insurance Co. of New York, 493 Pa. 96, 100-01, 425 A.2d 383, 385-86 (1982). This policy was enunciated by our state Supreme Court as follows: “Pennsylvania follows the majority rule in providing an evidentiary prohibition against the admissibility of testimony of a discharged juror as to what occurred among the jurors in the jury room. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978); Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1983); Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965); Friedman v. Ralph Bros. Inc., 314 Pa. 247, 171 A. 900 (1934); Commonwealth v. Filer, 249 Pa. 171, 94 A. 822 (1915); Smalley v. Morris, 157 Pa. 349, 27 A. 734 (1893); Cluggage v. Swan, 4 Binney 150 (1811). Sound policy reasons, set forth explicitly in Friedman v. Ralph Bros. Inc., supra, for this rule to keep jury deliberations inviolate need not be reiterated. But it is important for clarity to emphasize that the prohibition is directed to the subject matter of the testimony in question and its possible effect upon the verdict, rather than to the fact that the person sought to testify possesses the status of a discharged juror. “The more recent case of Commonwealth v. Zlatovich, 440 Pa. 388, 394-97, 269 A.2d 469, 472-73 (1970) discussed the Pennsylvania position regarding the testimony of discharged jurors and summarized: “‘[Wjhile we permit discharged jurors to testify as to the existence of outside influences during their deliberation, nevertheless, we prohibit them from testifying as to the effect which these extra-evidentiary influences had upon the jurors in reaching a decision....’ (emphasis in original) 440 Pa. at 369, 269 A.2d at 473.” Pittsburgh National Bank, supra. It is, therefore, clear that juror no. 2’s complaint about how she was treated by other jurors is completely prohibited from consideration by this court; however, extraneous evidence not adduced at trial which is considered by a jury during deliberations may be the subject of post-trial proceedings for the purpose of determining the existence of such outside influences. Juror no. 2 has stated that she improperly presented outside influences for the jury’s consideration. We believe, therefore, the juror must be questioned under oath what “research” she in fact presented to the jury. Furthermore, although she stated the jury did not receive actual copies of her research until after the verdict was rendered, she nevertheless has intimated that she communicated her findings to the jury and this issue must be explored under oath. The defendants assert that inappropriate behavior by a juror cannot be the subject of post-verdict questioning unless the evidence shows prejudicial effect on the jury from the outside influences. Defendants claim that, in this case, not only did the other jurors refuse to accept juror no. 2’s outside “research” but the fact that she voted against the verdict also reveals no prejudicial effect on the ultimate verdict. The defendants argue that this situation is akin to that presented in Pittsburgh National Bank. There, our state Supreme Court refused to permit the appellants’ post-trial questioning of a juror who, during jury deliberations, had visited a car dealership and examined an automobile similar to the vehicle driven by the decedent at the time of a fatal crash at issue and who had presented his findings to the jury. The court concluded that even though the juror had acted improperly, he would not be subject to post-trial questioning. The court relied on Friedman v. Ralph Bros. Inc., supra, where a jury foreman made an unauthorized visit to the scene of an accident, took some measurements and informed the jury of his findings even though that information had already been presented as evidence. Pittsburgh National Bank, supra. The court in Friedman held testimony regarding the juror’s extra-judicial foray was inadmissible. Id. We conclude that this situation is dissimilar from that presented in Pittsburgh National Bank and Friedman v. Ralph Bros. Inc. in that we have not yet been apprised of the nature of the juror’s “research.” Until such time as this court knows the existence and nature of the juror’s “research” and whether or not it was presented to the jury during deliberations, we cannot determine whether there was a prejudicial effect upon the jury. Therefore, a final decision on plaintiffs’ post-verdict motions cannot be made at this time. Accordingly, we enter the following ORDER And now, December 10, 1992, upon agreement of a convenient date, counsel shall have the opportunity to obtain juror no. 2’s testimony in the presence of this court. The interrogation of said juror shall be limited to: (1) The nature of the “research” she compiled; (2) Whether any of this “research” was presented to the jury; (3) The nature of the “input” which she communicated to her fellow jurors; and (4) At what point during the jury’s deliberations was juror no. 2’s “research” and/or “input” received. The questions posed to juror no. 2 shall not include any reference to what occurred among the jurors in the jury room.

SUBERS, J., This case is the respondent’s appeal from this court’s order dated August 7,1992, awarding attorney’s fees to petitioner, Susan Mabry. Ms. Mabry was involved in an automobile accident on December 22, 1988, and retained James P. Lynch, Esq., to institute a personal injury action on her behalf. Mr. Lynch filed a civil action against defendants, Windsor Service Inc. and Edwin Blatt, on June 21,1989. In March 1991, petitioner discharged Mr. Lynch as her attorney and retained the respondent, Carleton G. Goodnow, Esq., to represent her. Susan Mabry entered into a contingent fee agreement with Mr. Goodnow, the contents of which are unknown because petitioner did not retain a copy of that agreement and Mr. Goodnow failed to produce this fee agreement. On March 21,1991, Mr. Goodnow entered his appearance on behalf of Susan Mabry and subsequently answered a petition for bifurcation, which had been previously filed by the defendants. The case failed to be praeciped for trial despite being 3 1/2 years old with completed discovery. On April 28,1992, Susan Mabry discharged Mr. Good-now in writing and advised him to forward her file to her new attorney, Joan M. Righter, Esq. Ms. Righter wrote Mr. Goodnow requesting Susan Mabry’s file to be transferred to her along with a statement of account. However, instead of transferring the file, Mr. Goodnow imposed two conditions which had to be met in order for the transfer to occur: (1) Ms. Righter would have to meet Mr. Goodnow at the scene of the accident; and (2) Mr. Goodnow would receive 50 percent of the contingency fee collected. On May 5, 1992, Mr. Goodnow attended a judicate settlement conference on behalf of Susan Mabry despite knowledge that Susan Mabry had discharged him on April 28,1992, and had retained Joan Righter, Esq. As a result of the settlement conference, defendant’s adjuster, Susan Shemanski, forwarded a draft of $40,000 to Mr. Goodnow, who relayed this offer to Susan Mabry but failed to inform her that he possessed a draft from defendant’s insurer. Although Susan Mabry rejected this offer, Mr. Goodnow faffed to inform Susan Shemanski of the rejection and faffed to return the $40,000 draft. On July 7,1992, Joan Righter filed a petition for return of file and substitution of counsel and on July 14, 1992, Ms. Righter and Mr. Goodnow attended an informal conference on the petition with this court. This court decided the only open issue remaining for disposition was respondent’s counsel fee and directed both parties to submit briefs on that issue on August 6, 1992. However, Mr. Goodnow failed to respond to this petition or appear at the scheduled argument before this court on August 6, 1992, when he had an opportunity to be heard. Accordingly, the rule returnable for August 6,1992, became absolute. The order appealed from was entered on August 7, 1992. (This order is attached as Exhibit A.) On December 7, 1992, respondent’s petition for reconsideration was denied. Respondent now appeals this court’s order of August 7, 1992. ISSUES (1) Whether respondent’s conduct was wrongful and vexatious? (2) Whether the attorney’s fees awarded to petitioner were unreasonable or an abuse of this court’s discretion? (3) Whether respondent has standing to inquire into circumstances surrounding petitioner’s contingent fee agreement with her attorney? DISCUSSION Respondent’s first argument is that his conduct in the case at hand was not wrongful or vexatious. We disagree. The court may require a party to pay another participant’s counsel fees if the party’s conduct in commencing the action was “arbitrary, vexatious or in bad faith.” 42 Pa.C.S. §2503. Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983). In the instant matter, respondent, Carleton G. Goodnow, Esq., attempted to coerce a disputed fee from a former client, Susan Mabry, by wrongfully withholding her file from her new attorney, Ms. Righter. As stated previously in the facts presented, Mr. Good-now was informed, in writing, by his client, Susan Mabry, that she was terminating his services as her attorney on April 28, 1992, and that he should forward her file to her new attorney, Joan Righter, Esq. In addition, Ms. Righter requested that Mr. Goodnow forward Susan Mabry’s file to her attention. However, Mr. Goodnow decided to withhold petitioner’s file until Ms. Righter met with Mr. Goodnow at the scene of the accident and agreed that Mr. Goodnow would receive 50 percent of the contingency fee collected. An attorney must withdraw from representation of the client once he is discharged. Rule 1.16(a)(3), Pa. Rules of Professional Conduct. Rule 1.16 sets forth a lawyer’s obligations upon termination: “(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.” An attorney must surrender the papers and property of a client to that client or new counsel so as not to prejudice a client’s interests. Here, Mr. Goodnow simply prevented new counsel from continuing with this case and severely prejudiced Susan Mabry’s interest by withholding her file with no justifiable reason. “When an attorney attempts to coerce a fee which has not been realized from a client by preventing the client from proceeding in an action with an attorney of his choice, the situation requires the strict scrutiny of the court.” Village Gentry Inc. v. The Fox Co., 6 Phila. Rep. 446, 452 (1981), rev’d on other grounds 316 Pa. Super. 404, 463 A.2d 427 (1983). As such, Mr. Goodnow’s wrongful conduct by withholding the file is unconscionable and cannot be tolerated because his conduct conflicts with the strong directives set forth in the Disciplinary Rules against prejudicing the rights of a client. As stated previously in the facts presented, Mr. Good-now also attended a settlement conference after he had been discharged as Susan Mabry’s attorney. Mr. Good-now held himself out to be Ms. Mabry’s attorney and accepted a settlement draft in the amount of $40,000 from defendant’s insurer. Mr. Goodnow informed Ms. Mabry of this offer and although Ms. Mabry rejected the offer, Mr. Goodnow failed to inform her that he had a draft from defendant’s insurer. Furthermore, Mr. Goodnow never communicated Ms. Mabry’s rejection to defendant’s insurer and failed to return the $40,000 draft. This conduct by Mr. Goodnow, as well as his refusal to return petitioner’s file, demonstrates his ignorance of the Pa. Rules of Professional Conduct and the rights of his former client. Additionally, Mr. Goodnow failed to provide petitioner with a statement as to services performed for Ms. Mabry and, therefore, petitioner can only look to precedent which holds that an attorney may proceed only on a quantum meruit basis. It is well established in Pennsylvania that an attorney who is discharged prior to the successful determination of a case is not entitled to recover a portion of the eventual recovery but may only recover in quantum meruit for the value of services rendered. Sundheim v. Beaver County Bldg. & Loan Ass’n, 140 Pa. Super. 529, 14 A.2d 349 (1940); Lampl v. Latkanich, 210 Pa. Super. 83, 231 A.2d 890 (1967). However, by failing to provide petitioner with a statement of services performed and continuing to demand a portion of the contingency fee before returning the file, Mr. Goodnow’s conduct borders on extortion. The Superior Court in Lampl stated that an attorney is entitled to no compensation whatsoever if he is discharged because of his own wrongful acts. An attorney is bound by strict requirements of good faith and fair dealing with his client. Lynch v. Hook, 298 Pa. Super. 27, 444 A.2d 157 (1982). Here, Mr. Goodnow’s wrongful and vexatious conduct set forth in the above discussion demonstrates his complete disregard for the interests and rights of his former client, as well as the Rules of Professional Conduct, and prevents him from collecting counsel fees from either Ms. Mabry or her counsel. The respondent argues next that the attorney’s fees awarded to petitioner were unreasonable and an abuse of this court’s discretion. 42 Pa.C.S. §2503 provides for the rights of participants to receive counsel fees. It states the following: “The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter: “(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.... “(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter of otherwise was arbitrary, vexatious or in bad faith.” Generally, if the record supports a court’s finding of fact that the conduct of one party was in bad faith, an award of counsel fees will not be disturbed in the absence of an abuse of discretion. See Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983). Because Mr. Goodnow’s conduct was wrongful and vexatious, it was within this court’s discretion according to 42 Pa.C.S. §2503(7), (9) to require Mr. Goodnow to pay counsel fees of $5014 and expenses of $104.92 or a total of $5,118.92, all as documented by counsel’s itemized statement of account. In Rule 1.5 of the Pa. Rules of Professional Conduct, the Supreme Court sets forth several factors to be considered in determining whether a fee is proper. Those factors include whether the fee is fixed or contingent, the time and labor required, the amount involved and results obtained, the nature and length of the professional relationship, and the experience, reputation, and ability of the lawyer performing the services. An attorney must provide, in writing, an explanation of the basis or rate of the fee to be charged. In the case at hand, Ms. Righter provided this court with a statement of account which set forth, in detail, the counsel fees, costs and expenses which she incurred in pursuing the petition directed to Carleton G. Goodnow for return of file and substitution of counsel. Based on Mr. Goodnow’s wrongful conduct and vexatious behavior, as well as petitioner’s brief and statement of account, this court, without the opportunity to review respondent’s brief or hear his argument, awarded as a reasonable amount, attorney’s fees of $5,014 and expenses of $104.92 or a total of $5,118.92, to petitioner for having to pursue the petition and order. Lastly, respondent raises arguments regarding Susan Mabry’s contingent fee agreement with her attorney, Joan Righter. However, Mr. Goodnow lacks standing in the case at hand to inquire into the circumstances surrounding the fee arrangement between Ms. Mabry and Ms. Righter. The concept of “standing,” in its accurate legal sense, is concerned only with the question of who is entitled to make a legal challenge to the matter involved. Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988); Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979); Wm. Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 173 A.2d 97 (1961); Department of Labor and Industry v. Unemployment Compensation Review Board, 362 Pa. 342, 67 A.2d 114 (1949). As a general matter, the core of the concept of standing is that a person who is not adversely affected in any way by the matter he seeks to challenge is not aggrieved thereby and has no right to obtain a judicial resolution of his challenge. E.g., Independent State Store Union v. Pennsylvania Liquor Control Board, 495 Pa. 145, 432 A.2d 1375 (1981); see Pierro v. Pierro, 434 Pa. 131, 252 A.2d 652 (1969); Louden Hill Farm Inc. v. Milk Control Commission, 420 Pa. 548, 217 A.2d 735 (1966); Department of Labor and Industry, supra. In the instant matter, Mr. Goodnow is not adversely affected in any way by the contingent fee agreement between Susan Mabry and her attorney. Accordingly, Mr. Goodnow is not aggrieved and has no standing to argue issues regarding the aforementioned fee agreement. Rule 1.5 of the Pa. Rules of Professional Conduct proscribes that “a lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee.” This court has no reason to believe that petitioner’s attorney will fail to act in good faith and in her client’s best interests regarding counsel fees and all other matters. As such, we see no reason to address this issue any further. CONCLUSION Based on the foregoing analysis, this court’s order awarding attorney’s fees to petitioner was correct and should be affirmed. Exhibit A ORDER And now, August 7, 1992, upon consideration of the petition of Susan R. Mabry, and petitioner’s memorandum of law sur counsel fees, and respondent’s failure to respond thereto, it is hereby ordered and decreed as follows: (1) The prothonotary is directed to withdraw the appearance of Carleton G. Goodnow, Esq., for the plaintiff and enter the appearance of Joan M. Righter for plaintiff; (2) Carleton G. Goodnow, Esq., is ordered to transfer at his expense petitioner’s complete file to Joan M. Righter, Esq., no later than Friday, August 14, 1992; (3) Carleton G. Goodnow, Esq., is ordered to disclose in complete detail to Joan M. Righter, Esq., the substance of any communications with the defendant’s attorney and/or defendant’s insurer no later than August 14,1992; (4) Based upon his wrongful conduct and vexatious behavior in forcing petitioner to pursue this petition and order, Carleton G. Goodnow, Esq., is ordered to pay to petitioner, through Joan M. Righter, Esq., attorney’s fees of $5,014 and expenses of $104.92 or total of $5,118.92 in pursuing this petition and order. Mr. Goodnow failed to file a response to the petition for return of file and substitution of counsel or submit a brief on the issue of counsel fees. Mr. Goodnow also failed to appear at a scheduled argument before this court on August 6,1992, and the rule returnable became absolute.

ORDER PER CURIAM: AND NOW, this 18th day of November, 1996, there having been filed with this Court by Joseph James Scafidi his verified Statement of Resignation dated October 24, 1996, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of Joseph James Scafidi be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

POPOVICH, J. ¶ 1 This appeal stems from the order of the Orphans’ Court affirming the Register of Wills’ granting a letter of administration d.b.n.c.t.a. to Janet Michael and denying a letter of administration d.b.n.c.t.a. to George P. Fritz, Jr. Upon review, we vacate the order and remand for proceedings consistent with this memorandum. ¶ 2 The facts and procedural history are as follows: George Fritz died on February 27, 1996. The Register of Wills admitted his Last Will and Testament to probate in February, 1996. In the will, Joann Nell and Gerald Fritz were nominated to serve as Executors of the Decedent’s estate. The nominated Executors were qualified. Subsequently, they were appointed and served until their deaths, Joann Nell’s on April 12, 2000, and Gerald Fritz’s June 22, 2000. The Decedent’s Last Will and Testament nominated Janet Michael and George P. Fritz, Jr., as succeeding execu tors. On June 23, 2000, Janet Michael petitioned the Register of Wills to grant letters of administration d.b.n.c.t.a. to her. Within the petition, Janet Michael stated that George P. Fritz, Jr., was also named as an succeeding executor but should be disqualified from serving as such because he had filed claims adverse to the estate. ¶ 8 The Register of Wills granted letters of administration d.b.n.c.t.a. to Janet Michael on July 13, 2000. On August 2, 2000, George P. Fritz, Jr., petitioned the Register of Wills for a grant of letters testamentary. The Register of Wills denied said petition. Also on August 2, 2000, George P. Fritz, Jr., appealed the grant of letters of administration d.b.n.c.t.a. to Janet Michael and the denial of letters testamentary for George P. Fritz, Jr. ¶4 The co-executrices of the Estate of Mildred I. Fritz, Deceased, petitioned to intervene in the appeal. A hearing was scheduled before the Orphans’ Court on February 22, 2001, on George P. Fritz, Jr.’s, matters on appeal, namely, the denial of his letters of testamentary, the grant of letters of administration d.b.n.c.t.a. to Janet Michael and his petition for writ of mandamus. The Orphans’ Court also was scheduled to hear the Estate of Mildred I. Fritz’s petition to intervene. Evidentially, this hearing was not held on this date and was rescheduled for April 26, 2001, on the matters of the appeal of the denial of letters of testamentary to George P. Fritz, Jr., and appeal of grant of letters of administration d.b.n.c.t.a. to Janet Michael. However, the hearing was discontinued on April 25, 2001, and eventually, the matters were decided upon the briefs that had been filed. The co-executrices of Mildred I. Fritz’s estate additionally filed a Judicial Notice of Adjudicative Facts for the Orphans’ Court’s consideration. ¶ 5 On June 4, 2001, the Orphans’ Court affirmed the grant of letters of administration d.b.n.c.t.a. to Janet Michael and the denial of letters of testamentary to George P. Fritz, Jr. This timely appeal followed. ¶ 6 On appeal, George P. Fritz, Jr. presents the following issues for our review: 1. Did the lower court err as a matter of law in affirming the Register of Wills granting of Letters of Administration d.b.n.c.t.a. to Janet Michael? 2. Did the lower court err as a matter ■ of law in affirming the Register of Wills denying Letters Testamentary to George P. Fritz? Appellant’s brief at 3. ¶ 7 The Register of Wills has the statutory duty to issue letters testamentary. See 20 Pa.C.S.A. § 3155(a). On appeal from the Register’s action, where additional evidence is not received, judicial review is confined to a determination of whether the Register abused his or her discretion in the issuance of letters testamentary. Cf., In re Estate of Dodge, 361 Pa.Super. 188, 522 A.2d 77, 78 (1987) (holding that judicial review is confined to a determination of whether Register abused discretion in issuance of letters of administration where no additional evidence was received). ¶ 8 In the present case, we agree with the Orphans’ Court that the Register abused her discretion in denying the letters testamentary to George P. Fritz, Jr. The Orphans’ Court concluded that the Register’s denial was harmless error in. that George P. Fritz, Jr., would have been removed for a conflict of interest. However, since the Orphans’ Court did not conduct a hearing and receive evidence, our review is confined to a determination of whether the Register abused her discretion. ¶ 9 Section 3155(a), 20 Pa.C.S.A. states, “Letters testamentary shall be granted by the register to the executor designated in the will, whether or not he has declined a trust under the will.” The Decedent’s will named Janet Michael and George P. Fiitz, Jr., as succeeding executors in the event of Joann Nell and Gerald Fritz’s unavailability. After Joann Nell and Gerald Fritz died, the Register should have granted letters testamentary to Janet Michael and George P. Fritz, Jr., as the succeeding executors. This act is not discretionary. However, the Register failed to do this. Instead, she found that the deaths of Joann Nell and Gerald Fritz created a vacancy in the office of personal representation. The Register then granted Janet Michael letters of administration d.b.n.c.t.a. pursuant to § 3159, 20 Pa.C.S.A. The Register’s action amounted to an error of law, ¶ 10 The Decedent’s will provided for succeeding executors. Since there were succeeding executors named in the will, there was not a vacancy in the office of personal representation upon the deaths of Joann Nell and Gerald Fritz. The Register should have granted letters testamentary to Janet Michael pursuant to § 3155(a) and not letters of administration d.b.n.c.t.a. pursuant to § 3159. We find that the Register committed an error of law. Accordingly, we vacate the Orphans’ Court order affirming the granting of letters of administration d.b.n.c.t.a. to Janet Michael and remand for the Register’s granting of letters testamentary as per § 3155(a). ¶ 11 The Register then denied George P. Fritz, Jr., letters testamentary finding that he was not qualified pursuant to § 3156(3), 20 Pa.C.S.A. While it is correct that a person shall not be qualified as a personal representative who is found by the register to be unfit to be entrusted with the administration of the estate, this only applies to a person other than an executor designated by name or description in the will. See 20 Pa.C.S.A. § 3156(3). As we stated previously, George P. Fritz, Jr., was designated as a succeeding executor in the Decedent’s will. Accordingly, the Register committed an error of law when she failed to grant letters testamentary as required by § 3155(a). ¶ 12 Since the Orphans’ Court did not conduct a hearing and receive evidence, the record before us is not complete to determine if the Register’s decision was harmless error. For this reason, we must vacate the Orphans’ Court order affirming the denial of letters testamentary to George P. Fritz, Jr., and remand for the Register’s granting of letters testamentary to George P. Fritz, Jr., as per § 3155(a). A petition then may be filed to revoke the letters testamentary as to George P. Fritz, Jr. Or, an appeal from the granting of the letters testamentary to George P. Fritz, Jr. may be taken, and the Orphans’ Court shall conduct a hearing and receive evidence to determine if he has an interest antagonistic to the estate. ¶ 18 Order vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished. . Mildred I. Fritz was the wife of Decedent. . The Orphans’ Court found the Register’s error to be harmless because George P. Fritz, Jr., had claims antagonistic to the estate that would have disqualified him as a personal representative of the Decedent's estate. The antagonistic claims that George P. Fritz, Jr., was alleged to have made were in the actions at 110-1997-OCD and 194-1997-OCD. The Orphans' Court claimed that both cases were interpleader actions between Decedent’s estate and claimants, including George P. Fritz, Jr., regarding claims to bank accounts. However, since a hearing was not conducted, no evidence was received to show that George P. Fritz, Jr., in fact, had an interest antagonistic to the estate.

KELLER, Chairman, Pursuant to Rule 208(d)(2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline. HISTORY OF PROCEEDINGS Respondent was suspended from the practice of law in the Commonwealth of Pennsylvania by Supreme Court order dated January 9, 1989. The order was issued pursuant to Rule 214(d), Pa.R.D.E. Respondent’s suspension resulted from his August 1, 1988 conviction for possession with the intent to distribute cocaine, in violation of 21 U.S.C. §841(a)(l). On October 18, 1988, respondent was sentenced to a ten-year period of incarceration, to be followed by a special parole term of five years, and to pay $50 to the Crime Victims Fund maintained by the U.S. Treasury. On March 2,1990, respondent’s sentence was reduced to a six-year period of incarceration, to be followed by a special parole term of five years and a $50 payment to the U.S. Treasury Crime Victims Fund. Respondent is presently incarcerated at the Federal Correctional Institution in [ ]. On April 27, 1990, the Office of Disciplinary Counsel filed a petition for discipline of respondent based on his October 1988 conviction. On June 7, 1990, respondent filed an answer to the petition, in which he admitted to the facts of his conviction and sentence and raised two new matters concerning the circumstances which led to his misconduct. On August 21, 1990, respondent was deposed at the Federal Correctional Institution in [ ]. Both the Office of Disciplinary Counsel and respondent were represented by counsel. The matter was referred to Hearing Committee [ ], which was chaired by [ ], Esq., and included [ ], Esq., and [ ], Esq. The committee held a hearing on the matter on October 16, 1990. The Hearing Committee filed its report on February 20, 1991, and recommended that respondent be suspended from the practice of law for a period of four years or until release from incarceration. On November 26, 1990, the Office of Disciplinary Counsel filed a brief in response to the Hearing Committee report and urged that respondent be disbarred or the recipient of a lengthy suspension. Respondent filed a brief on the matter and argued that a short suspension, followed by a probationary period, is the appropriate discipline to be imposed. The matter was adjudicated at the April 10,1991 meeting of the Disciplinary Board of the Supreme Court of Pennsylvania. FINDINGS OF FACT We adopt the findings of fact made by the Hearing Committee, which are based upon the documentary and testamentary evidence presented by petitioner and respondent. (1) Petitioner, whose principal office is located at 300 North Second Street, Harrisburg, Pa., is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforementioned Rules. (2) Respondent, [ ], Esq., was born in 1956, admitted to practice law in the Commonwealth of Pennsylvania in 1983, and has a current address at Federal Correctional Institution, [ ]. (3) On January 9, 1989, the Supreme Court of Pennsylvania entered an order directing that, as a result of respondent’s having been convicted in the U.S. District Court for the [ ] District of Pennsylvania of the offense of possession with the intent to distribute cocaine in violation of 21 U.S.C. §841 (a)(1), respondent be immediately suspended from the bar of the Commonwealth pursuant to Rule 214(d), Pa.R.D.E., and that the matter be referred to the Disciplinary Board pursuant to Rule 214(f), Pa.R.D.E., for the institution of formal proceedings. (4) On April 7, 1988, a 113-count indictment was filed in the U.S. District Court for the [ ] District of Pennsylvania at Criminal no. [ ]. (a) Respondent was one of 28 defendants named in the indictment. (b) Count 1 charged respondent with conspiracy, in violation of 21 U.S.C. §846. (c) Count 29 charged respondent with the possession with intent to distribute and distributing cocaine, a Schedule II narcotic, in violation of 21 U.S.C. §842(a)(l). (5) On August 1, 1988, respondent entered a plea of guilty to Count 29 of the indictment. (6) On October 18, 1988, respondent appeared before the Honorable [A] of the U.S. District Court for the [ ] District of Pennsylvania for sentence. (a) Respondent was sentenced to a ten-year period of incarceration, to be followed by a special parole term of five years and respondent was ordered to pay the sum of $50 to be deposited into the Crime Victims Fund maintained by the U.S. Treasury. (b) Upon oral motion of the government, Count 1 of the indictment was dismissed against respondent. (7) On March 2, 1990, respondent appeared before the Honorable [A] of the U.S. District Court for the [ ] District of Pennsylvania for resentencing. (8) Respondent’s sentence was reduced to a six-year period of incarceration, to be followed by a special parole term of five years and respondent was ordered to pay the sum of $50 to be deposited into the Crime Victims Fund maintained by the U.S. Treasury. (9) The respondent used drugs while in law school. (10) The respondent continued to use drugs after being admitted to the practice of law. (11) The respondent’s father committed suicide when the respondent was 17 or 18 years of age. (12) Respondent’s brother-in-law committed suicide during respondent’s first semester in law school. (13) During the second semester of his first year in law school the respondent’s cousin, who had inspired him to go to college, committed suicide. (14) During the three years he was in law school respondent continued to use drugs and alcohol. (15) On January 6, 1986, the respondent did deliver 3.1 grams of cocaine, which eventually resulted in his arrest in April 1988. (16) After his arrest in April 1988, he continued to use drugs and alcohol. (17) In the summer of 1988 the respondent entered [ ] Rehabilitation Center. (18) The respondent completed the 28-day program recommended by [ ] Rehabilitation Center. (19) At the time the respondent entered [ ] Rehabilitation Center, he had a well established addiction to drugs and alcohol. (20) On October 18, 1988, shortly after his release from [ ] Rehabilitation Center, the respondent was sentenced to a term of imprisonment. (21) Respondent is currently incarcerated at the Federal Correctional Institute at [ ]. (22) At the Federal Correctional Institute he has been involved in the Share Program, including lecturing in the program. (23) The Share Program is an orientation program for inmates to explain the drug programs available. (24) At the Federal Correctional Institute the respondent has taught courses on alcoholism and cocaine awareness and attended AA meetings. (25) Numerous members of the [ ] County Bar Association have written letters on respondent’s behalf to the parole office and the Office of Disciplinary Counsel. All of these letters have attested to respondent’s high moral character and the writers’ confidence that he is capable of competently resuming the practice of law upon his discharge from prison. CONCLUSIONS OF LAW (1) Respondent’s October 18,1988 conviction for violation of 21 U.S.C. §841(a)(l) is a conviction under Rule 214(d), Pa.R.D.E. (2) Respondent’s conviction constitutes a per se independent basis for discipline under Rule 203, Pa.R.D.E. DISCUSSION Respondent’s criminal conviction provides the grounds for discipline under the Pennsylvania Rules of Disciplinary Enforcement, Rule 203. The only issue before the Disciplinary Board is, therefore, the appropriate disciplinary sanction in light of respondent’s criminal conviction. It is incumbent upon the Disciplinary Board to “consider the events which surrounded the criminal charge in order ‘to weigh the impact of the conviction upon the measure of discipline.’” Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982), quoting Office of Disciplinary Counsel v. Troback, 477 Pa. 318, 383 A.2d 952 (1978). Respondent has acknowledged in his answer to the petition for discipline that the instant proceedings arose from his October 1988 conviction for possession of co caine with the intent to distribute the illegal drug. There is no question that respondent distributed the cocaine to his wife’s cousin, a police informant, for personal reasons and without a profit motive. There is also no question that at the time these events transpired, respondent was a drug addict. Respondent provided a lengthy narrative, in his deposition, of the grueling toll his cocaine abuse had taken on his body. Respondent relayed to the Office of Disciplinary Counsel how, prior to his arrest, his substance abuse had caused him to “lose” an entire week and much of his body weight, and retreat into a hermit-like existence which revolved around drug use. At the time respondent offered cocaine to his wife’s cousin, he was still heavily involved in the abuse of drugs and alcohol. Against this backdrop he engaged in two foolish actions: the distribution of cocaine to another and the possession of an illegal substance. Respondent has accepted full responsibility for his actions and, like the Disciplinary Board, is of the opinion that a substance abuse problem does not in any way whatsoever excuse his reprehensible behavior. However, according to Pennsylvania case law, the existence of psychiatric problems may mitigate attorney misconduct. In order for psychiatric infirmity to be considered in mitigation in a disciplinary proceeding, the respondent must establish the existence of a causal connection between the disorder and the attorney misconduct. Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989); see also Office of Disciplinary Counsel v. [B], No. 16 D.B. 88 (1989). Respondent offered the testimony of renowned substance abuse experts [C], M.D., and [D], M.S.N., to explain the “baffling” nature of alcoholism and related addiction diseases. Respondent’s two qualified experts attested to their treatment of respondent at a rehabilitation facility shortly after his arrest, and rendered an opinion that respondent was indeed a person afflicted with these addictive diseases. Based on this expert testimony, which included some commentary on the cumulative effect of addictive diseases and the increasing lack of self-control they cause in the person, and respondent’s own narrative, we conclude that he was indeed suffering from addiction at the time of his misconduct, and that tins psychiatric disorder must be considered when we ascertain the appropriate discipline. We will also take into account the many favorable letters about respondent’s character which were submitted by numerous members of the bar. Various [ ] County attorneys wrote glowing testimonials about respondent’s high character, and several offered him employment following his release from incarceration. All of this evidence, and respondent’s previously unblemished disciplinary record, leads us to the conclusion that the imposition of a lengthy term of suspension is the most appropriate form of discipline in this case. Respondent’s long-term absence from the bar will both recognize the serious nature of the offense for which he is being disciplined and respect the interest of the public and the integrity of the bar. See Office of Disciplinary Counsel v. Stern, 515 Pa. 68, 526 A.2d 1180 (1987). RECOMMENDATION The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that respondent [ ] be suspended from the practice of law for a period of five years, retroactive to the date of his suspension on October 18, 1988. It is further recommended that the court direct respondent to pay the necessary expenses incurred in the in vestigation and prosecution of this matter pursuant to Rule 208(g), Pa.R.D.E. Messrs. Schiller, Gilbert and Paris dissent and would recommend disbarment. Mr. Hill and Ms. Lieber did not participate in the adjudication.

ORDER PER CURIAM: The Court being evenly divided, the Order of the Superior Court is hereby affirmed. NIX, Former C.J., did not participate in the consideration or decision of this case. CAPPY, J., files an opinion in support of affirmance in which CASTILLE and NEWMAN, JJ., join. NIGRO, J., files an opinion in support of reversal in which FLAHERTY, C.J., and ZARPALA, J., join. OPINION IN SUPPORT OF AFFIRMANCE CAPPY, Justice. The sole issue to be addressed in this appeal is whether there was sufficient probable cause to support the arrest of Appellant. Upon motion of Appellant, the Municipal Court of Philadelphia suppressed the evidence found as a result of this arrest. The Court of Common Pleas of Philadelphia County denied the Commonwealth’s Petition for Certiorari and/or Appeal. The Superior Court reversed the order denying certiorari and/or appeal and remanded the matter for further proceedings. For the reasons that follow, we affirm the order of the Superior Court. When reviewing rulings of a suppression court, we must determine whether the record supports that court’s factual findings. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); see also Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992). The facts as found by the Municipal Court, and which we find to be supported by the record, are as follows. At approximately 6:30 a.m. on June 25, 1992, Officer Robert Snyder of the Philadelphia Highway patrol unit, while on routine patrol on Interstate 95 (“1-95”) in the area of Aramingo Avenue and York Street, observed Appellant operating a vehicle with expired temporary tags. Officer Snyder signaled for Appellant to pull into a nearby gas station. Appellant pulled into the gas station, but instead of stopping, proceeded around the building towards the entrance ramp of 1-95. Fearing that Appellant was attempting to flee, Officer Snyder pulled his vehicle in front of Appellant so as to block his route of travel and ordered Appellant to turn off his motor. As the officer was alighting from his vehicle, Appellant quickly exited his vehicle and walked to the back of his vehicle and away from Officer Snyder. Officer Snyder then approached Appellant and requested that he produce some form of identification as well as a title or registration for the vehicle. After fumbling through his pockets, Appellant indicated that he did not have any registration, but that he did have a title for the vehicle. Appellant then walked back towards his vehicle with Officer Snyder following close behind. According to the testimony of Officer Snyder, Appellant kept glancing over his shoulder as if to see where the officer was and then proceeded to open his ear door slowly and bend inside. Due to Appellant’s suspicious behavior, Officer Snyder walked up behind Appellant and ordered him to stop. It was at that time that Officer Snyder noticed an object, protruding from under the driver’s seat, which was approximately three (3) to four (4) inches wide and two (2) inches deep wrapped in yellowish tinted plastic. Suspecting that the package contained narcotics, Officer Snyder immediately handcuffed Appellant and placed him under arrest. The officer testified that although he could not see through the wrapping of the package, he believed that the package contained narcotics based upon his prior experience as a police officer. Specifically, he testified that he has been a Philadelphia police officer' for approximately thirteen (13) years during which time he was temporarily assigned to the Bureau of Narcotics Investigation, and that he had personally seen, perhaps fifty (50) times or more, narcotics packaged in similar “kilo” or “brick type” wrappings. Appellant testified on his own behalf, relating a very different factual scenario than that of Officer Snyder. The Municipal Court judge, however, specifically found Officer Snyder’s testimony to be more credible, thus accepting his rendition of the facts. Howev er, the Municipal Court ultimately suppressed the evidence seized as a result of this warrantless arrest, finding that the officer’s belief that the package contained narcotics was nothing more than speculation and thus, insufficient to establish probable cause to arrest. On application for permission to appeal filed by the Commonwealth, the trial court agreed with the Municipal Court that the facts here were insufficient to support a finding of probable cause to arrest and, thus, denied the Commonwealth’s request for permission to appeal. In its opinion in support of that denial, the trial court reasoned that Officer Snyder’s observation of the wrapped object and his “subjective belief’ that the package contained narcotics was insufficient to support a finding of probable cause. Tr. ct. op. pp. 10-11 (emphasis in the original). Following that denial, the Commonwealth appealed to the Superior Court, certifying that the suppression order substantially handicapped its prosecution. As noted previously herein, the Superior Court reversed, finding that the facts as found to be credible by the Municipal Court were sufficient to establish probable cause to arrest Appellant. Judge Hoffman dissented, essentially agreeing with the suppression and trial court’s conclusions that the facts of which Officer Snyder had knowledge at the time of the arrest rose no higher than that of suspicion. Significant for purposes of the present appeal, is the Superior Court panel majority’s reliance, in part, upon the officer’s familiarity, due to his prior extensive experience, with narcotics being similarly packaged in kilo-sized bricks, to support its conclusion that probable cause to arrest was met. To be constitutionally valid, a war-rantless arrest must, of course, be supported by probable cause. Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979). It is well-settled that in considering whether probable cause exists to justify a warrantless arrest, the totality of the circumstances must be considered. Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995), citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As this court has held, “probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203, 206 (1994). As we quoted several years ago, probable cause must be “viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training.” Commonwealth v. Norwood, 456 Pa. 330, 334, 319 A.2d 908, 910 (1974) (citation omitted). Our case law makes clear, as well, that mere suspicion alone will not support a finding of probable cause. Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979)(mere sight of a small amber-colored prescription vial on the seat of an automobile, without more, does not suffice to establish the requisite probable cause for arrest). However, it is also true that, to establish probable cause to arrest, criminal activity need not be shown to, in fact, exist, but rather only that it may be reasonably inferred from the circumstances. Commonwealth v. Weidenmoyer, 518 Pa. 2, 13, 539 A.2d 1291, 1297 (1988). The crucial determination for purposes of the present appeal is, thus, whether the officer’s belief that the package observed protruding from under the seat contained narcotics, when viewed under the totality of the circumstances, constitutes only a suspicion or a reasonable inference of criminal activity. As mentioned above, the Superior Court majority here concluded that Officer Snyder’s belief that the package contained narcotics constituted a reasonable inference based on the facts known to him at the time of the arrest. One of the factors considered, albeit not the only factor, was the officer’s knowledge, gained through prior experiences, that narcotics are oftentimes packaged in a similar manner. Appellant submits that the Superior Court erred in considering Officer Snyder’s prior police experience involving observations of narcotics being similarly packaged when assessing whether there existed probable cause to arrest Appellant. Appellant claims that because the package could have contained something other than narcotics, the officer could not “reasonably know” just what it did contain but, rather only “suspected” what it contained and that the trial and municipal court were, thus, correct in finding that the officer’s belief rose no higher than that of suspicion. Appellant argues that the Superi- or Court’s holding here is inconsistent with the law of probable cause and that its reliance on federal precedent permitting an officer to seize an object under the “plain view” doctrine where, given his prior experience, he has probable cause to believe the object is, or contains, contraband should not be countenanced by this court. According to Appellant, to permit such warrantless arrests based solely upon the observation of an object, the illegal nature of which is not immediately apparent, will simply promote random searches and seizures without the barest of constitutional foundations. While tantalizing as framed by Appellant, his argument is a distortion of the Superior Court’s holding here as well as the federal cases which have addressed the “plain view” exception in connection with an officer’s observation of certain containers and/or packages. It is not the mere possession of such containers, but rather the totality of the circumstances which dictated the Superior Court’s conclusion here. This is true, as well, with respect to the federal cases criticized by Appellant. See, e.g., Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); United States v. Robles, 37 F.3d 1260 (7th Cir.1994); United States v. Prandy-Binett, 995 F.2d 1069 (D.C.Cir.1993), cert. denied 510 U.S. 1167, 114 S.Ct. 1196, 127 L.Ed.2d 545 (1994); United States v. Moreno, 897 F.2d 26 (2d Cir.1990), cert. denied 497 U.S. 1009, 110 S.Ct. 3250, 111 L.Ed.2d 760 (1990); United States v. Cardona-Rivera, 904 F.2d 1149 (7th Cir.1990); United States v. Barrios-Moriera, 872 F.2d 12 (2d Cir.1989), cert. denied 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989). In none of the above-cited cases did the courts find that the mere observation of a container or package, the likes of which an officer has known, in the past, to contain narcotics, was sufficient to establish probable cause. Instead, it was the holdings of those courts that when viewed together with the additional incriminating facts, an officer’s observation and evaluation of suspect containers and/or packages are appropriate factors to consider in ascertaining whether the warrantless arrest was supported by probable cause. Moreover, Appellant’s argument, as does the rulings of the suppression court and the trial court below, distorts the well-established standard for finding probable cause. In finding that Officer Snyder’s belief here rose no higher than that of supposition, both the Municipal Court and the trial court found significant the testimony of Officer Snyder to wit that he believed the package contained narcotics but that he was unable to actually see the contents of the package. Both of those courts seemingly equated the term “believe” or “belief’ with mere suspicion or a hunch. Apparently neither court accorded any weight to the officer’s prior experience; particularly the fact that, on at least fifty occasions during his thirteen years of employment with the Philadelphia Police Department and the Bureau of Narcotics Investigation, he had observed narcotics packaged in a similar manner. Indeed, the trial court implies that one’s “belief” would always constitute mere supposition and never be a reasonable or objective conclusion even if based upon prior actual, and hence observable, experiences. (Tr. ct. op. pp. 9-11). Appellant, too, relies principally upon the inability of the officer to actually see the contents of the package. Such an interpretation, however, serves to elevate the standard of probable cause to that of almost actual certitude. This is clearly an erroneous interpretation as the standard for determining probable cause has never been held to be such an exacting one. See Commonwealth v. Weidenmoyer, supra. And, contrary to Appellant’s assertions, this court has found in the past, that an experienced officer’s observations of either drugs or containers commonly known to hold drugs is one factor to be considered in determining whether probable cause exists. See Commonwealth v. Banks, supra, citing Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993); cf Commonwealth v. Kelly, supra (mere observation of a prescription vial on the seat of an automobile, without more, does not suffice to establish probable cause). Our reliance here on Officer Snyder’s prior experience with similarly wrapped packages, then, is not a novel approach nor is it one that is at odds with traditional notions of probable cause. Given the foregoing, we cannot escape the conclusion that Officer Snyder had probable cause to arrest Appellant. We find compelling, as did the Superior Court, not only Officer Snyder’s familiarity with such packaging and its use as being indicative of the transportation of illegal drugs, but also the additional factors which confronted Officer Snyder immediately prior to the arrest including specifically Appellant’s apparent attempt to elude the stop; his repeated glances over his shoulder to check Officer Snyder’s location as he opened his car door to retrieve his identification; and the fact that the plastic wrapped “brick” was partially concealed under the seat. Accordingly, the decision of the Superior Court is affirmed. NIX, Former C.J., did not participate in the consideration or decision of this case. CASTILLE and NEWMAN, JJ., join this Opinion in Support of Affirmance. NIGRO, J., files an Opinion in Support of Reversal in which FLAHERTY and ZAPPALA, JJ., join. OPINION IN SUPPORT OF REVERSAL NIGRO, Justice. Because I disagree that probable cause supported Appellant’s arrest, I respectfully dissent. Suspicion is not a substitute for probable cause as grounds for an arrest or search and seizure. Commonwealth v. Kelly, 487 Pa. 174, 178, 409 A.2d 21, 23 (1979). Officer Snyder arrested Appellant based solely upon speculation that a package in his car contained drugs. He admitted that he could not see what was inside the package. As the Opinion in Support of Affirmance acknowledges, courts have required more than the observation of a package commonly used to transport drugs to establish probable cause. In Texas v. Brown, 460 U.S. 730, 742-43, 103 S.Ct. 1535, 1543-44, 75 L.Ed.2d 502 (1983), for example, there was probable cause to believe that a balloon commonly used to package drugs contained drugs where police also saw drugs and paraphernalia in the car. Similarly, in Commonwealth v. Mallory, 418 Pa.Super. 614, 617-18, 614 A.2d 1174, 1176-77 (1992), appeal denied, 533 Pa. 632, 621 A.2d 578 (1993), there was probable cause to arrest the defendant where the police saw him try to hide a plastic baggie during the arrest of a known drug dealer in an area with frequent drug activity. In contrast, the circumstances surrounding Appellant’s arrest did not support that he was involved in illegal drug activity. Appellant’s failure to immediately stop his car when signalled and his glances over his shoulder may have made Officer Snyder suspicious. Suspicion, however, is not enough. There were no facts suggesting that the object in the car contained drugs. Allowing police officers to arrest drivers when they see packages in their cars without any other facts suggesting drug activity opens the door for unwarranted searches and impinges upon the rights guaranteed by the Fourth Amendment. For these reasons, I believe that the Superior Court’s decision should be reversed. FLAHERTY, C.J., and ZARPALA, J„ join in this opinion. . Although not explicitly agreeing with the Municipal Court’s finding of credibility, Appellant, in his brief to this court, concedes, for purposes of the present appeal, those facts as found by the Municipal Court, arguing only that the Superior Court's conclusion of law on those facts was incorrect. . Pennsylvania has adopted, as our state constitutional standard, the federal standard for determining probable cause. Commonwealth v. Weidenmoyer, 518 Pa. 2, 539 A.2d 1291 (1988); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). . Although Appellant’s argument on this point is not entirely clear, he seems to imply at one point that we should not adopt, as our state constitutional standard, the "modification” of the plain view doctrine espoused by the Superior Court here as well as in the federal precedent set forth in that court's opinion. However, as discussed infra, we do not agree with Appellant's interpretation that there has, indeed, been a "modification.” Appellant seems to agree that, in all other respects, our state constitutional standard for probable cause is equivalent to that of the federal constitutional standard. What Appellant really argues is that those federal cases, as well as the numerous Superior Court cases following those federal cases, should be rejected by this court. Although somewhat convoluted, this argument of Appellant is nothing more than a continuation of his first argument to wit that probable cause should not be found to exist based solely upon the possession of an object.

FIKE, II P.J., This case is before the court on exceptions of defendant, Douglas R. Summers, to the special master’s recommendations for equitable distribution of the parties’ marital property. The defendant raises three issues: (1) Should defendant’s commuted workers’ compensation benefits be included as marital property? (2) Is the master’s recommendation that defendant receive 55 percent of the marital assets equitable? (3) Did the master correctly value the marital portion of plaintiff’s pension? I. Status of Commuted Workers’ Compensation Benefits The parties were married on June 22, 1979. Plaintiff filed this divorce action on July 30, 1986. The parties finally separated on March 2, 1988 (according to defendant’s brief). A bifurcated divorce decree was entered on April 7, 1989, with the court retaining jurisdiction over collateral economic issues, for which a special master was appointed on July 10, 1990. The evidence shows that defendant suffered a work injury on April 1,T986, while the parties were still married and living together^ As a result the defendant began receiving workers’ compensation benefits for total disability. On June 10,1988, however, defendant petitioned to com mute all future workers’ compensation installments to which he would have been entitled. Commutation was approved by a workers’ compensation referee on July 15, 1988, and lump-sum payment was received by defendant on July 26, 1988, representing the present value of defendant’s future weekly workers’ compensation payments. The principal purpose of the requested commutation was to provide defendant with the funds necessary to begin operation of a trucking business. Pursuant to this plan, defendant purchased a truck and trailer, together with necessary licenses, and entered the trucking business in 1988. The master found that defendant’s business suffered a loss in 1988 of $4,488, but showed a profit in 1989 and 1990 of $5,573 and $18,466 respectively. The master projected defendant’s profit to be approximately $14,785 in 1991. Defendant contended before the master and contends now that the commuted benefits merely replace future salary or wages and are not includable as marital property under principles established in Ciliberti v. Ciliberti, 374 Pa. Super. 228, 542 A.2d 580 (1988) and Malseed v. Malseed, 388 Pa. Super. 214, 565 A.2d 453 (1989). While recognizing the cited appellate authority, the special master concluded that the 1988 amendments to what is now section 3501(a) of the Divorce Code, 23 Pa.C.S. §3501 (a) (previously 23 P.S. §401(e)) required the benefits to be included as marital property. The 1988 amendments added a new subsection (8) to 23 P.S. §401(e) (now 23 Pa.C.S. §3501(a)). The new section 401(e)(8) provides that marital property shall not include: “(8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.” Defendant argued and the master reasoned that defendant’s commutation was a “cause of action or claim” and that since it accrued prior to the date of final separation, the commuted benefits were not covered by the exclusion and therefore must be included as marital property. The master gave credit to defendant, however, for the amount of $6,600 which the master determined to have been utilized by defendant for living expenses in the first six months of his business venture. We have concluded that Ciliberti, supra, and Malseed, supra, control despite the 1988 Divorce Code amendments, and that since the commuted benefits represent the present value of payments defendant would have received in the future to replace his lost wages, the amount of the commuted benefits are excluded from marital property. We base that conclusion on our finding that the 1988 amendment to Divorce Code section 3501 did not change the law with respect to treatment of wage replacement disability benefits, but merely made it clear that if an unliquidated claim or cause of action is otherwise in dudable as marital property, the critical date is the date of accrual, not date of payment. In other words, the amendment is concerned with establishing the date for determining the status of a claim otherwise includable as marital property, not with the types of claims that are to be included. See Nuhfer v. Nuhfer, 410 Pa. Super. 380, 383, 599 A.2d 1348, 1349 (1991) which explains that the addition of subsection (8) to what was then section 401(e) of the Divorce Code, now section 3501(a), was intended to clarify the law stated in Hurley v. Hurley, 342 Pa. Super. 156, 492 A.2d 439 (1985), and that the amendment requires the court to look to the time a cause of action accrues, rather than to the time of liquidation. We also note the practical difficulties of attempting to include the right to receive commutation when no specific fund exists and the right may never be exercised. n. Distribution Ratio The master very thoroughly recounted the facts and very thoughtfully analyzed the factors to be considered in determining the proper distribution ratio. Our exclusion of the commuted workers’ compensation benefits causes us to reconsider the master’s recommendation, however. The defendant used much of the proceeds of the commutation for acquisition of assets, which enhances the value of his separate estate, a factor to be considered when determining equitable distribution. The assets so acquired have also provided defendant with an income-producing capability. We note also that plaintiff is custodian of the parties’ 9 1/2-year-old child. We have concluded that the assets other than those derived from the commuted benefits should be allocated as recommended by the master, but without requiring any further compensation or reimbursement between the parties. With the exclusion of the commuted benefits, the division of the remaining property as recommended by the master appears fair and equitable. III. Calculation of Value of Plaintiff’s Pension Defendant correctly points out that the expert evaluation submitted to the master did, in fact, exclude plaintiff’s premarital years of service. Consequently, it was unnecessary for the special master to adjust the expert’s evaluation. Consequently, in recalculation of the value of marital property, we will substitute the expert’s original evaluation of $11,627.23 for the special master’s calculation of $9,570. IV. Conclusion As the result of our disposition of defendant’s exceptions, we accept the revised marital estate valuation as set forth in defendant’s brief, which is as follows: 1983 Ford Ranger Truck $1,000.00 1963 Ford Falcon automobile 50.00 Defendant’s furniture & furnishings 2,435.00 Plaintiff’s furniture & furnishings 1,510.00 Plaintiff’s pension (using corrected number), see part 3 of brief 11,627.23 Defendant’s life insurance policy— State Farm 233.50 Joint checking account 456.00 U.S. Savings Bonds, Series EE 900.00 Equity in marital real estate 14,200.00 Equity in Princess Mobile home 860.00 Total $33,571.73 Automobile insurance wage loss proceeds (agreed by defendant to be marital property because received prior to final separation) 14,650.00 14,650.00 Total $48,221.73 The above calculation excludes from marital property those items which were included by the master as having been acquired with the commuted workers’ compensation benefits. The assets deleted are the 1974 Peterbilt tractor (except for that portion of its value represented by the $14,650 derived from automobile insurance proceeds), the 1988 Cobra trailer, the licenses for tractor and trailer, the business checking account, the savings account, the living expenses of defendant for 1988, and the furniture and furnishings purchased and money spent by defendant from the commuted benefits. Based upon this revised marital estate valuation, we determine the value of property received by each party as follows: Plaintiff Marital residence $14,200.00 U.S. Savings Bonds 900.00 Pension plan 11,627.23 Plaintiff’s furniture 1,510.00 Joint checking account 456.00 Equity in mobile home 860.00 Total $29,553.23 Defendant 1983 Ford Ranger $ 1,000.00 1963 Ford Falcon 350.00 Defendant’s furniture 2,435.00 Defendant’s life insurance policy 233.50 Automobile insurance wage loss proceeds 14,650.00 Total $18,668.50 As explained in Part II of this memorandum, we have concluded that the above distribution is equitable without further compensation or reimbursement between the parties. DECREE Now, August 24, 1992, the court having reviewed the report and recommendation of Carolann A. Young, Esq., the duly appointed master in the above-captioned matter, and having revised the recommendations as set forth in the preceding memorandum, it is hereby ordered and decreed in accordance therewith as follows: (1) The following items of personal property shall be awarded to plaintiff, Connie A. Summers: All items of furniture and furnishings removed from the marital resi dence as of the date of separation; all items of furniture and furnishings purchased after the date of separation. The following items of personal property shall be awarded to Douglas R. Summers, defendant: all items of furniture and furnishings remaining in the marital residence as of the date of separation; all items of furniture and furnishings purchased after the date of separation. (2) The 1990 Peterbilt tractor, the 1988 Cobra trailer, all professional licenses relating to the tractor and trailer shall remain with defendant. The 1983 Ford Ranger, determined to be marital property, is awarded to defendant. The 1988 Chrysler LeBaron shall remain with plaintiff. (3) The parties’ marital residence, subject to the mortgage indebtedness, is awarded to plaintiff. Transfer shall be accomplished by deed from plaintiff and defendant to plaintiff, the deed being prepared at plaintiff’s expense. Plaintiff shall be responsible for the remaining balance of the mortgage indebtedness. (4) All U.S. Savings Bonds, Series EE, and the balance of the parties’joint checking account are awarded to plaintiff. The defendant’s business checking account, the defendant’s savings account and the defendant’s personal checking account shall remain with defendant. (5) Defendant’s State Farm and V. A. life insurance policies are awarded to defendant. Plaintiff’s variable insurance policy and State Farm life insurance policy are awarded to plaintiff. (6) The Princess mobile home is awarded to plaintiff. (7) All of plaintiff’s pension plan is awarded to plaintiff, and the deferred compensation shall remain with plaintiff. (8) The commuted worker’s compensation benefits are declared to be non-marital property, while the automobile insurance proceeds in the amount of $14,650 are declared to be marital property. (9) The automobile insurance wage loss proceeds received by defendant are awarded to defendant. (10) No further compensation, reimbursement or other payment shall be required to be made by either party to the other. (11) Neither party shall receive alimony or counsel fees. (12) The parties shall divide equally the costs and expenses of the divorce litigation totaling $2,653.50. Plaintiff is given credit for $865.50 paid to date. Plaintiff shall pay into the prothonotary’s office the sum of $461.25 and the defendant shall pay into the prothonotary’s office the sum of $1,326.75, payment to be made within 90 days. Further, the master is authorized to distribute the sum of $150 to James F. Custer. (13) The liabilities and bills of the parties, as indicated in their respective income and expense statements, shall be the sole responsibility of each party.

ORDER PER CURIAM: AND NOW, this 12th day of September, 1995, there having been filed with this Court by Stephen R. Signore, Jr., his verified Statement of Resignation dated August 12, 1995, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E„ it is ORDERED that the resignation of Stephen R. Signore, Jr., be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: AND NOW, this 22nd day of June, 1995, on certification by the Disciplinary Board that the respondent, ALBERT H. BEAVER, JR., who was suspended by Order of this Court dated February 7,1995, for a period of ninety days, has filed a verified statement showing compliance with all the terms and conditions of the Order of suspension and Rule 217, Pa.R.D.E., and there being no other outstanding order of suspension or disbarment, ALBERT H. BEAVER, JR. is hereby reinstated to active status, effective immediately. MONTEMURO, J., sitting by designation.

ORDER PER CURIAM: Upon consideration of the Report and Recommendations of the Disciplinary Board dated March 28, 1995, and following oral argument, it is hereby ORDERED that David A. Jones be and he is DISBARRED from the Bar of this Commonwealth and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. CAPPY, J., did not participate in the consideration or decision of this case. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: The Court being evenly divided, the Order of the Superior Court is affirmed. ZAPPALA and CASTILLE, JJ., and MONTEMURO, Senior Justice, who is sitting by designation, would reverse the order of the Superior Court.

ORDER PER CURIAM. Prior report: 438 Pa.Super. 562, 652 A.2d 953. AND NOW, this 1st day of AUGUST, 1995, it is hereby ordered that the Petition for Allowance of Appeal is GRANTED. It is further ordered that the decision of the Superior Court is hereby reversed. Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995). MONTEMURO, J., is sitting by designation.

OPINION MONTEMURO, Justice. Appellant, Tamilee Mohr Haaf, seeks review of a Superior Court order which affirmed the entry of summary judgment by the Court of Common Pleas of Lehigh County in favor of Appellees, Fred Jaindl, Mark Jaindl, and Margaret Wehinger. The sole issue raised by Appellant is whether the Superior Court erred in concluding that her cause of action for negligent procurement of criminal proceedings was invalid as a matter of law. For the following reasons, we affirm the entry of summary judgment. Appellant was employed as a secretary from February 20, 1986, to March 6, 1986, at Green Acres Home Park (Green Acres), a mobile home park owned by Appellee, Fred Jaindl. The other Appellees, Mark Jaindl and Margaret Wehinger, were Appellant’s superiors at Green Acres. In March 1987, Joyce Reed, an employee of Green Acres, notified Mark Jaindl that although certain rents had been paid, the money had not been deposited in the bank. Mark, who was the financial controller for Green Acres, conducted his own investigation and confirmed that rent money was missing. Subsequently, Mark contacted Trooper Michael P. Ryan of the Pennsylvania State Police, who conducted an investigation into the matter. Trooper Ryan concluded that the money had been stolen, and arrested Appellant as the prime suspect. At Appellant’s preliminary hearing, the district justice concluded that the Commonwealth had established a prima facie case on the charges of theft by failure to make the required disposition of funds, theft by unlawful taking, receiving stolen property, and tampering with records of identification. Following a jury trial, Appellant was acquitted of all charges. After acquittal, Fred Jaindl instituted a civil action against Appellant to recover the missing funds. Appellant responded with a counterclaim against Fred Jaindl, asserting malicious prosecution, abuse of process, slander, and negligent procurement of criminal proceedings. Appellant also filed complaints on these same counts against Mark Jaindl and Margaret Wehinger. Appellees filed preliminary objections, which the trial court dismissed, and the court consolidated all related actions. Trial was scheduled for March 1, 1993. In February 1993, Appellees filed motions for summary judgment seeking dismissal of Appellant’s claims, but the motions were dismissed as untimely. When the parties appeared for trial in March, Appellant indicated that she wanted to amend her pleadings and the trial was continued. In June 1993, the trial court denied Appellant’s motion to amend, and the Appellees again filed motions for summary judgment. The trial court granted summary judgment in August 1993, and Appellant appealed to the Superior Court. On appeal to the Superior Court, Appellant dropped her claims of abuse of process against Appellees. The Superior Court affirmed the trial court’s entry of summary judgment, and, most pertinent to this matter, declined to recognize negligent procurement of criminal proceedings as a valid cause of action. Jaindl v. Mohr, 432 Pa.Super. 220, 226-227, 637 A.2d 1353, 1356-1357 (1994). On appeal to this Court, Appellant raises one issue, namely, whether the Superior Court erred in concluding that her cause of action for negligent procurement of criminal proceedings was invalid as a matter of law. Appellant presents several arguments in support of her claim, and asks that the entry of summary judgment in Appellees’ favor be reversed. Initially, we disagree with Appellant’s contention that Pennsylvania already recognizes the tort of negligent procurement of criminal proceedings. Appellant relies upon the cases of Little v. York Cty. Earned Income Tax Bur., 333 Pa.Super. 8, 481 A.2d 1194 (1984), appeal dismissed, 510 Pa. 531, 510 A.2d 351 (1986), and Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990) to support her argument. However, even a cursory reading of these cases indicates that negligent procurement of criminal proceedings was not an issue in either case; Little involved a claim of negligent misrepresentation, Restatement (Second) of Torts § 552, and Motheral involved claims of malicious prosecution, intentional infliction of mental distress, and negligent supervision. In fact, our research has not revealed any jurisdiction which has considered the tort which Appellant proclaims we already recognize, nor have we uncovered any other authority which indicates that negligent procurement of criminal proceedings is a cognizable cause of action. Thus, we must consider Appellant’s remaining arguments as an attempt to have us recognize negligent procurement of criminal proceedings as a new cause of action. Appellant argues that the Superior Court misapplied its decision in Davis v. Equibank, 412 Pa.Super. 390, 603 A.2d 637 (1992) to the instant facts. In Davis, police were investigating the robbery of Equibank when Malesky, one of the bank tellers and an eyewitness, identified Davis as the alleged perpetrator from a photo array. Davis was incarcerated until his preliminary hearing, at which time Malesky testified that Davis was not the perpetrator, because the robber was taller than Davis. Davis was released from custody. Subsequently, Davis filed an action in negligence against Malesky and Equibank, asserting Malesky was negligent in identifying him as the perpetrator of the robbery. The trial court granted Malesky and Equibank’s preliminary objections, concluding that Davis had not raised a cognizable cause of action under the laws of Pennsylvania. The Superior Court agreed, refusing to recognize “negligent identification” as a cause of action: We ... recognize that the potential of civil liability for the provision of mistaken information to law enforcement agents would have a chilling effect on citizen cooperation and the provision of valuable information by citizens to police. Further, we are in agreement that the public interest in investigation of crime outweighs the recognition of a negligence action for negligent identification of a suspect.... We decline to recognize a cause of action for negligent identification of another as perpetrator of a crime. Davis, 412 Pa.Super. at 397-398, 603 A.2d at 641. See also Restatement (Second) of Torts § 653, comment g (rule exonerating honest informer derives from sound public policy that the efficient enforcement of criminal law requires that a private person who renders aid to the police by giving honest, even if mistaken, information about crimes should be protected). This Court has never addressed whether negligent identification is a cognizable cause of action in Pennsylvania. The instant case, however, requires us to do so in order to adequately address Appellant’s claim that the Superior Court misapplied Davis. We find the reasoning of the Superior Court in Davis to be sound, and join the ranks of other jurisdictions who have addressed this matter and have refused to recognize a cause of action for negligent identification. See Campbell v. City of San Antonio, 43 F.3d 973 (5th Cir.1995); Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15 (1953); LaFontaine v. Family Drug Stores, Inc., 33 Conn.Sup. 66, 360 A.2d 899 (1976); Manis v. Miller, 327 So.2d 117 (Fla.1976); Shires v. Cobb & Mayfair Market, 271 Or. 769, 534 P.2d 188 (1975). We turn now to the substance of Appellant’s argument. The Superior Court concluded that Appellant’s claim for negligent procurement of criminal proceedings was actually a claim for negligent identification, and that Davis was controlling. Appellant, on the other hand, contends Davis is distin-' guishable. Appellant asserts Davis was intended to protect innocent bystanders and actual eyewitnesses from civil liability, not to protect employers who negligently conduct internal investigations and supply circumstantial evidence to police. As a purely factual matter, every case in which negligent identification has been raised as a cause of action has involved an eyewitness to a crime who later misidentifies an innocent individual as the perpetrator. See Davis v. Equibank, 412 Pa.Super. 390, 603 A.2d 637 (1992); Campbell v. City of San Antonio, 43 F.3d 973 (5th Cir.1995); Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15 (1953); LaFontaine v. Family Drug Stores, Inc., 33 Conn.Sup. 66, 360 A.2d 899 (1976); Manis v. Miller, 327 So.2d 117 (Fla.1976); Shires v. Cobb & Mayfair Market, 271 Or. 769, 534 P.2d 188 (1975). In this case, however, Appellees were not eyewitnesses to the thefts; rather, they gave Trooper Ryan information regarding those thefts and stated their belief that Appellant was the individual responsible for the crimes. Nonetheless, we find that this case does involve a claim for negligent misidentification. Appellant does not dispute that someone stole money from Green Acres and that the Appellees had a reason to suspect and investigate the thefts. Quite simply, Appellant complains that she was mistakenly identified as the perpetrator of the thefts. Consequently, we need not address whether we should recognize negligent procurement of criminal proceedings as a new tort. Finally, we must determine whether the entry of summary judgment in Appellees’s favor was proper. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.Civ.P. 1035(b). We cannot find any genuine issue of material fact which persuades us that summary judgment was improper. In fact, Appellant’s deposition reveals that she had no evidence of any wrongdoing on the part of Appellees at the time her statement was taken. (R.R. 289a-293a). Moreover, based on the above discussion, we find that Appellees were entitled to summary judgment as a matter of law. Accordingly, we affirm. MONTEMURO, J., is sitting by designation. . Respectively, 18 Pa.C.S. §§ 3927(a), 3921(a), 3925(a), and 4104. . Appellant’s deposition reveals that she believes that the Jaindls and Wehinger "set her up,” even though she did not have evidence of such a conspiracy at the time of her statement. (R.R. at 289a). . These second motions for summary judgment were timely filed based upon the postponed trial date. . Appellant does not raise the issues of malicious prosecution or slander on appeal to this Court. . Consequently, we need not address Appellant’s remaining claim that employers owe a duty of care to their employees to avoid fiscal mismanagement which would result in the wrongful arrest of an innocent employee for theft.

ORDER PER CURIAM: Appeal dismissed as having been improvidently granted. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM. The appeals are dismissed as having been improvidently granted. 157 Pa.Cmwlth. 692, 630 A.2d 63. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: AND NOW, this 26th day of July, 1995, there having been filed with this Court by David J. Hirsch his verified Statement of Resignation dated June 26, 1995, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of David J. Hirsch be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: AND NOW, this 13th day of June, 1995, the Petition for Allowance of Appeal is granted and the order of the Commonwealth Court at No. 1836 C.D. 1990 dated November 30, 1993 is vacated; and this case is remanded to the Commonwealth Court for reconsideration in light of our decision in Pennsylvania State Police v. Pennsylvania State Troopers’ Association, Trooper James Betancourt, 540 Pa. 83, 656 A.2d 83 (1995). MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM. AND NOW, to wit, this 6th day of June, 1995, the Appeal is quashed. The Motion to Quash is dismissed as moot. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: Order affirmed. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM. Prior report: 540 Pa. 376, 657 A.2d 1245. AND NOW, this 28th day of June, 1995, the Appellant’s Application for Limited Reargument in the Nature of a Request for Clarification and for the Appointment of a Master is denied. MONTEMURO, J., is sitting by designation.

PER CURIAM. We affirm on the basis that the disclaimer executed by Planned Parenthood pursuant to 20 Pa.C.S. § 6205(a) made the transfer of real property to an inter vivos trust, of which Planned Parenthood had been a beneficiary, exempt from realty transfer tax. MONTEMURO, J., is sitting by designation. We do not reach the question of whether, in the absence of the disclaimer, the transfer would have been subject to tax.

OPINION OF THE COURT CASTILLE, Justice. This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of Dauphin County. Following a jury trial, appellant was convicted of the first degree murder and kidnapping of Selina Franklin, and of the first degree murder of Stephanie McDuffey. The jury found two aggravating circumstances relating to each murder conviction which outweighed the six mitigating circumstances and therefore returned two consecutive death sentences. Post-verdict motions were denied and the trial court imposed two death sentences for each of the first degree murder convictions and an additional to 15 years imprisonment on the kidnapping conviction, all to run consecutively. I. Sufficiency of the Evidence Although appellant does not challenge the sufficiency of the evidence regarding his first degree murder convictions, this Court is required to independently undertake a review of the sufficiency of the evidence in all capital cases. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Carpenter, 511 Pa. 429, 435, 515 A.2d 531, 533-34 (1986). After a review of the record, we find that the evidence amply supports appellant’s convictions. The evidence giving rise to these convictions was that on August 6, 1992, appellant was arrested in connection with the rape of Clara Johnson, which had occurred the previous day. While in custody and after waiving his Miranda rights, appellant confessed to raping and murdering two other victims, Selina Franklin and Stephanie McDuffey, several years earlier. After confessing regarding the other two victims, appellant led police to where their bodies were buried. Appellant ultimately pleaded guilty to the 1992 charges of rape, kidnapping, aggravated assault and attempted homicide arising out of his 1992 attack on Clara Johnson. Evidence concerning that attack was admitted at appellant’s trial for the kidnapping and murders of victims Franklin and McDuffey in order to establish a common scheme, plan or design. The evidence regarding Clara Johnson, a six foot tall black woman, was that on August 5,1992, while she waited for a cab at the Uptown Grill (a bar in Harrisburg), appellant and a friend of his offered her a ride. After the friend was dropped off, Johnson testified that she asked appellant to take her back to the bar because she had only consented to the ride when she believed that the friend would be present. Appellant pretended to agree to take her back to the Uptown Grill, but, after stopping at a mini-market for cigarettes and gasoline, he began driving in a direction away from the Uptown Grill, and in a direction away from Johnson’s home. Johnson became nervous and, when she tried to get appellant to stop the car, a struggle ensued. Appellant told Johnson that he had something to do with her and that she “wasn’t going anywhere.” Appellant proceeded to drive at a high rate of speed to an isolated area near Conrail train tracks and, when Johnson tried to jump from the moving vehicle, appellant slammed on the brakes, causing the car door to hit her in the head, dazing her. Appellant then attempted to run over Johnson with the car, but she fell down an embankment. Upon finding her approximately a half mile away from the car, appellant beat her in the head and face and raped her. After consuming a beer, he bound her with duct tape, and placed a knife to her throat. Appellant then informed Johnson that he was going to rape her again, after which he would have to kill her. He also told Johnson that all women were alike and that he had killed other women. After raping Johnson again, appellant then repeatedly beat her about the head with beer bottles, and dragged her approximately half a mile by her legs to a ditch near where the car was parked, where he put duct tape over her mouth and nose. By happenstance, a Conrail security officer came upon the scene as appellant was dragging Johnson to the ditch. Upon seeing the Conrail officer, appellant fled on foot, leaving behind his car with a bloody knife stuck in the "window well. Clara Johnson fortunately survived her ordeal and testified against appellant. A registration check of the car left at the scene revealed that it belonged to appellant. Based on this information and on Johnson’s statement, police went to appellant’s home at 6:00 a.m. the next morning, August 6, 1992, to arrest him. Appellant fled to the roof of a multi-story apartment building, where he was apprehended after a six-hour standoff during which he had threatened to jump. Appellant was arrested and charged "with the rape, aggravated assault, kidnapping and attempted murder of Clara Johnson. After being read and waiving his Miranda rights, appellant told Detective Thomas Brennan that Johnson had voluntarily accompanied him to the Conrail yard to have sex, and that a fight had ensued after an argument. At the end of the interview, Detective Brennan told appellant that he believed appellant had probably been involved in other assaults and that appellant could get in touch with him if he wished to provide further information or take him to any other bodies. Five days later, on August 11, 1992, while in custody, appellant requested a meeting with Detective Brennan through a counselor at the Dauphin County Mental Health/Mental Retardation Program. Pursuant to appellant’s request, Detective Brennan and appellant met at the prison between 4:00 and 5:00 p.m. After again waiving his Miranda rights, appellant further stated to Detective Brennan that he had killed a woman named Selina Franklin in 1987, and told Detective Brennan that he would take him to the body. Appellant also asked at the meeting to speak to a representative of the District Attorney’s Office. Complying with appellant’s request, Detective Brennan transported appellant to the District Attorney’s Office at about 5:00 or 6:00 p.m. to meet with First Assistant District Attorney William Tully. En route to the District Attorney’s Office, appellant told the detective that he had killed yet another woman in 1989, but that he did not recall her name. At the District Attorney’s Office, appellant told Mr. Tully, in Detective Brennan’s presence, that he had committed several homicides and wanted the death penalty because he did not wish to further embarrass his family. Appellant further told Mr. Tully that the bodies were located at the Swatara Township landfill. While awaiting the assistance of other police departments to join in the search of the landfill, appellant gave Detective Brennan more details of the murders. Specifically, appellant said in his statement that he had picked up Selina Franklin and her friends, and, after dropping off the other women at their homes, he took Franklin to the landfill where Franklin agreed to have sex with him for thirty-five dollars. He told Detective Brennan that after having sex with Franklin, he found an electrical insulator with which he beat Franklin over the head until she was dead. He then retrieved the thirty-five dollars from her pocket. Appellant said that several days after being questioned by police in connection with Franklin’s disappearance, he had returned to the landfill, located the body and moved it to a different location, removed some of the victim’s clothing and scattered it around the landfill and buried the body along with the insulator. When he returned again several months later, he found bones sticking out of the ground, which he threw down a hill. Appellant also told Detective Brennan about the killing of the other woman, whose name he did not know but who was later identified through testimony as Stephanie McDuffey. Appellant told the detective that sometime in 1989, he had picked up this second victim on the streets of Harrisburg and taken her to the same landfill where he had taken Franklin and that he and the second victim had sexual intercourse. He then took a piece of pipe from a junked car with which he beat her over the head until she was dead. Appellant told Detective Brennan that he then dragged her a short distance off the access road through the landfill and coveréd her body, along with the pipe, with lumber, shingles and tires. Appellant also recounted the assault on Johnson which led to his arrest. Although appellant claimed that Johnson had accompanied him to the Conrail yard voluntarily and that they had had consensual sex, he also told Detective Brennan that sometimes he just got “the urge to go out, pick up a black female, rape her and kill her.” (N.T. 159). After his detailed statement to the first deputy D.A. and Detective Brennan, appellant was taken to the Swatara Township landfill between 6:00 and 7:00 that evening, where he pointed out the general location of the two bodies to police. Because police were not equipped to conduct a search at night, appellant agreed to return to the landfill the next morning to aid in the search for the bodies. On August 12, 1992, Detectives Brennan and Wenner secured appellant from the prison, advised him once again of his Miranda rights, which he waived, and took him to the landfill. During the drive, appellant marked two areas on an aerial photograph provided by the detectives as the general areas where the bodies were located. These corresponded to the areas he had indicated the previous night. En route to the landfill, appellant began to laugh for no apparent reason and told Detective Brennan that he previously had been lying about the murders. Notwithstanding Miller’s recantation, police searched the areas indicated by appellant and, over the course of a week, found relatively intact human and fetal skeletal remains later identified as those of Stephanie McDuffey and her eight-and-a-half month old fetus. Her skull had been crushed, and the pathologist testified that the cause of death was several severe blows to the head. The position of the body indicated that it had been dragged to the location where it was discovered. The skeletal remains were identified by dental records and specific conditions of the pregnancy, as documented by hospital records. A pipe was also found alongside the body. Police also uncovered the partial skeletal remains of Selina Franklin, including a foreleg bone around which a rope was knotted and tied. The pathologist testified that, based upon the tightness of the rope around the bone, prior to decay the rope would have been tightly tied around the victim’s ankle. The skull was never recovered, so the body was identified by the clothing, which matched the clothing Selina Franklin wore when she was last seen by friends. An electrical insulator was found near the body. This evidence, including appellant’s own admission to the slayings and his knowledge of where the bodies were located, when viewed in the light most favorable to the Commonwealth as the verdict winner, is clearly sufficient to support appellant’s convictions for the first degree murders of Selina Franklin and Stephanie McDuffey. Appellant alleges that the evidence is insufficient to support his conviction for the kidnapping of Selina Franklin. As discussed supra, this court must examine the evidence in the light most favorable to the Commonwealth. Carpenter, supra at 435, 515 A.2d at 533-34. Kidnapping is established when the Commonwealth demonstrates that a defendant: unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confínes another for a substantial period in a place of isolation, with any of the following intentions: * ^ # Hí # * (3) To inflict bodily injury on or to terrorize the victim or another.... 18 Pa.C.S. § 2901(a). These elements can be proven circumstantially. Commonwealth v. Chester, 526 Pa. 578, 608-09, 587 A.2d 1367, 1382, cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991). Here, Selina Franklin was last seen alive in appellant’s company and her body was found in a remote area some distance from where she was last seen. Additionally, there was also evidence that Franklin had a rope tied around her leg, which further circumstantially indicates that she was confined against her will in a place of isolation. This circumstantial evidence is sufficient to establish kidnapping. Chester, Id. (kidnapping conviction circumstantially proven where evidence demonstrated that victim was last seen leaving a bar with defendants, to whom he had offered a ride, and that his body was found in a wooded area some distance away); Commonwealth v. Williams, 252 Pa.Super. 435, 381 A.2d 1285 (1977) (circumstantial evidence sufficient to support kidnapping conviction where defendant was found driving victim’s car in possession of several of victim’s belongings without consistent or satisfactory explanation and search of car revealed gun and tape of same type as was used to bind victim). See, People v. Mattson, 50 Cal.3d 826, 268 Cal.Rptr. 802, 789 P.2d 983 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 595 (1990) (circumstantial evidence sufficient to establish kidnapping where victim was last seen leaving for work, her body was found in a remote area several miles from either her home or her place of work, and the victim’s clothing and a map of the area where the body was found were found in defendant’s car); Mines v. State, 390 So.2d 332 (Fla.1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1994, 68 L.Ed.2d 308 (1981) (circumstantial evidence sufficient to sustain conviction for kidnapping where victim’s body was bound when found); Bromley v. State, 259 Ga. 377, 380 S.E.2d 694 (1989) (circumstantial evidence sufficient to establish kidnapping where victim was last seen alive with defendant and there was duct tape on victim which matched duct tape found in defendant’s trailer). Having determined that the record supports the murder and kidnapping convictions, we now turn to appellant’s allegations of error. II. Admission of Evidence Regarding Other Crimes Appellant alleges that the trial court erred by admitting evidence of appellant’s rape and attempted murder of Clara Johnson. Although evidence of other crimes committed by a defendant is generally not admissible at trial, such evidence is relevant and admissible for the purpose of establishing a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one naturally tends to prove the others. Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989). In order for other crimes evidence to be admissible under this exception, a comparison of the crimes must establish a logical connection between them. Commonwealth v. Hughes, 521 Pa. 423, 459, 555 A.2d 1264, 1283 (1989). The existence of a common scheme is relevant to establish any element of a crime (e.g. the identity or intent of the perpetrator), so long as it does not merely indicate the defendant’s propensity to commit similar crimes. Here, the trial court expressly allowed testimony by Johnson and others regarding the Johnson incident for the limited purpose of establishing a common scheme, plan or design. The common scheme was relevant to establish that appellant was the person who had committed the murders of Franklin and McDuffey and to establish that appellant possessed the requisite mental state to commit first degree murder. Thus, the issue is whether there was a logical connection between the crimes that would allow admission of this evidence to prove the identity of the perpetrator and the appellant’s mens rea of the murder. In the three incidents at issue here, all three victims were tall, heavy-set black women who, for one reason or another, initially consented to get into appellant’s car voluntarily. Each was then taken against their will at night from Harrisburg to remote, unlit areas used as dumping grounds. Appellant contended that all three women consented to have sex with him, even though Johnson denied consenting to sexual intercourse. All three women were severely beaten in the head and face with blunt objects, and at least two of the women, Johnson and Franklin, were bound. These facts, when taken together, establish that appellant had a common design in luring similar type victims into his vehicle, taking them to remote areas for sexual purposes against their will and brutally beating them in a similar manner, attempting to cause or causing their deaths. Commonwealth v. May, 540 Pa. 235, 247, 656 A.2d 1335, 1341 (1995) (subsequent assaults properly admitted to establish common scheme at trial for prior murder where victims were physically similar, body of murder victim was found in close proximity to where defendant left assault victims and attacks were of similar nature); Commonwealth v. Clayton, 506 Pa. 24, 33, 483 A.2d 1345, 1349-50 (1984), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988) (attempted murder properly admitted at trial for prior murder to establish common scheme where crimes were strikingly similar in geographic location, motive and method of execution of crime). Appellant argues that the lapse of time between each incident negates the theory that all three incidents were part of a common scheme, plan or design. While remoteness in time is a factor to be considered in determining the probative value of other crimes evidence under this theory, the importance of the time period is inversely proportional to the similarity of the crimes in question. Commonwealth v. Shively, 492 Pa. 411, 416, 424 A.2d 1257, 1259 (1981). Given the striking similarity of the three incidents, the fact that the three attacks occurred over a five year period is not remote enough to render the evidence of the attack on Johnson inadmissible. Commonwealth v. Donahue, 519 Pa. 532, 544, 549 A.2d 121, 127 (1988) (evidence of death of child in defendant’s care three years earlier admissible in trial for murder of child to refute defense of accident). See People v. Archerd, 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421 (1970) (evidence of murders committed in 1947, 1958 and 1960 admissible to show intent in prosecution for murders committed in 1956, 1961 and 1966 where all murders were committed by insulin injection); Benefiel v. State, 578 N.E.2d 338 (Ind.1991), cert. denied, 504 U.S. 987, 112 S.Ct. 2971, 119 L.Ed.2d 591 (1992) (similar sexual assaults committed six and eight years earlier admissible to show common scheme); State v. Coen, 382 N.W.2d 703 (Iowa Ct.App.1985) (evidence of similar sexual assaults five years earlier admissible to show intent to commit sexual assault as an element of the crime). Appellant further contends that because he did not deny killing the two women, but only challenged the degree of murder, the evidence of the rape of Johnson had no probative value and served only to inflame the jurors and prejudice them against him. This argument ignores the fact that appellant’s guilt of the crimes was far from admitted at trial. Contrary to appellant’s repeated assertions that he did not deny killing the two women, the record reveals a different story. Appellant pleaded not guilty and he challenged the voluntariness before and throughout his trial of all of his statements in which he admitted to committing the crimes. Thus, his assertion now that he “did not deny” killing the women falls short of actually admitting to the crimes, which could arguably vitiate the need for the evidence in question. Hence, this evidence was properly admitted to establish the identity of the killer. Buehl, supra, at 510 Pa. 363, 508 A.2d 1167 (evidence regarding two prior robberies admissible at trial for triple murder in order to demonstrate common scheme where appellant had told the prior victims that he would shoot them in the leg and work his way up, one of the murder victims had indeed been shot in the leg, abdomen and face, and two prior victims testified that appellant told them he would shoot out their eye if they tried to identify him and one of the victims had been shot in the eye). Furthermore, the evidence of the abduction, rape and attempted murder of Johnson was also admissible to establish that the killing was intentional and that appellant acted with malice in killing his victims. Because the prosecution only had circumstantial evidence aside from the skeletal remains and appellant’s confession, the evidence regarding Johnson was necessary to demonstrate that appellant had the same common design in mind regarding Franklin and McDuffey, so as to prove first degree murder — that is, to kidnap them and take them to a remote, dark area, rape them and beat them to death. Commonwealth v. Boykin, 450 Pa. 25, 31, 298 A.2d 258, 262 (1972) (evidence that defendant had suffocated two other babies in her custody admissible in trial for death of third baby to establish intent through common scheme). Furthermore, appellant’s rape of Johnson was not stressed by the prosecution and precautions were taken by the trial court during both the guilt phase and the penalty phase of trial to limit the prejudicial impact of this evidence. The trial court gave limiting instructions both prior to Johnson’s testimony and in the jury charge that the evidence was only to be considered by the jury for the limited purpose of establishing common scheme, plan or design. The prosecution properly restricted its references to the Johnson incident to the issue of common scheme and only mentioned the incident involving Johnson five times in a fourteen page closing argü ment, again properly limiting those references to comparison between the crimes to demonstrate a common scheme. Additionally, in order to prevent prejudice to appellant, the trial court ruled that the evidence was inadmissible in the sentencing phase. Under these circumstances, this Court finds that the testimony was properly admitted to demonstrate a common scheme to establish identity and malice. Furthermore, the court’s limiting instructions properly informed the jury of the limited purpose for which the evidence was admitted. III. Admission of Victim’s Pregnancy Appellant next argues that the trial court erred in allowing testimony during the trial that Stephanie McDuffey was eight and a half months pregnant at the time of her murder, asserting that its probative value was outweighed by its prejudice. A trial court has broad discretion to determine whether evidence is admissible. Commonwealth v. Cargo, 498 Pa. 5, 15, 444 A.2d 639, 644 (1982). If the probative value of the evidence outweighs its prejudicial impact, the decision of the trial court will not be reversed. Id. Here, the evidence of McDuffey’s pregnancy was relevant for two purposes. First, the pregnancy gave rise to a physical characteristic which was relevant to establish the existence of a common scheme, plan or design which included selecting tall, heavy black women as victims. Hughes, supra, at 521 Pa. 423, 555 A.2d 1264 (physical similarity between victims relevant in determining whether prior crime is admissible). This purpose was served by the testimony of Mrs. McDuffey that her daughter was tall and had always been a little heavy, and that as a result of the pregnancy she was very large. Second, evidence regarding the victim’s pregnancy was necessary since police used the presence of fetal remains in the pelvic area of the skeleton to identify the victim as McDuffey. This purpose was achieved by the testimony of McDuffey’s obstetrician that she was eight and a half months pregnant, and the testimony of the medical examiner that the skeleton found in the Swatara landfill contained the remains of a fetus and that he had been able to identify the victim because of medical characteristics which corresponded to the files concerning McDuffey’s pregnancy. Appellant argues that the evidence is not relevant to establish a common scheme because he does not deny killing McDuffey and because the defense stipulated to the identity of the victim. Therefore, he argues that this prejudicial evidence to establish identity was improperly admitted. However, the Commonwealth never agreed to the stipulation as to the identity of McDuffey, nor was it required to do so. Commonwealth v. Travaglia, 541 Pa. 108, 128, 661 A.2d 352, 362 (1995); Commonwealth v. Evans, 465 Pa. 12, 17, 348 A.2d 92, 94-93 (1975) (Commonwealth is permitted to prove defendant’s guilt by whatever evidence it can muster). In the absence of a stipulation by both parties, the evidence was clearly relevant for the purpose of identifying the victim. Furthermore, even if appellant admitted to committing the murder of McDuffey, the Commonwealth still needed to establish the identity of the victim since appellant did not know the identity of his second victim. This testimony was limited to the reasons for which it was relevant. Moreover, the Commonwealth did not dwell on the victim’s pregnancy, and the trial court instructed the jury to exclude the testimony regarding the pregnancy during the penalty phase. Therefore, because the probative value of the evidence outweighed the prejudicial impact, it was properly admitted. IV. Court’s Refusal to Grant a Motion for a Bench Trial Next, appellant argues that the trial court abused its discretion in refusing to grant his request for a bench trial. Whether or not to grant a defendant’s request for a bench trial is within the sound discretion of the trial court. Commonwealth v. Sorrell, 500 Pa. 355, 362, 456 A.2d 1326, 1328-29 (1982). Accordingly, appellant has no absolute right to a bench trial. See, Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 789-90, 13 L.Ed.2d 630 (1965) (no right to a bench trial under United States Constitution). In the present case, the trial court denied appellant’s request for a non-jury trial because the court felt that as a result of its exposure to large amounts of excludable evidence in pretrial proceedings, it could not be an impartial fact-finder. Sorrell, supra (court should consider prior exposure to inadmissible evidence; court properly exercised discretion in denying motion for bench trial where court had determined that its partiality was potentially tainted by exposure to defendant’s record in pretrial proceedings). Given this exposure, it was a proper exercise of the court’s discretion to deny the request for a bench trial. Y. Court’s Denial of Recusal Motion Paradoxically, after arguing in this appeal that the trial court committed reversible error by not allowing him to proceed with a bench trial before it, appellant next argues that the trial judge erroneously failed to recuse herself after having stated on the record that she could not be an impartial fact-finder because of information learned in pre-trial proceedings. Appellant first made a motion for recusal after the trial court denied appellant’s request for a bench trial. A recusal is required only where the party requesting recusal establishes that there is a substantial doubt as to the jurist’s ability to preside impartially. Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982). The mere fact that the trial judge participated in earlier pretrial stages in the proceedings is not alone sufficient grounds for recusal. Id. Rather, appellant must demonstrate that the judge could not rule impartially. A court’s decision to deny a recusal motion, however, will not be disturbed absent an abuse of discretion. Commonwealth v. Council, 491 Pa. 434, 438, 421 A.2d 623, 625 (1980). Here, the court ruled upon several pre-trial motions and after it denied appellant’s motion for a bench trial, appellant moved for the court’s recusal. The trial court denied the recusal motion because, although she did not believe she could be an impartial fact-finder, she did believe she would be able to be impartial in ruling on matters of law. Appellant contends, however, that the trial court could not be impartial and that this is demonstrated by her subsequent rulings at trial. Specifically, appellant contends that the fact that the trial court allowed the Commonwealth to present the testimony of Clara Johnson clearly establishes that the trial judge was unfairly biased against appellant as a result of the pretrial proceedings. However, as discussed supra, the trial court’s admission of that testimony was a proper evidentiary ruling well grounded in the law. A mere adverse ruling, without more, does not demonstrate the bias required for a recusal to be granted. Moreover, an examination of the entire record reveals that the trial court did not consistently rule for the Commonwealth but instead made numerous legal rulings in appellant’s favor, including the exclusion of the testimony of Clara Johnson during appellant’s penalty phase and the exclusion of all evidence of several other similar crimes with which appellant was charged at both trial and sentencing. Boyle, supra at 491-92, 447 at 253 (denial of motion for recusal will not be disturbed where record reflects proper exercises of discretion with no suggestions of bias or unfairness to defendant.) It was not an abuse of discretion for the trial court to deny appellant’s motion for recusal. This claim must therefore fail. VI. Suppression of Statements Next, appellant alleges that the trial court erroneously denied his motion to suppress the statements appellant made while in custody because they were involuntarily and unknowingly given to police. Because appellant failed to raise this issue in post-trial motions, it is waived. Pa.R.A.P. 302(a), Commonwealth v. Metz, 534 Pa. 341, 345, 633 A.2d 125, 127 (1993) (issues raised in pre-trial motions but not in post-trial motions are not preserved for appeal). However, since this Court has developed a relaxed standard regarding waiver rules in capital cases, we will address the underlying claim. Zettlemoyer, supra at 26, 454 A.2d at 942. Appellant’s contention that his statements were not voluntarily and knowingly given is belied by the record, which demonstrates that appellant’s statements were clearly voluntarily and knowingly made. In reviewing a ruling on a suppression motion, the standard of review is whether the factual findings and legal conclusions drawn therefrom are supported by the evidence. Commonwealth v. Bond, 539 Pa. 299, 305-07, 652 A.2d 308, 311 (1995). At the outset, appellant focuses in his brief primarily on the statements made on September 28,1992. However, the information obtained at the September 28 interview related to other crimes and was not introduced at the trial in the matter now before us. Furthermore, appellant himself initiated the conversations on September 28, 1992, and was advised of his Miranda warnings and waived them on that date. Therefore, his claim as it relates to these statements is baseless. With regards to the statements which were introduced at trial, the evidence presented at the suppression hearing reveals that all of the statements appellant challenges were made after appellant voluntarily and knowingly waived his Miranda rights. Appellant was advised of and waived his Miranda rights prior to making a statement on August 6, 1992, concerning his assault on Clara Johnson. As to the statements made on August 11, 1992, concerning the two incidents at issue here, a caseworker testified that appellant initiated the request that he contact Detective Brennan on that date and that appellant signed a written consent form to enable the caseworker to contact the police. Detective Brennan testified that appellant was again advised of and waived his Miranda rights prior to the interview conducted at appellant’s request on August 11, and that appellant himself requested the further meeting with the District Attorney in which he confessed to the murders of Selina Franklin and Stephanie McDuffey. Prior to making statements on August 12, 1992, appellant was again reminded of his Miranda rights and stated that he was aware that he could invoke them. Commonwealth v. Youngblood, 453 Pa. 225, 234, 307 A.2d 922, 927 (1973) (renewed willingness of defendant to speak to police, indicated by interview initiated by defendant, and renewed Miranda warnings constitutes a voluntary waiver). All that is necessary for a valid waiver is that appellant’s rights be reasonably conveyed to him. Duckworth v. Eagan, 492 U.S. 195, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). Therefore, the evidence established that appellant voluntarily waived his Miranda rights. Furthermore, prior. experience with Miranda warnings suggests waiver is knowing and voluntary. Hughes, supra at 444, 555 A.2d at 1274-5. Appellant had a long history of arrests during which he frequently exercised his Miranda rights. Testimony was also presented at the suppression hearing that appellant had waived his rights on at least three earlier occasions, in relation to the investigation of a 1990 arson, a 1984 burglary and the initial investigation into the disappearance of Selina Franklin in 1987. Therefore, the waivers were voluntary and the trial court properly admitted the statements. VII. Diminished Capacity Defense Appellant’s next allegation is that the trial counsel was ineffective for failing to present a diminished capacity defense. When asserting ineffective assistance of counsel, appellant must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have any reasonable basis designed to effectuate his client’s interests; and (3) counsel’s ineffectiveness prejudiced appellant. Commonwealth v. Edmiston, 535 Pa. 210, 237, 634 A.2d 1078, 1092 (1993), citing, Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987). Counsel is presumed to have acted in his elients’s best interest; thus, it is appellant’s burden to prove otherwise. Commonwealth v. Hancharik, 534 Pa. 435, 633 A.2d 1074 (1993); Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981). Appellant argues that the evidence presented at sentencing that he suffered from a character disorder and pathological intoxication should have been presented at trial because such evidence would have established that his disorders and patho logical intoxication caused him to act impulsively, and therefore without the specific intent to kill. The record reveals that both of appellant’s medical experts (Dr. Stanley Schneider and Dr. Robert Davis) testified during the penalty phase that appellant was borderline retarded and suffered from numerous psychological problems including Organic Brain Syndrome and Attention Deficit Hyperactive Disorder, as well as alcohol and drug addiction to the point of pathological intoxication, and that these conditions caused appellant to act impulsively. (N.T. 3/25/93 at 67-83; 137-39). Dr. Davis also concluded that appellant knew the difference between right and wrong and understood the nature of the crimes committed and the consequences of his actions. He further testified that he did not have any basis upon which to conclude that appellant lacked the ability to form the specific intent to kill. (N.T. 3/25/93 at 151-57). Because neither doctor testified that appellant’s disorders prevented him from forming the specific intent to kill, appellant has not met his burden of proving that such evidence existed so as to demonstrate his ineffective assistance claim. The medical testimony that was presented regarding appellant’s psychological disorder was simply that he had a difficult time controlling his impulses due to his pathological alcoholism and borderline retardation. This Court has repeatedly held that testimony regarding irresistible impulse is not relevant to a diminished capacity defense because it does not negate the specific intent to kill. Travaglia, supra, at 122-123, 661 A.2d at 359-60 (evidence that appellant lacked ability to control his actions or that he acted impulsively does not establish diminished capacity); Zettlemoyer, supra at 28-29, 454 A.2d at 943 (testimony regarding appellant’s irresistible impulses caused by a personality disorder inadmissible on the issue .of appellant’s specific intent to kill); Commonwealth v. Weinstein, 499 Pa. 106, 113, 451 A.2d 1344, 1347 (1982) (irresistible impulse rejected as relevant in determining whether appellant possessed specific intent to kill). Because the testimony which appellant’s experts presented during the penalty phase of trial would not have been admissible in the guilt phase on the issue of specific intent, trial counsel was not ineffective for failing to present this meritless defense. VIII. Voluntary Intoxication Defense Appellant also contends that trial counsel was ineffective for failing to present a voluntary intoxication defense. In order to support a defense of voluntary intoxication, the evidence must establish that, at the time of the murders, the defendant was overwhelmed by the effects of alcohol to the point of losing his faculties and sensibilities, resulting in his inability to form the specific intent to kill. Commonwealth v. Breakiron, 524 Pa. 282, 295, 571 A.2d 1035, 1041, cert. denied, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990). Appellant did not allege that he was too intoxicated to understand what he was doing when he committed the murders, or even that he was drunk. The only testimony regarding intoxication was from appellant, who testified at sentencing that he was drinking on the nights of the murders. He did not testify that he was intoxicated at the time of the murders. Furthermore, the testimony of Clara Johnson, Charlene Jackson and Melva Humphries at trial that appellant was driving a car in a normal fashion for an extended period of time prior to the assaults in at least two of the incidents belies this defense. Id. (defendant’s ability to drive immediately following crime substantially negates defense of diminished capacity due to intoxication). Because the evidence failed to demonstrate a voluntary intoxication defense, counsel was not ineffective for failing to present it at trial. IX. Prosecutorial Misconduct Next, appellant alleges that the prosecutor engaged in misconduct in his closing argument during the sentencing phase of the trial by informing the jury that it could consider in its decision the deterrent effect of the sentence and society’s right to retribution. Appellant also alleges that counsel was ineffective for withdrawing his objection to the comments in this regard, for failing to request a cautionary instruction or mistrial after the comments were made and for not raising the issue of prosecutorial misconduct in post-trial motions. This Court has long held that prosecutors are permitted to argue for deterrence and retribution during the sentencing phase: Zettlemoyer, supra at 54-55, 454 A.2d at 957-58 (not prosecutorial misconduct to tell jury that they “have to consider what, if any, deterrent effect your decision should have”); Whitney, supra at 243-44, 512 A.2d at 1158-59 (plea for vengeance not improper), citing Commonwealth v. Travaglia, 502 Pa. 474, 502, 467 A.2d 288, 302 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984) (not prosecutorial misconduct to ask the jury to “settle the score”). Because' the prosecutor’s comments were not improper, counsel was not ineffective for failing to object or request a cautionary instruction or mistrial. This issue is meritless. X. Aggravating Circumstances Appellant next argues that there was insufficient evidence to support any of the aggravating circumstances found by the jury in the sentencing phase. The jury found two aggravating circumstances in support of the imposition of the death penalty for the murder of Selina Franklin and two in support of the sentence for the murder of Stephanie McDuffey. This issue was also not raised in post-trial motions and would normally be waived. Pa.R.A.P. 302(a). However, it is our statutory duty to determine whether the sentence of death is supported by at least one aggravating circumstance. 42 Pa.C.S. § 9711(h)(3)(h). Based upon our review of the record, we find that the evidence amply supported the finding of all of the aggravating circumstances. With respect to the death of Selina Franklin, the jury found as the first aggravating circumstance that the murder had been committed in the perpetration of a felony, kidnapping. 42 Pa.C.S. § 9711(d)(6). As discussed above, there was substantial direct and circumstantial evidence that Selina Franklin was murdered in the course of her kidnapping. With respect to the second aggravating circumstance, the jury found that appellant had a significant history of felony convictions involving the use or threat of violence to the person. 42 Pa.C.S. § 9711(d)(9). This finding was based upon sufficient evidence consisting of appellant’s criminal record, which revealed that he had been convicted of attempted rape in 1979; aggravated assault in 1981; burglary in 1984; arson endangering a person in 1990; and the attempted homicide, rape, kidnapping and aggravated assault of Clara Johnson in 1992. This claim clearly fails. With respect to the jury’s finding of two aggravating circumstances in support of the imposition of the death penalty for the murder of Stephanie McDuffey, the jury properly found that at the time of sentencing, appellant had been previously convicted of an offense for which a sentence of life imprisonment or death could be imposed, that is, the murder of Selina Franklin. 42 Pa.C.S. § 9711(d)(ll). As discussed supra, there was sufficient evidence to support his conviction for the first degree murder of Selina Franklin. Second, the jury found that appellant had a significant history of convictions for crimes involving the use or threat of force. 42 Pa.C.S. § 9711(d)(9). As discussed above, he had a substantial and violent criminal history upon which the jury could adequately make this finding. Therefore, there was sufficient evidence to support all of the aggravating circumstances found by the jury. XI. Legality of Sentence Appellant’s final two arguments relate to the sentence itself. First, appellant alleges that the imposition of two consecutive death sentences followed by a term of imprisonment is illegal because of the physical impossibility of serving the sentences as imposed. Appellant ignores this Court’s prior holdings in which it has repeatedly upheld the imposition of consecutive death sentences and a consecutive term of imprisonment. See, e.g., Hughes, supra, at 521 Pa. 423, 555 A.2d 1264 (two consecutive death sentences followed by consecutive term of 10-20 years imprisonment); Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704 (1992) (three consecutive death sentences followed by consecutive term of 17/6-35 years imprisonment). Sentences are not illegal simply because the imposition of the first sentence will render the serving of the subsequent sentences impossible. As long as the sentence is within the statutory limit, it is legal. Commonwealth v. Samuels, 516 Pa. 300, 304, 532 A.2d 404, 406 (1987). Finally, appellant argues that the sentence is unconstitutional under both the Federal and Pennsylvania constitutions because it amounts to cruel and unusual punishment and is disproportionate to the crimes committed. These claims provide no relief. First, the constitutionality of the Pennsylvania death penalty statute has repeatedly been upheld. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990); Zettlemoyer, supra, at 500 Pa. 16, 454 A.2d 937. Thus, this claim is meritless. With respect to appellant’s proportionality claim, pursuant to our statutory obligation under 42 Pa.C.S. § 9711(h)(3)®, we have reviewed the sentence of death and have determined that it is not “the product of passion, prejudice or any other arbitrary factor.” Additionally, pursuant to 42 Pa.C.S. § 9711(h)(3)(iii), we have determined that the sentence of death imposed in this case is not excessive or disproportionate in relation to the penalty imposed in similar cases. Zettlemoyer, supra at 63, 454 A.2d at 961. In making this determination, we have compared the sentence imposed with sentencing data compiled and monitored by the Administrative Office of Pennsylvania Courts. See Commonwealth v. Frey, 504 Pa. 428, 443, 475 A.2d 700, 707-08, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). Appellant’s claim that the sentences of death are excessive or disproportionate is rejected. Accordingly, the judgment of sentence of death is affirmed. CAPPY, J., concurs in the result. MONTEMURO, J., is sitting by designation. . 42 Pa.C.S. § 9711(h)(1). . 18 Pa.C.S. § 2502(a). . 18 Pa.C.S. § 2901(a). . 18 Pa.C.S. § 2502(a). . The aggravating circumstances applied by the jury to the sentence for the murder of Selina Franklin were that appellant had committed a killing while in the perpetration of a felony (the kidnapping of Selina Franklin), 42 Pa.C.S. § 9711(d)(6), and that appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). The aggravating circumstances applied by the jury to the sentence for the murder of Stephanie McDuffey were that appellant had been convicted of another Federal or State offense (the murder of Selina Franklin), committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death could be imposed, 42 Pa.C.S. § 971 l(d)(l 1), and that appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). . The mitigating circumstances, found applicable by the jury to both counts of murder, were that appellant had been the victim of child abuse; had been neglected by his family and society; suffered from psychological trauma caused by neglect; had a low mental intelligence; suffered from mental illness; and had alcohol abuse problems, 42 Pa.C.S. § 9711(e)(8). . Appellant presented no witnesses or evidence at trial. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Appellant was not charged with rape of these two victims. . The friends were Charlene Jackson, Melva Humphries and Wendy Harris. Jackson and Humphries testified at trial that after dropping Harris at her house, appellant made several stops, including a stop at a mini-market for cigarettes, and that they had not seen Franklin after that night. . An electrical insulator is a heavy metal pipe with a large glass or ceramic head. . Stephanie McDuffey, a black woman who was eight and a half months pregnant at the time of her disappearance, was last seen alive on November 6, 1989 at 3:00 p.m. She had been reported missing after she failed to appear for an obstetrics appointment on that date and was not home when her mother returned from work at 11:00 p.m. The police had no clues to her disappearance prior to appellant’s statements admitting to her murder and disposal of her body. . Franklin’s friends first noticed her missing on May 16, 1987, the day after she had gotten a ride with appellant. Franklin’s mother reported her missing two days later and police learned from her friends that Franklin had last been seen alive in appellant’s car. When questioned by police concerning Franklin’s disappearance when she was first reported missing, appellant said he had dropped her off at the corner of Third and Reily Streets in Harrisburg and had not seen her again. Appellant consented to a search of his car at that time, during which police found a necklace which Franklin’s boyfriend identified as belonging to Franklin. However, appellant said it was his wife's. Appellant’s wife did not testify at trial. No charges were brought against appellant at that time. . Furthermore, the testimony regarding appellant’s kidnapping of Clara Johnson established appellant's pattern of taking women who voluntarily got into his car in Harrisburg to remote unlit areas against their will and binding them in some fashion in order to rape and murder them. As discussed infra, appellant’s pattern of behavior constituted a common scheme, which was additional circumstantial evidence in support of appellant’s conviction for kidnapping. Commonwealth v. Buehl, 510 Pa. 363, 387, 508 A.2d 1167, 1179 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988) (evidence of prior crimes crucial circumstantial evidence in establishing murder). . The jury is presumed to follow the court's instructions. Commonwealth v. Tilley, 528 Pa. 125, 142, 595 A.2d 575, 583 (1991). . The Commonwealth presented no evidence at the sentencing hearing, but merely incorporated the trial testimony and read an extract of appellant's record of convictions in order to establish the aggravating circumstances. . Because no objection was made, counsel essentially waived appeal of this evidence. However, since this Court employs a relaxed waiver standard in capital cases, the merits of this waived claim are addressed herein. Zettlemoyer, supra 454 A.2d at 942. . For example, the trial court excluded evidence that at the time of his trial, appellant had confessed to and was charged with: (1) the 1992 rape and attempted murder of Penny Woodward, a black female resident of Harrisburg, at an illegal dumping ground in Perry County; and (2) the 1990 murder of Phoenix Bell, a dark skinned Native American Harrisburg resident, also at an illegal dumping area in Perry County. The' trial court also denied the Commonwealth’s request to introduce photographs of both crime scenes for the purpose of establishing a common scheme because of their prejudicial impact. . On September 28, 1992, appellant confessed to the 1992 rape and attempted murder of Penny Woodward and the 1990 rape and murder of Phoenix Bell. . Appellant was first arrested at the age of ten for arson and had a total of five juvenile arrests, all of which resulted in convictions. Appellant also has twelve prior adult arrests, resulting in ten convictions for charges including arson, aggravated assault, indecent assault, escape and various property offenses. . Appellant also contends that he lacked the mental capacity to voluntarily waive his rights as a result of his low IQ and poor psychological state. However, appellant does not substantiate this claim. This Court has repeatedly held that a totality of the circumstances analysis must be applied to determine if a confession was voluntary. A low I.Q. or mental instability does not per se invalidate a confession. Hughes, supra at 444, 555 A.2d at 1274-5; Commonwealth v. Whitney, 511 Pa. 232, 240-41, 512 A.2d 1152, 1156-57 (1986). Appellant presented no witnesses at the suppression hearing to support his assertion that his waiver was involuntary. In fact, appellant fails to point to a single factor which would indicate that his will was overborne. . A claim of ineffective assistance of counsel must be raised at the first point in the proceedings at which the allegedly ineffective counsel no longer represents the appellant. Commonwealth v. Hubbard, 472 Pa. 259, 276, 372 A.2d 687, 695 (1977). Because present counsel was appointed prior to the conclusion of post-trial motions, trial counsel’s ineffectiveness should have been raised at that point. Because it was not, the issue is waived. Commonwealth v. Carter, 463 Pa. 310, 313, 344 A.2d 846, 848 (1975). However, we will address this issue under the relaxed waiver standard applicable in capital cases. Zettlemoyer, supra at 26, 454 A.2d at 942. . Dr. Schneider was not questioned regarding appellant’s ability to understand his actions or form the specific intent to kill. . The prothonotary of the Supreme Court is directed to transmit the complete record in this case to the Governor. 42 Pa.C.S. § 971 l(i).

OPINION OF THE COURT CASTILLE, Justice. We granted review in this matter to address whether the Department of Public Welfare may be considered a “victim” under 18 Pa.C.S. § 1106 so as to be entitled to restitution for the expenses it incurred in covering the medical expenses of a person who was on public assistance at the time she was injured by appellant. We conclude that a governmental agency of this Commonwealth may not be a victim for the purposes of restitution under the Crimes Code because such agencies are presently excluded from the definition of a “person” under the Statutory Construction Act and thus, may not be considered as a victim. The pertinent facts in. this case are as follows: At approximately 1:30 a.m., on January 12, 1992, Tracy White and her two friends, Pam Amey and Angela Shaffer were sitting at the end of the bar in Smitty’s Tavern in Middletown when they heard a loud argument. Upon noticing that appellant and his girlfriend were involved in the argument, Angela Shaffer told the bar manager that appellant was known to cause trouble wherever he went. After the manager warned appellant to desist, appellant confronted Shaffer and told her that he never liked her and that she was “scum.” Appellant’s boisterous behavior, however, continued and eventually appellant and his friends were asked to leave the bar, with which they complied. Approximately twenty minutes later, Tracey White and her friends left the tavern. As they began to walk down the street they noticed appellant, his girlfriend and three other men approach. The girlfriend confronted Shaffer about telling the manager of the bar that appellant was trouble. Pam Amey stood in between Shaffer and the girlfriend in order to prevent the girlfriend from attacking Shaffer. Tracey White then pushed the girlfriend away from her two friends to which appellant responded by grabbing White by the collar and pushing her up against the outside wall of the bar. Pat Frye, the tavern’s disc jockey, then jumped in between appellant and White, however, after White refused to comply to appellant’s repeated demand that she let go of his shirt, appellant punched her in the right eye. Thereafter, White was rushed to the Hershey Medical Center where she was treated for multiple injuries to the eye. Eventually she needed two operations to repair her eye. Because Tracey White was on welfare at the time of the offense, the medical costs accrued as a result of these injuries were paid in full by the Dauphin County Public Assistance Program, a subagency of the Pennsylvania Department of Public Welfare. Following appellant’s arrest for aggravated assault, a jury trial was held in the Court of Common Pleas of Dauphin County. Appellant was found guilty of simple assault which was graded as a misdemeanor in the third degree because the crime was committed during a scuffle entered into by mutual consent. Appellant was then sentenced to a term of three to twelve months imprisonment, fined $300 and ordered to pay restitution in the amount of $7,261.07 to the Pennsylvania Department of Public Welfare. On appeal, the Superior Court affirmed the judgment of sentence concluding that the agency could be considered a victim but vacated the portion of the judgment ordering restitution finding that the court failed to adequately determine appellant’s ability to pay restitution and remanded for resentencing. It is a well-established principle that the primary purpose of restitution is rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim’s loss or personal injury and that it is his responsibility to repair the loss or injury as far as possible. Commonwealth v. Anderson, 394 Pa.Super. 299, 300, 575 A.2d 639 (1990); Commonwealth v. Balisteri, 329 Pa.Super. 148, 155, 478 A.2d 5, 9 (1984); Commonwealth v. Wood, 300 Pa.Super. 463, 467, 446 A.2d 948, 950 (1982); Commonwealth v. Fuqua, 267 Pa.Super. 504, 508, 407 A.2d 24, 26 (1979). See also Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179, 1185 (1979) (restitution is an aid to both the criminal in pursuing rehabilitation and to the victim in obtaining some measure of redress). The imposition of such restitution is within the sound discretion of the sentencing court which must be supported by the record. Commonwealth v. McLaughlin, 393 Pa.Super. 277, 291, 574 A.2d 610, 617 (1990); appeal denied, 527 Pa. 616, 590 A.2d 756 (1991); cert. denied, 502 U.S. 916, 112 S.Ct. 320, 116 L.Ed.2d 261 (1991). Furthermore, the court must consider the loss or damages resulting from the crime and the amount that the offender can afford to pay. Id. Appellant contends that the award of restitution to the Department of Public Welfare was improper because the Department is not a “victim” in the true sense of the word under 18 Pa.C.S. § 1106 and that therefore, the court cannot order that appellant make payments to a Commonwealth agency for the injuries he caused. We are constrained to agree as we are bound by the clear definitional language the legislature enacted. Section 1106 of the Crimes Code states in relevant part: § 1106. Restitution for injuries to person or property (a) General rule. — Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor. (e) Restitution payments and records. — Restitution, when ordered by a judge, shall be made by the offender to the probation section of the county in which he was convicted according to the order of the court or, when ordered by a district justice, shall be made to the district justice. The probation section and the district justice shall maintain records of the restitution order and its satisfaction and shall forward to the victim the property or payments made pursuant to the restitution order. 18 Pa.C.S. § 1106. A victim is further defined within § 1106 as, “[a]ny person, except an offender, who suffered injuries to his person or property as a direct result of the crime.” 18 Pa.C.S. § 1106(h) (emphasis added). The restitution statute, however, fails to specify or provide any guidance as to whether the General Assembly intended to include governmental agencies of this Commonwealth within the definition of a “victim.” Accordingly, we are compelled to rely on the definition of a “person” as provided for under the Statutory Construction Act, which states: The following words and phrases, when used in any statute finally enacted on or after September 1, 1937, unless the context clearly indicates otherwise, shall have the meanings given to them in this section: “Person.” Includes a corporation, partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person. 1 Pa.C.S. § 1991 (emphasis added). Thus, examining the plain and ordinary meaning of the definition of “person” under the Statutory Construction Act, we must conclude that governmental agencies of this Commonwealth are excluded from the definition of “person” where the legislature has not otherwise spoken. Although an interpretation to the contrary would favor the public policy of rehabilitation of an offender for an offender’s criminal conduct through restitution, such a reading would not be consistent with our rules requiring a strict interpretation of penal provisions and would contravene the canons of statutory construction enacted by the General Assembly which are intended to guide our courts in instances in which statutory interpretation becomes necessary where statutes are not clear on their face. 1 Pa.C.S. § 1901 et seq. For over a decade the courts of this Commonwealth have struggled with the issue of whether parties other than the “direct” victim of the crime are entitled to restitution under 18 Pa.C.S. § 1106. For example, in Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982), the Superior Court vacated an order of the lower court directing the defendant to pay restitution to an insurance company which paid for damages caused by defendant’s arson of his own home. The court vacated the sentencing court’s order reasoning that the insurance company was not a “victim” because payment under the insurance contract was not a loss but merely a contractual obligation. Furthermore, in Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984), the Superior Court vacated an order compelling the defendant to pay restitution to a psychiatric institution for the expenses it incurred for the psychological treatment of two minor victims of sexual harassment arguing that its decision in Galloway stood for the proposition that payment of restitution should be limited to the direct victim and not to third parties who shoulder the financial burden of the victim’s losses. Balisteri, 329 Pa.Super. at 158, 478 A.2d at 10. Cf. Commonwealth v. Anderson, 394 Pa.Super. 299, 300-302, 575 A.2d 639-640 (1990) (individuals who volunteer time and money to the organization “Crime Stoppers” cannot be considered victims). On the other hand, in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986), vacated on other grounds, 517 Pa. 83, 534 A.2d 1050 (1987), the Superior Court considered whether the Pennsylvania Bureau of Drug Control and the Chester County Detectives Office could be considered “victims” within the meaning of the restitution statute where the trial court ordered the offender to make restitution for the money used by an undercover agent to purchase drugs which eventually led to his conviction. In holding that a governmental agency could be a “victim” under § 1106, the Superior Court reasoned that the agencies in question had in fact suffered a loss of real or personal property as a direct result of the crime. Mourar, 349 Pa.Super. at 599, 504 A.2d at 206. In Commonwealth v. Kerr, 298 Pa.Super. 257, 444 A.2d 758 (1982), the Superior Court affirmed an award of restitution to an insurance company that insured the victim’s stolen property. In refuting the offenders contention that he should not be responsible for any loss that was covered by the insurance, the court stated that this argument misconstrued the purpose and intent of the restitution statute which was rehabilitative in nature. Kerr, 298 Pa.Super. at 260, 444 A.2d at 760. Moreover, in making an analogy to the law of torts, the court recognized, “ ‘the judicial refusal to credit to the benefit of the wrongdoer money or services received in reparation of the injury caused which emanate from sources other than the wrongdoer.’” Kerr, 298 Pa.Super. at 261, 444 A.2d at 760, quoting Feeley v. United States, 337 F.2d 924, 926 (3rd Cir.1964) (citations omitted). See Commonwealth v. O’Kicki, 408 Pa.Super. 518, 548, 597 A.2d 152, 167 (1991) (the Commonwealth was entitled to an award of restitution as a “victim” where a judge continued to accept his salary after his suspension); see also, Commonwealth v. Fuqua, 267 Pa.Super. 504, 511, 407 A.2d 24, 28 (1979) (while the Commonwealth was the victim of the crime of driving under the influence, the trial court properly awarded restitution to the person whose property was damaged as a result of the crime). While none of these cases invoked the Statutory Construction Act to define person, we are now compelled to do so. In so doing, and unless or until the legislature enacts language to the contrary, we must find that the Department of Public Welfare, as a Commonwealth entity, is expressly excluded from the definition of a “person”, and as such may not be considered as a victim under 18 Pa.C.S. § 1106. Although we acknowledge that the primary purpose of the restitution statute is rehabilitative in nature, and that the lower court’s decision in the matter below would achieve this goal, we also recognize that it is for the legislature, and not for this Court, to expand the meaning of the term “victim” under 18 Pa.C.S. § 1106 so as to include governmental agencies of this Commonwealth. Accordingly, we reverse the Superior Court, vacate the trial court’s order directing appellant to make restitution to the Department of Public Welfare, and remand this matter to the trial court for proceedings consistent with this opinion. PAPADAKOS, J., did not participate in the decision of this case. MONTEMURO, J., is sitting by designation. . 18 Pa.C.S. § 2701(a)(1). . 18 Pa.C.S. § 2701(b). . Other state courts with similar statutory language have rendered conflicting decisions as to whether third parties, including governmental agencies, may be a victim for the purposes of restitution. In People v. Crow, 6 Cal.4th 952, 864 P.2d 80, 26 Cal.Rptr.2d 1 (1993), the California Supreme Court confronted the issue of whether the Department of Social Services could be considered a “victim” under the California Penal Code where the offender committed welfare fraud. The Court held that although a governmental agency is not a natural person it is nevertheless a victim where the taxpayers who finance the agency suffer a loss. Crow, 6 Cal.4th 952 at 957, 864 P.2d at 83, 26 Cal.Rptr.2d at 3. In support of this conclusion, the court reasoned that the legislative purposes of restitution, namely compensation for the victim and deterrence for further criminality, are furthered "whether or not the victim is an individual.” Crow, 6 Cal.4th at 957, 864 P.2d at 84, 26 Cal.Rptr.2d at 4. The New York Court of Appeals also found that a governmental agency, the Nassau Counly Police Department, was a "victim” where the agency became legally obligated to pay for medical costs and sick pay because of the injuries sustained by an off-duty police officer in attempting to arrest the offender. People v. Cruz, 81 N.Y.2d 996, 998, 615 N.E.2d 1017, 599 N.Y.S.2d 533 (1993). Accord State v. Davison, 116 Wash.2d 917, 921, 809 P.2d 1374, 1376 (1991) (where the City of Seattle paid the wages of a fire fighter who sustained injuries resulting from an assault, the City was a victim within the meaning of the restitution statute); State v. Hopkins, 526 A.2d 945, 949 (Me.1987) (restitution for charge of welfare fraud was proper where the victim was the State and the injury resulting from the offense was the loss of public monies). However, in State v. Newman, 132 N.J. 159, 623 A.2d 1355 (1993), the Supreme Court of New Jersey considered whether restitution may be ordered to reimburse a county prosecutor's office for its expenditure of drug-buy money used in the defendant’s arrest. The Court held that absent specific statutory authority, restitution could not be ordered to reimburse money lost as the result of an undercover drug buy because the restitution statute authorizes the imposition of restitution only when the victim had suffered a loss and that the county prosecutor’s office was not a "victim” as the term has been "historically understood.” Id., 132 N.J. at 176, 623 A.2d at 1364. See People v. Evans, 122 Ill.App.3d 733, 78 Ill.Dec. 50, 461 N.E.2d 634 (1984) (public drug enforcement agency is not a victim where public monies are expended in the pursuit of solving crimes). . The definition of "person” as found in the Statutory Construction Act was amended in 1992, in part, to exclude government entities of the Commonwealth. We also note that the definitions provided for under the Act are applicable to any statute finally enacted on or after September 1, 1937, unless the context of the statute indicates otherwise. See 1 Pa.C.S. § 1991.

ORDER PER CURIAM: AND NOW, this 12th day of September, 1995, there having been filed with this Court by John H. Wollman his verified Statement of Resignation dated August 4,1995, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of John H. Wollman be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

ORDER of SUPERSEDEAS AND NOW, this 4th day of April, 1995, upon consideration of the Motion filed on behalf of the Respondent Attorney, Frank J. Marcone, Esquire it is hereby ORDERED and DECREED a Supersedeas issue and Order of the Pennsylvania Supreme Court entered on March 6, 1995, is Stayed thereby and until further Order of This Court. A Hearing is to be held on this matter on Wednesday, April 5, 1995 at 3:00 p.m., at 1818 Market Street, 37th Floor, Philadelphia, PA, in the chambers of Supreme Court Justice Ronald D. Castille, sitting as Emergency Justice in light of the recusal of Senior Justice Frank J. Montemuro from this matter.

OPINION OF THE COURT FLAHERTY, Justice. Appellant, Mary Finn, was awarded a judgment in the amount of $203,500 against appellee, City of Philadelphia, after appellant was injured when she fell on a grease-covered city sidewalk. The Commonwealth Court reversed the judgment due to governmental immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-8564, holding that the “sidewalk exception,” 42 Pa.C.S. § 8542(b)(7), did not pierce the city’s immunity in this case. We granted allocatur to clarify precedents of this court relating to immunity, and to construe the language of the sidewalk exception to governmental immunity. This case arises from the following background. After dark on the evening of December 24, 1987, appellant was walking on the sidewalk adjacent to city-owned property on Vine Street in Philadelphia, when she slipped on an accumulation of grease. Her fall caused serious injury, and she brought a personal injury action against the city. The city raised the defense of governmental immunity under the tort claims act, moving for summary judgment, which was denied, and the case was tried on stipulated facts. Judgment was entered for appellant in the stipulated amount of $203,500. On appeal, the Commonwealth Court reversed, holding that an accumulation of grease on a sidewalk is not “a dangerous condition of sidewalks,” 42 Pa.C.S. § 8542(b)(7), the statutory requisite to circumventing the city’s governmental immunity and permitting tort liability. The gist of appellant’s argument is that the greasy condition of the sidewalk which caused her injury is embraced within the statutory exception to the governmental immunity created by the Political Subdivision Tort Claims Act; she argues that in the language of the act, the grease constituted a dangerous condition of the sidewalk. It would be erroneous, in this view, to focus on the word “of,” in contradistinction to the word “on”; rather, the emphasis should be on “dangerous condition” and an analysis of what the legislature meant by that term. She relies heavily on Bendas v. Township of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992). Appellee’s argument emphasizes the principle that exceptions to governmental immunity must be strictly construed. The city stresses this court’s holding in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), to the effect that claims involving government property must establish an artificial condition or defect of the property itself, and that an actionable dangerous condition of government property must derive, originate from, or have as its source the property in question and may not arise from a source outside the property. The city argues that because grease does not derive or originate from the sidewalk, it is not a defect of the sidewalk itself; therefore, as a matter of law, grease cannot be considered a dangerous condition of the sidewalk. Hence it does not satisfy the statutory sidewalk exception to the doctrine of governmen tal immunity and the Commonwealth Court was correct in reversing the judgment against the city. It is evident that this case turns on the meaning of the sidewalk exception to the tort claims act. 42 Pa.C.S. § 8542(b)(7) states: (b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: (7) Sidewalks. — A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is hable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily hable only and such other persons shall be primarily hable. To apply this language to this case, we think it helpful to review the precedents which guide our decision. In Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), and Snyder v. Harmon, supra, at 424, 562 A.2d 307, we reviewed the origin of the legislation and the principles governing its interpretation. Mascaro provides the following history: In response to our abrogation of the judicially-created doctrine of governmental immunity in Ayala v. Philadelphia Bd. of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), the legislature enacted the Pohtical Subdivision Tort Claims Act, 42 Pa.C.S. '§§ 8541-8564. The act legislatively raises the shield of governmental immunity against any damages on account of personal injury or property damage caused by any act of a local agency or employee thereof, except as otherwise provided in 42 Pa.C.S. § 8542. Mascaro, 514 Pa. at 355, 523 A.2d at 1123. Snyder provides a strikingly similar history pertaining to sovereign immunity. In Mayle v. Pennsylvania Dep’t of Highways, 479 Pa. 384, 388 A.2d 709 (1978), we abrogated the doctrine of sovereign immunity. In response, the legislature enacted the Sovereign Immunity Act, 42 Pa.C.S. § 8521 el seq. The act reinstated the doctrine of sovereign immunity, limiting the instances in which an individual may sue the Commonwealth to a set of specific situations enumerated in 42 Pa.C.S. § 8522. Snyder, 522 Pa. at 431, 562 A.2d at 310-11. Because the legislature’s intent was to provide immunities, we have held that the exceptions to immunity must be strictly construed. Id. at 433, 434, 562 A.2d at 311, 312; Mascaro, 514 Pa. at 361, 523 A.2d at 1123; Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 506, 645 A.2d 184, 185-86 (1994). Moreover, this court has held that the two statutes dealing with governmental and sovereign immunities, viz., the Political Subdivision Tort Claims Act and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter. Id. at 507, 645 A.2d at 186; Crowell v. City of Philadelphia, 531 Pa. 400, 410 n. 8, 613 A.2d 1178, 1182 n. 8 (1992); Snyder, 522 Pa. at 435 n. 7, 562 A.2d at 312 n. 7. Within those very general guidelines, this court has decided cases involving the real estate and sidewalk exceptions which provide more specific guidance for the question presented in this case, that is, whether an accumulation of grease on a sidewalk is a dangerous condition of the sidewalk. In Snyder v. Harmon, supra, at 424, 562 A.2d 307, we construed the words “[a] dangerous condition of Commonwealth agency real estate” as follows: “These key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty.” Snyder, 522 Pa. at 433, 562 A.2d at 311. “[Tjhere must be negligence which makes the real property itself unsafe for activities for which it is used.” Id. at 434, 562 A.2d at 312. Mascaro, supra, at 351, 523 A.2d 1118, reiterated this rule: ‘We ... hold that the real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.” 514 Pa. at 363, 523 A.2d at 1124 (emphasis in original). And again, “We have consistently maintained our view that the focus of the negligent act involving a use of government owned or controlled land (including streets and sidewalks) must be the actual defect of the land itself and that the rule of immunity can be waived only in those cases where it is alleged that the artificial condition or defect of the land itself causes the injury.” Kiley by Kiley, supra, 537 Pa. at 508, 645 A.2d at 187. This interpretation is supported by the context of the “dangerous condition of sidewalks” requirement. The next sentence in the statute sheds light on what the legislature meant by “dangerous condition of sidewalks.” In distinguishing situations creating either primary or secondary liability of a governmental agency, the negligence of the agency relates to “installation and repair of sidewalks.” Installation and repair refer to the physical condition of the sidewalks themselves; by contrast, objects and substances upon sidewalks are not part of the physical condition of the sidewalks themselves. The language used in this section of the statute thus affords no basis to assert that foreign matter on sidewalks might result in governmental liability. This much-litigated legislation has spawned other opinions which are less closely related to the present case but have nevertheless been cited. Appellant argues that Bendas v. Township of White Deer, supra, at 531 Pa. 180, 611 A.2d 1184, would permit the city to be held liable in tort. Moreover, the Commonwealth Court noted apparent inconsistency between Bendas and Mascaro, supra, at 514 Pa. 351, 523 A.2d 1118 and Snyder, supra, at 522 Pa. 424, 562 A.2d 307. We therefore review those decisions to clarify their holdings and their application to this case. In Bendas, the court considered two issues: the first was “whether the Department [of Transportation] has a duty to make its highways safe for their intended purpose;” the second was “whether the failure of the Department to exercise that duty is actionable under an exception to the Sovereign Immunity Act.” 531 Pa. at 183, 611 A.2d at 1186. We cited Snyder, supra, in deciding that the Commonwealth agency had a clear duty to make its property safe for the activities for which it is regularly used. Id. The court found the second question more difficult, since a Commonwealth agency might breach a duty “yet not be liable unless the breach is coincidental with an exception to the Act.” Id. The exception applicable in Bendas was that of 42 Pa.C.S. § 8522(b)(4) which permits liability for a “dangerous condition of ... real estate and sidewalks ... and highways.... ” We held that when the Commonwealth agency or subdivision has a legal duty, the question of what is a dangerous condition is one of fact which must be answered by the jury, noting that a court is not precluded from entering judgment for the Commonwealth agency or subdivision when the facts establish as a matter of law that a dangerous condition did not exist. Id. at 185 n. 6, 611 A.2d at 1187 n. 6. Mascaro involved a detainee at the defendant youth detention center who had a history of violent criminal assaults, then escaped and terrorized the Mascaro family, with tragic results. The Mascaros sued the political subdivision under the real estate exception to the governmental immunity act, 42 Pa.C.S. § 8542(b)(3), alleging negligent maintenance of the detention center which permitted the detainee to escape. The court held that the real estate exception “can be applied only to those cases where it is alleged that the artificial defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.” 514 Pa. at 363, 523 A.2d at 1124. Thus, Mascaro is an example of a situation in which the political subdivision was not liable as a matter of law because the dangerous condition of the real estate itself did not cause the injury. Snyder was a case in which travellers’ falls from the berm of a Commonwealth highway into a mine resulted in injuries and death, allegedly due to the Commonwealth agency’s negligent failure to maintain a safe roadway and to provide ade quate notice of a dangerous condition; the plaintiffs relied on the real estate exception to the Sovereign Immunity Act, 42 Pa.C.S. § 8522(b)(4). The court held that the statutory language unambiguously required that “a dangerous condition must derive, originate from or have as its source the Commonwealth realty,” 522 Pa. at 433, 562 A.2d at 311; that “there must be negligence which makes the real property itself unsafe for activities for which it is used,” id. at 434, 562 A.2d at 312; and that the real estate exception to the rule of immunity applies only when “it is alleged that the artificial condition or defect of the land itself causes an injury to occur,” id. at 434-35, 562 A.2d at 312. In Ambacher v. Penrose, 92 Pa.Cmwlth. 401, 403-04, 499 A.2d 716, 717 (1985), and Ziccardi v. School District of Philadelphia, 91 Pa.Cmwlth. 595, 599, 498 A.2d 452, 454 (1985), the Commonwealth Court correctly applied this rule in determining that neither a wire fence which fell on a sidewalk nor a criminal assault on a city sidewalk was a dangerous condition “of the sidewalk.” Recent decisions of the Commonwealth Court indicate that that tribunal now consistently applies the rule in this way. In DeLuca v. School District of Philadelphia, 654 A.2d 29 (Pa.Cmwlth.1994), the court reviewed the claim of a student injured in a fall on a school sidewalk. The fall was caused by milk which had seeped from a trash bag placed next to the sidewalk by school employees and then frozen. The court held: “Because milk that has leaked onto a concrete pavement does not constitute a defect of the pavement itself, ... the School District was not liable under [42 Pa.C.S. §] 8542(b)(3) for the DeLucas’ injuries.” Id. at -, 654 A.2d at 31. In Shedrick v. William Penn School District, 654 A.2d 163 (Pa.Cmwlth.1995), the court reviewed a similar claim by a person injured when she fell in a high school where rainwater tracked indoors had caused the terrazzo floors to become slippery. She fell on a portion of the building’s floor not covered by mats although the custodian had mopped and laid mats in an attempt to keep the floors dry. The Commonwealth Court affirmed the trial court because the “rainwater on the floor of the high school neither derived nor originated from the School District’s real property, and no evidence was offered to establish that the floor itself was defective.” Id. at -, 654 A.2d at 165. The common theme of all these cases is that liability depends, first, on the legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source, and, only then, the factual determination that the condition was dangerous. What is necessary, therefore, to pierce the Commonwealth agency’s immunity is proof of a defect of the sidewalk itself. Such proof might include an improperly designed sidewalk, an improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk. Here, however, we have no such allegation or proof. We have a perfectly designed and constructed sidewalk, undamaged, upon which an unidentified individual or individuals deposited a foreign substance which caused appellant’s injury. In the terms of Snyder, supra, at 522 Pa. 424, 562 A.2d 307, the dangerous condition did not derive, originate from or have as its source the sidewalk. In the language of the statutory exception to governmental immunity, the dangerous condition was on the sidewalk, not of the sidewalk, and thus is insufficient to create liability in the city. We hold, therefore, that the Commonwealth Court correctly interpreted and applied the statute of governmental immunity, and thus affirm the judgment of the court. Judgment affirmed. ZAPPALA and CAPPY, JJ., file a dissenting opinion. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: Appeal dismissed as having been improvidently granted. CASTILLE, J., dissents and would reach the merits of the case. MONTEMURO, J., is sitting by designation.

OPINION NIX, Chief Justice. The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (“the Department”), appeals from the Order of the Commonwealth Court which affirmed the Order of the court of common pleas sustaining the appeal of Appellee, Mark Sutton, from a one year suspension of his operating privilege imposed by the Department for refusing to submit to chemical testing. We granted allocatur to address whether the notice of suspension issued to Appellee as a result of his refusal to submit to a blood test was sufficient to apprise him of the conduct underlying the suspension so as to allow him to prepare a defense. For the reasons that follow, we reverse and remand to the Commonwealth Court. The undisputed facts as found by the trial court are: At approximately 10:00 p.m. on February 3,1993, Trooper Michael Green[e] of the Pennsylvania State Police observed a vehicle operated by [Appellee] making a turn onto State Route 970. The vehicle did not have its headlights on although the four-way flashers were working. The Trooper proceeded to the vehicle to determine if assistance was needed. [Appellee] was apparently having vehicle problems and the Trooper permitted him to attempt to restart the vehicle as many as three times. The attempts were unsuccessful and Trooper Green[e] then agreed to transport [Appellee] to the police station so that he, [Appellee], could call a tow truck. At the scene and prior to permitting [Appellee] to restart the truck, the Trooper testified that [Appellee]’s eyes seemed blood shot and glazed and his complexion was flushed. On the drive to the police station, the Trooper noted an odor of alcohol about [Appellee] and at that time requested that he submit to field sobriety tests. [Appellee] did so, failed them and was taken to submit to a test of his blood, which he refused. Dep’t. of Transp., Bureau of Driver Licensing v. Sutton, No. 93-460-CD, slip op. at 1 (C.P. Clearfield County filed Aug. 27, 1993). Subsequently, Appellee received a notice of suspension from the Department which read: As a result of your violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL on 2KH/199S, your driving privilege is being SUSPENDED for a period of 1 YEAR(S). (Notice of Driver’s License Suspension, R.R. at 5a) (emphasis added). Appellee appealed the license suspension to the court of common pleas. He contended that he did not refuse to submit to chemical testing on February 4, 1993. He also argued that there were no reasonable grounds to require him to submit to chemical testing. At trial, the Department’s only witness was Trooper Greene who had arrested Appellee. The trooper testified that Appellee refused to consent to a blood test on February 4, 1993, which was the date alleged in the notice of driver’s license suspension. (R.R. 11a, 23a, 33a). On cross-examination, however, he testified that the refusal actually occurred on February 3, 1993. (R.R. 29a). Thus, Appellee moved to have the suspension dismissed because the Department failed to establish a refusal to submit to chemical testing on February 4, 1993, as alleged in the notice of driver’s license suspension. Counsel for the Department conceded that the date on the driver’s license suspension was in error but argued that the error was diminutive and immaterial. (R.R. 36a-37a). The trial court sustained Appellee’s appeal and dismissed the Department’s suspension of driver’s license. Finding that the Department neither sought to amend the notice of suspension nor offered testimony that the notice was in error, the trial court held that the Department is bound by its own documents and must prove a refusal on February 4, 1993. Dep’t. of Transp., Bureau of Driver Licensing v. Sutton, No. 93-469-CD, slip op. at 5 (C.P. Clearfield County filed Aug. 27, 1993). The trial court additionally found that there were no reasonable grounds to require Appellee to submit to chemical testing. Id. at 4-5. The Commonwealth Court affirmed. Sutton v. Dep’t. of Transp., Bureau of Driver Licensing, 163 Pa.Commw. 302, 641 A.2d 34 (1994). The Commonwealth Court determined that a notice of suspension serves the function of a pleading in a license suspension proceeding and places at issue the date the alleged refusal occurred. Id. at 306, 641 A.2d at 36-37 (citing Dep’t. of Transp., Bureau of Driver Licensing v. Balloch, 142 Pa.Commw. 637, 598 A.2d 110 (1991)). It found that a discrepancy in the date of refusal alleged on a notice of suspension is material. Id., 641 A.2d at 37. Additionally, “[t]he date alleged ... is the only way in which [the Department] identifies the refusal for which it is attempting to revoke a driver’s license and it is the only notice which informs the licensee of what he must defend against.” Id. (citation omitted). Thus, the Commonwealth Court held that because the Department failed to prove that Appellee refused to submit to chemical testing on February 4, 1993, as alleged in the notice of suspension, the trial court did not err in sustaining Appellee’s appeal. Id. at 307, 641 A.2d at 37. The Department appealed to this Court, and we granted allocatur. The issue presented is whether the notice of suspension, which listed February 4, 1993, as the date of refusal, issued to Appellee as a result of his refusal to submit to a blood test on February 3, 1993, was sufficient to apprise him of the conduct underlying the suspension so as to allow him to prepare a defense. We find that Appellee was afforded sufficient notice and that the defect was immaterial. Therefore, we reverse and remand to the Commonwealth Court. The Department argues that a notice of suspension is an administrative order and not a pleading which places matters at issue in a statutory appeal. Additionally, the Department submits that due process is afforded licensees in administrative proceedings when the licensee is informed with reasonable certainty of the charges against him so that the licensee may prepare an adequate defense. In this case, the Department states that the Appellee knew exactly what refusal was the basis for the notice of suspension, and thus, his due process rights were not violated. Appellee responds that due process is not an issue and that the Department did not prove that Appellee had been involved in any refusal on February 4, 1993. Appellee argues that the Commonwealth Court, relying on Dep’t. of Tramp., Bureau of Driver Licensing v. Balloch, 142 Pa.Commw. 637, 598 A.2d 110 (1991), correctly found that the notice of suspension is the equivalent of a pleading, and therefore, places the identified incident in issue. We disagree. The Commonwealth Court clearly misinterpreted Balloch when it found that Balloch stood for the proposition that “a notice of suspension serves the function of a pleading in a license suspension proceeding.” Sutton v. Dep’t. of Transportation, Bureau of Driver Licensing, 163 Pa.Commw. at 306, 641 A.2d at 36. Rather, Balloch requires that in administrative proceedings due process be afforded so that the accused may prepare an adequate defense. Balloch at 641, 598 A.2d at 112. In Balloch, the notice of suspension incorrectly listed the day and year of the underlying chemical test refusal. The licensee had three chemical test refusals during a thirteen-month period. The licensee argued that because he had been charged with driving under the influence of alcohol on three different occasions, he was without notice as to which date the department sought to prove that he had refused chemical testing. The Commonwealth Court reasoned that the licensee’s due process rights were violated because the information on the notice of suspension did not adequately inform the licensee which one of the three chemical test refusals was being used as the basis for the one-year suspension. Id. at 641, 598 A.2d at 112. Thus, the Department’s notice of suspension was insufficient because the notice, which listed an incorrect date of the underlying refusal, was misleading and prevented the licensee from the proper preparation of a defense. Id. In this case, however, the Department’s notice of suspension was sufficient. “Due process is afforded in administrative proceedings when the accused is informed with reasonable certainty of the substance of the charges against him so that he may adequately prepare a defense.” Id. (citing Commonwealth of Pennsylvania, Dep’t. of Transp. v. Tutt, 133 Pa.Commw. 537, 576 A.2d 1186 (1990)). Instantly, Appellee was not mislead or prevented from proper preparation of a defense. Appellee knew which refusal was the basis of the Department’s notice of suspension. Appellee only brought up one drunken driving arrest at his statutory appeal hearing, and he did not claim that the February 4, 1993, date on the suspension notice rendered it difficult for him to prepare a defense. The test refusal occurred at 11:39 p.m. on February 3,1993, and Appellee’s drunken driving arrest processing went from the late evening hours of February 3, 1993, until the early morning hours of February 4, 1993. Unlike Bollock, Appellee was well aware and prepared to defend against the test refusal on which the suspension was based. Thus, Appellee’s due process rights were not violated where the information on the notice of suspension adequately informed him of the chemical test refusal which was the basis for the suspension. Appellee submits that due process is not in issue in this case. He argues that the only question to be resolved is whether the Department proved that Appellee refused a chemical test on February 4, 1993, not February 3, 1993. In this case, however, once due process was afforded, the de novo statutory appeal hearing in the court of common pleas cured the technical defect in the Department’s notice of suspension. Commonwealth v. Walkinshaw, 373 Pa. 419, 96 A.2d 384 (1953) (Appellant’s charges of irregularity in the administrative proceeding leading to the issuance of the suspension of his operating privilege were cured by the fact that the court of common pleas heard the matter de novo); Davidson v. Dep’t. of Transp., Bureau of Traffic Safety, 109 Pa.Commw. 188, 530 A.2d 1021 (1987) (erroneous listing of date of conviction on licensee’s notice of suspension was immaterial). Although the notice of suspension incorrectly stated that the refusal occurred on February 4,1993, rather than February 3, 1993, the error was immaterial. At the de novo statutory appeal hearing, the attorney for the Department admitted that the refusal occurred on February 3, 1993, not February 4, 1993. (R.R. 36a). Appellee knew that the February 3, 1993, test refusal was the basis of the suspension. Additionally, the judge in the court of common pleas found that the Department proved a refusal on February 3, 1993. Dep’t. of Transp., Bureau of Driver Licensing v. Sutton, No. 93-460-CD, slip op. at 5 (C.P. Clearfield County filed Aug. 27, 1993). Inasmuch as there is no dispute that Appellee was afforded due process and refused to submit to a blood test on February 3, 1993, the erroneous listing of the date of the refusal on the notice of suspension is immaterial. See Davidson v. Dep’t. of Transp., Bureau of Traffic Safety, 109 Pa.Commw. 188, 530 A.2d 1021 (1987). Thus, the Commonwealth Court erred in affirming the trial court’s decision to dismiss the Department’s suspension of operator’s license based on the defective notice of suspension. The second issue raised by the Department is whether Trooper Greene had reasonable grounds to believe that Appellee had been operating a motor vehicle while under the influence of alcohol so as to have the authority to request that Appellee submit to a blood test under the implied consent law. Because the Commonwealth Court held that the Department failed to prove that Appellee refused to submit to chemical testing on February 4, 1993, as alleged on the notice of suspension, it found that review of the second issue was unwarranted. Sutton v. Dep’t. of Transp., Bureau of Driver Licensing, 163 Pa.Commw. at 306, 641 A.2d at 36. Thus, we must remand this matter to the Commonwealth Court to resolve this issue. Accordingly, the Order of the Commonwealth Court is reversed and the matter is remanded to the Commonwealth Court for proceedings consistent with this opinion. MONTEMURO, J., is sitting by designation. . Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1), provides: (b) Suspension for refusal.— (1) If any person placed under arrest for a violation of [75 Pa.C.S. § 3731] (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months. . The Department issued a notice of suspension which informed Balloch that it was suspending his operating privilege for one year as a result of his May 18, 1989, refusal to submit to chemical testing. At the hearing before the trial court, the Department’s evidence established that Balloch had refused chemical testing on May 19, 1990, a year and a day after the date set forth in the notice of suspension. 142 Pa. Commw. at 638, 598 A.2d at 111. . In paragraphs four and five of Appellee’s statutory appeal petition, Appellee framed the following issues before the court of common pleas: 4. That the said suspension is improper for the following reasons: There was absolutely no refusal of any test on 2/4/93. The Officer did not have probable cause to believe Licensee was operating a vehicle while intoxicated. The licensee did not “Refuse To Submit To Any Test,” on 2/3/93. 5. That the said suspension is illegal for the following reasons: There was absolutely no refusal on 2/4/93; however on 2/3/93 th [sic] licensee pleaded to take a Breathalyzer or Urine Test however, he was told he could only have a Blood test. He has a phobia of needles & Aids. He tried to write on the refusal he would take any test but a blood test. He was ordered not to write this. The Criminal Complaint is incorrect in 2.A. where it states, “REFUSED TO SUBMIT TO ANY TEST.” (R.R. 3a) (emphasis added). Clearly, Appellee knew the February 3, 1993, refusal was the basis of the Department’s notice of suspension. . See footnote 3, supra.

ORDER PER CURIAM: AND NOW, this 31st day of August, 1995, upon consideration of the Report and Recommendations of the Disciplinary Board dated July 27, 1995, it is hereby ORDERED that MATTHEW E. JACKSON, JR., be and he is SUSPENDED from the Bar of this Commonwealth for a period of One (1) year and One (1) day and he shall comply with all the provisions of Rule 217 Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: AND NOW, this 31st day of May, 1995, upon consideration of the record, it is hereby ORDERED that respondent be and he is suspended from the Bar of this Commonwealth for a period of three (3) months and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: AND NOW, this 31st day of August, 1995, upon consideration of the Report and Recommendations of the Disciplinary Board dated July 25, 1995, it is hereby ORDERED that ROBERT G. WEISGERBER, be and he is SUSPENDED from the Bar of this Commonwealth for a period of Three (3) years, retroactive to September 27, 1993, and he shall comply with all the provisions of Rule 217 Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

OPINION OF THE COURT CAPPY, Justice. The question before this Court is whether the Superior Court erred in determining that the Commonwealth presented sufficient evidence to support Appellant’s conviction of driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(4) (operation of a motor vehicle while the amount of alcohol by weight in the blood of the person is 0.10% or greater). Upon review of the record we conclude that the evidence was insufficient to establish that Appellant possessed a blood alcohol level of .10% or greater at the time he operated a motor vehicle. Therefore, we reverse the decision of the Superior Court. In reviewing a challenge to the sufficiency of the evidence we must determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as verdict winner, the jury could have found that each element of the charged offense was proved beyond a reasonable doubt. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). On September 28, 1990 a police officer was engaged in an unrelated traffic stop when a portion of Appellant’s motor vehicle struck the police officer as Appellant passed the police officer. The police officer radioed for assistance, commenced pursuit, and subsequently stopped Appellant. At this time Appellant’s speech was slurred, his eyes were bloodshot and watery, and he emitted an odor of alcohol. Appellant refused field sobriety tests and demanded a blood test. He was immediately arrested. A blood alcohol content (“BAC”) test performed at a local hospital approximately two hours later provided a BAC of .141%. Appellant was subsequently charged with reckless driving, disorderly conduct, and two counts of driving under the influence of alcohol. The charge of disorderly conduct and one count of driving under the influence of alcohol (75 Pa.C.S. § 3731(a)(1)) were subsequently dismissed at Appellant’s preliminary hearing. A jury trial commenced on November 13, 1991, and Appellant was found guilty of driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(4). On appeal to the Superior Court, Appellant argued that the evidence presented was insufficient to support his conviction because it failed to establish that he had operated his vehicle while possessing a BAC of .10% or greater in accordance with this Court’s decisions in Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992). In Jarman and Modaffare, this Court reversed the judgments of sentence arising out of drunk driving convictions pursuant to 75 Pa.C.S. § 3731(a)(4), because the BAC evidence introduced by the Commonwealth did not sufficiently establish that the BAC of the defendants exceeded permissible limits at the time the defendants were driving. We reached this conclusion because the offense defined by Section 3731(a)(4) is to drive a vehicle while one’s blood alcohol content is .10% or greater, and delay in BAC testing in those cases could have reflected BAC results that were significantly higher than those possessed while the defendants were operating their motor vehicles. In other words, the defendants’ BAC could have been below the .10% threshold at the time they were stopped and could have simply risen above the .10% threshold as a result of alcohol being absorbed into the defendants’ blood during the delay prior to BAC testing. Based upon the lapse of time between driving and BAC testing; the BAC test results that narrowly exceeded the .10% threshold; a ten percent margin of error associated with BAC testing; and the expert testimony provided by the Commonwealth that the BAC of the defendants could have been below .10% while they were driving, we concluded that the jury was permitted to engage in unbridled speculation as to whether the BAC of the defendants were at or above .10% at the critical time of operation. The majority thereafter went on to recognize a strong inference that an accused’s BAC would be in the prohibited range while driving where he possesses a BAC significantly above .10% and where BAC testing oc curred soon after driving terminates. However, it did not specifically define what blood alcohol level is significantly above .10% or a temporal cut off for the lapse of time between driving and BAC testing. In the matter sub judice, the Superior Court correctly interpreted our decisions in Jarman and Modaffare through its reliance on Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992), allocatur denied, 531 Pa. 660, 613 A.2d 1209 (1992), which provides: In our view, and in accordance with the dual standards set by our supreme court in Jarman and Modaffare, the stronger the inference of guilt, the less significant is the necessity for evidence of relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused’s BAC test result to the time of driving. Id. at 128, 606 A.2d at 531. Based upon application of these factors, the Superior Court herein concluded that the trial court had erred in failing to properly apply Jarman and Modaffare, and that Appellant’s BAC test results of .141% obtained after a two hour delay did not give rise to a sufficiently strong inference that Appellant possessed a BAC of .10% at the time he drove. We agree with the Superior Court that because Appellant’s BAC did not represent a substantial departure from the permissible limit, and his BAC may have been below .10% at the time he was stopped and risen above this limit during the substantial delay prior to testing, the inference of guilt was too weak to support Appellant’s conviction in the absence of evidence relating his BAC test results back to the time of driving. Nevertheless, the Superior Court then went on to determine that there existed additional evidence from which the jury could infer that Appellant’s BAC was in excess of .10% at the time when he was stopped, and that Appellant’s BAC did not rise between the time he was stopped and the time the BAC test was performed. In other words, the Superior Court determined that other evidence existed which would fulfill the “relation back” requirements of Jarman and Modaffare. This evidence consisted of the testimony of two police officers during the Commonwealth’s case in chief that upon being stopped Appellant slurred his speech, which served as the basis for an opinion of Appellant’s own expert on cross-examination that most people do not begin to exhibit visible signs of intoxication until they achieve a BAC of approximately .15%. On this basis, the Superior Court determined that the jury’s finding that Appellant possessed a BAC of .10% or greater while operating his motor vehicle was not based solely on “unbridled speculation” as in Jarman and Modaffare. Before us, Appellant contends that the Superior Court erred in determining that the existence of this additional evidence sufficiently related Appellant’s BAC test results back to the time when he was driving, because such evidence was irrelevant, and thus, could not serve to remedy BAC test results that were found to be insufficient under Jarman and Modaffare. We agree. The offense of driving under the influence of alcohol or controlled substance is set forth at 75 Pa.C.S. § 3731. Based upon this provision, in charging Appellant with the unlawful operation of a motor vehicle while under the influence of alcohol, the Commonwealth was authorized by the Legislature to proceed on either or both of two theories. It could allege that Appellant was under the influence of alcohol to a degree which rendered him incapable of safe driving pursuant to subsection (a)(1). It also could allege that the amount of alcohol by weight in Appellant’s blood was .10% or greater pursuant to subsection (a)(4). In fact, Appellant was initially charged with violating both of these provisions. However, at Appellant’s preliminary hearing the charge alleging a violation of subsection (a)(1) was dismissed. Therefore, the Commonwealth proceeded to trial only on the charge alleging a violation of subsection (a)(4), which limited the inquiry to whether Appellant operated a motor vehicle while the amount of alcohol by weight in his blood was .10% or greater. 75 Pa.C.S. § 3731(a)(4). Appellant contends that the manner in which the Commonwealth may prove a violation of subsection (a)(4) is limited by the nature of the inquiry to scientific BAC testing evidence, since it is the only manner in which a BAC of .10% or greater may be established. Thus, if scientific BAC testing is the only evidence that may used to support a conviction pursuant to subsection (a)(4), then where such evidence is insufficient, a conviction pursuant to subsection (a)(4) cannot be upheld based upon additional evidence that an accused manifested symptoms of intoxication. In support of this proposition Appellant cites to the decision of the Superior Court in Commonwealth v. Kemble, 413 Pa.Super. 521, 605 A.2d 1240 (1992), allocatur denied, 532 Pa. 651, 615 A.2d 340 (1992). In Kemble the question presented was whether the trial court erred in admitting, and/or in instructing the jury with regard to, evidence provided by a police officer in the Commonwealth’s case in chief concerning the defendant’s impaired physical condition. Specifically, a police officer testified that he observed the defendant make an extremely wide turn, nearly proceed down a one-way street, and veer directly in front of his patrol car. The officer then testified that the defendant had difficulty determining which document was her registration card, staggered when she exited her automobile, possessed an odor of alcohol, leaned against a building and failed two sobriety tests. Finally, the officer testified that subsequent to an intoxilyzer test the defendant vacillated between an “emotional” mood and a “combative” mood, and was uncooperative. On appeal from the defendant’s conviction, the Superior Court determined that the trial court abused its discretion in admitting this “impairment” evidence, and awarded the defendant a new trial. The Superior Court concluded that such evidence was irrelevant to the inquiry involved under subsection (a)(4), and that such evidence could have been particularly prejudicial to the defendant, since the defendant had disputed the validity of the BAC test results by claiming that she drank water immediately prior to performing the BAC test. In addressing the question of the relevancy of the “impairment” evidence, the Superior Court stated: Therefore, any evidence that is relevant to prove impairment is admissible in a § 3731(a)(1) prosecution. However, a § 3731(a)(4) charge, when unaccompanied by a § 3731(a)(1) charge, involves a narrowly focused inquiry that is solely concerned with a determination of whether a defendant had a .10% or greater blood alcohol level at the time that she drove her automobile. During such an inquiry impairment evidence is not relevant since it does not logically or reasonably tend to prove or disprove that a defendant’s blood alcohol level was .10% or greater at the time that she drove her automobile, it does not tend to make such a fact more or less probable and it does not afford a basis for or support a reasonable inference or presumption regarding whether a defendant’s blood alcohol level was .10% or greater. As mentioned, supra, the admission of the impairment evidence could have been particularly prejudicial to appellant since the validity of the results of her intoxilyzer test were disputed at trial. Since the impairment evidence was not relevant the trial court abused its discretion in admitting said evidence. Hence, we remand this case for a new trial. Id. at 526, 605 A.2d at 1242. (citations omitted). We agree with the decision in Kemble, and find no basis upon which to conclude that evidence beyond that provided by scientific testing may in any manner satisfy the inquiry raised by a charge pursuant to subsection (a)(4) where the Commonwealth is not also advancing a charge pursuant to subsection (a)(1). Because such evidence is not scientific evidence, it cannot make it more probable that an accused possessed a BAC of .10% or greater at the time he operated his motor vehicle where BAC test results are alone insufficient. Rather, it can serve only to prejudice an accused’s right to have the prosecution satisfy its burden of proving that he possessed a blood alcohol content of .10% or greater at the time he operated a motor vehicle. Quite simply, given the framework of Section 3731, evidence beyond that provided by scientific BAC testing is not relevant to a determination of whether an accused violated subsection (a)(4). To hold otherwise would eliminate the distinction between subsection (a)(4) and subsection (a)(1), which by virtue of the enactment of subsection (a)(4) the Legislature clearly could not have intended. Subsection (a)(1) is a general provision and provides no specific restraint upon the Common wealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving. However, in 1982, when the Legislature amended Section 3731 by adding subsection (a)(4), it defined one form of evidence, BAC test results of .10% or greater, which would conclusively establish an element of the offense of driving under the influence of alcohol. That is, an accused is under the influence of alcohol to a degree that renders him incapable of safe driving as a matter of law if his BAC is .10% or greater. This definition, by its very nature and existence requires that the Commonwealth satisfy its burden solely through competent BAC test results in order to support a conviction pursuant to subsection (a)(4). In the absence of such evidence, the prosecution, by necessity, becomes one pursuant to subsection (a)(1). If it does not, subsection (a)(4) would be rendered meaningless in violation of the well established principle of statutory construction that every statute shall be construed, if possible, to give effect to all its provisions. 1 Pa.C.S. § 1921(a). Accordingly, we hold that where, as in the matter sub judice, an accused is not defending a charge of violating subsection (a)(1) evidence beyond scientific BAC testing is not only irrelevant, but prejudicial. Appellant’s BAC test results alone were insufficient to establish a violation of subsection (a)(4), and no abundance of impairment evidence could have remedied this shortcoming. Rather, such could serve only to have prejudiced Appellant by swaying a jury, already forced into speculation by the insufficiency of the BAC test results, to find that Appellant possessed a BAC of .10% or greater at the time he operated a motor vehicle in violation of subsection (a)(4). The decision of the Superior Court is reversed, and the judgment of sentence imposed by the Court of Common Pleas of Berks County, Criminal Division, is vacated. PAPADAKOS, J., did not participate in the decision of this case. ZAPPALA, J., concurs in the result. CASTILLE, J., files a dissenting opinion. MONTEMURO, J., is sitting by designation. . 75 Pa.C.S. § 3714. . 18 Pa.C.S. § 5503(a)(4). . 75 Pa.C.S. §§ 3731(a)(1), 3731(a)(4). . In Jarman, BAC testing performed approximately one hour after the defendant was stopped revealed a BAC of .104%. In addition, the defendant testified that he consumed 4 to 5 beers over a two hour period immediately prior to driving, and the Commonwealth’s expert testified that the defendant’s BAC would peak approximately 60 to 90 minutes after defendant ceased drinking. In Modaffare, BAC testing performed approximately one hour and fifty minutes after the defendant was stopped revealed a BAC of .108%. In addition, Modaffare did not testify at his trial and the Commonwealth’s expert testified that generally BAC peaks roughly one hour after drinking ceases. . Specifically, in an effort to rebut the Commonwealth’s case in chief, Appellant testified as to his physical size and consumption of alcohol and food on the evening in question. In addition, he introduced the testimony of an expeit pharmacologist/toxicologist that it was highly probable that Appellant’s BAC was below .10% at the relevant time. However, on cross-examination the Commonwealth was able to solicit an opinion from Appellant’s expert that most people do not slur their speech or begin to exhibit visible signs of intoxication until they achieve a BAC of approximately .15%. This opinion followed a detailed inquiry concerning the expert’s comprehensive experience with BAC testing and the results of that experience in light of the various factors that govern when, and at what point, a person's BAC will peak. Thereafter, the following exchange occurred: Q Now, if someone has a blood alcohol level of .10, do you — in your experience, have you noted whether or not those people have slurred speech as a result of that level in their blood system? A Probably not slurred speech. Q And why would that be? A Because most people don't generally begin to demonstrate visible signs of intoxication until they achieve a BAC of approximately .15%. Now, that varies somewhat with an individual’s experience to — or with their familiarity with the consumption of the beverage. In other words, a naive drinker would probably start slurring speech at a lower level than, say, would an alcoholic. N.T. pp. 102-103. . At the time of Appellant’s conviction 75 Pa.C.S. § 3731 in relevant part provided: § 3731. Driving under influence of alcohol or controlled substance (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle: (1) while under the influence of alcohol which renders the person incapable of safe driving; (2) while under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving; (3) while under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or (4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater____ . In reaching this decision we note that the evidence of Appellant’s impairment would be relevant and admissible for the limited purpose of impeaching the opinion provided by Appellant's expert. However, such evidence cannot be utilized by the Commonwealth to establish its prima facie case. In addition, recently in Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994), we modified Jarman and Modaffare and held that the Commonwealth is not required to present expert evidence of “relation back” in order to establish a prima facie case. Now, once an accused presents expert testimony in order to rebut the prima facie evidence, then the Commonwealth may either present its own expert in order to refute this testimony or cross-examine the expert for the accused in an attempt to discredit his expert opinion. In addition, in response to our decisions in Jarman and Modaffare, the Legislature amended 75 Pa.C.S. § 3731 by adding subsection (a)(5), which eliminates the potential need for the Commonwealth to relate BAC test results to the time of operation of a motor vehicle if BAC testing is performed within three hours after the accused drove, operated or was in actual physical control of a motor vehicle. Thus, pursuant to Yarger and subsection (a)(5), Appellant’s BAC test results alone would have been sufficient to sustain his conviction. However, as neither Yarger nor subsection (a)(5) were the law at the time of Appellant’s trial and were not made specifically retroactive, we are compelled to reverse the decision of the Superior Court and vacate the judgment of sentence imposed by the Court of Common Pleas of Berks County, Criminal Division.

OPINION IN SUPPORT OF AFFIRMANCE MONTEMURO, Justice. Since I do not believe that an adjudication of work relatedness took place in this matter, I would affirm the decision of the Superior Court. Preceding its primary conclusion that the Superior Court erred, the Opinion in Support of Reversal makes several assumptions to which I also take exception. The first of these states that because the Act only contemplates payment to those who have suffered a work related injury, appellee must have suffered such an injury or the Board could not properly have granted her Petition for Commutation. This reasoning is fallacious. Here there was never a claim for benefits. Rather, due to the severity of appellee’s injuries, the insurance company for the employer filed a notice of compensation payable, and proceeded to provide benefits while appellee was too disabled to work. The Board commuted these (unsought) benefits to a lump sum because appellee perceived this to be in her interests, noting at the same time that, by agreement, the money would be repayable were it recovered in a common law tort suit. Kohler v. McCrory Stores clearly accepts the regularity of such an arrangement, observing that “There is a significant difference between the situation where an employee requests and is awarded benefits by a referee and where he simply accepts benefits through Notice of Compensation Payable and!or agreement.” Moreover, “Any benefits received in the absence of, or prior to, a final adjudication of compensability can simply be repaid out of damages repaid through the negligence action.” Id. 532 Pa. 130 at 139, 615 A.2d 27 at 32. (emphasis added) There is thus no automatic designation of an injury as work related because benefits have, temporarily, been received in some form. In support of its conclusion that an adjudication has occurred, the Opinion in Support of Reversal advances the notion that the term “work injury,” which appears in the Stipulation of Facts in support of appellee’s Petition to Commute, is an admission that the accident was work related. However, the same Stipulation elsewhere states that appellee’s injuries were incurred “allegedly within the course and scope of her employment.” (Stipulation of Facts at para. 1) There is therefore nothing determinative about the term “work” which is contradicted within the same document. Even assuming that such equivocal language constitutes an admission, still no adjudication has occurred. The Opinion in Support of Reversal seems to find controlling the fact that the defendant in any tort action brought by appellee would be a fellow employee rather than the employer, and Kohler, in approving the repayment arrangement, does so only in the context of its own facts, that is, where the potentially liable party is the employer. The Opinion in Support of Reversal deduces that because the employer is not attempting to limit its own liability here, the injury must be work related. The logic of this conclusion is less than compelling. The thrust of the holding in Kohler is not merely to legitimize repayment agreements only where an employer may be found liable as a tortfeasor, but to assure that injured employees are not exploited. That it is not the employer but a fellow employee who seeks to capitalize on the situation here does not alter the principle of fairness Kohler enunciates. Most problematic is the equation of these pieces of information, that is the commutation of benefits, the use of “work injury,” and the employer’s failure to contest commutation with a final adjudication, ignoring the Kohler requirement that there be a specific finding by a referee that a work related injury has occurred. In this instance both the circumstances of the accident, and the administrative actions that followed militate against such a findings being rationally made. To decide on the basis of nondeterminative occurrences that what injured appellee was work related is at odds with both the statute and any definition of adjudication. BLACK’S LAW DICTIONARY 39 (5th ed. 1979) defines adjudication as The formal giving or pronouncing a judgment or decree in a cause; also the judgment given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved. The equivalent of a “determination.” And contemplates that the claims of all the parties thereto have been considered and set at rest, (emphasis added; citations omitted) No such formal proceeding was sought or occurred here. The Board merely acquiesced to the payment, in a different form, of funds that the insurance company had unilaterally decided to award to appellee after the accident, and which the same insurance company agreed to pay out in a lump sum with the understanding that appellee would return these funds out of any award received in a tort action. As Kohler points, out, this is an acceptable arrangement which does no violence to the statute. Necessarily involved in the tort action would be a determination of whether the accident was work related. If it were found to be within the course and scope of appellee’s employment, no refund need be made. The tort action here resulted in a determination that the injury was not work related, a result consistent with law and reality which should not be disturbed. Accordingly, since the conclusion drawn by the Opinion in Support of Reversal that an adjudication has occurred comports neither with the specific finding requirement of Kohler, nor the definition of adjudication, I would affirm. PAPADAKOS, J., did not participate in the decision of this case. CAPPY and CASTILLE, JJ., join in this opinion in support of affirmance. NIX, C.J., files an opinion in support of reversal in which FLAHERTY and ZAPPALA, JJ., join. MONTEMURO, J., is sitting by designation. ORDER PER CURIAM. The Court being evenly divided, the Order of the Superior Court is affirmed. NIX, Chief Justice, opinion in support of reversal. Appellant, Marcia Akresh, appeals from the Order of the Superior Court which affirmed the Order of the court of common pleas. Appellee, Madeline Nieves, instituted a civil action in the court of common pleas for injuries she sustained in an automobile accident while she was the passenger in a car being driven by Appellant. Prior to the commencement of trial, Appellant sought summary judgment on the ground that Appellant and Appellee were in the course of their employment at the time of the accident; however, the trial court denied this motion. Following a jury trial, Appellee was awarded $767,000.00 for past and future medical benefits, past earning capacity, future lost earning capacity, and past and future pain and suffering. The jury attributed 75% of the liability to Appellant. Appellant filed post-trial motions which were denied. She then appealed to the Superior Court which affirmed the Order of the trial court. Nieves v. Akresh, 430 Pa.Super. 658, 630 A.2d 470 (1993). Appellant filed a timely appeal to this Court which was granted. Allocatur was limited to the following issues: 1) whether the Superior Court erred in holding that Appellee was not estopped from pursuing the present tort action by reason of her Petition for Commutation of Workers’ Compensation Benefits, and 2) whether the Superior Court erred in holding that Appellee’s injuries occurred outside the scope of her employment. For the reasons that follow, I would reverse the Order of the Superior Court. Appellant and Appellee were co-workers at the Bradford School in Philadelphia. On September 26, 1986, the school was closed so that all employees could attend a mandatory seminar at the Valley Forge Sheraton in Valley Forge. Transportation to and from the seminar was the responsibility of each employee. Appellant arranged to drive Appellee and another co-worker to and from the seminar in Appellant’s car. The three attended the morning seminar but were permitted to leave along with other faculty members at its completion because the afternoon seminar did not relate to their positions at the school. Appellant, Appellee and their co-worker left the seminar, and on their way home they decided to stop for lunch at the King of Prussia Mall. While making a left turn from North Gulph Road, Appellant’s car was struck by a car being driven by Marshall Miles causing serious personal injury to Appellee. Aetna Life and Casualty Company (“Aetna”), the workers’ compensation insurance carrier for the Bradford School, issued a Notice of Compensation Payable, dated October 20, 1988, and began issuing workers’ compensation benefits to Appellee pursuant to the Workers’ Compensation Act, Act of June 4, 1937 P.L. 1552 §§ et seq. (codified as amended at 77 P.S. §§ 1-1603) (“the Act”). A Supplemental Agreement for Compensation was entered into by Aetna and Appellee on September 1, 1988. This agreement reduced Appellee’s disability rate based on her ability to return to light-duty work. Appellee filed a Petition for Commutation of Benefits with the Workers’ Compensation Appeal Board (“the Board”), and Aetna filed an Answer to Petition for Commutation consenting to the commutation. Aetna and Appellee entered into a Stipulation of Facts with regard to the Petition for Commutation. The Board granted the commutation based on its review of the Petition, the Stipulation, all of the supporting documentation and on the consent of Appellee. Nieves v. Franklin-Morris Education Group, No. C-30910 (Workers’ Compensation Appeal Bd. Apr. 13, 1989). Appellee later brought the tort action which is the subject of this appeal against Appellant and Miles. She agreed to refund to Aetna eighty percent of what she had received in workers’ compensation benefits from any award won in her civil action. Prior to trial, Appellant sought summary judgment, arguing that she was immune from liability because the accident and Appellee’s injuries occurred during the course of their employment. Therefore, Appellant asserted, Appellee’s sole remedy was against their employer under the Act. A hearing was conducted, and the trial court held that there was no evidence to determine that Appellee was in the course of her employment when the accident occurred. Nieves v. Akresh, No. 6046, March Term 1987, slip op. at 4 (C.P. Philadelphia County May 10, 1991). The Superior Court held that the trial court had not erred when it determined that Appellee’s injuries did not occur in the course of her employment. Nieves v. Akresh, 430 Pa.Super. 658, 630 A.2d 470 (Pa.Super.1993). This holding was based on the Superior Court’s finding that Appellee was a stationary employee, and therefore, was not in the course of her employment during her commute home from the seminar. Id. at 13. Appellant’s Petition for Allowance of Appeal before this Court was granted, limited to the issues of whether the Superior Court erred in holding that Appellee was not estopped from pursuing a tort action against Appellant and whether the Superior Court erred in holding that Appellee’s injuries had occurred outside the course of her employment. I will first address the issue of whether Appellee was estopped from pursuing this tort action after she had filed a Petition for Commutation of Benefits under the Act. Appellant cites this Court’s decision in Kohler v. McCrary Stores, 532 Pa. 130, 615 A.2d 27 (1992), for the proposition that an employee is precluded from instituting a liability suit against a co-employee where there has been a final adjudica tion of the employee’s entitlement to workers’ compensation benefits. According to Appellant, there was a final adjudication of Appellee’s right to workers’ compensation benefits when the Board granted her Petition for Commutation. As such, Appellant asserts that Appellee is estopped from now asserting that the injuries she sustained were not the result of a work-related accident. Appellee also cites Kohler, but for the position that she is not estopped from pursuing a liability action. According to Appellee, Kohler allows her to accept unilateral workers’ compensation payments without giving up her right to bring a tort action for the injuries for which she received such payments. Appellee asserts that there was no final adjudication as to her entitlement to workers’ compensation benefits, and therefore, she is not barred from maintaining a tort action. Although Kohler is not directly on point with the instant matter, a review of Kohler is instructive in determining the outcome of the issue at hand. In that case, the employee, Kohler, was operating a motorized double pallet jack when he was struck from behind and injured by a co-worker operating a similar jack. The employer’s workers’ compensation insurance carrier issued a Notice of Compensation Payable and paid benefits to Kohler. The parties later entered into a Supplemental Agreement, and Kohler’s benefits were eventually terminated by order of a referee based on the employer’s Petition for Termination, Modification or Suspension of Compensation. Shortly after his benefits were terminated, Kohler filed a complaint in trespass against his employer. He alleged that his injuries resulted from the employer’s negligence in failing to provide a safe workplace for him when the employer knew of the personal animosity between Kohler and the coworker involved in the accident. In Kohler, this Court held that “only a final adjudication of work-relatedness can estop an employee from asserting that his injuries are not work-related for purposes of maintaining an action against his employer under the personal animus exception to the Act.” Id. at 134, 615 A.2d at 29. In adjudicating the Petition for Termination, Suspension or Modi fication of Compensation filed by the employer, the referee found that Kohler’s injury was work-related. Kohler did not appeal this finding. Because Kohler’s injury could not have been both work-related and caused by his co-worker’s animosity and because the referee determined that the injury was in fact work-related, this Court found that the question of compensability had been adjudicated. Id. at 140, 615 A.2d at 32. Therefore, this Court held that Kohler was estopped from asserting that his injuries were not work-related and that his sole remedy was under the Act. Id. at 141, 615 A.2d at 33. In light of our holding in Kohler that there must be a final adjudication before an employee can be estopped from asserting that his injuries did not arise in the course of employment, the question before us then becomes whether Appellee’s Petition for Commutation of Benefits along with the Board’s grant of that petition constitute a final adjudication as to the compensability of Appellee’s injuries under the Act. The Act provides that “compensation contemplated by this article may at any time be commuted by the board____” 77 P.S. § 604 (footnote omitted). The “compensation contemplated” is the benefits the Act provides for employees who suffer injuries in the course of their employment. Clearly then, the Board could not properly have granted Appellee’s Petition for Commutation if she had not suffered a work-related injury. Moreover, Appellee admitted in the Stipulation of Facts which she submitted in support of her petition that she had suffered a work-related injury. (Supplemental Reproduced Record at 5a). Specifically, the parties agreed in the stipulation that “[a]ll reasonable and necessary medical expenses causally related to the September 26, 1986 work injury ... will continue to be paid by the Defendant in accordance with the Act.” (emphasis added) Id. It is clear that Appellee affirmatively sought the protection of the Act and accepted its provisions. This situation is unlike the situation in Kohler where the employer unilaterally made payments to the employee. Although Aetna initially made such payments following the accident, Appellee went beyond this when she sought a commutation of the benefits she was receiving. Appellee should not now be permitted to claim that there was no final adjudication after she herself sought such. Moreover, in the instant matter we are not confronted with the possibility that the employer is attempting to limit its liability by paying benefits to Appellee. In Kohler, the employee was seeking to bring a tort action against his employer; here, the employee is seeking to bring a tort action against her co-worker. The employer will not gain any advantage by accepting liability because the employer would not be responsible for the recovery in the tort action as it would have in Kohler. Thus, I would hold that the Board’s grant of Appellee’s Petition for Commutation constitutes a final adjudication that Appellee did suffer a work-related injury. In light of my position that Appellee did suffer a work-related injury, Appellee should not be allowed to bring a tort action against her co-worker. The exclusivity provision of the Act provides that “[i]f disability ... is compensable under this act, a person shall not be hable to anyone at common law or otherwise on account of such disability ... for any act or omission occurring while such person was in the same employ as the person disabled.... ” 77 P.S. § 72; see also Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995) (employee not permitted to recover workers’ compensation benefits from employer as well as damages at common law from co-employee when employee was injured in an automobile accident during the course and scope of her employment). I would hold that the Superior Court erred in determining that Appellee was not estopped from pursuing a tort action against Appellant in light of the Board’s grant of Appellee’s Petition for Commutation. Therefore, the Order of the Superior Court should be reversed. FLAHERTY and ZAPPALA, JJ., join in this opinion in support of reversal. . Appellee entered into a joint tortfeasor release and settlement agreement with Miles, releasing him from further liability. Based on this release, Miles did not participate in the trial, and therefore, is not a party to this appeal. . I also note that Appellee did not appeal from the Board’s grant of her petition. . In his Opinion in Support of Affirmance, Mr. Justice Montcmuro asserts that the repayment agreement entered into by Appellee and Aetna is acceptable under Kohler because in this situation the employee is simply accepting benefits unilaterally paid by the employer rather than one where the employee sought an award of benefits. I do not agree, as Appellee actively pursued a commutation. At that point, the benefits were no longer unilaterally paid by the employer but were paid pursuant to the Order of the Board at Appellee's request. . The Opinion in Support of Affirmance asserts that in Kohler this Court was concerned with preventing the exploitation of an injured employee. Although this is true, my position in the instant matter does not promote such exploitation. Rather, my position would prevent an employee from using the benefits allowed under the Act as a fail-safe mechanism in the event that the employee’s tort action is unsuccessful. . The Opinion in Support of Affirmance claims that there was no formal proceeding in the instant case such that there could have been a final adjudication. According to the Opinion in Support of Affirmance, the Board’s grant of Appellee’s petition was mere acquiescence to restructuring the employer's unilateral payments. Clearly, the Board does not merely acquiesce to petitions presented to it, rather, it must follow the provisions of the Act and established case law. When a party goes before the Board, that party is seeking an adjudication of the matter presented. . Because I would hold that the Board’s grant of Appellee's commutation constituted a final adjudication as to the work-relatedness of her injury, I need not address the issue of whether she was in the course of her employment when the accident occurred.

OPINION IN SUPPORT OF DENIAL OF APPELLANT’S MOTION FOR RECUSAL CASTILLE, Justice. On May 26, 1995, James Jones (“Petitioner”) filed a Motion for Recusal requesting that I recuse myself from participating in the consideration or decision of petitioner’s petitions requesting that this Court exercise its King Bench Powers and grant a stay of his execution, which is scheduled for 10 p.m. on June 13, 1995, pending resolution by the United States Supreme Court on his petition for writ of certiorari. The basis for petitioner’s request for recusal is that as District Attorney of Philadelphia County, Pennsylvania, my name appeared on a brief filed with this Court on May 14, 1990 urging affirmance of petitioner’s conviction and death sentence. Under the existing practice of this Court, recusal has been a matter of individual discretion or conscience and only the jurist being asked to recuse himself or herself may properly respond to such a request. Commonwealth v. O’Shea, 523 Pa. 384, 407, 567 A.2d 1023, 1034 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990); In re Crawford’s Estate, 307 Pa. 102, 108-09, 160 A. 585, 587 (1932). For the reasons set forth below, I have determined that my recusal in this matter is not warranted. At the outset, it is important to note that during my tenure as District Attorney from January of 1986 through February of 1991, the Philadelphia District Attorney’s office (consisting of approximately 225 attorneys and a total of 475 staff employees) each year disposed of over 65,000 criminal matters and several thousand appeals in both the Superior and Supreme Courts of Pennsylvania, as well as in the federal courts. Given this enormous volume of criminal cases processed in Philadelphia County, it was impossible for the duly-elected District Attorney to be personally familiar with the details of each and every criminal case prosecuted by his assistants and deputy district attorneys during his or her tenure. I would also note that because of my duly-elected position as District Attorney, as a matter of formality, a stamp of my signature was required to be affixed to all indictments and complaints issued during my tenure. My name was also required to be listed on numerous appellate and amicus curiae briefs filed on behalf of the District Attorney’s office. Petitioner should not construe this formal administrative step or requirement to suggest that I was, per se, personally and directly involved with the prosecution or appeal of his criminal case. With respect to petitioner’s matter presently before this Court, I was not District Attorney at the time petitioner was tried in 1981. As for petitioner’s appeal to this Court in 1990, I am not aware of any materials indicating that I personally reviewed petitioner’s criminal file or otherwise personally participated in the prosecution of petitioner’s matter as an advisor, or as a trial or appellate attorney. Indeed, to the best of my knowledge and recollection, I have no factual information about petitioner’s underlying criminal case other than the knowledge and information contained in the petitions and briefs that I have reviewed through my duties as a Justice of this Court. I have not prejudged petitioner’s matter nor would I prejudge it simply because I served as a District Attorney and had a general responsibility for all matters that fell within my official capacity, this being one of the many. Given the absence of personal involvement with petitioner’s matter while I served as District Attorney, and upon review of the relevant case law, I see no reason to recuse myself in this matter. In Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972), then Justice William Rehnquist, and now Chief Justice, was asked to disqualify himself in a matter that appeared before the United States Supreme Court because as an Assistant Attorney General in the Department of Justice he had publicly commented on the subject matter then pending before the Court in Laird v. Tatum (the statutory and constitutional law regarding the authority of the executive branch to gather information), and also because he had previously testified as an expert witness on behalf of the Justice Department in Senate hearings inquiring into the very same subject. The respondents in Laird claimed that Justice Rehnquist’s impartiality was “clearly questionable” because of his expert testimony in the Senate hearings, because of his intimate knowledge of the subject matter underlying the allegations before the Court, and because of his public statements about issues related to the pending matter prior to his appointment to the Court. 409 U.S. at 825, 93 S.Ct. at 9. Rejecting respondents’ arguments, Justice Rehnquist held that even though he held a high-level supervisory position in the Department of Justice while Laird was being investigated and prosecuted within the Department of Justice, his disqualification was not warranted since he did not have an advisory role in any matters involving Laird v. Tatum, had never signed a pleading or brief regarding the case, and had never personally participated in the courts on behalf of the Government with respect to the Laird v. Tatum case. In support of his position, Justice Rehnquist cited as precedent Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, reh’g denied, 320 U.S. 807, 64 S.Ct. 24, 88 L.Ed. 488 (1943), a matter in which United States Supreme Court Justice Murphy did not disqualify himself even though the matter then before the Court had been prosecuted by the Department of Justice while Justice Murphy was the Attorney General of the United States. Similarly, in Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983), this Court held that recusal was not required of a trial judge even though the trial judge formerly, as District Attorney, had personally prosecuted the appellant on charges unrelated to the matter presently before him, had taken a statement of a primary witness in the case before him about the appellant while he was District Attorney, and had been the District Attorney when the offenses in question were committed by the appellant. Appellant argued that the judge should have recused himself because of his prosecutorial role and prior contact with the Appellant. This Court, however, rejected appellant’s argument: [W]e have never held and are unwilling to adopt a per se rule that a judge who had participated in the prosecution of a defendant may never preside as judge in future unrelated cases involving that defendant. Absent some showing of prejudgment or bias we will not assume a trial court would not be able to provide a defendant a fair trial based solely on prior prosecutorial participation. Commonwealth v. Darush, 459 A.2d at 731. Accord Commonwealth v. Edmiston, 535 Pa. 210, 229-30, 634 A.2d 1078, 1088 (1993); In re Crawford’s Estate, 307 Pa. at 109, 160 A. at 587. Here, I had no personal connection with petitioner’s matter. Thus, as in Darush, since there is no indication that I had any personal connection with petitioner’s matter while I was the District Attorney of Philadelphia County, recusal is not warranted. Moreover, recusal is further unwarranted where, as here, there has been no allegation or showing of any specific prejudgment or bias against petitioner. Commonwealth v. Darush, 459 A.2d at 731. As this Court stated in Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291 (1985): It is incumbent upon the proponent of a disqualification motion to allege facts tending to show bias, interest or other disqualifying events, and it is the duty of the judge to decide whether he feels he can hear and dispose of the case fairly and -without prejudice because we recognize that our judges are honorable, fair and competent. Reilly, 507 Pa. at 221-22, 489 A.2d at 1300 (emphasis added). Petitioner’s sole assertion of fact in support of his motion for recusal is that as District Attorney, my name appeared on a brief filed with this Court. This assertion, without more, fails to meet this threshold requirement. Petitioner also claims that my review of his petition seeking a stay of his execution as a member of this Court violates or offends the notions of due process. This Court has already spoken as to when matters relating to judicial disqualification may rise to a federal constitutional claim. Adopting the reasoning of the United States Supreme Court in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820-21, 106 S.Ct. 1580, 1584-85, 89 L.Ed.2d 823 (1986), this Court in Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989), stated that the Fourteenth Amendment Due Process provision is offended where the jurist has a “direct, personal, substantial, pecuniary interest.” 565 A.2d at 761 (emphasis added). However, in this case, given the lack of any direct personal involvement with petitioner’s underlying matter, in addition to the nonexistence of any prejudgment or bias on my behalf with respect to petitioner, there is clearly no basis for petitioner to claim now, or in the future, that as a Justice on this Court I have a “direct, personal, substantial, pecuniary interest” in the outcome of his case that would possibly substantiate a due process claim. Just as significant is the fact that there are a total of six Justices who now sit upon this Court, the highest appellate court in this Commonwealth. In addressing the special concerns that arise when a Justice has been asked to recuse or disqualify himself from the highest court, Justice Rehnquist remarked in his Memorandum: [T]here is no way of substituting Justices on [the highest] Court as one judge may be substituted for another in the district courts. There is no higher court of appeal that may review an equally divided decision of this Court and thereby establish the law for our jurisdiction. Laird v. Tatum, 409 U.S. at 837, 93 S.Ct. at 15. These concerns are equally applicable to the Supreme Court of Pennsylvania. Indeed, in Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989), Chief Justice Nix specifically addressed these same concerns as they applied to a request that a Pennsylvania Supreme Court Justice recuse himself: Unlike a trial court where one judge presides, courts en banc, panels or en banc intermediate appellate courts, the Supreme Court is constituted so as to provide its full complement of seven members to consider all of the matters that come before it. Its responsibility to interpret and develop the law of the Commonwealth mandates that its full membership be available and participate in all matters that come before the Court. A state as diverse in cultures, interests and ethnic stock as this Commonwealth increases the importance of assuring that the questions before this Court receive the reflective judgment enriched by the varied perspectives of its members that participate in reaching that judgment. The expression of concurring and dissenting views assures a more complete exposition of the reasons underpinning the judgment and aids in evaluating the wisdom of the majority position. Quite frequently the dissenting view today becomes the majority view of the future. Thus, this Court was structured so that, except for good cause, the full complement of the Court should participate in the judgments of this Court. Failure to recuse, standing alone, is not a basis for collateral attack upon a jurist. Goodheart, 523 Pa. at 201, 565 A.2d at 763-64 (emphasis added). Because this Court sits as a full court, as does the Supreme Court of the United States, were I to recuse myself, this Court would lack its present full complement of six justices. Therefore, if I were to recuse myself on all matters pending or initiated while I was District Attorney, potentially over 300,000 criminal cases would be subject to this Court’s review without the benefit of a full Court. Finally, petitioner cites to Canon 3 of the Code of Judicial Conduct to support his Motion for Recusal. Canon 3 provides, in pertinent part: C. Disqualification. (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: ... ****** (b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.... Petitioner fails to mention the Commentary to Canon 3 which the American Bar Association included out of recognition that an attorney’s association with a governmental agency warrants special considerations. See Muench v. Israel, 524 F.Supp. 1115, 1117 (E.D.Wis.1981). Specifically, the Commentary provides: “A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection ... ”. Professor E. Wayne Thode, the reporter for the A.B.A. Committee who testified before the Senate Judiciary Committee during the 93d Congress in connection with the Code of Judicial Conduct, explained the purpose behind the Commentary to Canon 3(C)(1)(b) as follows: The commentary clarifies the status of the judge who was formerly a lawyer in a governmental agency. An agency, for example, the Justice Department, is not fully equated with a private law firm, in that a former agency lawyer is not considered to have been associated with all other lawyers in the agency. Muench v. Israel, 524 F.Supp. at 1117 (emphasis added). In applying the Commentary to Cannon 3, the Honorable Robert W. Warren in Muench v. Israel declined to recuse himself even though he had served as the Attorney General of Wisconsin during the time the appellant appealed his criminal conviction to the Wisconsin Supreme Court. The state, as the respondent, was formally represented by then Attorney General Warren. Nevertheless, Judge Warren did not recuse himself from hearing the petitioner’s federal petition for a Writ of Habeas Corpus since he had not personally participated in the previous state appellate process other than in his official, formal capacity. Taking guidance from the United States Supreme Court, the court noted that: [HJistory is replete with examples of United States Supreme Court Justices who had previously served in the Justice Department and later declined recusal in cases which had been handled by the Department during their tenure as government attorneys but with which their connections were purely formal. Thus ... the standard for recusal followed by most Supreme Court justices who had previously served as United States Attorney General was whether their prior involvement in a case involved something more than a mere pro forma relationship. Muench v. Israel, 524 F.Supp. at 1118 (footnote omitted). See also In re Searches Conducted on March 5, 1980, 497 F.Supp. 1283, 1290 (E.D.Wis.1980) (recusal not required even though judge formerly served as the Attorney General of Wisconsin during the investigation and prosecution of petitioners and had been sued by one of the petitioners in an unrelated matter). As District Attorney of Philadelphia, I took an oath to uphold the Constitution of the United States and of this Commonwealth. I took a similar oath at the beginning of my tenure on this Court. I do not now take, and never have taken, such oath lightly. Pursuant to my sworn duties, I will participate in the decision and consideration of Appellant’s matter without bias or prejudgment. Accordingly, based upon the foregoing considerations, I conclude that petitioner’s motion requesting my recusal in this matter should be, and it hereby is, denied. ORDER AND NOW, this 8th day of June, 1995, it is hereby ORDERED that Petitioner’s Motion for Recusal from Consideration of Application for Extraordinary Relief in the Form of a Stay of Execution Pending the Filing and Resolution of a Petition for a Writ of Certiorari, and For Exercise of King’s Bench Powers is DENIED. . Petitioner was sentenced to death by a jury in 1981 after being found guilty of two counts of first degree murder for the 1980 deaths of two young women found bound and gagged and burned to death in the basement of a house in Philadelphia. This Court confirmed petitioner’s conviction and death sentence on December 28, 1994. Commonwealth v. Jones, 539 Pa. 222, 651 A.2d 1101 (1994). . I would note that petitioner's request for a stay of his execution has been granted this 8th day of June, 1995. . Following petitioner’s conviction and sentence in 1981, he finally filed a notice of appeal with this Court in June, 1985. Thereafter, two counsel appointed to represent petitioner were allowed to withdraw their appearance. Finally, another counsel was appointed and the case was submitted on briefs to this Court in 1990. However, on March 16, 1992, this Court, in response to the briefs filed by petitioner and the Commonwealth at that juncture, remanded the case for appointment of new counsel because it deemed “the efforts of appellant's counsel to be less than adequate for the purpose of reviewing this death penalty appeal. Commonwealth v. Jones, 529 Pa. 428, 604 A.2d 1020 (1992). New counsel was appointed and a new brief was filed in this Court in October, 1993. I was no longer District Attorney when this 1993 brief was filed or when petitioner’s conviction was affirmed. . It should be noted that even though the matter was remanded for a new trial in Darush, it was solely on the grounds that the appellant averred that while running for election for judge, the judge allegedly made statements about the appellant which could conceivably evidence personal bias against the appellant and for which the judge had no recollection of such statements. . As of the date of this opinion, this Court has only six Justices as a result of the retirement of the Honorable Nicholas P. Papadakos on January 22, 1995.

ORDER PER CURIAM: AND NOW, this 31st day of May, 1995, there having been filed with this Court by Simon W. Tache his verified Statement of Resignation dated March 23, 1995, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of Simon W. Tache be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 217, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

OPINION OF THE COURT CAPPY, Justice. In this appeal we are faced with the question of whether a tie vote of the Pennsylvania Public Utilities Commission (PUC) can constitute a final “action” by the PUC. Because we find that a tie vote cannot constitute action, we reverse the Commonwealth Court. This dispute has its roots in a Pipeline Construction, Natural Gas Sales and Transportation Agreement (Agreement) entered into by Energy Production Company (Energy Production), Energy Pipeline Company (Energy Pipeline), and Bethlehem Steel Corporation (Bethlehem Steel) in 1984. The Agreement provided for the sale of natural gas by Energy Production to Bethlehem Steel, and the construction and operation of a pipeline by Energy Pipeline to transport natural gas to Bethlehem Steel’s plant in Johnstown, Pennsylvania. Energy Production and Energy Pipeline became the Managing Venturers of a joint venture known as Bessie 8, and entered into a joint venture agreement for the purpose of performing the obligations under the Agreement. In October of 1985, Appellant Peoples Natural Gas Company (Peoples) filed a complaint with the PUC alleging that Appellees had established a public utility and were in the process of providing natural gas service to the public in violation of 66 Pa.C.S. §§ 1101 and 1102. Peoples sought interim relief and an injunction prohibiting Appellees from supplying natural gas until they obtained the PUC’s permission to do so as required by the Public Utility Code (Code). The PUC referred the matter to one of its Administrative Law Judges (ALJ). After extensive evidentiary hearings, in April of 1988 the ALJ issued an initial decision denying and dismissing Peoples’ complaint. The ALJ found that Bessie 8’s activities were not subject to the PUC’s jurisdiction because they were private in nature and did not involve any interstate, intrastate or public utility connections. Peoples timely filed exceptions to this decision with the PUC. The PUC then referred the matter to its Office of Special Assistants (OSA) for a report on the matter. Contrary to the ALJ, the OSA recommended that Peoples’ complaint be sustained. The matter was then placed on the PUC agenda for a public meeting and consideration. The PUC, consisting of only four members at the time, voted on the matter at a meeting on April 6,1989. During the meeting, the Chairman moved to adopt the ALJ’s initial decision and reject the OSA report. The Commissioners reached a two-two tie vote on this motion. Immediately thereafter, another Commissioner made a second motion to reject the ALJ’s initial decision and adopt the OSA report and recommendation. The Commissioners also reached a two-two tie vote on this motion. Accordingly, the Chairman declared on the record that the Commission had taken “no action” and the matter was tabled for further consideration at a later time. Reproduced Record at 224a. Significantly, the Commission issued no decisions or orders on the matter, on the record or otherwise. The matter was again placed on the Commission’s agenda for public meeting on March 22, 1991. The morning of the meeting, Bessie 8 filed a motion with the PUC requesting a delay of the proceedings and requesting oral argument. After the delay was granted, Bessie 8 withdrew its motion. The matter was brought up for the third time at a meeting on October 1, 1992. At that time, there were only three Commissioners serving. This time, the Commissioners unanimously voted to sustain Peoples’ complaint and held that the Bessie 8 joint venturers had been unlawfully providing public utility service without first having obtained a certificate of public convenience. The PUC entered an order to this effect on December 7, 1992. Before the order was entered in December, Appellees commenced an action in the Commonwealth Court, addressed to the original jurisdiction of the Commonwealth Court. In its Petition for Review, Appellees contended that the tie vote reached by the Commissioners at the April 6, 1989 meeting constituted final action and a final order by the PUC denying the relief Peoples requested, and divested the PUC of further jurisdiction over the matter, rendering the October 1, 1992 vote and December 7,1992 order of no effect. A 4-3 majority of the Commonwealth Court sitting en banc agreed, holding that the PUC effectively “affirmed” the decision of the ALJ when the PUC failed to agree to take the action requested by Peoples on April 6, 1989. The majority also found that Peoples was required to appeal from the decision of the PUC at the April 6, 1989 meeting. Because Peoples did not so appeal, the majority held that the ALJ’s decision became final and the PUC’s December 1992 order was invalid because the PUC had no authority to issue it. Appellants now contend that the Commonwealth Court erred in finding that a tie vote of the PUC constitutes final action by the PUC which creates a final order which must be appealed at that point if further review is desired. For the following reasons, we agree. First, the plain language of the relevant section of the Code, section 301, provides that a majority of the Commission members serving are needed for a quorum and the number needed for the quorum must act unanimously for the Commission to make any order or to take any action. Section 301 states: (d) Quorum. A majority of the members of the commission serving in accordance with law shall constitute a quorum and such majority acting unanimously, shall be required for any action, including the making of any order or the ratification of any act done or order made by one or more of the commissioners. No vacancy in the commission shall impair the right of a quorum of the commissioners to exercise all the rights and perform all the duties of the commission. [Emphasis added.] Thus, under section 301, where there are only four commissioners, three commissioners constitute a quorum, and those three commissioners must vote unanimously for the PUC to undertake any action. A two-two vote is not a majority to adopt or deny any action. Plain words of a statute cannot be disregarded where language is free and clear from all ambiguities. Hyser v. Allegheny Co., 61 Pa. Commw. 169, 434 A.2d 1308 (1981). We agree with Judge Pellegrini’s dissent that the Commonwealth Court majority’s analysis “is flawed by its failure to recognize that there is a shifting quorum and it ignores that the [Code] requires a majority of the quorum to take any action.” 160 Pa.Commw. 510, 521-23, 635 A.2d 675, 681 (1993). We also find that the Commonwealth Court erred in equating the PUC’s split vote as a refusal to take any action and was therefore an effective “affirmance” of the ALJ’s decision. The ALJ and the PUC are not comparable to a trial court/appellate court system. The process by which complaints are handled by the PUC is as follows. First, the ALJ reviews the subject matter of the complaint and makes a decision. This decision is not final, nor is it an order at this point. There are two different routes that may be taken by which a final order will eventually be entered. First, if no exceptions are filed by either party and an appeal is not taken within 15 days of the ALJ’s initial decision and if the PUC does not sua sponte enter an alternate order, the ALJ’s initial decision becomes final. 66 Pa.C.S. § 332(h). However, if exceptions are filed, then the matter is taken to the PUC, where “the PUC has all the powers which it would have had in making the initial decision ...” 66 Pa.C.S. § 335(a). The PUC has the power to conduct its own fact finding, to adopt or reject the ALJ’s decision, or to come to an entirely different resolution. Thus, if exceptions are filed, only the PUC can take action, and the ALJ’s decision cannot take on the force and effect of an order. Importantly, in considering the matter, any.action that is taken by the PUC must comply with the quorum/unanimity provisions of § 301(d). When considering the process by which decisions are made, therefore, it is unclear how the Commonwealth Court can deem inaction, ie., what is specifically not action under § 301(d), to result in the adoption of the ALJ’s recommendation, which they have in fact been unable to reach agreement on. Nor do the facts of this case support the contention that “final action” was taken by the PUC in this matter at the April 6, 1989 meeting. The Commissioners voted on two different motions, one supporting the ALJ’s recommendation, one supporting the OSA’s recommendation. Both recommendations resulted in a two-two deadlock vote. We also reject the Commonwealth Court’s finding that Peoples was required to appeal from the April 6,1989 two-two vote. As discussed above, no final action was taken by the PUC and no order was entered. Additionally, from the facts of this case, it is certainly not clear how either party should have known they were required to appeal the two-two votes, since the Chairman specifically stated that no action had been taken with respect to either recommendation and the matter was tabled for future consideration. Under the Commonwealth Court’s reasoning, it is also unclear, in the situation where two conflicting proposals are raised and voted on, but neither is adopted, which party would be required to appeal. For the foregoing reasons, we find that no action was taken by the PUC at the April 6, 1989, meeting, and therefore the PUC was not prohibited from acting on October 1, 1992. Accordingly, the order of the Commonwealth Court is reversed and Appellees’ Petition for Review is denied. MONTEMURO, J., is sitting by designation. . Energy Production, Energy Pipeline, Managing Venturers and Bethlehem Steel Corporation are hereinafter collectively referred to as "Appellees." . As an initial matter, we note that Appellees, who originally initiated this matter in the Commonwealth Court, now argue that this appeal is erroneously before this Court because the Commonwealth Court was acting as an appellate court, not as a court of original jurisdiction, and no allowance of appeal was granted by this Court. We reject this contention. The Commonwealth Court was not acting as a "reviewing” court. Appellees initiated this action with the Commonwealth Court, requesting that the Commonwealth Court make an original adjudication regarding the scope and the meaning of § 301(d) of the Code. Appellees were not requesting a substantive review of the decision made by the PUC on October 1, 1992, and in fact, no such review was made by the Commonwealth Court. In reaching its decision, the Commonwealth Court did not consider any order or adjudication from the PUC by way of review or appeal, nor did it consider the record of prior proceedings in the PUC. We note that it is somewhat disingenuous of Appellees to now argue that the proceedings in the Commonwealth Court were not directed to the original jurisdiction of that court when Appellees made the contrary argument in their Petition for Review to the Commonwealth Court. . Appellees contend that to permit the PUC to table certain proposals through deadlock votes, only to revisit the issue months or years later, violates notions of fundamental fairness. However, the statute could not be more clear that any action by the PUC must be by unanimous vote. Such statute reflects the will of the legislature that matters before the PUC be determined by a unanimous majority, not by tie votes. Moreover, it is unclear how Appellees have been unfairly affected by delayed action. When Appellees entered into the Agreement, they assumed the risk that at some point their operations may be deemed to be a public utility. The fact that it was deemed to be such later rather than sooner does not appear to be of real consequence. . Notably, the statute does not define a "quorum” as a fixed number, but rather as "a majority of the members of the commission serving in accordance with law.” . The Commonwealth Court's reliance on other case law which has found that a tie vote can be a disapproval of a proposal or a refusal to adopt a proposal is incorrect inasmuch as those cases are inapposite to this case. See e.g., Crossgates, Inc. v. Board of Commissioners of Public Grounds and Buildings, 145 Pa.Commw. 339, 603 A.2d 276 (1992); Giant Food Stores v. Zoning Hearing Board, 93 Pa.Commw. 437, 501 A.2d 353 (1985). These cases were concerned with interpreting entirely different statutes, which did not contain an express provision stating the formal requirement for agency action or the making of an order. We do not find that these cases are instructive as to the meaning of 66 Pa.C.S. § 301(d), which is the statute under consideration by this Court. . Notably, the way in which proposals are brought up to vote by the PUC is by motion. That is, a commissioner presents a motion to take action on a matter, whether the matter be an ALJ’s decision or a staff report or a committee recommendation. That motion is then voted on. Thus, the "review” by the PUC of an ALJ's decision is not the same as the review by an appellate court of a lower tribunal's decision. The vote by the PUC is to take certain action, not to affirm or reverse an ALJ's decision. . We agree with Judge Pellegrini’s dissent that AT & T Communications of Pennsylvania, Inc. v. Pennsylvania Public Utility Commission, 131 Pa.Commw. 390, 570 A.2d 612 (1990) is distinguishable from this case. In AT & T, the Commonwealth Court held that a two-two vote by the PUC was equivalent to a rejection of an ad hoc committee’s recommendation regarding a local telephone exchange carrier’s role in interexchange customer billing inquiries and thus was a final order from which an appeal would lie. Significantly, the court did not put section 301(d) at issue in that case. Rather, the issue was whether the complainants were put “out of court” by the PUC’s two-two vote, and as a result whether the complainants should be entitled to an appeal. Thus, the court was faced with determining whether a vote by the PUC, which has the unofficial "effect” of a rejection, can be considered final for appeal purposes, a judicial conclusion which results from the practical effects of the order rather than a technical interpretation. Here, that question is not before us; neither party was "put out of court” by the April 6, 1989 tie vote and neither party attempted to appeal the tie votes. In this case, the issue is whether under § 301(d) final action had been taken at the April 1989 meeting.

OPINION OF THE COURT FLAHERTY, Justice. This is an appeal by allowance from an order of the Superi- or Court which reversed an order of the Court of Common Pleas of Erie County denying a motion to dismiss, on double jeopardy grounds, a charge of homicide by vehicle. The pertinent facts are as follows. On October 26, 1990, the appellee, Mary M. Caufman, struck a pedestrian with her automobile. As a result, on October 30,1990, a citation was issued to her for the summary offense of failure to drive at a safe speed. The pedestrian died as a result of her injuries on November 2, 1990. On November 14, 1990, appellee pled guilty to the summary offense and paid the fine. The same day, a complaint was filed charging appellee with homicide by vehicle. At issue is the Superior Court’s reversal of the trial court’s ruling that appellee’s plea of guilt to the charge of driving at an unsafe speed did not bar prosecution of the homicide by vehicle charge. We reverse. Initially it is noted that this case is governed by double jeopardy analysis rather than by the requirement in 18 Pa. C.S. § 110 that charges arising from the same criminal episode be joined for prosecution or the “compulsory joinder rule” set forth in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). The statutory joinder requirement and Campana are inapplicable where, as here, the offense first prosecuted was a summary one. Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). Accord Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987). Presently, both the trial court and the Superior Court applied the double jeopardy rule announced by the Supreme Court of the United States in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), which required that charges resting on proof of the same criminal conduct be joined for prosecution except where facts necessary to joinder were not discovered despite the exercise of “due diligence” by prosecuting authorities. 495 U.S. at 510, 516 n. 7, 110 S.Ct. at 2087, 2090 n. 7, 109 L.Ed.2d at 557, 561 n. 7. The trial court held that failure to consolidate the homicide by vehicle charge and the charge of driving at an unsafe speed was excused because the prosecution demonstrated due dili gence in filing all applicable charges as soon as facts necessary to support the charges became known. Because the charge of homicide by vehicle was filed within just twelve days of the victim’s death and without knowledge of the entry of appellee’s plea to the summary charge, the court concluded that the prosecution acted with diligence. The Superior Court reversed, reasoning that the district attorney’s office was in possession of all necessary facts when appellee entered her plea on November 14, 1990, and that the due diligence exception was not applicable because there was sufficient time to have filed the homicide by vehicle charge before that date. We granted allowance of appeal to consider whether the due diligence exception of Grady was applied properly below. The Grady decision has, however, recently been expressly overruled by the Supreme Court of the United States in United States v. Dixon, 509 U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The holding of Dixon makes it unnecessary to reach the issue of due diligence in this case. Dixon cast aside the Grady analysis of whether multiple criminal charges rest on proof of the same underlying conduct, and reinstated the double jeopardy test that was followed prior to Grady. The Supreme Court stated: In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies. See ... Blockburger v. United States, 284 U.S. 299, 304, 76 L.Ed. 306, 52 S.Ct. 180 [182] (1932).... The same-elements test, sometimes referred to as the “Block- burger” test, inquires whether each offense contains an element not contained in the other; if not, they are the “same offence” and double jeopardy bars additional punishment and successive prosecution.... We recently held in Grady that in addition to passing the Blockburger test, a subsequent prosecution must satisfy a “same-conduct” test to avoid the double jeopardy bar. The Grady test provides that, “if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted,” a second prosecution may not be had. 495 U.S., at 510, 109 L.Ed.2d 548, 110 S.Ct. 2084 [at 2087]. We have concluded, however, that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the “same offence,” U.S. Const., Arndt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The “same-conduct” rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy. Dixon, 509 U.S. at — - —, 113 S.Ct. at 2856-2860, 125 L.Ed.2d at 568-573. The test approved by Dixon, to wit, the “same-elements” test of Blockburger, has long been followed in this Commonwealth. Commonwealth v. Allen, 506 Pa. 500, 510-14, 486 A.2d 363, 368-70 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985). It requires a comparison of the elements of the offenses to determine whether ‘“each [offense] requires proof of a fact which the other does not.’ ” Id. at 510, 486 A.2d at 368 (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309). Applying this test to the present case, it is clear that homicide by vehicle and driving at an unsafe speed are not the “same offence,” U.S. Const, amend. V. Prosecution of the homicide by vehicle charge is not, therefore, barred by the previous conviction for driving at an unsafe speed. Plainly, the elements of the two offenses are not the same. Each offense requires an element not required by the other. Homicide by vehicle requires that there have been a death caused by a criminally negligent or reckless violation of law. 75 Pa.C.S. § 3732 (homicide by vehicle); Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987). Driving at an unsafe speed obviously does not require that there have been a death; nor does it require criminally negligent or reckless behavior. 75 Pa.C.S. § 3361 (driving at safe speed). Likewise, the latter offense necessarily involves driving at excessive speed. Homicide by vehicle does not. See Matter of Huff, 399 Pa.Super. 574, 581-82, 582 A.2d 1093, 1096-97 (1990), aff'd, 529 Pa. 442, 604 A.2d 1026 (1992). Although proof of the homicide by vehicle charge will involve proof of the manner in which appellee was driving, “mere overlap in proof between two prosecutions does not establish a double jeopardy violation.” United States v. Felix, 503 U.S. 378, 379, 112 S.Ct. 1377, 1379, 118 L.Ed.2d 25, 34 (1992). Hence, double jeopardy does not bar appellee’s prosecution for homicide by vehicle. The order of the Superior Court to the contrary must, therefore, be reversed. Order reversed. PAPADAKOS, J., did not participate in the decision of this case. MONTEMURO, J., did not participate in the consideration or decision of this case. CAPPY, J., files a dissenting opinion. . The police investigator assigned to the case went on vacation before the victim’s death and did not return to work until just before November 14, 1990, thereby causing the delay in filing the homicide by vehicle . charge. . The Superior Court noted, however, as did the trial court, that the manner in which summary traffic charges are handled in this Commonwealth makes it very difficult to ensure that a person does not plead guilty to a summary offense prior to being charged with a more serious offense. Once charged with a summary offense, one can plead guilty and pay the fine at any time within ten days after receipt of a summons and without a personal appearance in court. Pa.R.Crim.P. 62, 64. . The complaint charging homicide by vehicle alleges that, in addition to driving at an unsafe speed, appellee consumed alcohol and wove in and out of traffic and passed vehicles during nighttime hours in the midst of dense pedestrian and vehicular traffic.

OPINION ZAPPALA, Justice. The City of Wilkes-Barre appeals from the Commonwealth Court’s order affirming the decision of the Workmen’s Compensation Appeal Board (Board) insofar as the claimant’s petition for benefits was granted and vacating the Board’s decision granting the widow’s claim petition. The court remanded the case for a hearing on the widow’s fatal claim petition. We now reverse. Stanley Zuczek became employed as a fire fighter for the City of Wilkes-Barre on February 1, 1965. Zuczek estimated that he had fought 6,500 fires throughout the next twenty years. On February 19, 1990, he reported at 4:30 p.m. for night shift duty. He was not involved in fighting a fire that evening, but during his shift he began having chest pains and experienced difficulty in breathing. When the chest pains became progressively worse, he was taken to the hospital in an ambulance. Zuczek had congestive heart failure. Although he survived the heart attack, he had injured a large area of the heart. His heart no longer pumped blood efficiently- Zuczek was informed by his treating physician, Dr. Peter Decker, that he was not a candidate for the surgical procedure of heart catheterization because of the severity of the heart damage. His treatment was limited to medication. He was advised not to return to his employment because as a fire fighter he would be at extreme risk for other heart attacks or sudden death. On June 19,1990, Zuczek filed a claim petition against the City of Wilkes-Barre alleging total disability as a result of a work-related heart attack suffered on February 19, 1990. Zuczek testified at a hearing before a referee on June 14, 1991. The deposition testimony of Dr. Decker was submitted to the referee by Zuczek. The City of Wilkes-Barre submitted the deposition testimony of its medical witness, Dr. Basil RuDusky, who had conducted an examination of Zuczek on March 11, 1991. The parties then closed the case. Zuczek died on October 4, 1991, prior to the referee’s decision. His widow later filed a fatal claim petition which was consolidated with the claim petition. No further hearings were held after the consolidation. On February 25, 1992, the referee entered a decision denying both Zuczek’s original petition and his widow’s fatal claim petition. He considered the testimony of Dr. Decker, who was not a cardiologist and was Board-certified in geriatric and internal medicine, and of Dr. RuDusky, who specialized in cardiovascular disease and internal medicine. The referee concluded that the evidence failed to establish that Zuczek’s heart attack was work-related based upon the testimony of Dr. RuDusky that his physical examination of Zuczek revealed a significant blockage of the arteries from head to toe, which indicated a pre-existing progressive condition that ultimately resulted in the heart attack. The referee found that although Zuczek had been exposed to fumes and other hazards as a fireman, there were other more significant factors that caused his heart attack. The referee accepted Dr. RuDusky’s opinion that Zuczek’s early and progressive complaints showed an ongoing disease process, confirmed during physical examination by Dr. Decker as well, which was aggravated by Zuczek’s history of cigarette smoking. The referee found it significant that Zuczek was not involved in any stressful situation before the onset of the heart attack and that it came on slowly and progressively. Dr. RuDusky’s testimony was found to be more persuasive than that of Dr. Decker, who attributed the heart attack to multiple factors including Zuczek’s family history, smoking history, and the stress and hazards he was exposed to at work. The referee’s decision was reversed by the Board on October 1, 1993, and the claim petition and fatal claim petition were granted. The Board concluded that the City of Wilkes-Barre had not presented competent evidence to establish that Zuczek’s heart disease did not arise out of the hazards he was exposed to as a fire fighter. Dr. RuDusky’s testimony was found to be incompetent as a matter of law based upon the Board’s perception that Dr. RuDusky refused to recognize fire fighting as a risk for heart disease. In a 2-1 memorandum decision, a panel of the Commonwealth Court agreed with the Board’s conclusion that Dr. RuDusky’s testimony was incompetent as a matter of law because his opinion was thought to be based on the premise that a fire fighter’s exposure to smoke, fumes, heat or gases does not contribute to diseases of the heart. The court affirmed the Board’s decision granting benefits to Zuczek. The widow’s fatal claim petition was remanded for a hearing because the referee did not hold a hearing following consolidation of the petitions and no evidence was placed on the record to support the Board’s award of the fatal claim petition. We granted allocatur to determine whether the expert medical testimony introduced by the City of Wilkes-Barre was legally competent evidence sufficient to sustain its challenge to the claim petitions. Appellate review of a worker’s compensation order is limited to determining whether there has been a constitutional violation, an error of law, or a violation of Board procedure, and whether the necessary findings are supported by substantial evidence. Pieper v. Ametekr-Thermox Instruments, 526 Pa. 25, 584 A.2d 301 (1990). Section 108(o) of the occupational disease provisions of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(o), defines “occupational disease” to include Diseases of the heart and lungs, resulting in either temporary or permanent total or partial disability or death, after four years or more of service in fire fighting for the benefit or safety of the public, caused by extreme over-exertion in times of stress or danger or by exposure to heat, smoke, fumes or gasses, arising directly out of the employment of any such fireman. Section 301(e) of the Act, 77 P.S. § 413, provides that If it be shown that the employe, at or immediately before the date of disability, was employed in any occupation or industry in which the occupational disease is a hazard, it shall be presumed that the employe’s occupational disease arose out of and in the course of his employment, but this presumption shall not be conclusive. The presumption created by Section 301(e) is a procedural or evidentiary advantage to a claimant who has established that he has contracted an occupational disease and that the disease was a hazard in his occupation or industry. Pawlosky v. Workmen’s Compensation Appeal Board, 514 Pa. 450, 525 A.2d 1204 (1987). In this case, there is no dispute that Zuczek was entitled to the evidentiary presumption under the Act. An employer may introduce evidence to rebut the presumption that the claimant’s condition is work-related, however, as the City of Wilkes-Barre did through the expert testimony of Dr. RuDusky. The Board and Commonwealth Court determined that Dr. RuDusky’s testimony was incompetent as a matter of law, reasoning that he did not acknowledge any presumptive effect of fire fighting as a risk factor to be rebutted. The court concluded that its decision in Marcks v. Workmen’s Compensation Appeal Board, 119 Pa.Cmwlth. 214, 547 A.2d 460 (1988) applied to this case. In Marcks, the claimant was employed by the City of Allentown as a fire fighter until his retirement on a disability pension. He filed a claim petition for workers’ compensation benefits alleging a work-related disability from emphysema. The referee dismissed his petition finding that he had failed to prove that he was disabled due to exposure to the hazard of an occupational disease. The Board affirmed the dismissal. The Commonwealth Court remanded the matter for more detailed findings of fact by the referee. On remand, the referee rejected the claim without further hearings and made new findings of fact. Based on his review of the medical testimony offered by the claimant and the employer, the referee found that the claimant had chronic bronchitis, pulmonary emphysema, pulmonary fibrosis, obstructive lung disease, and possibly early myocardial disease, and was totally disabled from performing the duties of a fire fighter or any work involving severe exertion or exposure to dust or smoke. The referee accepted the testimony of the employer’s expert witness that the claimant’s chronic bronchitis and emphysema were solely and directly caused by his forty-year history of smoking a pack of cigarettes or less each day and that claimant’s exposure to smoke, fumes, gases and dust while fighting fires did not have any permanent effect on his lungs. The referee concluded also that the claimant was not employed in an occupation in which emphysema, bronchitis, or obstructive pulmonary disease is a hazard. The court found that the uncontradicted evidence that the claimant was exposed to the hazards of heat, smoke, fumes and gases as a fire fighter and had contracted diseases of the heart and lungs entitled him to the statutory presumption under the Act that his exposure to those hazards resulted in an occupational disease. The court concluded that the referee erred by denying the claimant the benefit of the presumption. Acknowledging that the presumption is not conclusive and may be rebutted by competent evidence, the court determined that the employer had not presented competent evidence to rebut the presumption. The court held that the opinion of the employer’s medical expert that claimant’s thirty-three years of exposure to the hazards of an occupational disease had a “practically nonexistent” effect on his heart and lungs, which was accepted by the referee, was incompetent as a matter of law. The court stated, Our Superior Court concluded over twenty-five years ago that: We agree with counsel for the appellant that it is common knowledge that existing heart and lung diseases may be aggravated by extreme over-exertion and by the type of dangers, such as inhalation of flame and fumes, and exposure to extreme heat, to which firemen by this occupation are exposed ... DeMascola v. City of Lancaster, 200 Pa.Super. 365, 379, 189 A.2d 333, 340 (1963). Since DeMascola, we have affirmed the award of benefits to fire fighters in Section 108(o) claims on the basis that exposure to heat, smoke, fumes, or gasses contributed to diseases of the heart and lungs____ In none of these cases has the extraordinary proposition been advanced that breathing in heated smoke, fumes and gases while fighting a fire has no long term effect on the heart and lungs. To the contrary, this Court has consistently held, and the legislature has consistently intended by continued enactment of Section 108(o), that fire fighting is a hazardous occupation by reason of the dangerous fumes and gasses that a fire fighter breathes while going about his trade. 119 Pa.Cmwlth. at 220-221, 547 A.2d at 464 (citations omitted). The Commonwealth Court applied its analysis in Marcks to this case and concluded that the City of Wilkes-Barre’s expert witness did not acknowledge any presumptive effect of fire fighting as a risk factor to be rebutted. In its opinion, the court referred to isolated excerpts of Dr. RuDusky’s testimony during which he stated that research and medically documented evidence did not identify fire fighting as a risk factor for the development of coronary artery disease. After reviewing Dr. RuDusky’s testimony in its entirety, however, we conclude that the lower court disregarded significant portions of the deposition and that the medical testimony was competent. Dr. RuDusky obtained a medical history from Zuczek and conducted a physical examination of him on March 11, 1991. He reviewed the medical records of the emergency room treatment and hospitalization for Zuczek’s heart attack prior to the examination. Zuczek’s history immediately revealed three significant risk factors for coronary artery disease: his habit of smoking up to two packs of cigarettes per day for thirty years, that his younger brother had advanced coronary heart disease necessitating bypass surgery, and that his sister had died in her teens from diabetes. Zuczek described experiencing an increasing shortness of breath several days before his heart attack and episodic incidents of breathing problems during the previous two years when he would carry a fire hose or perform other tasks that he used to do without difficulty. The pain that preceded his heart attack on February 19, 1990, began while resting in bed at the station house during the evening shift. Zuczek continued to suffer leg pain after the heart attack. This was also found to be significant to the diagnosis. Dr. RuDusky indicated that the leg pain referred to as intermittent claudication was important because at least fifty percent of patients with claudication and vascular obstruction of the lower extremities are found to have coronary heart disease. The condition of the extremities is caused and aggravated by factors such as cigarette smoking and diabetes. Dr. RuDusky’s physical examination of Zuczek indicated that he was mildly hypertensive while under a good medical treatment program, leading him to conclude that Zuczek was hypertensive when left unmedicated. There was evidence of chronic obstructive pulmonary disease that was a combination of chronic cigarette smoker’s bronchitis and pulmonary emphysema. When a vascular examination was done, the major pulses in both feet and ankles could not be felt and those in the groin were weak. Dr. RuDusky noted that even more important was the fact that Zuczek had bruits, which are noises or murmurs in the neck indicative of obstruction to the blood vessels. He described Zuczek’s condition as blockage of all vessels from head to toe. An electrocardiogram revealed a left atrial abnormality and intraventricular conduction defect. Dr. RuDusky diagnosed Zuczek as suffering from advanced atherosclerotic cardiovascular disease, that is blockage of the body’s arteries including the heart, neck, and legs. He felt that Zuczek was in a state of borderline heart failure when the examination was performed and must have had a history of high blood pressure. He testified on direct examination as follows: Q. All right. Doctor, based upon your findings and a reasonable degree of medical certainty, do you have an opinion as to whether the patient exhibited the risk of factors for the development of coronary artery disease prior to this incident? A. Yeah. The foremost risk factor in this man’s history and examination would be that of cigarette smoking. Second, we could put hypertension. Actually, diabetes would be second when we list the risk factors, but he has hypertension and that’s the third. And then the fourth would be the familial history of close family members with the disease itself. So those are four major risk factors. He had three out of those four. Whether or not he’ll become a diabetic later on is a matter to be observed because that also runs in the family. (Deposition testimony of July 3, 1991, pp. 15-16). Dr. RuDusky concluded that there was no relationship between Zuczek’s heart attack and his employment. Q. And what do you base your upon [sic], sir? A. Well, basically, of my knowledge of 26 years of practice of medicine and many years of previous research and the present medical literature. If I give you — and I can pick out two. I have to [sic] two here and three at home, due to limited space, I can pick out basically any major textbook of cardiology or any basic good textbook of internal medicine, like Cecil’s or Harrison, which are the two major, and if you look at all the risk factors for the development of coronary artery disease, fire fighting is not listed as one of those factors. Now, I should qualify that so somebody wouldn’t think I’m stupid. Excessive inhalation of carbon monoxide has been shown to cause cardiac eurhythmia [sic]. It has been shown to cause angina pectoris in the people who have coronary artery disease. And it has been shown — I collected, I think — I had two, possibly three cases of acute myocardial infarction in fire fighters. During or at a time period peri-fire, that’s p-e-r-i, like we call peri-operative. This is peri-fire fighting period, whereby these patients with advanced coronary artery disease did get a heart attack. I mean, now, whether they got it from the carbon monoxide, whether they got it from the anxiety, whether they got it from climbing a ladder, whether they got it from inhalation of some other toxic fumes at the time, I mean, who knows, but it’s a combination. And it can happen to anybody, just like if I have a 90 percent obstruction and the bell rings here and I have to run down the stairs and run out in the cold weather and I just had a heavy lunch, I may get a heart attack, too. But as such, there is no true research or medically documented evidence that fire fighting is a true risk factor for the development of atherosclerosis. We know it can cause problems in those individuals that I’ve mentioned at those particular times. I think that goes without question. We all agree with that. I have never disagreed with that. Q. Were you able to find any evidence of excessive inhalation of carbon monoxide in this particular patient? A. No. In fact, I think even for that time period before this all happened — of course, he came to work at four so he was at home all day — but I think even that day before — several days before he also did nothing to the best of my knowledge as far as fighting fires. (Depo. testimony, pp. 22-24) (emphasis added). On cross-examination, Dr. RuDusky expounded on his opinion and explained that stress and anxiety in a person who has coronary heart disease can contribute to angina pectoris and cardiac dysrhythmia. He was questioned about the effects of smoke inhalation and reaffirmed his opinion that anxiety, stress and carbon monoxide inhalation may trigger artery spasms in those who have coronary heart disease. A distinction was drawn, however, between risk factors that contribute to the development of cardiovascular disease and those that would aggravate the disease. Q. Now, Doctor, would you — would you state that — or could you state that the inhalation of smoke, fumes, toxins, carbon monoxide could contribute to the development of cardiovascular and heart disease? A. No. What it does is at the time of inhalation aggravate the state of what is already there and produce angina, and in some cases I mentioned, myocardial infarction from those who have had advanced coronary artery disease with obstruction, and the artery goes into spasm from anxiety, stress, carbon monoxide inhalation. More often what they get is either angina or cardiac eurhythmia [sic], irregularities of the heartbeat. The amount of myocardial infarctions caused by even temporary inhalation of carbon monoxide are very small. It took me quite a literature search. I forget how long it was, but it was from here to my window, which should be about at least 12 feet from the computer, The National Archives in Medicine. And I think I picked up three cases of heart attacks in fire fighters. And these people all had coronary artery disease already at the time. And that’s not an unexpected event, by the way, under the circumstances because we can get it just it [sic] from working around places in which there’s low oxygen tension if you have advanced coronary artery disease or, like I said, just running up a flight of stairs or two. Q. But then let’s assume that someone has underlying coronary artery disease and what you’re saying then that exposure to stress and inhalation of smoke and fumes could tip off a heart attack? A. Yeah, under a certain set of excessive circumstances; or what it’s more apt to tip off is the chest discomfort, which is called angina pectoris, and then when the offending factors or agents are removed, then the chest discomfort will subside, just like if you stop working and your chest pain goes away within ten minutes or if working [sic] a quarter of a mile and you get claudication of the legs, the first thing you — a doctor does is say, Well, what happens when you stop? They say, Oh, it goes away in ten minutes, but if I go the same distance, it comes back. The same thing will happen to a fire fighter. (Depo. testimony, pp. 29-31). There is a significant difference between medical testimony that fire fighting has no effect on an individual’s heart and lungs and that which acknowledges that the risks of fire fighting may trigger a heart attack. Unlike the medical expert in Mareks, Dr. RuDusky recognized the role that the inhalation of smoke and carbon monoxide may play in inducing cardiac arrhythmia and in causing angina pectoris in individuals who have coronary artery disease. He acknowledged that the conditions encountered by fire fighters in the course of their employment may precipitate a heart attack and distinguished this from the factors that contribute to the development of cardiovascular disease. Dr. RuDusky obviously did not reject the idea that the peculiar stresses of fire fighting may trigger a heart attack. It was his opinion, however, that in this case Zuczek’s heart attack was not induced by his fire fighting activities and that Zuczek had exhibited multiple risk factors for the development of coronary artery disease prior to the heart attack. Dr. RuDusky’s opinion was consistent with the personal and family history given to him by Zuczek and the fact that Zuczek was not engaged in fire fighting activities when he suffered the heart attack. It was only by ignoring crucial portions of Dr. RuDusky’s testimony that the Commonwealth Court created the impression that the physician refused to recognize that existing heart and lung diseases may be aggravated by .extreme over-exertion and the types of dangers which fire fighters are exposed to as part of their occupation. Dr. RuDusky’s testimony was competent medical evidence that the referee could consider in determining whether the City of Wilkes-Barre had rebutted the evidentiary presumption that Zuczek’s heart attack was work-related. When faced with conflicting medical evidence, the referee is free to accept the testimony of any one medical witness over another. Nesman v. Workmen’s Compensation Appeal Board, 121 Pa. Cmwlth. 90, 550 A.2d 583 (1988). In this case, the referee chose to believe the testimony of Dr. RuDusky, a specialist in cardiovascular disease, rather than that of Zuczek’s treating physician who specialized in geriatrics. If we do not accord the findings of the referee due deference when supported by competent medical evidence then the nonconclusive presumption of Section 301(e) of the Act would be disregarded and an irrebuttable presumption substituted instead. The order of the Commonwealth Court is reversed and the decision of the referee is reinstated. CAPPY, J., concurs in the result. MONTEMURO, J., is sitting by designation. . We note that after this case was submitted on briefs, the Commonwealth Court addressed the identical issue in its published opinion in Buchanan v. Workmen’s Compensation Appeal Board (City of Philadelphia), 659 A.2d 54 (Pa.Cmwlth. 1995). In that case, the expert had testified that the fire fighter’s employment had not caused or aggravated his coronary heart disease but acknowledged on cross-examination that a person who has demonstrated progressive heart disease would be more susceptible to myocardial infarction than a normal healthy adult when exposed to toxic fumes and gases. The court determined that the employer’s medical testimony was competent and substantial evidence upon which the referee could properly conclude that the employer had rebutted the presumption that the fire fighter’s heart disease was causally related to his employment.

ORDER AND NOW, this 20th day of June, 1995, the Petition for Allowance of Appeal is granted limited to the issues of: (1) what indicia of reliability are required under the Tender Years Hearsay Act, 42 Pa.C.S. Subsection 5985.1; (2) whether the Act violates the confrontation clause of Article 1 Section 9 of the Pennsylvania Constitution; and (3) whether counsel was ineffective for failing to object to the admission of testimony of the caseworker and psychotherapist concerning the victim’s statements about alleged incidents of sexual abuse under the Act where notice required by 42 Pa.C.S. Subsection 5985.1(b) was not provided by the Commonwealth until after the first day of trial. MONTEMURO, J., is sitting by designation.

OPINION OF THE COURT CASTILLE, Justice. This case presents the issue of whether the Real Estate Tax Sale Law (the “Tax Sale Law”), 72 P.S. § 5860.101 et seq., requires individual notification of a pending tax sale of real estate to each of the three persons listed on the deed to the real estate, each of whom are the trustees of the real estate for an unincorporated association. For the reasons set forth below, we find that the Tax Sale Law does require separate notification under such circumstances. Since appellant, the Lebanon County Tax Claim Bureau, failed to give individual notification to each of the instant trustees, we affirm the order of the Commonwealth Court which voided the instant tax sale of the trustees’ real estate. The facts are not in dispute. By deed dated October 3, 1961, Robert Krumbine, Harold J. Tice, and Robert E. Henning purchased a parcel of land situated in Lebanon County (the “property”) in their capacity as trustees for the South Lebanon Rod and Gun Club (the “Club”), an unincorporated association. Each of the trustees’ names appeared on the indenture agreement as the purchasers of the property. However, the agreement listed only Tice’s address. Tice’s address was also listed on the Lebanon County Assessment Office records, and all tax bills were subsequently mailed exclusively to that address. In September 1991, the Lebanon County Tax Claim Bureau (the “Tax Bureau”) sold the property in satisfaction of delinquent taxes for the tax year 1989. The Tax Bureau mailed notice of the tax sale only to Harold Tice; the Tax Bureau did not mail notice of the tax sale to either Krumbine or Henning, even though their names were also listed on the indenture agreement. After the Tax Bureau sold the property, appellees (as the Club’s trustees) appealed the sale to the Lebanon County Court of Common Pleas, arguing that notice of the sale was per se insufficient since the Tax Bureau failed to mail notices of the sale to the other two named trustees, Krumbine and Henning. Following a bench trial, the trial court upheld the tax sale, finding that the Club and not the trustees owned the property and, therefore, that the trustees were not each entitled to notice before the sale could occur. On appeal, the Commonwealth Court reversed the trial court’s order, finding that the Club could not be considered the legal owner of the property and, therefore, that the Tax Bureau’s sole notification to appellee Tice was per se insufficient. This appeal followed. Notice of a pending tax sale must be given at least 30 days before such sale (1) by publication in two newspapers of general circulation and in one legal journal; (2) by certified mail to each owner of the property; and (3) by posting. 72 P.S. § 5860.602. Accord Geier v. Tax Claim Bureau of Schuylkill County, 527 Pa. 41, 44, 588 A.2d 480, 482 (1991). There is no dispute that the Tax Bureau gave notice of the instant tax sale by publication and posting. Rather, the sole dispute in this matter relates to whether the Tax Bureau gave sufficient notice by certified mail to each “owner” of the property. For purposes of determining to whom certified mail notification is required to be sent, an “owner” of real estate is defined as, inter alia, the person whose name appears as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording. 72 P.S. § 5860.102. Here, the instant conveyance document listed “Robert Krumbine, Harold J. Tice, [and] Robert E. Henning, Trustees for SOUTH LEBANON ROD AND GUN CLUB, an unincorporated association” as the purchasers of the property. Since these were the only grantees listed on the conveyance document, only (1) the South Lebanon Rod and Gun Club; and/or (2) Robert Krumbine, Harold J. Tice, and/or Robert E. Henning, as trustees for the Club, could have been the “owner(s)” of the property to whom the Tax Bureau was required to send certified mail notice of the tax sale. Absent express statutory authority, however, an unincorporated association is not a legal entity; it has no legal existence separate and apart from that of its individual members. Selected Risks Insurance Co. v. Thompson, 520 Pa. 130, 135, 552 A.2d 1382, 1385 (1989). In turn, only an entity with a recognized legal existence may own and possess property. See Sumner v. Brown, 312 Pa. 124, 128,167 A. 315, 317 (1933) (partners own property as tenants in partnership and the partnership is not a legal or fictitious person capable of owning property sui juris). Accordingly, property ownership by an unincorporated association, which has no cognizable legal existence, is impossible absent statutory authority to the contrary; rather, an unincorporated association’s trustees take legal title to the property for the benefit of the association. In re Pittsburg Wagon Works’ Estate, 204 Pa. 432, 54 A. 316 (1903). See also Fuhrman v. Doll, 305 Pa.Super. 277, 281, 451 A.2d 530, 532-533 (1982) (property ostensibly owned by an unincorporated association is in reality held by the named trustees for the benefit of the present and future membership of the association); 6 Am.Jur.2d Associations and Clubs § 13; 7 C.J.S. Associations § 35; and 3 P.L.E. Associations and Clubs § 5; 15 A.L.R.2d 1451 (an unincorporated association cannot own property in its own name). Since no Pennsylvania statute authorizes an unincorporated association to take title to property in its own name, it would be patently unreasonable to conclude that a Pennsylvania unincorporated association could nonetheless be considered the “owner” of property merely because the association’s name appears on the document by which property is conveyed. Of 10 P.S. § 21, Religious Societies Empowered to Hold Real Estate. As such, an unincorporated association cannot be an “owner” of real estate to which notification of a tax sale of real property is required to be sent. See 1 Pa.C.S. § 1922(1) (in construing the meaning of a statute, it is presumed that the General Assembly did not intend a result that is impossible of execution or that is unreasonable). See also Treaster v. Union Township, 430 Pa. 223, 227, 242 A.2d 252, 255 (1968) (statutes are presumed to employ words in their popular and plain everyday sense, and the popular meaning of such words must prevail unless statute defines them in a contrary manner). Thus, because the South Lebanon Rod and Gun Club is an unincorporated association which cannot acquire and hold property in its own name, it could not have been the “owner” of the property to which notification of the tax sale was required to be sent. In contrast, since legal title to property vests in the trustees of an unincorporated association, such trustees may be considered the “owners” of property in accordance with 72 P.S. § 5860.102 when the trustees’ names appear on the conveyance document. Therefore, since the instant conveyance document listed the names “Robert Krumbine, Harold J. Tice, and Robert E. Henning,” each of them is to be consid ered an “owner” of the property. Therefore, the instant tax sale of the property cannot stand absent notice to each “owner” of the property. 72 P.S. § 5860.602. The Tax Bureau argues that the Club’s trustees were not each entitled to individual notification because they were not the “owners” of the property as that term is commonly understood. The Tax Bureau maintains that property ownership entails certain rights incident to that ownership interest and that since association trustees do not enjoy all the rights normally associated with property ownership, they should not be considered “owners” of property under 72 P.S. § 5860.602. In support of this argument, the Tax Bureau cites Fuhrman v. Doll, supra, 305 Pa.Super. at 280-281, 451 A.2d at 531, in which the Superior Court determined that an unincorporated association’s trustees do not enjoy all of the rights and incidents of property ownership. In Fuhrman, a group of trustees bought a hunting camp and took title to the camp in their own names for the benefit of their hunting club. Later, the club removed one of the trustees from their membership; that trustee then sought a judicial partition of the real estate. The Superior Court denied the partition request on the basis that the trustees owned the property for the benefit of the association and not for the benefit of the trustees and that, therefore, an individual trustee could not demand a judicial partition of the property. Id. In the instant matter, the Commonwealth Court found Fuhrman unpersuasive in determining the proper “owner” of property for purposes of the Tax Sale Law’s notification requirements. We agree. Fuhrman presented the issue of whether a trustee’s rights to the property as a title holder to the property trumped the association’s members’ rights to the property. The Fuhrman court determined that since the trustee took title to the property not for his own benefit but only for the association’s benefit, he could not seek a partition of the property and, therefore, he did not enjoy all of the benefits of property ownership. Here, however, the instant trustees demanded individual notice of the tax sale in order to preserve, not destroy, the association’s members’ right to benefit of the property. There is, therefore, no need for this Court to determine the extent of the trustees’ rights in the property relative to the association’s members’ rights in the property as there was in Fuhrrrum. Rather, we are charged with another task for which Fuhrman is of little or no assistance. We must determine whether the Tax Sale Law required the Tax Bureau to send by certified mail three separate notifications of the tax sale to each of the trustees, Robert Krumbine, Harold J. Tice, and Robert E. Henning, or whether the Tax Sale Law only required the Tax Bureau to send by certified mail one notification of the tax sale. We hold that the Tax Sale Law requires certified mail notice to be sent “to each owner” of the property pursuant to 72 P.S. § 5860.602(e)(1) and that for this purpose, the trustees in this case are the owners of the property to whom such notice was required to be sent. In Teslovich v. Johnson, 486 Pa. 622, 627, 406 A.2d 1374, 1377 (1979), this Court affirmed the individual notification requirement, holding that the Tax Sale Law requires that every owner of property must be treated as distinct from each of the other owners of the same concurrently-owned property and, therefore, that separate and individual notice must be sent by certified mail to each named owner of property for which a tax sale is contemplated. The Court also determined that “[t]he notice provisions of the tax sale statute must be strictly complied with in order to guard against the deprivation of property without due process of law.” 486 Pa. at 628, 406 A.2d at 1378. Here, the conveyance document did not differentiate between the interests in the property held by Tice, Krumbine, or Henning, the named trustees for the Club. Accordingly, for purposes of the Tax Sale Law, Tice, Krumbine and Henning became the concurrent owners of the property when the property was conveyed to them as trustees in 1961. See Graham’s Estate, 218 Pa. 344, 351-354, 67 A. 458, 466-467 (1907) (where there are two or more trustees, they constitute but one collective trustee whose powers, interest, and authority are equal and undivided; and, on the death of one of several co-trustees, the doctrine of survivorship applies) and Hunter v. Anderson, 152 Pa. 386, 389-390, 25 A. 538, 540 (1893) (same). Later, when the property was listed for the tax sale, the Tax Bureau sent notice by certified mail only to Harold Tice; no notice was mailed to or received by either of the other two trustees and joint tenants, Krumbine or Henning. As such, the Tax Bureau failed to send notice of the tax sale by certified mail to each owner of the property as required by the Tax Sale Law. Accordingly, we set aside the instant tax sale because the property was owned jointly and notice of the tax sale was not given to each of the joint owners. Geier, supra, 527 Pa. at 46-47, 588 A.2d at 483; Teslovich, 486 Pa. at 628, 406 A.2d at 1378. The order of the Commonwealth Court is affirmed. MONTEMURO, J., is sitting by designation. . We note that appellate review in tax sale cases is limited to determining whether the trial court abused its discretion, rendered a decision without substantial supporting evidence, or clearly erred as a matter of law. Appeal of Marple Springfield Center, Inc., 530 Pa. 122, 126, 607 A.2d 708, 709-710 (1992). . But see Pa.R.C.P. 2153(a), (c), Actions against [Unincorporated] Associations, which authorizes civil legal action against a Pennsylvania unincorporated association in its own name. Accordingly, for purposes of suit, the law treats unincorporated associations as a separate legad entity. See also Pa.R.C.P. 2152, Actions by [Unincorporated] Associations, which limits civil legal action by a Pennsylvania unincorporated association only in the name of a member or members as trustees ad litem for such association. Therefore, a Pennsylvania unincorporated association may be considered a legal entity for some purposes and not for others. This legal disparity exists in the law of most of our sister states as well. See, e.g., Hutchins v. Grace Tabernacle United Pentecostal Church, 804 S.W.2d 598 (Tex.App.1991) (rule authorizing suit by or against unincorporated association in its common name for purpose of defending or enforcing substantive right does not create in unincorporated entity ability to hold real estate); Jones v. Alpine Investments, Inc., 764 P.2d 513 (Okl.1987) (former statute which provided for the manner in serving unincorporated association which appeared as owner of real properly did not confer upon unincorporated associations generally the capacity to take title to realty). Compare Future Federal Sav. and Loan Ass’n v. Daunhauer, 687 S.W.2d 871 (Ky.App.1985) (unincorporated association, which was not a legal entity, could not hold title to real property, in absence of some statute providing for such title) with American Collectors Exchange, Inc. v. Kentucky State Democratic Central Executive Committee, 566 S.W.2d 759 (Ky.App.1978) (association itself can be made a party to class action suit in that such association is deemed, pursuant to statute, to have "sufficient legal entity” to be sued in such fashion). Compare also Crane v. Crane, 683 P.2d 1062 (Utah 1984) (unincorporated association cannot hold or transfer title to property) with Utah Bankers Ass’n v. Utah Dept. of Financial Institutions, 888 P.2d 714 (Utah App.1994) (an association may bring an action on behalf of its members). . The Tax Bureau also argues that since the instant conveyance document designated Tice as the sole recipient of all tax-related correspondence and because Tice was in fact the sole recipient of all tax-related correspondence, the notice of the tax sale it sent exclusively to Tice was legally sufficient notice. This position ignores, however, the notion that due process requires notification of a tax sale to each owner of property sought to be sold under the Tax Sale Law. Geier, supra, 527 Pa. at 46-47, 588 A.2d at 483. In Geier, it was the contractual responsibility of Geier's co-tenant to pay all property taxes. Geier never received any tax bills and never paid any of the taxes on the subject property. Nevertheless, this Court set aside the tax sale of the property, holding that the county tax claim bureau failed to satisfy the requirements of due process in conducting the tax sale when it sent notice of the sale only to Geier’s co-tenant and failed to send notice to Geier. Id. Accordingly, we reject appellant’s argument that certified mail notice of a tax sale of property sent to a named agent and not to each owner as required by the Tax Sale Law is legally sufficient notice.

OPINION IN SUPPORT OF AFFIRMANCE ZAPPALA, Justice. Phar-Mor, Inc. failed to establish any of the prerequisites under the Labor Anti-Injunction Act, 43 P.S. § 206a et seq., necessary to grant injunctive relief. The record in this case demonstrates that Phar-Mor sought to enjoin nothing more than peaceable leafletting and brief contacts with its employees by union agents. The trial court properly found that the union’s activities did not fall within the narrowly circumscribed exceptions in § 206 under which injunctive relief may be granted. The Labor Anti-Injunction Act deprives the courts of this Commonwealth of jurisdiction to issue any restraining order or temporary or permanent injunction in labor disputes except in strict conformity with its provisions. 43 P.S. § 206d. No restraining order or injunction may be issued contrary to the stated public policy of the Act, which is declared as follows: Under prevailing economic conditions developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint or coercion of employers of labor or their agents in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 43 P.S. § 206b. In furtherance of this stated policy, the Act provides that no court shall issue any restraining order or temporary or permanent injunction except under extremely limited circumstances. 43 P.S. § 206L To issue a restraining order or grant injunctive relief, a court must conduct a hearing upon a complaint made upon oath and make findings of fact that each of the following prerequisites have been established: (1) unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained; (2) that substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted; (3) that greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by granting of relief; (4) the complainant has no adequate remedy of law; and (5) that public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection. 43 P.S. § 206i(a), (b), (c), (e), (f). In this case, the parties agreed to waive an evidentiary hearing and submitted the matter to the trial court on the basis of the facts alleged in the complaint. The union agreed to accept the factual averments in the complaint as true solely for purposes of the court’s decision on Phar-Mor’s request for a preliminary injunction, with certain exceptions relating to the extent of damages claimed by Phar-Mor. The parties agreed that the union would file preliminary objections to the complaint on the grounds that the grant of an injunction was prescribed by the Labor Anti-Injunction Act. Phar-Mor’s complaint addressed instances of union activity at two separate locations and attached the affidavits of the store managers from each location. On July 3, 1990, the United Food and Commercial Workers Union Local 1776 began distributing literature and soliciting employees at Phar-Mor’s location on Franklin Mills Circle in Philadelphia, Pennsylvania, identified as Store No. 164. The union appeared at the store during working hours to solicit employees and to distribute literature on the sales floor and within non-public areas of the facility. The union organizers and agents subsequently appeared at Store No. 164 on three separate occasions on August 7, 1990, on October 8, 1990, and on November 14, 1990. Six organizers distributed literature on October 8,1990; eight organizers were present on November 14, 1990. The affidavit of Bill Vincent, Store No. 164’s manager, provided additional details of the union organizers’ activities on those occasions. Vincent stated that on July 3, 1990, the organizers distributed union materials and cards to employees throughout the store during work hours. On July 8, 1990, a store meeting was held at 6:30 p.m. for all store employees. One hour later, 12 vehicles pulled into the store parking lot. The individuals who were in the vehicles handed out union materials and cards to employees as they were leaving and also placed the materials on windshields of cars in the parking lot. Vincent informed the organizers of Phar-Mor’s No Distribution/No Solicitation policy and asked them to vacate the premises. He called mall security and the Philadelphia Police Department when they refused to leave. At that time most of the Phar-Mor employees had gone, leaving the organizers’ vehicles, three mall security chiefs, five Philadelphia police vehicles and one unmarked police vehicle parked in front of the store. This show of security and police force was the manager’s response to the mere presence of the union organizers and leafletting outside of the store. The organizers left. On July 9, 1990, four union organizers entered the store. The store manager spoke with them about Phar-Mor’s policy and asked them to leave. After a brief discussion, Vincent asked one of the individuals to get out of the store. On August 7, 1990, the union organizers solicited the employees during work hours and distributed literature throughout the store. On September 24, 1990, a Phar-Mor employee who was not scheduled to work was found placing union literature into employee time card slots. She was informed that this was in violation of Phar-Mor’s policy and was asked to stop. On October 8, 1990, six organizers attempted to distribute union flyers to employees during work hours. The literature was left scattered throughout the store. On November 14, 1990, approximately eight organizers entered the store and went in different directions to speak with employees who were on duty. They were escorted out of the building but attempted to return. The Civil Affairs Division of the Philadelphia Police Department was called, but the store received no response. As to Phar-Mor’s Store No. 223 located at Great Northeast Plaza in Philadelphia, the complaint asserted only that the union has repeatedly entered the store to solicit employees and distribute literature. The literature was discovered by employees throughout the store, including shelf areas. The affidavit of Mike Moran, the manager, stated that the union appeared at the store on July 3, 1990. He indicated that organizers repeatedly attempted to enter the store after that to solicit employees and distribute literature. The affidavit failed to specify any dates other than July 3, 1990, or even the number of occasions on which the organizers appeared at the store. Moran indicated that he informed the organizers of Phar-Mor’s policy and asked them to vacate the premises. The organizers resisted leaving the store and occasionally shouted at management personnel within the store. On one occasion, he called the Civil Affairs Division of the Philadelphia Police Department for assistance. The presence of the union organizers at Store No. 164 to distribute literature and to speak to employees on four occasions averaging once per month was claimed to have caused “a severe disruption of [Phar-Mor’s] work force.” Phar-Mor complained that the appearance of the stores had been negatively affected by distribution of union literature resulting in a loss of goodwill with its customers. There was no claim that the union’s activity at either store caused any personal or property damage. Nor did Phar-Mor assert that the presence of the union organizers at Store No. 223, or at Store No. 164 during the four days spread throughout July to November, caused a loss of revenues. On February 5, 1991, the trial court entered an order dismissing Phar-Mor’s Petition for Preliminary Injunction. The court specifically found that none of the prerequisites to the grant of injunction required under 43 P.S. § 206i had been established. The court noted that Phar-Mor’s sole basis for injunctive relief was that union proponents had approached its employees on store property to discuss the benefits of union membership and to distribute pro-union literature. In the absence of any allegation or suggestion that there had been damage to Phar-Mor’s property or any injury to its customers, employees, or management personnel, the trial court concluded that injunctive relief was inappropriate. The court specifically found that ... there was no testimony or evidence, with the exception of the few moments which a Union proponent engaged an employee in conversation regarding the benefits of Union membership, that the conduct of plaintiffs business has been in any way disrupted. On the contrary, testimony tended to show that employees and customers have been free to enter and exit plaintiffs premises without threats of coercion or intimidation, and sales have been transacted without interruption. (Trial court slip opinion at 7). The court determined that union activity which inconvenienced Phar-Mor’s No Solicitation/No Distribution policy was an insufficient basis for relief and that “there was absolutely no reasonable basis ... to conclude that defendant has engaged in any illegal activity.” The standard of review of the grant or refusal of a preliminary injunction requires consideration only of whether there were any apparently reasonable grounds for the action of the lower court. Wilkes-Barre Independent Company v. Newspaper Guild, Local No. 120, 455 Pa. 287, 314 A.2d 251 (1974). “[W]e will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable.” Id., 455 Pa. at 289, 314 A.2d at 253 (Citation omitted.). Pursuant to § 206i of the Labor Anti-Injunction Act, injunctive relief may not be granted unless all of the prerequisites have been established. The record in this case supports the trial court’s conclusions that none of the prerequisites were met. No unlawful acts were committed or threatened to be committed by the union. The distribution of union literature in the stores and contact with store managers is not unlawful conduct under 206i(a). No evidence was submitted which would establish that substantial and irreparable injury to Phar-Mor’s property would follow unless an injunction was granted. Phar-Mor’s discomfort that the stores’ condition fell below its customary maintenance standard is neither a substantial nor irreparable injury to property. Litter resulting from the distribution of handbills fails to satisfy this standard. This case falls far short of the activity which was found to be sufficient to warrant issuance of an injunction in Giant Eagle Markets v. United Food and Commercial Workers Union, Local Union No. 23, 539 Pa. 411, 652 A.2d 1286 (1995). There, the trial court had granted injunctive relief based upon evidence that union workers were engaged in mass picketing during a strike, resulting in violence and intimidation directed against employees and individuals who wished to cross the picket line. Witnesses testified that fifty to sixty pickets would stand shoulder to shoulder and block store entrances and exits, sometimes surrounding customers to prevent them from entering. Various violent acts occurred during the pickets, including a shattered windshield of a delivery van, flattened tires of another delivery truck, and rodent traps in the aisles of one store. We stated that isolated instances of the application of force or intimidation do not constitute a seizure, but “when pickets begin a consistent pattern of subjecting customers and employees to such acts, a seizure occurs.... ” Id. 539 Pa. at 425, 652 A.2d at 1292. We concluded that the trial court had reasonable grounds to find that the actions of the pickets had the effect of denying Giant Eagle’s agents and employees free access to its property. We held that mass picketing constitutes a “seizure” under Section 206d of the Labor Anti-Injunction Act “when it ceases to perform its lawful purpose of placing the public on notice that a strike is underway, and instead becomes a means of influencing labor negotiations through harassment and intimidation.” Id., 539 Pa. at 426, 652 A.2d at 1293. The mass picketing and resulting seizure of the employer’s property which established a basis for injunctive relief is not present in the instant case. Nor does the union’s activity rise to the level of the actions in Indiana Cobra v. Local No. 23, 406 Pa.Super. 342, 594 A.2d 368 (1991), alloc, den., 530 Pa. 655, 608 A.2d 30 (1992), in which the Superior Court reversed a trial court order granting injunctive relief to the owner and operator of a Giant Eagle supermarket. The evidence established that union pickets appeared at the store to pass out leaflets and to advertise that it was a non-union store. Approximately ten to twelve pickets would block the exit from the store and customers were forced to push through them or to walk on a busy thoroughfare. Store employees and customers pushing carts had to walk on the street to avoid physical confrontation with the pickets. Pickets used threatening language and gestures to customers and employees. The Superior Court indicated that the trial court failed to make the requisite findings under § 206i. The trial court had merely stated in its opinion that there was the danger of public disorder and irreparable harm and an attempt to seize the store’s property. The Superior Court held that the evidence was insufficient to prove a seizure of the property and that there was no factual basis to support the findings required to enjoin the union’s informational picketing activities. In this case, the lower courts found (1) that Phar-Mor had failed to show that the inconveniences occasioned by the union’s sporadic appearances at its stores and distribution of literature would result in a greater injury to Phar-Mor than the harm that would result if the union was precluded from peacefully dispensing union information to Phar-Mor employees; and (2) that the police department’s failure to take action reflected its belief that the union activity did not constitute unlawful behavior rather than an inability to handle the situation. The record supports these conclusions as well. For these reasons, the order of the Superior Court should be affirmed. CAPPY and CASTILLE, JJ., join this Opinion in Support of Affirmance. OPINION IN SUPPORT OF REVERSAL FLAHERTY, Justice. This case involves the scope and application of the Pennsylvania Labor Anti-Injunction Act, 43 P.S. § 206a et seq. Phar-Mor, Inc., sought injunctive relief against allegedly illegal, trespassory on-premises solicitation of Phar-Mor employees as part of organizing efforts by the United Food and Commercial Workers Union Local 1776 (UFCW), after local police had refused to interfere without a court order. The trial court held that injunctive relief was barred by the provisions of the labor anti-injunction act, and the decision was affirmed by the Superior Court. We granted allocatur to review the interpretation and application of the act. Phar-Mor initiated this suit by filing a complaint and a petition for a temporary restraining order or a preliminary injunction against UFCW. The parties agreed that no evidentiary hearing was necessary but that UFCW would, for purposes of ruling on preliminary injunctive relief, accept the facts in the complaint and petition as true; UFCW filed preliminary objections, however, claiming that the factual allegations, if true, did not warrant relief. The agreed-upon facts are as follows. Phar-Mor operates a chain of retail stores including two in Philadelphia which are the subject of this lawsuit. Throughout the latter half of 1990, UFCW sent organizers to the stores to solicit Phar-Mor employees to join the union. The organizers entered the stores to talk with employees and to distribute union literature. Phar-Mor, at all relevant times, maintained and enforced a company-wide policy stated as follows: “Solicitation and/or distribution of literature on Company premises by anyone not employed by Phar-Mor is strictly prohibited.” Phar-Mor managers repeatedly informed the UFCW organizers that soliciting on-duty Phar-Mor employees and distributing literature on the sales floors and in non-public areas of the stores was a violation of the no-solicitation policy and repeatedly requested that the organizers leave the premises. UFCW organizers ignored Phar-Mor’s requests and warnings, disrupting Phar-Mor’s business by interrupting its employees’ work, leaving literature scattered throughout the stores, harassing Phar-Mor employees, and shouting at Phar-Mor managers, thereby adversely affecting Phar-Mor’s customer goodwill. Phar-Mor sought assistance from Philadelphia police against UFCW’s trespasses, but the police indicated that they would not act without a court order. Based on these facts, the trial court refused to grant injunctive relief, citing the Pennsylvania Labor Anti-Injunction Act. The court focused on the requirements of 43 P.S. § 2061, which provides: § 206i. Basis for labor injunctions No court of this Commonwealth shall issue any restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court to the effect— (a) That unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained, but no temporary or permanent injunction or temporary restraining order shall be issued on account of any threat or unlawful act, excepting against the person or persons, association or organization, making the threat or committing the unlawful act, or actually authorizing or ratifying the same after actual knowledge thereof. (b) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted. (c) That, as to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by granting of relief. (d) That no item of relief granted is relief which is prohibited under section six of this act [43 P.S. § 206f]. (e) That complainant has no adequate remedy at law; and (f) That the public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection. The court summarized the act as follows: the complainant must specifically show, inter alia, that there has been threat of injury or actual injury to person or irreparable injury to property, and it must also be shown that union activists have committed unlawful acts for which the local police cannot furnish adequate protection. “Without substantial evidence to indicate that the employees seized, held, damaged, or destroyed the employer’s property with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining,” the court lacks jurisdiction to enjoin union activity under the Act and thus, the court cannot grant injunctive relief. PHK-P, Inc. v. Local 23, 381 Pa.Super. 544, 554 A.2d 519 (1989). The court concluded that injunctive relief was proscribed because “there was no evidence ... of any unlawful ... acts committed or threatened by defendant.” The Superior Court, applying the same statute, affirmed, holding: “No unlawful acts have been committed and no threats of unlawful activity have been made.” 429 Pa.Super. at 399, 632 A.2d at 916. We are not satisfied that the Superior Court’s restatements of the statute are correct, but, even under its own interpretation, it seems that the court ignored clearly unlawful behavior by the UFCW. Both courts concluded that UFCW’s disregard for Phar-Mor’s posted no-solicitation policy did not constitute “an unlawful act of criminal trespass” as there was “no breach of the peace,” meaning there was no violence or physical destruction of property. Id. Criminal trespass is defined as follows in the Crimes Code: (b) Defiant trespasser.— (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by: (i) actual communication to the actor; or (ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; (c) Defenses. — It is a defense to prosecution under this section that: (2) the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; ... 18 Pa.C.S. § 3503(b) and (c). It is conspicuously not a defense that the intrusion was peaceable. It is glaringly evident that under the stated facts, the acts of the UFCW organizers constituted criminal trespass. It follows that the first requirement of 43 P.S. § 206i has been met: “unlawful acts have been ... committed and will be continued unless restrained.” There is no requirement in section 206i(a) that the unlawful acts be aggravated by violence, vandalism, or viciousness. The trial court did not discuss the other requirements of section 206i, for its holding that no unlawful acts had been committed made it unnecessary to address the additional requirements. The Superior Court briefly discussed the other elements, holding that Phar-Mor had failed to establish those remaining requirements under the statute. We, too, will address the additional requirements for injunctive relief. First is the requirement of a substantial and irreparable injury. The Superior Court ignored the allegation of such injury to the goodwill of Phar-Mor customers and the deprivation of its right as owner to exclude others from enjoying its property. These are substantial property interests, loss of which has traditionally been deemed to be irreparable injury. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). The next statutory requirement is balancing the respective injuries which will flow from granting or denying an injunction. The Superior Court’s view was that the “inconveniences” suffered by Phar-Mor could not compare with UFCWs “right under the [Labor Anti-Injunction] Act to engage in collective action to protect and further employee economic interests.” 429 Pa.Super. at 401, 632 A.2d at 917. This is a superficial and inadequate comparison. We have already concluded that Phar-Mor suffered more than inconvenience — its injury was substantial and irreparable. Against that must be weighed the loss to the union; inasmuch as the UFCW has no right to conduct its organizing activities on Phar-Mor property, an injunction prohibiting such activities causes no loss to the union whatsoever. In attempting to organize Phar-Mor employees, the UFCW will retain all such rights as are guaranteed by the act and which may be conducted lawfully. It seems clear that the limited injunctive relief which has been requested will result in no loss to the union but is necessary to prevent injury to protected property rights of Phar-Mor. The Superior Court concluded that “the injunctive relief requested by Phar-Mor is specifically prohibited by 43 P.S. § 206f,” 429 Pa.Super. at 402, 632 A.2d at 918, listing seven provisions of the statute supposedly violated by the relief requested by Phar-Mor. The only explanation given by the court is that UFCW “used peaceful, non-destructive means” in its organizing efforts. While its activities were peaceful and non-destructive, they were not legal. Organizing activities which are legal in one time and place may be illegal in another context, and illegal activities are subject to injunction. The injunctive relief sought by Phar-Mor is simply to keep UFCW from trespassing — not to keep UFCW from conducting lawful union activities at any time or any place other than Phar-Mor property. The next requirement of the anti-injunction statute is that there be no adequate remedy at law. The Superior Court stated that “Phar-Mor has an adequate remedy at law since it has filed a complaint with the National Labor Relations Board alleging unfair labor practices.” Id. As to the distinction between legal and equitable remedies, resort to federal labor law has no application whatsoever. Federal labor law manifestly provides equitable, injunctive relief, so it is clear that mere resort to the NLRB does not indicate the availability of an adequate remedy at law. Thus, the requirement of 43 P.S. § 206i(e) has not been violated by Phar-Mor, as equitable relief is the only adequate remedy for the injury. The Superior Court apparently had reference to the doctrine of preemption, according to which the National Labor Relations Act preempts the jurisdiction of state and federal courts to regulate conduct subject to the act, which power is vested, rather, in the National Labor Relations Board, Kerr v. Butler Building Trades Council, AFL-CIO, 447 Pa. 247, 250, 288 A.2d 525, 526 (1972); the Pennsylvania Labor Relations Act, likewise, vests jurisdiction of labor disputes in the Pennsylvania Labor Relations Board rather than in the state courts. Id. at 254, 288 A.2d at 528. However, the doctrine of preemption does not apply when “the activity regulated was a merely peripheral concern of the Labor Management Relations Act.” San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). The conduct of UFCW in this case is indistinguishable from that of the union in Sears, Roebuck and Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). There, the Supreme Court held that the retail store, Sears, could obtain an orderly resolution of the question whether the union had a federal right to remain on Sears property only by proceeding in state court, despite the fact that the union activities were arguably protected or prohibited by federal labor law, as they are in this case. This was so because the controversy which Sears might have presented to the Labor Board is not the same as the controversy presented to the state court. If Sears had filed a charge, the federal issue would have been whether the picketing had a recognitional or work reassignment objective; decision of that issue would have entailed relatively complex factual and legal determinations completely unrelated to the simple question whether a trespass had occurred. Conversely, in the state action, Sears only challenged the location of the picketing; whether the picketing had an objective proscribed by federal law was irrelevant to the state claim. Accordingly, permitting the state court to adjudicate Sears’ trespass claim would create no realistic risk of interference with the Labor Board’s primary jurisdiction to enforce the statutory prohibition against unfair labor practices. Id. at 198, 98 S.Ct. at 1758, 56 L.Ed.2d at 226 (footnote omitted, emphasis added). This is equally true under our state labor laws. Moreover, not every dispute involving employers and em ployees is a labor dispute. As in the quotation from the Sears case, supra, the fundamental dispute in this case involves real estate; the fundamental issue is one of trespass. The trial court was not asked to decide labor law issues or to rule on activities as protected labor activities or unfair labor practices — it was asked to enjoin trespassory behavior, a simple question of property law. We conclude, therefore, that federal and state statutes do not preempt the state courts of jurisdiction in this case. Finally, under the labor anti-injunction act, an injunction may not issue unless the police cannot provide adequate protection. The Superior Court rejected Phar-Mor’s claim that the refusal of the police to act without a court order constituted evidence of inability to provide adequate protection. The Superior Court’s opinion was: “The police department’s refusal to act without a court order only indicates that it did not believe that intermittent conversation with employees and the scattering of literature around the [sjtores constituted unlawful behavior.” 429 Pa.Super. at 401-02, 632 A.2d at 917. Such a belief on the part of the police department is not surprising in view of the holdings of the lower courts. To affirm such an erroneous conclusion that UFCW’s trespassory conduct was lawful serves only to heighten the inability of the police to understand the law and to enforce it uniformly against all trespassers. Unwillingness of the police to intervene is equivalent to an inability to protect the property rights of the complainant. Certainly from the property owner’s perspective the result is the same — police protection is not available and resort must be had to the courts. The holding of the Superior Court is a classical non sequitur: because the police would be able to provide adequate protection if there were a court order, a court order is prohibited. We hold that this requirement of the anti-injunction statute has been satisfied. Accordingly, the judgment of the Superior Court should be reversed, and the case remanded to the trial court for entry of appropriate injunctive relief. This opinion is joined by NIX, C.J., and MONTEMURO, J. MONTEMURO, J., is sitting by designation. ORDER PER CURIAM. The Court being evenly divided, the Order of the Superior Court is affirmed. ZAPPALA, J., files an Opinion in Support of Affirmance in which CAPPY and CASTILLE, JJ., join. FLAHERTY, J., files an Opinion in Support of Reversal in which NIX, C.J., and MONTEMURO, J., join. . I agree with the lower courts that the union’s disregard of Phar-Mor’s No Solicitation/No Distribution policy by engaging in discussions with employees and leafletting was not an unlawful act of criminal trespass under the Crimes Code, 18 Pa.C.S.A. § 3503. . Section 206d, 43 P.S. § 206d, establishes a separate basis for the grant of injunctive relief in instances where the activities of a labor organization or its members result in a seizure of the property of the employer. . The National Labor Relations Act, 29 U.S.C. § 152(9), gives the following definition: the term "labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. The Pennsylvania statute defines "labor dispute” in virtually identical terms. 43 P.S. § 206c. Justice Montemuro is sitting by designation.

ORDER PER CURIAM: Appeal dismissed as having been improvidently granted. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: AND NOW, this 13th day of September, 1995, upon consideration of the Report and Recommendations of the Disciplinary Board dated August 16, 1995, it is hereby ORDERED that Ronda B. Goldfein be and she is suspended from the Bar of this Commonwealth for a period of one year and she shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM. Appeal DISMISSED as improvidently granted. MONTEMURO, Senior Justice, is sitting by designation.

OPINION MONTEMURO, Justice. Appellant, Salvador Carlos Santiago, was tried for the first time before a jury in November 1985. Appellant was charged with one count each of criminal homicide, robbery, and violation of the Uniform Firearms Act. At trial, Appellant presented an insanity defense, but ultimately was found guilty of all charges. The Court of Common Pleas of Allegheny County denied Appellant’s motions for post-verdict and supplementary post-verdict relief, and sentenced Appellant to death for first degree murder. Appellant was also sentenced to a consecutive term of imprisonment of ten to twenty years for robbery and two and one-half to five years for violation of the Uniform Firearms Act, to be served concurrently with the sentence for robbery. Following Appellant’s direct appeal to this Court, we vacated the judgment of sentence and remanded the matter to the Court of Common Pleas of Allegheny County for a new trial. Commonwealth v. Santiago, 528 Pa. 516, 599 A.2d 200 (1991). We concluded that Appellant’s Fifth Amendment right to counsel had been violated when Appellant invoked his right to counsel with regard to a different offense, but was interrogated subsequently by Pittsburgh police with regard to this offense. Id. at 522, 599 A.2d at 202-203. Appellant was tried for a second time on September 8,1992. At the close of the Commonwealth’s case, the trial court granted Appellant’s demurrer to the count charging a violation of the Uniform Firearms Act. On September 9, 1992, the jury found Appellant guilty of first degree murder and robbery. In the penalty phase of the trial, the jury unanimously found three aggravating circumstances which outweighed two mitigating circumstances. Appellant’s post-verdict motions were denied, and Appellant was sentenced to death for first degree murder and consecutively to ten to twenty years imprisonment for robbery. This automatic appeal follows. Appellant presents three issues to this Court. First, Appellant contends the trial court erred in admitting the psychiatric testimony of Dr. Robert Wettstein, which was introduced in his first trial where insanity was the defense, because no such defense was proffered on retrial. Second, Appellant asserts that the trial court erred in concluding that Dr. Wettstein was “unavailable,” thereby permitting the Commonwealth to introduce the transcript of his prior testimony at Appellant’s second trial. Third, Appellant claims his trial counsel was ineffective for failing to cross-examine Dr. Wettstein regarding statements the doctor made in his testimony during Appellant’s first trial. Before addressing the merits of these claims, however, we must review the sufficiency of the evidence supporting Appellant’s conviction for first degree murder, Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983), and conduct our statutorily mandated proportionality review. 42 Pa.C.S. § 9711 (h)(3)(iii). Initially, we note that Appellant has not challenged the sufficiency of the evidence supporting his homicide conviction. Nonetheless, we are required to conduct an independent review of the sufficiency of the evidence in every case involving a conviction for first degree murder. Zettlemoyer, 500 Pa. at 26 n. 3, 454 A.2d at 942 n. 3 (1982). We must determine whether the evidence and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 540, 510 A.2d 1217, 1218 (1986). Circumstantial evidence alone is sufficient to establish a defendant’s guilt. Commonwealth v. Gorby, 527 Pa. 98, 107, 588 A.2d 902, 906 (1991). The facts are as follows: On January 17, 1985, at approximately 8:00 a.m., Patrick Huber arrived for work at Minuteman Press, located on Carson Street in the South Side of Pittsburgh. Around 8:30 a.m., Huber left the store and walked down Carson Street to a restaurant called the Pickle Barrel, where he received change and purchased cigarettes. He then left the Pickle Barrel and returned to Minuteman Press. At approximately 8:40 a.m., Cindy Pasternak, Huber’s co-employee, arrived at Minuteman Press and parked behind the building. When she approached the front of the building and looked in the window, she noticed that something was amiss. Specifically, Pasternak testified that the rear portion rather than front portion of the interior of the store was illuminated, and a stranger was in the employee-only area. Pasternak watched the stranger for approximately ten seconds at a distance of about fifteen feet before he noticed her, at which point Pasternak ran to the Pickle Barrel where she remained until the police arrived. Responding to the radio call was Patrolman Donald Rosenberg, who found Huber lying face down in a utility room in Minuteman Press. Patrolman Rosenberg testified that Huber had a massive head injury to the rear of his head, which was later determined to have been caused by a single bullet. After permitting medical personnel to check the victim, Patrolman Rosenberg secured the building for homicide detectives. A search of the premises revealed that the money which had been left in the cash register overnight was gone. On January 22, 1985, Pasternak was shown seven photographs, including an older one of Appellant. Police Commander Ronald B. Freeman testified that when Pasternak came to Appellant’s picture she stated, “ ‘That looks like the guy’ ” or “ ‘could be the guy. I would know better if I saw him in person.’ ” (N.T. 9/8/92 at 189). Around May 8, 1985, Pasternak was again shown a photo array, including a recent color photograph of Appellant. Detective James Diskin testified that “ “when she came upon Mr. Santiago’s photograph, she said she was positive this was the man she saw in the Minuteman Press on January 17 of 1985.’” (N.T. 9/8/92 at 157-158). Pasternak also identified Appellant in court during his trial as the man she had seen in Minuteman Press on the day Huber was murdered. Finally, the Commonwealth introduced testimony from Appellant’s first trial given by Dr. Robert Wettstein, a forensic psychiatrist who had been appointed to assist in the preparation of Appellant’s insanity defense. This former testimony established that Dr. Wettstein had four meetings with Appellant between 1985 and 1986. Although Appellant denied any involvement with Huber’s murder during the first three meetings with Dr. Wettstein, Appellant did admit his participation during the final meeting. The following colloquy between Dr. Wettstein and the district attorney from Appellant’s first trial was read into evidence: Question: What did [Appellant] indicate happened on [January 17, 1985]? Answer: He indicated to me that he had been hearing this voice and that the voice had instructed him with regard to killing the victim ... Question: Was there anything else about the incident that he would confide in you? Answer: Not on that day. Question: He just said it’s some man, a voice, a male voice talked to him and that’s why he did the killing? Answer: Yes. (N.T. 9/8/92 at 247-248). On the basis of the standard articulated above, we conclude that the evidence presented is sufficient to sustain Appellant’s conviction for the first degree murder of Patrick Huber. We have also conducted the proportionality review required by 42 Pa.C.S. § 9711(h)(3)(iii) and as explicated by this Court in Commonwealth v. Frey, 504 Pa. 428, 443-445, 475 A.2d 700, 707-709 (1984). Based upon our review of data from the Administrative Office of Pennsylvania Courts, we find that the sentence of death imposed upon Appellant is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and record of the defendant. 42 Pa.C.S. § 9711(h)(3)(iii); Frey, 504 Pa. at 443-445, 475 A.2d at 707-709. Turning to the three issues raised herein, Appellant first contests the admission of Dr. Wettstein’s psychiatric testimo- admission of this evidence was proper, it may be assessed in our sufficiency review. ny from Appellant’s first trial, where he pursued an insanity defense, into evidence at his second trial, where he did not pursue an insanity defense. Appellant asserts the admission of Dr. Wettstein’s prior psychiatric testimony is barred by this Court’s decision in Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035 (1990). In Breakiron, the defendant was convicted of first degree murder and sentenced to death. In preparation for his defense, defendant underwent psychiatric evaluation to determine the viability of an insanity defense. Pursuant to Pa. R.Crim.P. 305C(2)(a), the Commonwealth was permitted to discover the results of the evaluation. This rule provides, in pertinent part, as follows: In all court cases, if the Commonwealth files a motion for pretrial discovery, the court may order the defendant, subject to the defendant’s rights against compulsory self-incrimination, to allow the attorney for the Commonwealth to [discover] ... results or reports of physical or mental examinations .. which the defendant intends to introduce as evidence in chief, or which were prepared by a witness whom the defendant intends to call at the trial, when results or reports relate to the testimony of that witness____ Pa.R.Crim.P. 305C(2)(a). Following the Commonwealth’s discovery of these reports, the defendant decided not to present an insanity defense and the reports were not used at trial. Pa.R.Crim.P. 305C(2)(a). On direct appeal to this Court, defendant argued “that allowing the Commonwealth access to the results of psychiatric examination which he indicates he intends to use, but then decides not to use in his case in chief, chills his right to investigate the defense at all.” Breakiron, 524 Pa. at 293, 571 A.2d at 1040. We disagreed and held as follows: The necessary implication of this rule allowing the Commonwealth access to these reports is that if the defendant changes his mind about using the reports after they have been made available to the Commonwealth pursuant to Rule 305, the Commonwealth may not introduce the reports into evidence or refer to the reports if the defendant does not ... If the Commonwealth may not use any such evidence at trial, the existence of the evidence is not impermissibly harmful to the defendant. The Commonwealth frequently has in its possession inculpatory evidence which is inadmissible except in special circumstances, and this is not deemed to violate the rights of a defendant. Id. at 293-294, 571 A.2d at 1040. Appellant argues that under Breakiron, the Commonwealth’s mere possession of Dr. Wettstein’s testimony pursuant to Rule 305C(2)(a) does not a priori permit its admission by the Commonwealth at trial. Rather, such testimony is only admissible after a defendant presents an insanity defense (or puts his mental state otherwise in issue) in his case in chief. Thus, Appellant contends, Dr. Wettstein’s testimony was improperly admitted because he did not present an insanity defense in his case in chief at his second trial. We disagree. The defendant in Breakiron never pursued an insanity defense at trial; he merely contested the Commonwealth’s possession of reports relating to his mental state under Rule 305C(2)(a). Herein, Appellant did pursue an insanity defense and had Dr. Wettstein testify on his behalf at his first trial. Moreover, although the Commonwealth obtained the evidence of Appellant’s admission to Dr. Wettstein pursuant to Rule 305C(2)(a) at the first trial, at the second trial the Commonwealth possessed the evidence as a result of its voluntary disclosure by Appellant at his first trial. Hence, the limitations of Rule 305 are inapplicable to this case. We also conclude that because Appellant voluntarily waived the psychiatrist-patient privilege, 42 Pa.C.S. § 5944, by pursuing an insanity defense in his first trial, he may not reclaim the privilege in a subsequent trial. Our decision in Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982), is instructive on this point. In Boyle, the defendant testified in his own behalf at his first trial. Boyle was convicted, but was granted a new trial. At his second trial, the Commonwealth was permitted to introduce portions of Boyle’s testimony from his first trial which evidenced Boyle’s consciousness of guilt, although the testimony did not constitute an admission per se. Boyle argued that because he did not testify at his second trial, the admission of his former testimony violated his right to silence. This Court disagreed, stating: “It has long been recognized that testimony from an earlier trial may be introduced in the prosecution’s case against a defendant regardless of whether that defendant takes the stand or not in the second proceeding.” Id. at 497, 447 A.2d at 256. Furthermore, while a defendant cannot be compelled to testify against himself, if a defendant does so voluntarily, “ ‘he cannot object to having it used against him. His constitutional privilege, as far as that testimony is concerned, is waived, and cannot be reclaimed in any subsequent trial of the same indictment.’ ” Id. at 498, 447 A.2d at 256 (quoting Commonwealth v. House, 6 Pa.Super. 92, 104 (1987)). The purpose of the psychiatrist-patient privilege is to protect confidential communications between the mentioned parties; it is not designed to protect that which is voluntarily disclosed. Commonwealth v. Goldblum, 498 Pa. 455, 464, 447 A.2d 234, 239 (1982). Like the defendant in Boyle who waived his privilege against self-incrimination by testifying in his first trial, Appellant voluntarily waived the psychiatrist-patient privilege when he decided to pursue an insanity defense in his first trial. Appellant cannot now use a new trial to reclaim the privilege. Appellant next argues that permitting the Commonwealth to read portions of Dr. Wettstein’s former testimony into evidence at Appellant’s second trial was error because the doctor was not “unavailable” under the common law exception to hearsay for prior testimony. Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979). This exception permits prior testimony to be admitted when a witness, who is physically available and competent, becomes legally “unavailable” due to partial or full memory loss. Id. at 37-38, 398 A.2d at 648-649; compare 42 Pa.C.S. § 5917 ■ (governing the admissibility of former testimony of a person who has died, or who cannot be produced for trial, or who is legally incompetent). Appellant asserts that the exception was improperly applied in this matter because Dr. Wettstein’s memory loss was not caused by his inability to remember the pertinent events, but by his reluctance to testify. The record, however, indicates otherwise. Dr. Wettstein first appeared as a witness in connection with Appellant’s second trial at a pre-trial hearing. At the hearing, Dr. Wettstein testified that he had no independent recollection of his conversations with Appellant and was relying upon his notes from those sessions: Q [by the Commonwealth]: Your first contact with [Appellant], that would have been in November of 1985; is that correct? A: According to the notes — and I have no independent recollection of anything probably that we’re going to discuss today. I’ll be referring to my notes. The first interview I had with him was on November 8th, 1985. (N.T. 4/29/92 at 79). Later in his pre-trial testimony, Dr. Wettstein again indicated his lack of memory: Q: Doctor, can we assume from what you’ve indicated so far that you clearly have no clear independent recollection of any conversation with [Appellant]? A: No, I do not. Id. at 85. Dr. Wettstein also declined the judge’s invitation to review his prior testimony: “I don’t think if I read the transcript at length I’m going to remember any more than I remember now ... even if I’m to testify, I’ll be able to say what’s in the testimony or what’s in my notes. I’ll have nothing else to say.” Id. at 91. Moreover, as the following colloquy between the district attorney and Dr. Wettstein at trial indicates, Dr. Wettstein did not have a present independent recollection of his meetings with Appellant in 1985: Q. Do you have today a present recollection of your interviews with Mr. Santiago? A. No. Q. Have you at the request of myself and others examined your notes, your prior testimony and your reports to see if that might refresh your recollection about the contents of those interviews with Mr. Santiago? A. Yes. I’ve done that. Q. And has that refreshed your recollection about the content of those interviews? A. No, it has not. Q. You know you had those interviews, right? A. Yes. Q. You just don’t recall their content? A. That’s right. So many years have passed now. Q. Having read through specifically testimony that you have given about those interviews, you also know that you have previously testified about the content, correct? A. Yes. Q. But it just doesn’t help you remember what the content was? A. That’s right. I only know what’s in those records. (N.T. 9/8/92 at 239-240). Based on this testimony, we find that the trial court correctly concluded that Dr. Wettstein was “unavailable” under the common law exception to hearsay for prior testimony. In his final claim, Appellant argues that his trial counsel was ineffective for failing to cross-examine Doctor Wettstein regarding his inability to recall the details of his meetings with Appellant. He also asserts counsel was ineffective for not recalling Dr. Wettstein after his prior testimony was read into the record. Appellant contends that the doctor’s testimony consisted mainly of paraphrased impressions, which were confusing and subject to interpretation by the jury. As a result of these alleged errors, Appellant claims he was denied a fair trial. In order to prevail on a claim of ineffectiveness, “Appellant must establish that the underlying claim is of arguable merit, counsel’s course of action lacked any reasonable basis for advancing his client’s interests, and Appellant has suffered prejudice as a result.” Commonwealth v. Griffin, 537 Pa. 447, 457, 644 A.2d 1167, 1172 (1994). The burden of proving that counsel was ineffective lies with Appellant. Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981). Appellant has failed to meet this standard. With regard to Appellant’s complaint that trial counsel should have cross-examined Dr. Wettstein regarding his inability to recall his interviews with Appellant, we note that Appellant fails to explain what further evidence would have been obtained or what purpose such cross-examination would have served. Moreover, we cannot discern any reason for such cross-examination. Dr. Wettstein was called by the defense during the sentencing phase in order to testify regarding Appellant’s mental state at the time of Patrick Huber’s murder; focusing on the doctor’s inability to recall his meetings with Appellant would only have impaired the defense’s attempt at establishing mitigating circumstances. With regard to Appellant’s claim that Dr. Wettstein should have been recalled for cross-examination regarding the meaning of his former testimony, we must again wonder what such an examination would have achieved, as Appellant fails to tell us. Given Dr. Wettstein’s obvious inability to recall the details of his interviews with Appellant, we find it difficult to understand how Appellant expected Dr. Wettstein to illuminate his former testimony. Furthermore, the jury was made aware of the fact that Dr. Wettstein’s prior testimony was based upon paraphrases of what Appellant had revealed during their interviews, and that Appellant had not explicitly admitted that he had murdered Patrick Huber. (N.T. 9/8/92 at 249-250). As such, we find that the underlying claims upon which Appellant relies to establish ineffectiveness of counsel have no merit, and Appellant’s claim must fail. Accordingly, the order of the Court of Common Pleas of Allegheny County is affirmed. MONTEMURO, J., is sitting by designation. . Respectively, 18 Pa.C.S. § 2501(a), 18 Pa.C.S. § 3701(a)(l)(i), and 18 Pa.C.S. § 6106. . Appellant was arrested by special agents of the Federal Bureau of Investigation on the charge of unlawful flight to avoid prosecution for the murder of Dean O’Hara. . Nor has Appellant challenged the sufficiency of the evidence supporting his conviction for robbery. . The record does not indicate who contacted the police, although it is clear that Pasternak did not place the call. . The trial court opinion noted that although no identifiable fingerprints were found, the same fabric print was lifted from the door and a cash register key. Trial Court Opinion at 3-4. However, there is no evidence in the record to connect these fabric prints to the Appellant. See N.T. 9/8/92 at 169-170. . Appellant contests the admissibility of this evidence in his first issue presented to this Court. However, because we conclude that the . If Appellant had decided to forego an insanity defense at his first trial, the admissions made by Appellant to Dr. Wettstein would not have been admissible in a subsequent trial unless Appellant pursued an insanity defense. Pa.R.Crim.P. 305C(2)(a). . The privilege provides: No psychiatrist or person who has been licensed under the act of March 23, 1972 ... to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client. 42 Pa.C.S. § 5944. . The prothonotary of the Supreme Court is directed to transmit a full and complete record of the trial, sentencing hearing, imposition of sentence and review by this court to the Governor of Pennsylvania. 42 Pa.C.S. § 971 l(i).

OPINION BY Judge LEAVITT. C.E. (Petitioner) petitions for review of an adjudication of the Department of Public Welfare (Department) denying Petitioner’s request to expunge a report of indicated child abuse retained in the Department’s ChildLine Registry. In this appeal, we consider whether the Administrative Law Judge (ALJ) erred in admitting the child victim’s hearsay statement into the record without first making the findings prescribed by statute that are the precondition to admitting that hearsay statement. Concluding that the ALJ did fail to make the prescribed findings before admitting the hearsay, we vacate and remand for the reasons that follow. The background to this appeal is as follows. In October 2002, Petitioner was living with his girlfriend, M.D., along with M.D.’s four-year-old son, W.D., and M.D.’s three-year-old daughter, D.D. On October 26, 2002, Dauphin County Social Services for Children and Youth (County) filed an indicated report of child abuse with Child-Line Registry, asserting that Petitioner had abused D.D. Petitioner appealed to the Bureau seeking expunction of the report. The Bureau conducted several days of hearings, from February 2004 to July 2004, on Petitioner’s request to expunge. The first matter considered by the ALJ was whether D.D. was able to testify at the hearing. The ALJ conducted an in camera examination of D.D., at which the ALJ and attorneys for both the County and for Petitioner were present and also questioned her. The questions concerned such matters as D.D.’s knowledge of colors, whether some statements were right or wrong and her memory of events occurring in the past. Upon completion of the questioning, the ALJ declared that D.D. was incompetent to testify. Petitioner’s counsel objected to this determination. Notes of Testimony, February 11, 2004, at 29-32. (N.T.-). Thereupon, the hearing commenced but without the appearance of D.D. Some of the facts in this case are not in dispute. D.D.’s mother, M.D., testified that she bathed D.D. on the evening of October 24, 2002, and dressed her on the morning of October 25, 2002. M.D. did not observe any injury to D.D.’s genital area in either encounter. At 11:00 a.m., on October 25, 2002, M.D. left for work, leaving Petitioner to babysit her children. Shortly thereafter, Petitioner and D.D. went to pick up W.D. from school, and all three returned home. M.D. returned home at approximately 4:30 p.m. and then left at 5:00 p.m. with W.D., leaving Petitioner and D.D. home alone until she returned at approximately 7:30 p.m. At 8:30 p.m., D.D. was picked up by D.D.’s father’s girlfriend, K.H., and taken to her father’s house. At the father’s house were K.H.; two other adults; D.D.; and three other children. The children played under adult supervision in an inflatable ball pit in the living room until D.D.’s father, Du.D., arrived home from work. D.D. complained to her father that her buttocks hurt, and when he looked at the source of the pain, he discovered blood on D.D.’s underwear. K.H. found a cut between D.D.’s vagina and rectum. Du.D. and K.H. took D.D. to the emergency room at Holy Spirit Hospital where she was examined by Dr. Larry Paul. Dr. Paul noted a superficial cut between the vaginal and rectal areas that was approximately two and a half centimeters in length. The location of the laceration suggested sexual abuse; however, he testified at the hearing that he has seen injuries to the same area not caused by sexual abuse. Dr. Paul did not find any damage to the hymen. Four days later, D.D. was examined at the Children’s Resource Center (CRC), a center that provides service to children who are suspected of being the victims of abuse. Dr. Earl Greenwald, medical director of CRC, testified that the examination of D.D. conducted by him and by a nurse practitioner revealed a several day old tear between the rectum and the vagina. A videotape showed a tear of the hymen with a healed cleft. He believed the healed cleft indicated that an object had entered the vagina. Dr. Greenwald felt that D.D.’s injuries were consistent with sexual abuse and were not accidental. Susan Holanda, an employee of the child abuse protection unit of the Dauphin County District Attorney’s Office, testified that during Dr. Greenwald’s examination of D.D., the child could be heard screaming and crying in the reception area, where Petitioner was waiting. Ms. Holanda, who was also in the reception area, heard Petitioner say, in response to D.D.’s cries, that D.D. did not like it when people touched her “down there.” N.T. 256. On November 15, 2002, Debra Bauer interviewed D.D. at CRC, and her interview was videotaped. Ms. Bauer testified that the videotape fairly and accurately depicted her interview of D.D., and it was admitted into evidence. In the videotape, D.D. used the term “coochie,” which she identified by pointing to the vaginal area of a doll. D.D. stated that Petitioner touched her coochie on the inside under her clothes; that he hurt her more than one time; that on at least one occasion, the touching occurred in the bathroom while her mother was at work; and that Petitioner told D.D. not to tell. In response to Ms. Bauer’s suggestions about blood, D.D indicated that Petitioner’s touching had caused D.D. to bleed. Melissa McDermott Lane, a clinical social worker for the State of Maryland, testified on behalf of Petitioner. She reviewed D.D.’s videotaped interview and expressed some concerns about the way it was conducted. For example, she noted that the interviewer never tested D.D. to see if she knew how to use prepositions correctly. Ms. Lane was particularly concerned about the interviewer’s mention of blood, which was too suggestive. Ms. Lane stated that she would not have conducted the interview the way Ms. Bauer did, but she did not opine expressly that the tape was unreliable. Dr. Scott Krugman also testified on behalf of Petitioner. He reviewed D.D.’s medical records from Holy Spirit Hospital and from the CRC, as well as the videotape of D.D.’s examination at the CRC. He opined that these records did not contain definitive evidence of child abuse. Dr. Krugman stated that the videotape did not confirm a traumatic injury to D.D.’s hymen; he did not see a “healed” cleft and opined that the abnormality noted by Dr. Greenwald was probably structural. He also opined that D.D.’s examination should have been done in the knee chest position in order to determine if the hymen was damaged, but it was not. Finally, Dr. Krugman stated that the laceration D.D. sustained could have occurred in the absence of sexual abuse. Petitioner testified. He categorically denied that he sexually abused D.D. or had ever handled her in an inappropriate fashion. Petitioner denied making the remark overheard by Ms. Kolanda or talking to anyone in the reception area. He stated that D.D. jumped off a bed on October 25, 2002, and expressed the thought that this event might have caused her injury. The ALJ accepted the medical opinions of Dr. Greenwald over those of Dr. Krug-man and did not find Petitioner credible. The ALJ found D.D.’s statements in the November 15, 2002, videotaped interview to be credible and reliable. Further, he found that credible medical evidence corroborated D.D.’s hearsay statements. That evidence, together with Petitioner’s comment overheard in the reception area of the CRC, and Petitioner’s opportunity to commit the injury that occurred on October 25, 2002, led the ALJ to conclude that Petitioner had sexually abused D.D. The ALJ recommended that Petitioner’s expunction request be denied. On March 9, 2005, the Bureau adopted the ALJ’s recommendation as its final order. Petitioner filed an application for reconsideration, which was granted by the Secretary of Public Welfare. However, on January 12, 2006, the Secretary affirmed the Bureau. Petitioner then sought this Court’s review. On appeal, Petitioner presents four main issues for our consideration. First, he contends that the ALJ erred in finding D.D. unavailable to testify and then admitting D.D.’s hearsay statements. Second, he argues that this improper admission of D.D.’s hearsay statements, over Petitioner’s objection, violated his constitutional right to due process. Third, he argues that the ALJ erred in finding that D.D.’s hearsay statements were corroborated by medical evidence. Fourth, he asserts that the Department’s order denying expunction is not supported by substantial evidence because the County’s investigation was incomplete as it did not consider the circumstances of the children playing in the ball pit on the evening of October 25, 2002. We begin with Petitioner’s main argument, which is that D.D.’s videotaped interview should not have been admitted. Such evidence, if reliably recorded and conducted, can be admitted where the victim testifies in person at the hearing. It may be admitted even without the child’s live testimony, where the tribunal finds that appearing in person would cause the child distress to a degree that the child’s ability to communicate would be substantially impaired. Here, the ALJ made no such finding and, thus, Petitioner contends it was error for the ALJ to admit D.D.’s videotaped interview. The County counters that D.D.’s hearsay statements were correctly admitted. The ALJ questioned D.D. in an in camera hearing, and decided that D.D. was incompetent. The County concedes that the ALJ did not use the “magic words” that testifying would cause D.D. emotional harm. However, the County argues that this was implicit and, therefore, the ALJ’s decision to admit the videotaped interview should not be overturned. In an expunction hearing, the out-of-court statement of a child victim of sexual abuse can be admitted into evidence in certain circumstances. Those circumstances are established by following Section 5986 of the Judicial Code, which applies to juvenile dependency hearings. A.Y. v. Department of Public Welfare, 537 Pa. 116, 126, 641 A.2d 1148, 1153 (1994). However, our Supreme Court has directed that 42 Pa.C.S. § 5986 should also be followed where a child’s videotaped testimony is proffered in an expunction hearing brought under the Child Protective Services Law. Under Section 5986, a child’s hearsay statements are admissible if they are reliable and the child testifies. If the child does not testify, then the child must be found unavailable by reason of the extreme emotional distress that testifying would cause and thereby render the child unable to communicate reasonably. The Judicial Code states as follows: (a) General rule. — A statement made by a child describing acts and attempted acts of indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or court ruling, is admissible in evidence in a dependency proceeding initiated under Chapter 63 (relating to juvenile mat ters), involving that child or other members of that child’s family, if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (ii) is found by the court to be unavailable as a witness. (b) Emotional distress. — In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following: (1) Observe and question the child, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting. 42 Pa.C.S. § 5986 (emphasis added). The only appellate case to construe 42 Pa.C.S. § 5986 is In the Interest of Tina K., 390 Pa.Super. 94, 568 A.2d 210 (1989). The Superior Court explained that an individual accused of abuse has a constitutional right to confront witnesses against him. Id. at 213. It construed the hearsay exception in 42 Pa.C.S. § 5986 to require the trial court to make the express finding “that the actual appearance of the child as a witness would cause such trauma as would harm the child.” Id. at 214. Otherwise, the child’s hearsay statements should be inadmissible if the child does not testify. Id. at 215. Since Tina K., 42 Pa.C.S. § 5986 has been amended to include subsection (b). It may not be clear under the present version of Section 5986 that harm to the child is the standard of unavailability. However, the standard of unavailability remains a high one. Early in her questioning, D.D. stated that she was not afraid of Petitioner, that she felt good and that she was not afraid to be at the hearing. N.T. 9-10. When asked how she would feel about being asked questions if Petitioner were present, she responded, “I would feel like crazy.” N.T. 12. D.D. was also asked numerous other questions about colors, past events and her knowledge of the difference between giving right answers and giving wrong answers. In the course of this questioning D.D. stated that “I think something is making me crazy,” indicated that her stomach hurt, and at two different points asked to use the restroom. N.T. 20, 27. However, D.D. was apparently ill with a cold, and there was no follow-up questioning or discussion by the ALJ as to why she felt “crazy,” why her stomach hurt or why she needed restroom breaks. In addition, there was no testimony offered by any adult such as a parent, physician, therapist or social worker that D.D. would experience “serious emotional distress” if she were to testify. 42 Pa.C.S. § 5986. At the conclusion of D.D.’s questioning, the ALJ declared D.D. incompetent to testify because she was only four years old; her memory did not go back to October 2002; and she did not seem to understand the importance of giving a factually correct answer to a question. The ALJ explained as follows: At this point, I’m not satisfied that the child is competent to testify, and I’m going to declare that the child is not competent to testify in this matter based upon the fact that — based upon the child’s responses today. She certainly could remember back to last Christmas; however, the child’s memory did not go much beyond that. She’s a child of four years of age. I’m not sure that the child appreciated — she certainly could distinguish between — I asked her to distinguish whether something was a certain color, and she could distinguish the color and she could tell you whether it was right or wrong. However, I’m not sure the child — if she has the capacity at this point to understand why she needs to give correct responses, or the right responses or wrong responses. So for all those reasons, I’m going to declare that the child’s not competent to testify. N.T. 31-32 (emphasis added). Because D.D. was found to be an incompetent witness, her videotaped interview was admitted. The ALJ did not explain why, if she did not have the capacity to give right or wrong answers at age four, D.D. did have this capacity at age three when the videotaped interview was conducted. Witness competency is a relevant inquiry in every proceeding. However, it is not dispositive of the question here, which was whether to admit the witness’ hearsay statement and excuse the witness from testifying. Under Section 5986, the child will be excused from testifying where to do so would “result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate.” 42 Pa.C.S. § 5986. The ALJ’s findings do not relate to that standard. This is not, as the County argues, a mere failure by the ALJ to use the “magic words” in 42 Pa.C.S. § 5986. We have carefully reviewed the ALJ’s finding, and it cannot be construed to mean that if D.D. testified, she would have suffered emotional distress to the degree that it would substantially impair her ability to communicate. Indeed, the record is devoid of any evidence, such as testimony from D.D.’s mother or from a mental health professional, about how the act of testifying would have affected D.D. The ALJ found that other factors, such as her age, impaired D.D.’s ability to communicate truthfully but these factors are not relevant under 42 Pa.C.S. § 5986. The relevant factor is whether testifying would cause the witness emotional distress to the extent that her ability to communicate would be substantially impaired. Because there was never a preliminary determination made that D.D. was unavailable as a witness under the 42 Pa.C.S. § 5986 standard, we must vacate the order denying expunction and remand the matter to the Department. On remand, the ALJ should conduct a new inquiry into D.D.’s availability to testify before deciding whether to admit the videotaped interview. If she is available, D.D.’s hearsay statements may then be properly considered by the ALJ. If she is not available to testify, the ALJ must make the findings required in 42 Pa.C.S. § 5986(b) before admitting the videotape. In either case, the ALJ must issue a new decision on the merits of Petitioner’s expungement request. As a final matter, we address the contention by the County that the presumption found in 28 Pa.C.S. § 6381(d) can serve as a basis to refuse to expunge the finding of indicated child abuse. This presumption, the County argues, can serve as an alternate basis to affirm the Department’s refusal to expunge Petitioner’s record of indicated child abuse. In support, the County directs our attention to J.B., In Re D.T., v. Department of Public Welfare, 898 A.2d 1221, 1226 (Pa.Cmwlth.2006). In J.B., this Court held that 23 Pa.C.S. § 6381(d) created a presumption that the parents or those responsible for the child’s welfare were the ones that inflicted the child abuse, and only the abuse itself had to be established in the case of indicated child abuse by prima facie evidence. We disagree that the presumption provides an alternate ground for affirming the Department’s adjudication. First, this issue has been waived because the County did not raise this presumption in the hearing before the ALJ. Second, it does not apply given the facts in this case. Although Petitioner was responsible for D.D.’s welfare for a significant amount of time on October 25, 2002, he was not the only adult responsible for D.D. that day. Several other adults supervised D.D. for a substantial period of time prior to the discovery of the perineal cut. In addition, the first doctor to examine D.D. did not find an injury to the hymen; that injury was not identified by Dr. Greenwald until October 29, 2002. Therefore, even if the issue had been preserved, the presumption found in 23 Pa.C.S. § 6381(d) cannot be applied. ORDER AND NOW, this 12th day of February, 2007, the order of the Department of Public Welfare dated January 12, 2006, in the above captioned case is hereby vacated, and this case is remanded to the Department of Public Welfare for a determination on whether D.D. is available to testify under 42 Pa.C.S. § 5986, as set forth in the attached opinion. Jurisdiction relinquished. . The Department operates a statewide toll-free system for receiving reports of suspected child abuse, refers the reports for investigation and maintains the reports in the appropriate file. 55 Pa.Code § 3490.4. The Child-Line Registry is maintained in accordance with the Child Protective Services Law, 23 Pa.C.S. §§ 6301-6385. An "indicated” report of child abuse is made by the investigating agency when it determines that substantial evidence of the alleged abuse exists based on any of the following: available medical evidence, the child protective services investigation, or an admission of abuse by the perpetrator. 23 Pa.C.S. § 6303. A report can also be filed as “founded,” in which case there has been a judicial determination that the child has been abused, or as "unfounded,” in which case there has been neither a judicial nor an administrative finding of abuse. Id. . The next day, D.D. was also examined at Harrisburg Hospital. The records of that examination were not offered into evidence. . She explained that children of that age do not understand the difference between "under” and "over.” . As noted, Petitioner denied making the remark. Petitioner’s counsel asserted in any case the remark, which was found by the ALJ to have been made, did not support an inference that Petitioner abused D.D. At best, the remark merely stated the obvious, given D.D.'s crying and screaming. . This Court’s scope of review in expunction proceedings is limited to a determination of whether constitutional rights were violated, whether errors of law were committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; E.D. v. Department of Public Welfare, 719 A.2d 384, 387 (Pa.Cmwlth.1998). Substantial evidence, for purposes of child abuse expunction proceedings, is defined as “evidence which so preponderates in favor of a conclusion that it outweighs, in the mind of the factfinder, any inconsistent evidence and reasonable inferences drawn therefrom.” Id. (internal citations and quotations omitted). . The Pennsylvania Supreme Court has held that: 1. Hearsay testimony of a child victim will be admitted in accordance with the standards set forth in 42 Pa.C.S. § 5986, and this rule shall be applied to permit the testimony of the victim’s parents and other family members as well as those professionals charged with investigating incidents of child abuse; 2. Hearsay testimony in conjunction with admissible corroborative evidence of the acts in question can in toto constitute substantial evidence which will satisfy the Agency’s burden to justify a conclusion of abuse. 3.However, uncorroborated hearsay cannot satisfy the Agency’s burden unless it comports with the following requirements: a) the statement was accurately recorded by audio or video equipment; b) the audio-visual record discloses the identity and at all times included the images and/or voices of all individuals present during the interview of the minor; and c) the statement was not made in response to questioning calculated to lead the minor to make a particular statement and was not the product of improper suggestion. A.Y. v. Department of Public Welfare, 537 Pa. 116, 126, 641 A.2d 1148, 1153 (1994) (emphasis in original). . During the hearing, but before the ALJ issued his recommendation, Section 5986 of the Judicial Code, 42 Pa.C.S. § 5986, was amended by the Act of July 15, 2004, P.L. 736, No. 87, effective immediately. Previously, Section 5986(b) read, in relevant part, as follows: (b) Emotional Distress. — In order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress such that the child cannot reasonably communicate, (emphasis added). Both parties use the 2004 language requiring "substantial” impairment to the child's ability to communicate, and so there does not appear to be an issue as to whether we should apply the 2004 version of Section 5986 in this case. . In evaluating the competency of a child witness, a court is guided by the following principles: Competency of a witness is presumed and the burden falls upon the objecting party to demonstrate incompetency. When the witness is under fourteen years of age, there must be a searching judicial inquiry as to mental capacity, but discretion nonetheless resides in the trial judge to make the ultimate decision as to competency. Commonwealth v. McMaster, 446 Pa.Super. 261, 666 A.2d 724, 727 (1995) (citations omitted). The required inquiiy must determine whether the child possesses (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth. Id. . Petitioner also briefly argues that the ALJ improperly admitted D.D.’s out of court statement because the ALJ did not discuss on the record whether the statement was relevant and had sufficient indicia of reliability, as required by 42 Pa.C.S. § 5986(a)(1). Based on our disposition of the case, we need not address this argument. . Section 706 of the Judicial Code provides that: An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances. 42 Pa.C.S. § 706. . See, e.g., School District of Philadelphia v. Workers’ Compensation Appeal Board (Washington), 723 A.2d 1087 (Pa.Cmwlth.1999) (vacating and remanding for the taking of additional evidence, if necessary, and for the Workers' Compensation Judge (WCJ) to make additional necessary findings and conclusions in accordance with the law). . Based on our disposition of the case, we will not address the remainder of Petitioner's arguments. . 23 Pa.C.S. § 6381(d) provides: (d) Prima facie evidence of abuse-Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child. . In J.B., the child was found to have second degree bums on his feet and ankles while in the care of his mother's paramour. The paramour was determined to have committed the child abuse because he did not rebut the presumption that, as the child’s caretaker, he was the one that committed the abuse.

OPINION OF THE COURT CAPPY , Justice. The issue presented in this appeal is whether the 1990 amendments (Act 6) to the Motor Vehicle Financial Responsibility Law (MVFRL), which in pertinent part renders unin sured and underinsured coverage optional, effectively eliminates the obligation of the Assigned Claims Plan, 75 Pa.C.S. §§ 1751-1757, to pay benefits to persons otherwise eligible who are injured while driving or occupying an uninsured vehicle. For the following reasons, we find that the Assigned Claims Plan is required to provide such benefits, and accordingly reverse the order of the Superior Court. A review of the facts giving rise to the instant litigation is necessary. On August 26,1990, appellant, Maria English, who was a passenger in an uninsured vehicle which was stopped at an intersection, was seriously injured when the vehicle in which she was riding was struck by another uninsured vehicle. At the time of the accident, appellant neither owned a vehicle nor resided with someone owning a vehicle and therefore, had no automobile insurance which covered her for such injuries. Accordingly, she applied for benefits from the Pennsylvania Assigned Claims Plan. The Plan paid basic loss benefits pursuant to 75 Pa.C.S. § 1753, but denied appellant uninsured motorist benefits pursuant to 75 Pa.C.S. § 1754. The Plan subsequently filed a Declaratory Judgment action in the Court of Common Pleas of Dauphin County seeking confirmation of its determination that under the circumstances presented appellant was ineligible for uninsured motorist benefits. Both parties filed motions for judgment on the pleadings. The trial court denied the Plan’s motion and granted appellant’s motion finding that she was an eligible claimant under § 1752(a)(5) of the MVFRL. The Superior Court reversed, holding that a claimant who is injured while occupying or operating an uninsured vehicle on or after July 1, 1990, the effective date of the Act 6 amendments, does not meet the eligibility requirements of § 1752(a)(5) and, therefore, is not entitled to benefits from the Plan. The instant appeal followed. Our review of a trial court’s decision to grant or deny judgment on the pleadings is limited to determining whether the trial court committed an error of law or whether there were facts presented which warranted a jury trial. In so reviewing, we look only to the pleadings and any documents properly attached thereto. Judgment on the pleadings is proper only where the pleadings evidence that there are no material facts in dispute such that a trial by jury would be unnecessary. Bata v. Central-Penn National Bank, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967). Generally, the Assigned Claims Plan provides benefits for those individuals injured in a motor vehicle-related accident who, through no fault of their own, have no other available source of insurance coverage. Zeigler v. Constitution State Service, 430 Pa.Super. 284, 634 A.2d 261 (1993). Section 1752 sets forth the specific requirements of eligibility for benefits under the Assigned Claims Plan. The crux of the instant case centers on the interpretation to be given to section 1752(a)(5) which provides: (a) General rule. — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements: (5) Is not the operator or occupant of a motor vehicle owned by a self-insurer or by an individual or entity who or which is immune from liability for, or is not required to provide, benefits or uninsured and underinsured motorist coverage. (emphasis added). The trial court found that appellant was eligible for uninsured benefits under this subsection because the owner of the vehicle in which she was traveling, although not required to provide uninsured and underinsured motorist coverage, was required to provide medical benefits. The Superior Court, on the other hand, interpreted the plain meaning of this subsection to be that a claimant is eligible for coverage under the Plan only if both medical coverage and uninsured and underinsured coverage are required to be purchased by a vehicle owner. The Superior Court then reasoned that since Act 6 rendered uninsured and underinsured motorist coverage optional in Pennsylvania, the owner of vehicle in which appellant was riding was not required to purchase uninsured and underinsured coverage and that therefore, appellant was not entitled to benefits from the Plan. , In effect, then, the Superior Court’s decision precludes anyone injured after July 1, 1990 from recovering from the Plan unless they are a pedestrian or a bicyclist. We find the Superior Court’s interpretation of § 1752(a)(5) to be strained and not at all in keeping with the plain meaning of the words of the statute or the intent of the Assigned Claims Plan. Our rules of statutory construction make clear that in interpreting statutes we must at all times seek to ascertain and effectuate the legislative intent underlying the enactment of the particular statute(s). 1 Pa.C.S. § 1921(a). Where the words of a statute are clear and free from ambiguity the legislative intent is to be gleaned from those very words. Where, however, the statute is unclear or susceptible of differing interpretations, the courts must look to the necessity of the act, the object to be attained, the circumstances under which it was enacted and any legislative or administrative interpretations thereof. Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989). In ascertaining the legislative intent of a particular statute it is presumed, inter alia, that the legislature did not intend a result that is absurd or unreasonable nor one that would be violative of the United States Constitution or the Constitution of this Commonwealth. It is also presumed that the legislature intends to favor the public interest as opposed to any private interest. See generally, 1 Pa.C.S. § 1922. Contrary to the Superior Court’s interpretation of § 1752(a)(5), we interpret the term “or” as meaning “either” which we find to be the commonly accepted definition. The use of the disjunctive “or” in § 1752(a)(5) thus indicates that as long as the owner of the registered vehicle is required to provide either medical benefits or uninsured or underinsured motorist benefits, a claimant meets the section (a)(5) eligibility requirements. Since each person owning a motor vehicle registered in this Commonwealth must maintain financial responsibility in the form of either a liability insurance policy or program of self insurance which meets the minimum required medical benefits, see 75 Pa.C.S. § 1786, the owner of the vehicle in which appellant was here riding cannot be deemed “an individual ... who is not required to provide, benefits or uninsured or underinsured motorist coverage.” Accordingly, § 1752(a)(5) was here satisfied. This interpretation is not only in keeping with the plain meaning of the statute but is also consistent with the purpose of the Assigned Claims Plan which is, as noted above, to provide benefits to injured persons who, through no fault of their own, have no insurance to protect themselves. Even assuming that the language employed in § 1752(a)(5) is found to be ambiguous, we think that reliance on the Act 6 amendments to interpret § 1752(a)(5) is simply incorrect. To reason, as did the Superior Court, that this alleged “change” in § 1752(a)(5) eligibility came about through the amendment of an entirely different section of the MVFRL without any reference whatsoever to § 1752(a)(5) is simply illogical. The statutory language at issue was written long before the optional provisions of Act 6 existed. Section (a)(5) applies to two classes of vehicle owners: (1) self-insurers; and (2) an individual or entity who or which is immune from liability or not required to provide benefits or uninsured or underinsured motorist coverage. These two classes encompass self-insurers, i.e., those who have provided certification that they have other reliable financial arrangements, deposits, resources or commitments acceptable to the Department of Transportation and who are thus exempt from purchasing the requisite insurance through a standard policy in order to comply with the MVFRL, See 75 Pa.C.S. § 1782 and also those owners who are otherwise exempt from complying with the MVFRL because, for instance, they own a vehicle which is registered in another state. See, e.g. Rosado v. Constitution State Service Co., 425 Pa.Super. 561, 625 A.2d 1239 (1993). Accordingly, it seems clear to this Court that the intent behind § 1752(a)(5) was simply to recognize that persons occupying a vehicle owned by a properly self-insured person or someone who was not required to maintain financial responsibility under the MVFRL would not be eligible for coverage under the Assigned Claims Plan because there were other sources of recovery available and/or because the owner of the vehicle either was exempt from compliance with the MVFRL or had no obligation to contribute to the Assigned Claims Plan. See, e.g. 75 Pa.C.S. § 1787(c) (self-insurers are not required to contribute to the Assigned Claims Plan). As such, we are reluctant to conclude that the legislature, some six (6) years after the enactment of § 1752(a)(5) and through the amendment of an entirely distinct section of the MVFRL, intended to expand, sub silentio, § 1752(a)(5) to now render ineligible those claimants who occupy vehicles not encompassed in the very narrow and unique class of owners explicitly set forth in that section. Succinctly stated, the enactment of those provisions rendering uninsured and underinsured motorist coverage optional simply cannot be deemed to have also perforce eliminated coverage under the Assigned Claims Plan for all but essentially pedestrians without any corresponding amendment to § 1752(a)(5). Moreover, to interpret § 1752(a)(5) as did the Superior Court would be not only unfair but also unreasonable. As noted above, the Superior Court’s interpretation would, in effect, render benefits under the Plan available only to pedestrians and bicyclists. The Superior Court found this distinction between pedestrians and bicyclists on the one hand, and passengers in automobiles on the other, to be logical. The Superior Court reasoned that pedestrians have no choice as to whether the vehicle which injures them is insured or uninsured whereas passengers in automobiles “make conscious decisions to ride in a particular vehicle and must accept the attendant risks as to the financial responsibility of the owner.” In other words, the Superior Court found it logical to preclude passengers of uninsured vehicles from recovering benefits under the Plan since such persons can determine whether the driver of the automobile in which they intend to travel has elected to purchase uninsured motorist insurance, and then can presumably engage in some kind of “cost-benefit” analysis in deciding whether to ride with the driver. This explanation hardly serves as a “distinction” which would explain the legislature’s purported action in treating these classes of people differently. Motor vehicle passengers do not “assume the risk” of being injured any more than pedestrians and bicyclists do. The real question is whether one type of innocent victim of negligent driving is deserving of any less protection than another. In light of the purposes to be served by the Assigned Claims Plan, we think not. Nor are we persuaded by the Superior Court’s further reasoning that to permit recovery by occupants of an uninsured vehicle would be unfair and clearly contrary to the purposes behind the MVFRL since persons occupying vehicles wherein the owner carries the requisite first party coverage but has elected to forego un/underinsured motorist coverage in exchange for lower premiums would then receive less favorable treatment. First, all a claimant is entitled to under the Assigned Claims Plan is a maximum of $5000 in medical benefits (§ 1753) and up to $15,000 in additional benefits (§ 1754), against which any medical benefits received are set off. An occupant of an insured vehicle, even one for which the owner thereof elected not to purchase underinsured and uninsured coverage, who was injured by an uninsured driver, may be able to recover more than $5000 since an insured owner can purchase much more than that amount. Additionally, an occupant of an insured vehicle would also be entitled to recover income loss benefits or accidental death benefits and funeral benefits, none of which are payable under the Assigned Claims Plan. See 75 Pa.C.S. § 1753. Moreover, if the insured owner had purchased uninsured and underinsured coverage, the occupant of the insured vehicle would clearly be “better off’ insofar as he or she would have available an additional source of recovery if the circumstances warranted. Finally, even if it were true that in some cases, occupants of uninsured cars would be “better off’ than occupants of insured cars, the Superior Court’s decision to rectify this perceived unfairness by throwing out the baby with the bath water is untenable. As demonstrated above, under the Superior Court’s holding occupants of automobiles whose owners have failed to comply with the law, and who are injured by another scofflaw, are entitled to nothing, save what they can recover from a lawsuit against either of the parties. Thus, they are in a far worse position than occupants of insured vehicles. Finally, we think that providing benefits to claimants such as appellant is in keeping with the public policy of the MVFRL which, in part, seeks to ensure that owners of registered vehicles in this Commonwealth purchase adequate insurance. The Plan’s argument to the contrary that to allow claimants such as appellant benefits under the Assigned Claims Plan would create incentives to drive without insurance and thus run afoul of this public policy of the MVFRL is simply illogical. Providing benefits under the Assigned Claims Plan to occupants of vehicles certainly will not serve as a disincentive for the owners of those vehicles to purchase insurance. Nor can punishing occupants such as Appellant create an incentive for owners to purchase insurance. Certainly, denying Appellant coverage serves no purpose since Appellant does not own a car and therefore has no obligation to purchase insurance (and, in fact, could not purchase motor vehicle insurance). The Assigned Claims Plan contends that the legislature could not have intended to benefit those who contribute nothing toward Pennsylvania’s insurance system. This argument is patently absurd: the occupant who does not own an automobile would not have any reason to contribute to Pennsylvania’s insurance system. Moreover, as stated above, the whole purpose of the Assigned Claims Plan is to provide benefits for persons injured by a motor vehicle and who have no source of benefits, i.e., persons who lawfully have no insurance (and therefore do not pay into the insurance system) because they are not the owner of a motor vehicle. Accordingly, for all the foregoing reasons, we must reverse the decision of the Superior Court. PAPADAKOS, J., did not participate in the decision of this case. MONTEMURO, Senior Justice, is sitting by designation. This opinion was reassigned to this author. . Act of February 7, 1990, P.L. 11, No. 6, effective July 1, 1990. . 75 Pa.C.S. § 1701 et seq. . Under Act 6, 75 Pa.C.S. § 1731(a) was amended to read: § 1731. Availability, scope and amount of coverage (a) Mandatoiy offering. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage). Purchase of uninsured motorist and underinsured motorist coverage is optional. (Emphasis added). . We think it important to note that the Plan did not dispute the payment of medical benefits pursuant to § 1753, but only the payment of uninsured motorist benefits under § 1754. The Superior Court’s interpretation, however, explicitly precluded the recovery of any benefits, including medical benefits and uninsured and underinsured benefits since eligibility for benefits under both § 1753 and § 1754 is defined in § 1752, although it recognized that the issue of payment of medical benefits was not before the court. Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 427 Pa.Super. 105, 110 n. 4, 628 A.2d 847, 849 n. 4 (1993). . We emphasize that owners of motor vehicles are in all cases ineligible to claim benefits under the Assigned Claims Plan. See 75 Pa.C.S. § 1752(a)(3). Moreover, pedestrians and bicyclists who do not own registered vehicles do not contribute to Pennsylvania’s insurance system either, yet the Superior Court finds that those individuals are entitled to benefits under the Assigned Claims Plan.

ORDER PER CURIAM: AND NOW, this 8th day of June, 1995, upon consideration of petitioner’s application for extraordinary relief in the form of a stay of execution pending the filing and resolution of a petition for a writ of certiorari, and for the exercise of King’s Bench Powers, and the Commonwealth’s representation that it takes no position on this application, IT IS HEREBY ORDERED that petitioner’s application is GRANTED and his execution will be stayed until either the United States Supreme Court denies his petition for writ of certiorari from this Court’s ruling in Commonwealth v. Jones, 539 Pa. 222, 651 A.2d 1101 (1994), or, if his writ of certiorari is granted on this case, until the United States Supreme Court issues a ruling following argument on the merits. MONTEMURO, J., is sitting by designation.

ORDER PER CURIAM: AND NOW, this 16th day of August, 1995, Robert Charles Zimmer having been disbarred from the practice of law in the District of Columbia by Order of the District of Columbia Court of Appeals dated February 10,1994, and in the State of Florida by Order of the Supreme Court of Florida dated September 1, 1994; the said Robert Charles Zimmer having been directed on June 19, 1995, to inform this Court of any claim he has that the imposition of the identical or comparable discipline in this Commonwealth would be unwarranted and the reasons therefor; and upon consideration of the responses filed, it is ORDERED that Robert Charles Zimmer is disbarred from the practice of law in this Commonwealth, retroactive to September 30, 1992, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. MONTEMURO, J., is sitting by designation.

OPINION BY McEWEN, P.J.E.: ¶ 1 Appellant, Sonya Pollock, appeals from the order denying her petition to strike the judgment of non pros entered in favor of appellees, Michael A. Feinstein, M.D., and Timothy F. Shawl, M.D., a judgment entered by the prothonotary after appellant failed to file a certificate of merit within sixty days of the filing of a complaint. See: Pa.R.C.P. No. 1042.6. We affirm. ¶ 2 This appeal arises from a claim brought by appellant against appellees for their alleged failure to obtain her informed consent to a procedure performed by ap-pellee, Dr. Feinstein, on September 5, 2003, specifically, a laparoscopic tubal ligation and the removal of an intrauterine device (IUD). The anterior abdominal wall of appellant was lacerated during this procedure, causing her, she claimed, to suffer physical, emotional, and economic injuries. Appellant alleged that appellees failed to inform her of the risks of abdominal bleeding, and that she would not have consented to the procedure had she been so informed. ¶ 3 Appellant, on September 7, 2005, commenced a civil action by writ of summons, and, on October 31, 2005, filed a complaint against Dr. Feinstein, and his partner, Dr. Shawl, setting forth a single count for lack of informed consent. In that count, appellant did not allege that appellees performed an unauthorized procedure, but rather alleged that she was not fully apprised of the risks of the procedure to which she had agreed. Appellant, however, did not file a certificate of merit with the complaint, or within sixty days of filing the complaint. Appellees, nine weeks thereafter, on January 5, 2006, filed a praecipe for entry of judgment of non pros for failure to file a certificate of merit, and the prothonotary, on the following day, entered a judgment of non pros in their favor. See: Pa.R.C.P. Nos. 1042.3, 1042.6. Appellant promptly filed, on January 10, 2006, a petition to strike the judgment of non pros, arguing that she was not required to file a certificate of merit since her action only involved a claim of a lack of informed consent, a cause of action sounding in battery, which did not require her to allege a deviation from an acceptable standard of medical care. The trial court, on February 6, 2006, upon consideration of the memoranda of law submitted by appellant and appellees, denied the motion to strike the judgment of non pros. This appeal followed. ¶ 4 Appellant, in the brief filed in support of this appeal, poses a single question for our review: Whether a praecipe for entry of judgment of non pros pursuant to Pa.R.C.P. 1042.6 should be stricken when the complaint does not allege a deviation from the professional standard of care and, therefore, requires no certificate of merit. The standard governing our review of the denial of a petition for relief from the entry of a judgment of non pros is well settled. “[W]e will reverse the trial court only if we find a manifest abuse of discretion.” Varner v. Classic Communities Corp., 890 A.2d 1068, 1072 (Pa.Super.2006) (citations omitted). Since a motion to strike a judgment of non pros only challenges defects appearing on the face of the record, “such a motion may not be granted if the record [regarding the entry of the judgment] is self-sustaining.” Id. (citation omitted). Nevertheless, the interpretation and application of the Pennsylvania Rules of Civil Procedure present questions of law, and our review on these matters is plenary. Womer v. Hilliker, 589 Pa. 256, 267, 908 A.2d 269, 276 n. 8 (2006). ¶ 5 The standards governing the filing of a certificate of merit in a professional liability claim are set forth in Rule 1042.3 of the Pennsylvania Rules of Civil Procedure, which provides: In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party.... Pa.R.C.P. No. 1042.3(a). Rule 1042.6(a) requires the prothonotary, upon praecipe of defendant, to enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time, so long as there is no pending timely filed motion seeking to extend the time to file a certificate of merit. Pa.R.C.P. No. 1042.6(a). ¶ 6 The Supreme Court, in Womer v. Hilliker, supra, aptly summarized the policies underlying the rules of civil procedure governing professional liability claims: By way of background, we begin with the circumstances of Pa.R.C.P. No. 1042.3’s adoption. Pa.R.C.P. No. 1042.3 is one in a series of rules that “govern procedure in a civil action in which a professional liability claim is asserted against a licensed professional.” Pa. R.C.P. No. 1042.1(a). See: Pa.R.C.P. Nos. 1042.1-1042.8. We adopted these rules in January of 2003, having determined that malpractice actions were being commenced in the Pennsylvania courts more frequently. We were concerned that this trend would lead to an increase in the filing of malpractice claims of questionable merit, and sought to avoid the burdens that such claims impose upon litigants and the courts. Therefore, we exercised our rule-making authority to devise an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly. See: PA CONST. Art. V, § 10(c); 42 Pa.C.S. § 1722. The procedure we provided in the professional liability action rules centers on the filing of a [certificate of merit (COM) ]. On the one hand, the presence in the record of a COM signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place. See: Pa.R.C.P. No. 1042.4, Pa.R.C.P. No. 1042.5. On the other hand, the absence from the record of a COM signals to the parties and the trial court that none of this is so and that nothing further should transpire in the action, except for the lawsuit’s termination. See: Pa. R.C.P. No. 1042.6. Id., 589 Pa. at 266-67, 908 A.2d at 275-276 (footnote omitted). Mindful of the purposes of the Supreme Court in promulgating Rule 1042.3, we here conclude that although the rule explicitly applies to actions “based upon an allegation that a licensed professional deviated from an acceptable professional standard,” the scope of the rule cannot, in our view, be limited by a technical reading to preclude its applicability to a cause of action that is based upon such an alleged lack of material medical information as would fail to attain informed consent to undergo a medical procedure. ¶ 7 Appellant correctly asserts that the established law of our Commonwealth considers a claim for a lack of informed consent to be a technical battery, and that negligence principles do not apply to this claim. See: Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 585-586, 798 A.2d 742, 749 (2002). However, the tortious conduct alleged in this case, namely, undertaking a procedure without obtaining informed consent, comprised a claim based upon the failure of the appellees to provide appellant with a full explanation of the medical risks involved in the procedure she was to undergo. Thus, at its core, this action required a showing that appellees failed to conform to a specific acceptable professional standard, namely, “[to] provide patients with material information necessary to determine whether to proceed with the surgical or operative procedure, or to remain in the present condition.” Valles v. Albert Einstein Medical Center, 569 Pa. 542, 551, 805 A.2d 1232, 1237 (2002) (internal quotations and citations omitted). At a minimum, appellant was obliged to demonstrate that appellees had failed to disclose such information as would impart to her “a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.” Id., 569 Pa. at 551, 805 A.2d at 1237 (internal quotations and citations omitted). Consequently, ap pellant bore the burden of producing expert testimony to identify the risks of the procedure, the alternatives to the procedure, and the risks of the alternatives. 40 P.S. § 1303.504(c); McSorley v. Deger, 905 A.2d 524, 532 (Pa.Super.2006). ¶ 8 The intention of the Supreme Court, as pronounced in Womer v. Hilliker, supra, in requiring the filing of a certificate of merit, and the nature of appellant’s claim for a lack of informed consent, therefore, compel us to conclude that since the present claim was based upon an allegation of a deviation from an acceptable professional standard — specifically, that appellees failed to disclose certain risks attendant the procedure they performed— appellant was required to file a certificate of merit stating that there was a reasonable probability the information provided by appellees had failed to impart a true understanding of the risks of the procedure. Therefore, we detect no basis upon which to reverse the order of the trial court. ¶ 9 Order affirmed. . We are mindful that appellant's cause of action for informed consent accrued on September 5, 2003, and, therefore, must be governed by the statutory definitions of the elements of an informed consent claim provided in section 504 of the Medical Care Availability and Reduction of Error (MCARE) Act of 2002, 40 P.S. § 1303.504. In full, this section provides: (a) Duty of physicians. — Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representative prior to conducting the following procedures: (1) Performing surgery, including the related administration of anesthesia. (2) Administering radiation or chemotherapy. (3) Administering a blood transfusion. (4) Inserting a surgical device or appliance. (5) Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner. (b) Description of procedure. — Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide. (c) Expert testimony. — Expert testimony is required to determine whether the procedure constituted the type of procedure set forth in subsection (a) and to identify the risks of that procedure, the alternatives to that procedure and the risks of these alternatives. (d)Liability.— (1) A physician is liable for failure to obtain the informed consent only if the patient proves that receiving such information would have been a substantial factor in the patient’s decision whether to undergo a procedure set forth in subsection (a). (2) A physician may be held liable for failure to seek a patient’s informed consent if the physician knowingly misrepresents to the patient his or her professional credentials, training or experience. 40 P.S. § 1303.504. Although these statutory definitions now expressly permit a defendant to present evidence that information provided regarding procedure was within acceptable professional standards, 40 P.S. § 1303.504(b), whether this evidentiary standard legislatively overturns our case law regarding the battery theory of the informed consent claim, or whether an informed consent claim based upon negligence principles is more appropriate as a matter of policy, are issues more properly for our Supreme Court, and, in any event, unnecessary for us to reach for the disposition of this appeal. . It merits emphasis that our conclusion is limited to a cause of action for a lack of informed consent arising under section 504(d)(1) of the MCARE Act of 2002. Therefore, our holding in the instant case does not apply to claims arising from so-called "medical batteries,” such as claims in which a patient never consented to a non-emergency procedure, claims regarding the assent to the performance of the procedure by a particular professional, or a claim predicated upon consent obtained through a knowing misrepresentation of a physician’s professional credentials. A resolution of these questions remains for a future appellate tribunal to resolve.

OPINION BY Judge PELLEGRINI. Irwin A. Popowsky, acting on behalf of the Office of Consumer Advocate (OCA), appeals from an order of the Pennsylvania Public Utility Commission’s (Commission) approval of the merger between Verizon Communications, Inc. (Verizon) and MCI, Inc. (MCI) and its subsidiaries (also referred to as Joint Applicants). A. Background Verizon is the largest incumbent local exchange company (ILEC) and MCI is the leading competitive local exchange car rier (CLEC) in Pennsylvania. Verizon provided service to approximately six million customers in Pennsylvania, and its operating revenues in Pennsylvania were approximately $3,344,493,000. (Reproduced Record at 282a, 312a.) Verizon provided service to almost 80% of the customers in its Pennsylvania service territory. MCI was the fifth largest provider of local exchange services in Pennsylvania with 246,-058 residential customers. (Reproduced Record at 336a.) Verizon and MCI had overlapping facilities in 45 of Verizon’s wire centers, mainly concentrated in the Philadelphia and Pittsburgh metropolitan areas. On February 14, 2005, Verizon and MCI entered an Agreement and Plan of Merger where MCI became a wholly-owned subsidiary of Verizon. The merger was prompted by the nationwide decline in Verizon’s and MCI’s core local and long distance services caused by regulatory changes, marketplace developments and changes due to technology and the two companies’ belief that they could complement each other’s weaknesses while improving growth. (Reproduced Record at 336a.) Verizon and MCI believed that they had complementary assets and expertise which, if merged, would benefit them both — “MCI possesses a significant base of large enterprise customers and an Internet-Protocol-based national and international network, while Verizon serves only a limited number of large enterprise customers-primarily within its own region — and lacks substantial Internet backbone or interLATA transmission facilities.” (Commission’s January 11, 2006 decision at 16.) Verizon and MCI made various public estimates regarding the synergy savings they expected as a result of the merger, with one being that the net present value of savings was going to be $7 billion nationwide. Because Verizon lines in Pennsylvania account for 9.2% of all lines served nationwide, Pennsylvania’s portion of the estimate of the benefits of the merger would be $644 million based on publicly available figures. If the synergy estimates were split between the merged entities and the ratepayers, the consumers’ share of the savings would be between $321 million and $403 million to $814 million. (Reproduced Record at 312a.) These figures are significant because, according to the OCA, the Commission has often required merging utilities to flow through a portion of the savings to customers as a condition for merger approval. To merge, Verizon and MCI needed the approvals from federal agencies that had regulatory oversight as well as the public utility commission in any state in which they did business. The merger was approved by the Antitrust Division of the United States Department of Justice (Department of Justice) on October 27, 2005, when it entered into a Consent Decree providing for “voluntary commitments” by Verizon and MCI that would mitigate some of the anti-competitiveness concerns of the merger. The FCC approved the merger of Verizon and MCI with condi tions. B. Proceedings before the Public Utility Commission On March 7, 2005, as required by Section 1102 of the Public Utility Code, 66 Pa.C.S. § 1102, which requires that a new certificate of public convenience be obtained when a public utility merges with another company, Verizon and MCI filed a Joint Application with the Commission for approval of their merger in Pennsylvania that was later amended. For the Commission to approve the merger by granting a new certificate of public convenience, it had to “find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public.” Section 1103 of the Public Utility Code, 66 Pa.C.S. § 1103. If it decided to grant the certificate, the Commission could impose such conditions “as it may deem to be just and reasonable.” Id. Those seeking approval of a merger must prove more than the mere absence of any adverse effect upon the public. They have to prove that the “proponents of a merger demonstrate that the merger will affirmatively promote the ‘service, accommodation, convenience, or safety of the public’ in some substantial way.” City of York v. Pennsylvania Public Utility Commission, 449 Pa. 136, 141, 295 A.2d 825, 828 (1972). In their Joint Application, Verizon and MCI alleged that the proposed merger would: a) benefit the public interest; b) benefit their customers, including enterprise and government customers and consumers and small business customers; c) benefit the American economy; d) benefit investors in both companies; e) benefit employees of both companies; and finally, f) benefit the Commonwealth of Pennsylvania. They stated: E. Benefits to the State’s Economy 33. Verizon has a long history of corporate responsibility and good citizenship in the communities that it serves and it will continue that tradition after this transaction is concluded, including in this state. MCI has a practice of providing good jobs and cutting-edge network technology and this acquisition will only enhance that capability. Thus, the communities served by the combined company will benefit from this transaction. 34. In addition, there will be no anti-competitive effect of this acquisition in Pennsylvania or nationally. As discussed above, Verizon does not currently address the upper end of the enterprise market with a wide array of services, nor has it been equipped to address customers with nationwide interests in that market. MCI, on the other hand, is an acknowledged leader in the market for enterprise telecommunications services. For its part, Verizon is a recognized leader in services to consumers and small businesses and is committed to building out a broadband network to improve those services. Competition, including increasingly important in-termodal competition, will continue unimpaired. 35. The new competition of the 21st century is between and among those carriers with a comprehensive network — such as cable and wireline. Thus, MCI and Verizon -will each benefit from the strengths of the other, to the long-term benefit of the enterprises, businesses, government entities, and consumers in this state. (Emphasis added.) Numerous parties filed petitions to intervene or protest, including the OCA and Senator Mary Jo White (Senator White); the Office of Small Business Advocate (OSBA); the Communications Workers of America (CWA); Qwest Communications Corporation (Qwest); Competitive Carrier Group (CCG), a coalition of six competitive carriers; Full Service Computing Corporation t/a The Full Service Network (FSN); and a coalition of 18 rural incumbent local exchange carriers (LECs), referred to as the Rural Telephone Company Coalition (RTCC). They contended that the merger was not in the public interest if conditions that they suggested were not adopted. Specifically, Senator White argued for a more accelerated deployment of broadband services in Pennsylvania by Verizon and MCI as a condition of merger approval. Her concerns were that the merger would have a great affect on customer choice for telephone service, particularly in rural parts of Pennsylvania where there were few competitive options. She stated that “the unavailability of broadband or high speed connection services, and the high cost of wireline connections provided by Verizon, significantly impairs [enterprise customers] ability to utilize important technology and equipment.” (Reproduced Record at 373a.) As an example, she pointed to a hospital in her district that was unable to utilize necessary diagnostic equipment due to its inability to secure broadband service, thereby reducing its capability and productivity and creating a genuine risk of harm to patients. The OCA argued that Pennsylvania customers of Verizon should share in the cost savings realized due to the merger, a quality of service monitoring process should be implemented, DSL service should be unbundled, and agreeing with Senator White, that broadband deployment should be expedited. Specifically, it proposed that a five-year cap be imposed on basic noncompetitive service rates for residential and small business customers so that a portion of merger savings would flow through to customers by preventing the entity from implementing the inflation-based rate increases that would otherwise be permitted to be imposed on non-competitive services through its current price formula. (Reproduced Record at 313a.) The OSBA also wanted a rate cap imposed as well as other conditions, and the CWA wanted service quality conditions imposed in Pennsylvania similar to conditions that Verizon had to meet in other states to ensure the safety, quality and reliability of Verizon’s service throughout Pennsylvania. The OCA, Quest, FSN and the LECs wanted protection for service that they purchased from Verizon and MCI to serve local customers to lessen the anti-competitive effects of the merger. Specifically: • Unbundled DSL. The OCA alleged that too many Verizon customers had to purchase Verizon voice service to obtain Verizon’s DSL service which impeded the ability of other providers of voice services to compete. It urged that DSL service be unbundled. • Elimination of Competition for Special Access Service. Qwest argued that the merger would have an adverse impact on rates for special access service because it and other CLECs depended on that service they purchased from Verizon in order to serve their retail customers. It alleged that MCI exerted influence on Verizon special access pricing from which it benefited because MCI had alternative facilities that allowed a carrier to bypass Verizon’s facilities enabling them to get more deeply discounted prices from both. Qwest recommended that the Commission impose on Verizon and MCI a condition that they continue to offer intrastate and interstate special access, private line or its equivalent at the lowest rates offered by either Verizon or MCI. • Allow Wholesale Customers to Terminate Service Contracts to Spur Competition. Qwest argued that Verizon should give its wholesale customers the option of terminating their existing contracts with Verizon without incurring penalties for one year after the merger closes which would spur competition by giving the company acquiring MCI’s divested facilities and customers an opportunity to attract Verizon’s wholesale customers. • Unbundled Network Elements. CCG and FSN are concerned that the merger of Verizon and MCI is going to lead to a diminished competition in the local business markets served by CLECs competing on loop and transport arrangements and it is directly attributable to the removal of MCI as a competitor in the wholesale market. They suggested conditions be imposed on Verizon and MCI regarding unbundled network elements to counter the anti-competitive effects of the merger including, among many others, continued availability of UNE-P for mass market customers and the capping of rates of all § 251 UNEs for five years or until the Commission determined that anti-competitive effects have been mitigated. • RTCC Interconnection and Traffic Transit Conditions. RTCC averred that its LECs had joint facilities with Verizon and MCI at many locations in Pennsylvania. Those facilities ensured the seamless exchange and interex-change of traffic between customers of Verizon, MCI, RTCC and other third party carriers by providing for the exchange of traffic over Verizon tandem facilities for intraLATA toll traffic, Extended Area Service traffic, commercial mobile radio service, CLEC and other traffic. However, the use of the joint facilities was not adequately covered by existing agreements and Verizon refused to cooperate with the RTCC LECs in addressing necessary provisions related to the exchange of third party traffic. RTCC alleged that the merger would lead to a further degradation of its relationship with Verizon unless RTCC’s conditions were imposed, including, inter alia: the maintenance of separate Verizon and MCI affiliates for the future; the merged entity shall ensure fair and open access to RTCC LECs of underlying Internet facilities that it may control; the merged entity shall be required to continue to honor all existing obligations and service arrangements that Verizon had with the RTCC LECs. B. The ALJ’s Decision After public hearings were held, by order dated November 15, 2005, the ALJ, concluding that Verizon and MCI had met their burden of proving by a preponderance of the evidence that the merger was in the public interest, recommended to the Commission approval of the merger and the grant of the certificate of public convenience without the imposition of the conditions proposed by the OCA and the other intervenors. Because of the Department of Justice’s Consent Decree and conditions that it imposed, the ALJ discounted any concern that competition would be adversely affected by the merger. He also found that the Consent Decree made a Pennsylvania-specific analysis of the anti-competitive effects of the merger inappropriate. Because MCI and Verizon were interested but had not offered mobile IP services to enterprise customers that would give them mobility and allow applications to be accessed by them no matter where they were, the ALJ found that the proposed merger would result in substantial benefits for enterprise customers. Regarding mass market customers (residential and small business customers), the ALJ found that although the enterprise market was the primary target of the merger, the merger would provide the mass market with substantial benefits as well because they would receive the residual benefits of the merged company’s efforts to better serve enterprise customers, i.e., they would be offered more technologically advanced communications, information and entertainment services more quickly than either Verizon or MCI could offer standing alone. The ALJ also rejected the conditions proposed by the OCA and the other inter-venors as either unnecessary or beyond the Commission’s jurisdiction to impose. He found that the sharing of merger cost savings with consumers through implementation of rate caps pursuant to Chapter 30 of the Public Utility Code was unnecessary in light of the substantial public benefits that the merger would provide to Pennsylvania consumers; that it was unnecessary to implement service quality monitoring because it was not shown that the merger would lead to decline of service; and that the Commission was precluded under Chapter 30 of the Pennsylvania Public Utility Code to require Verizon to accelerate its deployment of broadband services as a condition of its approval of the merger. Regarding the conditions requested to ameliorate the anti-competitive effects of the merger, the ALJ found that the FCC had jurisdiction (Unbundled DSL Service; Special Access Service; Unbundled Network Elements) or that they were not appropriate matters to be raised in this proceeding (RTCC Interconnection and Traffic Transit Conditions). Exceptions to the ALJ’s decision and order were filed by the OCA, Senator White, the OSBA, RTCC and FSN contending that the merger should not be approved because Verizon and MCI failed to establish that the merger was in the public interest unless the conditions that it suggested were adopted. C. The Commission’s Decision The Commission adopted the ALJ’s decision approving the merger finding that the Joint Applicants had established that it was in the public interest for the “service, accommodation, convenience, or safety of the public.” 66 Pa.C.S. § 1103(a). While it acknowledged that the City of York standard required that there be an affirmative showing that the merger was in the public interest, the Commission went on to give its interpretation of the standard, stating that: “[t]he public interest standard is a broad standard that encompasses examining whether, for example, the ‘merger will have an anti-competitive effect or will impair the technical, managerial or financial fitness’ of the jurisdictional utilities affected to continue to provide adequate telecommunications services to Pennsylvania customers at just and reasonable rates.” (See Bell/GTE Merger Order, slip op. at 13, (citing Joint Application of PG Energy, Inc., et al. for Approval of the Merger into Southern Union Company), Docket Nos. A-120011, et al., (Order entered September 15,1999) (PG Energy Order)). (Commission’s January 11, 2006 decision at 22-23.) Like the ALJ, the Commission found that the merger was in the public interest largely based on the federal approvals, noting that the FCC approved the merger of Verizon and MCI with conditions in conjunction with its approval of the merger of SBC Communications, Inc. and AT & T Communications, Inc. Adopting the ALJ’s recommendation that “a comprehensive and Pennsylvania-specific analysis of the competitive effects of the merger was not appropriate in light of the [Department of Justice] Consent Decree reached between the [Department of Justice] and Joint Applicants,” where the ALJ concluded that “the United States Department of Justice Antitrust Division (DOJ) and the Federal Communications (FCC) have also thoroughly investigated the merger and have imposed conditions to ameliorate the anticompetitive effects of the merger.” (Commission’s January 11, 2006 decision at 32.) The Commission stated in its order approving the Verizon/MCI merger that the FCC was required to identify the public interest benefits stemming from a merger and addressed key service areas, including special access, service quality metrics for special access, retail enterprise, mass market, internet backbone and wholesale exchange. The FCC also addressed UNEs and intended to “enforce Joint Applicants’ commitment not to seek an increase in state-approved rates for UNEs for two years, except for rates that are subject to current appeals in specific states, of which Pennsylvania is included.” (Commission’s January 11, 2006 decision at 13.) Additionally, the Commission found that based on the FCC’s order, there would be, among other things, no increase for 30 months in rates for existing DS1 and DS3 customers’ wholesale metro private line services provided in Verizon’s local service areas; no increase in interstate tariffs, including contract tariffs, for 30 months following the merger closing date for DS1, DS3 and OCn special access services; the merged entity would offer special access offerings to non-affiliated providers that the merged entity provided to their affiliates for 30 months following the merger closing date; and the merged entity would not provide a new contract tariff to its Section 272(a) affiliates for 30 months following the merger closing date until it certified to the FCC that it provided service under that tariff to an unaffiliated customer other than itself and its affiliates under § 69.727 of the FCC’s rules. The Commission also took official notice of the Department of Justice’s Consent Decree where Verizon and MCI agreed to divest certain assets for lateral connections to certain buildings in eight metropolitan areas where only they had direct connections. Based on those conditions by those agencies, it found that the merger would be in the public interest. Moving to the concerns of the parties who filed exceptions urging that the Joint Application be rejected because it had not been shown that the merger was in the public interest unless conditions were imposed, the Commission went on to note that Section 1103(a) of the Public Utility Code, 66 Pa.C.S. § 1103(a), provided that the Commission may impose conditions in granting a certificate of public convenience once it determines that the proposed merger is in the public interest. It then went on to discuss each of the objectors’ suggested conditions and found, like the ALJ, that no additional conditions were necessary. The Commission did, however, agree with the exceptions filed by Senator White and the OCA, that Section 3019(b)(4) of the Public Utility Code (Chapter 30) was not a limitation on the Commission’s ability to impose conditions under the separate authority of Section 1103 of the Public Utility Code. With that said, the Commission then took administrative notice that the Verizon companies were in full compliance with their approved Chapter 30 Plans, and in its June 30, 2005 Network Modernization Plan, it had exceeded its commitment to provide broadband availability in the rural, suburban and urban exchanges it served by one percent, five percent and 22%. Based on its history, the Commission concluded that Verizon companies were making significant progress in its deployment of a state-of-the-art broadband network and no order requiring accelerated deployment was necessary. Adopting the outcome, if not the reasoning of the ALJ’s decision, it strongly encouraged Verizon to “continue to strive to accelerate its broadband network deployment to those areas of the state where such service is currently lacking before the 2015 deadline.” (Commission’s January 11, 2006 decision at 50.) Dissent of Vice Chairman Cawley Vice Chairman James H. Cawley (Vice Chairman Cawley) dissented because the evidence showed that the only parties who would benefit from the merger would be Verizon and MCI. He found that the OCA and the OSBA persuasively demonstrated that the proposed merger would adversely affect the competitive structure and functions of the telecommunications services market in Pennsylvania, as well as the residential and small commercial consumers of retail telecommunications services. He also noted that the staff of the Office of Special Assistants (OSA) had presented to the Commission an in-depth analysis, along with a set of recommendations modifying the ALJ’s initial decision imposing three modest conditions on the proposed merger, which, if accepted, he would have approved the merger, but they had been rejected. He went on to state that the Commission faded to review proposed mergers under Sections 1102(a)(3) and 1103(a) of the Public Utility Code, 66 Pa.C.S. §§ 1102(a)(3) and 1103(a), and its duty to impose conditions when necessary to “compensate for merger proposals that lack the requisite public interest.” He stated this authority was “independent of the parallel merger review authority that is exercised by the U.S. Department of Justice (U.S.DOJ), and federal administrative regulatory agencies such as the Federal Communications Commission (FCC). If this were not so, there would be little point in seeking our approval in the first point.” (Vice Chairman Cawley’s December 15, 2005 dissent at 2.) He then addressed the fact that Verizon and MCI did not demonstrate that the merger would produce substantial affirmative benefits for Pennsylvania end-user consumers of telecommunications services as required under the standards set forth in City of York. Rather, he pointed out that if any benefits were to accrue at all, they would primarily benefit the large institutional “enterprise customers” which the ALJ and Commission acknowledged. He also addressed, among other things, the concerns regarding the lack of broadband services in rural and Northwestern Pennsylvania and noted that no part of the $321 million that would accrue from the proposed transaction was going to be diverted for the end-user consumers to address the “digital divide.” Regarding the anti-competitive effects of the merger, Vice Chairman Cawley found that by the Commission rejecting the OSA staffs recommendation, which was either an intentional refusal to enforce the Code of Conduct or worse, the selective enforcement of that regulation, the result would be that if Verizon and MCI ever chose to engage in anti-competitive behavior, they would be given free reign to reference the Commission’s Order approving their merger as superseding the Code of Conduct which would be doing a disservice to the Commission’s “past laborious efforts to develop the Code of Conduct as a concrete policing mechanism of the Verizon ILECs’ ‘market power’ within this Commonwealth.” (Vice Chairman Cawley’s December 15, 2005 dissent at 10.) Essentially, Vice Chairman Cawley found the approval of the proposed merger, without conditions beyond those required by the FCC and the Department of Justice, would have detrimental affects for the overall level and scope of competition for the provision of telecommunications services to end-user consumers in the Commonwealth. He further found that to allow such a decision to stand would essentially be the same as delegating the Commission’s independent authority to review proposed mergers between major telecommunications enterprises operating under the Commonwealth’s regulatory jurisdiction to the federal government alone, bypassing the Commission’s expertise and knowledge on the telecommunications services market structured and operated within the Commonwealth. D. This Appeal The OCA is the only party which has filed an appeal with this Court from the Commission’s decision. Its primary contention is that the Commission’s order, which failed to impose any conditions on the merger to ensure that benefits would accrue to Pennsylvania consumers, must be reversed and remanded for the imposition of conditions that will ensure that the merger satisfies the standards set forth in City of York which encompasses the requirements set forth in Sections 1102 and 1003 of the Public Utility Code. As previously stated, in City of York, also involving a merger of telephone companies, our Supreme Court held that what was now Section 1103 of the Public Utility Code required “that those seeking approval of a utility merger demonstrate more than the mere absence of any adverse effect upon the public. [It] requires that the proponents of a merger demonstrate that the merger will affirmatively promote the ‘service, accommodation, convenience, or safety of the public’ in some substantial way.” City of York, 449 Pa. at 141, 295 A.2d at 828. (Emphasis added.) In determining whether the Pennsylvania public is benefited in some substantial way, “it is contemplated that the benefits and detriments of the acquisition be measured as they impact on all affected parties, and not merely on one particular group or geographic subdivision as might have occurred in this case.” Middletown Township v. Pennsylvania Public Utility Commission, 85 Pa.Cmwlth. 191, 482 A.2d 674, 682 (1984). The question here then is whether the Commission had substantial evidence in making the determination that the merger was in the public interest, and in making that analysis, whether it applied the proper criteria. Usually, utility mergers can be justified as conferring a public benefit because under the traditional cost-based rate base/ rate of return method, any financial savings gained due to economies related to the merger would ultimately be passed through to consumers through ratemaking in the form of lower annual revenue requirements and lower rates for ratepayers. In City of York, our Supreme Court approved the merger because the merger would lower those costs, explaining: Not only did the Commission correctly reject complainants’ arguments that the merger would have the effect of raising rates, but the Commission indicated that the merger would likely have the opposite effect. The Commission expressly found that ‘the economies that would be forthcoming in this present merger are considerable ...,’ and that ‘the beneficiaries of this merger will certainly be the subscribers of YORK and PRINCETON.’ Id. at 145, 295 A.2d at 8B0. Unlike in City of York, because of the subsequent enactment of Chapter 30 of the Public Utility Code, merger savings are no longer a factor in determining whether the merger benefits the public in a substantial way. Chapter 30 changed the way rates are set for telecommunication utilities from the traditional cost-based rate base/rate of return method to an inflation-based formula. Unlike cost-based rate base/rate of return where merger savings would be reflected in rates, under the inflation based method, no savings from the merger are passed onto consumers, but are retained by the company. As a result, none of the merger savings would flow through to the customers; therefore, those savings do not constitute a basis to find that the merger is in the public interest. Because rate savings are no longer passed on to consumers, an examination of the anti-competitive effects of the merger are important because if competition is eliminated, then Verizon would have less of a reason to temper rate increases or allow access to their competitors. The Commission discounted the anti-competitive effects of the merger relying on the FCC’s and Department of Justice’s approval of the merger and the conditions, a/k/a “voluntary commitments,” that they imposed. (See n. 10.) While some of those conditions indirectly have some bearing on Pennsylvania ratepayers, they only address non-quantified federal concerns, and the Commission never undertook a Pennsylvania specific analysis of the anti-competitive effects of the merger on Pennsylvania customers. As pointed out by Vice Chairman Cawley’s dissent, the FCC’s final order recognized that the Commission could undertake state specific requests stating that it was not the FCC’s intent by imposing the conditions to restrict, supersede or alter state or local jurisdiction or to limit state authority to adopt rules, regulations or performance monitoring programs or other policies that were not inconsistent with the conditions the FCC had imposed. By failing to perform a Pennsylvania specific analysis of the merger and relying on the FCC’s merger approval order or the Department of Justice’s Consent Decree with “voluntary commitments,” the Commission failed to include in its analysis what were the anti-competitive effects that the merger would have on Pennsylvania consumers. For that reason alone, we would remand for that analysis to be made. However, even if the conditions imposed by those federal agencies ameliorated all of the anti-competitive effects in Pennsylvania, it would only establish that the merger was not detrimental to the public, not that needed substantial benefits were present to justify the merger. The Commission contends that there are positive benefits flowing from the merger to the public. It only cites three positive benefits that the public would receive if the merger was consummated: 1. The merger would provide Verizon access to MCI’s Internet backbone, and when combined with Verizon’s ongoing fiber deployment program, they would create a platform to support a broad array of multimedia communications services and applications. 2. The merger would affirmatively benefit the public by promoting wireless and wireless broadband. 3. The public would benefit from the merger by continuing Verizon’s longstanding corporate presence in Pennsylvania. Aside from these benefits, the Commission indicates that it made a lengthy list of findings and conclusions of law which explained how Pennsylvania would particularly benefit from the merger. However, those factors do not satisfy Joint Applicants’ burden that the merger benefit the public in some substantial way. The finding that the merger would provide Verizon access to MCI’s Internet backbone and, when combined with Verizon’s ongoing fiber deployment program, would create a platform to support a broad array of multimedia communications services and applications, does not prove a benefit to the public. While that benefit may sound like it is offering something, after parsing it out, it promises nothing. Nowhere in Joint Applicants’ application do they explain what “multimedia services” will be offered, make a commitment to offer those services, or state that those services would not be offered in absence of the merger. As to the benefit from the merger by continuing “Verizon’s long-standing corporate presence in Pennsylvania,” in no way is that a benefit to the Pennsylvania public. Verizon, the successor to Bell of Pennsylvania, is the incumbent phone carrier with its lines and facilities in the public right-of-way of the Commonwealth, and it is going to have a corporate presence in Pennsylvania regardless of whether its merger is approved. Regarding wireless broadband services, Joint Applicants stated in their application, “American consumers and small businesses will benefit from the enhanced deployment of wireline and wireless broadband services that this transaction will promote.” Again, there is nothing that quantified what enhanced deployment of wireless broadband services means — does it mean that it is going to be rolled out faster — at a higher speed — and, considering that MCI was not a factor in wireless service — whether the roll out of those services was going to be undertaken without the merger. As Vice Chairman Cawley precisely explained in his dissent: [T]he inescapable conclusion [is] that the Joint Applicants, Verizon and MCI, have not met their evidentiary burden to demonstrate that the proposed merger will result in ‘affirmative benefits.’ In contrast, a wide array of parties in this proceeding, including the [OCA] and the [OSBA], have persuasively demonstrated that the proposed merger will adversely affect not only the competitive structure and functions of the telecommunications services market in this Commonwealth, but residential and small commercial consumers of retail telecommunications services as well. Indeed, the record fails to establish that the merger will benefit any larger commercial or industrial consumer. In short, the merger will benefit the Joint Applicants but no one else. (Vice Chairman Cawley’s December 15, 2005 dissent at 1.) Because we find that there was no evidence that the merger of Verizon and MCI in Pennsylvania would affirmatively promote the service, accommodation, convenience or safety of the public in some substantial way, the order of the Commission is reversed and we remand this matter to the Commission to either reject the merger or impose conditions that will benefit the public in a substantial way. President Judge COLINS dissents. ORDER AND NOW, this 20th day of February, 2007, the order of the Pennsylvania Public Utility Commission, dated January 11, 2006, is reversed and remanded to the Commission to either reject the merger or impose conditions that will benefit the public in a substantial way. Jurisdiction relinquished. . Those subsidiaries are Mclver Access Transmission Services, LLC MCI World Com Communications, Inc. MCI WorldCom Network Services, Inc.; ITS National, Inc.; Telecon-nect Long Distance Services and System Co. d/b/a Telecom USA (MCI) in Pennsylvania. . "Verizon is a Delaware corporation whose telephone operating company subsidiaries provide telecommunications services on a regulated and unregulated basis in 28 states, Puerto Rico and the District of Columbia, serving 53 million access lines.” (Application at 2-3.) Verizon’s local telephone subsidiaries are subject to public utility regulation in the jurisdictions in which they operate. Id. They are subject to regulation by the Federal Communications Commission (FCC) for the services they provide pursuant to federal tariffs and the Federal Communications Act of 1934. Id. Verizon Pennsylvania, Inc. and Verizon North, Inc. provide regulated telecommunications services in Pennsylvania. Id. Verizon’s domestic telecommunications services include the provision of exchange telecommunication services, including switched local residential and business services, local private line, voice and data services and Cen-trex services. Id. Verizon also provides intra-LATA and interLATA toll and interexchange services, as well as exchange access services, including switched access and special access services. Id. Verizon provides these wireline services to consumers, small and enterprise businesses and to other telecommunications carriers. Id. Verizon’s other domestic subsidiaries provide voice and date wireless services, information services including directory publishing, and electronic commerce. Id. Verizon’s international subsidiaries provide wireline and wireless communications operations and investments. Id. “In 2004, Verizon had annual operating revenues of approximately $71 billion. Id. Verizon has a national workforce of 210,000 employees, including over 17,000 employees in Pennsylvania. Id. Verizon has a strong balance sheet and investment-grade credit rating and is a stable, viable enterprise. Id." (ALJ’s November 15, 2005 decision, Reproduced Record at 967-968a.) ."MCI is a Delaware corporation whose subsidiaries provide telecommunications services on a regulated and unregulated basis through the United States and in several foreign countries.” Application at 3-4. MCI’s subsidiaries provide services to business and government customers including 75 federal government agencies. Id. Among the enterprise services MCI provides through its sub sidiaries are a comprehensive portfolio of local-to-global business data, internet, and voice services including Internet Protocol (IP) network technology, Virtual Private Networking, Synchronous Optical Network (SONET) private line, frame relay, Asynchronous Transfer Mode (ATM) and a full range of dedicated, dial and value-added internet services. Id. Some of MCI’s subsidiaries are subject to public utility regulation in the jurisdictions in which they operate. MCI’s subsidiaries provide consumer services, including interstate long distance services, intrastate toll services, competitive local exchange services, and other telecommunications services in Pennsylvania. Id. MCI’s subsidiaries are also subject to regulation by the FCC for the interstate services they provide. Id. In 2004, MCI had annual operating revenues of approximately $21 billion. Id. "MCI has over 42,500 employees nationally and internationally, including approximately 325 employees and contractors in Pennsylvania. Id.” (ALJ's November 15, 2005 decision, Reproduced Record at 968-969a.) . The Commission found that: “Nationally, Verizon's wireline business has declined. Total Verizon retail lines in service fell by 18% between December 2001 and December 2004. Verizon’s retail lines declined in each customer category, including residential and all business customers. Between the first quarter of 2002 and the fourth quarter of 2004, demand for Verizon-provided carrier switched access service (measured by switched access minutes of use) fell from 59.2 billion to 44.1 billion minutes (a decline of twenty-five percent.) (I.D., finding of Fact 6; Jnt. Stmt. 1 at 12-13.)” (Commission’s January 11, 2006 decision at 6.) Regarding MCI, it found, "MCI’s mass market business was in a continuing state of decline. Joint Applicants state that this decline is irreversible. (MCI Stmt. 1.0 at 16.) Nationally, MCI’s mass market revenues fell by twenty percent from 2003 to 2004. (Jnt. Stmt. 1 at 10.) MCI’s declining wireline revenues and sales volumes led MCI to decide not to attempt to reverse the decline, but rather to dramatically reduce its marketing efforts to mass market customers, including very significant reductions in mass market advertising and its mass market sales force, as well as closing several call centers. (Jnt. Stmet. 1 at 11; Stmt. 1.1 at 18.) MCI has also had to increase its charges for mass market services which would further hasten its loss of market share. (MCI Stmt. 1.0 at 15-17.)” {Id. at 8.) . Estimated merger savings provided by Verizon and MCI to the Commission and this Court under seal indicate those savings would be substantially higher than the publicly available figures. . This figure is arrived at by multiplying the estimated total synergy savings by 9.2%, the Pennsylvania percentage estimate of Verizon's nationwide operations, and dividing by 2. . Those "voluntary commitments” provided: 1. For a period of two years, no Unbundled Network Elements (UNE) rate increases in state-approved rates except for rates that are subject to currently pending appeals. UNEs are defined as physical and functional elements of the network, e.g., Network Interface Devices, local loops, switch ports, and dedicated and common transport facilities. When combined into a complete set in order to provide an end-to-end circuit, the UNEs constitute a UNE-P or UNE-Platform; 2. Within 30 days after the Merger closing Date, the applicants will exclude the applicants' (MCI) fiber-based collocation arrangements in identifying those wire centers in which the applicants claim "no impairment” under Section 51.319a(a) and (e), 47 F.F.R. §§ 51.319(a) and (e), of the FCC’s rules; 3. Implementation of a Performance Metrics Plan (PMP) for interstate special access services with data provided on a quarterly basis for those affiliates that meet the definition under Section 251(h)(1)(A) and (B)(i) of TA-96, 47 U.S.C. § 251(h)(1)(A) and 251(B)(1); 4. No increase for 30 months in rates paid by existing DS1 and DS3 customers wholesale metro private line services provided in Verizon's local service areas; 5. For 30 months following the Merger Closing Date, the applicants will offer special access offerings to non-affiliated providers that the applicants provide to their affiliates; 6. For 30 months following the Merger Closing Date, the applicants will not provide a new contract tariff to its Section 272(a) affiliate(s) until it certifies to the FCC that it provides service under that tariff to an unaffiliated customer, other than the applicant and its affiliates, under § 69.727 of the FCC's rules; 7. For 30 months following the Merger Closing Date, the applicants will not increase their rates for interstate tariffs, including contract tariffs, for DS1, DS3 and OCn special access services. This commitment does not apply to advanced services provided by a Separate Advanced Services affiliate under the terms of the BA/GTE Order nor does it apply to DS0 services as defined in paragraph 2 of the SBC/Ameri-tech Order, In re Applications of Ameritech Corp., Transferor, and SBC Communications Inc., Transferee ..., CC Docket No. 98-141, 14 FCC Red 14712, 1999 FCC LEXIS 5069 (1999). . The Department of Justice and the FCC determined that with such commitments in place, the merger at the federal level was in the public’s best interest. According to Verizon, the following states also issued merger approval orders with few, if any, additional conditions: North Carolina (4/27/05); Mississippi (6/30/05); Louisiana (8/19/05); Hawaii (9/12/05); Utah (9/16/05); Virginia (10/6/05); District of Columbia (10/20/05); California (11/18/05); New York (11/22/05); Vermont (11/29/05); Ohio (11/29/05); New Jersey (12/2/05) Arizona (12/9/05); West Virginia (12/13/05); Alaska (12/17/05); Maine (12/22/05); Washington (12/23/05); Tennessee (4/12/06); and Wyoming (9/22/06). "Other states either declined to review or had no requirement to review.” (Intervenor Verizon’s brief at 1, n. 1.) . They filed an amendment to the Joint Application on March 29, 2005, modifying certain financial and other terms in the Agreement. On May 1, 2005, they filed a second amendment to the Agreement. . Senator White is a senator for Pennsylvania’s 21st District consisting of Clarion, Forest and Venango counties and parts of Butler, Erie and Warren counties. . CCG is comprised of the following companies: Broadview Networks, Inc.; Broadview NP Acquisitions Corp.; BridgeCom International, Inc.; CTC Communications Corp.; DIECA Communications, Inc. d/b/a Covad Communications Company; and XO Communications Services, Inc. . Those companies include: Armstrong Telephone Company-Pennsylvania; Armstrong Telephone Company-North; The Bentleyville Telephone Company; Buffalo Valley Telephone Company; Conestoga Telephone and Telegraph Company; D & E Telephone Company; The Hancock Telephone Company; Hickory Telephone Company; Lackawaxen Telephone Company; Laurel Highland Telephone Company; The North-Eastern Pennsylvania Telephone Company; North Penn Telephone Company; North Pittsburgh Telephone Company; Palmerton Telephone Company; Pennsylvania Telephone Company; Pymatun-ing Independent Telephone Company; South Canaan Telephone Company; Venus Telephone Company; and Yukon-Waltz Telephone Company. Originally, ALLTEL Pennsylvania, Inc. was a member of the coalition but it withdrew from participation in the proceeding by letter dated July 8, 2005. . DSL means "digital subscriber line” and refers to a modern technology that uses existing twisted pair telephone lines to transport high-bandwidth data. . Special Access Service refers to "[s]ervice provided over dedicated, nonswitched facilities by local exchange telecommunications companies to interexchange telecommunications carriers or other large volume users which provides connection between an inter-exchange telecommunications carrier or private network and a customer’s premises.” 66 Pa.C.S. § 3012. . "Enterprise customers” are large business customers, federal and large state government customers and medium-sized business and government customers. . Pennsylvania Public Utility Code, 66 Pa. C.S. §§ 101-3316. (See Reproduced Record at 1019a.) . The OCA argued that the Joint Application should be rejected unless significant conditions were imposed on the merger because no evidence had been produced to show any affirmative public benefit, but there was evidence that it would negatively affect competition in Pennsylvania. Further, none of the alleged competitive alternatives were viable substitutes to ameliorate the alleged anti-competitive impact of further strengthening Verizon’s dominant position in the market for traditional wireline services. The OSBA believed that eliminating MCI as Verizon’s largest competitor in Pennsylvania would have an adverse effect on the telecommunications services for small business customers. RTCC withdrew its protest, not expressing opposition to the merger, but sought to have conditions imposed if approved. It elected to directly raise its concerns with Verizon. FSN was opposed to the merger absent any conditions that provided for the continued availability of UNE-P for mass market customers at tariffed rates and conditions. Qwest wanted the merger denied without specific conditions imposed as stated before the ALJ. CCG argued that the merger was anti-competitive and required conditions to mitigate those competitive concerns. CWA also argued that the unconditional approval of the proposed merger was not in the public interest. Finally, Senator White asked the Commission to deny the Joint Application because Verizon and MCI failed to demonstrate that the service, accommodation, convenience or safety of the public would be promoted. .The Commission, though, did agree that the questions of market concentration present in this case were not present in the SBC/AT & T merger, thereby distinguishing the two proceedings "solely to the extent that our evaluation of the public interest must consider the competitive impacts of the transaction as part of the broader public interest analysis.” (Commission's January 11, 2006 decision at 28.) However, it found that there were substantial similarities in the two proceedings because in both, there was an irreversible decline in revenues and market share in Pennsylvania and nationally, particularly in the mass market. Additionally, because the FCC had resolved the SBC/AT & T merger and the Verizon/MCI merger conjunctively, the Commission believed that the FCC’s "virtual simultaneous consideration of the two proceedings suggests the interchangeability of the two proceedings in the FCC's analysis of market power considerations.” (Commission’s January 11, 2006 decision at 29.) Consequently, the Commission determined that the merger of Verizon and MCI met the standards in City of York, and approved the merger request without any further conditions other than those imposed by the Department of Justice in the Consent Decree and the FCC conditions. . The Commission did not clarify what Section 272(a) referenced. . Similarly, the Commission did not clarify the reference to Section 69.727 of the FCC's rules. . 66 Pa.C.S. § 1103(a) provides in relevant part: Every application for a certificate of public convenience shall be made to the commission in writing, be verified by oath or affirmation, and be in such form, and contain such information, as the commission may require by its regulations. A certificate of public convenience shall be granted by order of the commission, only if the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. The commission, in granting such certificate, may impose such conditions as it may deem to be just and reasonable. In every case, the commission shall make a finding or determination in writing, stating whether or not its approval is granted. (Emphasis added.) . Those conditions were that the merger be conditioned upon: 1) providing to other competitors the UNE-P that was previously provided by Verizon to MCI; 2) providing service quality reporting; and 3) complying with existing affiliated interest requirements of Chapter 21 of the Public Utility Code. . Vice Chairman Cawley cited the following language from the FCC’s final order to prove his point: It is not the intent of these Conditions to restrict, supersede [sic], or otherwise alter state or local jurisdiction under the Communications Act of 1934, as amended, or over the matters addressed in these Conditions, or to limit state authority to adopt rules, regulations, or performance monitoring programs, or other policies that are not inconsistent with these Conditions. In the Matter of Verizon Communications, Inc., and MCI, Inc. Applications for Approval of Transfer of Control, WC Docket No. 05-75 (Rel. Nov. 17, 2005.) (Vice Chairman Cawley’s December 15, 2005 dissent at 2, n. 1.) .See 52 Pa.Code § 63.143(l)(i) which provides: An ILEC may not give itself, including any local exchange affiliate or division or other corporate subunit that performs that function, or any CLEC any preference or advantage over any other CLEC in the preorder-ing, ordering, provisioning, or repair and maintenance of any goods, services, network elements (as defined under sections 3(29) of the Communications Act of 1934 (47 U.S.C.A. § 153(39)), or facilities. . Our scope of review of a Commission’s final order is limited to determining whether there has been a violation of constitutional rights, errors of law and whether findings are supported by substantial evidence. Kirkwood Partnership v. Pennsylvania Public Utility Commission, 133 Pa.Cmwlth. 478, 576 A.2d 1167 (1990). . The Commission also found that there would be these additional benefits: The American economy would receive the following benefits from the merger: (a) The acquisition would create a global industry leader by strengthening simultaneously America’s premier telecommunications network builder (MCI) and its leading service provider (Verizon). (b) Utilizing MCI’s powerful networking assets, the transaction would give Verizon greater ability to lead the telecommunications industry’s revitalization through new investment in world-class networks and services. (c) The transaction would ensure that key domestic communications networks were robust and technologically advanced, thus enhancing the economic viability and security of America’s homeland. The State’s economy would receive the following benefits from the merger: (a) Verizon would continue its long history of corporate responsibility and good citizenship in the communities. (b) The combined company (Verizon and MCI) would benefit from MCI's practice of providing good jobs and cutting edge network technology. After the merger was completed, competition for residential and small business customers in Pennsylvania would continue to come from wireline competitors such as CLECs, as well as from cable telephone providers, wireless service providers and Voice over Internet Protocol (VoIP) providers operating throughout the State. (OCA's brief at 27-28.) . The Arizona Commerce Commission's comments that Joint Applicant’s evidence did not meet the legal standard for approving the merger without conditions are equally apropos to Joint Applicants’ testimony presented to our Commission where it stated: The Applicants’ witnesses offered carefully parsed testimony to extol the virtues of the merger transaction, but failed to offer any concrete examples of how the vast majority of customers (i.e., residential and small business) would realize any benefits whatsoever from the transaction. For example, in describing the alleged benefits and commitments associated with the merger, Verizon's witnesses employed vague terms such as [the merger] "likely will provide benefits to Arizona customers;” “there is no change contemplated with respect to the terms and conditions of service;” "[the merger transaction is] not likely to significantly increase costs charged to the Arizona jurisdiction;” "mass market customers ... may benefit from new Internet access services ...” [and] "advanced network facilities and products may, over time, become accessible to mass market customers." The Applicants’ witnesses were unable to identify any examples of specific benefits that would be realized by mass market customers as a result of the merger. The best that such customers apparently could expect is that the transaction "is not likely” to cause any significant harm, and there is a possibility that, someday, in the future, advanced services could be more accessible to such customers. We are not persuaded that the remote possibility of some long-term, unidentified future benefit for the majority of the customers affected by the merger transaction satisfies our obligation to determine whether the merger is in the public interest. In the Matter of Joint Notice of Intent by Verizon Communications, Inc. and MCI, Inc. on Behalf of its Regulated Subsidiaries, Az. C.C. docket Nos. T-01846B-05-0279, et al., 2005 WL 3739801 (December 9, 2005 at 15-16.) (Citations omitted, emphasis in original.) . Other state Public Utility Commissions found similar conditions to be illusory and that a merger would not be permitted unless conditions to make the merger was in the public interest. See e.g., In the Matter of the Joint Application of Verizon Communications, Inc. and MCI, Inc. for approval of Agreement and Plan of Merger, 2005 Wash. UTC LEXIS 655 (December 23, 2005); VERIZON COMMUNICATIONS, INC. and MCI, INC. Request for Approval of Agreement of Verizon Communications and MCI, Inc., 2005 Me. PUC LEXIS 278 (December 22, 2005); In the Matter of Joint Notice of Intent by Verizon Communications, Inc. and MCI, Inc. on Behalf of its Regulated Subsidiaries, Az.C.C. docket Nos. T-01846B-05-0279, et al., 2005 WL 3739801 (December 9, 2005); In the Matter of Joint Application of Verizon Communications, Inc. and MCI, Inc. to Transfer Control of MCI’s California Utility Subsidiaries to Verizon Which Will Occur Indirectly as a Result of Verizon’s Acquisition of MCI, 2005 Cal. PUC LEXIS 517 (November 18, 2005).

OPINION BY Judge FRIEDMAN. Anthony Williams (Williams) appeals from the May 1, 2006, order of the Court of Common Pleas of Allegheny County (trial court), which sua sponte dismissed Williams’ complaint as frivolous under Pa. R.C.P. No. 240(j). We affirm in part, reverse in part and remand for further proceedings. Williams filed a complaint and petition for leave to proceed in forma pauperis with the trial court. Williams alleged that, on November 26, 2002, while he was incarcerated at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh), he was placed in administrative custody in the restricted housing unit (RHU) without television privileges. Officer Duckworth took possession of Williams’ nine-inch color television set, which was in good working condition, and prepared Inmate Personal Property Inventory form No. A389207. (Complaint, ¶ 13.) On November 21, 2003, Williams remained in administrative custody in the RHU, but he was permitted to inspect his personal property with Officer Hardy and Officer Morgan. At that time, the television set was in good working condition, as reflected in Inmate Personal Property Inventory form No. A476613. (Complaint, ¶ 14.) On February 4, 2004, Williams again inspected his personal property with Officer Hardy and Officer Morgan. This time, the television’s picture tube was cracked, and the back of the cable converter box was broken. Williams could get no sound or picture on his television set. Williams filed a grievance, seeking either repair of the television set or a new one, but the grievance was denied because Williams previously had used the grievance system to allege retaliation, harassment and mental abuse by corrections officers. (Complaint, ¶ 15.) Williams subsequently filed his complaint with the trial court against the following prison employees: William S. Stick-man, Superintendent; Officer Duckworth; Officer Hardy; Captain McConnell; Officer Morgan; Carol Seme; Captain Charles Simpson; and Sgt. Yates (collectively, state employees). In Count 1, Williams sets forth an action in trespass, alleging that the state employees, with malice and wantonness, damaged his television set and refused to reimburse him. In Count 2, Williams sets forth an action in assump-sit and/or replevin for the refusal to reimburse him for the damage to his property. In Count 3, Williams sets forth a tort action, alleging that the state employees breached their duty to either repair the television set or buy Williams a new one. The trial court dismissed Williams’ complaint under Pa. R.C.P. No. 240(j), stating: Claims against a municipal officer are barred by the Sovereign Immunity Act, unless the claims come within one of the eight exceptions to governmental immunity set forth in 42 Pa.C.S. § 8542(b). Under 42 Pa.C.S. § 8545, an employee of a local agency is liable only to the same extent as his or her employing agency. The only possible exception to sovereign immunity is the exception set forth in § 8542(b)(2) covering the care, custody, or control of personal property. However, this provision does not apply to harm to personal property; it applies to the situation in which property held by the Commonwealth causes injury to persons or other property. (Trial ct. op. at 1) (emphasis added). Williams filed a notice of appeal to our superior court, which transferred the matter to this court. I.Local Government Immunity Williams argues that the trial court erred in dismissing his complaint based on statutory provisions relating to local government immunity. The state employees agree, and we agree. Indeed, employees of SCI-Pittsburgh are not employees of a local agency. II.Count 1: Intentional Tort The state employees ask this court to affirm the trial court on other grounds, arguing that Williams’ complaint is barred by the statutory provisions relating to sovereign immunity. The state employees assert that, to the extent that Williams’ action sets forth an intentional tort, as in Count 1, the action is barred. We agree. This court has held that, “when an employee of a Commonwealth agency was acting within the scope of his or her duties, the Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims.” La Frankie v. Miklich, 152 Pa.Cmwlth. 163, 618 A.2d 1145 (1992). Thus, the trial court properly dismissed Count 1 as frivolous. III.Count 3: Negligence The state employees next assert that, to the extent that the complaint sets forth a negligence claim, as in Count 3, the action is barred by statutory provisions relating to sovereign immunity. In this regard, the state employees assert that the personal property exception to sovereign immunity does not apply here. We disagree. Section 8522(b)(3) of the act known as the Sovereign Immunity Act states that “the defense of sovereign immunity shall not be raised to claims for damages caused by ... [t]he care, custody or control of personal property in the possession or control of Commonwealth parties, including ... property of persons held by a Commonwealth agency-” 42 Pa.C.S. § 8522(b)(3). Williams sets forth a claim for damages to his television set caused by the care of the television set while it was in the possession of Commonwealth parties. Based on the plain language of section 8522(b)(3), the state employees may not raise sovereign immunity as a defense in this case. See Payton v. Horn, 49 F.Supp.2d 791 (E.D.Pa.1999) (holding that section 8522(b) provides a remedy for inmates when a prison official negligently handles an inmate’s personal property). IV. Count 2: Assumpsit Although the state employees ask this court to affirm the dismissal of Williams’ entire complaint as frivolous, the state employees do not offer an alternative basis for dismissal of the assumpsit claim in Count 2. This court has stated that the Commonwealth has waived sovereign immunity as a defense in causes of action for assumpsit. McKeesport Municipal Water Authority v. McCloskey, 690 A.2d 766 (Pa.Cmwlth.), appeal denied, 549 Pa. 708, 700 A.2d 445 (1997). Thus, we may not affirm the trial court’s dismissal of Count 2 on the basis of sovereign immunity. Accordingly, we affirm the dismissal of Count 1; however, we reverse the dismissal of Counts 2 and 3 and remand this case to the trial court for further proceedings. ORDER AND NOW, this 28th day of February, 2007, it is hereby ordered that: 1. The order of the Court of Common Pleas of Allegheny County (trial court), dated May 1, 2006, is affirmed to the extent that the order dismisses Count 1 of the complaint filed by Anthony Williams. 2. The order is reversed to the extent that the order dismisses Count 2 and Count 3 of Williams’ complaint. 3. This case is remanded to the trial court for further proceedings. Jurisdiction relinquished. . Pa. R.C.P. No. 240(j) states, "If, simultaneous with the commencement of an action ..., a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action ... if it is satisfied that the action ... is frivolous." The Note to Pa. R.C.P. No. 240(j) states that an action is frivolous if it lacks an arguable basis either in law or in fact. . The state employees point out that, in Serrano v. Pennsylvania State Police, 130 Pa. Cmwlth. 531, 568 A.2d 1006 (1990), this court stated that, for the personal property exception to apply, the property itself must be responsible in some manner for the injury. However, in Serrano, the injury was separate and distinct from the property; here, the injury is the loss of the property itself. Thus, Serrano does not control.

OPINION OF THE COURT CAPPY, Justice. We have before us an automatic direct appeal from the judgment of sentence of death and concurrent and consecutive terms of imprisonment imposed upon Appellant, Edward Bracey, by the Court of Common Pleas of Philadelphia County, Criminal Division. On the record before us, we affirm the judgments of sentence imposed by the Court of Common Pleas of Philadelphia County, Criminal Division. On February 3, 1992, Appellant was brought to trial by jury in connection with the shooting of Philadelphia Police Officer Daniel Boyle that occurred on February 4, 1991, and subsequently resulted in the death of Officer Boyle. The jury found Appellant guilty of murder of the first degree, possessing an instrument of crime, theft by receiving stolen property, and criminal trespass. A separate penalty hearing was held regarding the murder conviction. The jury found the existence of two aggravating circumstances and no mitigating circumstances, and fixed Appellant’s penalty at death. Appel lant was immediately sentenced by the trial court to death for the first degree murder conviction, and sentencing on the remaining convictions was deferred pending the filing and disposition of post-verdict motions. Post-trial motions were subsequently filed, argued and denied, and Appellant was sentenced on his remaining convictions to an aggregate period of incarceration of eleven to twenty-two years to run consecutively to the sentence of death. As Appellant alleges insufficient evidence was presented to sustain his conviction for murder in the first degree we will begin our review of this case with a discussion of the evidence adduced at trial. The test for establishing sufficiency is whether the evidence, and all reasonable inferences • deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). On February 4, 1991, Officer Boyle was operating his police cruiser during a search for robbery suspects and attempted to stop a stolen vehicle being operated by Appellant. Appellant failed to stop the stolen vehicle and eventually crashed it into a building. Appellant immediately jumped out of the vehicle and onto the hood and roof of Officer Boyle’s cruiser while brandishing a 9mm automatic handgun. Appellant jumped off the vehicle and aimed his firearm at Officer Boyle while warning Officer Boyle not to touch his firearm. As this occurred Officer Boyle quickly attempted to remove his vehicle from the area, and Appellant rapidly discharged his firearm no less than eight times at Officer Boyle. One of these shots struck Officer Boyle in the right temple. Officer Boyle radioed that he had been shot. Upon the arrival of his fellow officers, Officer Boyle, although bleeding heavily and incapable of opening his eyes, said “the guy just got out and shot me.” Officer Boyle died two days later. Barry Smith, an individual who provided Appellant with the stolen vehicle and who allegedly exited the stolen vehicle seconds before the crash, identified Appellant as the shooter. Numerous other witnesses, as well as physical evidence in the form of sneaker prints on the victim’s police cruiser, also linked Appellant to the crime. An intensive search was undertaken for Appellant. On February 6, 1991, the police were summoned by a woman complaining that a man had entered her residence through a skylight and set himself on fire. The police entered the residence and confronted Appellant on the second floor, “still smoldering.” He was arrested and taken to the hospital where he was placed in intensive care in critical condition. The police did not interview Appellant until February 15,1991, after being advised by physicians that Appellant was then well enough. During the interview, Appellant waived his Miranda rights, and immediately confessed to shooting Officer Boyle. Thereafter, the police recovered the murder weapon, a 9mm Ruger P85 automatic handgun, which Appellant had disposed of in a sewer. Appellant specifically argues that there was insufficient evidence that his actions were willful and premeditated because he was in great fear at the time he shot Officer Boyle. He claims that this fear existed because during the incident, which happened very quickly, Officer Boyle allegedly possessed a “Rambo” attitude, bumped Appellant’s vehicle, tried to run Appellant down, and had drawn his firearm, as evidenced by the fact that the gun was found out of its holster. Appellant also claims to have emotionally shouted “don’t do it, don’t do it” at or about the time he opened fire at Officer Boyle. This claim also invokes principles of self-defense given the nature of the allegations. In order to prove murder of the first degree the Commonwealth must show that a human being was unlawfully killed, that the accused committed the killing, and that the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). Specific intent to kill may be inferred from the use of a deadly weapon upon a vital part of the victim’s body. Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931 (1992). At trial the Commonwealth introduced overwhelming evidence that Appellant jumped from the vehicle he was operating brandishing a firearm, and then rapidly fired numerous bullets at Officer Boyle as Officer Boyle attempted to flee. One of the bullets struck Officer Boyle in the head. Thus, the jury had sufficient evidence from which it could reasonably conclude Appellant possessed the requisite specific intent to kill Officer Boyle. Moreover, the jury was free to disbelieve the evidence proffered by Appellant in support of claim of reduced intent and/or self-defense. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). Thus, we conclude that Appellant’s challenge that the evidence was insufficient to establish the requisite specific intent is without merit. In addition to reviewing the sufficiency of the evidence in order to address Appellant’s claim regarding the element of specific intent this Court has a duty to conduct an independent review to determine if the evidence is sufficient to sustain the underlying conviction for murder in the first degree in all cases where a sentence of death has been imposed. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). Based upon our review of the evidence of record, as set forth above, we conclude that the Commonwealth sufficiently established that Officer Boyle died as the result of an unlawful shooting committed by Appellant in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). Thus, we will now address Appellant’s remaining claims of error and prejudice in connection with his trial. Appellant’s first set of challenges involve his written confession. Appellant asserts that: (1) the trial court erred in refusing to suppress his confession; (2) trial counsel was ineffective in failing to object to the instructions of the trial court concerning his confession; and (3) the trial court erred in refusing to redact portions of his confession that revealed that he had armed himself with the intention of robbing drug dealers on the night of Officer Boyle’s death. Upon review of these claims we conclude that they provide no basis for relief. The record reflects that Appellant was hospitalized in critical condition immediately upon his arrest due to self-inflicted second and third degree burns over 39 percent of his body, and severe smoke inhalation, which necessitated surgeries and numerous drugs for sedation and pain. As a result of Appellant’s physical condition, he was physically and mentally incapable of participating in police interrogation or arraignment until February 15, 1991. On February 15, 1991 Appellant’s physician permitted the police to interview Appellant. Appellant expressly waived his Miranda rights, and immediately confessed to the murder of Officer Boyle. Appellant was not arraigned until February 19, 1991, which was the second work day following February 15, 1991, and the first time a bail commissioner was available to appear at the hospital. At trial, Appellant’s confession was read into the record in its entirety by Philadelphia Police Detective Joseph Walsh. (N.T. 3/2/92 pp. 33-43). Appellant initially argues that he should have been arraigned instead of interrogated by the police on February 15, 1991, because he was physically and mentally capable of being arraigned well before February 15, 1991. Thus, he reasons that his confession was the result of unnecessary delay between arrest and arraignment and must be suppressed. However, Appellant also argues in the alternative, that his physically weakened condition on February 15, 1991 rendered his confession involuntary. It is well settled that an accused must be arraigned without unnecessary delay, and that any statement obtained as a result of unnecessary delay must be suppressed. Commonwealth v. Williams, 484 Pa. 590, 400 A.2d 1258 (1979). However, any period of delay attributable to an accused’s impaired mental or physical condition is “necessary delay,” and thus, must be excluded when determining whether a statement has been obtained as a result of “unnecessary delay.” Id. Moreover, if, under the totality of the circumstances, a confession by an accused is not voluntary because of factors that overwhelmed his ability to exercise a reasoned choice, it must be suppressed. Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980). However, a decision of the suppression court will not be reversed where the factual findings and the legal conclusions drawn therefrom are supported by the record. Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993). Upon review of the record in this matter we find overwhelming support for the conclusion of the trial court that Appellant was in no condition to be interviewed by the police or arraigned until February 15, 1991. Therefore, any delay until February 15, 1991 was necessary and must be excluded when determining whether his confession was obtained as a result of unnecessary delay prior to arraignment. Once this necessary delay is excluded it becomes obvious that Appellant’s confession could not be deemed the product of unnecessary delay prior to Appellant’s confession or arraignment. The police received permission to conduct an interview on February 15, 1991, and upon exercising their first opportunity to interview Appellant, he immediately began to confess his crimes. The record also clearly supports the conclusion of the trial court that Appellant failed to demonstrate the existence of further factors at the time of his confession that would warrant suppression. Appellant was interviewed with his physician’s approval, and he was made as comfortable as possible during the interview. Appellant was stable, alert, coherent and cooperative, and he expressly understood and waived his Miranda rights. The record is devoid of any evidence that Appellant’s powers of resistance to suggestion were weakened or that his self determination was undermined, and there is absolutely no evidence of police coercion. Thus, we find no basis upon which to conclude that Appellant lacked the ability to exercise a reasoned choice at the time of his confession. Accordingly, we conclude that Appellant’s confession was properly admitted by the trial court. Appellant’s next complaint with regard to his confession is addressed to trial counsel’s failure to object to the manner in which the trial court instructed the jury with regard to his confession. Appellant claims the instruction invaded the sole province of the jury to determine whether the statement was obtained as a result of unnecessary delay. Specifically, Appellant challenges trial counsel’s failure to object to the following portion of the relevant instructions of the trial court: There’s been some issue here raised about alleged delay in the defendant’s being arraigned. That’s when he’s brought before the magistrate and told what the charges are. You heard the reasons for that delay, that the defendant was allegedly being treated and doctors would not permit him to be questioned. The law does not require, under those circumstances, that a physician give way his physical opinion and that the person be questioned, because the physician obviously controls that situation. As I said, the requirement of the law with reference to that is that the defendant be advised of his right to counsel, and he has the right to give up that right to counsel. N.T. 3/3/91, p. 27. (emphasis added). Appellant asserts that this statement by the trial court that the opinion of Appellant’s physician controls the situation essentially told the jury that there was no unnecessary delay in obtaining the confession. A verdict will not be set aside if the instructions of the trial court, taken as a whole, and in context, accurately set forth the applicable law. Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990); Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986). The trial court’s instruction that the opinion of Appellant’s physician controls the situation was a correct statement of the law. It correctly informed the jury that if, based upon the evidence presented, it found that the physician had precluded the police from obtaining the statement or arraigning Appellant, that such delay would be deemed necessary in determining whether Appellant’s confession was voluntary. Commonwealth v. Williams, 484 Pa. 590, 400 A.2d 1258 (1979). Contrary to Appellant’s assertions, this instruction in no manner whatsoever told the jury that they must believe that the physician precluded a police interview or the arraignment of Appellant. Rather, when the trial court’s instruction is viewed as a whole, it is clear that this decision was left completely up to the jury. The trial court correctly and comprehensively charged the jury on the law applicable to the jury’s evaluation of Appellant’s confession, and did not invade the province of the jury with regard to this determination. Appellant’s challenge in actuality amounts to no more than a complaint that the jury was left with no alternative but to find that his confession was not the result of unnecessary delay given the overwhelming evidence of record that he was physically incapable of being arraigned or interviewed, and that his physician had precluded such, until February 15, 1991 when he gave his statement to the police. However, the mere existence of overwhelming evidence that his physician precluded interview and arraignment provides no basis upon which to conclude that the trial court invaded the province of the jury in instructing the jury on this concept in accordance with the law. As this claim possesses no arguable merit, trial counsel cannot be deemed ineffective for failing to object to this portion of the instructions of the trial court. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Appellant’s final claim with regard to his confession is that the trial court erred in refusing to redact a portion of his confession that revealed that he had armed himself with the intention of robbing drug dealers on the evening in question, which he claims was irrelevant and prejudicial evidence of other crimes. Unquestionably, the admission or exclusion of evidence is within the sound discretion of the trial court, and the admission of such evidence is justified so long as the need for the evidence outweighs the potential prejudice. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987), cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). This Court recently addressed the admissibility of other crimes evidence in Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994) as follows: The often-stated rule in Pennsylvania governing evidence of other crimes is that such evidence is not admissible solely to show a defendant’s bad character or propensity for continuing criminal acts. Commonwealth v. Seiders, 531 Pa. 592, 614 A.2d 689 (1992). However, not all references which may indicate prior criminal acts warrant reversal. Mere passing references “to prior criminal activity will not require reversal unless the record illustrates definitively that prejudice resulted from the reference.” Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979). In addition, it is also well established that evidence of other crimes may be admitted where there is a legitimate evidentiary purpose for such evidence. Some of the exceptions recognized by this court for the admission of such evidence “include, but are not limited to, 1) motive; 2) intent; ...” Id. at 19, 645 A.2d at 819. Appellant contends that the challenged evidence falls within none of the exceptions to the general rule concerning the admissibility of other crimes evidence. We disagree. This evidence was relevant to rebut Appellant’s claim of reduced intent. At trial, defense counsel argued vehemently that Appellant did not possess the requisite specific intent to kill Officer Boyle because of alleged fear generated by the conduct of Officer Boyle, which rendered Appellant’s conduct not willful and premeditated. While Appellant did not testify at trial, in support of this argument defense counsel relied on numerous portions of Appellant’s confession indicating that he shot Officer Boyle out of fear. Given the nature of this claim of reduced intent, we believe that the Commonwealth was entitled to utilize Appellant’s own statements that he had armed himself in order to rob others to rebut his contention that while he was afraid when he shot Officer Boyle. In addressing this type of claim this Court has often cited McCormick, Evidence, § 190 (1972 2nd ed.), wherein it is recognized that: Two considerations, one substantive and the other procedural, affect the ease or difficulty of securing admission of proof of other crimes. The first is that the courts are stricter in applying their standards of relevancy when the ultimate purpose of the state is to prove identity, or the doing by the accused of the criminal act charged than they are when the evidence is offered on the ultimate issue of knowledge, intent or other state of mind. The second is that when the crime charged involves the element of knowledge, intent, or the like, the state will often be permitted to show other crimes in rebuttal, after the issue has been sharpened by the defendant’s giving evidence of accident or mistake, more readily than it would as part of its case in chief at a time when the court may be in doubt that any real dispute will appear on the issue. Id. at 452. Quite obviously, in the matter sub judice the challenged evidence could not have prejudiced Appellant by establishing his identity as the perpetrator where his defense was not one of innocence but rather one of degree of guilt. Thus, we are left only with a question of balancing whether the risk of prejudice from this limited evidence of Appellant’s bad character and disposition outweighed its probative value in connection with the clearly existing dispute as to Appellant’s state of mind at the time he shot Officer Boyle. This inquiry is rendered more difficult given the existence of the Commonwealth’s ability to establish the requisite specific intent through inference based upon Appellant’s use of a deadly weapon upon a vital part of Officer Boyle’s body. However, it must also be reiterated that our decision does not turn solely upon the ascertainment and application of a rule, but must be rendered in light of the well-recognized discretion of the trial court. After careful consideration we conclude that the trial court did not abuse its discretion in permitting the jury to learn that Appellant had armed himself to rob drug dealers, which permitted the jury to more accurately assess Appellant’s claim of fear in light of the evidence that he may have been, in essence, less subject to fear. Undoubtedly, the mere fact that one may be less susceptible to fear does not necessarily mean that he was not overcome by fear sufficient to reduce his culpability on a particular occasion. However, we believe that where Appellant aggressively advanced a claim of reduced intent, evidence that he armed himself in order to rob drug dealers was sufficiently intertwined with the contention of fear underlying the claim of reduced intent so as to render it relevant to the ultimate question before the jury of whether Appellant possessed the specific intent required to support a conviction of murder in the first degree. Moreover, Appellant has failed to specifically argue how he was prejudiced by the admission of this limited evidence, and we find no basis upon which to conclude that the trial court erred in determining that any potential for prejudice was outweighed by the probative value of this evidence. Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994). Finally, even if we were to conclude that the evidence was improperly admitted, given the overwhelming evidence of guilt and the limited potential for prejudice it would be clear beyond a reasonable doubt that any such error could not have contributed to the verdict. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Foy, 531 Pa. 322, 612 A.2d 1349 (1992). Accordingly, this claim is denied. Based upon the foregoing, we conclude that Appellant has advanced no claim in connection with the admission of his confession sufficient to warrant reversal. Appellant’s remaining claim of trial court error involves an assertion that the trial court erred when it refused to grant a mistrial in response to a hearsay statement elicited from Commonwealth witness Steven Curry. A motion for mistrial based on inadmissible hearsay is addressed to the sound discretion of the trial court, and a mistrial is required only when an incident is of such nature that its unavoidable effect is to deny the defendant a fair trial. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Heaton, 504 Pa. 297, 472 A.2d 1068 (1984); Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989). The record reveals that the Commonwealth presented the testimony of Mr. Curry to establish that he was operating a vehicle in which Appellant was riding when he disposed of the murder weapon in a sewer. In connection with this line of questioning Mr. Curry, somewhat non-responsively, stated “well Chop came to me and said, you know some boy name Ed took and shot a cop.” (N.T. 2/26/92, p. 86). The trial court properly sustained an objection to this hearsay statement. However, we conclude that the potential for prejudice from this statement was limited since it served only to identify Appellant as the shooter, which comported with Appellant’s defense at trial involving degree of guilt rather than innocence. Moreover, immediately after sustaining the objection the trial court gave a curative instruction, which cured any potential for prejudice. Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989). Accordingly, we conclude that this incident did not have the unavoidable effect of denying Appellant a fair trial, and thus, the trial court did not abuse its discretion in denying Appellant’s motion for a mistrial advanced on this basis. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Heaton, 504 Pa. 297, 472 A.2d 1068 (1984); Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989). All of Appellant’s remaining claims involve allegations of ineffectiveness of trial counsel. In order for Appellant to prevail on a claim of ineffectiveness of trial counsel, he must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Counsel can never be found ineffective for having elected not to raise a meritless claim. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980). Moreover, we begin with the presumption that trial counsel was not ineffective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Appellant first claims that trial counsel was ineffective in failing to object to alleged “emotional outbursts” in the courtroom. Specifically, Appellant complains that the victim’s stepmother was crying in the courtroom, that Appellant’s girlfriend was crying on the witness stand, and that the victim’s father, also a member of the Philadelphia Police Department, was extremely distraught while on the witness stand. In support of this claim Appellant argues little more than that the emotional outbursts allegedly occurred, and upon review of the record it is apparent that Appellant has misrepresented the record in order to support this clearly meritless claim. Whether and to what extent relief is due from an incident such as an emotional outburst in the courtroom is within the discretion of the trial court, and unless the unavoidable effect of the incident is to deny the defendant a fair trial, there is no error. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Heaton, 504 Pa. 297, 472 A.2d 1068 (1984). The record reveals no conduct on the part of Officer Boyle’s stepmother that would warrant the granting of a mistrial. While the record does reflect that trial counsel complained to the trial court out of the presence of the jury that the victim’s stepmother was crying, the trial court noted on the record that the woman was crying very softly and offered to have her removed. Appellant’s counsel indicated that such would not be necessary. However, in an abundance of caution, the trial court indicated that it would recess to permit the victim’s stepmother to regain her composure out of the presence of the jury. There is no indication in the record that this individual posed any further concern for the trial court. Thus, we find no basis upon which to conclude that this minor occurrence amounted to what Appellant describes as an outburst, or that the incident, even if noticed by the jury, prejudiced Appellant in any manner. With regard to Appellant’s claim that his girlfriend was crying, such was, if anything, harmful to the Commonwealth since it was the product of her obvious affection for Appellant, and noticeably occurred only while she was being examined by the Commonwealth. Finally, while the record does reflect that Officer Boyle’s father had emotional difficulty testifying in this matter, such testimony was limited and moved along quickly by the trial court in response to what it described as a “quiet sort of thing.” Accordingly, we find no basis upon which to conclude that the unavoidable effect of these minor occurrences was to deny Appellant a fair trial. As this claim is meritless, trial counsel cannot be deemed ineffective. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Appellant next claims that trial counsel was ineffective in failing to object to the Commonwealth’s reference to an alleged prior inconsistent oral statement of its witness, Arthur Berry, in violation of Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). In Lively, this Court limited the use of prior inconsistent statements as substantive evidence to three situations: (1) when the statement is given under oath at a formal legal proceeding; or (2) the statement was reduced to writing and signed and adopted by the witness; or (3) the statement is a contemporaneous, verbatim recording of the witnesses’ statements. Id. at 471, 610 A.2d at 10. Arthur Berry, who resided with Appellant’s sister, aided Appellant in disposing of the murder weapon shortly after the crime. Prior to trial Berry gave a statement to the police that he was present when Appellant brought a gun case to his sister’s home in order to dispose of it. Berry also stated that he had opened the case after Appellant had given it to him and it contained a 9 mm handgun, which he described to the police. However, at trial the prosecutor had difficulty in eliciting this information from Berry, who was described as hostile by the trial court. The inconsistent, or at least ambiguous, nature of Berry’s testimony on this subject could have easily led the jury to believe that Appellant had appeared with only an empty gun case. In order to clarify the situation the prosecutor provided Berry with a copy of his previous statement to the police obtained at the homicide division of the Philadelphia Police Department, which was reduced to writing and signed by Berry after being afforded an opportunity to review the writing and to make corrections. Berry reviewed this statement and admitted that it was his statement. When asked if the police statement refreshed his recollection that he had opened the gun case, seen what was in it, and described the gun to the police, Berry indicated that he had not opened the case and had not told the police that he had done so. In response, the prosecutor asked Berry if he remembered telling her a few weeks before that he had opened the gun case, and Berry responded that he had not told the prosecutor that he had opened the case. Thereafter, the relevant portion of Berry’s statement to the police was properly admitted by the trial court. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). Appellant raises no objection with regard to the statement Berry made to the police. Rather, it is the prosecutor’s reference to what Berry had allegedly said to her in her office a few weeks before to which Appellant objects. Appellant asserts that the prosecutor’s question as to what Berry had told her a few weeks before was an improper vehicle for impeachment because the alleged oral pre-trial statement satisfied none of the requirements of Lively. We agree. However, we conclude that Appellant could not have been prejudiced by this limited reference by the prosecutor where the Commonwealth elicited the same evidence through reference to Berry’s statement to the police. Appellant advances this claim without acknowledging the prosecutor’s use of Berry’s statement to the police, and fails to explain how he could have been prejudiced by the limited reference by the prosecutor to his alleged oral statement in light of the Commonwealth’s use of his police statement. Accordingly, trial counsel cannot be deemed ineffective for failing to object. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Appellant next claims that trial counsel was ineffective in failing to object to a portion of the Assistant District Attor ney’s closing argument during the guilt phase of Appellant’s trial. In support of this claim, Appellant refers to the following statements by the prosecutor: I submit to you, ladies and gentlemen, that the only reason Danny Boyle is dead is because he was a police officer, and he was serving all of us, and he was out there doing his job, and for no other reason. There are many victims in this case. There’s Danny Boyle himself, who never got to grow up, who never got to have a family, there’s his family and friends who’ll never see him again, and there’s all of us and all of the citizens of this city, who lost a dedicated police officer who wanted nothing more than to be a police officer like his dad. N.T. 3/2/92, p. 143. In order for Appellant to prevail on this claim he must first establish the existence of prosecutorial misconduct warranting an objection by trial counsel. It is well settled that the prosecutor is permitted wide latitude in making argument to the jury. Commonwealth v. Chester, 526 Pa 578, 587 A.2d 1367 (1991), cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991). Guidelines governing the review of allegedly improper remarks made by a prosecutor during argument were set forth in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983): The primary guideline in assessing a claim of error of this nature is to determine whether the unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict. In making such a judgment, we must not lose sight of the fact that the trial is an adversary proceeding, Code of Professional Responsibility (Canon 7 E.C. 7-19 — 7-39), and the prosecution, like the defense, must be accorded reasonable latitude in fairly presenting its version of the case to the jury. Nevertheless, we do require that the contentions advanced must be con fined to the evidence and the legitimate inferences to be drawn therefrom. Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated. The verdict must flow from the respective strengths and weaknesses of the evidence presented and not represent a response to inflammatory pleas for either leniency or vengeance. Id. at 53, 454 A.2d at 956 [citations omitted]. See also, Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991), cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991); Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987), cert. denied, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986); Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). With these principles in mind, we conclude that the Assistant District Attorney did not deliberately seek to destroy the objectivity of the fact finder through the portion of her closing argument challenged by Appellant. We further conclude that her argument did not have the “unavoidable effect” of prejudicing the jury, forming in their minds a fixed bias and hostility towards Appellant so that they could not weigh the evidence objectively and render a true verdict. This limited portion of a lengthy and comprehensive argument by the Assistant District Attorney was reasonably based upon the evidence presented at trial and the reasonable inferences therefrom, and merely exhibited a degree of oratorical flair, license and passion that was permissible during her arguments to the jury. Commonwealth v. Chester, 526 Pa 578, 587 A.2d 1367 (1991), cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991). As the prosecutor did not exceed the bounds of reasonable advocacy, trial counsel cannot be deemed ineffective for failing to object on the basis of prosecutorial misconduct. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Appellant next claims that trial counsel was ineffective in failing to object during the penalty phase of his trial to the admission of evidence from co-workers that the victim was a good and dutiful police officer, which he claims was not relevant to any aggravating or mitigating circumstance sought to be proven by the Commonwealth. We disagree. During the guilt phase of his trial Appellant sought to portray Officer Boyle as a police officer possessing a “Rambo” attitude who had allegedly attempted to run Appellant down with a vehicle and threatened to shoot him, which Appellant claimed caused him to react in great fear, thus reducing his culpability. The thrust of this characterization of Officer Boyle was that Officer Boyle was acting beyond the authority of his duties with the Philadelphia Police Department. Appellant also relied primarily upon these assertions in support of his claims of mitigation during the penalty phase of his trial, which he advanced in an effort to avoid imposition of a sentence of death. Specifically, Appellant argued that his fear resulting from the alleged conduct of Officer Boyle established the following mitigating circumstances: Appellant was under the influence of extreme mental or emotional disturbance; Appellant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; Appellant’s age of twenty-eight years at the time of the crime; and any other evidence of mitigation concerning Appellant’s character and record and the circumstances of his offense. 42 Pa.C.S. § 9711(e)(2), (3), (4) and (8). In response, the Commonwealth introduced evidence to show that Officer Boyle was a good and dutiful police officer in order to refute Appellant’s claims of mitigation based upon his alleged fear. The Commonwealth utilized this evidence to argue that upon being confronted by Officer Boyle, Appellant did not manifest fear that would mitigate his crime, but rather, had aggressively attacked Officer Boyle by initially charging the police cruiser with gun drawn and then delivering a fusillade as his victim attempted to retreat. Thus, the challenged evidence went directly to Appellant’s claims of reduced culpability in mitigation of his crime, and was directly relevant to the question of the sentence to be imposed by the jury. Any potential for prejudice to Appellant was outweighed by the probative value of this evidence. Accordingly, we conclude that this claim is meritless, and thus, trial counsel cannot be deemed ineffective. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). Based upon the foregoing we conclude that Appellant has advanced no claim of ineffectiveness of trial counsel warranting reversal. Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), we have the duty to affirm the sentence of death unless we determine that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. Upon such review, we find that the sentence imposed was not the product of passion, prejudice or any other arbitrary factor. We also find that the evidence was sufficient to establish the two aggravating factors found by the jury. Specifically, the jury found that the victim was a police officer who was killed in the performance of his duties, and Appellant had a significant history of felony convictions involving the use or threat of violence to the person. 42 Pa.C.S. § 9711(d)(1) and (9). In addition, after reviewing the information compiled by the Administrative Office of Pennsylvania Courts in accordance with the requirements set forth in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984), we do not find the sentence imposed upon Appellant to be excessive or disproportionate to the penalty imposed upon defendants in similar cases. Accordingly, we affirm the Judgment of Sentence of death imposed upon Appellant, Edward Bracey, by the Court of Common Pleas of Philadelphia County, Criminal Division. Judgment of Sentence affirmed. NIX, C.J., did not participate in the consideration or decision in this case. PAPADAKOS, J., did not participate in the decision of this case. MONTEMURO, J., is sitting by designation. . See, 42 Pa.C.S. §§ 722(4), 9711(h)(1); Pa.R.A.P. 702(b) and 1941. . 18 Pa.C.S. § 2502(a). . 18 Pa.C.S. § 907. . 18 Pa.C.S. § 3925. . 18 Pa.C.S. § 3503(a). . (1) The victim was a police officer who was killed in the performance of his duties, 42 Pa.C.S. § 9711(d)(1); and (2) the defendant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . In order for Appellant to prevail on a claim of ineffectiveness of trial counsel, he must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Counsel can never be found ineffective for having elected not to raise a meritless claim. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980). Moreover, we begin with the presumption that trial counsel was not ineffective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). . In advancing this claim Appellant ignores the remaining portions of the rather lengthy instruction of the trial court on this concept comprising six pages of the trial transcript. Through this instruction the trial court outlined for the jury all of the inquiries relevant to its evaluation of Appellant's confession. It then charged the jury that it should weigh all of the facts and circumstances surrounding the alleged making of the statement when making its evaluation, and concluded its instruction by indicating that it was for the jury to apply these principles and render a decision with regard to the weight to be accorded Appellant's confession. . We note that Appellant's characterization of the challenged evidence as evidence of another crime is technically incorrect where such evidence only conveyed Appellant's general plan to commit robberies as opposed to the actual commission thereof. This Court has held that "[t]o warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Glass, 495 Pa. 405, 408, 434 A.2d 707, 709 (1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1984, 72 L.Ed.2d 450 (1982). Nevertheless, we feel compelled to employ an "other crimes” analysis given the nature of the evidence which could have reasonably have led the jury to infer prior criminality on the part of Appellant or general bad character. . Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994). . In Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), this Court determined that "an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Id. at 406, 383 A.2d at 162. Error is considered harmless where: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and "the uncontradicted evidence of guilt must be so overwhelming, and the prejudicial effect of the improperly admitted evidence so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Id. at 410-15, 383 A.2d at 164-66. See Commonwealth v. Foy, 531 Pa. 322, 612 A.2d 1349 (1992). . We note that with particular reliance upon this alleged emotional outburst Appellant further asserts that trial counsel was ineffective in failing to object to the entire testimony of the victim's father as irrelevant and offered only to inflame the passions and prejudices of the jury. However, the record plainly reveals that such testimony was unquestionably relevant to establish that Officer Boyle was a life-in-being. Moreover, as Officer Boyle’s un-fired handgun was found to his right on the seat of the police cruiser, this testimony was further relevant to establish that his son was left-handed, and thus, was not threatening the use of force in order to rebut Appellant's claim of reduced intent and self defense. Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994); Commonwealth v. Scoggins, 466 Pa. 355, 353 A.2d 392 (1976). The record further reveals that such testimony was not merely cumulative as claimed by Appellant. Moreover, Appellant has failed to sufficiently argue how, and there exists no basis upon which to conclude that, he was prejudiced by this testimony. Accordingly, trial counsel was not ineffective on the basis of this claim. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). . We note that in connection with this claim Appellant also alleges that the trial court erred in refusing to sua sponte declare a mistrial on the basis of the alleged "emotional outbursts.” Based upon our disposition of this issue we find no basis upon which to conclude that the trial court should have declared, sua sponte, a mistrial in response to these incidents. . We note that Appellant has raised two additional claims of ineffectiveness of trial counsel that clearly provide no basis for relief. Trial counsel was not ineffective in failing to object to an allegedly inflammatory photograph of Officer Boyle in his police car after the shooting where our review of the record, together with counsels’ subsequent acknowledgment, reveals that such a photograph does not exist, and certainly was not introduced at trial. Trial counsel was also not ineffective in failing to object to the accurate instruction of the trial court that the crime of burglary is a crime of violence as a matter of law. Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992); Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988). Despite this instruction the jury nevertheless retained discretion to determine whether Appellant’s prior convictions for burglary amounted to a "significant history,” and thus, whether the Commonwealth had proven the aggravating circumstance of a significant history of violent felony convictions beyond a reasonable doubt. 42 Pa.C.S. § 9711(d)(9). Moreover, invalidation of this aggravating circumstance would not warrant reversal, as the death penalty remains warranted based upon the jury's finding of an additional aggravating circumstance and no mitigating circumstances. Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704 (1992). We further note that in advancing his claims of ineffectiveness of trial counsel Appellant has presented a generalized request, in the alternative, that this Court remand this matter to the trial court for a hearing in connection with such claims. Given the nature of Appellant’s claims, the evidence of record, and the manner in which we have disposed of such claims, we find that Appellant has advanced no reasonable basis upon which to remand this matter for an evidentiary hearing in connection therewith. . The record clearly establishes that the victim, Officer Boyle, was a member of the Philadelphia Police Department and was killed in the performance of his duties. The record further establishes that at the time of the trial herein Appellant had been convicted of the felony of burglary on two separate occasions. . The Prothonotary of the Supreme Court is directed to transmit, as soon as possible, the full and complete record of the case sub judice to the Governor of Pennsylvania. 42 Pa.C.S. § 971 l(i).

ORDER PER CURIAM: AND NOW, this 20th day of June, 1995, the Motion for Reconsideration, as supplemented, is granted, the Order entered by this Court on March 6, 1995, is vacated, and it is hereby ORDERED that respondent be subjected to public censure by the Supreme Court. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., who is sitting by designation, did not participate in this matter. NIX, C.J., dissents and continues to be of the view that a three-year suspension is appropriate. FLAHERTY, J., dissents.

OPINION BY STEVENS, J.: ¶ 1 Appellant, David A. Smith, appeals from a judgment of sentence entered in the Court of Common Pleas of Centre County on October 25, 2005. We affirm. ¶ 2 Smith was arrested for drunk driving on January 13, 2005, after his erratic driving prompted another driver, Jay Wit-mer, to call 911. N.T. 7/1/05 at 12. Officer David Scicchitano was dispatched to respond to the call, and observed a vehicle which he believed to be the car he was seeking. Id. at 5-6,15. As he approached the car, he observed it driving on the wrong side of the street. Id. at 6-7. When Officer Scicchitano activated his emergency lights, the car accelerated away from him, then suddenly pulled into a driveway. Id. at 7. Officer Scicchitano pulled in behind the car with his lights still flashing, and confirmed that the license plate on the car matched that given by Witmer’s 911 call. Id. at 7-8. Smith exited the car, and quickly walked toward the house. Id. It was only after the officer yelled at him to stop that Smith returned to the car. Id. ¶ 3 Officer Scicchitano explained why he was there, and asked for Smith’s drivers’ license. Id. at 8-9. Smith responded that his drivers’ license had been suspended as the result of a D.U.I. offense. Id. at 10. As the officer spoke with Smith, he detected a strong odor of alcohol on Smith’s breath, and observed that Smith’s eyes were bloodshot, his face was flushed, and his speech slurred. Id. at 9-10. Officer Scicchitano also observed an open twelve pack of beer and two crushed beer cans in plain view in Smith’s car. Id. at 10. Officer Scicchitano asked Smith to perform field sobriety tests, then arrested him for driving under the influence of alcohol. Id. at 10-11. A blood test was performed less than an hour after the initial 911 call was received, revealing a blood alcohol content of .124%. Id. at 12. ¶ 4 Prior to trial, Smith filed an omnibus pre-trial motion, which was denied on July 28, 2005, following a hearing. In addition, he filed a “Motion for Sanctions for Violation of Duty to Disclose,” alleging that the Commonwealth destroyed a videotape which would have provided exculpatory information coiToborating Smith’s assertions that his driving was not unsafe or an indication that he was intoxicated, as well as rebutting the evidence which Smith believed the Commonwealth planned to introduce at trial against him. Motion filed 7/19/05. During the resulting hearing on September 13, 2005, the Commonwealth admitted that the police had inadvertently erased the videotape. N.T. 9/13/05 at 4. Smith requested as a remedy that Officer Scicchitano be precluded from testifying as to Smith’s driving, while the Commonwealth suggested that a curative jury instruction was the appropriate remedy. Id. at 3, 5. On September 15, 2005, the trial court filed an order granting Smith’s Motion for Sanctions, indicating that “the Jury shall be instructed that the evidence was lost by the Commonwealth, and that Jury be charged consistent with the Standard Jury Criminal Jury Instruction 3.21(b), Failure to Produce Document or Other Tangible Evidence at Trial.” Order filed 9/15/05. ¶ 5 The case was never heard before a jury, however. Instead, a non-jury trial was conducted on September 22, 2005, after which Smith was convicted of violating 75 Pa.C.S.A. § 3802(a)(1) and (b), relating to driving under the influence of alcohol; 75 Pa.C.S.A. § 6503.1, relating to habitual offenders; 75 Pa.C.S.A. § 1543(B)(l.l)(ii), pertaining to Driving while operating privilege is suspended or revoked; and 75 Pa.C.S.A. § 1501(a), pertaining to driving without a valid license. On October 25, 2005, he was sentenced to one year ninety days’ to two years ninety days’ imprisonment, and one years’ probation. ¶ 6 He appeals his sentence, raising five issues for our review. Smith’s first two claims assert that the trial court erred in denying his motion to suppress. We review challenges to the denial of a suppression motion under the following well-established standard: When we review the ruling of a suppression court, we must ascertain whether its factual findings are supported by the record and whether the inferences and legal conclusions drawn from those facts are reasonable. Commonwealth v. Lewis, 535 Pa. 501, 504, 636 A.2d 619, 621 (1994). Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense that remains uncontradicted in context of the whole record. Id. If there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are in error. Id. Commonwealth v. Petroll, 558 Pa. 565, 574-575, 738 A.2d 993, 998 (1999). ¶ 7 Specifically, Smith argues that Officer Scicchitano was required to have probable cause to effectuate a valid stop, and that neither the officer’s own observations nor the 911 call provided such probable cause. Appellant’s brief at 7-10. To support these claims, Smith cites to, inter alia, Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (Pa.2001) and Commonwealth v. Battaglia, 802 A.2d 652 (Pa.Super.2002). Smith is incorrect that Officer Scicchitano was required to have probable cause to effectuate a valid stop, however, since the probable cause standard enunciated by Gleason has been superseded by 75 Pa.C.S.A. § 6308(b), which was amended on September 30, 2003, effective February 1, 2004. Martin v. Commonwealth, 588 Pa. 429, 905 A.2d 438, 450 (2006) (Eakin, J. Concurring) (“Effective February 1, 2004, the General Assembly ‘lowered the quantum of cause an officer must possess from “articulable and reasonable grounds” [which is equivalent to probable cause] to “reasonable suspicion” to conduct a vehicle stop.’ ”). ¶ 8 Clearly, the January 15, 2005 stop in question is governed by the amended version of Section 6308, thus Officer Scicchitano was only required to possess reasonable suspicion in order for the stop to be valid. Smith does not dispute that Officer Scicchitano had reasonable suspicion to stop him, and Smith is entitled to no re^e^ on ^is arguments that we should aPP^ ^he pre-amendment probable cause standard to reverse the trial court. For the forgoing reasons, we decline Smith’s invitation to overturn the denial of his suppression motion on these grounds. ¶ 9 Smith’s third and fourth arguments raise constitutional challenges. When an appeal raises the constitutionality of a statute, an appellate court’s scope of review is plenary. Commonwealth v. Killinger, 585 Pa. 92, 94, 888 A.2d 592, 593 (2005); Commonwealth v. Noel, 579 Pa. 546, 550, 857 A.2d 1283, 1285 (2004). “There is, however, ‘a strong presumption that acts of the General Assembly are constitutional, and this Court will not declare such acts unconstitutional unless they clearly, palpably, and plainly violate the constitution.’ ” Killinger, 585 Pa. at 94, 888 A.2d at 593. ¶ 10 In his third claim, Smith argues “75 Pa.C.S.A. § 3802 et al.” violates the substantive due process rights contained in the Pennsylvania and/or United States constitutions. Appellant’s brief at 10. The majority of Smith’s argument in this regard purports to challenge Section 3802 as a whole. Id. at 10-16. He may only challenge the portions of the statute under which he was convicted, however. Commonwealth v. Spease, 2006 PA Super 323, *¶ 11 n. 4, 911 A.2d 952, 957 n. 4, 2006 Pa.Super. Lexis 3775, **10 n. 4 (Filed 11/13/06) (citing Commonwealth v. McCoy, 895 A.2d 18, 32 n. 8 (Pa.Super.2006) (reiterating that one must be affected by the particular provision of a statute in order to have standing to challenge it)). See also Commonwealth v. Semuta, 902 A.2d 1254, 1260 (Pa.Super.2006). As we noted above, Smith was convicted of violating Section 3802, Subsections (a)(1) and (b). We thus turn to Smith’s specific challenges to those subsections. ¶ 11 He first asserts that “Section 3802 is unconstitutionally vague and overbroad because it penalizes protected conduct, and is drafted in such a way as to be ambiguous in meaning, leaving a reasonable person unsure as to what conduct is prohibited.” Appellant’s brief at 12. Smith is entitled to no relief on these grounds, as this exact argument was recently rejected by a panel of this Court in Semuta. In finding the claim meritless, the Court explained: When considering a constitutional challenge to Section 3802 on the basis that it is vague, overbroad, and allows for arbitrary enforcement in violation of substantive due process rights guaranteed under the Pennsylvania and United States Constitutions, this Court recently concluded that this provision of the Vehicle Code is not vague or overbroad in that “[i]t gives a person of ordinary intelligence notice that he may not drive after imbibing a sufficient amount of alcohol such that he is incapable of driving safely.” Commonwealth v. McCoy, 2006 PA Super 33, 895 A.2d 18, 31 (Pa.Super.2006). We also determined the provision is not overbroad since it does not punish any constitutionally protected activity and reasoned our Supreme Court has recognized that charts are widely available which indicate the amount of alcohol individuals of varying weights may consume, and that an individual of ordinary intelligence who chooses to over imbibe and drive is certainly aware such conduct is prohibited. McCoy, 895 A.2d at 32 (citing Commonwealth v. Mikulan, 504 Pa. 244, 252, 253, 470 A.2d 1339, 1343 (1983) (plurality)). As such, we find no merit in this claim. Semuta, 902 A.2d at 1260-1261. ¶ 12 Smith next argues that the statute’s inclusion of the language “within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle,” renders it unconstitutionally vague because it encourages arbitrary and discriminatory enforcement. Appellant’s brief at 13. This too was found to be an unavailing challenge by the Semuta Court as follows: Appellant also argues Section 3802 encourages arbitrary and discriminatory enforcement and is overbroad in that an individual can be found guilty of violating it without ever having driven at a time when his BAC was above 0.08%, because the statute punishes individuals for the amount of alcohol measured in their blood up to two hours after they have driven. Brief for Appellant at 18-19. In recently dismissing a similar argument, this Court reasoned such a contention is more akin to an over breadth challenge to the statute and stressed: “that there is no longer a statutory provision such as former 3731(a)(4) which provides that a person may drive if his BAC is below a particular BAC at the time of driving. Rather, the pertinent question under 3802(a)(2), (b), and (c), is ‘what is the individual’s BAC as determined by a test taken within two hours of driving?’ Further, ‘there is no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving.’ Accordingly, Appellant’s arguments in this regard must fail.” Commonwealth v. McCoy, 2006 PA Super 33, 895 A.2d 18, 33 (Pa.Super.2006) (citation omitted) (emphasis in original). In light of this authority, we find this aspect of Appellant’s third argument to be without merit.7 7. In his Brief, Appellant relies upon Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996) and claims that as the Supreme Court examined the issue of vagueness and over breadth and found a similar statute to be unconstitutional on those grounds, that decision should control herein. Nevertheless, this Court in McCoy, supra, noted that "[i] n the amended DUI law, Section 3802, the confusion caused by contradictory Sections 3731(a)(4) and (a)(5) has been eliminated. Section 3802 no longer has a provision like 3731(a)(4). Thus we conclude Barud is not controlling.” Id. at 32. Semuta, 902 A.2d at 1261. ¶ 13 The veracity of these conclusions is confirmed by the even more recent holding in Spease, 2006 PA Super 323, ¶ 11, 911 A.2d 952, 957, 2006 Pa.Super. Lexis 3775, **10, in which the Court explained as follows: Appellant also contends section 3802(c)[ ] potentially punishes those who may not have achieved the prohibited blood alcohol content (BAC) at the time of driving but reached those levels within two hours after driving. In other words, section 3802(c) does not require proof that the person’s BAC was above a prohibited level at the time of driving. Appellant’s brief at 16-18. This over breadth challenge effectively is an argument that the statute punishes conduct which is in some way protected. We rejected this specific challenge in McCoy, supra, and we will not rehash the issue here. Appellant also contends section 3802 is unconstitutionally vague since it does not provide a reasonable standard by which an ordinary person may contemplate future conduct. A panel of this court recently addressed this very argument and concluded section 3802(c) is not void for vagueness. Commonwealth v. Thur, 906 A.2d 552, 2006 PA Super 208 [*P23-*P35]. Thirdly, appellant maintains the new DUI law permits and promotes arbitrary and discriminatory enforcement since a driver is subjected to different penalties pursuant to section 3804 based upon the “arbitrary and the discriminatory action of police in dictating the ‘time’ for the driver to take the [chemical] test.” Appellant’s brief at 20. It is the time for taking the test, appellant argues, that renders the statute unconstitutional and promotes arbitrary action by the government. Id. In McCoy, we rejected the suggestion that an officer will exercise discretion by somehow knowing when the person’s BAC will peak and will time the chemical test accordingly. Record, Nos. 33, citing Mikulan, supra at 253, 470 A.2d at 1343 n. 8. Also, in Thur, supra, we specifically held that it is constitutionally permissible to require a person to monitor his or her conduct so as to ensure that he or she does not have a prohibited blood alcohol level at any time unthin two hours of driving. Thur at [*¶ 35]. If appellant fails to do so, the risk of erroneous judgment is placed squarely and properly upon the person who chooses to drink and drive. Thur at [*¶29]. We thus reject appellant’s argument on this issue. Spease, 2006 PA Super 323, *¶ 11-¶ 13, 911 A.2d 952, 957-58, 2006 Pa.Super. Lexis 3775, **10-13. ¶ 14 In addition to the above claims, under the argument heading alleg- tag the unconstitutionality of Section 3802, Smith lumps a claim that Section 3804 “should be stricken as a violation of the due process clause of both the United States and Pennsylvania Constitutions because of its vagueness.” Appellant’s brief at 16-17. Since this allegation is not contained in Smith’s court ordered Rule 1925(b) statement of matters complained of on appeal, it is waived for purposes of appeal. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). ¶ 15 Smith next asserts that Section 3802 violates an individual’s right to be represented by an attorney. Appellant’s brief at 17. Specifically, he contends that “[t]he request to consent to chemical testing is a post-arrest critical stage of the prosecution and therefore the accused has a right to counsel under both the Unites States Constitution and Pennsylvania Constitution.” Appellant’s brief at 20. This argument was rejected by the Semuta Court, which explained as follows: Appellant next contends his right to counsel which is guaranteed under the United States and/or Pennsylvania Constitutions was violated as the “request for chemical testing is a post-arrest confrontation between the accused and the officer, whereby the accused is required to make a decision of great legal consequence.” Brief for Appellant at 24-25. In [Commonwealth v. Ciccola, 894 A.2d 744, 747 (Pa.Super.2006)], this Court addressed the issue of whether a person’s sixth amendment right to counsel is violated if he has no right to consult with counsel before deciding to consent to a chemical test requested by a police officer. We acknowledged that the sixth amendment right to counsel attaches at critical stages of a criminal proceeding and concluded that the decision to submit to a BAC test is not such a stage. Ciccola, 894 A.2d at 749-750 (Pa.Super.2006). We reasoned that although the decision to submit to a BAC is an important, tactical one, it is made during an encounter involving the gathering of evidence and does not affect the fairness of trial in the sense that a defendant will have the ability to have counsel’s assistance in cross-examining witnesses and in planning trial strategy. Id. Thus, we concluded the decision to submit to a BAC was not a critical proceeding for the purpose of the right to counsel. Id. See McCoy, 895 A.2d at 28. Thus, in light of the aforementioned authority, we find Appellant is not entitled to relief on this basis. Semuta, 902 A.2d at 1262. As such, Smith is entitled to no relief on this claim. ¶ 16 Smith’s final allegation is that the trial court “erred in not granting the requested relief in response to the discovery sanctions for the Commonwealth’s failure to properly preserve evidence.” Appellant’s brief at 21. As we noted above, the trial court granted Smith’s request for sanctions, but not in the form he requested. Smith acknowledges that Pa. R.Crim.P. 573 gives the trial court discretion to enter such order as it deems just under the circumstances. Appellant’s brief at 22. As the trial court explained: This court heard argument on this matter, and believes it properly dealt with the situation. The police recycled the video tape, not the Commonwealth. As such, the recycling of the video was not prosecutorial error; rather, it was police oversight. This Court believes it made adequate and appropriate sanctions on the Commonwealth by informing both parties it planned on giving the jury a cautionary instruction. It should also be mentioned that there was corroborating evidence from the police officer and an eye witness to show Defendant’s driving was in violation of the Motor Vehicle Code. Based on these observations, this Court believed the video evidence would not fully exonerate Defendant of guilt. This Court did not believe it was fair and just to essentially throw out the entire case because of a police oversight. As such, this Court deemed its intent to give the jury a cautionary instruction was a proper sanction in light of the circumstances. Opinion filed 12/6/05 at 3. We agree. ¶ 17 The trial court was able to heed the warning that it would have given to a jury — i.e. you may infer that the evidence in question was unfavorable to the Commonwealth. The trial court then properly weighed that inference against Officer Scicchitano’s testimony and the evidence surrounding the 911 call. We find that the trial court properly concluded that the failure to produce the tape affected the weight to be accorded Officer Scicchitano’s testimony, not the admissibility of that testimony. We find no reversible error in the remedy selected by the trial court. ¶ 18 For the foregoing reasons, we affirm the Judgment of Sentence entered October 25, 2005. ¶ 19 Affirmed. . Smith's appellate brief erroneously indicates that he is appealing a July 28, 2005 order which denied his pre-trial motion. . Section 6308(b) now states: Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title. 75 Pa.C.S.A. § 6308(b) (emphasis added). In its previous form, the statute required the officer to have "articulable and reasonable grounds to suspect a violation.” 75 Pa.C.S.A. § 6308(b) (1998), amended by 75 Pa.C.S. § 6308(b) (2004). As a panel of this Court explained in Commonwealth v. Ulman, 902 A.2d 514 (Pa.Super.2006): [T]he Legislature amended 75 Pa.C.S.A § 6308(b) to clarify that whenever an officer "has reasonable suspicion that a violation of [the Motor Vehicle Code] is occurring or has occurred, he may stop a vehicle[.]" 75 Pa.C.S.A. § 6308(b) (emphasis added). [Commonwealth v. Sands, 887 A.2d 261, 267 (Pa.Super.2005)]. The legislative history of this amendment clearly indicates that it was the Legislature’s intent to authorize police officers to stop a vehicle based upon a "reasonable suspicion” that the driver has violated the Vehicle Code, rather than the heightened standard of probable cause. Ulman, 902 A.2d at 518. . We note that in denying Smith's suppression request, the trial court cited to the earlier version of Section 6308(b), and went on to find that the stop was supported by probable cause in the form of the tip from Jay Witmer and the officer’s own observations. Opinion and Order filed 7/28/05 at 3-4. The trial court’s reliance on the earlier version of the statute does not alter our affirmance of his decision, as we may do so on any grounds. Commonwealth v. Van Winkle, 880 A.2d 1280, 1285-1286 (Pa.Super.2005). . Even if Smith had argued that Officer Scic-chitano lacked reasonable suspicion, we would find that the evidence shows otherwise. "To establish grounds for 'reasonable suspicion’ ... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little 903 A.2d 1269, 1272 (Pa.Super.2006). In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In the Interest of D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). In making this determination, we must give "due weight ... to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” [Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 676 (1999)] (citation omitted). Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, "even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Cook, 735 A.2d at 676. Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super.2006). With regard to information provided by a tip, a panel of this Court recently explained that: For a tip to carry enough indicia to establish reasonable suspicion, a court must look at the quality and the quantity of the information possessed by the police at the time of the stop. Commonwealth v. Krisko, 2005 PA Super 320, 884 A.2d 296, 300 (Pa.Super.2005). A tip that comes from an informer known to the police may carry enough reliability to allow for an investigative stop, even though the same tip from an anonymous source would not. Id. Further, this Court has held that an officer does not need to personally observe the illegal or suspicious conduct but may rely on information from third parties, as long as that information is specific in nature and the informant is reliable. Commonwealth v. Korenkiewicz, 1999 PA Super 326, 743 A.2d 958, 964 (Pa.Super.1999). Commonwealth v. Emeigh, 905 A.2d 995, 998 (Pa.Super.2006). Here, reasonable suspicion was created as the result of Jay Witmer’s 911 call, and Officer Scicchitano’s own observations of Smith driving on the wrong side of the road, and accelerating away from the police cruiser when Officer Scicchitano activated its overhead lights. Hughes, supra; Emeigh, supra; Commonwealth v. Barber, 889 A.2d 587, 594-595 (Pa.Super.2005) (citing Commonwealth v. Swartz, 787 A.2d 1021 (Pa.Super.2001) (en banc); Korenkiewicz, supra; Commonwealth v. Janiak, 368 Pa.Super. 626, 534 A.2d 833 (1987)); Commonwealth v. Spencer, 888 A.2d 827, 830-831 (2005). . In Semuta, the Court explained that: Appellant was charged only with 75 Pa. C.S.A. § 3802(a)(1) and 75 Pa.C.S.A. § 3802(b), yet he challenges Section 3802 in its entirety. An individual launching a constitutional challenge to a statute must be injured by it. He cannot challenge it in the abstract. Appellant was not charged with each subsection of Section 3802; thus, we find he may not challenge all of it. Semuta, 902 A.2d at 1260 n. 6 (citations omitted). . Subsection 3802(a)(1) states that "[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.” 75 Pa.C.S.A. § 3802(a)(1). Subsection 3802(b) states that: [a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 75 Pa.C.S.A. § 3802(b). .Semuta, convicted of violating Subsection 3802(b), argued that Section 3802 is vague and overbroad, "because it penalizes protected conduct, and is drafted in such a way as to be ambiguous in meaning, leaving a reasonable person unsure as to what conduct is prohibited.” Semuta, 902 A.2d at 1260. . In Spease, the appellant and challenged the "two hours” language after she was convicted of violating Subsection 3802(c), Subsection (c), which pertains to "Highest Rate of Alcohol,” differs from Subsection (b), pertaining to "High Rate of Alcohol,” only in the blood alcohol content to which it applies. Subsection 3802(c) states that: [a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 75 Pa.C.S.A. 3802(c). . Even if the claim were included in the Rule 1925(b) statement, Smith lacks standing to raise it. Semuta, supra. In Semuta, the appellant asserted an identically worded allegation. The Court noted, however, that because the appellant was not convicted under that Section, he lacked standing to raise a challenge to its constitutionality. Semuta, 902 A.2d at 1261-1262 (citing Commonwealth v. Ciccola, 894 A.2d 744, 747 (Pa.Super.2006); Commonwealth v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143, 1146 (1981)).

ORDER PER CURIAM: AND NOW, this 16th day of August, 1995, Edward Raymond Kohout having been suspended from the practice of law in the State of West Virginia for a period of two years by Order of the Supreme Court of Appeals of West Virginia filed April 14, 1995; the said Edward Raymond Kohout having been directed on June 19, 1995, to inform this Court of any claim he has that the imposition of discipline in this Commonwealth pursuant to Rule 216(a) and (c)(4), Pa.R.D.E., would be unwarranted and the reasons therefor; and upon consideration of the responses filed, it is ORDERED that Edward Raymond Kohout is suspended from the practice of law in this Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. MONTEMURO, J., is sitting by designation. ZAPPALA and CAPPY, JJ., dissent.

OPINION MONTEMURO, Justice. This is an appeal by the Commonwealth from an order of the Superior Court reversing a judgment of sentence entered against appellee on various drug charges. The issue presented is whether appellee’s confession was rendered involuntary by a police offer to inform the District Attorney if appellee were willing to cooperate with future drug investigations. On November 14, 1989, appellee, Jeffrey Laatsch, was arrested by the State College Bureau of Police for selling marijuana to a police informant on two occasions. Following his arrest, appellee confessed to his involvement in these crimes, and subsequently filed a motion to suppress this confession. At the hearing on this motion, Officer William E. Wagner testified that after administering Miranda warnings, he asked whether appellee knew why he was being arrested. In response, appellee admitted to selling drugs. The officer also recounted telling appellee that if he were willing to cooperate in future investigations, his cooperation would be made known to the District Attorney. According to the officer, this speech was standard operating procedure in drug-related cases. The officer further recalled that while he was sure that this offer concerning future investigations had been made after Miranda warnings had been issued to appellee, he was unsure as to whether it had been made before or after appellee’s confession. Based on this testimony, the Superior Court concluded that the trial court had erred in denying appellee’s motion to suppress the confession, and granted appellee a new trial. In reaching this decision the Superior Court relied upon our holding in Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409, cert. denied, 493 U.S. 963, 110 S.Ct. 403, 107 L.Ed.2d 369 (1989). In Gibbs, we concluded that the defendant had been impermissibly induced to make a confession without consulting an attorney when in response to the defendant’s question, “Maybe I should talk to a lawyer. What good would it do me to talk to you?” a police officer responded, “I really don’t know what good it would do. The only thing is I would tell the District Attorney you cooperated for whatever good that would be, but I would have no idea whether it would help your case or not.” Id. at 151, 553 A.2d 409. In applying Gibbs to the present case, the Superior Court noted that under its holding in Commonwealth v. Morgan, 414 Pa.Super. 1, 606 A.2d 467 (1992), the Gibbs rationale had been extended to apply not only to situations in which a defendant is persuaded to forgo his right to counsel, but also to those cases in which the promise of favorable treatment by the district attorney is used to induce a defendant to waive his right against self-incrimination. Thus, the Superior Court concluded that since Officer Wagner was uncertain as to when, in relation to the confession, he had made the offer regarding future cooperation, the Commonwealth had not met its burden of showing by a preponderance of the evidence that appellee had voluntarily waived his right to remain silent. Under Gibbs, appellee’s right against self-incrimination would have been violated if the statement were made prior to appellee’s confession; hence, the Superior Court concluded that the confession should have been suppressed. We granted allocatur, and now reverse this decision. The standard governing review of the trial court’s denial of a defendant’s motion to suppress is well established, and was set forth by this court in Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989). When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are erroneous. Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence. Commonwealth v. O’Shea, 523 Pa. 384, 395, 567 A.2d 1023, 1028 (1989) (citations omitted). While we agree with the Superior Court’s conclusion that our holding in Gibbs applies to both the right to counsel and the right to remain silent, we are unable to agree with its conclusion that Gibbs mandates the suppression of appellee’s confession solely because Officer Wagner’s offer regarding future cooperation may have been made prior to appellee’s confession. Rather, we find the two cases to be clearly distinguishable. Gibbs dealt with an offer of lenient treatment in return for the defendant’s cooperation in the investigation of the crime with which he had been charged, i.e., an incriminating statement implicating the defendant himself. By contrast, Officer Wagner’s offer dealt with appellee’s potential cooperation in the investigation of crimes completely unrelated to the offenses with which he had been charged. Appellee could clearly have volunteered such cooperation without ever implicating himself in the crimes for which he had been arrested. Stated more succinctly, we find there is a clear distinction between an offer conditioned on a confession, and an offer seeking cooperation in the investigation of others without the prerequisite of self-incrimination. The former is clearly an impermissible inducement to waive one’s right against self-incrimination; the latter is not. Since this case deals only with the latter, the trial court was correct in denying appellee’s motion to suppress. Accordingly, the order of the Superior Court is reversed and the judgment of sentence against appellee is reinstated. NIX, C.J., concurs in the result. MONTEMURO, J., is sitting by designation.

OPINION CAPPY, Justice. This appeal involves the issue of valuation, for purposes of equitable distribution, of a spouse’s business interest in an accounting firm. For the reasons that follow, we reverse, in part, the decision of the Superior Court, but affirm its order vacating the trial court’s order of equitable distribution and remanding the matter to the trial court. A review of the relevant facts and procedural history reveals the following. Carol Butler and Leon Butler were married on May 10,1964. During the initial few years of their marriage, Mrs. Butler was employed as a school teacher. However, beginning in or about 1967, she remained at home to care for the parties’ three children. She re-entered the work force in 1979 as a retail sales clerk and later owned, although only for a brief time, a gift shop. Husband is a certified public accountant and has been employed as an accountant since the parties first married. He is currently a partner in the CPA firm of Einhorn, Butler, Gingerich & Co. The parties first separated in May, 1983, but then reconciled in May, 1984. They finally separated in December, 1984. Following the separation, Wife remained in the marital home with the parties’ children. From the time of final separation until October, 1988, Husband maintained the marital residence insofar as he paid the mortgage, utilities, insurance, repair bills and other incidental costs associated with the maintenance thereof. He also paid child support. In addition Husband has paid, and apparently continues to pay, college tuition for two of the children. A final decree in divorce was entered on April 12, 1988. A master was then appointed to hear evidence and render a recommendation as to the economic issues relating to the divorce. Pertinent to the issue of the value of Husband’s business interest, the record evinces that beginning in October, 1984, and continuing to the present, Husband’s employment was subject to a shareholder agreement. That agreement in essence provides that in the event a shareholder voluntarily decides to terminate his employment, loses his or her CPA license, or becomes permanently disabled, the shareholder must sell, and the Company must purchase, that shareholder’s shares of stock at the agreed upon price of $10 per share or a total of $2450. The agreement further provides that upon the death of a shareholder, the Company is obligated to purchase and the shareholder’s personal representative obligated to sell, the shareholder’s stock for the sum of $100,000. In connection therewith, the agreement provides that the Company shall purchase a term life insurance policy on the life of each stockholder, the proceeds of which shall be used to satisfy this $100,000 obligation. By its terms, the shareholder agreement is to terminate upon either the bankruptcy, receivership or dissolution of the Company; the death of all stockholders within a ninety day period of one another; or where there remains only one shareholder to this agreement. With respect to the issue of valuation of Husband’s business interest, Wife presented the testimony of John A. Plesic, CPA. Mr. Plesic determined the value of Husband’s accounting firm as of December 31, 1987, to be $546,889, which Mr. Plesic referred to as the “net equity value” of the partnership. He thus determined Husband’s one-third interest therein to be $182,000. According to Mr. Plesic’s testimony, this “net equity value” included an intangible value of $497,395 which he described as the going concern value and/or goodwill value which included a value attributable to the reputation and client base of the accounting firm as a whole. Husband testified as his own expert with respect to the valuation of Einhorn, Butler, Gingerich & Co. He testified regarding five distinct methods of valuation concluding that the most appropriate method under the circumstances would be the fixed price method. According to Husband, this method would yield a value of $2450 which represents the amount fixed by the shareholder agreement. The master’s report and recommendation is somewhat cryptic. Initially the master acknowledged the Wife’s expert’s valuation as being $576,889. The master then notes that he would value this accounting firm at $497,395, which represents the intangible value assigned by Mr. Plesic, and Husband’s interest therein as $ of that figure or $165,798.33. The master also determined that the shareholders themselves valued the partnership with its client base at $300,000. In reaching this determination, the Master apparently relied upon the buy/sell provision contained in the shareholder agreement which relates to the death of a shareholder. In other words, since there were then three shareholders for whom life insurance policies of $100,000 each were in effect, the Master believed the shareholders themselves had assigned a value to the firm, including its client base, of $300,000. In his final analysis, however, the Master concluded that an average of this $300,-000 figure and that assigned by Mr. Plesic would be “closest to the fact and most fair to both parties.” Master’s Report and Recommendation, p. 15. In so doing, however, the master employed the value of $546,889 rather than $576,889 as he had initially noted. Thus, he assigned a value of $423,444.50 to the entire firm and a value of $141,148.16 as representing Husband’s one-third interest. The trial court affirmed the master’s recommendations. With respect to the issues pertinent to this appeal, the trial court found that value representing goodwill was properly includable for purposes of equitable distribution. Specifically, the trial court found that “husband’s interest Qh of $497,395.00, or $165,798.33) is an asset of the business includable as marital property for equitable distribution purposes.” In its order, however, the trial court adopted the value assigned by the Master of $141,148.16 as representing Husband’s one-third interest in the firm. The Superior Court vacated the trial court order and remanded the case for further proceedings. With respect to the issue of valuation of Husband’s business interest, the Superior Court concluded that the trial court erred in finding that the relevant date for purposes of determining Husband’s percentage share of the business interest was that of the hearing rather than the date of final separation. According to the Superior Court, Husband’s share of the firm should be valued at one-half, representing Husband’s one-half interest as of the date of separation as opposed to one-third, which would represent his percentage share as of the date of the master’s hearing. The Superior Court did, however, apparently agree with the value of the accounting firm as assigned by the Master and specifically agreed that goodwill was properly included therein. Accordingly, the Superior Court ordered that on remand, the equitable distribution scheme be based on Husband’s fifty percent ownership of the accounting firm rather than a one-third interest. , In this appeal, Husband argues that the Superior Court erred in not valuing his business interest at $2450 as set forth in the shareholder agreement. In the alternative, Husband argues that even assuming the shareholder agreement does not control, the Superior Court erred in including the intangible value of goodwill in its valuation of his interest in the accounting firm. , In support of his position that the shareholder agreement controls, Husband relies upon this Court’s decision in McCabe v. McCabe, 525 Pa. 25, 575 A.2d 87 (1990). In McCabe, this Court held that for purposes of equitable distribution, the husband’s partnership interest in a law firm was properly valued according to the method set forth in the governing partnership agreement relating to termination of a partnership interest rather than a “going concern” value since the facts presented there established that a value attributable to the going concern could not be realized by the husband. In other words, because the husband himself could not, under the terms of the partnership agreement, realize a value attributable to the partnership as a continuing business such as his proportionate share of the accounts receivable or work-in-progress accounts should he wish to liquidate his share in the firm, this Court held that it would be inequitable to assign such a value for purposes of equitable distribution. In relevant part, we stated the following: The partnership agreement contains provisions which clearly and narrowly define the rights of the partners. These provisions do not allow a partner to remove from the firm a proportionate share of the accounts receivable, work-in-progress accounts, or other accounts included in the “going-concern” value. Under no circumstances can a partner liquidate his share of the partnership and receive a proportionate share of the firm’s total value, including its equipment, accounts receivable, etc. Rather, as discussed supra, a partner is strictly limited to receiving his capital account and his share of undistributed profits, in the event he wishes to liquidate his share in the firm. Nor does a partner have a right to retire from the firm and continue to receive a share of the firm’s profits. Under these circumstances, it would be inequitable to apply a “going concern” value to the partner’s share. Id. at 29-30, 575 A.2d at 89. Husband here argues that similar to the attorney in McCabe, because of the existence of the shareholder agreement, he too would be unable to realize any value attributable to the going concern or goodwill of the accounting firm should he leave that firm. Thus, he submits that the value assigned the shares of stock as set forth in the agreement, or $2450, should here control. In addition, Husband discounts the value attributable to his shares of stock upon his death, or $100,000, claiming that it is an improper value to be assigned to a present interest since he could never receive same in his lifetime. Certainly, the shareholder agreement at issue in the instant matter, similarly to the agreement at issue in McCabe, by its terms precludes a shareholder who wishes to liquidate his or her share in the company from realizing a proportionate share of the company’s total value, including its accounts receivable, equipment or other factors which would normally be included in the valuation of a business as a going concern. Accordingly, we agree that under the terms of the shareholder agreement in force here, Husband would be unable to ever realize a value based on the going concern. However, it does not necessarily follow therefrom, that the value as set forth in the shareholder agreement should here control as it did in McCabe. The agreement in McCabe is distinguishable from the one at issue here for reasons other than the issue of whether a going concern can be realized thereunder. Significantly, the McCabe agreement provides a formula of sorts for ascertaining a current monetary value, as opposed to a predetermined fixed value, since it provides for a share of the capital account and the undistributed profits. In other words, upon departure, a partner would realize monetary worth which bore some relation to the firm’s current accounts. The agreement on which Husband here relies, however, provides only a fixed amount; one which the record clearly establishes was not periodically reviewed in an effort to determine whether it reflected the company’s current financial picture. It is apparent that a value was assigned the stocks of this professional corporation in or about 1974 when Mr. Einhorn and Husband first incorporated. That precise value was then set forth in the shareholder agreement in 1984 and remains the value attributed to those shares today. Indeed, both Mr. Gingerich and Ms. Hughes purchased their respective shares of stock for this same value. The value of the shares of stock has thus remained constant over time and has never been re-evaluated to reflect the company’s current financial picture. While the $2450 may indeed represent the value of the stock, it does not necessarily represent the present day monetary worth of the business. Nor do we find that Husband’s present interest in the accounting firm can be determined according to the value assigned that interest in the event of his death. The agreement here provides that upon a shareholder’s death, the company will purchase that shareholder’s shares of stock for the sum of $100,000. However, the agreement also provides that the $100,000 will represent the proceeds from a life insurance policy purchased by the firm on behalf of each stockholder. As is true for the value assigned a shareholder’s shares of stock upon voluntary withdrawal from the firm or upon disability, the $100,000 figure remained a fixed sum. As such, it is not an appropriate figure for valuing Husband’s current interest in the accounting firm. Accordingly, we agree with both the trial court and the Superior Court that this particular shareholder agreement is not determinative of the value to be assigned Husband’s interest in the accounting firm. Just what is indicative of that value is not, however, so readily definable. Given the fact specific nature of such matters, there can be no single formula for valuing a business interest of a spouse for purposes of equitable distribution that will apply in all circumstances. However, we can set forth certain guiding principles. We find particularly helpful the New Jersey Supreme Court decision in Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975). The issue in Stem involved the manner in which the interest of the husband in his law firm was valued. The court there found that generally the monetary worth of a law partnership will consist of the total value of the partners’ capital accounts, accounts receivable, the value of work in progress, any appreciation in true value, together with good will, should there be any, with the total amount thereof being reduced by the amount of accounts payable as well as any other liabilities not reflected upon the partnership books. The court in Stem also noted, however, that the above factors will bear no meaning or relevance in ascertaining the present day monetary worth for purposes of equitable distribution unless it is also determined that the books of the firm are well kept and that the value of the partners’ interests are periodically reviewed. In consideration of these factors, the court in Stem looked first to the terms of the existing partnership agree ment, concluding that the formula set forth therein for the calculation and payment of a partner’s interest to a personal representative upon death, was most useful since that formula employed the sum of the above referenced general factors. Given these parameters, it becomes apparent that a buy/sell agreement will not always be beneficial for purposes of ascertaining a spouse’s present interest in the business. The reason for this is clear: while certain buy/sell agreements such as the one at issue in McCabe will, indeed, be sufficiently comprehensive and provide a clear formula for purposes of valuing a spouse’s business interest, others may not be so comprehensive or may not reflect the current situation. Where, however, such an agreement is in effect, it should be considered by the court in the first instance in an effort to determine whether a value which represents the present day monetary worth of the business interest can be ascertained from the provisions therein. If it is determined that the terms of the buy/sell agreement can be employed to ascertain a present day monetary value, any such value determined under those terms is only a presumptive value, which can then be attacked by either party as not reflective of the actual present day value. Again, we caution that for purposes of valuing a spouse’s business interest in the context of equitable distribution, an existing buy/sell agreement is to be viewed only as a factor or possible aid in valuing that interest and that we are in no way intimating the validity of any such agreement. It is simply one source to be considered for the purpose at hand, that being equitable distribution. Where the terms therein are not helpful for those purposes, such an agreement will simply serve no purpose in ascertaining the monetary worth of a spouse’s business interest. In other words, a buy/sell agreement should be considered in the first instance simply because such agreements may, indeed, provide a formula of sorts which includes accounts receivable, capital accounts, accounts payable and so forth which, of course, apply numbers reflecting the current financial structure of the business. In sum, then, while buy/sell agreements may be a factor which aids the courts in ascertaining the present worth of a spouse’s business interest, such are not necessarily determinative of that issue. The learned Superior Court in Buckl v. Buckl, 373 Pa.Super. 521, 542 A.2d 65 (1988), recognized these very principles, also citing Stern, clearly noting, however, that the precise method of valuation necessarily depends upon the particular facts and circumstances of each case. Applying the foregoing principles to the instant matter, we agree with the Superior Court that the values assigned to the shares of stock pursuant to the shareholder agreement of this particular accounting firm are not controlling since the values stated therein do not reflect the current monetary worth of this firm. The circumstances in the instant matter are simply inapposite to those of Stem. Unlike in Stem, the value assigned the shares of stock in the instant matter was not revised periodically nor does it reflect the elements of the business’s worth. We thus turn to Husband’s further contention that even assuming the shareholder agreement does not here control, the trial court erred in including goodwill in its ultimate valuation. For the following reasons, we agree with Husband. As noted above, goodwill is not necessarily a factor in determining the monetary worth of a business. Rather, it must first be determined whether the particular business at issue enjoys “goodwill” such that a value therefore should be attributable to the actual business for purposes of equitable distribution. See, e.g. Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975). As this Court recently noted in Solomon v. Solomon, 531 Pa. 113, 611 A.2d 686 (1992), goodwill is essentially the positive reputation that a particular business enjoys. As the Superior Court in Buckl stated, it is “the favor which the management of a business has won from the public, and probability that old customers will continue their patronage.” Buckl, 373 Pa.Super. at 530, 542 A.2d at 69. As such, goodwill is clearly property of an intangible nature. As we held in Solomon, in determining whether goodwill should be valued for purposes of equitable distribution the courts must look to the precise nature of that goodwill. That goodwill value which is intrinsically tied to the attributes and/or skills of certain individuals is not subject to equitable distribution because the value thereof does not survive the disassociation of those individuals from the business. Solomon, 531 Pa. at 124-125, 611 A.2d at 692. In other words, where such goodwill is attributable solely to an individual’s attributes it cannot be viewed as a value of the business as a whole. On the other hand, as this Court also noted in Solomon, goodwill which is wholly attributable to the business itself is subject to distribution. Id., at 124-125, 611 A.2d at 692. The Superior Court has addressed this precise issue as well employing a similar analysis. See e.g., Buckl v. Buckl, 373 Pa.Super. 521, 542 A.2d 65 (1988); DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), appeal denied 517 Pa. 631, 539 A.2d 811 (1988); Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986), appeal denied 516 Pa. 631, 533 A.2d 90 (1987); and Fexa v. Fexa, 396 Pa.Super. 481, 578 A.2d 1314 (1990). In Fexa, the Superior Court espoused the following: If the nature of the economic good 'will is purely personal to the professional spouse, it is not alienable; hence, it cannot actually be realized and may not be included in the equitable distribution. If, however, a portion of the economic good will is attributable separately to the corporation or business and can be realized by sale to another (by selling the enterprise in whole or in part, buy-in’s and buy-out’s included), then to that extent, there is good will value subject to equitable distribution. Fexa, 396 Pa.Super. at 487, 578 A.2d at 1317 (emphasis in the original) (citations omitted). The rationale behind this is clear: professional goodwill may be inextricably tied to the individual professional’s ability to generate future earnings and because future income is not subject to equitable distribution, Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986), goodwill of a personal nature should not be considered for purposes of equitable distribution. Moreover, where there has been an award of alimony, as in the case sub judice, to also attribute a value to goodwill that is wholly personal to the professional spouse, would in essence result in a double charge on future income. See also, McCabe v. McCabe, 525 Pa. at 30, 575 A.2d at 89. Application of these principles to the facts presented in the instant matter leads us to conclude that the trial court erred in valuing for equitable distribution that goodwill which was wholly personal to Husband and thus inalienable. The evidence unequivocally established that Husband’s clients are personal to him and that if he were to leave the partnership of Einhorn, Butler & Gingerich his clients would most likely follow him. The evidence presented here was that Husband had a particular client base comprised of the Greek community in that area who were loyal to him and not the firm and that if he were to leave this particular partnership, those clients would in all likelihood follow him. Even Wife’s expert testified that if Husband were to leave the partnership tomorrow, aside from the terms of the partnership agreement, he would receive value in the amount of at least $182,000 which according to this expert would represent the client base that Husband could take with him. And, while the evidence reveals that other employees of the accounting firm may be assigned to work on certain details or accounts involving clients particular to a specific shareholder, those clients remain the responsibility of the particular accountant who drew them to the firm. For example, Husband testified, as did Mr. Gingerich, that at times other employees of the firm may, at a shareholder’s direction, service his or her clients but that those same clients would nevertheless remain the basic responsibility of a particular shareholder. On the other hand, Wife’s expert testified that the accounting firm possessed a good reputation in the community, although evidence of such was not very specific. In short, the evidence here demonstrates that at least some of the intangible value attributed to Husband’s interest in the accounting firm represented goodwill of a personal nature which, while capable of being realized for as long as Husband continues to practice as a CPA, is certainly not alienable and as such is incapable of presently being realized. Accordingly, it is clear that the inclusion of this professional goodwill in the total value of the accounting firm was in error. In finding to the contrary, the Superior Court placed great emphasis upon the fact that a third shareholder, Brenda Hughes, had bought into the firm and was subsequently bought out and yet the firm still remained. Based upon this fact, the Superior Court found this case to be analogous to Fexa v. Fexa, 396 Pa.Super. 481, 578 A.2d 1314 (1990), wherein another panel of the Superior Court found that because there had been partners who had bought-in and were subsequently bought-out and yet the dental practice remained, there was goodwill not entirely personal to the individual professionals involved and, therefore, goodwill subject to equitable distribution. The facts in Fexa are, however, distinguishable. There, the Superior Court explicitly found that despite the fact that various partners had come into the practice and others had left, “[t]he form of the business and its work continued unchanged.” Id. at 489, 578 A.2d at 1318. In the instant case, however, the same cannot be found. The evidence here was that as a result of certain accountants and shareholders having left the firm, the firm lost some clients. Indeed, the record reveals a stipulation by the parties that at the time of leaving, Brenda Hughes was free to solicit clients of the firm and that she did, in fact, solicit some such clients who then transferred their business to her new employment. Furthermore, the Superior Court’s reliance upon the fact that Husband had acquired clients from his father upon his father’s death in support of its holding that the firm of Einhorn, Butler, Gingerich & Co. thus possessed goodwill not wholly personal to the individual partners, is incorrect. First, at the time of Husband’s father’s death, the firm of Einhorn, Butler & Gingerich did not exist. Indeed, it was not until approximately 3 years after Husband’s father had died that Max Einhorn and Husband even merged their practices. Thus, it cannot be said that any clients that Husband acquired as a result of his father resulted from any “loyalty to the firm” since, indeed, there was no such firm at that time. Given the foregoing, we conclude that this matter must be remanded for a redetermination of the value of Husband’s partnership interest consistent with this opinion. Accordingly, we reverse that portion of the Superior Court opinion which upheld the valuation of Husband’s partnership interest in the accounting firm of Einhorn, Butler, Gingerich & Co., but affirm its order vacating the trial court’s order of equitable distribution. MONTEMURO, Senior Justice, who is sitting by designation, did not participate in the consideration or decision of this matter. PAPADAKOS, J., did not participate in the decision of this matter. FLAHERTY, J., files a dissenting opinion in which ZAPPALA, J., joins. . We note that our disposition of the issues presented to this Court in no way impacts upon the issues on which the Superior Court based its vacation of the trial court’s order as those specific issues were not appealed to us. We wish to emphasize, however, that our determination that the trial court erred in valuing husband’s partnership interest, as is true with respect to the Superior Court’s determination that the trial court erred with respect to other matters as more fully discussed infra, requires that the trial court’s order of equitable distribution be vacated in its entirety due to the fact that these determinations will ultimately alter the economic positions of the parties and thus, upset the trial court’s original scheme of distribution. . At the time the parties separated in 1984, Husband was a 50% shareholder in the accounting firm. In the interim between separation and the date of the master’s hearing, Husband’s firm took on a third shareholder. Thus, at the time of the master’s hearing, Husband's interest in the accounting firm was only 33%. The record presented to this Court indicates, however, that this third shareholder terminated her employment with Einhorn, Butler, Gingerich & Co. in or about 1989, thereby rendering Husband, again, a 50% shareholder. . During this period of time, there were actually two distinct shareholder agreements; one entered into on October 31, 1984 between Husband and Michael R. Gingerich who were at that time the only two shareholders and the other one entered into July 7, 1986. The most recent agreement was necessitated by the addition of Brenda Hughes as a shareholder. The terms and provisions of both agreements, except of course with respect to the names of the shareholders, remained the same. . We would note that there is some confusion throughout the entire record with respect to the value actually assigned to the company by Mr. Plesic. The record reveals that while Mr. Plesic initially testified that the net equity value of the company was $546,889, he later testified that the value was really $576,889. In altering this valuation, Mr. Plesic explained that in his initial calculations he had incorrectly noted the cash on hand at $30,000 less than actually reported. Husband testified, however, that the correct figure for cash was, indeed, $24,047 and not $54,047. As noted infra, the Master initially employs the figure of $576,889 in his Findings of Fact, but then in his recommendation, which was ultimately affirmed by both the trial court and the Superior Court, employs the figure $546,889 in arriving at his final valuation figure of $141,148.16. Because we ultimately remand for a re-valuation of Husband’s business interest this discrepancy in the record in no way alter’s our resolution of this matter; we simply note it for the sake of clarity. . It should be noted that both the Superior Court and the trial court agreed that the date of valuation of the marital property, including Husband’s business interest in the accounting firm, was the date of the master’s hearing. Such a finding is in complete accordance with this Court’s decision in Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). The Superior Court disagreed only as to the date on which Husband’s share of the business interest should be identified. . Additionally, the Superior Court held that the trial court had erred in including the fair market rental value of the marital home in the marital estate rather than deducting Husband's share thereof from the Wife’s ultimate distribution of marital property and that the trial court had also incorrectly calculated the total months that Wife resided in the marital residence. That issue was not, however, raised in this Court. Thus, on remand, the trial court is bound by that holding of the Superior Court. . Husband does not argue on appeal to this Court error in the Superior Court’s holding with respect to the percentage of the total value of the firm which should be attributable to him. . The equitable distribution of marital property lies within the discretion of the trial court and, therefore, will not be disturbed on appeal unless we find an abuse of that discretion. See, Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982). . Whereas in the present matter, goodwill was included in the value assigned to Husband’s business interest, goodwill was not included in the going concern value advanced by the wife's expert and accepted by the trial court in McCabe. McCabe, 525 Pa. at 28, 575 A.2d at 88. We would note that while goodwill and going-concern value are often referred to conjunctively as they are in the matter sub judice, the two are technically distinct. Going-concern value refers generally to the ability of a business to generate income without interruption, even where there has been a change in ownership, whereas goodwill represents a preexisting relationship arising from a continuous course of business which is expected to continue indefinitely. See, e.g., Ithaca Industries, Inc. v. Commissioner of Internal Revenue, 17 F.3d 684 (4th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 83, 130 L.Ed.2d 35 (1994). . In so noting, this Court does not intend to intimate in any manner, the validity or non-validity of such agreements, or more specifically, the buy/sell agreement, at issue here. We are not unmindful of the many purposes to be served by such agreements, nor do we wish to speculate on any of those purposes. Suffice it to say that it is our general belief, however, that such agreements are not entered into with equitable distribution in mind, but rather for purposes of effectuating the goals of the particular business. As will be discussed infra, the focus of the instant appeal is solely that of valuing Mr. Butler’s business interest for purposes of equitable distribution. . The precise discussion in Stem follows: Of these, probably the most accurate and certainly most useful for present purposes is the formula for the calculation and payment of a partner's interest to his personal representative upon death. In such an event, according to the articles of partnership, his estate is to receive the then value of his capital account, readily determinable from the partnership books, together with a fixed sum appearing after the partner's name on a schedule appended to the partnership agreement. This schedule is revised quarterly. It is obviously intended to reflect those elements of partnership worth other than the member's capital account. The testimony reveals that these payments occasioned by death, are to be funded with the proceeds of life insurance on the lives of the several partners, the policies being owned by and the proceeds payable to the firm. The amount appearing after defendant’s name on the schedule attached to the copy of the partnership agreement [which] was received in evidence was $167,500. We think the trial court would be justified in adding to this sum the value of defendant’s capital account and treating the total as the [presumptive value of the defendant’s partnership interest in the firm. We say [p]resumptive value only, because either plaintiff or defendant will be entirely at liberty to challenge the figure so determined as not being reflective of true value. Stern, 66 N.J. at 346, 331 A.2d at 260.

ORDER PER CURIAM: AND NOW, this 6th day of July, 1995, the Order entered by this Court on October 11, 1989, is reinstated and it is hereby ORDERED that Frank J. Marcone be and he is suspended from the Bar of this Commonwealth for a period of four years, with credit for the period of suspension previously served, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E. MONTEMURO, J., who is sitting by designation, did not participate in this matter. CASTILLE, J., concurs with the Hearing Committee’s recommendation of a suspension of nine months and fourteen days, with credit for the period of suspension previously served.

OPINION BY COLVILLE, J.: ¶ 1 Appellant John Getty (“Husband”) seeks to appeal a trial court order regarding the equitable distribution of marital property owned by Husband and Appellee Michelle Getty (“Wife”). We quash this appeal. ¶ 2 The following summary of the factual and procedural histories underlying this matter is sufficient for our disposition. Following an equitable distribution hearing, the trial court entered an order distributing the couple’s marital property, which, inter alia, awarded Wife 65% of Husband’s City of Philadelphia Employees Deferred Compensation Plan and the same percentage of his pension plan. Trial Court Order, 12/21/04. ¶3 On December 29, 2004, Husband filed a motion for reconsideration in which he argued, inter alia, that, to the extent Wife is entitled to 65% of his deferred compensation and pension plans, she is only entitled to 65% of the marital portions of those plans. On January 19, 2005, Husband filed a Notice of Appeal in which he gave notice that he was appealing the trial court’s December 21, 2004, order. Then, on January 20, 2005, the trial court entered an order granting in part and denying in part Husband’s request for relief in his motion for reconsideration. In this order, the court stated that Wife only is entitled to 65% of the marital portion of Husband’s pension from the City of Philadelphia. The court also ordered that “Husband is to receive credit for any support due to him and/or any overpayment of child support made by him.” See Trial Court Order, 1/20/05, at ¶2. Lastly, the court asserted that “[a]ll claims of record not specifically addressed herein are DISMISSED.” See id. at ¶3 (emphasis in original). ¶4 Thereafter, pursuant to Pa.R.A.P. 1925(b), the court directed Husband to file a statement of matters complained of on appeal, and Husband timely complied. The trial court followed by filing an extensive opinion in support of its decisions, and this appeal followed. ¶ 5 Before we can consider the merits of the issues raised by Husband, we must determine whether this appeal is properly before the Court. Pennsylvania Rule of Civil Procedure 1930.2(b) allows a party aggrieved by a decision regarding a domestic relations matter to file in the trial court a motion for reconsideration. As noted above, Husband filed such a motion in the trial court before he filed his Notice of Appeal. ¶ 6 After an appeal is taken, Pennsylvania Rule of Appellate Procedure 1701(b)(3) allows a trial court to grant reconsideration of its order where: (i) an application for reconsideration of the order is filed in the trial court or other government unit within the time provided or prescribed by law; and (ii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration. Pa.R.A.P. 1701(b)(3)(i) and (ii). Here, Husband timely filed a motion for reconsideration, and the trial court issued an order expressly granting reconsideration within thirty days of its original order, which, therefore, means that the court filed its order granting reconsideration within the time for appeal prescribed by Pa.R.A.P. 903(a). As such, the court acted within its authority when it granted reconsideration of its order. Thus, we turn to the remainder of Pa.R.A.P. 1701(b)(3), which provides as follows: A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order. The petitioning party shall and any party may file a praecipe with the protho-notary of any court in which such an inoperative notice or petition is filed or docketed and the prothonotary shall note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the trial court or other government unit. No additional fees shall be required for the filing of the new notice of appeal or petition for review. Pa.R.A.P. 1701(b)(3) (emphasis added); see also Pa.R.C.P. 1930.2(d) (“The time for filing a notice of appeal will begin to run anew from the date of entry of the reconsidered decision, or, if the court does not enter a reconsidered decision within 120 days, from the 121st day.”) ¶ 7 We find the language the Supreme Court employed in fashioning Pa.R.A.P. 1701(b)(3) to be clear and unambiguous. In this matter, the trial court’s action in granting reconsideration rendered Husband’s previously filed Notice of Appeal inoperative. Because the trial court granted reconsideration, the time for either party to file an appeal began to run anew on January 20, 2005, where the court’s order entered on that date, in addition to granting reconsideration, also constituted the entry of the court’s decision on reconsideration. Because the trial court’s order granting reconsideration rendered Husband’s Notice of Appeal inoperative and because Husband never filed a Notice of Appeal from the order granting reconsideration, this Court lacks jurisdiction over this matter. See Pa.R.A.P. 902 (“An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal).”). ¶ 8 For these reasons, we quash this appeal. ¶ 9 Appeal quashed. Motion to Dismiss dismissed as moot. . A final divorce decree was entered on December 27, 2004. . We note that Pennsylvania Rule of Appellate Procedure 108 governs the date of entry of an order. As to civil matters, the following rule dictates when an order was entered: The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.RCiv.P. 236(b). Pa.R.A.P. 108(b). . The trial court’s order states that the court granted in part and denied in part Appellant’s motion for reconsideration. However, in the same order, the court modified its original order. Therefore, technically speaking, in its January 20, 2005, order, the trial court granted reconsideration in full, and at the same time, the court granted Husband’s request, in part, to modify the court’s original order. . This Court may raise matters regarding its jurisdiction sua sponte. See Tohan v. Owens-Corning Fiberglas Corp., 696 A.2d 1195, 1198 (Pa.Super.1997). .The Rules of Appellate Procedure are to be interpreted in a manner consistent with the Statutory Construction Act, 1 Pa.C.S.A. § 1901 etseq. See Pa.R.A.P. 107. Subsection 1921(b) of the Statutory Construction Act provides as follows: When the words of a [rule] are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. See 1 Pa.C.S.A. § 1921(b). It is only when the words of a rule are not explicit that we may ascertain the intent of the Supreme Court by considering factors outside the words of the rule. See 1 Pa.C.S.A. § 1921(c). . It is worth noting that, in his brief to this Court, Husband purports to appeal from both the December 21, 2004, and the January 20, 2005, orders of the trial court. See, e.g., Husband's Brief at 2. As detailed above, Husband never properly appealed from the Janu-aiy 20, 2005, order. . Wife filed in this Court a motion to dismiss in which she essentially argues that Husband failed to file his appellate brief in a timely fashion. Given our disposition of this matter, Wife's motion to dismiss is moot.

OPINION BY President Judge COLINS. This is an appeal from the order of the Court of Common Pleas of York County (trial court), reversing the decision of the Windsor Township Zoning Hearing Board (ZHB) granting a special exception to Wal-Mart Real Estate Business Trust (Wal-Mart) to permit use of certain property for a Wal-Mart store in Windsor Township (Township). The Citizens for Responsible Development-Windsor Township, Inc. (CFRD) filed an appeal from the ZHB’s decision, and Wal-Mart, as equitable owner of the property directly involved in the appeal, filed a “Notice of Intervention.” We affirm. Wal-Mart submitted an application for a special exception to construct a 197,000 square foot “Super Center” store on a cornfield along Cape Horn Road. The proposed site is located primarily within a C-2 Planned Commercial Zone. Because the store will contain more than 20,000 square feet, it is considered a “Shopping Center” as defined in section 112 of the Windsor Township Zoning Ordinance (ordinance). This use requires approval of a special exception by the ZHB. There are three sections of the ordinance relevant to this action. Section 312.4, the general provision applicable to all zones, states that Except as provided elsewhere, a ground level loading area may be located in any side or rear yard. No exterior portion of an off-street loading facility (including access drives) shall be located within fifty feet (50’) of any land within a residential zone, or residential use. Where possible, off-street loading facilities shall be located on the face of a building not facing any adjoining land within a residential zone. Section 452.10, part of the regulations for Shopping Centers, modifies the setback from a residential district from 50' to 100'. Section 211.10, the specific regulation for Planned Commercial Zones, adds to the general requirement of Section 312.4; it states: Off-street loading shall be provided as specified in Section 312 of this Ordinance. “ In addition, no off street loading areas shall be permitted on any side of a building facing adjoining lands with residential zones, nor any side of a building facing an adjoining street.” (emphasis added). Hearings on the special exception commenced in July, 2004 and continued for eleven consecutive months; Wal-Mart concluded its case-in-chief in November, 2004, and CFRD concluded its case-in-chief in January, 2005. In March, 2005 Wal-Mart presented rebuttal evidence, including revised plans. CFRD presented counter-rebuttal in April, 2005, and in May, the ZHB voted to approve the application subject to certain conditions. In January, 2006 the trial court reversed the ZHB and this appeal followed. The zoning classifications for properties to the south, east and west of the proposed building are residential low density (R-l). The area to the north is part R-l and part general commercial (C-l). Existing land uses to the south and west are residential; to the east, agricultural production, and to the north, agricultural and commercial. The off-street loading area is located on the southern side of the building. Seven loading spaces/docks are “tucked” into protuberances from the building, parallel to the residential zone, with four loading docks on one side pointing toward three loading docks on the opposite side (Wal-Mart amended its plan to relocate the seventh loading dock from a location perpendicular to the residential zone to the location parallel to the residential zone, together with the other loading docks). Further revisions to the plan presented in the rebuttal stage include the addition of sound banders in the form of 10 feet high x 85 feet long walls on both ends of the building to shield the loading docks. There are three double doors and one single door located on the southern side of the building (Decision of the ZHB, Finding of Fact, # 38, p. 11) and a 130 foot tractor trailer turn-around. In its decision, the ZHB examined the final design of the loading area, with its seven loading docks, and focused on the question of whether the two areas specifically containing the seven loading docks, as configured subsequent to the revision, are “on the side of a building facing adjoining lands within a residential zone.” The ZHB looked at the dictionary definitions of the words “side” and “face,” and concluded that the loading dock areas are not on the “side” of the building “facing” the residential zone. The ZHB determined that “all seven” loading docks abut walls which are not “facing” the residential zones; the loading docks face each other, sheltered by barriers, and are not on the “side” of a building which-“faces” “residential properties.” (Decision of the ZHB, p. 56.) The trial court noted that the term “off-street loading area” is not defined in the ordinance, and stated that the clear intent behind the ordinance is to protect neighboring citizens from the effects of light, noise, exhaust, vibration, and general disturbance associated with retail loading and unloading activities; the trial court then defined the loading area to include “the entire sphere of operations with respect to loading activities, including the area where trucks will maneuver in order to dock with the building appendages”. (Trial Court Opinion, p. 5.) The trial court stated that simply adding appendages to the side of the building facing a residential area and orienting the docks toward one another was not sufficient to protect the public and comply with the ordinance, and that the sound barriers proposed do not change the fact that the loading area, as the trial court interprets the ordinance, is still on the side of a building facing a residential zone. On appeal, Wal-Mart argues that the trial court improperly applied the general off-street loading requirement of the ordinance instead of the specific off-street loading requirement applicable to Shopping Centers; and improperly rejected the ZHB’s factual finding that the proposed loading spaces are not located on the side of the building facing a residential property. Wal-Mart further contends that the trial court failed to resolve the ambiguous off-street loading provisions in the ordinance in favor of the property owner. This Court has recognized that “specificity is the essential characteristic of operative special exception requirements in an ordinance.” Bray v. Zoning Board of Adjustment, 48 Pa.Cmwlth. 523, 410 A.2d 909, 911 (1980). Thus, the Supreme Court has long defined a special exception as one allowable where requirements and conditions detailed in the ordinance are found to exist. Id., citing Lukens v. Zoning Board of Adjustment of Ridley Township, 367 Pa. 608, 80 A.2d 765 (1951); Application of Devereux Foundation, Inc., 351 Pa. 478, 41 A.2d 744 (1945). We find no ambiguity in the three operative provisions of the ordinance that regulate the issue sub judice. We find error, however, in the ZHB’s determination that the two areas containing the loading docks consti tute the “loading area,” for purposes of interpreting the ordinance. The ZHB reached the specious conclusion that because the loading dock areas face each other, sheltered by barriers, they are not on the side of the building which faces residential properties, and therefore meet the requirements of the ordinance; this determination was made notwithstanding the ZHB’s findings that in addition to the seven loading docks, there are three double doors and a single door, as well as a 130 foot tractor trailer turn-around on the southern side of the building (see Revised Site Plan, Exhibit 2.) Wal-Mart also raises arguments regarding two issues not addressed by the trial court (i) that the ZHB committed no error of law in determining that Wal-Mart satisfied the ordinance’s public water and sewer requirements; and (ii) that the ZHB committed no error of law in finding that CFRD was afforded a full and fair opportunity to present its case. The trial court reversed the ZHB solely on the grounds that Wal-Mart failed to meet the off-street loading requirements of the ordinance; therefore, these issues are not ripe for this Court’s review. Accordingly, the order of the trial court is affirmed. ORDER AND NOW, this 28th day of February 2007, the order of the Court of Common Pleas of York County is affirmed. . Citizens for Responsible Development is a "community organization” as defined by Section 908(3) of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(3). . Wal-Mart did not request a variance from the zoning ordinance. . A small rectangular area covering a portion of the property’s footage along Cape Horn Road is located in a General Commercial Zone (C — 1). . Conditions include requirements that the loading dock area must be closed between 10PM and 7AM, and no trucks may be parked in the docks or loading area or any area between the store and the southern property line between 10PM and 7AM unless they are completely shut down. .In an appeal from a decision of a zoning hearing board where the trial court relies solely on the record made before the board and receives no additional evidence, our standard of review is whether the board committed an abuse of discretion or an error of law, and when the trial court is alleged to have erred we will consider whether the trial court has abused its discretion or committed an error of law. Amerikohl Mining Inc. v. Zoning Hearing Board of Wharton Township, 142 Pa.Cmwlth. 249, 597 A.2d 219 (1991), petition for allowance of appeal denied, 529 Pa. 652, 602 A.2d 861 (1992).

OPINION BY JOHNSON, J.: ¶ 1 Wanda Ditch, Administratrix of the Estate of Catherine S. Verdier, appeals from the trial court’s order denying her petition to open and/or strike the judgment of non pros in favor of Waynesboro Hospital (“Waynesboro”). The trial court found Ditch’s complaint raised a claim of professional negligence, not of ordinary negligence, and entered a judgment of non pros because Ditch failed to file a timely certificate of merit. Ditch contends that the complaint did not raise a professional liability claim against the hospital but instead raised an ordinary negligence claim, and hence, a certificate of merit was not needed. Ditch also contends that Waynesboro failed to properly raise the issue of the certificate of merit through preliminary objections. Alternatively, Ditch contends that she did file a timely certificate of merit as she filed an amended complaint which provided her with additional time within which to file the certificate. Finally, Ditch asks this Court to determine whether equitable exceptions to the rule requiring the filing of a certificate of merit apply in this case. After careful study, we find no merit in Ditch’s contentions. Accordingly, we affirm the trial court’s order. ¶ 2 On March 23, 2002, Catherine S. Verdier suffered a stroke and was taken to the emergency department at Waynes-boro. While being moved from the emergency department to a hospital room, Ver-dier fell from her hospital bed striking her head on the floor. Due to the fall, Verdier suffered a right orbital fracture and a sub-dural hematoma from which she died on March 26, 2002. Ditch, as the administra-trix of Verdier’s estate, filed a wrongful death and survival action on February 17, 2004. In this initial complaint, Ditch argues that Verdier’s death was caused by the negligence and carelessness of Waynesboro, acting through its employees and agents. Specifically, Ditch averred that Waynesboro was negligent in failing to properly restrain Verdier, failing to properly train the staff with regard to proper procedures in transporting patients, and in leaving Verdier alone while she was being transported. ¶ 3 On March 14, 2004, Waynesboro filed preliminary objections asserting Ditch’s complaint did not sufficiently plead facts to support a professional liability claim against the hospital and that Ditch failed to file a certificate of merit. Waynesboro sought to either strike the complaint or in the alternative asked the trial court to direct Ditch to file an amended complaint. Waynesboro brought the preliminary objections before the trial court, but did not comply with local court rules. The preliminary objections were properly noticed on January 12, 2005. On January 20, 2005, Ditch filed an amended complaint which identified agents and employees of Waynesboro whose apparent negligent behavior led to Verdier’s death, but did not identify who acted negligently by name. ¶ 4 On February 28, 2005, Waynesboro filed a praecipe for entry of judgment of non pros against Ditch pursuant to Pa. R.C.P. 1042.6 for faffing to file a certificate of merit, and the trial court granted its motion. On March 8, 2005, Ditch filed a petition to open and/or strike the judgment of non pros and on March 9, 2005, Ditch filed a certificate of merit as to Waynes-boro. On November 21, 2005, the trial court denied Ditch’s petition to open and/or strike the judgment of non pros finding the original complaint raised a professional negligence claim and hence required a certificate of merit. ¶ 5 Ditch now appeals, raising the following questions for our review: 1. Whether every negligence complaint filed against a hospital necessarily requires the plaintiff to file a certificate of merit if the plaintiff was at the hospital for the sole and specific purpose of receiving medical care and treatment? 2. Whether the filing of preliminary objections is the procedure for bringing before the court the issue of whether the complaint is asserting a professional liability claim? 3. Whether the filing of an amended complaint provides the plaintiff with an additional sixty (60) day period within which to file a certificate of merit? 4. Whether there are or should be equitable exceptions to the rule requiring a plaintiff to file a certificate of merit and whether any such equitable exceptions apply in this case? Brief for Appellant at 3. ¶ 6 In this case, the trial court treated the complaint as one sounding in medical malpractice and granted Waynesboro’s praecipe for entry of judgment of non pros for a failure to file a timely certificate of merit. Trial Court Opinion (T.C.O.), 11/21/05, at 6. The Pennsylvania Rules of Civil Procedure set forth provisions which apply specifically to professional liability actions and require a certificate of merit as a prerequisite to the action. See Pa.R.C.P. 1042.1-1042.8. Rule 1042.3, pertaining to the certificate of merit, states in relevant part: (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff ... shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. $ ‡ $ (d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. Pa.R.C.P. 1042.3(a), (d) (notes omitted). This rule applies to professional liability claims against licensed professionals, including “a health care provider as defined by Section 503 of the Medical Care Availability and Reduction of Error (MCARE) Act[.]” Pa.R.C.P. 1042.1(b)(1)®. “The rule contemplates that a certificate of merit will be filed contemporaneously with or shortly after the filing of the complaint, and provides a 60-day window after the filing of the complaint to accomplish the filing of the certificate of merit.” Varner v. Classic Cmtys. Corp., 890 A.2d 1068, 1073 (Pa.Super.2006) (citation, internal quotation marks, and brackets omitted). If the rule applies and the plaintiff fails to provide the certificate of merit, the prothonotary may, on praecipe of the defendant, enter a judgment of non pros against the plaintiff. See Pa.R.C.P. 1042.6. ¶ 7 In support of her first argument, Ditch contends that her original complaint and amended complaint do not assert a professional negligence claim necessitating a certificate of merit under Rule 1042.3. Brief for Appellant at 10-11. While Ditch does not dispute that Waynesboro qualifies as a health care provider as defined by the MCARE Act, she argues that the complaint sets forth a claim of only ordinary negligence against Waynesboro under which no certificate of merit is needed. Brief for Appellant at 10-11. ¶ 8 Ditch likens her case to a “slip and fall” claim such as an allegation that a hospital negligently waxed a hallway which caused a person to fall and sustain injuries. Brief for Appellant at 11. Ditch further contends that since neither the original complaint nor the amended complaint asserts that Waynesboro deviated from an “accepted professional standard,” she has not raised a professional negligence claim. Brief for Appellant at 11. Ditch does not provide any support for her claim aside from citing to Pa.R.C.P. 1042.3. Brief for Appellant at 10-11. ¶ 9 Here, Ditch’s complaint sets forth a negligence claim against Waynesboro and by extension, its employees. Ditch does not specify in her original complaint or amended complaint which employees of Waynesboro were responsible for transporting Verdier before her fall. Ditch contends that Waynesboro was negligent for failing to properly restrain Verdier while transporting her from the emergency room to a hospital room and leaving Verdier unattended before the fall. See Original Complaint, 2/17/04, at 2-3; Amended Complaint, 1/20/05, at 2-3. Ditch also avers that Waynesboro failed to hire competent staff or properly train the staff with regard to proper procedures in transporting patients in her original complaint. See Original Complaint, 2/17/04, at 2-3. ¶ 10 In order to determine what theory of liability Ditch is asserting, this Court must examine the averments she makes in her complaint. See Grossman v. Barke, 868 A.2d 561, 568 (Pa.Super.2005). Such a review “raises a question of law as to which our standard of review is de novo and our scope of review is plenary.” Hosp. and Healthsystem Ass’n of Pennsylvania v. Dept. of Pub. Welfare, 585 Pa. 106, 888 A.2d 601, 607 n. 12 (2005). Here, the trial court concluded that Ditch’s averments in both the original complaint as well as the amended compliant raised a medical malpractice claim against Waynesboro. T.C.O., 11/21/05, at 5. ¶ 11 Medical malpractice is defined as the “unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (2003). “[T]o prevail in a medical malpractice action, a plaintiff must ‘establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of the harm.’ ” Id. (quoting Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997)). Thus, the basic elements of medical malpractice and ordinary negligence are the same, although medical malpractice has some distinguishing characteristics. See Grossman, 868 A.2d at 566. The Gross-man Court drew the distinction between ordinary negligence and medical malpractice as follows: A medical malpractice claim is distinguished by two defining characteristics. First, medical malpractice can occur only within the course of a professional relationship. Second, claims of medical malpractice necessarily raise questions involving medical judgment. Claims of ordinary negligence, by contrast, raise issues that are within the common knowledge and experience of the [fact-finder]. Therefore, a court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or medical malpractice: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions. Id. at 570 (quoting Bryant v. Oakpointe Villa Nursing Centre, 471 Mich. 411, 684 N.W.2d 864, 871 (2004)). Therefore, “where a complaint is predicated upon facts constituting medical treatment, that is, when it involves diagnosis, care and treatment by licensed professionals, the action must be characterized as a professional negligence action.” Yee v. Roberts, 878 A.2d 906, 912 (Pa.Super.2005) (internal citations and quotation marks omitted); cf. Estate of Swift v. Northeastern Hosp. of Philadelphia, 456 Pa.Super. 330, 690 A.2d 719, 723 (1997) (concluding complaint alleging bodily injury as a result of a slip and fall in hospital set forth claim of premises liability and not hospital malpractice). Our Court has further found that the hiring, training, supervising, and monitoring of employees who assist with the care and treatment of a health care professional’s patients is considered an integral part of providing professional services. See Yee, 878 A.2d at 912-13; American Rehab, and Physical Therapy, Inc. v. American Motorists Ins. Co., 829 A.2d 1173, 1177-78 (Pa.Super.2003), rev’d on other grounds, 578 Pa. 154, 849 A.2d 1202 (2004). ¶ 12 Here, the original complaint and the amended complaint do not specify that a professional liability claim is being raised. However, looking at the aver-ments made by Ditch in the complaint as a whole, we agree with the trial court’s conclusion that Ditch raises a professional negligence claim. In both the original complaint and the amended complaint, Ditch avers that “Verdier suffered a stroke and was transported to Waynesboro Hospital where she was seen in Waynesboro Emergency Department.” See Original Complaint, 2/17/04, at 2; Amended Complaint, 1/20/05, at 2. Additionally, Ditch avers that a “Waynesboro employee was transporting Catherine Verdier from the Emergency Department to a room in the hospital for further treatment.” See Original Complaint, 2/17/04, at 2; Amended Complaint, 1/20/05, at 2. Both complaints also aver that Waynesboro did not properly restrain Verdier during transport and that a Waynesboro employee left Verdier unattended before her fall. See Original Complaint, 2/17/04, at 2-3; Amended Complaint, 1/20/05, at 2-3. ¶ 13 Ditch likens her claim to one of “slip and fall.” Brief for Appellant at 11. We disagree. Verdier was at the hospital to receive medical treatment for her stroke from Waynesboro, and its employees. It was during the course of treatment that someone in the emergency room with medical knowledge made the decision to transport Verdier to a regular hospital room. Furthermore, the decision was made to transport Verdier without restraints. See Grossman, 868 A.2d at 571 (stating that consideration of medical condition in preparation of medical services implicates medical judgment); see also Banfi v. American Hosp. for Rehab., 207 W.Va. 135, 529 S.E.2d 600, 606-07 (2000) (noting that the decision of whether to restrain a patient is a technical medical determination). “These decisions and actions were an integral part of providing medical treatment and, on some level, implicate medical judgments.” T.C.O., 11/21/05, at 5. Our Court has found that the actions of employees who assist with the care and treatment of a health care professional’s patients form an integral part of providing professional services. See Yee, 878 A.2d at 912-13. Here, Ditch does not aver that Verdier was not receiving medical treatment at the time she was being transferred from the emergency room to a hospital room. Moreover, Ditch, while not explicitly identifying who transported Verdier, does indicate an agent, servant or employee of Waynesboro was at fault. Reviewing Ditch’s entire complaint, we conclude that the complaint should be characterized as one sounding in medical malpractice because “the conduct at issue constituted an integral part of the process of rendering medical treatment” to Verdier. Grossman, 868 A.2d at 570 (citation omitted); see also Yee, 878 A.2d at 913 (“The ultimate and unassailable fact is that in the case at bench, the injury caused to [the patient] occurred during, and as a direct result of the performance of professional services.”) (citation omitted). ¶ 14 Ditch has provided no support for her assertion that this claim is similar to a “slip and fall” case in a hospital. In fact, Ditch’s only support for her assertion is that expert testimony is needed to prove a medical malpractice case. Reply Brief for Appellant at 7. Ditch claims that expert testimony is not needed in the case at bar as a jury can determine, without assistance of an expert, that Waynesboro was negligent for failing to prevent Verdier’s fall. Reply Brief for Appellant at 7. Ditch argues accordingly that she has raised a claim sounding in ordinary negligence. Reply Brief for Appellant at 7. We are not persuaded by Ditch’s argument as the Grossman Court acknowledged that “in a negligence suit characterized as ‘medical malpractice,’ expert testimony is not always required if the alleged negligence is obvious or within the realm of a layperson’s understanding.” Grossman, 868 A.2d at 567. It is only when the hospital’s negligence is not obvious must a plaintiff “establish through expert testimony that a hospital’s acts deviated from an accepted standard of care and that the deviation was a substantial factor in causing plaintiffs harm.” Id. Therefore, the need for expert testimony in a medical malpractice claim will rest upon the facts and averments of the individual case. See id. ¶ 15 Here, Ditch avers that Waynesboro did not properly restrain Verdier during transport, that an agent, servant, or em ployee of Waynesboro left Verdier unattended before her fall, and that Waynes-boro failed to properly train its employees in the proper procedures in transporting patients. See Original Complaint, 2/17/04, at 2. We conclude that these averments would require expert testimony. While the complaint states Verdier was in the hospital because of a stroke, it is unknown whether she was conscious or had any mobility upon being moved by Waynesboro employees from the emergency department to the hospital room. A layperson’s lack of understanding of the effects of a stroke, the procedures in treating a stroke victim, as well as moving and monitoring them would necessitate expert testimony in this case. Moreover, while our Courts have not explicitly reached the issue of whether expert testimony is needed to determine whether a patient should be restrained, a review of other jurisdictions reveals a majority have concluded that it is a complex medical determination which requires expert testimony to educate juries as to the proper standard of care. See Banfi, 529 S.E.2d at 606-07 (collecting cases and stating that the decision to restrain a patient is a technical medical determination requiring expert testimony); Treaster v. HealthSouth Corp., 442 F.Supp.2d 1171, 1181 (D.Kan.2006); cf. Bennett v. Winthrop Cmty. Hosp., 21 Mass.App.Ct. 979, 489 N.E.2d 1032, 1035 (1986) (stating that courts must look at facts of the individual case in deciding whether expert testimony is required on issue of patient restraints). As such, we conclude that expert testimony would be needed under these individualized facts to determine the proper manner in moving stroke patients, whether they have a propensity of falling down, whether they should be restrained, and whether they can be left unattended during the move. See Grossman, 868 A.2d at 571 (concluding expert testimony is required to explain to the jury the impact of the plaintiffs medical condition on her ability to stay safely seated on an examination table). ¶ 16 Ditch also maintains that because she is unsure which individuals were transporting Verdier at the time of her fall, a non-professional could have been responsible for the fall. Reply Brief for Appellant at 8. Ditch provides no case law to support her claim and furthermore, does not distinguish the rationale of Yee that the injury “occurred during, and as a direct result of the performance of professional services.” Yee, 878 A.2d at 913 (citation omitted). As such, we find no merit in Ditch’s first argument and conclude that she should have filed a certificate of merit within sixty days of filing the original complaint. ¶ 17 In support of her second question, Ditch contends that Waynesboro was obligated to raise the issue of whether the complaint asserts a professional liability claim by way of preliminary objections. Brief for Appellant at 12. Ditch argues that by not doing so, Waynesboro has waived its objection to the certificate of merit requirement under Pa.R.C.P. 1042.2(b). Brief for Appellant at 14-15. Ditch argues accordingly that the trial court erred in granting Waynesboro’s praecipe for entry of judgment of non pros based upon the failure to file a certificate of merit. ¶ 18 When reviewing a petition to open and/or strike a judgment of non pros pursuant to Pa.R.C.P. 1042.6, our Court “may reverse the decision of the trial court only if we find that the trial court abused its discretion in reaching its determination.” Yee, 878 A.2d at 910. “It is well-established that a motion to strike off a judgment of non pros challenges only defects appearing on the face of the record and that such a motion may not be granted if the record is self-sustaining.” Varner, 890 A.2d at 1072 (citation omitted). ¶ 19 We begin by reviewing Pa.R.C.P. 1042.2, which reads in relevant part: (a) A complaint shall identify each defendant against whom the plaintiff is asserting a professional liability claim. (b) A defendant may raise by preliminary objections the failure of the complaint to comply with subdivision (a) of this rule. Note: The filing of preliminary objections raising failure of a pleading to conform to rule of court is the procedure for bringing before the court the issue whether the complaint is asserting a professional liability claim. Pa.R.C.P 1042.2. “A plain reading of Pa. R.C.P. 1042.2(b) is permissive in that a defendant ‘may1 raise by preliminary objection the failure of a plaintiff to comply with subpart (a) of the rule which indicates that the plaintiff ‘shall’ identify each defendant against whom the plaintiff is bringing a professional liability claim.” Varner, 890 A.2d at 1077. ¶ 20 Ditch cites to Herrmann v. Pristine Pines of Franklin Park, Inc., 64 Pa. D. & C.4th 14 (2003) to support her interpretation of Rule 1042.2. In Herrmann, the Court of Common Pleas of Alegheny County found that a defendant must raise the issue of the certificate of merit requirement through preliminary objections. See id. at 20. The common pleas court concluded that a failure to do so will result in the defendant waiving its claim. See id. ¶ 21 First, “[w]e recognize that common pleas court decisions are not binding on appellate courts.” Makozy v. Makozy, 874 A.2d 1160, 1173 n. 7 (Pa.Super.2005) (citation omitted). Second, this common pleas decision has been explicitly rejected by our Court in both Varner and Yee. The Yee Court found that it was not persuaded by the result found in Herrmann “that the Supreme Court intended to require the filing of preliminary objections as a prerequisite to the filing of a praecipe for judgment of non pros in an action based on professional negligence where the plaintiff fails to timely file a certificate of merit.” Yee, 878 A.2d at 911 n. 7. Our Court further stated that the filing of preliminary objections is irrelevant when the plaintiff has set forth a professional negligence claim and it is his duty to obtain a valid certificate of merit within sixty days of filing the complaint. See id. at 910; Dobos v. Pennsbury Manor, 878 A.2d 182, 184-86 (Pa.Cmwlth.2005) (concluding that complaint raised a professional negligence claim against a licensed health care provider and thus plaintiff was required to provide a certificate of merit). See also Varner, 890 A.2d at 1075-77 (reaffirming Yee and Dobos in rejecting the holding of Herrmann). ¶ 22 Similarly, here, the averments in Ditch’s complaint establish that her claim was grounded in professional negligence and made against a licensed professional. As such, Waynesboro does not need to raise preliminary objections in order to file a praecipe for judgment of non pros. See Varner, 890 A.2d at 1077 (concluding act of filing a professional negligence complaint triggers obligation to file a certificate of merit). When Ditch failed to file a certificate of merit, Waynesboro properly followed the procedures set forth in Rule 1042.6, resulting in the trial court entering a judgment of non pros. Accordingly, we find no merit in Ditch’s second question. ¶ 23 In support of her third question, Ditch contends that the filing of her “amended complaint effectively withdraws the original complaint and forecloses all challenges to the original complaint.” Brief for Appellant at 15. Ditch argues accordingly that the filing of the amended complaint foreclosed Waynesboro’s ability to seek a judgment of non pros based upon the original complaint. Brief for Appellant at 17. We disagree. Ditch’s argument does not comport with this Court’s decisions in O’Hara v. Randall, 879 A.2d 240 (Pa.Super.2005), and Hoover v. Davila, 862 A.2d 591 (Pa.Super.2004). ¶ 24 In both O’Hara and Hoover, our Court found that the certificate of merit must be filed within sixty days of the filing of the original complaint, notwithstanding the filing of preliminary objections and/or an amended complaint. See O’Hara, 879 A.2d at 245; Hoover, 862 A.2d at 594. In reaching its decision, our Court interpreted the language found in Pa.R.C.P. 1042.3(a) which states in relevant part: “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit....” Pa.R.C.P. 1042.3(a). Our Court found that “the term ‘filing’ refers to the ‘initial commencement of an action,’ ie., the date on which the initial complaint was delivered to court personnel.” O’Hara, 879 A.2d at 245 (quoting Hoover, 862 A.2d at 594). Therefore, “the filing of an amended complaint does not afford the plaintiff an additional sixty days in which to file a certificate of merit.” O’Hara, 879 A.2d at 245. ¶ 25 Ditch attempts to distinguish O’Hara and Hoover from the case at bar by claiming the plaintiffs in those cases specifically asserted medical malpractice claims while she does not raise a professional negligence claim in either her original or amended complaint. Brief for Appellant at 18. We find no merit in this assertion as we have already concluded that Ditch’s original complaint sounded in professional negligence. The amended complaint filed by Ditch does not circumvent her duty to file within sixty days of the original complaint, a certificate of merit indicating “that there ‘exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about ... ’ the injuries suffered by [Verdier].” Yee, 878 A.2d at 910 (quoting Pa.R.C.P. 1042.3(a)(1)). Since Ditch raised a professional negligence claim in her original complaint, she was obligated to file a certificate of merit within sixty days of her fifing of the original complaint. As Ditch failed to do so, we find no merit in her third question. ¶26 In support of her fourth question, Ditch contends that “[ejquitable exceptions apply to the certificate of merit requirement[,]” which would excuse her from the obligation to file one. Brief for Appellant at 18. First, Ditch argues that her original complaint and amended complaint did not assert claims of professional liability against Waynesboro. Brief for Appellant at 21. Second, Ditch argues that Waynesboro did not file a second set of preliminary objections to the amended complaint arguing that it failed to conform to Pa.R.C.P. 1042.2. Brief for Appellant at 21. Third, Ditch argues that no dispute existed as to whether her claim was grounded in original negligence or professional negligence as counsel for Waynesboro represented to counsel for Ditch that they would be fifing an answer to the amended complaint. Brief for Appellant at 21. ¶ 27 Our Supreme Court recently concluded that a plaintiff who fails entirely to file a certificate of merit and against whom a Rule 1042.6 judgment of non pros is entered still has the opportunity to demonstrate that his failure to file a certificate should be excused. See Womer v. Hilliker, 908 A.2d 269, 279 (Pa.2006). In Womer, the plaintiff took no steps to file a certificate of merit in accordance with Rule 1042.3. See id. at 272. Upon a praecipe of the defendant, the trial court entered a judgment of non pros pursuant to Rule 1042.6 for failing to file the certificate of merit. See id. The plaintiff immediately filed a motion to open the judgment based upon the fact that he had served an expert report on defendant Hilliker prior to Rule 1042.3’s time limit having expired, that this information included everything Rule 1042.3 required, that Hilliker was not prejudiced, and that counsel’s oversight or mistake caused the omission. See id. at 272-73. The trial court denied the motion; however, the Superior Court of Pennsylvania found the plaintiff had provided a reasonable excuse and had substantially complied with the rule, and reversed the trial court. See id. at 274-76. The Supreme Court of Pennsylvania found that the plaintiff had not provided a reasonable excuse for his failure to file the certificate of merit and therefore reversed our Court’s decision. See id. at 279-80. ¶ 28 In reaching its conclusion, the Court found that Rule 1042.3(a) “is subject to equitable considerations.” Id. at 279. Initially, the Court found there to be a difference in substantially complying with the rule and not complying with the rule at all. See id. at 276-78. If a plaintiff has substantially complied with the rule, such as presenting a defective certificate of merit, the trial court would analyze the case under Pa.R.C.P. 126. See id. at 276-77. Rule 126 states that “[t]he court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. 126. The Supreme Court found that a plaintiff who did not file a certificate of merit presented a situation of complete non-compliance, and Rule 126 is not an available remedy. See Womer, 908 A.2d at 277-78. However, a plaintiff, who does not comply with the rule of fifing a certificate of merit at all and against whom a judgment of non pros pursuant to Rule 1042.6 has been entered, may still seek relief under Pa.R.C.P. 3051. See id. at 279. Rule 3051, which allows a trial court to grant relief from a judgment of non pros, states: Rule 3051. Relief from Judgment of Non Pros (a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition. (b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. Pa.R.C.P. 3051. The Court in Womer, analyzing the case under Rule 3051 since the plaintiff had not filed a certificate of merit, concluded that the plaintiff had not proffered reasonable excuses to gain relief. See Womer, 908 A.2d at 280. ¶ 29 As in Womer, Ditch has not complied with the certificate of merit requirement following her fifing of the original complaint. See Womer, 908 A.2d at 278. As such, we must address Ditch’s fourth question for relief from a judgment of non pros for failing to file a certificate of merit under the confines of Rule 3051. See id. at 279. At the outset, we note that “[i]t is well-settled that the ruling that a trial court makes under Pa.R.C.P. No. 3051 is reviewed on appeal for an abuse of discretion.” Id. (citation omitted). “This means that the trial court’s decision will be overturned only if reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.” Id. (citation omitted). ¶ 30 While Ditch does not explicitly cite to Rule 3051, she attempts to provide reasonable explanations for her failure to file a certificate of merit. Brief for Appellant at 20-21. To support her above claims, Ditch cites to Almes v. Burket, 881 A.2d 861 (Pa.Super.2005). In Aimes, our Court found that the plaintiff had proffered reasonable excuses for failing to file a timely certificate of merit sufficient to open a judgment of non pros pursuant to Pa. R.C.P. 3051, where plaintiffs counsel learned his mother-in-law died and her burial was scheduled for the day the certificate of merit was due. 881 A.2d at 866. Our Court was “not prepared to assert that an attorney who forgets that the certificate was due or who fails to take the above mentioned actions when faced with a family crisis like the one presented here is so derelict in his obligations that the oversight should not be excused.” Id. The Court found that the plaintiff had met all three prongs of Rule 3051. See id. ¶ 31 Here, we find Ditch’s proffered reasons for failing to file a certificate of merit do not reach the level of the reason found in Aimes. See Yee, 878 A.2d at 909-11 (finding that plaintiffs claim that delay in filing certificate of merit was due to defendant’s filing of preliminary objections did not present a legitimate excuse for opening a judgment of non pros); see also Womer, 908 A.2d at 279-80 (finding excuses proffered by plaintiff for failing to file a certificate of merit were not reasonable). Accordingly, we conclude that the trial court did not abuse its discretion in denying Ditch’s motion to open and/or strike the judgment of non pros in favor of Waynes-boro. Therefore, we find no merit in Ditch’s fourth question. ¶ 32 For the foregoing reasons, we affirm the trial court’s order. ¶ 33 Order AFFIRMED.

OPINION BY Judge SMITH-RIBNER. The Court of Common Pleas of Jefferson County upheld the denial by t he Appeals of Jefferson County (Board of Appeals) of the request for real estate tax exemption sought by WRC North Fork Heights, Inc. (WRC). The following questions are presented in this appeal: (1) whether the trial court erred by requiring WRC first to satisfy the judicial test for exemption delineated in Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985) (HUP), rather than deciding only whether WRC satisfied the specific statutory test for exemption as a federally subsidized housing provider under Section 204(a)(3) of The General County Assessment Law (Assessment Law), Act of May 22, 1933, P.L. 853, as amended, 72 P.S. § 5020-204(a)(3); (2) if not, whether the trial court erred by requiring WRC to show that it satisfied the judicial test in HUP and its progeny rather than criteria in the Institutions of Purely Public Charity Act (Charity Act), Act of November 26, 1997, P.L. 508, 10 P.S. §§ 371-385; and (3) whether it erred in concluding that WRC did not satisfy the HUP test. I WRC operates a fifty-six-unit, low-income housing facility for the elderly known as North Fork Heights in Brookville. WRC appealed its assessment to the Board of Appeals asserting entitlement to exemption under Section 204(a)(3) of the Assessment Law, which the Board of Appeals denied. Before trial on WRC’s appeal to the trial court, the parties stipulated that WRC participates in the United States Department of Housing and Urban Development (HUD) Section 202 Program of Housing for the Elderly or Handicapped under the Housing Act of 1959, 12 U.S.C. § 1701q, as amended (Section 202 Program). The Section 202 Program provides a capital advance to finance construction of a housing project and periodic operating subsidies to fill the gap between the cost of elderly housing and the rent that low-income residents can afford, with the capital advance functioning as an interest-free loan on which no payments are due so long as the housing meets program requirements for the next forty years. Under the program 100 percent of WRC’s units must be occupied by elderly or handicapped persons who qualify for and receive federal subsidies, and the units are so occupied. WRC is continually monitored by HUD to assure compliance with program requirements, and every month WRC submits a Housing Owner’s Certification & Application for Housing Assistance Payments to HUD. WRC’s articles of incorporation prevent any net earnings from inuring to the benefit of or being distributed to any of its members, officers, directors or other individuals. Frances Coons, President and CEO of WRC’s parent company WRC Senior Services, testified that WRC helps residents access medical, social, emotional and spiritual services necessary to meet their needs. The trial court noted that the Pennsylvania Constitution establishes the framework for entitlement to real estate tax exemption. Article VIII, Section 2 of the Constitution provides in part as follows: “(a) The General Assembly may by law exempt from taxation: ... (v) Institutions of purely public charity, but in the case of any real property tax exemptions only that portion of real property of such institution which is actually and regularly used for the purposes of the institution.” The trial court also quoted the amendment to Section 204(a)(3) of the Assessment Law, which was added by Section 1 of the Act of December 14,1992, P.L. 886: any charitable organization providing residential housing services in which the charitable nonprofit organization receives subsidies for at least ninety-five per centum of the residential housing units from a low-income Federal housing program shall remain a “purely public charity” and tax exempt provided that any surplus from such assistance or subsidy is monitored by the appropriate governmental agency and used solely to advance common charitable purposes within the charitable organization.... WRC claimed that it met the requirements of Section 204(a)(3) and that it therefore was automatically deemed to be a “purely public charity” and did not have to satisfy the five-prong test for exemption under the Charity Act. The trial court cited the decision rendered by the Supreme Court in Community Options, Inc. v. Board of Property Assessment, Appeals and Review, 571 Pa. 672, 813 A.2d 680 (2002), for the proposition that the question of whether an entity is a “purely public charity” under the Constitution is a question that must be addressed before the question of whether it meets statutory qualifications for exemption. The five-prong test for determining whether an entity is exempt under Article VIII, Section 2(a)(v) as a purely public charity was provided in HUP as follows: [A]n entity qualifies as a purely public charity if it possesses the following characteristics. (a) Advances a charitable purpose; (b) Donates or renders gratuitously a substantial portion of its services; (c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (d) Relieves the government of some of its burden; and (e)Operates entirely free from private profit motive. HUP, 507 Pa. at 21-22, 487 A.2d at 1317. The Board of Appeals contended that WRC did not meet the second and fourth prongs of the HUP test. The trial court concluded that the evidence did not show that WRC donates or renders gratuitously a substantial portion of its services; rather, all of the residents pay rent that is then subsidized by the federal government. Furthermore, WRC was not abating government costs and did not meet the fourth prong as well. As to the fourth prong, this Court had stated: “ ‘Tax exempt status is properly reserved for organizations which abate government costs, not for those who perform government responsibilities as independent contractors.’ ” Community Options, Inc. v. Board of Property Assessment, Appeals and Review, 764 A.2d 645, 650-651 (Pa.Cmwlth.2000) (quoting Community Service Found., Inc. v. Bucks County Board of Assessment and Revision of Taxes, 672 A.2d 373, 376 (Pa.Cmwlth.1996)), rev’d in part, 571 Pa. 672, 813 A.2d 680 (2002). Accordingly, the trial court ordered that WRC was not entitled to tax exemption. II WRC first contends that the trial court misapplied the test for entitlement to real estate tax exemption for federally subsidized housing providers by effectively and improperly declaring the statutory test contained in the 1992 amendment to Section 204(a)(3) of the Assessment Law to be unconstitutional. WRC asserts that it is a charitable organization, and its Articles of Incorporation state that it is organized exclusively for charitable and educational purposes, with power to provide elderly and handicapped persons with housing facilities and services to meet their social and emotional needs. The parties stipulated that all of WRC’s units are occupied by individuals receiving federal subsidies, and WRC introduced confirming Certification Forms for 2004; thus the requirement under Section 204(a)(3) that ninety-five percent receive federal subsidies is met. They also stipulated that HUD continually monitors WRC for its Program compliance. Finally, Susan Schmader, Director of Finance for WRC Senior Services, testified that any surplus that WRC might experience would be rolled back into the organization or, if at certain levels, would be subject to HUD disposition. WRC argues that the legislature is authorized by the Constitution to exempt federally subsidized housing from real estate taxation. Implicit in the Article VIII, Section 2(a) authority for the legislature to exempt institutions of “purely public charity” is the ability of the legislature to define that term. WRC cites School Districts of Deer Lakes and Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (1975), for the proposition that interpretive language placed on the Constitution by the legislature in the course of enactment of statutes is entitled to great weight. In Heller v. Depuy, 2 Pa.Cmwlth. 196, 277 A.2d 849 (1971), this Court held that the legislature had the authority to define “public utilities” in Article VIII, Section 4, which it did in a former act relating to public utility realty tax; the addition to the usual definition was seen as binding upon all, including the courts. In addition, the Supreme Court has recognized that “[t]he constitution does not, of itself, exempt any property; it merely permits the legislature to do so within certain limits.” Donohugh’s Appeal, 86 Pa. 306, 309 (1878). There is a presumption that the legislature does not intend to violate the Constitution. Section 1922(3) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(3). According to WRC, to disregard the test under Section 204(a)(3) of the Assessment Law would be a de facto determination that the 1992 amendment was unconstitutional. WRC urges the Court to accept its view that the enactment of the 1992 amendment to Section 204(a)(3) of the Assessment Law overruled all case law requiring federally subsidized housing providers to meet a “judicial test,” i.e., the HUP test, for exemption. In Four Freedoms House of Philadelphia, Inc. v. City of Philadelphia, 443 Pa. 215, 279 A.2d 155 (1971), the Supreme Court concluded that a nonprofit corporation created by labor unions to provide low-cost housing for the elderly, which constructed a facility with 100 percent financing from Section 202 of the Housing Act of 1959, with age and income criteria and rents less than commercial rates, with officers and directors serving without pay and with no power to accumulate a profit, was entitled to exemption. In 1985 the Supreme Court established the “HUP test.” In 1987 the Supreme Court decided G.D.L. Plaza Corp. v. Council Rock School District, 515 Pa. 54, 526 A.2d 1173 (1987). The facility at issue, financed through the Section 202 Program, provided residential housing to persons at least sixty-two years of age, with limited incomes and assets. The facility received monthly housing payments from the federal government to make up the difference between costs and rent. This Court had applied the HUP test and concluded that the facility met the first, third and fifth prongs but that it did not meet the second and fourth. The Supreme Court on appeal stated that this Court may have erred in overlooking findings as to the extent of services provided and overestimating the degree to which an institution must relieve the government of some of its burden. It distinguished Four Freedoms House because there the mortgage repayment was accomplished solely through payments of rents at less than market rates. In G.D.L. Plaza the Supreme Court noted that Section 204(a)(3) of the Assessment Law requires an entity to be “founded, endowed, and maintained” by public or private charity. In that case, all operating costs not covered by rents paid by tenants were borne by federal government subsidies. The' Section 202 mortgage loan program and the housing program pursuant to Section 8 of the Housing Act of 1937, as amended, 42 U.S.C. § 1437f, were perceived as a design to encourage nonprofit corporations to undertake the work of increasing housing supply without assuming financial risk. Exemption was denied. WRC emphasizes that the cases above were decided before the 1992 amendment to Section 204(a)(3) of the Assessment Law. WRC asserts that the legislature for many years failed to define “purely public charity” and that the courts filled the void, as in the HUP case. Although acknowledging that the Supreme Court has ultimate authority to interpret the Pennsylvania Constitution, WRC also states that the Supreme Court has recognized that Article VIII, Section 2 is not self-executing but requires legislative standards for implementing tax exemptions. WRC’s central contention is that through the 1992 amendment to Section 204(a)(3) the legislature exercised its constitutional power and chose to codify real estate tax exemption law and to provide a definition of “purely public charity” in the context of federally subsidized housing providers. WRC submits that the courts’ role is limited to determining whether the statute was passed pursuant to constitutionally delegated authority and consistent with constitutional requirements for valid legislation. Alternatively, if a five-part test must be applied, it should be that set forth in the Charity Act, adopted in 1997 as an exercise of the legislature’s constitutional authority. The Act approved the categories outlined in the HUP test and is in many ways a codification of it, although the Act provides more objective and measurable criteria to evaluate satisfaction of the five elements. Finally, WRC maintains that the trial court erred in concluding that it does not meet the five-part test for exemption as a purely public charity. WRC contends that whether it donates or renders gratuitously a substantial portion of its services should have been evaluated under the Charity Act. Section 5(d)(l)(iv), 10 P.S. § 375(d)(l)(iv), specifies: Financial assistance or uncompensated goods or services to at least 20% of those receiving similar goods or services from the institution if at least 10% of the individuals receiving goods or services from the institution either paid no fees or fees which were 90% or less of the cost of the goods or services provided to them, after consideration of any financial assistance provided to them by the institution. Section 5(d)(l)(v), 10 P.S. § 375(d)(l)(v), specifies “Uncompensated goods or services which in the aggregate are equal to at least 5% of the institution’s costs of providing goods or services.” WRC argues that the evidence shows that all residents pay fees less than WRC’s cost to operate, so more than twenty percent pay fees that are ninety percent or less of the cost to WRC. Also, the total of rents plus federal subsidies, it asserts, is ninety percent or less of the institution’s costs. Its IRS form for fiscal year 2002-2003 showed total revenues of $291,231 and total expenses of $405,271. The difference of $114,040 is uncompensated goods or services, although the Board of Appeals points out that WRC claimed $121,673 in depreciation for that year for a positive net cash flow of $7633. There is no dispute that WRC benefits a substantial and indefinite class of persons who are legitimate subjects of charity. WRC states that it relieves government of some of its burden by providing housing that the government would have to provide, directly or indirectly or by assuring that a similar institution exists, see Section 5(f)(1), 10 P.S. § 375(f)(1), and it receives, on a regular basis, payments from the federal government for housing services that are less than the full costs for providing those services. See Section 5(f)(3), 10 P.S. § 375(f)(3); Lutheran Home at Topton v. Schuylkill County Board of Assessment Appeals, 782 A.2d 1 (Pa.Cmwlth.2001) (stating that a facility which subsidized rents of some residents and maintained a policy of keeping residents on after their assets ran out relieved government of some of its burden). WRC operates free from profit motive. The Board of Appeals responds that the trial court properly applied the five-prong HUP test in determining that WRC was not entitled to exemption. The Board argues that the second prong was not met as the evidence at trial shows that residents pay rent, and the difference between that and fair market value is then paid to WRC by a subsidy through the Section 202 Program. The only other testimony was that WRC helps residents access services for their medical, social and emotional needs, with no testimony as to the extent of such help or even if it is provided without charge. Regarding the fourth prong, the Board of Appeals cites G.D.L. Plaza Corp., where the entire funding of the project was derived from rents paid by residents and federal government subsidies, and it states that in Community Options, Inc. the Supreme Court ruled that the amount of charitable contributions that are made to an entity seeking tax exemption is “crucial” in the analysis of whether it relieves government of some of its burden, and the evidence here shows that WRC receives no charitable contributions. The Board of Appeals disputes WRC’s contention that it is exempt from real estate taxes simply because it meets requirements of Section 204(a)(3) of the Assessment Law. This Court held in its decision in Community Options, Inc. that an entity seeking tax exemption must first be measured by the constitutional language before the question of whether it meets a statutory exemption may be reached, which was reaffirmed unequivocally by the Supreme Court. Regarding WRC’s assertion that the trial court should have applied the test from the Charity Act, the Board of Appeals contends that this issue is waived because WRC did not present it to the trial court, which noted WRC’s claim that it was not required to satisfy the test under that Act. Issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Pa. R.A.P. 302(a). Nevertheless, the Supreme Court’s decision in Community Options, Inc. applied the HUP test to determine an exemption issue well after the Charity Act became effective. If the issue is not waived, the Board argues that WRC did not meet the statutory tests it cited because they require proof of the costs of goods or services rendered, and WRC offered no proof of its costs in assisting residents to access services. Ill The Court first addresses the contention of WRC that the trial court erred by requiring it to meet the HUP test before any statutory test, including that in Section 204(a)(3) of the Assessment Law, may be considered. The Supreme Court has been entirely consistent on this issue. In Community Options, Inc., the trial court held that the institution would not qualify for an exemption under the HUP test for 1996 and 1997, but it would qualify under the Charity Act for 1998 and later years. The Supreme Court pointedly held: “An entity seeking a statutory exemption for taxation must first establish that it is a ‘purely public charity’ under Article VIII, Section 2 of the Pennsylvania Constitution before the question of whether that entity meets the qualifications of a statutory ex emption can be reached.” Community Options, Inc., 571 Pa. at 676, 813 A.2d at 683 (citing G.D.L. Plaza; HUP). The Supreme Court first concluded that the entity involved there qualified as a “purely public charity” under HUP, and then it considered whether it met the requirements of the Charity Act. The Supreme Court has never endorsed disregarding the constitutional analysis under HUP and proceeding solely under a statute to determine whether an entity seeking tax exemption is a “purely public charity,” and this Court may not endorse such an approach here whether under Section 204(a)(3) of the Assessment Law or under the Charity Act. In School Districts of Deer Lakes and Allegheny Valley the Supreme Court reiterated that a legislative interpretation of the Constitution is entitled to great weight but that it cannot be conclusive upon the courts in deciding cases because judges no less than legislators are sworn to uphold the fundamental law. Cases such as Heller and Ray v. Commonwealth, 442 Pa. 606, 276 A.2d 509 (1971), do not involve legislative interpretations of constitutional terms definitively interpreted by the High Court. Upon its review of the record, the Court agrees with the Board of Appeals that WRC waived its contentions regarding compliance with requirements of the Charity Act because it did not present them to the trial court. Nonetheless, WRC’s vague testimony that it assists residents in accessing help with medical, social, emotional and spiritual needs, with no attempt to quantify the costs incurred by WRC, could not meet the specific requirements regarding donations stated in that Act. In terms of the HUP analysis, the record lacks evidence that WRC donates or renders gratuitously a “substantial portion” of its services. As to the fourth prong of the HUP test, the Court is convinced that WRC’s facility is not like that in Four Freedoms House, where rents lower than market rate were charged and the entity did not rely on government subsidies to make up the difference. Further, in Community Options, Inc., where a private entity established group homes for mentally retarded persons, the Supreme Court stated that, although operational funding was largely provided by the government, the acquisition and renovation of housing for occupancy by persons with severe disabilities in residential neighborhoods was done without government funding. Government would have to add real estate, staff and training to accommodate these residents, and in fact the entity provided services that the government was not capable of providing. No similar circumstances exist in regard to WRC as simply a Section 202 Program housing provider. Based on clearly defined legal principles enunciated by the Supreme Court, this Court is compelled to conclude that the trial court did not err in its consideration of WRC’s real estate tax exemption case. Accordingly, the Court affirms the order of the trial court. ORDER AND NOW, this 20th day of February, 2007, the order of the Court of Common Pleas of Jefferson County is affirmed. . This Court’s review of a trial court’s order in a real estate tax exemption appeal is limited to determining whether the trial court abused its discretion, committed an error of law or made findings unsupported by substantial evidence. In re RHA PA Nursing Homes, 747 A.2d 1257 (Pa.Cmwlth.2000). . National Church Residences of Mercer County, PA, appellant in the case docketed at No. 102 C.D. 2006 and listed for argument at a later time, filed a Motion for the Court to Take Notice of Related Appeal, representing that its case involves virtually identical issues and requesting that the Court take notice of its appeal and the briefs filed therein. The Court granted the motion by order of October 5, 2006 and has reviewed the briefs filed in that appeal as well. NCR Mercer represented that the facts in its case are similar in that it owns and operates a federally subsidized housing development pursuant to Sections 202 and 8 of the Federal Housing Act, known as Buchanan Manor, and the strictly regulated nature of housing pursuant to these programs results in their looking, and acting, virtually the same. NCR Mercer raises similar arguments to those of WRC. It asserts that the constitutional analysis employed by the trial court in that case to reject the claim for real estate tax exemption (the trial court relied primarily upon G.D.L. Plaza) is contrary to the 1992 amendment to Section 204(a)(3) of the Assessment Law and provisions of the Charity Act. NCR Mercer contends that the trial court erred when it concluded that NCR Mercer does not donate or render gratuitously a substantial portion of its services. In this regard NCR Mercer notes that earlier cases had established that services need not be provided entirely free of charge, and HUP itself stated that there was no magical percentage to determine if an amount donated was “substantial”; rather, "[i]t must appear from the facts that the organization makes a bona fide effort to service primarily those who cannot afford the usual fee.” HUP, 507 Pa. at 19 n9, 487 A.2d at 1315 n9. NCR Mercer maintains that it meets the donation criterion because it makes such a bona fide effort, and its residents pay less than twenty-five percent of actual costs. Appellees Mercer County Board of Assessment Appeals and Mercer County note that NCR Mercer’s own evidence demonstrated that it is the federal government that is subsidizing the residents, with NCR Mercer serving only as a conduit. NCR Mercer further argues that the trial court erred in concluding that it does not relieve government of some of its burden. NCR Mercer notes that government historically has provided housing for the elderly. Further, it is obligated to provide safe, affordable housing to the poor, elderly and handicapped, under statements of policy in statutes such as Section 2 of the Housing Authorities Law, Act of May 28, 1937, P.L. 955, as amended, 35 P.S. § 1542 (noting the acute shortage of decent, safe and sanitary housing and providing for the creation of housing authorities). NCR Mercer was organized to provide housing for low-income elderly residents and suggests that if Buchanan Manor did not exist, the Commonwealth would have to “pick up the slack” for the housing itself. In G.D.L. Plaza, the Supreme Court stated that by undertaking the construction and day-to-day management of the complex and directly serving the needs of its residents, G.D.L. obviated the need for the government to do so. Separately, NCR Mercer argues that the trial court erred by failing to apply the presumption adopted in Section 6 of the Charity Act, 10 P.S. § 376, that a purely public charity possessing an exemption from sales and use tax complies with the criteria set forth in Section 5. The Pennsylvania Department of Revenue consistently has granted NCR Mercer exemption from sales and use taxes, and the trial court should have applied a presumption in its favor. Appellees argue that the trial court correctly relied upon G.D.L. Plaza because there, as here, all of the facility’s operating costs were covered by the federal subsidy, including real estate taxes. Amicus County Commissioners Ass’n of Pennsylvania stresses the finding of the trial court that NCR Mercer operates on a "zero-based” budget, which anticipates that annual revenues will equal annual expenditures and that HUD requires NCR Mercer to submit a budget forecasting expenses including anticipated real estate taxes. . The dissenting opinion relies heavily on the Supreme Court’s conclusion that the entity in G.D.L. Plaza met the HUP test. The dissent acknowledges, however, that G.D.L. Plaza is difficult to parse because the Supreme Court first determined that the entity was a “purely public charity” under the HUP test but then denied exemption for failure to satisfy the requirement of Section 204(a)(3) of the Assessment Law that it be "founded, endowed, and maintained by public or private charity.” The more recent case of Community Options, Inc. is clearer. As noted above, Community Options, Inc. plainly mandates that an entity must first establish that it is a "purely public charity” under Article VIII, Section 2 of the Constitution before the question of whether it meets the qualifications of a statutory exemption can be reached. At the end of Community Options, Inc. the Supreme Court referred to the municipality’s argument on cross-appeal to this Court that because the entity did not meet the HUP test it was not necessary to consider whether it met the statutory definition, with which this Court agreed. Community Options argued to the Supreme Court that this Court ignored the definition of purely public charity in the Charity Act and did not give the legislature due deference. It is that argument that the Supreme Court decided it "need not reach" because the Supreme Court had rejected this Court’s application of prior Commonwealth Court precedent to conclude that Community Options did not meet the HUP test. The Supreme Court's clear holding is that the HUP test does “trump” the Charity Act.

OPINION BY KLEIN, J.: ¶ 1 Richard M. Grillo appeals from his judgment of sentence for attempted burglary, receiving stolen property (RSP) and related charges. On August 9, 2003, Grillo was caught near the door to a house with fresh pry marks on the door. A retired police sergeant’s badge and a camera were also found in Grillo’s sport utility vehicle (SUV) at the time of his arrest for the burglary. The badge and camera were items stolen in earlier, separate burglaries in April and May 2003. ¶ 2 The essence of Grillo’s claim on appeal is that the trial court improperly denied his motion to sever the attempted burglary charge from the RSP charge; instead, the court conducted a joint trial for both crimes. Under the language of Pa.R.Crim.P. 563 (Joinder of Offense in Information) and Pa.R.Crim.P. 582 (Join-der — Trial of Separate Indictments or In-formations) these separate crimes do not meet the criterion for joinder. Therefore, we are constrained to vacate and remand for separate trials. ¶3 The language of Pa.R.Crim.P. 563 and 582 is identical, in part, and states that more than one offense may be charged in the same information and/or tried together if: (1) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (2) the offenses charged are based on the same act or transaction. Pa.R.Crim.P. 563(A); 582(A). ¶ 4 While there is no “danger of confusion” regarding the evidence of each crime under subsection (1), the evidence of the stolen badge and camera would not be admissible in the trial for attempted burglary. The Commonwealth’s claim that the badge might be used if Grillo was caught is far-fetched and would not make the items upon which the RSP charge is based admissible in the burglary case. ¶ 5 Therefore, to sustain joinder, the Commonwealth must establish that the offenses are based on “the same act or transaction.” Pa.R.Crim.P. 563(A)(2); Pa. R.Crim.P. 582(A)(2). The Commonwealth contends that because RSP is a continuing crime, having the stolen badge and camera in the SUV and attempting to break into a house are part of “the same act or transaction.” ¶ 6 We conclude that this argument runs counter to both the plain language of the Rules and case law interpreting similar language in 18 Pa.C.S.A. § 110, which discusses when prosecutions are barred by former prosecutions for the same offense. ¶7 Black’s Law Dictionary defines an act as “[sjomething done or performed,” and a transaction as “[t]he Act or an instance of conducting business or other dealings.” Here two things were done or performed — possession of stolen items found in the SUV and attempting to break into a house. Assume for a moment that there was no burglary but instead Grillo was playing basketball. Would anyone say that playing basketball and having stolen the items in the SUV are the same act or transaction? Suppose the stolen property was found in Grillo’s house. Would anyone consider that part of the same act or transaction as the attempted burglary? Likewise, breaking into a house and having proceeds of other, unrelated burglaries in your SUV are separate and distinct occurrences. ¶ 8 While there is little case law dealing with permissive joinder, there are cases dealing with similar language under section 110 (When prosecution is barred by former prosecution for different offense). Section 110 bars retrial for “any offense based on the same conduct or arising from the same criminal episode.” 18 Pa.C.S.A. § 110. That is similar to the “based on the same act or transaction” language found in Rules 563 and 582. ¶ 9 We adopt the reasoning from our Court’s decision, Commonwealth v. Lane, 442 Pa.Super. 169, 658 A.2d 1353, 1355 (1995). In Lane, the Court considered several factors in determining whether there was a single episode: 1. the temporal sequence of events; 2. the logical relationship between the acts; and B. whether they share common issues of law and fact. Here, while the camera and badge were in the SUV at the same time as the burglary was being attempted, the burglaries from which the camera and badge were the proceeds had occurred months prior. Therefore, the RSP well may have been a continuing crime for many days, while the attempted burglary was at a specific time far removed from the other burglaries. ¶ 10 There does not seem to be any relationship between the RSP and the attempted burglary, except that it may be used to show that if Grillo had proceeds from two burglaries, he is a bad person and more likely to try to commit another burglary. This is precisely why evidence of another crime is considered too prejudicial to be admissible. Evidence of other crimes is generally prohibited by Pa.R.E. 404(b), which provides that such evidence can only be admitted when the probative value outweighs the potential for prejudice. It can be admitted under Pa.R.E. 404(b)(2), but only if it is used to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absences of mistake or accident. None of those circumstances is present in the instant case. ¶ 11 There are no real common issues of fact between the RSP and the attempted burglary. The victims are different and the evidence is different. The burglary would be tried without any reference to the stolen items found in the SUV. The RSP, if tried separately, would be tried without any reference as to why the police were looking in the SUV. Therefore, there is no need to bring the facts of one crime into the trial of the other. The issues of fact are not common. ¶ 12 This Court has previously considered whether something that is a continuous crime makes it part of the same act as another crime and rejected that concept. In Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984), while executing a search warrant of a car looking for stolen motor oil and tools, the police found drugs and drug paraphernalia. This Court concluded that the offenses of theft by receiving stolen property and possession of drugs had, at best, a marginal temporal relationship, and that they did not arise from the same criminal episode merely because evidence relevant to both was found during the search. The Stewart court stated: In theory, therefore, it may be said that because both offenses were continuing, they occupied the same time frame at the moment when police searched appellant’s automobile and found not only stolen property but controlled substances as well. In actuality, however, the temporal relationship between the two offenses is less than clear. The crime of theft by receiving stolen motor oil and mechanic’s tools had its genesis in an unlawful taking which occurred during the early evening of August 16, 1980. There is no basis in the evidence here presented for finding that appellant’s possession of controlled substances commenced at the time of the theft or at the time when appellant came into possession of the stolen property. Id. at 164. In the instant case, one act is possessing stolen property in an SUV, while the other is an attempted burglary at someone’s house. These events are even less related than those in Stewart. ¶ 13 Therefore, we find that the trial court abused its discretion when it denied Grillo’s motion to sever the RSP charge from attempted burglary charges. Pres-bury, supra. Grillo is entitled to new, separate trials for the two separate offenses. ¶ 14 Judgment of sentence vacated; case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished. ¶ 15 FORD ELLIOTT, P. J., MUSMANNO and BENDER, JJ., join; TODD, J., concurs in the result. ¶ 16 ORIE MELVIN, J., files a Dissenting Opinion, in which STEVENS, LALLY-GREEN and BOWES, JJ., join. . It is well settled that a motion for severance is addressed to the sound discretion of the trial court, and that the decision reached by the trial court will not be disturbed absent a showing of manifest abuse of discretion. Commonwealth v. Presbury, 445 Pa.Super. 362, 665 A.2d 825, 827-28 (1995) (citing Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931, 936 (1992)). . Black’s Law Dictionary 26 (8th ed.2004). . Black’s Law Dictionary 1535 (8th ed.2004).

OPINION BY Judge COHN JUBELIRER. In this petition for review, George Griggs challenges the order of the Pennsylvania Board of Probation and Parole (Board) recommitting him to a state correctional institution (SCI) to serve six months backtime as a technical parole violator. The following issue is presented for our review: whether the Board failed to hold a timely violation hearing within 120 days of Griggs’s preliminary hearing when three continuances were granted in order to secure the testimony of the victim. Subsequent to filing this petition for review, Griggs filed a pro se Motion for Leave of Court to Submit a Supplemental Brief (Motion to Supplement), alleging that his appointed counsel, Virginia Mur-tha Cowley of the Public Defender’s Office of Luzerne County (Public Defender), failed to raise three issues which he intended to raise before this Court. In response, the Board filed a Motion to Suppress Petitioner’s Pro Se Supplemental Brief (Motion to Suppress), arguing that a represented prisoner may not file a pro se brief in addition to a brief filed by his counsel. For the reasons stated below, we will grant the Board’s Motion to Suppress Petitioner’s Pro Se Supplemental Brief, Deny Griggs’s Motion to Supplement, and affirm the order of the Board. I. In January 1982, the Court of Common Pleas of Philadelphia County (trial court) sentenced Griggs to ten to twenty years incarceration after he pled guilty to two counts of robbery and two counts of criminal conspiracy. (Sentence Status Summary, R. 1.) Griggs received a sentence effective date of January 12, 1991 with a minimum date of January 12, 2001 and a maximum date of January 12, 2011. (Sentence Status Summary, R. 1.) In July 2001, the Board granted Griggs parole and released him on August 27, 2001. (Order to Release on Parole/Reparole, R. 14.) On August 11, 2005, Ruby Brown provided a written statement to a Board supervisor alleging that Griggs punched her, slapped her, and threatened to kill her and her brother. (Supervision History, R. 22.) On this same day, and in reliance on Brown’s statement, Board agents arrested Griggs at his residence. (Supervision History, R. 22.) On August 22, 2005, Board agents charged him with a technical parole violation for failing to refrain from assaultive behavior. (Notice of Charges and Hearings, R. 28.) The Board then held a preliminary hearing on August 24, 2005 and found the existence of probable cause for the technical parole violation. (Preliminary/Detention Hearing Report, R. 25-27.) A violation hearing was scheduled for November 29, 2005, but later continued to December 5, 2005 because Brown did not appear. (Request for Continuation of Hearing 11/29/2005, R. 80.) The Board again continued the December 5, 2005 hearing to December 20, 2005 because of Brown’s failure to appear. (Request for Continuation of Hearing 12/5/2005, R. 31.) On December 20, 2005, the Board continued the hearing in order to enforce the subpoena against Brown. (Request for Continuation of Hearing 12/20/2005, R. 32.) On January 9, 2006, the Board filed an enforcement action against Brown in this Court in order to compel Brown to attend the violation hearing. Pennsylvania Board of Probation and Parole v. Brown (No. 9 M.D. 2006, filed Feb. 6, 2006). On February 6, 2006, this Court ordered Brown to appear and testify at Griggs’s violation hearing. on March 14, 2006 at SCI-Graterford. On March 14, 2006, the Board held Griggs’s violation hearing at which Brown appeared and testified. (Hearing Report, R. 33.) Counsel for Griggs at the time objected to the timeliness of the hearing, claiming the hearing went well beyond the 120-day limit prescribed by the Board’s regulations. (Violation Hearing Tr. 3/14/2006 at 4-5, R. 45-46.) An agent of the Board responded by noting the subpoena enforcement action. (Violation Hearing Tr. 3/14/2006 at 5-6, R. 46-47.) The Hearing Examiner deferred ruling on the objection and heard the merits of the case. On April 11, 2006, the Board recommitted Griggs to an SCI to serve six months backtime as a technical parole violator for violating condition # 5C — “failure to refrain from assaultive behavior.” (No tice of Board Decision 4/11/2006, R. 109.) Griggs filed an administrative appeal, and on May 17, 2006, the Board affirmed the revocation of parole. This petition for review followed. II. Before reaching the merits, we must first address Griggs’s pro se supplemental brief. In August 2006, the Public Defender filed a petitioner’s brief raising one issue for review before this Court. In December 2006, Griggs filed his Motion to Supplement along with a copy of his supplemental brief which addresses three additional arguments. The Board responded by filing a Motion to Suppress, arguing that Griggs is prohibited from filing a pro se brief while he is simultaneously represented by counsel. In Winters v. Pennsylvania Board of Probation and Parole, 94 Pa.Cmwlth. 236, 503 A.2d 488, 493 (1986), overruled on other grounds by Jester v. Pennsylvania Board of Probation and Parole, 141 Pa. Cmwlth. 355, 595 A.2d 748, 751 (1991), this Court disallowed the contemporaneous filing of briefs by both the prisoner and his counsel. In Winters, the prisoner challenged the Board’s order in this Court and filed a motion to dismiss his attorney as well as a pro se brief. Before issuing an opinion on the merits, this Court denied the motion to dismiss the prisoner’s attorney and quashed the pro se brief. Subsequently, the prisoner filed a motion for reconsideration. Addressing whether the Court erred in quashing the pro se brief, we recognized that to “allow both the prisoner and the counsel to represent the issues to this Court would impede review of the merits of the prisoner’s appeal.” Winters, 503 A.2d at 493. Allowing both counsel and the prisoner to proceed simultaneously would be “an absurd result.” Id. This Court held that 42 Pa.C.S. § 2501 allows either the “use of counsel in one instance,” or “at another time proceeding pro se.” Id. In a different context, the Pennsylvania Supreme Court has also addressed this same issue involving a direct appeal of a criminal conviction. In Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993), the criminal defendant attempted to file a pro se brief before the Court after his counsel filed an appellate brief. Terming this “hybrid representation,” the Court held the defendant enjoyed “no constitutional right to hybrid representation either at trial or on appeal.” Ellis, 534 Pa. at 180, 626 A.2d at 1139. Moreover, the Court addressed the policy considerations for allowing such an appeal and found the defendant “may not ... confuse and overburden the court by his own pro se filings of briefs at the same time his counsel is filing briefs on his behalf.” Id. at 184, 626 A.2d at 1141. Similarly here, Griggs may not file a pro se brief when he is currently represented by counsel who already filed a petitioner’s brief on his behalf in this Court. As both Winters and Ellis recognized, such hybrid representation impairs the efficacy of appellate advocacy and burdens the Court with competing arguments from the same party. Aptly put by the Pennsylvania Supreme Court, “[a]ppellate advocacy is measured by effectiveness, not loquaciousness.” Ellis, 534 Pa. at 183, 626 A.2d at 1140-41 (quoting Ruggero J. Aldisert, The Appellate Bar: Professional Responsibility and Professional Competence-A View From the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L.Rev. 445, 458 (1982)). Therefore, we will grant the Board’s Motion to Suppress Petitioner’s Pro Se Supplemental Brief, and proceed to address the argument raised in the Public Defender’s brief. III. Griggs claims the Board did not hold a timely violation hearing within 120 days of his preliminary hearing. The Board held the preliminary hearing on August 24, 2005, and the violation hearing did not occur until March 14, 2006, well over the 120-day limit. Because the burden is on the Board to demonstrate the timeliness of the violation hearing, Griggs argues the Board failed to sufficiently offer or explain at the violation hearing the circumstances surrounding the Board’s efforts to obtain Brown’s testimony. Griggs asserts that due to the insufficient explanation, the delay was unreasonable. Griggs asks this Court to vacate the order of the Board recommitting him to serve six months backtime. Under the Board’s regulations, 37 Pa.Code § 71.2(10), the procedures for a parolee facing charges of a technical parole violation mandate a violation hearing be held within 120 days of the parolee’s preliminary hearing. In this computation of time, 37 Pa.Code § 71.5(c)(3) excludes “[r]easonable or necessary continuances granted to, or occurrences related to, the Board or its employes.” When a parolee raises the timeliness of his violation hearing, the burden lies on the Board to demonstrate, by a preponderance of the evidence, that it timely held the hearing. Torres v. Pennsylvania Board of Probation and Parole, 765 A.2d 418, 421 (Pa.Cmwlth.2000). If the Board fails to meet its burden, the Court will, as a remedy, dismiss the parole violation charge with prejudice. Id. Applying these regulations, this Court has previously recognized continuances to be reasonable and necessary when they were based on the Board’s efforts to secure the testimony of a witness. In facts strikingly similar to the ones here, the parolee in Torres challenged the timeliness of his violation hearing when the Board held it 139 days after the preliminary hearing. Torres, 765 A.2d at 421. There, the Board continued the violation hearing three times because the Board’s subpoenaed witness failed to appear. At the last continuance, the Board pursued an enforcement action in this Court to compel the subpoenaed witness to appear. We held “the delay in this case attributable to the Board’s efforts to secure the testimony of subpoenaed witnesses was reasonable and necessary,” and, therefore, excluded that delay from the 120-day time computation. Id. at 422. In Majors v. Pennsylvania Board of Probation and Parole, 808 A.2d 296, 297 (Pa.Cmwlth.2002), the Board also continued the parolee’s violation hearing three times in order to obtain the testimony of a witness. Responding to the parolee’s argument that the Board untimely held his violation hearing, this Court excluded, from the 120-day time computation, the delay caused by the Board’s efforts to secure the testimony of its witness. Majors, 808 A.2d at 298. With that exclusion, this Court found the Board timely held the violation hearing within the 120-day window. Id. Here, the Board held Griggs’s preliminary hearing on August 24, 2005 and granted three continuances for his violation hearing on November 29, December 5, and December 20, 2005, respectively. After the Board’s enforcement action in this Court, the Board held the violation hearing on March 16, 2006, 202 days after Griggs’s preliminary hearing. Contrary to Griggs’s assertion, a Board agent countered Griggs’s objection at the violation hearing regarding the timeliness by drawing the Hearing Examiner’s attention to the subpoena enforcement proceeding which caused the continuance. (Violation Hearing Tr. 3/14/2006 at 5-6, R. 46-47.) Under both Torres and Majors, the time attributable to the Board’s efforts to secure the testimony of Brown in Griggs’s violation hearing is excluded in the time computation. The Board continued the violation hearing pending the subpoena enforcement action on December 20, 2005, and held the hearing on March 16, 2006, which amounts to 84 days. Excluding these 84 days from the time computation, the Board effectively held the violation hearing within 118 days of the preliminary hearing, rendering Griggs’s violation hearing timely under the regulations. Finding the Board timely held Griggs’s violation hearing, we affirm. ORDER NOW, February 20, 2007, Respondent’s Motion to Suppress Petitioner’s Pro Se Supplemental Brief is GRANTED and Petitioner’s Motion for Leave of Court to Submit a Supplemental Brief is DENIED. The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED. . In August 1981, the trial court sentenced Griggs to ten to twenty years incarceration for one count of burglary. (Sentence Status Summary, R. 3.) This sentence had an effective date of August 18, 1981 and a minimum date of August 18, 1991, which would explain why Griggs's January 1982 sentence had an effective date of January 12, 1991 with a commitment credit of seven months and six days. (Sentence Status Summary, R. 3; Sentence Status Summary, R. 1.) . On a petition for review from a decision of the Board, this Court reviews whether the Board’s findings are supported by substantial evidence, consistent with law, and whether the Board violated constitutional rights. Figueroa v. Pennsylvania Board of Probation and Parole, 900 A.2d 949, 951 n. 2 (Pa.Cmwlth.2006). . These arguments are: (1) the Board abused its discretion in finding Griggs as a technical parole violator since the Board failed to present sufficient evidence to support the violation; (2) the Board abused its power by denying Griggs’s request for a full Board hearing; and (3) the Board deprived Griggs of due process since the official who arrested Griggs at his residence was also directly involved in his violation hearing. .42 Pa.C.S. § 2501(a) reads: "[i]n all civil matters before any tribunal every litigant shall have a right to be heard, by himself and his counsel, or by either of them.” . In its brief to this Court, the Board calculated this time period to be 85 days. (Board’s Br. at 11.) Our calculations, however, reveal a difference of 84 days.

OPINION BY KLEIN, J.: ¶ 1 Appellant Aircraft Service International Group appeals from its conviction for various Traffic Code offenses after its jet fuel truck overturned on either a service road or taxiway at Philadelphia International Airport. Because we find that this is not a “highway” within the definition of the Vehicle Code we reverse. ¶ 2 The facts in this case are not in dispute. Appellant’s jet fuel truck had bad brakes and springs, causing it to overturn. It overturned either on the taxiway or a service road at the Philadelphia Airport. If the roadway where the truck overturned is considered a highway, the conviction stands. If the taxiway or service road is not a highway, the conviction must be overturned. There is a subsidiary issue as to whether it was reversible error to allow a police officer to give his opinion as to whether this was or was not a highway and whether or not a “highway” had to be open to the public. A. A taxiway or service road within an airport is not “open to the public” and therefore not a highway under the definitions of the Vehicle Code. The definition of a highway in the Vehicle Code, 75 Pa.C.S.A. § 102, is as follows: “Highway.” The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park. (Emphasis added.) ¶ 3 Unlike parking lots, be they public parking garages or parking lots connected to apartment buildings or condominiums, the taxi lanes for airplanes and the service roads at airports are not open to everyone who wishes to drive there. There is a big difference between driving into a public parking garage or the parking lot of a friend’s apartment house and breaching security to drive onto a service road, let alone an airplane’s taxi lane, at an airport. It is customary for the average citizen to use a public parking garage or to drive onto a parking lot of a condominium to pick up a friend, although those areas are private property. If someone tried to drive onto the service road of the Philadelphia Airport, particularly in the Post-9/11 environment, that person would be arrested. Just as a fenced in factory or warehouse with a security booth do not permit access to the “public,” neither does the Philadelphia Airport. ¶ 4 Because this is a penal statute, if there is any ambiguity in the definition of “highway,” the statute must be construed strictly and in favor of the defendant. See 1 Pa.C.S.A. § 1928(b)(1). A defendant must have fair notice that his conduct is criminal. ¶ 5 The Commonwealth argues that because people get in to airplanes and the airplanes go on taxiways and runways, the taxiway and runway fit the definition of a public highway. That makes no sense. A highway is for use of “motor vehicles” and an airplane is no more a motor vehicle for this purpose than is a subway. A subway, as a vehicle that runs on rails, is exempt from the definition of motor vehicle. See Pa.C.S. § 102. Common sense and a brief review of other statutes and case law demonstrate that aircraft are not considered motor vehicles either. See 42 Pa.C.S. § 8542 which refers to both motor vehicles and aircraft. If the legislature had meant to include aircraft in the definition of motor vehicles, it would not have needed to specifically mention them in addition to motor vehicles. Further, section 8542 indicates that the legislature knew how to include aircraft into such definitions and did not do so in Title 75. Also, McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1931) specifically held, in interpreting similar language to that found in Title 75, that an airplane is not a motor vehicle. Finally, both the subway and the aircraft use limited access areas to function. It is a commercial carrier that is using the taxiway, tarmac, rail lines, etc., not the general public. ¶ 6 Moreover, we note that the definition of “highway” is different from the definition of “traffieway.” Many of the cases cited by the Commonwealth refer to “traf-fieways” as opposed to “highways.” A “traffieway” under the Vehicle Code may not just be “open to the use of the public for purposes of vehicular traffic,” but also can be open to the public “as a matter of right and custom.” If the legislature had not meant to differentiate between a “highway” and a “trafficway” it would not have used the different words in different statutes and would not have defined them differently. ¶ 7 When talking about a public highway as opposed to a trafficway, there is no exception for roads that are open to the public “as a matter of right and custom.” Moreover, even were there such an exception in the law for highways, there is no right or custom for the average citizen to drive onto the tarmac area of the airport. ¶ 8 A review of the cases cited by the Commonwealth and the trial court shows that none of the cases that consider a parking lot or garage a “trafficway” indicate that the Philadelphia Airport tarmac should be considered a “highway.” In fact, we can find no case law involving motor vehicle violations and airport tarmacs. ¶ 9 In any event, the key factor is whether the location is open to the public for vehicular traffic. In Commonwealth v. McFadden, 377 Pa.Super. 454, 547 A.2d 774 (1988), McFadden was driving while intoxicated on the private, dead end road leading to his trailer park. The Court distinguished between private roads and public highways or trafficways and said the Commonwealth had not presented sufficient evidence that the road was open to the public, although some visitors might have come into the park. ¶ 10 In Commonwealth v. Owen, 397 Pa.Super. 507, 580 A.2d 412 (1990), although stating under some circumstances a parking lot might be considered open to the public for the purposes of the D.U.I. statute, the Commonwealth did not present any evidence as to the nature of the parking lot and the grant of habeas corpus dismissing the defendant was determined to be proper. ¶ 11 In Commonwealth v. Zabierowsky, 730 A.2d 987 (Pa.Super.1999), in a footnote the Court specifically said they were not defining “highway” since the term was inapplicable. What the court found was that a five-story garage open to the public on a daily basis for a fee was a “trafficway.” That determination could be supported because although it was private property and not open to anyone generally, it was a trafficway for the purposes of the Vehicle Code. The key distinction was that although one needed a ticket, the lot was open to the public. They distinguished the case from those situations where a parking area was “expressly designated as ‘private’ or ‘for ‘tenants only.’ ” 730 A.2d at 990. ¶ 12 Commonwealth v. Cameron, 447 Pa.Super. 233, 668 A.2d 1163 (1995), relied on by the Commonwealth, is also distinguishable from the instant situation. In Cameron, the question was whether the parking lot of the large apartment building met the definition of trafficway, not highway. Here the fact there was testimony that since the parking lot was used by a number of tenants, as well as guests of tenants, allowed the lot to be considered a trafficway for the purposes of the D.U.I. law. The fact that a large number of people may use the lot can show that under right and custom this could be considered a public use. ¶ 13 In Cameron, there was an open lot next to an eleven stoiy apartment building. Although the lot was for tenants, there is no showing that there was any security at the one entrance, although it was posted as restricted for tenants only. When a great number of people can freely drive into the parking lot, this creates a different situa tion from an airport where entry to the tarmac area is strictly controlled. A parking lot is not an airport. ¶ 14 We also note the uncontradicted testimony of Gino Matteoni, the Health, Safety and Environmental Manager for the Philadelphia Airport, which indicates that the service road in question is basically a road to nowhere, going between the tarmac area to the parking lot and top-off island. See N.T. 1/24/06 at 15. Moreover, the area is posted as restricted and that use is strictly limited to those who have proper airport identification which can only be obtained by getting fingerprinted and attending several classes. Id. at 16. ¶ 15 Further, while an airport may well be designated as “open to the public” or “for public use,” it does not necessarily follow that the whole airport is so designated. There are any number of cases that limit the “public” nature of various buildings or areas. For example, an airport is not public fora for First Amendment purposes. See International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S.Ct. 2711, 120 L.Ed.2d 541 (1992). In fact, an airport is among those publicly owned facilities that could be closed to all except those who have legitimate business there. Id., citing United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736 (1983). Similarly, post offices and military installations are both subject to limitations as to their “public” nature. See United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976). Greer even references the fact that only certain areas of a military installation are “open the public,” indicating the ability of large locations, such as an airport, to withhold the “public” nature of certain portions of the facility. By restricting access to the tarmac and service roads of the airport to only those people who have been fingerprinted and attended classes, the airport has effectively rendered those areas non-public. ¶ 16 Judgment of sentence reversed and case remanded to discharge the defendant. Jurisdiction relinquished. ¶ 17 STEVENS, J., notes his dissent. . Defendant was convicted of two counts of 75 Pa.C.S. § 4107(b)(2), relating to operating an improperly equipped vehicle, and one count of 75 Pa.C.S. § 3716(b), for causing a vehicle to overturn as a result of equipment violations. These are only offenses against the vehicle code if they occur on a "highway.” . The record is unclear exactly where the truck overturned. The police officer testified it overturned on the taxiway, while an airport employee testified it was on a service road. The photograph showing the location, though entered into evidence, is not with the official record. It is also possible that both witnesses are simply using different terms to express the same location. . There are private planes that use Philadelphia International Airport, and probably every other major airport as well. These aircraft are still specially licensed vehicles subject to the strict requirements of federal and state regulation. . The full definition under 75 Pa.C.S.A. § 102 is: " ‘Traffieway.’ The entire width between property lines or other boundary lines of every way or place of which any part is open to dle public for purposes of vehicular travel as a matter of right or custom.” . Matteoni also testified that U.S. Airway Express uses the parking lot to de-ice its planes. Id. It cannot be seriously claimed that an area where aircraft are de-iced is open to the public or is for public use.

OPINION BY Judge SIMPSON. John D. Wilson (Wilson), representing himself, appeals an order of the Dauphin County Common Pleas Court (trial court) that granted Appellees’ preliminary objections and dismissed his complaint for lack of subject matter jurisdiction. The trial court concluded Wilson’s ostensible complaint for money damages in reality constituted an attempt to appeal the Pennsylvania Board of Probation and Parole’s (Board) revocation decision. Consequently, the court held Wilson’s exclusive remedy was an appeal to this Court. Alternatively, the trial court determined Wilson’s complaint failed to state any cognizable claims against Appellees. For the following reasons, we affirm. I. Background Wilson is currently incarcerated at SCI-Fraekville. In his complaint, Wilson alleges the following facts. In August 2003, he reported to a York parole office and requested to be taken to SCI-Camp Hill to submit a revised home plan. Complaint at ¶ 7. On the same day, Wilson was taken to York County Prison. Id. at ¶ 8. While there, Appellee Marrow, a Board agent, visited Wilson and asked if he would agree to placement in an anger management program as an alternative to prison. Id. at ¶9. Wilson agreed on the condition the Board approve his new home plan. Id. Thereafter, Appellee Marrow transported Wilson to Adappt House; however, he was placed in drug rehabilitation, not anger management therapy. Id. at ¶ 10. Approximately two weeks later, Adappt House discharged Wilson based on allegations he violated parole condition 7, failure to complete the program. Specifically, Adappt House alleged Wilson made threats to a male client and sexually stalked a female client. Id. at ¶ 11. Thereafter, Wilson appeared at a Board preliminary hearing at which Appellee Moul, a Board hearing examiner, presided. Id. at ¶ 12. At the hearing, Appellee Kramer, a Board agent, read the above allegations against Wilson. Id. Wilson alleges Appellee Moul found probable cause for a violation solely upon a reading of the charges. Id. Appellee Pryal presided over the subsequent revocation hearing. Id. at ¶ 13. Appellee Kramer again read the allegations against Wilson. Id. A witness from Adappt House testified Wilson made ter-roristic threats toward a Board agent and the agent’s family. Id. Ultimately, the Board rendered a decision recommitting Wilson to serve 24 months backtime. Id. at ¶ 14. Wilson’s complaint seeks monetary damages from Appellees for various federal constitutional violations, retaliation and other tortious conduct. Specifically, Wilson alleges violations of his Fifth, Sixth, Eighth and Fourteenth Amendment rights (Count I); defamation (Count II); official oppression (Count III); retaliation (Count IV); and negligence (Count V). Appellees initially filed preliminary objections in the nature of a demurrer and jurisdictional challenge. They also filed supplemental objections asserting res judi-cata. Thereafter, the trial court granted Appellees’ preliminary objection to subject matter jurisdiction. The court noted Wilson’s complaint alleges the Board improperly revoked his parole and violated his constitutional rights in doing so. Thus, the trial court held Wilson’s exclusive remedy is an appeal to this Court from the revocation decision. Borsello v. Colleran, 833 A.2d 1213 (Pa.Cmwlth.2003). Alternatively, the trial court concluded Wilson’s complaint fails to state any cognizable claims against Appellees. Wilson appeals. II. Issues Wilson contends the trial court erred by ruling it lacked subject matter jurisdiction over his 42 U.S.C. § 1983 complaint. He maintains he did not appeal the Board’s decision; Wilson asserts he sued Appellees in their individual and official capacities. Wilson also alleges he properly averred claims of retaliation and constitutional deprivations. Appellees counter that Wilson’s claims are based entirely on his assertion the Board improperly revoked his parole. Therefore, Appellees contend, the trial court properly sustained their preliminary objection to subject matter jurisdiction. Borsello. Alternatively, Appellees argue that Wilson cannot collaterally appeal the Board’s revocation decision under the guise of tort claims. Appellees also assert the trial court correctly held Wilson failed to state any cognizable claims against them for defamation, official oppression, retaliation or negligence. III. Federal Claims Citing Stackhouse v. Pennsylvania State Police, 574 Pa. 558, 832 A.2d 1004 (2003) and Miles v. Beard, 847 A.2d 161 (Pa.Cmwlth.2004), pet. for allowance of appeal denied, 582 Pa. 690, 870 A.2d 325 (2005), Wilson argues the trial court had subject matter jurisdiction over his 42 U.S.C. § 1983 claims for money damages. Wilson maintains he pled a valid Section 1983 action. Specifically, Wilson avers Appellees, acting under color of state law, violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. Wilson further avers Appellees retaliated against him for exercising his First Amendment right to freedom of speech. A. Count I (Constitutional Torts) As an initial matter, we recognize common pleas courts have subject matter jurisdiction “over tort actions for money damages that are premised on either common law trespass or a civil action for deprivation of civil rights under 42 U.S.C. § 1983.” Miles, 847 A.2d at 164. Further, where the core of the complaint is a tort action, original jurisdiction lies in common pleas court regardless of an ancillary request for declaratory relief. Stackhouse. Nevertheless, after reviewing Wilson’s complaint, we agree with the trial court that Wilson’s Section 1983 claims against Appellees merely constitute an attempt to appeal the Board’s revocation decision. Primarily, Wilson does not aver any injuries. In particular, he does not plead any physical, psychic or reputational injury arising from the alleged constitutional violations. Also, Wilson does not plead any damages. Thus, he avers no special, general, liquidated or unliquidated damages. Rather, the only loss he pleads is loss of freedom due to re-imprisonment. See Complaint at ¶ 37(E). Clearly, therefore, he fails to plead a basis for monetary recovery, and his sole objective is to litigate the loss of freedom occasioned by the revocation of his parole. Consequently, we view Wilson’s constitutional tort claims as a thinly disguised appeal of the Board’s revocation decision. As a result, we hold the trial court properly determined it lacked subject matter jurisdiction over Count I of Wilson’s complaint. Borsello. Alternatively, we determine Count I fails to state a cause of action for the following reasons. First, Wilson avers Appellees violated his Fifth and Fourteenth Amendment due process rights by faffing to give him notice of the charges against him. Complaint at ¶ 27. However, Wilson avers Appellee Kramer read the charges against him at the preliminary hearing, which preceded the revocation hearing. Id. at ¶¶ 11-12, 26. The charges specified that Wilson failed to complete the Adappt program and that he was discharged from the program for threatening a male client and sexually stalking a female client. Thus, Wilson’s averments reveal he was given notice of the charges almost three months before the revocation hearing, and this claim of deprivation is negated by Wilson himself. Second, Wilson avers Appellees violated his Sixth Amendment right to confront and cross-examine witnesses regarding the allegations he threatened and stalked individuals at Adappt House. Id. at ¶ 25. However, Wilson concedes he was represented by appointed counsel at the revocation hearing. Id. at ¶ 80. Moreover, the hearing transcript shows Wilson’s counsel did cross-examine Adappt Clinical Director John Faunce, the Commonwealth’s only witness at the revocation hearing. See Wilson’s Objections, Ex. A (Revocation Hearing Transcript at 4-5). Wilson’s own submissions, therefore, negate this claim of deprivation. Third, Wilson avers Appellees violated the Eighth Amendment prohibition against cruel and unusual punishment by imposing a new parole condition: condition 7. See Complaint at ¶ 17. However, parole is not punishment; rather, it is a release from total confinement to attempt rehabilitation. Thus, conditions of parole, primarily aimed at effecting, as a constructive alternative to imprisonment, rehabilitation and reintegration into society, do not constitute cruel and unusual punishment as a matter of law. See Commonwealth v. Walton, 488 Pa. 588, 397 A.2d 1179 (1979). Moreover, Condition # 7 (compliance with special conditions) is a general condition applicable to all parolees under Board jurisdiction, Wilson’s averments to the contrary notwithstanding. See Timothy P. Wile, Pennsylvania Law of Probation and Parole 561 (2d ed. 2003) (Conditions Governing Parole/Reparole (PBPP-11)). Section 23 of the statute known as the Parole Act empowers the Board to impose general conditions on all offenders under its jurisdiction and special conditions on individual offenders as it deems necessary. See also 37 Pa.Code § 63.5(a) (parolees shall comply with special conditions which are subsequently imposed by the parole agent). Wilson avers that upon release from prison the Board’s agent required him to attend the Adappt program and that he did not complete the program. Complaint at ¶¶ 10, 11. Thus, Wilson fails to state a claim for cruel and unusual punishment based on condition 7, which governed his conduct after release from total confinement. In view of the foregoing, we conclude Wilson’s constitutional tort claims are unsupported by his submissions. Accordingly, we discern no error in the trial court’s determination that Count I fails to state a cause of action. B. Count IV (Retaliation) In Count IV, Wilson raises a claim for retaliation. As the trial court notes, retaliation claims against government officials are often included in civil rights actions under 42 U.S.C. § 1983. As a result, we conclude the trial court had subject matter jurisdiction over Wilson’s retaliation claim. Miles v. Beard. In Count IV, Wilson avers Appellee Marrow retaliated against him for requesting a change of his home plan and for complaining about being sent to York County Prison instead of SCI-Camp Hill. Complaint at ¶ 33. Specifically, Wilson avers he “agreed to be placed in an anger management program and was placed in a drug rehabilitation program out of retaliation.” Id. at ¶34. Wilson’s retaliation claim fails. As a threshold matter, a state prison inmate must show he suffered some adverse action by prison officials in retaliation for engaging in constitutionally protected conduct. Yount v. Pa. Dep’t of Corr., 886 A.2d 1163 (Pa.Cmwlth.2005). “An inmate may satisfy the requirement of ‘adverse action’ by demonstrating that the action taken by officials was sufficient to deter a person of ordinary firmness from exercising his constitutional rights.” Id. at 1167. See also Rauser v. Horn, 241 F.3d 330 (3d Cir.2001) (government action may be considered retaliatory if motivated in significant part by a desire to punish someone for exercising a constitutional right). The allegations of retaliatory conduct in Wilson’s complaint are insufficient to support a retaliation claim. Wilson, relying on the legal doctrine of res ipsa loquitur (the act speaks for itself) alleges the mere act of being placed in a drug rehabilitation program instead of an anger management program is sufficient for a jury to infer retaliatory action. Complaint at ¶ 35. However, as the trial court correctly concluded, “being released from prison into a drug rehabilitation center rather than an anger management program is certainly not sufficiently adverse to support a retaliation claim; nor does it in any way tend to suggest retaliatory conduct.” Tr. Ct. Op. at 5. We also conclude Wilson’s assignment to a drug rehabilitation program instead of an anger management program does not, by itself, establish a cognizable retaliation claim. Wilson has no constitutionally protected interest in being assigned to either a particular facility or program. Cf. Tighe v. Wall, 100 F.3d 41 (5th Cir.1996). IV. State Claims A. Count II (Defamation) In Count II, Wilson asserts a claim for defamation based on Appellees’ statements during the Board proceedings that he is a danger to society, a threat to the community and that he stalked and threatened patients at Adappt House. Complaint at ¶ 23. Inasmuch as Wilson’s defamation claim sounds in trespass, the trial court had subject matter jurisdiction over Count II. Stackhouse. Nonetheless, Wilson’s defamation claim fails to state a cause of action for at least two reasons. First, defamation is an intentional tort, and Appellees, acting within the scope of the duties, are protected by sovereign immunity from the imposition of liability for intentional torts. Picketing v. Sacavage, 164 Pa.Cmwlth. 117, 642 A.2d 555 (1994). Second, statements made during judicial proceedings by a party, witness, counsel or judge, whether occurring in open court or in the pleadings, are absolutely privileged and thus cannot give rise to a defamation action. Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (2004). The judicial privilege also applies to pertinent and material statements made during the regular course of state agency proceedings. Milliner v. Enck, 709 A.2d 417 (Pa.Super.1998) (statements made during unemployment compensation proceeding are protected by judicial privilege). Here, Wilson’s defamation claim arises from statements made during the Board’s revocation hearing. Appellee Kramer read allegations that Wilson is dangerous, a threat to the community and that he stalked and threatened patients in the rehabilitation program. These allegations, made for purposes of Wilson’s parole revocation, are protected by the judicial privilege. Bochetto; Enck. B. Counts III (Official Oppression) and Y (Negligence) Our review of Wilson’s complaint indicates Count III (official oppression) and Count V (negligence) also constitute nothing more than attempts to collaterally appeal the Board’s revocation decision. Although Wilson’s Count III bears an “official oppression” heading, it essentially repeats averments that the Board denied him due process during the revocation proceeding. See Complaint at ¶¶ 24-32. Similarly, in Count V, Wilson alleges the Board negligently deprived him of his liberty in violation of his due process and equal protection rights. See id. at ¶¶ 36-37. Consequently, we hold the trial court lacked subject matter jurisdiction over Counts III and V, which constitute an attempted appeal of the Board’s revocation decision. Borsello. In sum, we agree with the trial court that it lacked jurisdiction over the constitutional tort claims and the official oppression and negligence claims, because these claims were in reality an appeal from a Board revocation decision. Under other circumstances, the trial court could have transferred these claims to this Court. 42 Pa.C.S. § 5103. However, Wilson’s July 21, 2005 complaint, filed more than a year after the Board’s March 10, 2004 final order, cannot be considered a timely appeal of the Board’s revocation decision. Moreover, as the trial court noted, Wilson’s April 16, 2004 appeal was already quashed as untimely. See Tr. Ct. Op. at 3, n. 1; Wilson v. Pa. Bd. of Prob. & Parole, (Pa.Cmwlth. No. 790 C.D.2004, filed April 20, 2004). Accordingly, the failure to transfer is proper since no appellate relief could be afforded by any part of the unified judicial system. See Smock v. Com., 496 Pa. 204, 208-09, 436 A.2d 615, 617 (1981). Further, we agree with the trial court that the claims within its jurisdiction were insufficiently stated. Based on the reasons stated above, we affirm the trial court’s order. ORDER AND NOW, this 13th day of February, 2007, for the reasons stated in the foregoing decision, the order of the Court of Common Pleas of Dauphin County is AFFIRMED. . Appellees are employees of the Pennsylvania Board of Probation and Parole (Board). Ap-pellees Jeff Marrow, Juanita M. Kramer and George Morrison are parole agents. Appel-lees William Moul and Robert Pryal are Board hearing examiners. Appellees John and Jane Doe are unidentified. . Wilson attached several Board documents as Exhibit A to his Objections to Appellees’ Preliminary Objections (hereinafter “Wilson's Objections”), which are part of the certified record. Included are the Board's notice of charges, the revocation hearing transcript, and the revocation decision. These documents indicate that in June 2003, Wilson was paroled from a 4!4 to 14 year sentence for drug and firearm offenses. Thereafter, the Board charged Wilson with the following technical parole violation: Condition # 7: You shall comply with Special Conditions imposed by the Board and with special conditions imposed by the parole supervision staff. You must abide by all the rules and regulations of the program. Any discharge or termination from this program other than successful completion will constitute a vio lation of your parole. If further treatment is recommended you will follow through with the recommendations. Supporting Evidence: subject was unsuccessfully discharged from the ADAPPX program for inappropriate behavior. These [sic] consisted of making sexually inappropriate statement toward a female client, sexually stalking a female client and verbally threatening to assault another client. Board’s Notice of Charges (09/10/03). The Board ultimately recommitted Wilson as a technical parole violator to serve 24 months backtime. Relying on Wilson’s admission, the Board found Wilson violated parole condition 7 by failing to successfully complete the Adappt program. Id. The Board listed several aggravating factors: threats to agent and her family; serious anger problems; and danger to the community. Notice of Board’s Decision (01/27/04). We also note Wilson’s April 16, 2004 appeal from the Board's March 10, 2004 final order was quashed as untimely. See Wilson v. Pa. Bd. of Prob. & Parole, (Pa.Cmwlth. No. 790 C.D.2004, filed April 20, 2004). In addition, Wilson filed a habeas corpus petition in federal district court that was dismissed. Wilson v. Pa. Bd. of Prob. & Parole, (M.D. Pa., CA No. 3:04 — 1306 (Kosik, J.), filed December 17, 2004); application for appeal denied, (3d Cir. CA No. 05-1023, 05-1217). See Appellees’ Supplemental Preliminary Objections, Exs. A, B, C, D. . Our review of a trial court’s order sustaining preliminary objections is limited to determining whether the trial court erred as a matter of law or abused its discretion. E. Lampeter Twp. v. County of Lancaster, 696 A.2d 884 (Pa.Cmwlth.1987). In order for a trial court to sustain preliminary objections, it must appear with certainty the law will not allow recovery; any doubt must be resolved in favor of the non-moving party. Id. All well-pled facts in the complaint, and reasonable inferences arising from those facts, are accepted as true. Id. However, unwarranted inferences, conclusions of law, argumentative allegations or expressions of opinion need not be accepted. Myers v. Ridge, 712 A.2d 791 (Pa.Cmwlth.1998). .Section 1983 provides, in pertinent part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress [.] 42 U.S.C. § 1983. Section 1983 does not create substantive rights, but it provides a remedy for the violation of rights created under the federal constitution or under federal law. Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). . A constitutional tort is defined as A violation of one’s constitutional rights by a government officer, redressable by a civil action filed directly against the officer. A constitutional tort committed under color of state law (such as a civil-rights violation) is actionable under 42 USCA § 1983.... Black’s Law Dictionary 1526 (8th ed.2004). . See also Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (Section 1983 actions are inappropriate means to collaterally attack the validity of convictions or sentences); Williams v. Consovoy, 453 F.3d 173 (3d Cir.2006) (state prisoner may not attack the revocation of his parole by means of a Section 1983 action where the parole board’s decision was not rendered invalid). . Although Wilson also avers in his complaint that his counsel was ineffective, this is a matter properly raised in an appeal of the Board's decision, not a 42 U.S.C. § 1983 claim against Appellees. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). More importantly, the Board based its decision not on the testimony of the Commonwealth’s witness but on Wilson's admissions at the revocation hearing. See Wilson’s Objections, Ex. A (Notice of Board Decision). Thus, Wilson’s submissions show no causal connection between cross-examination of the Commonwealth’s witness and loss of freedom. . Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.23. . As the trial court recognized, official oppression is a state criminal offense. See 18 Pa.C.S. § 5301. Pennsylvania's official oppression statute does not give rise to a private cause of action. D’Errico v. DeFazio, 763 A.2d 424 (Pa.Super.2000).

OPINION BY President Judge COLINS. Dominic Aspite and 1420 Chestnut Street Associates (collectively, Aspite) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), which reversed a decision of the Philadelphia Zoning Board of Adjustment (ZBA) granting his application for a use variance. Aspite questions whether the trial court erred in concluding that he failed to establish a hardship. Discerning no error, we affirm the trial court’s order reversing the ZBA. At issue is the permitted use of the first floor of a multi-story structure located at 1420-22 Chestnut Street (property). The property is located within a C-4 commercial use area in the City of Philadelphia and falls under the protective umbrella of the Center City Overlay. The Overlay is a creature of an Ordinance that when first enacted in 2000 pertained exclusively to the Rittenhouse Row area, and through subsequent amendment has been widened to include Chestnut Street between Broad and Twentieth Streets. Philadelphia City Council enacted the Overlay to maintain the existing character of a designated area, to attract and promote certain specialty retailers, and to encourage the retailers to locate within a designated area. Philadelphia Zoning Code § 14-1607.1(l)(a). The Overlay regulates the use of a building. Section 14-1601.1 of the Philadelphia Zoning Code [Rittenhouse Overlay] provides in pertinent part: (2) Uses Prohibited on the Ground Floor (c) Manicure/nail salon; (d) Retail sales of drugs; (e) Retail sales of general merchandise; (f) Retail sales of groceries; (j) Retail sales of variety store merchandise. Section 14-1607 of the Philadelphia Zoning Code [Center City Overlay] states in pertinent part: (3) Prohibited Uses. In any building or upon any land abutting Chestnut Street or Walnut Street between Front Street and the Schuylkill River and Broad Street between South Penn Square and Washington Avenue and Market Street between Front Street and Fifth Street, the following uses shall be prohibited: (a) Amusement arcades; (b) Any use regulated by Section 14-1605, Regulated Uses; (c) Carwash; (d) Hand laundry; (e) Non-accessory or outdoor advertising signs; (f) Open air parking lots; (g) Outdoor sales or storage including outdoor use of coin operated machines which dispense food or drink, but not including open air cafes within the property line and not including any open air cafes on Broad Street between South Penn Square and Washington Avenue; (h) Parking as the sole use of a property; (i) Repair of motor vehicles; (j) Restaurants, cafes, coffee shops and other similar establishments for the sale and consumption of food and/or beverages, with drive-in or take-out service (sale of food and/or beverages to be consumed outside the confines of the premises); provided that takeout restaurants with a minimum of 20 seats for indoor dining of patrons shall not be prohibited along Market Street between Front Street and Fifth Street.... In early 2004 Aspite applied to Philadelphia’s Department of Licenses and Inspections (L & I) for a use variance seeking to lease the first floor of the property to 7-Eleven. L & I denied the request based on its determination that 7-Eleven was a convenience store and was not a permitted use within the Overlay district. Aspite appealed that decision to the ZBA contending that the application of the above two sections to the 1420-22 Chestnut Street property (property) precluded the opening of a convenience store such as 7-Eleven within the Overlay. That preclusion, argued Aspite, was so restrictive that when applied, it rendered the first floor of the property unmarketable and caused As-pite to suffer a hardship. In support of that position, before the ZBA Aspite introduced evidence that prior to enactment of the Chestnut Street Over lay the property had been vacant for several years. Aspite explained that over the years, the only businesses that had expressed an interest in leasing the space were businesses that under the current Code would be prohibited uses. Aspite testified that since the enactment of the Center City Overlay in 2004, 7-Eleven had expressed a desire to lease the space. As-pite submitted evidence that if 7-Eleven were permitted to operate, there would be no cooking on the premises, trash would be stored inside and taken out by 7-Eleven employees, and trash pick-up would occur at least three times a week between midnight and 6AM. There was also general testimonial evidence that 7-Eleven would be beneficial to the area. Finally, it was argued that applicable use prohibitions were a hardship and that the property was not otherwise marketable. Objecting to Aspite’s request for a use variance was Don Davidow, individually and on behalf of Rittenhouse Row Associates. In addition, area neighbors voiced their objections which echoed the sentiments of Davidow and Rittenhouse Row Associates that the proposed use would not compliment the neighborhood. The ZBA was not persuaded by the testimony of Objectors and granted the use variance. Rittenhouse Row Associates appealed to the trial court. Before the trial court, Rittenhouse Row Associates argued that the ZBA’s finding of hardship was not supported by substantial evidence. In response, Aspite argued that substantial evidence of record supported the ZBA’s finding of hardship, and further, even if hardship had not been proven, the variance should be permitted as the Overlay is unconstitutional, in that it is exclusionary and violative of equal protection, because it is not rationally related to a valid governmental purpose. The trial court, without taking additional evidence, reversed the ZBA, concluding that Aspite had not established an unnecessary hardship. The trial court further concluded that there was no constitutional violation as the Overlay was not unreasonable and was neither arbitrary nor exclusionary. Aspite took an appeal of the trial court’s decision to this Court. Initially we note that because the trial court took no additional evidence, this Court’s review is limited to a determination of whether the Board abused its discretion or committed an error of law. Hitz v. Zoning Hearing Board of South Annville Township, 734 A.2d 60, 65 n. 9 (Pa.Cmwlth.1999), petition for allowance of appeal denied, 562 Pa. 676, 753 A.2d 821 (2000). “The ZHB [Board] abuses its discretion if its findings are not supported by substantial evidence.” Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). First we address the constitutional claim. Aspite contends that the Overlay is unconstitutional in that it violates equal protection and due process of law. Aspite also contends that the Ordinance is not rationally related to a valid governmental purpose. As explained by our Supreme Court in In Re Realen Valley Forge Greenes, 576 Pa. 115, 838 A.2d 718, 728 (2003): “[W]hen determining the validity of zoning ordinances, a zoning ordinance must be presumed constitutionally valid un less a challenging party shows that it is unreasonable, arbitrary, or not substantially related to the police power interest that the ordinance purports to serve” Among other reasons, an ordinance will be found to be unreasonable and not substantially related to a police power purpose if it is shown to be unduly restrictive or exclusionary. Similarly, an ordinance will be deemed to be arbitrary where it is shown that it results in disparate treatment of similar landowners without a reasonable basis for such disparate treatment. Moreover, in reviewing an ordinance to determine its validity, courts must generally employ a “substantive due process inquiry, involving a balancing of landowners’ rights against the public interest, sought to be protected by an exercise of the police power.” Moreover, [t]he substantive due process inquiry, ... must accord substantial deference to the preservation of rights of property owners, within constraints of the ancient maxim of our common law, sic utere tuo ut alienum non laedas. 9 Coke 59 — So use your property as not to injure your neighbors. (quoting Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246, 452 A.2d 1337, 1341-42 (1982)); and, C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 820 A.2d 143 (2002). This Court agrees with the trial court’s analysis that the prohibitions set forth in the Rittenhouse Overlay/Center City Overlay are for the purpose of preserving the historic and artistic value of the Center City Arts District. Additionally, the Overlay benefits the business owners, the visitors, and the citizens of Philadelphia. Contrary to Aspite’s argument, the Overlay does not promote high-end stores to the exclusion of convenience stores. Rather, the Overlay attempts to control the overall commercial development of the Center City area, and that is a permissible government function. Likewise, the Overlay does not apply exclusively to Aspite’s property. Instead, the Overlay is applicable to all properties within the designated area. - We agree with the trial court that Aspite has not put forth evidence establishing that the Ordinance is unreasonable and not substantially related to a police power purpose because Aspite has not shown the Ordinance to be unduly restrictive or exclusionary. Furthermore, the Ordinance treats all landowners equally. Thus, there is no disparate treatment and the Ordinance cannot be found to be arbitrary. We therefore conclude that As-pite did not substantiate his challenge to the constitutionality of the Ordinance. Aspite next contends that he met all criteria required for the granting of a variance. To establish entitlement to a variance, an applicant must prove, inter alia, the following: (1) the zoning Ordinance imposes unnecessary hardship resulting from the unique physical characteristics of the property, as distinguished from hardship arising from the impact of the zoning regulation on the entire district; (2) the alleged hardship is not self-inflicted; and (3) the required variance will not destroy the character of the neighborhood, nor be detrimental to the public welfare. Section 910.2 of the Pennsylvania Municipalities Planning Code; Valley View. An applicant’s burden is a heavy one, and a variance should be granted sparingly and only under exceptional circumstances. Appeal of Lester M. Prange, Inc., 166 Pa.Cmwlth. 626, 647 A.2d 279 (1994). To establish unnecessary hardship, the applicant must demonstrate that due to its physical characteristics, the property cannot be used for the permitted purpose or could only conform to such purpose at a prohibitive expense, or, that the property has either no value or only a distress value for any permitted purpose. Isaacs v. Wilkes-Barre City Zoning Hearing Board, 148 Pa.Cmwlth. 578, 612 A.2d 559 (1992). In this matter, Aspite failed to present any evidence of unique physical conditions that prevented a reasonable use of the property. “While Aspite may suffer a reduction of income upon denial of a variance, economic hardship is insufficient to establish unnecessary hardship justifying a grant of a variance. Valley View. Unnecessary hardship is shown only where the evidence establishes that compliance with the zoning ordinance could render the property practically useless. Smith v. Zoning Hearing Board of Borough of Bellevue and Suburban General Hospital, 152 Pa.Cmwlth. 427, 619 A.2d 399 (1992). Aspite failed to present such evidence. However, assuming arguendo, Aspite had established a hardship, Aspite still had to establish that the proposed use was not contrary to the public interest. The preservation of the existing character of the designated area and the promotion of specialty retailers in the designated area is a stated goal of the Ordinance. The Overlay allows for the growth of businesses that support the historic and cultural character of the surrounding area. Code § 14-1670.1(l)(f). Herein, the evidence of record is testimonial evidence to the effect that Aspite, if granted a variance, would comply with all City ordinances and regulations. However, there is no evidence that the opening of a 7-Eleven compliments the public interest or supports the historic and cultural character of the designated area. Again, Aspite has failed to sustain his evidentiary burden. Accordingly, the order of the trial court is AFFIRMED. Judge SMITH-RIBNER dissents. ORDER AND NOW, this 19th day of December 2006, the Order of the Court of Common Pleas of Philadelphia County entered in the above-captioned matter is AFFIRMED. . Philadelphia Zoning Code § 14-1607.1. . It is undisputed that the property at issue had been vacant for several years prior to the enactment of the Overlay. Aspite explained the vacancy as being the result of unsuitable tenants. . Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2.

OPINION BY JOHNSON, J.: ¶ 1 Juan Carlos Hernandez appeals from the judgment of sentence entered upon his convictions of criminal trespass and simple assault. See 18 Pa.C.S. §§ 3503(a), 2701(a), respectively. Hernandez contends that since he is indigent, the trial court violated his due process and equal protection rights when it denied his post-sentence motion to modify costs and charged him with the costs of the prosecution’s mental health expert. Specifically, Hernandez asserts that 16 P.S. section 1403, the statute that requires a convicted defendant to pay the costs of prosecution, is constitutionally infirm under Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). After careful review, we conclude that 16 P.S. section 1403 passes constitutional muster, because the procedural safeguards of Pa.R.Crim.P. 706 ensure that an indigent defendant will be afforded an opportunity to prove his financial inability to pay the costs of prosecution before being committed to prison. Accordingly, we affirm the trial court’s order. ¶ 2 On June 14, 2005, a jury found Hernandez “guilty but mentally ill” for criminal trespass and simple assault, after hearing extensive testimony from Hernandez’s expert, Dr. Charles Romero, and the Commonwealth’s expert, Dr. Robert Wettstein, regarding Hernandez’s mental condition. See 18 Pa.C.S. § 314 (Guilty but mentally ill). On August 26, 2005, the trial court conducted a hearing pursuant to 42 Pa. C.S. section 9727 and determined that at the time of sentencing, Hernandez was “severely mentally disabled and in need of treatment.” Trial Court Opinion (T.C.O.), 12/27/05, at 1. The trial court sentenced Hernandez to nine years of probation, total fines of $425, and all the costs of prosecution under 16 P.S. section 1403. When the Clerk of Courts assessed the costs of prosecution to Hernandez, the clerk included a $7,008.50 bill from the Commonwealth for the services of its mental health expert, Dr. Wettstein. On September 2, 2005, Hernandez filed a post-sentence motion seeking to dismiss the costs of the Commonwealth’s expert on the ground that the trial court failed to make a determination of his ability to pay the costs of prosecution. In his motion, Hernandez argued that 16 P.S. section 1403, which allows for the expenses incurred by the district attorney to be part of the prosecution costs, is unconstitutional under Fuller. On December 22, 2005, the trial court denied Hernandez’s post-sentence motion, charged him with the costs of the Commonwealth’s mental health expert, and declared 16 P.S. section 1403 constitutional. ¶ 3 Hernandez appeals to this Court, raising the following question for our review: 1. Did the trial court err in denying the Appellant’s post sentence motion and charging him with the costs of the prosecution’s mental health expert? Brief for Appellant at 4. ¶ 4 When an appellant challenges the constitutionality of a statute, he or she presents this Court with a question of law. See Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143, 145 (2001). Our consideration of questions of law is plenary. See id. Moreover, there is a strong presumption in the law that legislative enactments do not violate the constitution.... [T]here is a heavy burden of persuasion upon one who challenges the constitutionality of a statute. As a matter of statutory construction, we presume the “General Assembly does not intend to violate the Constitution of the United States or of this Common-' wealth.” A statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution; all doubts are to be resolved in favor of finding constitutionality. Commonwealth v. Forbes, 867 A.2d 1268, 1276-77 (Pa.Super.2005) (citation omitted). ¶ 5 The statute at issue in this case, 16 P.S. section 1403, states: All necessary expenses incurred by the district attorney or his assistants or any office directed by him in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime, upon approval thereof by the district attorney and the court, shall be paid by the county from the general funds of the county. In any case where a defendant is convicted and sentenced to pay the costs of prosecution and trial, the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant. 16 P.S. § 1403. ¶ 6 In support of his sole question on appeal, Hernandez asserts that 16 P.S. section 1403 is inadequate to protect his due process and equal protection rights. Brief for Appellant at 8. Particularly, Hernandez claims that the statute is unconstitutional under Fuller, because it does not require the sentencing court to take into account whether a defendant has the ability to pay the costs of prosecution. Brief for Appellant at 7-9. In Fuller, the Supreme Court of the United States considered whether an Oregon statute could constitutionally require a convicted defendant “to repay to the [s]tate the costs of providing him with effective representation of counsel, when he is indigent at the time of the criminal proceeding^] but subsequently acquires the means to bear the costs of his legal defense.” 417 U.S. at 41, 94 S.Ct. 2116. The Court noted that the Oregon statute required the trial court to consider the defendant’s ability to pay his court-appointed attorney costs at three different points in the process. First, the statute mandated that the court decide whether the defendant “is or will be able to pa/’ the fees at sentencing, taking into account “the financial resources of the defendant and the nature of the burden that payments of costs will impose.” Id. at 45, 94 S.Ct. 2116 (citation omitted). Second, if the court determined that a defendant is or will be able to pay costs, the defendant could later petition the court for remission of the fee obligation at any point after sentencing on the ground that payment “will impose manifest hardship on the defendant or his immediate family[.]” Id. at 45-46, 94 S.Ct. 2116. Third, if a defendant was ordered to pay costs and then failed to make payment, the defendant was entitled to a hearing and could avoid imprisonment or a finding of contempt, by demonstrating that “his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment[.]” Id. at 46, 94 S.Ct. 2116 (citation omitted). Ultimately, the Supreme Court of the United States concluded that these features of the Oregon statute rendered it constitutional under the equal protection clause and decided that the statute did not “chill” the defendant’s exercise of his sixth amendment right to counsel. See id. at 50, 54, 94 S.Ct. 2116. ¶ 7 In Fuller, the Supreme Court of the United States did not expressly rule that in order to be constitutional, a state’s re-coupment statute must provide for an assessment of the defendant’s ability to make payment at sentencing, after sentencing, and before imprisonment. The Court, however, emphasized that Oregon’s statute “is tailored to impose an obligation to pay only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.” Id. at 54, 94 S.Ct. 2116. As the Court stated: [T]he recoupment statute is quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation. Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigen-cy has ended and no “manifest hardship” will result. Id. at 46, 94 S.Ct. 2116. At a minimum, then, Fuller requires a procedural safeguard that is designed to protect defendants from commitment if they are unable to repay to the state their court-appointed attorney’s costs. See, e.g, Alexander v. Johnson, 742 F.2d 117, 124 (4th Cir.1984); Olson v. James, 608 F.2d 150, 155 (10th Cir.1979); United States v. Bracewell, 569 F.2d 1194, 1199-1200 (2d Cir.1978) (finding that the district court was required under Fuller to conduct an appropriate inquiry into the defendant’s financial position). ¶ 8 In this case, Hernandez argues that he currently “does not have the capacity” to repay the prosecution’s mental health expert’s fees. Brief for Appellant at 8. Fuller mandates that 16 P.S. section 1403 contain a procedural device that ensures Hernandez will not be imprisoned if he is financially unable to pay these costs. See Ohree v. Commonwealth, 26 Va.App. 299, 494 S.E.2d 484, 490 (1998) (stating that Fuller’s doctrine is not limited to court-appointed attorney’s fees, but applies to all “other costs of prosecution.”). On its face, 16 P.S. section 1403 does not possess any of Fuller’s procedural protections, and a plain reading of the statute suggests that it is mandatory that the defendant repay the expenses incurred by the district attorney. See 16 P.S. section 1403 (“... the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant.”). Although 16 P.S. section 1403 does not expressly include any provisions providing an indigent defendant with an inquiry into his/her ability to pay, this does not mean that the statute is constitutionally infirm per se. See State v. Blank, 131 Wash.2d 230, 930 P.2d 1213, 1218 (1997) (concluding that Fuller’s procedural requirements “need not be specifically enumerated in the statute so long as the courts adhere to those requirements.”). After review, we find that Pa.R.Crim.P. 706 is an adequate procedural tool that supplants 16 P.S. section 1403 and satisfies the constitutional requirements of Fuller, by ensuring that an indigent will be afforded an opportunity to prove his financial inability to pay the costs of prosecution before being sentenced to prison. ¶ 9 To enforce an order for reimbursement of the costs of prosecution pursuant to 16 P.S. section 1403, the trial court must necessarily comply with Pa.R.Crim.P. 706. A defendant cannot be committed to prison for failing to pay the costs of prosecution unless the trial court follows the procedure of Pa.R.Crim.P. 706, which states: Rule 706. Fines or Costs (A) A court shall not commit the defendant to prison for failure to pay a fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs. (B) When the court determines, after hearing, that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the court may provide for payment of the fines or costs in such installments and over such period of time as it deems to be just and practicable, taking into account the financial resources of the defendant and the nature of the burden its payments will impose, as set forth in paragraph (D) below. (C) The court, in determining the amount and method of payment of a fine or costs shall, insofar as is just and practicable, consider the burden upon the defendant by reason of the defendant’s financial means, including the defendant’s ability to make restitution or reparations. (D) In cases in which the court has ordered payment of a fine or costs in installments, the defendant may request a rehearing on the payment schedule when the defendant is in default of a payment or when the defendant advises the court that such default is imminent. At such hearing, the burden shall be on the defendant to prove that his or her financial condition has deteriorated to the extent that the defendant is without the means to meet the payment schedule. Thereupon the court may extend or accelerate the payment schedule or leave it unaltered, as the court finds to be just and practicable under the circumstances of record. When there has been default and the court finds the defendant is not indigent, the court may impose imprisonment as provided by law for nonpayment. Pa.R.Crim.P. 706. ¶ 10 After comparing the procedural mechanisms of Pa.R.Crim.P. 706 and the Oregon statute that the Supreme Court of the United States held to be valid in Fuller, we conclude that they are strikingly similar. Both laws provide a defendant with a device to avoid imprisonment upon default, by giving him/her the opportunity to demonstrate an inability to make payment at an evidentiary hearing. The Oregon statute and Pa.R.Crim.P. 706 also allow a defendant to request a hearing when default is imminent; the Oregon statute lets a defendant prove his/her indigency before a default hearing is held, while Pa. R.Crim.P. 706 permits a defendant to demonstrate financial inability either after a default hearing or when costs are initially ordered to be paid in installments. The only notable substantive difference is that the statute in Fuller provides for a mandatory hearing on financial status at the time of sentencing and Pa.R.Crim.P. 706 does not. Compare Fuller, 417 U.S. at 43, 94 S.Ct. 2116 (citing Ore.Rev.Stat. § 161.665(3)), with Pa.R.Crim.P. 706(D). The Supreme Court, however, did not state that Fuller requires a trial court to assess the defendant’s financial ability to make payment at the time of sentencing. In interpreting Fuller, numerous federal and state jurisdictions have held that it is not constitutionally necessary to have a determination of the defendant’s ability to pay prior to or at the judgment of sentence. These decisions often conclude that the constitutional concerns of Fuller are only implicated when sanctions are sought for nonpayment, i.e. imprisonment. See, e.g., United States v. Hutchings, 757 F.2d 11, 14-15 (2d Cir.1985); Blank, 930 P.2d at 1220; State v. Albert, 899 P.2d 103, 111-112 (Alaska 1995) (adopting the view that “no prior determination of a defendant’s ability to pay is required in systems where jail is a possible consequence of nonpayment, so long as there is an opportunity to establish inability to pay before the jail sanction is imposed.”). ¶ 11 For example, in Hutchings, the defendant argued that the trial court’s imposition of the costs of prosecution under 28 U.S.C. section 1918 was invalid under Fuller because he was indigent. See 757 F.2d at 14. The Court of Appeals for the Second Circuit decided that the costs of prosecution could be imposed upon an indigent defendant as part of sentencing. See id. at 14. The court interpreted Fuller to stand for the proposition that “[financial obligations may be imposed upon a defendant who is indigent at the time of sentencing but subsequently acquires the means to discharge his obligations.” Id. at 14 (citation omitted). The court ultimately rejected the defendant’s Fuller challenge and concluded that the defendant can only raise a constitutional objection on the ground of his indigence when “the government seeks to enforce the court’s order for costs ... [and] the defendant [is] unable, through no fault of his own, to comply.” Id. at 14-15 (citation and internal quotation marks omitted). ¶ 12 We find the above-mentioned case law persuasive and conclude that Fuller compels a trial court only to make a determination of an indigent defendant’s ability to render payment before he/she is committed. As such, any distinction between Pa.R.Crim.P. 706 and the Oregon statute that the Supreme Court upheld in Fuller is legally insignificant. Consequently, Pa. R.Crim.P. 706 works to enforce the duty of paying costs “only against those who actually become able to meet it without hardship” and satisfies the requirements that are enunciated in Fuller. 417 U.S. at 54, 94 S.Ct. 2116. Therefore, because Pa. R.Crim.P. 706 contains the essential characteristics of the Oregon statute that was upheld in Fuller and ensures that an indigent will not be committed on the basis of his poverty, we conclude that 16 P.S. section 1403 is constitutional on its face and as applied to the particular facts of this case. ¶ 13 For the foregoing reasons we affirm the trial court’s judgment of sentence. ¶ 14 Judgment of sentence AFFIRMED.

OPINION BY Judge McGINLEY. The Society Created to Reduce Urban Blight (SCRUB), et. al appeals from an order of the Court of Common Pleas of Philadelphia County (common pleas court) that affirmed the decision of the Philadelphia Zoning Board of Adjustment’s (Board) grant of a variance to Preston Ship & Rail, Inc. (Preston) in order to erect five outdoor wrap around advertising signs (outdoor advertising signs) on a vacant building. Preston cross-appeals and contends that Section 1460(10) of the Philadelphia Zoning Code (Code) is unconstitutional. Additionally, Preston seeks to quash SCRUB’S appeal to this Court and asserts that SCRUB lacks standing. On July 28, 2003, Preston sought a registration permit from the Department of Licenses and Inspections (L & I) in order to erect five.outdoor advertising signs on the grain building located on the property. Application For Use Registration Permit, July 28, 2003, at 1; Reproduced Record (R.R.) at A-289. On September 11, 2003, L & I issued a notice of refusal of permit and concluded that the outdoor advertising signs would violate numerous provisions of Section 14-1604 of the Code. Specifically, L & I specified the following violations: 1) that the outdoor advertising signs would be located within 500 feet of each other; 2) that only two outdoor advertising signs are permitted on any one lot with no more than one sign support structure; 3) that the outdoor advertising signs would total approximately 38,000 square feet; and 4) that the erection of each new outdoor advertising sign would require the removal of a previous sign. On October 7, 2003, Preston appealed the refusal to the Board and alleged: Preston ... is the owner of the property located at 2600 Rear Penrose Ferry Road, Philadelphia, PA otherwise known as “Pier 3 at Girard Point” (“Property”). Applicant [Preston] proposes to use a building located on the Property which was formerly used as a grain elevator and tower (“Building”) for the erection of outdoor advertising signs on the face of each side of the Building. In order to accomplish this goal, Applicant [Preston] requests several variances from the requirements of the City of Philadelphia Zoning Code (“Zoning Code”) for the erection of outdoor advertising signs. The Property is situate in a Least Restricted Industrial Zoning District. This zoning district permits outdoor advertising signs. However, Applicant [Preston] must obtain several variances from the provisions of the Zoning Code so as to avoid the unnecessary hardship presented in this case. In addition, the Zoning Code contains an unconstitutional Outdoor Advertising and Non-Accessory Advertising prerequisite for obtaining a permit for such use from which Applicant [Preston] also seeks relief. Applicant will demonstrate that the Property has several unique features and characteristics which justify the relief it seeks from the Zoning Code’s requirements for outdoor advertising signs.... The overall Property consists of a dilapidated pier ... which is landlocked. Access to the Property is limited to an easement over an adjacent property. The Pier has collapsed in at least two major areas and was allowed to fall into disrepair by the former owner. The primary remaining structure on the Property is a grain elevator and tower, which is a massive reinforced concrete structure with no present or reasonably foreseeable use, is an eyesore, and for which the cost of demolition would be prohibitively expensive.... The severe deterioration of the Pier with the old unusable structures on the Property, the nature of the surrounding area ... represent conditions which are unique to this Property and are such to justify the requested relief whether the variances are classified as use or dimensional variances or both. Application Of Preston Ship & Rail, Inc., October 7, 2003, at 1-2; R.R. at A-391-92. After a hearing, the Board granted Preston’s request for a use variance and the common pleas court affirmed. SCRUB appealed and Preston cross-appealed. 1. Motion To Quash SCRUB’S Appeal Initially, Preston requests this Court to quash SCRUB’S appeal based on lack of standing because none of the individuals are “aggrieved persons” as defined under Section 17.1 of the Home Rule Act, 53 P.S. § 13131.1. Preston acknowledges that Section 14-1806 of the Code does grant standing to “taxpayers” such as members of SCRUB. See Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia (Procacci), 729 A.2d 117 (Pa.Cmwlth.1999). However, Preston asserts that under the newly enacted provisions of Act 193 SCRUB no longer has standing because it is not an “aggrieved person.” SCRUB counters that: 1) Preston conceded standing to SCRUB and other individuals at the Board’s hearing; 2) Preston waived the standing issue because it did not appeal from the Board’s decision regarding the standing issue; and 3) SCRUB has standing pursuant to Section 14-1806(1) of the Code which controlled the issue of standing before the Board and in the appeals to the common pleas court and this Court. Section 14-1806(1) of the Code had provided that “[a]ny person or persons jointly or severally aggrieved by any decision of the Board or any taxpayer ... may present to a Court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part, specifying the ground for that illegality.” (emphasis added). Section 17.1 to the Home Rule Act, 53 P.S. § 13131.1, now provides: Specific Powers In addition to any aggrieved person, the governing body vested with legislative powers under any charter adopted pursuant to this act shall have standing to appeal any decision of a zoning hearing board or other board or commission created to regulate development within the city. As used in this section, the term “aggrieved persons” does not include taxpayers of the city that are not detrimentally harmed by the decision of the zoning hearing board or other board or commission created to regulate development. (emphasis added). Initially, this Court notes that “[a] cause of action arises under Pennsylvania law when one can first maintain an action to a successful conclusion.” Konidaris v. Portnoff Law Associates, Ltd., 884 A.2d 348, 354 (Pa.Cmwlth.2005), citing In re Schorr, 299 B.R. 97 (Bankr.W.D.Pa.2003). In Ieropoli v. AC&S Corporation, 577 Pa. 138, 842 A.2d 919 (2004) , our Pennsyl vania Supreme Court addressed the issue whether subsequent legislation that extinguished a party’s cause of action was unconstitutional: [W]e begin with the meaning of the phrase ‘cause of action’. As we have stated in other cases, the phrase does not have a single definition, and means different things depending on context. ... In this case, ‘cause of action’ relates to remedy. It is the vehicle by which, a person secures redress from another person for the consequences of an event that is a legal injury.... Moreover, as we have seen, a cause of action that has accrued takes on an even greater meaning. It is a vested right, which under Article 1, Section 11 , may not be eliminated by subsequent legislation.... In light of these principles, the violation of Article 1, Section 11 that the Statute’s application occasions in this case is clear. Before the Statute’s enactment, each cause of action that Appellants brought against Crow Cork was a remedy-it was the vehicle by which Appellants lawfully pursued redress, in the form of damages, from Crown Cork for an alleged legal injury. But under the Statute, Appellants cannot obligate Crown Cork to pay them damages on those causes of action. In this way, each cause of action has been stripped of its remedial significance, as it can no longer function as a means by which Appellants may secure redress from Crown Cork. As a remedy, each cause of action has been, in essence, extinguished. Under Article 1, Section 11, however, a statute may not extinguish a cause of action that has accrued. Therefore, as Appellants’ causes of action accrued before the Statute was enacted, we hold that the Statute’s application to Appellants’ cause of action is unconstitutional under Article 1, Section 11. (emphasis added) Ieropoli, 577 Pa. at 155-56, 842 A.2d at 929-30. Here, this Court believes that the rationale enunciated by our Supreme Court in Ieropoli controls the present controversy. Article 5, Section 9 of the Pennsylvania Constitution provides: There shall be a right of appeal in all cases to a court of record from a court not of record; there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights as may be provided by law. (emphasis added). In the present controversy, the following chronological dates are critical: 1) on July 23, 2003, Preston applied for a registration permit before the L & I; 2) on September 11, 2003, L & I denied Preston’s request for a registration permit; 3) on October 7, 2003, Preston timely appealed the denial to the Board and hearings were held on November 12, 2003, and March 10, 2004, at which time SCRUB became a party; 4) on June 7, 2004, the Board granted a five-year temporary use certificate for the five outdoor advertising signs; 5) on June 25, 2004, SCRUB timely appealed to the common pleas court; 6) on November 30, 2004, the amendment to Section 17.1 of the Home Rule Act, 53 P.S. § 13131.1, took effect; 7) on September 26, 2005, the common pleas court affirmed the Board; and 8) on October 6, 2005, SCRUB appealed to this Court. Like in Ieropoli, to allow the retroactive application of the amendment to Section 17.1 of the Home Rule Charter, 53 P.S. § 13131.1 would deprive SCRUB of its initial right of appeal from an adverse decision of the Board to the common pleas court and ultimately to this Court. This would clearly violate Article 5, Section 9 of the Pennsylvania Constitution. As our Pennsylvania Supreme Court noted in Ie-ropoli: Quoting from the Lewis [v. Pennsylvania R. Co., 220 Pa. 317, 69 A. 821, 823 (1908) ] case, we stated: ‘There is a vested right in an accrued cause of action.... A law can be repealed by the law giver; but the rights which have been acquired under it, while it was in force, do not thereby cease. It would be an absolute injustice to abolish with the law all the effects it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right.’ (emphasis added). Ieropoli 577 Pa. at 152, 842 A.2d at 927. Pursuant to our Supreme Court’s rationale enunciated in Ieropoli and Lewis, this Court must deny Preston’s motion. II. SCRUB’S Appeal At hearings held on November 12, 2003, and March 10, 2004, the following witnesses testified on behalf of Preston: Dan Perkowski (Perkowski), vice-president and director of marine projects; Robert Thomas (Thomas), an engineer; Vincent M. Car-ita (Carita), a civil engineer; and Kevin O’Connor (O’Connor), a traffic engineer. Perkowski testified that Preston and its sister company, Carbon Services, Inc. (Carbon), were in the marine and recycling business. Notes of Testimony, November 12, 2003, (N.T. 11/12/03) at 14; R.R. at A-36. Perkowski continued that the pier was in severe disrepair, that Preston repaired a portion of the Pier, and that Preston now utilized about 180 feet of the 800 foot Pier. N.T. 11/12/03 at 33-36; R.R. at A-55-58. Preston desired to rehabilitate the entire pier to make it a viable bulk marine terminal. According to Perkowski, the money generated from the outdoor advertising was to be used to complete the repairs to the Pier and build a recycling center that would handle 100 tons of recycling material per day. N.T. 11/12/03 at 20-21; R.R. at A-42-43. In addition to Perkowski’s testimony, Michael Mattioni (Mattioni), attorney for Preston, recounted to the Board that the grain elevator building served no viable purpose: Bob [Thomas, an engineer for Preston] came out ... [and][h]e couldn’t find any use for the building.... Part of this is because the building is unique. It’s a hollow building. As a grain elevator, it’s a vertically hollow building, so you cannot use it for storage, you cannot use it for offices, you can’t use it for apartments .... In addition to this the building can’t be used as a grain elevator. First of all, no grain comes through the port of Phila delphia anymore. On top of that, it’s in a dilapidated condition.... N.T. 11/12/03 at 7-7; R.R. at A-29-30. Thomas opined that the only viable use of the Property was for outdoor advertising. N.T. 11/12/03 at 65; R.R. at A-87. Carita testified it would cost 15 million dollars to rehabilitate the Pier. N.T. 11/12/03 at 70; R.R. at A-92. Although Carita never performed a structural analysis of the grain elevator building, he believed that the building would be able to bear the weight of the proposed outdoor advertising signs. N.T. at 75-76; R.R. at A-97-98. O’Connor testified that the outdoor advertising signs would not pose a safety threat to motorists. N.T. 11/12/03 at 78; R.R. at A-100. Specifically, O’Connor stated that the grain elevator building was located on a remote area on the Property and the outdoor advertising signs would be 1600 feet from Penrose Avenue and the Platt Bridge and a quarter of a mile from 1-95. N.T. 11/12/03 at 80; R.R. at A-102. O’Connor also testified that the outdoor advertising signs would have to be larger in order for motorist to observe them from those distances. N.T. 11/12/03 at 80; R.R. at A-102. The following members of SCRUB testified: Gary Smith (Smith), an architect and urban planner; William Faust (Faust), member of the Center City Residents Association (CCRA); Jean Gavin (Gavin), member of the Fox Chase Home Owners Association; John Kline (Kline), vice-president of Duncan Civic Association; Mary Tracy (Tracy), executive director of SCRUB; and Councilperson David Cohen (Cohen) for City Council. Smith testified that the Property was within the least restrictive industrial district and that “[v]irtually any industrial use, including egregious uses, those that none of us will want next door to us are allowed as of right over the counter in this site....” Notes of Testimony, March 10, 2004, (N.T. 3/10/04) at 15 and 17; R.R. at A-123 and A-125. Smith continued that the Property was already productive and that “the concrete pipe and recycling for a reef process is currently the activity on the site.” N.T. 3/10/04 at 17; R.R. at A-125. Faust testified that CCRA opposed the outdoor advertising signs because “the size of the proposed wall wraps will be immense” and “[i]t would dominate views for miles ... [f[or that very reason alone, the proposed uses are thus wholly incompatible with the direction that the City itself wants the Delaware River front to go.” N.T. 3/10/04 at 90-91; R.R. at A-198-99. Gavin testified that the proposed outdoor advertising signs “will be a real eyesore coming from the airport.” N.T. 3/10/04 at 98; R.R. at A-206. Tracy testified that “we have many buildings in the City of Philadelphia that are in need of repair, and to use the wall-wraps as a vehicle for financing their reparation ... sets a very dangerous precedent and it violates the code.... ” N.T. 3/10/04 at 103-04; R.R. at A-211-2. Lastly, Councilperson Cohen testified that City Council was concerned about the aesthetics of the City and the effect that existing signs were a problem. N.T. 3/10/04 at 132-34; R.R. at A-240-43. The Board made the following pertinent finding of fact and conclusions of law: 26. A majority of the Zoning Board of Adjustment voted to grant the request for a use variance. On June 7, 2004, the Zoning Board of Adjustment issued a Notice of Decision granting a five (5) year temporary use certificate with the following provisos: must meet Fire Code as per proviso in letter from Mat-tioni Law Firm dated 5/18/04; all gross receipts from out-door advertising Preston Ship and Rail, Inc., to be used solely to pay for improvement to pier; erection of a fifth sign on top of building at owner’s expense to welcome visitors to Philadelphia. (Notice of Decision, Calendar No. 03-1424). CONCLUSIONS OF LAW 2. The Zoning Board of Adjustment shall consider a request for a variance pursuant to § 14-802 of the Zoning Code. 4. The Applicant [Preston] has met its burden of proof that an unnecessary hardship will result if the variance is not granted. The Applicant [Preston] has shown that the enforcement of the applicable zoning requirements would present a unique hardship to the subject property. 5. Applicant [Preston] has met its burden to demonstrate that the signs are not contrary to the public interest. The Zoning Board heard testimony that the signs are located in a remote least restricted commercial area; that there are no other viable uses for the property other than uses proposed by the owner; that the monies generated by the revenue from the billboards will be used to repair the pier; that the project underway to repair the pier will eventually generate new jobs in Philadelphia. 6. The proposed use meets the applicable requirements for granting a variance, and therefore, the Zoning Board of Adjustment grants the Applicant’s [Preston’s] request for a use variance, with provisos. The Decision of the Board, June 7, 2004, Finding of Fact (F.F.) No. 26 and Conclusions of Law (C.L.) Nos. 2 and 4-6 at 8-9; R.R. at A-285-86. On appeal, the common pleas court heard legal argument from the parties and affirmed: There was substantial evidence presented to the Board that there were no viable uses for the property other than the uses proposed by the applicant [Preston]. The monies generated by revenue from the billboards would be used to repair the pier which will create new jobs in the City of Philadelphia. The Board concluded that the applicant [Preston] met its burden of proof that the signs are not contrary to the public interest.... The Board’s findings and conclusions of law were based upon substantial evidence that an unnecessary hardship would result if the variance was not granted. In addition, the evidence at the hearings established that the Board’s grant of a variance would not be contrary to public interest, (citation omitted). Opinion of the Common Pleas Court, September 26, 2005, at 4. On appeal , SCRUB contends that the Board abused its discretion when it granted the variances because there was a lack of substantial evidence to support a claim of hardship and that the signs were not contrary to public interest. In Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983), our Pennsylvania Supreme Court enunciated the criteria necessary to establish a variance: The standards governing the grant of a variance are equally well settled. The reasons for granting a variance must be substantial, serious and compelling.... The party seeking a variance bears the burden of proving that (1) unnecessary hardship will result if the variance is denied and (2) the proposed use will not be contrary to the public interest .... The hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district.... Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance .... In evaluating hardship the use of adjacent and surrounding land is unquestionably relevant.... ... It is the function of the zoning board to determine whether the evidence satisfies that test and the courts will not disturb that determination unless it is not supported by substantial evidence, i.e., such evidence as a reasonable mind might accept as adequate to support a conclusion, (citations omitted and emphasis added). Id. at 555-57, 559, 462 A.2d at 640-42. A. Hardship In the present controversy, Perkowski testified that the Property was currently being used to load concrete pipe onto barges. N.T. 11/12/03 at 19; R.R. at A-41. Perkowski stated that Preston was waiting approval from the' Department of Environmental Protection so that it could begin a tire recycling business. N.T. 11/12/03 at 19; R.R. at A-41. Perkowski stated that Preston intended to recycle more than 100 tons of tires each day. N.T. 11/12/03 at 30; R.R. at A-52. Also, the tires would be used to build marine reefs in the ocean. N.T. 11/12/03 at 27; R.R. at A-49. Critically, the undisputed evidence established that the revenues generated by the outdoor advertising signs were to be used exclusively to rehabilitate the Pier. Here, Preston failed to establish an unnecessary hardship in the present matter and the Board’s finding to the contrary was error. “Typically, the loss of rental income from disallowed outdoor advertising signs is not an unnecessary hardship.” Society Created To Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment, 831 A.2d 1255, 1262 (Pa.Cmwlth.2003). B. The Public Interest SCRUB next contends that the proposed outdoor advertising signs failed to satisfy the public interest criteria. Section 14-1604 (Outdoor advertising and non-accessory advertising controls) of the Code provides: (1) Legislative Findings. The Council finds that: (a) Existing zoning controls have done little to prevent the City-wide proliferation of commercial outdoor advertising signs. (b) The excessive number of commercial outdoor advertising signs contribute to visual clutter and detract from the aesthetic beauty of the City of Philadelphia. (f) The proliferation of commercial outdoor advertising signs contribute to the appearance of deterioration of commercial and industrial areas of the City and therefore negatively impact upon the economic viability of these areas. (g) Said signs jeopardize public safety by distracting pedestrians and to a greater extent passing motorists, since these signs by their nature are erected in areas intended to be seen by drivers of motor vehicles. (i) Regulation and removal of these signs will enhance the aesthetic beauty of the City of Philadelphia by promoting signs which are harmonious with the streetscape and by eliminating signs which dominate or obscure views of the City. (j) Regulation and removal of these signs will protect public and private investment, promote economic development and commercial revitalization. (k) There are few, if any, circumstances under which the prohibition of these signs will render property valueless, result in unnecessary hardship or otherwise meet the criteria for a variance stated in § 14-1802. Also, Paula Brumbelow (Brumbelow), of the Planning Commission, testified that the proposed outdoor advertising signs violated various subsections of Section 14-1604 of the Code: One, this application is not a minor departure from the requirements of the Zoning Code. We believe there are at least 26 different provisions of the Zoning Code ... including, A, five support structures are proposed while only one support structure is permitted per lot; B, the proposed signs exceed the maximum allowable sign area of 1,500 square feet per sign support structure, a condition which is prohibited; C, this applieation proposes more than two sign faces on any one lot, a condition that is prohibited; D, the proposed signs are all located within 500 feet of each other, a condition which is prohibited; E, all of the proposed signs extend more than 20 feet in height above their bottom edge, a condition which is prohibited; F, there is no provision for the removal of existing signs which encompass equal sign area, a condition which is prohibited.... N.T. 3/10/04 at 154-55; R.R. at A-262-63. Again, there is a lack of substantial evidence of record to support the Board’s conclusion and the common pleas court’s affirmance that the five proposed outdoor advertising signs were not contrary to the public interest. III. Preston’s Appeal Preston contends that Section 14-1604(10) of the Code is unconstitutional because it is tantamount to exclusionary zoning that prevents Preston from using the Property for an otherwise expressly permitted non-accessory outdoor advertising use. Section 14-1604(10) of the Code provides: (a) For each outdoor advertising and non-accessory sign erected in conformance with these provisions, an existing sign or signs encompassing equal or greater sign area shall be removed (emphasis added); (b) The application to erect an outdoor advertising or non-accessory sign must specify the size and location of the sign(s) to be removed. Sufficient proof of the physical existence of the sign(s) to be removed shall be supplied to the Department of Licenses and Inspections. Such proof may be in the form of permits and/or photographs of the existing sign(s) (emphasis add); (c) The application to erect an outdoor advertising or non-accessory sign must also be accompanied by a written authorization from the owner of the property where the sign(s) to be removed are located authorizing the applicant to remove said sign(s) and acknowledging that the right to maintain an outdoor advertising or non-accessory sign is being forfeited through the filing of the application and the issuance of the permit for the erection of the new sign (emphasis added); (d) No permit for the erection of an outdoor advertising or non-accessory sign shall be issued prior to actual removal of the sign(s) required to be removed as provided in subsections 10(a), (b) and (c) above, (emphasis added). Initially, in Baker v. Upper Southampton Township Zoning Hearing Board, 830 A.2d 600, 604-06 (Pa.Cmwlth.2003), this Court noted: A zoning ordinance is presumptively constitutional.... Before a reviewing tribunal may declare a zoning ordinance unconstitutional, the challenging party must clearly establish that the provisions of the ordinance are arbitrary and unreasonable .... A legislative enactment can be declared void only when it violates the fundamental law clearly, palpably, plainly and in such a manner as to leave no doubt or hesitation in the mind of the court .... An ordinance will be found unreasonable and riot substantially related to the police power purpose if it is shown to be unduly restrictive or exclusionary.... When reviewing an ordinance to determine its validity, courts must generally employ a “substantial due process inquiry, involving a balance of landowners’ rights against the public interest sought to be protected by an exercise of the police power” .... (citations omitted and emphasis added). Id. at 604-05. A. De Jure Exclusionary Challenge “In a de jure challenge, the landowner alleges that the ordinance totally excludes a proposed use.” Polay v. Board of Supervisors of West Vincent Township, 752 A.2d 434, 437 n. 7 (Pa.Cmwlth.), appeal denied, 568 Pa. 673, 795 A.2d 982 (2000). “[A] de jure exclusion exists where the ordinance on its face totally excludes a proposed use.” Baker, 830 A.2d at 605. When a challenger has satisfied its burden of proving that an ordinance is de jure exclusionary, the burden then shifts to the municipality to establish that the exclusion is for the public’s health, safety, morals, and general welfare.... The constitutionality of a zoning ordinance that totally excludes a legitimate use must bear a more substantial relationship to a stated public purpose than a regulation that merely confines a use to a certain zoning district, (citations omitted and emphasis in original and added). Id. at 606. A review of the record establishes that Section 14-1604(10) of the Code is not de jure exclusionary. There was no dispute that there were thousands of outdoor advertising signs located throughout the City. Therefore, there was no total exclusion of outdoor advertising signs provided they complied with the sign ordinance. In addition, Preston was unable to introduce any evidence at the Board hearing that Section 14-1604(10) of the Code precluded other sign providers from erecting outdoor advertising signs where appropriately zoned. Therefore, this Court must conclude that Section 14-1604(10) of the Code is not de jure exclusionary. B. De Facto Exclusionary Challenge Preston asserts that the sign removal requirement under Section 14-1604(10) of the Code is de facto exclusionary because in order to comply with this section the owner must already have an existing sign on the property for removal in order to erect a new sign. Preston asserts that this “removal requirement discriminates against newcomers in a district which otherwise allows the use.” See Brief of Appellee Preston Ship & Rail, Inc. at 59. In a “de facto challenge ... the landowner alleges that the ordinance on its face permits the proposed use, but does so under such conditions that the use cannot in fact be accomplished.” Centre Lime and Stone Co., Inc. v. Spring Township Board of Supervisors, 787 A.2d 1105, 1111 (Pa.Cmwlth.2001). Essentially, Preston’s argument is that it was precluded from removing an existing sign in order to erect a new sign only because Preston was not in the sign business. This is not a “de facto exclusionary argument.” As established at the hearing, the Property was located in the least restricted industrial area (LR Industrial District) and outdoor advertising signs were a permitted use. Although Preston claims that it was prevented from complying with the sign removal requirement of Section 14-1604(10) of the Code, Preston ignores the undisputed fact that the five proposed outdoor advertising signs clearly violated numerous provisions of Section 14-1460 of the Code. Actually, the only evidence to support Preston’s quest to erect the five proposed outdoor advertising signs was the generation of additional revenues for the rehabilitation of the Pier. Again, this Court must conclude that Preston failed to sustain its burden to prove that Section 14-1604(10) of the Code was defacto exclusionary. Accordingly, this Court denies Preston’s motion to quash SCRUB’S appeal and reverses the common pleas court’s denial of SCRUB’S appeal. Also, this Court denies Preston’s cross-appeal. ORDER AND NOW, this 27th day of September, 2006, the motion to quash the appeal of the Society Created to Reduce Urban Blight (SCRUB), et al. filed by Preston Ship & Rail, Inc. in 2099 C.D.2005 is denied. The order of the court of common pleas court’s denial of SCRUB’S appeal is reversed and the cross-appeal filed by Preston Ship & Rail, Inc. at 2192 C.D.2005 is denied. . On January 21, 2005, Preston filed a motion to quash the appeal before the common pleas court and submitted a similar argument. On April 5, 2005, the common pleas court denied the motion to quash and affirmed the decision of the Board. . By order dated November 1, 2005, this Court consolidated the appeals. . Section 17.1 of the Home Rule Charter Act was added by the Act of November 30, 2004, P.L. 1523, No. 193. . This Court notes that pursuant to the Pennsylvania Municipalities Planning Code (MPC), Act of June 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202 standing to challenge a variance was limited to a person affected by the variance application. In this situation an "aggrieved person” is usually a properly owner who resided within the vicinity of the requested variance. However, the MPC does not apply to Philadelphia. .The facts in Ieropoli as recounted by this Court in Konidaris are: The case involved a statute which limited asbestos-related liabilities of corporations that arose out of mergers or consolidations. The statute expressly applied to pending lawsuits. A machinist with a pending asbestos suit challenged the constitutionality of the statute, which had the effect of shielding one of the defendants from liability. On appeal from the trial court’s dismissal of the defendant, the Supreme Court reversed. It held that under the Remedies Clause, a cause of action that has accrued is a vested right which may not be eliminated by subsequent legislation. Konidaris, 884 A.2d at 353. . Article 1, Section 11 of the Pennsylvania Constitution provides: All courts shall be open; and every man for an injury done in his land, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct. . Again, this Court must reiterate that we are not declaring Act 193 unconstitutional but only "that the Statute as applied in this case is unconstitutional under” Article 5, Section 9 of the Pennsylvania Constitution. See Ieropoli, 577 Pa. at 159, 842 A.2d at 932. . This Court’s review, where as here, the common pleas court did not take additional testimony is limited to determining whether the Board committed an error of law or an abuse of discretion. Gall v. Zoning Hearing Board of Upper Milford Township, 723 A.2d 758 (Pa.Cmwlth.), petition for allowance of appeal denied, 559 Pa. 682, 739 A.2d 545 (1999). . Specifically, the following Sections of the Code are applicable: Section 14-1604(3) of the Code prohibits outdoor advertising and non-accessory signs "within five hundred feet of any other outdoor advertising sign”; Section 14-1604(7) of the Code provides that "[n]o more than two (2) sign faces or advertising messages shall be permitted on any one (l) lot; provided, that no more than one (1) sign support structure shall be permitted on any lot”; Section 14 — 1604(5)(b) of the Code limits maximum sign area to 1,500 square feet for frontages along a street 60 feet wide or wider; and Section 14-1604(10) of the Code requires that an existing sign or signs of equal or greater sign area be removed for each outdoor advertising and non-accessory sign erected.

OPINION BY Judge SIMPSON. The novel issue here is whether a Bureau of Workers’ Compensation (Bureau) Hearing Officer may compensate a Utilization Review Organization (URO) for the Bureau’s improper revocation of authorization to conduct utilization reviews. Chiro-Med Review Company (Petitioner) petitions for review of the Hearing Officer’s order that sustained its appeal of a Bureau determination revoking its authorization to conduct utilization reviews. Petitioner contends the Hearing Officer erred by failing to compensate it for losses during the Bureau’s improper revocation of its authorization. In a cross-appeal, the Bureau alleges the Hearing Officer could not sustain Petitioner’s appeal once he determined Petitioner violated the regulations upon which the revocation was based. Additionally, in a motion to quash, the Bureau raises issues of jurisdiction, standing, and sovereign immunity. Concluding sovereign immunity bars Petitioner’s claim for additional relief, we quash Petitioner’s appeal. On the Bureau’s appeal, we affirm the Hearing Officer’s order. I. Background In 1993, the General Assembly amended the Workers’ Compensation Act (Act) by adding provisions for implementing the utilization review process. The purpose of the amendments was to ensure injured employees receive medical treatment while also allowing employer challenges to the reasonableness and necessity of medical treatment for work-related injuries. Chiro-Med Review Co. v. Bureau of Workers’ Comp., 879 A.2d 373 (Pa.Cmwlth.2005) (Chiro-Med I). To implement the utilization review process, the Act allowed the Department of Labor and Industry (Department) to promulgate regulations authorizing UROs to perform utilization reviews. See Sections 306(f.l) and (f.2) of the Act; Chiro-Med I. Accordingly, the Department promulgated regulations setting forth the procedure for authorizing a URO as well as the procedure for the utilization review process itself. See 34 Pa.Code (Code) §§ 127.401-.670. Relevant to this appeal are those sections addressing the authorization, suspension, and revocation of a URO’s ability to perform utilization reviews. To perform utilization reviews, a URO must file an application with the Bureau. 34 Pa.Code §§ 127.651, 127.653. The Bureau has discretion to approve an application and, once authorized, a URO may perform utilization reviews for two years before seeking reauthorization. 34 Pa. Code § 127.654. If, however, the Bureau receives information the URO is not acting in accordance with the Act or its rules or regulations, the Bureau may suspend and ultimately revoke a URO’s authorization. 34 Pa.Code §§ 127.668-.669. The Bureau’s decision is not final; the regulations provide a URO the right of a new, or de novo, review before a hearing officer. 34 Pa. Code §§ 127.699(b)-.670(a). Upon new review, the hearing officer is required to issue an adjudication that includes findings of fact, conclusions of law and the rationale for the decision. 34 Pa. Code § 127.670(d). The hearing officer’s decision must inform the URO and the Bureau of their appeal rights to this Court. 34 Pa.Code § 127.670(e). With this as background, we turn to the present matter. II. Revocation of Petitioner’s Authorization Prior to 2002, the Bureau approved Petitioner as a URO and, in July 2002, granted Petitioner’s application for reauthorization for the period of August 1, 2002 through August 1, 2004. However, in August 2003, the Bureau suspended the assignment of new utilization reviews to Petitioner based on information it was not acting in accordance with the Bureau’s regulations. Upon completion of its investigation, the Bureau revoked Petitioner’s authorization to conduct utilization reviews on the grounds Petitioner violated several of the Bureau’s regulations. Petitioner appealed. The Hearing Officer conducted an evi-dentiary hearing and concluded the Bureau did not abuse its discretion by revoking Petitioner’s authorization. On appeal, we determined the Bureau’s regulations required the Hearing Officer to conduct a new review of the Bureau’s decision, not a limited scope appellate review. Chiro-Med I. Accordingly, we vacated the Hearing Officer’s decision and remanded for further proceedings based on the existing record. Id. On remand, the Hearing Officer determined Petitioner violated Bureau regulations at 34 Pa.Code §§ 127.652(c) (pertaining to changes in contents of application); 127.657 (pertaining to local business offices); and 127.660(b) (pertaining to list of reviewers). Notwithstanding, the Hearing Officer concluded the violations were minor and, consequently, there was an insufficient basis upon which to revoke Petitioner’s authorization. The Hearing Officer therefore sustained Petitioner’s appeal. Notably, the Hearing Officer’s order merely sustained Petitioner’s appeal; it did not address any other remedy available to Petitioner or require the Bureau to take corrective measures. Although it received no direction from the Hearing Officer as to details, the Bureau thereafter reissued Petitioner’s authorization effective as of the date of the Hearing Officer’s second determination (December 2005) through mid-October 2006. The 10-month period represents the amount of time remaining on Petitioner’s 2002-04 authorization prior to the Bureau’s revocation. Both parties now appeal. In its appeal, Petitioner, who prevailed before the Hearing Officer at least to the extent of securing a reinstatement of its authorization, seeks an order directing the Bureau to forego its usual assignment process and to allot Petitioner additional utilization reviews. The purpose of these additional assignments would be to compensate Petitioner for income lost during the period of revocation. Alternatively, Petitioner requests a remand to the Hearing Officer for implementation of the same remedy. In response, the Bureau filed a motion to quash Petitioner’s appeal, raising issues of jurisdiction, standing, and sovereign immunity. The Bureau’s appeal challenges the Hearing Officer’s authority to sustain Petitioner’s appeal. III. Bureau’s Motion to Quash 2478 C.D.2005 Prior to reaching the merits of either appeal, we examine the Bureau’s motion to quash. The Bureau contends this Court lacks jurisdiction to entertain Petitioner’s appeal, Petitioner lacks standing to appeal, and, Petitioner’s claims are barred by sovereign immunity. We address each argument in turn. A. Jurisdiction The Bureau first contends this Court lacks jurisdiction over Petitioner’s appeal because the general nature of Petitioner’s claim is one for damages, which we may not grant in our appellate jurisdiction. We conclude this Court enjoys jurisdiction to entertain the petition for review. Subject matter jurisdiction relates to the competency of a court to hear and determine controversies of the general nature of the matter involved. Fraisar v. Gillis, 892 A.2d 74 (Pa.Cmwlth.2006). “[T]he test for determining whether a court has jurisdiction of the subject matter is the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs.” Heath v. Workers’ Comp. Appeal Bd. (Pa. Bd. of Probation & Parole), 580 Pa. 174, 181, 860 A.2d 25, 29 (2004) (emphasis in original; citation omitted). “In other words, we determine whether ‘the court [has] power to enter upon the inquiry, not whether it might ultimately decide that it [is] unable to grant the relief sought in the particular case.’ ” Id. (Emphasis added.) Pursuant to 42 Pa.C.S. § 763(a), this Court enjoys exclusive jurisdiction to hear appeals from government agency determinations. Even where this Court does not provide Petitioner a remedy, see generally Northampton Convalescent Center v. Department of Public Welfare, 550 Pa. 167, 703 A.2d 1034 (1997) (an appellate court cannot award relief which could not be awarded by a lower tribunal or agency), we may determine whether any remedy exists under the Act. Accordingly, we have subject matter jurisdiction to entertain Petitioner’s appeal. 42 Pa.C.S. § 763(a). B. Standing Next, the Bureau contends Petitioner lacks standing to appeal because it was not aggrieved by the Hearing Officer’s determination. Pursuant to 2 Pa.C.S. § 702, any person “aggrieved” by a Commonwealth agency adjudication who has a direct interest in the adjudication may appeal to a court vested with jurisdiction to hear such appeals. See also Pa. R.A.P. 501 (“any party aggrieved, by an appeal-able order ... may appeal therefrom”). Whether a party has standing to appeal is determined on a case-by-case basis and, if a person is determined aggrieved, he has standing. Robb v. Workers’ Comp. Appeal Bd. (Dep’t of Pub. Welfare), 718 A.2d 875 (Pa.Cmwlth.1998). Courts allow a party to appeal where the remedy awarded is claimed to be insufficient. See generally Marsh v. Hanley, 856 A.2d 138 (Pa.Super.2004) (plaintiffs appeal permitted where jury did not award damages for compensable bodily injuries); Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572 (Pa.Super.2003), pet. for allowance of appeal denied, 578 Pa. 701, 852 A.2d 313 (2004) (prevailing party had standing to cross-appeal where court disregarded contract provision setting interest rate); Robb; see also Hercules Inc. v. AIU Ins. Co., 783 A.2d 1275 (Del.2000) (party is aggrieved by favorable judgment if it did not receive all relief requested). Our decision in Robb is instructive. There, employer filed a petition for physical examination. Employer filed for su-persedeas, which the workers’ compensation judge (WCJ) granted. At a hearing on the petition, claimant’s counsel admitted employer was entitled to a physical examination, but argued the WCJ improperly suspended claimant’s benefits because employer only filed a petition for examination. Ultimately, the parties agreed once claimant submitted to an examination, benefits would be reinstated. Claimant complied, and, at employer’s request, the WCJ entered an order indicating employer withdrew the petition. However, the WCJ’s order failed to reinstate claimant’s benefits. Claimant appealed to the Workers’ Compensation Appeal Board (Board), which concluded claimant lacked standing. We reversed the Board’s order and determined claimant had standing because the WCJ’s order effectively denied claimant benefits. We held that “[a]ny other hold ing to the contrary would produce the grossly inequitable result of essentially leaving [claimant with a right without a remedy....” Robb, 718 A.2d at 880. Here, Petitioner complains the Hearing Officer denied it a meaningful remedy to compensate it for revenue lost during the period the Bureau revoked its authorization until it was reissued, a period of 25/£ months. In its proposed findings of fact, Petitioner requested the assignment of additional utilization reviews; however, the Hearing Officer failed to address Petitioner’s request. As in Robb, Petitioner’s appeal is the only means by which it may challenge the Hearing Officer’s failure to compensate it for the Bureau’s actions. Thus, although Petitioner “prevailed” below, we conclude it has standing because it did not receive all the relief it requested. Marsh; Pittsburgh Constr. Co.; Robb; Hercules, Inc. C. Sovereign Immunity Finally, the Bureau contends it is immune from Petitioner’s claims pursuant to 1 Pa.C.S. § 2810, which reaffirmed the sovereign immunity provision found in Article 1, Section 11, of the Pennsylvania Constitution. 1 Pa.C.S. § 2310 provides, in part, the “Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.” In opposition, Petitioner argues sovereign immunity is not applicable because the proceedings before us result from a petition for review, not a civil action for damages. We failed to discover any case law addressing a Commonwealth agency’s right to assert sovereign immunity on a petition for review of an agency determination, and neither the Bureau nor Petitioner provides such authority. We observe, however, sovereign immunity is non-waivable and may be asserted at any time. Williams v. Phila. Housing Auth, 873 A.2d 81, 84 (Pa.Cmwlth.2005) (“defense of governmental immunity is an absolute unwaivable defense, not subject to any procedural device that could render the governmental agency liable beyond exceptions granted by legislature”); Warnecki v. Se. Pa. Transp. Auth., 689 A.2d 1023 (Pa.Cmwlth.1997). Moreover, our courts will not permit a party to do indirectly that which it cannot do directly. Commonwealth ex rel. Sheppard v. Cent. Penn Nat’l Bank, 31 Pa.Cmwlth. 190, 375 A.2d 874 (1977). As stated above, Commonwealth agencies enjoy immunity pursuant to the Pennsylvania Constitution, 1 Pa.C.S. § 2310, and 42 Pa. C.S. § 8521(a) (sovereign immunity generally). To impose liability on a Commonwealth party, the alleged negligent act must involve a cause of action that is recognized at common law or by statute, and the matter must fall within one of the exceptions to sovereign immunity listed in 42 Pa.C.S. § 8522(b). 42 Pa.C.S. § 8522; Raker v. Pa. Dep’t of Corr., 844 A.2d 659 (Pa.Cmwlth.2004), pet. for allowance of appeal denied, 580 Pa. 692, 859 A.2d 770 (2004). Here, Petitioner’s petition for review did not allege the Bureau negligently revoked its utilization review authorization and, consequently, it does not satisfy the first prong of 42 Pa.C.S. § 8522(a). See Crockett v. Edinboro TJniv., 811 A.2d 1094 (Pa. Cmwlth.2002) (sovereign immunity barred action under the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1-9.3). Moreover, assuming Petitioner alleged the Bureau’s actions were negligent, Petitioner’s claim does not fall within any of the enumerated exceptions to sovereign immunity found in 42 Pa.C.S. § 8522(b). Additionally, the Act is a legislative pronouncement, and any waiver of sovereign immunity must be specifically expressed. See generally Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619 (1995) (a party may only bring an action against a Commonwealth agency where the Commonwealth expressly waived sovereign immunity); New Founds. Inc. v. Commonwealth of Pa., Dep’t of Gen. Servs., 893 A.2d 826, 830 (Pa.Cmwlth.2006) (“[a]bsent a legislative abrogation of immunity, no party may seek to obtain relief against [a Commonwealth agency] that private parties enjoy.”). Here, nothing in the Act suggests the General Assembly intended to waive sovereign immunity. Furthermore, Petitioner’s request for additional utilization review assignments rather than monetary damages does not command a different result. In Fawber v. Cohen, 516 Pa. 352, 532 A.2d 429 (1987) the Supreme Court explained: [sjuits which seek to compel affirmative action on the part of state officials or to obtain money damages or to recover property from the Commonwealth are within the rule of immunity; suits which simply seek to restrain state officials from performing affirmative acts are not within the rule of immunity. (Citation omitted; emphasis deleted.) In Stackhouse v. Pennsylvania State Police, 892 A.2d 54 (Pa.Cmwlth.2006), pet. for allowance of appeal denied, — Pa. -, 903 A.2d 539 (2006), we examined the language of requested relief in determining whether sovereign immunity barred the plaintiffs claims against the Pennsylvania State Police (PSP). There, the plaintiff filed an action for declaratory and injunctive relief as well as for monetary damages allegedly resulting from a PSP investigation. The trial court dismissed the plaintiffs complaint on the grounds of sovereign immunity. On appeal, we reviewed the language of plaintiffs request for injunctive relief and found it comprised requests for two distinct remedies: an order barring the PSP from using any information gathered during the investigation for any purpose; and, an order mandating the PSP to institute guidelines and policies relative to internal affair investigations. As to the plaintiffs first request, we reversed the trial court because such actions are not barred by sovereign immunity. Id.; Bonsavage v. Borough of Warrior Run, 676 A.2d 1330 (Pa.Cmwlth.1996). In reviewing the plaintiffs second request, however, we determined the claim was barred by sovereign immunity because the plaintiff sought to compel an affirmative action by the PSP, the implementation of guidelines and policies. Hence, the language of the relief request was determinative of whether sovereign immunity barred the plaintiffs claims. Here, Petitioner seeks to compel a Commonwealth party to perform an affirmative task in a particular manner. Procedurally, Petitioner’s request for relief reaches us through a petition for review. Nevertheless, it seeks an order mandating a specific remedy. Because sovereign immunity bars Petitioner’s direct claim for money damages, the relief sought in the petition for review, which is meant to provide financial compensation, is likewise barred. Sheppard. Accordingly, we quash Petitioner’s appeal. D. Denial of Remedy As a result of our decision on the motion to quash, we do not decide Petitioner’s central issue on the merits, that the Hearing Officer denied it a remedy to compensate for income lost during the extended period that its authorization was revoked. We note, however, that after the Hearing Officer’s decision on remand the Bureau took action which afforded some relief to Petitioner. Specifically, in an apparent attempt to return Petitioner to the position it enjoyed before revocation, the Bureau reinstated Petitioner’s authorization for the unexpired term as of the time of revocation, and renewed assignments to it. This action is not currently before us for review. IV. Bureau’s Appeal 2570 C.D.2005 We now turn to the Bureau’s appeal, which raises issues as to the merits of the Hearing Officer’s decision. Once the Hearing Officer found Petitioner violated the applicable regulations, the Bureau asserts, he lacked authority to sustain Petitioner’s appeal. Specifically, the Bureau contends the Hearing Officer was required to defer to the Bureau’s discretion because the regulations permit revocation regardless of the degree of the violation and because our decision in Chiro-Med I does not authorize the Hearing Officer to ignore the regulations. As previously noted, the Hearing Officer conducted a de novo, or new, review. Chi-ro-Med I; 34 Pa.Code § 127.670(d). Examining the concept of de novo review in Millcreek Manor v. Department of Public Welfare, 796 A.2d 1020, 1029 (Pa.Cmwlth.2002), we explained: “De novo” review entails, as the term suggests, full consideration of the case anew as if it was not heard before and no decision had been previously rendered. The reviewing body is in effect substituted for the prior decision-maker and redecides the case. In conducting a hearing de novo, the tribunal hears the matter in its original, not appellate, jurisdiction. (Citations and footnote omitted.) Courts discuss whether a fact finder, conducting de novo review, may modify a penalty imposed by an administrative agency primarily in the areas of liquor license suspensions and various Department of Transportation (PennDOT) suspensions. Speaking through now Senior Judge Kelley, in Department of Transportation, Bureau of Driver Licensing v. Fiore, 138 Pa.Cmwlth. 596, 588 A.2d 1332 (1991), we examined the evolution of de novo review in driver’s license suspensions and the fact finder’s ability to modify the penalty imposed by PennDOT. In our examination, we noted that traditionally a trial court could not, on new review, modify an administrative agency’s penalty unless the court made findings of fact and conclusions of law different from the agency. See Dep’t of Transp., Bureau of Traffic Safety v. Kobaly, 477 Pa. 525, 384 A.2d 1213 (1978); Dep’t of Transp., Bureau of Motor Vehicles v. Century III Chevrolet, Inc., 151 Pa.Cmwlth. 32, 617 A.2d 43 (1992). However, the Supreme Court revisited the traditional approach in Adair v. Pennsylvania Liquor Control Board, 519 Pa. 103, 546 A.2d 19 (1988). There, the statutory language allowing for appeal to common pleas provided the court could “sustain, reject, alter or modify the findings, conclusions and penalties” of the Liquor Control Board. See Former Section 471 of the Liquor Code. Because of the expansive statutory language, the Court concluded common pleas could alter the Liquor Control Board’s determination regardless of whether it made findings and conclusions materially different from those of the board. Our decision in Fiore followed. Recognizing the limited application of Adair, we nevertheless determined that common pleas, in conducting new review of license suspensions, can modify the penalty imposed by PennDOT where the record evidences PennDOT abused its discretion when selecting a range of possible penalties provided by statute. Here, although the right of review to the Hearing Officer is provided by regulation rather than by statute, we conclude the Hearing Officer has authority to alter the Bureau’s determination. Under the applicable regulation, the hearing officer is required to “issue a written adjudication ... [including] ... all relevant findings and conclusions, and [stating] the rationale for the decision.” 34 Pa.Code § 127.670. Interestingly, although the Bureau’s revocation letter identified the manner in which Petitioner violated the regulations, the Bureau made no specific findings of fact and conclusions of law. Moreover, the Bureau’s letter was based on its investigation and did not result from an evidentiary hearing. Thus, the Hearing Officer’s decision was the first pronouncement of facts and conclusions of law resulting from an evidentiary hearing relative to the Bureau’s revocation of Petitioner’s authorization. Here, the Hearing Officer found, and the Bureau does not dispute, Petitioner’s violations of the regulations were minor. Reviewing the matter anew, the Hearing Officer could properly conclude minor violations did not warrant revocation. See generally State Corr. Inst. at Graterford, Dep’t of Corr. v. Brumfield, 141 Pa.Cmwlth. 43, 594 A.2d 852 (1991) (State Civil Service Commission could modify appointing authority’s disciplinary measure where only one charge against employee was supported by substantial evidence and other charge was minor). In addition, the authority of the Hearing Officer to sustain Petitioner’s appeal is necessarily implied by the appeal process. While the regulations do not expressly explain what outcomes can be achieved by the appeal process, at least two outcomes are obvious: the underlying adjudication is either affirmed or reversed. Therefore, the existence of an appeal process implies the authority in the reviewer to do something other than affirm the Bureau. Accordingly, we affirm the Hearing Officer’s order. ORDER AND NOW, this 28th day of September, 2006, it is hereby ordered Chiro-Med Review Company’s Petition for Review, appearing at 2478 C.D.2005, is QUASHED. Further, the May 18, 2005 order of the Bureau of Workers’ Compensation, appealed at 2570 C.D.2005, is AFFIRMED. . We may quash an appeal for any reason appearing on the record. Pa. R.A.P.1972(7). . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2626. .Added by the Act of July 3, 1993, P.L. 190, 77 P.S. §§ 531(6) and 531.1(7). . Our review of a state agency determination is limited to ascertaining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, whether an error of law was committed, or whether the agency’s practices and procedures were not followed. Chiro-Med I; Laundry Owners Mut. Liability Ins. Ass’n v. Bureau of Workers' Comp., 853 A.2d 1130 (Pa.Cmwlth.2004). . Pa. Const, art. 1 § 11, provides in relevant part: "[s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.” . For example, certain actions may be brought against the Commonwealth pursuant to Section 1702(b) of the Procurement Code, 62 Pa.C.S. § 1702(b). . Because we conclude sovereign immunity bars Petitioner's claim, we will not address the Bureau’s contention Petitioner waived its claim for damages because it failed to present testimony on the issue before the Hearing Officer. . Petitioner asserts the Hearing Officer’s denial of a remedy is in violation of Article 1, § 11 of the Pennsylvania Constitution and of federal due process. Notably, Petitioner does not challenge the constitutionality of the Act or of the regulations. Nevertheless, the Bureau afforded Petitioner procedural due process by providing it with notice and opportunity to be heard. Flickinger v. Lebanon Sch. Dist., 898 A.2d 62 (Pa.Cmwlth.2006). More specifically, the Bureau held a pre-revocation telephone conference with Petitioner to address the results of its investigation, and notified Petitioner by letter of October 2003 of its revocation decision and the right to appeal to the Hearing Officer. R.R. 3a-4a. Also, Petitioner fully participated before the Hearing Officer. Petitioner also claims the Hearing Officer denied it substantive due process by failing to provide an adequate remedy. Petitioner asserts a property right in its authorization. In addition, Petitioner claims a property right in lost income from assignments during the revocation. Recognizing Petitioner possesses a limited property right in its authorization, sovereign immunity nevertheless bars the specific relief sought here. . Act of April 12, 1951, P.L. 990, as amended, formerly 47 P.S. § 4-471. This language was deleted when Section 471 was reenacted and amended by the Act of June 29, 1987, P.L. 32. . After the parties appealed to this Court, Petitioner filed with the Department an Application for Attorney's Fees pursuant to the Act of December 13, 1982, P.L. 1127, as amended, 71 P.S. §§ 2031-35, commonly known as the Cost Act. The Hearing Officer denied and dismissed the Application for want of jurisdiction. On appeal, Petitioner failed to address the Application in its brief to this Court and, therefore, the issue is waived. AT & T v. Workers’ Comp. Appeal Bd. (DiNapoli), 816 A.2d 355 (Pa.Cmwlth.2003). Nevertheless, the Cost Act does not permit attorney's fees where the adjudication involved the grant, review, revocation or suspension of a license or registration. Section 2 of the Cost Act, 71 P.S. § 2032. Thus, in any event, Petitioner is not entitled to attorney’s fees.

OPINION BY POPOVICH, J.: ¶ 1 Appellant Jason J. McCance appeals the grant of a protection from abuse (PFA) petition filed by Appellee Gail J. McCance on grounds that: 1) Appellee lacked standing to file the PFA; and 2) the evidence was insufficient to sustain the PFA order. We affirm. ¶ 2 The facts of record establish that, at approximately 8:00 p.m. on the 26th day of July, 2005, Appellee was driving her nephew Zachary McCance home. Preceding the drive, the parties had been embroiled in a custody hearing involving Appellant, his sister-in-law Appellee, his son Zachary and the natural mother (Ms. Kelly Marie Perez). Ms. Perez traveled from Florida for the custodial hearing, stayed with Ap-pellee during this period, and accepted Appellee’s offer for a ride to the airport after the hearing in order for her to fly back to Florida. Zachary accompanied Appellee to the airport to see his mother off. ¶ 3 Thereafter, Appellee drove her nephew to the primary custodial parent/Appellant’s home. Appellee drove approximately 100 feet past Appellant’s home to avoid any confrontation. However, in the process of exiting the street adjacent to Appellant’s home, Appellant traversed the 100 to 150 feet to the roadway to confront Appellee. The events that followed were recounted by Appellee thusly: [As she] started driving out[, ... Appellant] was waiting for [her,] and he obstructed [her] view. He jumped in front of [her] vehicle. Then, as [she] was going, [she] didn’t stop. There was a stop sign at the end of the road. [Appellant] jumped off to the side, and he hit [her] car. And he was — on approaching [ ] him, he was holding, flaring his fist at [her], pointing his finger, yelling profanities. Then, whenever [Appellant] punched the car, [Appellee] stopped the car at that point because Zach at that point had gotten to the bottom of the driveway. [Appellee] was afraid for Zach as well as [her]self [because] [Appellant] hadn’t seen him in six weeks, and so [Appellee] was afraid for Zach. [Appel-lee] got out of the car. [Appellee] told Zachary to remember what [Appellee] said to him. [ ... ] [Appellee] never had any words with [Appellant] at all. [Appellant] was threatening [her], [Appellant stated:] I’m going to get you. [Appellant was] mother f ing [Appellee]. Then, [Appellee] got in the car. That’s when [Appellee] proceeded to go to the police station. N.T. Final Protection From Abuse Hearing, 8/4/05, at 4-5. Appellant also admitted hitting Appellee’s vehicle (causing $1,000 worth of damage) and using profanity during the confrontation. Id. at 52-53. Further, in fear for her safety and that of her nephew, Appellee reported the incident to the police, who issued Appellant a citation. Id. at 54; see also Id. at 22a (Appellee: “[Appellant was threatening me, shaking his fist, his finger. [Appellant] told Zach to get the f — k up in the house right now, showing his anger then.”). ¶ 4 At the end of the PFA hearing, the trial court entered an order granting Appellee’s petition for a period of six months. A timely appeal was filed, and Appellant thereafter submitted a Pa. R.A.P. 1925(b) statement proffering two issues for our review. The first issue reads: “Whether the trial court erred in denying the motion of the [Appellant], made during the final hearing, to dismiss the Petition for Protection from Abuse based upon [Appellee’s] lack of standing to bring the petition.” More particularly, Appellant argues: The Appellee’s only relationship to the Appellant is through her marriage to Appellant’s brother. The Protection From Abuse Act (23 Pa.C.S.[A.] § 6101 et[][s]eq.) is designed to promote peace and tranquility of households, and among family members and intimate partners who reside or have resided together. The relationship between the parties in the instant case is not one contemplated by the Act. Further, any affinity or familial relationship resulting from the Appellee’s connection to Appellant’s child by marriage! ] was created wholly by the Ap-pellee, through her ill-advised attempts to intervene in a pending custody dispute. Certainly, our legislature never intended extended relatives to gain standing under the Act solely for their own actions, in creating disputes where no true familial relationship previously existed. As such[,] the Appellee was without standing to bring a petition under the Act. Appellant’s brief, at 7. We agree with Appellant’s interpretation of the purpose sought to be achieved with the Legisla ture’s promulgation of the Act, but we distance ourselves from his view of the perimeters of the Act. ¶ 5 “The goal of the Protection from Abuse Act is protection and prevention of further abuse by removing the perpetrator of the abuse from the household and/or from the victim for a period of time.” Viruet v. Cancel, 727 A.2d 591, 595 (Pa.Super.1999); see also Commonwealth v. Snell, 737 A.2d 1232 (Pa.Super.1999) (purpose of the Act is to protect victims of domestic abuse, and it does so through numerous provisions that enable court to respond quickly and flexibly to both early signs and subsequent acts of abuse with issuance of protection orders); Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918 (1985) (semble). As for individuals who may seek refuge within the confines of the Act, the statute’s protective sphere encompasses, inter alia, a “family or household members.” In section 6102 of the Act, the term “family or household members” is defined as, Spouses or persons who have been spouses, persons living as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood. 23 Pa.C.S.A. § 6102 (Supp.2006) (emphasis added). Herein, Appellant and Appellee were not spouses, persons living as spouses, related by consanguinity, current or former sexual or intimate partners or persons who share biological parenthood. Consequently, we are left with the determination of whether the litigants were “persons related by affinity.” Unfortunately, the Act does not define “affinity.” Therefore, as there is no controlling case law interpreting the term in section 6102, we must decipher the General Assembly’s intent with respect to the statute’s perceived purpose and the consequences of a particular interpretation. Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776 (Pa.Super.2006); see also Vitac Corp. v. W.C.A.B. (Rozanc), 578 Pa. 574, 854 A.2d 481 (In ascertaining legislative intent, an appellate court must be guided by the primary purpose of the statute and may consider, among other things, the consequences of a particular interpretation.); In re Canvass of Absentee Ballots of November 4, 2003 General Election, 577 Pa. 231, 843 A.2d 1223 (2004) (It is only when the words of a statute are not explicit that a court may resort to other considerations, such as the statute’s perceived “purpose,” in order to ascertain legislative intent.). ¶ 6 Furthermore, as our review of the Act is one of law, our standard of review is de novo, and our scope of review is plenary. Sternlicht v. Sternlicht, 583 Pa. 149, 156, 876 A.2d 904, 908 (2005). When construing a statute, we are guided by the principles set forth in the Statutory Construction Act of 1972,1 Pa.C.S.A. §§ 1501-1991. See Krebs, 893 A.2d at 787 (citation omitted). Relevant to our review are the provisions set forth at 1 Pa.C.S.A. § 1921, concerning legislative intent. Section 1921 provides: (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions. (b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. (c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: (1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar objects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute. 1 Pa.C.S.A. § 1921. ¶ 7 Initially, as already noted, the term “affinity” is not defined in the definitional section of the Act. See 23 Pa.C.S.A. § 6102 (Definitions) (Supp.2006). And, our review of the “Historical and Statutory Notes” following section 6102 gives no guidance as to the meaning to be assigned “affinity” within the context of the Act. However, in conjunction with the Statutory Construction Act, it is not without precedent to utilize Black’s Law Dictionary and other definitional treatises to ascertain the meaning of a term. See, e.g., Carlacci v. Mazaleski, 568 Pa. 471, 798 A.2d 186 (2002) (reference to Black’s Law Dictionary was made for interpretative purpose, which led to establishment of a right to seek expungement of temporary PFA where PFA proceedings never legally evolved beyond the temporary order stage); Steele v. Statesman Insurance Company, 530 Pa. 190, 193, 607 A.2d 742, 743 (1992) (in interpreting meaning of exclusion in insurance contract, Pennsylvania Supreme Court looked to Black’s Law Dictionary’s definition of ejusdem generis (of the same kind or class)); In re Estate of Zambrano, 875 A.2d 307, 313 n. 8 (Pa.Super.2005) (semble); Ardrey Ins. Agency v. Ins. Co. of Decatur, 441 Pa.Super. 94, 656 A.2d 936, 939 (1995) (court not persuaded by Appellant’s reference to definition of “commission” in Black’s Law Dictionary and Random House Dictionary to show ambiguity because term was defined in paragraph 4 of the agency agreements); Laguna v. Erie Ins. Group, 370 Pa.Super. 308, 536 A.2d 419, 422 (1988) (court did not accept interpretation of “loss” proposed by Appellant, but looked to definition of term in Black’s Law Dictionary), overruled on other grounds, Neilson v. Nationwide Ins. Co., 738 A.2d 490 (Pa.Super.1999) (en banc). ¶ 8 In light of the preceding, the plain meaning of the term “affinity” has been defined as: 2. The relation that one spouse has to the blood relatives of the other spouse; relationship by marriage. 3. Any familial relation resulting from a marriage. collateral affinity. The relationship of a spouse’s relatives to the other spouse’s relatives. • An example is a wife’s brother and her husband’s sister. [ ... ] direct affinity. The relationship of a spouse to the other spouse’s blood relatives. • An example is a wife and her husband’s sister. quasi-affinity. Civil Law. The affinity existing between two persons, one of whom has been engaged to a relative of the other. secondary affinity. The relationship of a spouse to the other spouse’s marital relatives. • An example is a wife and her husband’s sister-in-law. Black’s Law Dictionary 63-64 (8th ed.2004). Cf. Sullivan v. DOT, Bureau of Driver Licensing, 550 Pa. 639, 645—46, 708 A.2d 481, 484 (1998) (“In the context of law making, the plain meaning of the term ‘enactment’ [pursuant to Article VIII(l) of the Compact between states to exchange vehicular citations] is ‘the method or pro cess by which a bill in the Legislature becomes a law.’ BLACK’S LAW DICTIONARY 526 (6th ed.1990).”). In like fashion, Webster’s Third New International Dictionary 35 (1971) defines “affinity” as: “bordering on, related by marriage [ ... ] 1: relationship by marriage (as between a husband and his wife’s blood relatives) — distinguished from consanguinity (his kinsman, by blood[ ...]); broadly: any familial relationship [...].” ¶ 9 In today’s world of split families burgeoning beyond the confines of local, county, and state lines, and the affect a child or children of these dispersed multifamily units have on the dynamics of a family environment, it is not without precedent that in-laws become embroiled in custodial disputes, as was the case here. These are individuals who are related by marriage to the litigants, and they invariable take sides and engender a flood of animosity from the opposing parent necessitating a pacifying agent, which in this case was the PFA court to enjoin contact between the parties. To preclude Appel-lee from seeking the protection of the Act would be to ignore reality: The natural parent (Appellant) and the in-law (Appel-lee) are inextricably intertwined with the child, and neither party appears willing to disassociate themselves from interacting with the child or the family unit. Therefore, a remedial mechanism in the form of a PFA order is the appropriate vehicle to keep the parties civil one toward the other. ¶ 10 We take all of the aforementioned into account in seeking to give meaning to all the terms in the PFA statute, preserve its objective, and, in the process, avoid the production of an absurd result. See 1 Pa.C.S.A. § 1921. Toward that end, we interpret “affinity” in the Act to include a family relationship of brother-in-law (Appellant) and sister-in-law (Appellee). Such an interpretation does not do violence to the purpose of the Act, which is to forestall escalation of disputes among family members where injury may be on the horizon. See Mahorsky v. Mahorsky, 22 D. & C.3d 210, 213 (1982) (“The entire thrust of the [Protection from Abuse A]ct and rules of civil procedure is to create an efficient, simple and rapid vehicle for the resolution of family disputes.”); contrast Olivieri v. Olivieri, 451 Pa.Super. 50, 678 A.2d 393 (1996) (PFA was not a vehicle to resolve dispute between sister and brother feuding as partners about the way the business was being operated). ¶ 11 Next, we turn to Appellant’s second issue, which challenges the sufficiency of the evidence to sustain the issuance of the PFA order. ¶ 12 ‘When a claim is presented on appeal that the evidence was not sufficient to support an order of protection from abuse, we review the evidence in the light most favorable to the petitioner and granting her the benefit of all reasonable inference, determine whether the evidence was sufficient to sustain the trial court’s conclusion by a preponderance of the evidence.” Miller on Behalf of Walker v. Walker, 445 Pa.Super. 537, 665 A.2d 1252, 1255 (1995). See 23 Pa.C.S.A. § 6107(a) (“the plaintiff must prove the allegation of abuse by a preponderance of the evidence”). This court defers to the credibility determinations of the trial court as to witnesses who appeared before it. Alfred v. Braxton, 442 Pa.Super. 381, 659 A.2d 1040, 1043 (1995). Having determined our standard of review, we analyze whether the evidence in the present case was sufficient, which we find it was and adopt the trial court’s opinion on the subject; to-wit: Abuse as defined by 23 Pa.C.S.A. § 6102(2) is “Placing another in reasonable fear of imminent serious bodily injury.” In the case at bar, the record will show that Plaintiff/Appellee has ade quately demonstrated that she had a reasonable fear of imminent serious bodily injury for her person. Ferri v. Ferri dictates that “actually physical injury is not required for the entry of a final order but reasonable fear of imminent bodily injury must be demonstrated.” See Ferri v. Ferri, 854 A.2d 600 (Pa.Super.2004). Plaintiff/Appellee testified that Defendant/Appellant stood in front of her car, yelling obscenities and verbal threats as she attempted to pull away. Additionally, there was testimony presented that Defendant/Appellant struck Plaintiff/Appellee’s car so hard that repairs were needed. Plaintiff/Appellee also presented testimony to the effect that Defendant/Appellant had anger issues, a drinking problem and was physical with other individuals in the past. There was evidence presented to support Plaintiff/Appellee’s fear in this matter. It was this Court’s impression that Plaintiff/Appellee’s fear was real, reasonable and imminent which warrants protection under the PFA Act. The PFA Act is meant to focus on prevention of abuse. Snyder v. Snyder, 427 Pa.Super. 494, 629 A.2d 977 (1993). The intent of remedies provided by the PFA Act is to allow persons to reside peaceably and without injury within their own families or residences. Miller v. Walker, 445 Pa.Super. 537, 665 A.2d 1252 (1995). This Court’s decision was in accordance with the intent of the PFA Act. Trial court opinion, 9/22/05, at 3-4. We concur, and would add that Appellant’s verbal chiding, intimidating demeanor (blocking Appellee’s vehicular access), threat of retaliation, and striking of Appel-lee’s vehicle to the point of damaging it coalesce to constitute abusive behavior prohibited by 23 Pa.C.S.A. § 6102(a)(2) (Abuse as defined by the Act includes: “(2) placing another in reasonable fear of imminent serious bodily injury[.]”); Fonner v. Fonner, 731 A.2d 160 (Pa.Super.1999). As a result, the issuance of the PFA order was proper. ¶ 13 Accordingly, finding none of Appellant’s claims to be meritorious, we affirm the issuance of the PFA order. ¶ 14 Order affirmed. . 23 Pa.C.S.A. § 6101 et seq., known as the “Protection From Abuse Act” (hereinafter the "Act"). . In 2005, Ms. Perez initiated litigation to change Appellant's primary custody of Zachary. Appellee and her husband (Appellant's brother) attempted to intervene in the matter by seeking temporary physical custody of Zachary on July 19, 2005, but the request was denied by the trial court. .At the PFA hearing, testimony revealed that a custodial hearing would be set for a future date to assess the merits of permitting Zachary to live in Florida with his mother.

OPINION BY POPOVICH, J.: ¶ 1 Appellant Pamela Johnson n/k/a Pamela Blesh appeals the order entered on February 21, 2006, in the Court of Common Pleas of Clinton County, that denied her petition for special relief that sought to collect certain gains realized by Appellee David E. Johnson from the sale of his vacation home and from the sale of certain investments. Upon review, we affirm in part and remand. ¶ 2 The relevant factual background and procedural history of this case are as follows: The parties were married on August 18, 1966. After 17 years of marriage, the parties separated in August of 1988. A divorce decree was entered on May 24, 1985. Following the divorce, Appellee remarried, but Appellant did not remarry. At the time briefs were submitted in this case, Appellee was 65 years of age and Appellant was 62 years of age. After entry of the divorce decree, the trial court adjudicated the economic issues attendant to the divorce. Thereafter, on March 19, 1986, the trial court entered an order of equitable distribution of the marital estate, supplemented by findings of fact and conclusions of law. In conformity with the equitable distribution order, Appellee was to retain his mill business, Clintondale Mills, while making monthly installment payments of his equitable distribution debt to Appellant. In total, Appellee was to pay Appellant $885,381.00, plus 10% interest, in monthly installments that exceeded $4,000.00. Additionally, Appellee was required to pay $5,000.00 toward Appellant’s attorney’s fees. The trial court did not award Appellant alimony or alimony pen-dente lite. ¶ 3 Appellee made monthly payments to Appellant pursuant to the March 19, 1986 order until June 1993, whereupon Appellee discontinued payment to Appellant due to the failure of his mill business. Appellant filed numerous petitions to enforce the equitable reimbursement payment schedule and petitions for contempt against Appellant to obtain her equitable distribution award. Thereafter, on March 1, 1995, the trial court entered an order that set a new payment schedule of the balance of the money Appellee owed Appellant, which, at that time, was agreed by the parties to be $304,944.18. The March 1, 1995 payment schedule required that Appellee sell certain assets to pay the equitable distribution debt owed to Appellant; until these assets were sold, Appellee was to pay Appellant monthly installment payments of $ 2,000.00. The payments were to be treated as a reduction of the equitable distribution debt and were to be treated without tax consequence to either Appellee as payor or Appellant as payee. See Trial court order, 3/1/1995, at 2-3 (unnumbered). Despite the effect of the order, the trial court characterized its order improperly as “alimony.” ¶ 4 Following entry of the trial court’s March 1, 1995 order, Appellee filed for bankruptcy protection pursuant to Chapter 7 of the United States Bankruptcy Code, Title 11 U.S.C. § 101, et seq. In response, Appellant filed a “petition to establish alimony,” in order to prevent Ap-pellee’s equitable reimbursement obligation to Appellant from being discharged in bankruptcy. The trial court denied Appellant’s petition. Appellant appealed to this Court, and we affirmed the trial court’s denial of her petition. See Johnson v. Blesh, 455 Pa.Super. 702, 688 A.2d 1234 (1996) (unpublished memorandum). ¶ 5 The U.S. Bankruptcy Court for the Middle District of Pennsylvania dismissed Appellee’s bankruptcy petition on September 6, 2000. Thereafter, on November 21, 2001, Appellant filed a petition for contempt/enforcement of the March 1, 1995 equitable distribution order. Appellee did not respond to the petition and, on January 9, 2001, was found in contempt of court and incarcerated in Clinton County Prison. In turn, Appellee filed a motion for bail. The trial court did not address this motion, but, on January 16, 2001, it rescinded its contempt order of January 9, 2001, released Appellee from Clinton County Prison, and issued a rule to show cause why Husband should not be held in contempt of court, returnable on January 30, 2001. ¶ 6 On March 20, 2001, following a hearing, the trial court found Appellee in contempt and ordered him to be incarcerated for six months in Clinton County Prison. The trial court’s contempt order also indicated that he could purge himself of the contempt by paying a lump sum of $20,000.00 to Appellant within 45 days of the date of the order. The order also required Appellee to pay Appellant “alimony” in the amount of 40% of his net weekly income or $326.00, whichever was greater. These “alimony” payments were to be collected through wage attachment by the Domestic Relations Office of Clinton County. As before, these “alimony” payments were to be used as payments toward Ap-pellee’s equitable distribution debt to Appellant and, therefore, constituted an order of equitable reimbursement. The trial court also ordered Appellee to pay Appellant’s attorney’s fees associated with the filing of the contempt petition. ¶ 7 On February 12, 2004, Appellee filed a motion for modification of the trial court’s order of March 20, 2001. Appellee alleged that his income had dropped precipitously since 2001, and that he was in need of relief from the March 20, 2001 order because he could not work to generate more income to pay his equitable distribution debt due to his health problems. The trial court treated this motion as a motion for special relief pursuant to Pa. R.Civ.P. 1920.43, and it scheduled a hearing on the motion for March 11, 2004. Appellant, in turn, requested that the motion for special relief be dismissed by the trial court, and she filed a memorandum in support of her request. ¶ 8 The trial court conducted a hearing on Appellee’s motion, and on March 26, 2004, granted Appellee’s motion. Appel lant filed a timely notice of appeal to this Court, and we reversed, finding that the trial court’s order constituted a forfeiture. See Johnson v. Johnson, 864 A.2d 1224 (Pa.Super.2004). Appellee filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which the Court denied. See Johnson v. Johnson, 583 Pa. 690, 878 A.2d 865 (2005). ¶ 9 In the fall of 2005, Appellee and his current wife sold their vacation home in Vermont. The vacation home was owned by Appellee and his wife as tenants-by-the-entireties property. Upon learning of the sale of the vacation home, Appellant transferred her money judgment, i.e., the total of Appellee’s outstanding equitable reimbursement debt, to Vermont in order to collect on the judgment through the proceeds of the sale of the home. In response, Appellee filed a motion for summary judgment in the Superior Court of Vermont (the Vermont trial court), which the Vermont trial court granted, thereby dismissing the case. ¶ 10 On November 28, 2005, after the conclusion of the Vermont litigation, Appellant filed a petition for special relief in the Clinton County Court of Common Pleas that sought to collect on her judgment through the proceeds of the sale of the Vermont vacation home. The trial court conducted a brief hearing on Appellant’s petition on January 19, 2006. At the conclusion of the hearing, the trial court ordered Appellee to provide Appellant his 2008 and 2004 joint federal income tax returns so that she could determine whether anyone paid rent to Appellee from use of the vacation home. The trial court did not decide the matter but, instead, ordered the parties to submit briefs on the issue. ¶ 11 Following review of Appellee’s 2004 joint federal income tax return, Appellant learned that Appellee and his current wife profited from the sale of certain Oppenheimer funds. Accordingly, on February 2, 2006, Appellant filed a second petition for special relief that requested payment of her judgment through the sale of the Oppenheimer funds. The trial court issued an order on February 6, 2006, that held the matter “in abeyance” until the submission of the parties’ briefs for the November 28, 2005 petition for special relief. ¶ 12 On February 21, 2005, following submission of the parties’ briefs, the trial court denied both the November 28, 2005 petition for special relief and the February 2, 2006 petition for special relief. Appellant, in turn, filed a timely notice of appeal to this Court. The trial court ordered Appellant to file a concise statement of matters complained of on appeal within 14 days of the date of its order, and she complied. Thereafter, on March 13, 2006, the trial court authored an opinion that addressed the issues presented in Appellant’s concise statement. ¶ 13 Appellant presents the following issues for our review: I. Did the trial court err by not finding [the] gains [that] were realized from the sale of Appellee’s $450,000.00 vacation home qualified as income as defined by the Pennsylvania support statute? II. Did the trial court err and abuse its discretion by not holding a hearing on Appellant’s request for special relief, as Appellee acquired substantial monies from the sale of his vacation home and by cashing in stocks and bonds which could have been utilized to pay monies owed to Appellant, which have remained unpaid for twenty years? III. Did the trial court err by not enforcing its March 20, 2001 order which required Appellee to pay 40% of his income on the twenty-year old equitable distribution award? Appellant’s brief, at 4. ¶ 14 We exercise an abuse of discretion standard of review in an appeal from the denial of a petition for special relief under the Domestic Relations Code. See Johnson, 864 A.2d at 1229. An abuse of discretion has been explained by the appellate courts of this Commonwealth as more than an error in judgment; we may find an abuse of discretion only on clear and convincing evidence that the trial court misapplied the law or overrode it or that the judgment reached was manifestly unreasonable, or based on bias, ill-will, or partiality. Id., 864 A.2d at 1229. ¶ 15 With regard to Appellant’s first issue, we note that this case is not a support case; the debt owed to Appellant by Appellee has its genesis in equitable distribution not a support obligation, and, therefore, Pennsylvania support law has no application to this case. Accordingly, the definition of “income,” set forth in the Pennsylvania support statute has no bearing on the matters before this Court. Accordingly, Appellant’s argument fails. ¶ 16 We consider next whether the trial court erred by failing to require Appellee to use the proceeds of the sale of the Vermont vacation home to satisfy the equitable distribution debt he owes to Appellant. There is no dispute between the parties that the Vermont vacation home was owned by Appellee and his current wife as tenants-by-the-entireties property. A tenancy by the entireties is a form of co-ownership of real or personal property by husband and wife, with its essential characteristic being that “each spouse is seised per tout et non per my, ie., of the whole or the entirety and not of a share, moiety or divisible part.” In re Gallagher’s Estate, 352 Pa. 476, 43 A.2d 132 (1945) (citations omitted). When one spouse dies, the surviving spouse takes no new estate; rather, the only change is in the properties of the legal entity holding the estate. Beihl v. Martin, 236 Pa. 519, 84 A. 953 (1912). For the duration of the entireties estate, either spouse has the presumptive power to act for both, so long as both spouses share the proceeds, and neither spouse may appropriate property for his or her own use, to the exclusion of the other spouse, without the consent of the other spouse. Fazekas v. Fazekas, 737 A.2d 1262, 1264 (Pa.Super.1999). Entireties property is unavailable to satisfy the claims of the creditor of one of the tenants. Patwardhan v. Brabant, 294 Pa.Super. 129, 439 A.2d 784 (1982). However, a conveyance in fraud of creditors may be appropriately attacked, but the proceedings must conform to proper procedures. Id., 439 A.2d at 784. ¶ 17 In the present case, the law is clear that the mere sale of the Vermont vacation home does not convert automatically the personal property received as a result of the exchange, ie., the cash received from the sale, to a form of ownership other than entireties property. See, Beihl, at 519, 84 A. 953 (entireties property may be real or personal property); see also In re Estate of Cambest, 756 A.2d 45, 53 (Pa.Super.2000) (an intention to create entireties property is assumed from deposit of asset in both names of husband and wife, without more, and from fact of marital relationship). As this Court held in Sterling v. Smith, 200 Pa.Super. 544, 189 A.2d 889 (1963), monies received from the sale of entireties property are impressed with the status of entireties property even where the funds are placed into a bank account owned by only one spouse. Sterling, 189 A.2d at 890-91. We reached this conclusion because bank deposits payable to husband and wife or to husband or wife, are presumed to be tenancies by the entireties with all the benefits relating to entireties ownership. Id., 189 A.2d at 889. In matters of entireties property, either spouse has the power presumptively to act for both, so long as the marriage continues, without any specific authorization, provided the proceeds of such action inure to the benefit of both and the estate is not terminated. Id., 189 A.2d at 889. Appellant presented no evidence or argument that the funds realized from the sale of the home were for the sole benefit of Appellee or that the sale of the home was made by Appellee and his current wife to defraud Appellant. As such, Appellant cannot attach the proceeds of the sale of the Vermont vacation home to collect on her judgment. See Patwardhan, 439 A.2d at 784. ¶ 18 We do not reach the same conclusion with regard to the Oppenheimer funds sold by Appellee and his current wife. Appellant learned of the sale of the Oppenheimer funds after the hearing when she received Appellant’s joint federal income tax return. After learning of the sale of the Oppenheimer funds, Appellant filed a prompt second petition for special relief on February 2, 2006, which petition the trial court held “in abeyance” until the submission of briefs on Appellant’s previous petition. The trial court did not hold a hearing on the issue of the Oppenheimer funds. Thereafter, on February 21, 2006, the trial court denied both petitions. ¶ 19 There is no indication on the face of the record of the type of joint ownership Appellee and his current wife enjoyed over the Oppenheimer funds and, consequently, there is no indication whether the monies gained from the sale of those funds could be collected by Appellant in satisfaction of her judgment. We recognize that, in this Commonwealth, a presumption exists that property held by a husband and wife is held by the entireties and that said presumption can be overcome only when the opposing party demonstrates, through clear and convincing evidence, that the property was not intended to be held by the husband and wife as entireties property. See Constitution Bank v. Olson, 423 Pa.Super. 134, 620 A.2d 1146, 1150 (1993). Nevertheless, because a hearing has not been held on the Oppenheimer funds issue, it is apparent that Appellant has not yet had an opportunity to demonstrate to the trial court that the Oppenheimer funds were not held as en- tireties property and, therefore, that Ap-pellee’s gains from the sale of the Oppenheimer funds were collectible to satisfy Appellant’s judgment. Consequently, the trial court had little basis on which to conclude that the Oppenheimer funds were owned as tenants by the entireties by Ap-pellee and his current wife. As such, we are constrained to conclude that the trial court abused its discretion when it decided Appellant’s February 2, 2006 petition without an adequate record. Consequently, we affirm in part the order of the trial court and remand with the directive that it conduct a hearing to determine the type of joint ownership that Appellee and his current wife enjoyed over the Oppenheimer funds prior to their sale. ¶ 20 Appellant’s final issue asserts that the trial court erred by not enforcing its Mai’ch 20, 2001 order which required Ap-pellee to pay 40% of his income on the twenty-year old equitable distribution award. In fact, Appellee has abided by the March 20, 2001 order by paying 40% of his SSI income to Appellant. Appellant’s argument merely reasserts her previous argument that Appellee must pay to her the proceeds of the sale of the Vermont vacation home in satisfaction of his equitable distribution debt. As we have found this argument unavailing, we will not readdress it. ¶ 21 Order affirmed in part. Case remanded with instructions. Jurisdiction relinquished. . This type of equitable distribution scheme is known as an order of "equitable reimbursement.” See Twilla v. Twilla, 445 Pa.Super. 86, 664 A.2d 1020 (1995). "Equitable reimbursement” is a judicially-created doctrine whereby a payor spouse pays installment payments to the payee spouse in reimbursement for the payee’s spouse’s contribution to the marriage, where the existing marital assets, if equitably distributed, would be insufficient to compensate the payee spouse for his or her contribution to the marriage. Id., 664 A.2d at 1023-24. . Husband's sole income is Social Security Income (SSI), in the amount of $1,209.00 per month. . The amount of the judgment, recorded on August 3, 2005, was $205,585.29. . Appellant also asserts that the trial court erred in failing to hold a hearing on this issue. In point of fact, the trial court conducted a brief hearing on this issue, and it heard the arguments of counsel on this issue. Accordingly, we dismiss Appellant’s argument. . A “fraudulent conveyance” is defined by 12 Pa.C.S.A. § 5105 as follows: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation. Inasmuch as Appellee and his current wife received more than the purchase price of the Vermont vacation home as a result of its sale, they received a "reasonably equivalent value” for the sale. Therefore, the plain wording of the statute indicates there can be no "fraudulent conveyance” in this instance. See 12 Pa.C.S.A. § 5105 (fraudulent conveyance requires transfer of debtor’s asset without receipt of equivalent value and insolvency of debtor).

OPINION BY BOWES, J.: ¶ 1 Appellant Allegheny County Housing Authority (“ACHA”) appeals from the order of the Allegheny Court of Common Pleas denying its post-trial motions. ACHA argues that the trial court abused its discretion and erred as a matter of law in failing to evict Appellee Lancing Johnson from a public housing unit owned by ACHA. For the reasons that follow, we agree and vacate the order of the trial court. ¶ 2 The relevant facts and procedural posture of this case are as follows. ACHA owns the Wilmerding Apartments, which provides low-income public housing primarily for elderly tenants located in Wil-merding, Pennsylvania. Appellee entered into a lease with ACHA for a unit in the Wilmerding Apartments on December 3, 2002. On December 4, 2003, ACHA’s property manager, Marian Watkins, sent Appellee a letter warning him that she had received complaints that he banged on the door of another resident’s apartment in the middle of the night on two separate occasions. One of those times, he used a baseball bat and caused damage to the door. See ACHA Letter, 12/3/03, at 1. Ms. Watkins informed Appellee that she would “begin eviction proceedings” if his disturbing behavior continued. Id. On March 16, 2004, Ms. Watkins again wrote to Appel-lee; this time, she advised him that he had violated his lease by allowing his nephew to reside with him longer than fourteen days. The letter also stated that several residents “complained about the fighting, arguing and loud noise” coming from Ap-pellee’s apartment. ACHA Letter, 3/16/04, at 1. Once again, Ms. Watkins told Appellee that he would be evicted if the disturbances continued. ¶ 3 A few weeks later, in the early morning hours of April 7, 2004, the police department received a complaint from Wil-merding Apartments regarding loud music and a report of an intoxicated man on the premises. Upon arriving, the officers heard loud music originating from Appel-lee’s unit and found Appellee slouched over the stairs. As a result, on April 15, 2004, Ms. Watkins provided Appellee with a Notice of Lease Termination, which stated that his lease was terminated for failing to comply with its terms and conditions. ACHA specifically averred that Appellee allowed guests to stay longer than fourteen days without written consent of the landlord and acted in an unreasonable manner and disturbed other residents’ peaceful use of them accommodations. ACHA also asserted that Appellee failed to pay rent. The sections of the lease that Appellee purportedly violated, Section 11.A, ll.B, and 11.1, read: 11. TENANT OBLIGATIONS Tenant shall have the following obligations: A. No Assignment or Sublease. Tenant may not assign this Lease, nor sublet or transfer possession of the premises. B. No Long-Term Guests (without permission); No Boarders or Lodgers. 1.) Tenant may not give accommodation to boarders or lodgers; 2.) Tenant may not allow guests to stay for more than a total of fourteen (14) days each year without the written consent of the Landlord. I. Right to Peaceful Enjoyment of Premises. Tenant will act, and cause household members and guests to act, in a manner which will not unreasonably disturb other residents’ peaceful enjoyment of their accommodations and will be conducive to maintaining the project in a decent, safe and sanitary condition. ACHA Lease, at 8-9. ACHA instructed Appellee to vacate the unit by May 15, 2004. ¶ 4 After Appellee failed to vacate the premises, ACHA initiated this eviction action on July 20, 2004. On October 28, 2004, an arbitration panel decided in favor of ACHA; however, Appellee appealed the decision to the Allegheny County Court of Common Pleas. ¶ 5 At a nonjury trial on January 28, 2005, ACHA presented the testimony of numerous residents who attested that Ap-pellee had disturbed their enjoyment of their residences in various ways. One resident, Susan Davis, testified that she had not been able to sleep as a result of Appel-lee’s late night partying and playing of loud music. Mary Shuster complained that noise and fighting originating from Appellee’s unit made her afraid to ride the elevators or leave her apartment in the evening. ACHA also presented evidence that Appellee had left the jets to his stove running, causing the fire department to evacuate the residents of Appellee’s floor. Following the receipt of evidence, the trial court concluded that Appellee did engage in behavior that violated the terms of the lease; however, the trial court did not enter a verdict. Rather, it retained jurisdiction over the matter to give Appellee an opportunity to modify his conduct and stated that it would grant ACHA possession in the event Appellee committed another violation of the lease. See N.T. Trial, 1/28/05, at 164-165. ¶ 6 Less than one month later, on February 18, 2005, Appellee’s unit caught fire and was destroyed. Additionally, the apartment building suffered approximately $50,000 in damage. As a result, ACHA filed a petition for emergency relief seeking to evict Appellee on the basis that he started the fire. A hearing on ACHA’s petition was held on March 15, 2005, wherein ACHA presented evidence that the fire was caused by a lit cigarette lying on the couch in Appellee’s apartment. Thomas Moore, a detective assigned to the Allegheny County Fire Marshal’s Office, testified that during a telephone conversation, Appellee stated that he “had been smoking and set the cigarette down on an end table next to the sofa[.]” N.T. Hearing, 3/15/05, at 69. Based upon the evidence from the scene and the ensuing investigation, Deputy Fire Marshal Michael Shawley opined that the cause of the fire was accidental and was a “smoking-related fire.” Id. at 60. At the hearing, Appellee actually admitted that he “may have left the cigarette on the table.” Id. at 140. ¶ 7 At the close of the hearing, the trial court instructed counsel for both parties to submit proposed findings of fact and conclusions of law on May 6, 2005. Counsel complied, and based on their respective submissions, the court adopted the following conclusions submitted by ACHA: 1. The lease between the ACHA and [Appellee] is a valid contract between the parties. 2. [Appellee] breached the lease when he violated Sections 11.A, ll.B, 11.1, 11.P, 16.C(a) and 16.C(k) of the lease and Sections A.3 and A.5 Rules and Regulations of Tenancy. Specifically, the following violations constitute serious or repeated violations of the material terms of the lease which is cause for termination by the ACHA: C. When [Appellee] was observed partying with loud music playing at all hours of the night by Susan Davis, he violated Section 11.1 of the lease by disturbing her peaceful enjoyment of her accommodation and inhibiting her ability to sleep. This violation constitutes a serious and repeated violation of the material term of the lease which is cause for termination by the ACHA. D. When [Appellee] pounded on the door of Mary Shuster and asked her to “come out of her apartment so that he could see her,” he violated Section 11.1 of the Tenant Obligations of the lease by disturbing her peaceful enjoyment of her accommodation in that Shuster was afraid to leave her apartment in the evening and afraid to ride the elevators. This violation constitutes a serious and repeated violation of the material term of the lease which is cause for termination by the ACHA. E. When [Appellee] banged on the door of his neighbor, Murray Watts, and actually dented the door on December 3, 2003 at 3:00 a.m., he violated Section 11.1 of the lease by disturbing the peaceful enjoyment of other residents [sic] accommodations. Further, he caused damage to the door. This violation constitutes a serious and repeated violation of the material term of the lease which is cause for termination by the ACHA. F. When [Appellee] allowed his nephew, Nathaniel Bunn, to reside with him for a period that exceeded 14 days, [Appellee] therefore violated Section 11(A)(B)1.2. [sic] by allowing a guest to stay for more than a total of 14 days with the written consent of the landlord. This violation constitutes a serious and repeated violation of the material term of the lease which is cause for termination by the ACHA. H. When [Appellee] left the stove jets and the pilots on to the oven, July 10, 2004, he endangered the safety of other residents and therefore violated Section 11 of the Tenant Obligations, Part (I) of the lease. This violation constitutes a serious and repeated violation of the material term of the lease which is cause for termination by the ACHA. ACHA’s Conclusions of Law Granted by the Trial Court, issued May 19, 2005, at 3-5 (internal citations omitted). Despite Appellee’s admission, the trial court determined that he was not at fault in the fire episode but instead found that causation of the fire remained in question. See Appel-lee’s Proposed Conclusion of Law Granted by the Trial Court, issued May 19, 2005, at 4. ¶ 8 Then, although the trial court determined that ACHA had established that Appellee violated terms of the lease, it entered the following verdict, which reads in pertinent part: Possession is granted to [ACHA] but that [ACHA] shall refrain from executing on its possession [as] long as [Appel-lee] submits weekly verification to his manager that he is attending the Turtle Creek MH/MR program in which he is currently enrolled and that he has attended at least three Alcoholics Anonymous Meetings per week. At the end of one year from the date of this Order, the Order will terminate and [Appellee’s] tenancy shall be governed by the terms of his then current lease. [ACHA] shall transfer [Appellee] to another housing community within one month of this Order. If [Appellee] is involved in any further alcohol related behavior which causes a disturbance on Housing Authority property within the term of this Order, [ACHA] may evict without need for further legal action. Sheriffs office shall recognize this verdict as a valid writ of possession. Nonjury verdict, 5/19/05, at 1. ACHA filed timely post-trial motions challenging the trial court’s ruling; however, the trial court denied relief on September 8, 2005. This timely appeal followed. ¶ 9 Our standard of review of a nonjury verdict is well-settled: Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, [where] the issue ... concerns a question of law, our scope of review is plenary. The trial court’s conclusions of law on appeal originating from a non-jury trial “are not binding on an appellate court because it is the appellate court’s duty to determine if the trial court correctly applied the law to the facts” of the case. Wilson v. Transport Ins. Co., 889 A.2d 568, 568 (Pa.Super.2005) (quoting Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547, 549-550 (Pa.Super.2004) (internal citations omitted)). ¶ 10 Essentially, ACHA argues that once the trial court determined that Appel-lee engaged in serious and repeated violations of material terms of the lease, ACHA was entitled to evict Appellee and gain possession. Therefore, ACHA continues that the trial court erred by not immediately granting it possession. We agree and find that the trial court misapplied the law to the facts of the case. ¶ 11 We begin our analysis by noting that Appellee is the resident of subsidized housing owned by a public housing authority, and therefore the United States Housing Act of 1987, 42 U.S.C. § 1437 et seq., governs. Congress, by enacting the Housing Act, has advanced the policy of aiding states in remedying “the unsafe housing conditions and the acute shortage of decent and safe dwellings for low-income families[.]” 42 U.S.C. § 1437(a). To that end, and significant to the instant matter, ACHA is required to “utilize leases which ... require that the public housing agency may not terminate the tenancy except for serious or repeated violation of the terms or conditions of the lease or for other good cause[.]” 42 U.S.C. § 1437dffl(5). Additionally, the Department of Housing and Urban Development (“HUD”) has ratified regulations that prescribe provisions that must be incorporated into lease agreements for public housing dwelling units. See 24 C.F.R. § 966.1 et seq. Included in those provisions are tenant obligations requiring the tenant to act and to cause guests to act “in a manner which will not disturb other residents’ peaceful enjoyment of their accommodations and will be conducive to maintaining the project in a decent, safe and sanitary condition[.]” 24 C.F.R. § 966.4(f)(ll). The regulations also state that serious or repeated violations of material terms of the lease, such as failing to fulfill tenant obligations, are grounds for termination of the tenancy. Id. at § 966.4(Z )(2)(i). ¶ 12 In addition to the statutes and regulations governing this type of lease, we are aware that cases such as this warrant special consideration due to the nature of a tenant’s financial status. Specifically in the instant matter, we are cognizant of the facts that Appellee has a severe drinking problem and qualifies for public housing. He may not have the means to find alternate housing if evicted. In fact, the trial court indicated the same at trial by noting that despite what the evidence established, it would not be “throwing anybody out on the street” in inclement weather. However, we find that this concern cannot override established principles of law and other residents’ rights. To illustrate this point, we find Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002), instructive. ¶ 13 In Rucker, the Oakland Housing Authority “(OHA)” instituted eviction proceedings against public housing tenants alleging violations of the provisions in their leases. OHA averred that two defendants’ respective grandsons were caught smoking marijuana in the apartment complex, the daughter of another defendant was found with cocaine and a crack cocaine pipe three blocks from the residence, and another defendant’s caregiver was caught on three separate occasions with cocaine in his apartment. The evictions were predicated on 42 U.S.C. § 1437d©(6), which requires that public housing agencies “utilize leases which ... provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy.” The tenants’ leases, tracking the language of section 1437d©(6), obligated the tenants to “assure that the tenant, any members of the household, a guest, or another person under the tenant’s control, shall not engage in ... any drug-related criminal activity on or near the premise[s].” Id. at 128, 122 S.Ct. 1230. The tenants’ leases also stated that the tenant “understand[s] that if I or any member of my household or guests should violate this lease provision, my tenancy may be terminated and I may be evicted.” Id. ¶ 14 The tenants argued that the statute does not require lease terms authorizing the eviction of innocent tenants who lack knowledge of drug-related criminal activities. The Supreme Court rejected this argument, finding that section 1437d “unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity.” Id. at 130, 122 S.Ct. 1230. In reaching this conclusion, the Court posited: Regardless of knowledge, a tenant who ‘cannot control drug crime, or other criminal activities by a household member which threaten [the] health or safety of other residents, is a threat to other residents and the project.’ With drugs leading to ‘murders, muggings, and other forms of violence against tenants,’ and to the ‘deterioration of the physical environment that requires substantial government expenditures,’ it was reasonable for Congress to permit no-fault evictions in order to ‘provide public and other federally assisted low-income housing that is decent, safe, and free from illegal drugs[.]’ Id. at 134, 122 S.Ct. 1230 (internal citations omitted); see also Powell v. Housing Authority of the City of Pittsburgh, 571 Pa. 552, 812 A.2d 1201 (2002) (holding that a public housing authority may terminate benefits conferred by section 8 of the United States Housing Act of 1937, 42 U.S.C. § 1437f, for the violent criminal activity of a family member without having to prove that the violent criminal activity threatens the health, safety, or right to peaceful enjoyment of the premises by other residents). ¶ 15 Congress, in enacting section 1437d, made clear that public housing agencies may evict tenants who engaged in serious or repeated violations of the terms of the lease. ACHA’s lease complies with and tracks the language of the federal regulations. For example, Section 11.1 of the ACHA lease mirrors the language of section 966.4(f)(ll). Additionally, the lease includes grounds for termination specifically contemplated by Congress and the HUD regulations, as evidenced by the inclusion of the clause that ACHA may terminate the tenancy “only for serious or repeated violation of the material terms of the lease, such as failure to make payments due under the lease or to fulfill tenant obligations as described herein[.]” ACHA Lease, Section 16.C, at 12 (emphasis in original). ¶ 16 Therefore, we will now examine the facts of this case to determine if ACHA had the right to evict Appellee for repeatedly violating the terms of the lease. As Appellee engaged in a pattern of behavior that disrupted other residents’ peaceful enjoyment of their accommodations, we find that ACHA was entitled to evict Appellee. ¶ 17 The evidence from the trial held on January 28, 2005, established that Appel-lee: 1) repeatedly played loud music at all hours of the night; 2) banged on the doors of other residents; 3) caused damage to another resident’s door; 4) permitted his nephew to reside with him in excess of fourteen days without written consent from ACHA; 5) allowed his nephew to engage in fighting, arguing, and creating loud noise during his stay; 6) engaged in disruptions requiring police intervention on April 7, 2004; and 7) left the stove jets and oven pilot running, thereby causing the evacuation of his floor. Regarding his nephew, Ms. Watkins observed that he would arrive at all hours of the day and night and prop the door open to avoid the security system, and she stated that he wrote an obscenity on the door of one of Appellee’s neighbors. N.T. Trial, 1/28/05, at 87-88; ACHA’s Proposed Findings of Fact Granted by Trial Court, issued May 19, 2005, at 6. Appellee received two written notices that warned him of his disruptive behavior and instructed him to modify it immediately. ¶ 18 Moreover, we disagree with the trial court’s finding that the fire in Appel-lee’s unit could not be considered a violation of the terms of the lease. The trial court’s finding was simply not supported by competent evidence. The evidence presented at the March 15, 2005 hearing established that Appellee, albeit not intentionally, started the fire which subsequently caused severe damage to the Wilmerd-ing Apartments. The Allegheny County Fire Marshal determined that the fire was accidental and was smoking-related. Ap-pellee admitted responsibility for starting the fire when he told Mr. Moore that he “had been smoking and set the cigarette down on an end table next to the sofa[.]” N.T. Hearing, 3/15/05, at 69. As such, Appellee’s negligence should not be discounted simply because the fire was labeled “accidental.” His behavior directly jeopardized the safety and well-being of all residents, particularly those elderly residents who may have difficulty evacuating the building quickly in the event of an emergency. ¶ 19 Viewing the entire record, Appel-lee’s behavior in the apartments is certainly the type Congress sought to remedy in public housing when it enacted section 1437d. The record clearly shows that Appellee repeatedly disrupted other residents’ quiet enjoyment of their accommodations. In addition to numerous instances of disruptive conduct, he twice endangered the lives of other residents by creating fire hazards. Furthermore, Appellee threatened the safety of all tenants by allowing his nephew to bypass the building’s security measures, thereby permitting access to the apartment complex by strangers. We find his conduct to be as damaging to the Wilmerding Apartments as the defendants’ actions in Rucker. Therefore, Appellee’s behavior unequivocally amounted to “serious or repeated violation[s] of the material terms of the lease.” ¶ 20 Finally, we are sympathetic to the hardship that Appellee may face in light of his eviction. We also understand that the right of a person in Appellee’s shoes to continue to live in subsidized housing is an important right. However, contrary to his assertions, his right to occupancy is not absolute; Congress and the Supreme Court have made this point clear. See Rucker, supra. Having found that Appel-lee engaged in “serious or repeated violations” of the lease, the trial court erred by not immediately granting ACHA possession of his unit. ¶ 21 Order vacated. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished. . For purposes of clarity, we have renumbered the trial court's findings. . Congress has vested the responsibility, flexibility, and accountability in the public housing authorities like ACHA, which administer the programs providing federal housing assistance. 42 U.S.C. § 1437(a)(1)(C). A public housing authority may offer several forms of assistance. Herein, ACHA has provided public housing assistance to those individuals, such as Appellee, who lease a unit in a dwelling owned and operated by ACHA. See 42 U.S.C. § 1437d(Z). . Indeed, the trial court’s motivation to retain jurisdiction over the matter stemmed from its concern for Appellee’s well-being if evicted. On the day of the hearing, January 28, 2005, the trial court noted that the outside temperature was negative three degrees and that evicting Appellee would only "increase the problems for the police and everybody else.” N.T. Trial, 1/28/05, at 11. . Contrary to Appellee's assertion, Rucker does not stand for the proposition that a pub-lie housing authority may terminate a tenancy only for drug-related or criminal activity. . Another resident, Lolita Thompkins, testified that Appellee, in Thompkins’s presence, told a friend that “this was the bitch that have [sic] me evicted from this building.” N.T. Trial, 1/28/05, at 47. She also stated that Appellee threatened her with a knife. Despite her testimony, though, the trial court did not find it constituted a material breach of the lease because Ms. Thompkins openly referred to Appellee as a "faggot,” and the trial court felt that she had a strong bias towards Appel-lee. Id. at 158-159. The trial court also discounted the effect of the knife incident, stating, "[T]he testimony that I’ve received with regard to the brandishing of a knife, ... I don’t give any weight to in the decision that I make for the reason that the only purported victim is the very person who felt, for whatever reason, inclined to withdraw the charges.” Id. at 151-152. As these factual findings are supported by competent evidence, we must give deference to them despite ACHA’s assertions to the contrary.

OPINION BY Judge SPRAGUE. I.INTRODUCTION The Judicial Conduct Board (Board) filed a Complaint with this Court on February 16, 2005 against Magisterial District Judge Ernest L. Marraccini (Respondent) in which the Board charges Respondent with three violations of the Pennsylvania Constitution and three violations of the Rules Governing Standards of Conduct of Magisterial District Judges all of which are based on Respondent’s conduct over a 20-30 minute period on the morning of May 25, 2004. The Board charges that Respondent’s conduct was such that subjects him to discipline under the Pennsylvania Constitution, Article V, § 18(d)(1) for six separate reasons: 1. The Respondent has violated Article V, § 18(d)(1) of the Pennsylvania Constitution by committing misconduct in office. (Count 1). 2. The Respondent has violated Article V, § 18(d)(1) of the Pennsylvania Constitution by failing to perform the duties of office. (Count 2). 3. The Respondent has violated Article V, § 18(d)(1) of the Pennsylvania Constitution by engaging in conduct which brings the judicial office into disrepute. (Count 3). 4. The Respondent has violated Rule 3A. of the Rules Governing Standards of Conduct of Magisterial District Judges which provides in part: A magisterial district judge shall devote the time necessary for the prompt and proper disposition of the business of his office. (Count 4). 5. The Respondent has violated Rule 4C. of the Rules Governing Standards of Conduct of Magisterial District Judges which provides in part: A magisterial district judge shall be patient, dignified and courteous to litigants, witnesses, lawyers and others with whom he deals in his official capacity. (Count 5). 6. The Respondent has violated Rule 4D. of the Rules Governing Standards of Conduct of Magisterial District Judges which provides in part: A magisterial district judge shall accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. (Count 6). The Board and the Respondent have submitted stipulations as to some of the facts pursuant to C.J.D.R.P. No. 502(D)(2). The Court accepted the pertinent stipulations and proceeded to trial on September 28, 2005. The Court now makes its Findings of Fact; those which have been stipulated are so designated. II. FINDINGS OF FACT 1. Pursuant to Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania and Judicial Conduct Board Rule of Procedure 31(A)(3), promulgated by the Pennsylvania Supreme Court on March 20, 1995 (amended 1996), the Board is granted authority to determine whether there is probable cause to file formal charges, and, when it concludes that probable cause exists, to file formal charges, against a justice, judge, or justice of the peace, for proscribed conduct and to present the case in support of such charges before the Court of Judicial Discipline. (Stipulation No. 1). 2. Since on or about December 28, 1992, the Respondent has served continuously to the present as magisterial district judge for Magisterial District 05-2-26 in Allegheny County, the Fifth Judicial District, Pennsylvania, encompassing the Townships of Elizabeth ánd Forward, and the Boroughs of Elizabeth and West Elizabeth, and with an office at Swiss Alpine Village, 250 Swiss Lane, Route 48, Elizabeth, Pennsylvania, 15037. (Stipulation No. 2). 3. On or about May 25, 2004, the Respondent presided over court for Magisterial District Judge Susan F. Evashavik, Magisterial District 05-2-08 in Allegheny County, at 2065 Ardmore Boulevard, Pittsburgh, Pennsylvania, 15221. (Stipulation No. 3). 4. Judge Evashavik’s magisterial district includes Edgewood Borough. 5. Respondent substituted (“covered”) for Judge Evashavik that day at her request. She made the request by telephone about a week earlier at which time it was agreed that Respondent would arrive at 9:30 a.m. (N.T. 184-85). He had covered for her predecessor before but never for Judge Evashavik. (N.T. 186). Respondent had covered for other magisterial district judges 51 times in 2003 and 31 times in 2004. (N.T. 183). 6. Judge Evashavik’s office had scheduled thirty-three traffic cases for 9 a.m. that morning. All thirty-three cases had been filed by the Edgewood Borough Police Department. 7. When Respondent arrived at Judge Evashavik’s court shortly before 9:30 a.m. she was waiting at the rear entrance and they engaged in some conversation after which she told him that “the chief would be there as the reader because the officers weren’t going to show.” (N.T. 187, 219, 227). 8. On several occasions both before and after Respondent opened court, Chief Paul Wood of the Edgewood Borough Police Department told Respondent that under the rules he couldn’t dismiss or “throw out” a case just because the officer doesn’t show and that he would be reading the cases. (N.T. 42, 46, 49, 62-63, 66-67, 103, 187-89, 193). ' Respondent warned the Chief that he might just throw out all of the cases (N.T. 189) and told him that he knew the rules. (N.T. 193). 9. The rule to which Chief Wood was referring was Pennsylvania Rule of Criminal Procedure No. 454(B) which provides: If the defendant pleads guilty, the issuing authority shall impose sentence. If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as trials in criminal cases are conducted in the courts of common pleas when jury trial has been waived; however, in all summary cases arising under the Vehicle Code or local traffic ordinances, the law enforcement officer observing the defendant’s alleged offense may, but shall not be required to, appear and testify against the defendant. In no event shall the failure of the law enforcement officer to appear, by itself, be a basis for dismissal of the charges against the defendant. 10. Respondent obtained the citations from Judge Evashavik’s office staff and brought them to the bench. The citations were stapled together in batches of five. Since the cases were to be called in the order in which the defendants had signed in, it was necessary for Respondent to unstaple the batches. Respondent was required to do this with his fingernails and in the course of this one of the batches fell to the floor. Officer Quinn retrieved it and put it back on the bench. (N.T. 191-92). 11. After disposing of a case filed by a state policeman (N.T. 194), Respondent called the first case of the thirty-three filed by officers of the Edgewood Borough Police Department. This case was a citation against Sterling Howard Murray charging that he had failed to stop at a stop sign; the citation had been issued by Officer Livingston of the Edgewood Borough Police Department. (N.T. 55, Board Exhibit A). 12. Respondent asked if the issuing officer was present and Chief Wood stated he was not but again told the Respondent that he was allowed to read the cases, that Judge Evashavik allowed “us” to read the cases (N.T. 62-68), that Judge Evashavik doesn’t require the issuing officer to be present nor did the law require it. (N.T. 108). 13. Respondent found the defendant not guilty. (N.T. 45-47, 62, 103-04, 200). Before he left the courtroom the defendant asked Respondent if he would get his collateral back; Respondent replied that “if I don’t spend it on my vacation, yes, you’ll be getting your money back.” (N.T. 45, 104, 200). This remark was made in a joking manner in an effort to lighten the atmosphere in the courtroom. (N.T. 200). 14. The second case of the Edgewood Borough cases called was a citation filed against Neil Salopek for driving with an expired license; the citation had been issued by Officer Lewis of the Edgewood Borough Police Department. (N.T. 46, 105,115-16,197, Board Exhibit A). 15. Officer Lewis was not present and the Commonwealth did not produce any evidence that the defendant’s license was expired at the time of the citation and, upon the direction of Respondent, Officer Quinn, who was present in court with Chief Wood, examined the defendant’s license and reported that it appeared to be valid, whereupon Respondent found the defendant not guilty. (N.T. 46, 105, 115-16,196-98). 16. Chief Wood testified that Officer Quinn had the certified copy of the Penn-DOT record which might have established that, at the time the citation was issued, Salopek’s driver’s license was expired: “So, Officer Quinn did have that sheet.” (N.T. 46). Officer Quinn testified that “he wouldn’t have had that but Chief Wood would have.” (N.T. 115). Quinn testified that neither he nor Wood offered it. (N.T. 107). The Respondent testified that neither Wood nor Quinn had it or offered it. (N.T. 197-99). We find that neither had it nor offered it into evidence. 17. The third case of the Edgewood Borough cases called was a citation filed against Rachel Elizabeth Barron for failure to obey a traffic control device (§ 3111A of the Vehicle Code — a no-points violation); the citation had been issued by Officer Kusinsky of the Edgewood Borough Police Department. (N.T. 47-48, 106-07,195, Board Exhibit A). 18. Although Officer Kusinsky was not present (N.T. 47), the defendant testified after which Respondent found the defendant guilty of the no-points violation (§ 3111A). (N.T. 47-48,106-07,195). 19. After the defendant left the courtroom, Chief Wood again told Respondent that neither Judge Evashavik nor the law required the issuing officer to be present in traffic cases (N.T. 49, 107, 201-02) and demanded that Respondent allow him to read the tickets and not require the testimony of the issuing officer or any other witness. (N.T. 201). At this point Re spondent became very upset and told Chief Wood that he didn’t need him to lecture him on the law and under the procedure the chief was demanding the Respondent stated “we’ll just find everybody not guilty.” (N.T. 50,107). 20. Respondent left the courtroom and entered the secretaries’ area, which was separated from the waiting room by a glass partition with a window, and announced to the remaining twenty-some defendants that all those with Edgewood Borough traffic tickets were not guilty and should leave (N.T. 24, 50, 108, 138, 147, 155, 203) because “there is no proof ... there’s no evidence.” (N.T. 155 (Shumaker)). 21. With that announcement, some confusion ensued amongst some of the defendants in the waiting room: some asked if they really were discharged; some asked if Respondent really was the judge; some asked if they would get their collateral back; some asked if they would get something in writing to prove they were not guilty. (N.T. 50, 108-09, 138, 147, 205). 22. Respondent answered the questions in a condescending, belittling and sarcastic manner. (N.T. 26, 51-52, 139, 147,156, 232). He asked the defendants in the waiting room if they were all morons and didn’t they understand the English language. (N.T. 51, 110-11, 129, 138, 147, 156). 23. All of the defendants eventually did leave after being assured that their collateral would be refunded by mail (N.T. 131, 134, 140, 158, 205-06) and after Respondent assured one defendant that he would send her a letter affirming that she had been in court and had been found not guilty. (N.T. 158-59, 207). 24. The only members of the Edge-wood Police Department present in court that morning were Chief Wood and Officer Timothy Quinn. (N.T. 34, 92). 25. Of the thirty-three cases listed in Judge Evashavik’s court for 9 a.m. that morning, the officers writing the citations were not present in twenty-nine. Officer Quinn was the issuing officer in four cases. (N.T. 93-94). Chief Wood had signed seven citations for alleged parking violations, all of which were alleged to have occurred between 3 a.m. and 5 a.m. on various dates, but Chief Wood had not observed or reported the violations and was not in a position to testify about them. (N.T. 73-74, 78, 80-81, 88-90). 26. In the thirteen years Respondent has served as a magisterial district judge, he acquired a reputation among the police, the District Attorney’s Office and the defense bar for fully and industriously executing the duties of his judicial office, for doing so in a fair, impartial and professional manner; for conducting himself in an exemplary manner both on and off the bench, and for treating litigants and attorneys who appear before him in a patient, dignified and courteous fashion. (N.T. 164-178, 241-14). III. DISCUSSION The amendment to the Constitution of Pennsylvania of 1993 established the Judicial Conduct Board and this Court, and provided certain specific instructions for the conduct of proceedings before this Court: All hearings conducted by the court shall be public proceedings conducted pursuant to the rules adopted by the court and in accordance with the principles of due process and the law of evidence. Parties appearing before the court shall have a right to discovery pursuant to the rules adopted by the court and shall have the right to subpoena witnesses and to compel the produc tion of documents, books, accounts and other records as relevant. The subject of the charges shall be presumed innocent in any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence. Pa. Const., Article V, § 18(b)(5). The Pennsylvania Supreme Court has defined clear and convincing evidence as follows: The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue .... It is not necessary that the evidence be uncontradicted ... provided it “carries a clear conviction to the mind” or “carries a clear conviction of its truth.” In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 886 (1986). See, also, La Rocca’s Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963), and In re Cicchetti, 697 A.2d 297, 306 (Pa.Ct.Jud.Disc.1997). Acting under the provisions of C.J.D.R.P. No. 501, the President Judge appointed a Panel to conduct the trial of this case. The Panel, consisting of Conference Judge Sandler, Judge Halesey and Judge Panepinto, conducted the trial September 28, 2005. Findings of Fact were initially made by the Panel. Since the Constitution requires that “all actions of the court ... shall require approval by a majority vote of the members of the court” the Panel’s Findings of Fact have been reviewed and this Decision is rendered by the full Court. As we noted in In re Nakoski, 742 A.2d 260, 263 (Pa.Ct. Jud.Disc.1999) and In re Manning, 711 A.2d 1113, 1117 (Pa.Ct.Jud.Disc.1998), this Court is constrained to accord special deference to the findings of a Panel for, as the judges who hear the witnesses testify and observe their demeanor, it is they who are best positioned to assess credibility. The Supreme Court of Pennsylvania has addressed this subject as follows: As long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as factfinder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference due to the factfinder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility. This rule of law is well established in our jurisprudence and is rooted in concepts of fairness, common sense and judicial economy (citations omitted). Commonwealth Dept. of Transportation v. O’Connell, 521 Pa. 242, 248, 555 A.2d 873, 875 (1989). See, also, the observations of the United States Supreme Court in Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847, 858 (1984), “the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court’s resolution of such questions is entitled ... to ‘special deference,’ ” and in Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500, 104 S.Ct. 1949, 1959, 80 L.Ed.2d 502, 516 (1984). “The requirement that special deference be given to a trial judge’s credibility determinations is itself a recognition of the broader proposition that the presumption of correctness that attaches to factual findings is stronger in some cases than in others.” In this case, particularly respecting what took place in the courtroom, credibili ty of those who testified is pivotal, not only respecting what actually occurred, but also with respect to the overall environment in the courtroom, and the behavior of Chief Wood and Respondent, protagonists here. What took place outside the courtroom is largely undisputed. We view this case as consisting of two separate (though related) episodes: (1) Respondent’s exercise of his judicial duties, i.e., his findings of not guilty in thirty-two of the thirty-three cases listed before him on the day in question, and (2) Respondent’s conduct in dealing with the defendants in those cases in the waiting room outside the courtroom. We will approach this case in that sequence and deal first with Respondent’s disposition of the cases on the court’s list that day. The root of the controversy in this case is Pennsylvania Rule of Criminal Procedure 454(B) and the way it has been interpreted and implemented by Magisterial District Judge Evashavik and Chief Wood of the Edgewood Borough Police Department. The portion of Rule 454(B) pertinent here provides: If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as trials in criminal cases are conducted in the courts of common pleas when jury trial has been waived; however, in all summary cases arising under the Vehicle Code or local traffic ordinances, the law enforcement officer observing the defendant’s alleged offense may, but shall not be required to, appear and testify against the defendant. In no event shall the failure of the law enforcement officer to appear, by itself, be a basis for dismissal of the charges against the defendant (emphasis added). According to the testimony of Chief Wood, Officer Quinn and Respondent, Judge Eva-shavik had interpreted this rule to permit — even require — a finding of guilty in the absence of any admissible evidence of guilt and, by way of implementing this interpretation, had established a protocol whereunder “the law enforcement officer observing the defendant’s alleged offense,” commonly did not attend the hearings and the testimony which he or she would [supposedly] give was given, as if by proxy, by the Chief who appeared as “reader.” The Respondent, a judge of thirteen years experience, did not subscribe to the legitimacy of this interpretation of the rule, would not permit its implementation, and clashed with Chief Wood who repeatedly demanded that he do so. The dominant consideration here is that it was Respondent’s prerogative and his responsibility — and his alone — to determine the admissibility of evidence in his courtroom and we find that his determination that Chief Wood’s reading of the citations was not admissible was an entirely reasonable determination. We find that it was reasonable for Respondent to determine that Rule 454(B) of the Criminal Rules of Procedure did not require him to receive the testimony offered by a “reader.” We turn then to consider the charges filed by the Board in this case. As stated earlier the Board has charged that Respondent’s conduct on the morning of May 25, 2004 constituted: 1. misconduct in office (violation of Pa. Const., Article V, § 18(d)(1)) (Count 1), 2. failure to perform the duties of office (violation of Pa. Const., Article V, § 18(d)(1)) (Count 2), 3. conduct which brings the judicial office into disrepute (violation of Pa. Const., Article V, § 18(d)(1)) (Count 3), 4. failure to devote the time necessary for the prompt and proper disposition of the business of his office (violation of Rule 3A. of the Rules Governing Standards of Conduct of Magisterial District Judges) (Count 4), 5. failure to be patient, dignified and courteous to litigants, witnesses, lawyers and others with whom he deals in his official capacity (violation of Rule 4C. of the Rules Governing Standards of Conduct of Magisterial District Judges) (Count 5), 6.failure to accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law (violation of Rule 4D. of the Rules Governing Standards of Conduct of Magisterial District Judges) (Count 6). Counts 1, 2, 3, 4 and 6 relate to Respondent’s disposition of the Edgewood Borough traffic cases listed before him on the morning of May 25, 2004. Count 5 relates to his conduct in dealing with the defendants in the waiting room outside the courtroom. Count 3 can reasonably be considered as relating to both; we will so consider it. In light of our holding that Respondent’s interpretation of Rule 454(B) as not requiring the admissibility of a “reader’s” “readings” was reasonable, we find that his disposition of the Edgewood Borough cases did not constitute a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution for we find that such disposition: 1. was not misconduct in office, 2. did not constitute failure to perform the duties of office, and 3. was not such which brings the judicial office into disrepute. We likewise find that Respondent’s disposition of those cases did not constitute a violation of Rules 3A. or 4D. of the Rules Governing Standards of Conduct of Magisterial District Judges for we find that his dispositions: 4. did not constitute failure to devote the time necessary for the prompt and proper disposition of the business of his office, and 6. did not constitute failure to accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. On the other hand, we hold that the manner in which Respondent disposed of the cases outside the courtroom considered in combination with his undignified and discourteous treatment of the defendants in the waiting room constituted conduct which brings the judicial office into disrepute in violation of Article V, § 18(d)(1) of the Pennsylvania Constitution. We also hold that the Board has established that Respondent’s conduct in dealing with the defendants in the waiting room was a violation of Rule 4C. of the Rules Governing Standards of Conduct of Magisterial District Judges which requires Respondent to be patient, dignified and courteous to litigants, witnesses, lawyers and others with whom he deals in his official capacity. We first address the alleged constitutional violations of misconduct in office (Count 1), failure to perform the duties of office (Count 2), and conduct which brings the judicial office into disrepute (Count 3), (Pa. Const., Article Y, § 18(d)(1)) and the alleged violation of Rule 3A., failure to devote the time necessary for the prompt and proper disposition of the business of his office (Count 4), and Rule 4D., failure to accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law (Count 6) all growing out of Respondent’s findings of “not guilty” in the Edgewood Borough traffic cases. All of these alleged violations are based upon the Board’s assumption — upon the premise — that Pennsylvania Rule of Criminal Procedure No. 454(B) required Respondent to admit and consider as evidence of guilt whatever was written on the citations as read to the court by Chief Wood, the designated “reader” for the day. Inasmuch as Respondent refused to do that and summarily found the defendants not guilty, the Judicial Conduct Board concludes that these dispositions were improper and that the asserted violations are established. Since we have held that Respondent made a reasonable determination that Rule 454(B) did not require the admission of Chief Wood’s “readings” and that Respondent was justified in doing so in the exercise of his judicial duties, the Board was proceeding under a false premise and its conclusion that Respondent’s findings of not guilty were improper is likewise false. Under Respondent’s interpretation of the law, which we have found to be a reasonable interpretation, “not guilty” was the only possible disposition of these cases for there was no evidence of guilt. Under Respondent’s interpretation of the law the only possible admissible evidence of guilt was the testimony of the issuing officers who “weren’t going to show.” Therefore, Respondent’s findings of “not guilty” in these cases was not “misconduct in office”; was not “fail[ure] to perform the duties of his office”; and it was not “conduct which brings the judicial office into disrepute.” Nor were Respondent’s findings of “not guilty” in these cases a “failure to devote the time necessary for the prompt and proper disposition of the business of his office” — on the contrary Respondent’s dispositions of these cases were prompt and in these circumstances were the only proper dispositions possible. Thus, no violation of Rule 3A. of the Rules Governing Standards of Conduct of Magisterial District Judges has been established. Nor did Respondent’s disposition of these cases constitute a “failure to accord every person who is legally interested in a proceeding ... full right to be heard according to law.” The Board maintains that by refusing to permit Chief Wood to read the citations into evidence Respondent denied the Commonwealth the “full right to be heard according to law.” We have held that, according to law, as interpreted by Respondent, the Commonwealth had no right to have Chief Wood read the citations into evidence, and, therefore, no violation of Rule 4D. of the Rules Governing Standards of Conduct of Magisterial District Judges has been established. An additional consideration which we believe to be important in assessing the applicability of Rule 4D. here, is the consideration of what the rule is designed to accomplish. We believe the rule was designed to protect litigants, and not to prescribe procedural rules of one kind or another. If the right of litigants “to a full hearing according to law” has not been violated, the rule has not been violated. The bottom line here is that the rights of the litigants in this case to a full hearing were not violated by Respondent’s disposition of these cases: not the right of the Commonwealth because, under Respondent’s reasonable interpretation of the law, it had no evidence to present — in fact announced it had no evidence to present; and not the defendants’ rights — from beginning to end Respondent was acting to protect their rights. We are cognizant that the Board introduced evidence at the trial that Chief Wood who was present in court, was the issuing officer, i.e., he had signed the affidavit on the citation, in seven of the cases listed before Respondent and that Officer Quinn, who was also present in court, was the issuing officer on four of the cases. However, all of Chief Wood’s cases were citations for parking violations all alleged to have been earned between 3 a.m. and 5 а.m. on various dates; but Chief Wood had not observed or reported the violations but merely signed the citations which were issued when the “No Parking” tickets were not paid within the prescribed time (see Finding of Fact No. 24). Consequently, Chief Wood was not in a position to testify about the parking violations — unless he was allowed to “read” the citations, which we have held it was reasonable for Respondent to forbid. With respect to Officer Quinn’s cases, while it is ti-ue that he would have been in a position to testify regarding the citations he had issued, Respondent did not know that Quinn was the issuing officer on any of the cases, and, having been told by Judge Evashavik that none of the officers were going to show (see Finding of Fact No. 7), was justified in acting on that instruction. The Board has made part of this record a computer print-out of the day’s docket and it is by examination of that print-out that it is discovered that Quinn was the charging officer in four cases. However, Respondent did not have that print-out, and would have had no reason or occasion to consult it if he had, thus the only information that could have been in his mind on the question of which charging officers would be in court was what Judge Evasha-vik had told him, i.e., “None”; and this is exactly what happened in the three cases he did call, thereby further justifying his reliance on what Judge Evashavik had told him. It is upon that which he knew that he should be judged. Careful consideration of the testimony of all three individuals who were present in Judge Evashavik’s courtroom that morning — Chief Wood, Officer Quinn and Respondent — shows that all are in agreement that Chief Wood repeatedly and insistently told Respondent that the law required that Respondent allow him to “read” the citations, that Respondent resented this and let it be known that he resented the Chief of Police instructing him on the law, and that serious tension developed in the courtroom between Respondent and Chief Wood — the Respondent striving to resist doing something he justifiably regarded as improper and the Chief persisting in telling him that he was required to do it. In these circumstances we are not disposed to second-guess Respondent’s handling of the situation and we believe he acted reasonably in accepting Judge Evashavik’s briefing, given to him before he opened court that morning, that “the officers weren’t going to show.” Consequently, we hold that Respondent’s disposition of all of the Edgewood Borough cases was proper. As stated earlier, however, we find that Respondent’s conduct after he left the courtroom, which included his announcement to the defendants in the waiting room that they were all “not guilty,” in combination with his discourteous treatment of those defendants constituted conduct which brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution. In In re Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc.1996), this Court noted that the conduct of a judge which results in a decline in the public esteem for that judge, may not support the conclusion that the conduct has brought the judiciary as a whole into disrepute, absent a persuasive showing by the Board that the conduct is so extreme as to have brought the judicial office itself into disrepute. In In re Cicchetti, 697 A.2d 297, 310 (Pa.Ct.Jud.Disc.1997), this Court reiterated that notion as it concluded that a judge’s conduct in persisting in making sexual advances towards a subordinate employee who repeatedly rejected the advances constituted conduct of such an extreme nature that the judicial officer had brought the judicial office itself into disrepute. In Cicchetti, 697 A.2d at 312, this Court noted that: The determination of whether particular conduct has brought the judicial office into disrepute, of necessity, is a determination which must be made on a case by case basis as the particular conduct in each case is scrutinized and weighed. In Smith, we said that: “Disrepute” necessarily incorporates some standard with regard to the reasonable expectations of the public of a judicial officer’s conduct. Smith, supra, at 1239. In this case, although the findings of not guilty in the twenty-some cases which were not called may have been justified, the method by which Respondent announced that finding was not, and, when considered together with his behavior in the waiting room, i.e., his interaction with the defendants there, was beyond what the public may reasonably expect from a judge. The reaction to Respondent’s announcement in the waiting room to the defen dants assembled there was variously described as follows: A. They were all yelling through the window wanting to know if the judge was a real judge. They wanted to know if it was a joke. They wanted to know if they were really dismissed. (Dodge N.T. 127). A. I remember the judge going to the window and asking everyone in the courtroom who was there for traffic hearings and pretty much everyone in the waiting room raised their hands. Q. And how many people were in that waiting room? A. I would say maybe 20, 25, I would say around there. And then everyone raised their hands and the judge had told them that it was all dismissed, they can leave. Q. And how did he do that, if you could describe the way he did it? A. He was waving his hands and he told everyone to go, that they were done, they could leave, it was dismissed. Q. And what happened after he said this? A. After he said it, a lot of people came to the window and wanted to find out when they were getting their money back, if he was really a judge, so a lot of Pandemonium broke out in the courtroom that day. Q. And what was Judge Marraccini doing? A. He was at the window and he was telling them that at one point he had called them a bunch of morons, that they should just leave now before he finds them all guilty. (Granny N.T. 138). A. Afterwards, afterwards after the judge had left the phones would not stop ringing. There were a lot of agitated people that were questioning if they were getting their collateral money back, asking if he was really the judge. They didn’t believe that he was the judge. So, that went on probably for the next couple of days. (Granny N.T. 140-41). A. I just remember being in my desk and then just a bunch of commotion starting. Everybody like basically at the window because the judge had come out and said that the cases were dismissed, anybody that was there can go. And then people weren’t sure if he was a judge or not. They didn’t know who he was. And, you know, people were asking what about their money, are they going to get their money back. And like sarcastically he said, no, I’m going to spend it on vacations. But I mean they didn’t know that he was joking. And them people didn’t understand so he said, what are you, a bunch morons, you know, this isn’t a circus. (McAllen N.T. 147). Q. And while you were in the waiting room, do you remember something unusual happening? Did the judge finally appear? A. Yes. Q. Could you tell the Court about that? A. He came out and he just said everyone with a traffic ticket get out of my courtroom. There’s no proof or he said there’s no evidence, something to that. I don’t remember his exact words, but he wanted everyone to get out. Q. And what was his manner when he came out and made this announcement? To the best of you recollection, what did he do? Did he just - A. He was yelling. He was yelling at us to get out of his courtroom. He just wanted us out of there. He just wanted us to leave. (Shumaker N.T. 155-56). Q. What was your personal perception of this experience in that court that day? A. Just really surprised of what happened. Just couldn’t believe how things went. It wasn’t what I was expecting at all, I didn’t know, I didn’t know if I could really prove that that ticket didn’t belong to me. It’s hard to prove you don’t own something, but I think that there was some sort of mistake. But that’s the last thing I kind of expected to happen was what happened. Q. And what was your perception of this judge’s behavior? A. Well, he just acted crazy. Q. Was it a pleasant experience for you to be at court that day? A. No. Q. Is that what you expected the judge to behave like in front of people? A. No, no, I did not expect anybody to behave like that. (Shumaker N.T. 159-60). We believe that the expectations of these members of the public were reasonable and find that Respondent’s announcement of his “not guilty” findings to the defendants en masse and his concomitant discourteous treatment of them to be so extreme as to bring the judicial office into disrepute. We consider now Count 5 which charges Respondent with violating Rule 4C. of the Rules Governing Standards of Conduct of Magisterial District Judges which provides that: A magisterial district judge shall be patient, dignified and courteous to litigants, witnesses, lawyers and others with whom he deals in his official capacity, and shall require similar conduct of lawyers, of his staff and others subject to his direction and control. In addition to Chief Wood and Officer Quinn, several of Judge Evashavik’s court employees as well as two defendants who were in the waiting room testified that when some of the defendants questioned Respondent about the not guilty findings he became upset and impatient asking them if they were “morons” and “didn’t they understand English.” (N.T. 51 (Wood), 110 (Quinn), 129 (Dodge), 138 (Granny), 147 (McAllen), 156 (Shumaker)). These witnesses described Respondent’s behavior as belittling, sarcastic and demeaning. We were particularly struck by the testimony of Tanya Shumaker who had come to court that morning in response to a parking ticket and who wasn’t sure Respondent had meant to include her when he announced that those with “traffic” tickets should go home. She testified “he answered me, anybody — he moved his head from his ear to his shoulder — anybody with any kind of traffic ticket get out of my courtroom now. (Indicating) ... back and forth kind of making fun of me (Indicating) ... everybody was standing there looking at me, I felt really stupid.” (N.T. 156). Respondent essentially did not dispute this testimony. (N.T. 229-34). We find that this testimony describes Respondent as neither patient, dignified nor courteous to these litigants and that the Board has established by clear and convincing evidence that this conduct of Respondent constituted a violation of Rule 4C. of the Rules Governing Standards of Conduct of Magisterial District Judges. IY. CONCLUSIONS OF LAW A. The conduct of Respondent in disposing of the Edgewood Borough traffic cases: 1. does not constitute misconduct in office. 2. was not such that constitutes a failure to perform the duties of office. 3. was not such that brings the judicial office into disrepute. 4. was not such that constitutes failure to devote the time necessary for the prompt and proper disposition of the business of his office. 5. was not such that constitutes a failure to accord to every person who is legally interested in a proceeding, or their lawyer, full right to be heard according to law. B. The conduct of Respondent in dealing with the litigants in the waiting room was such that constitutes a violation of Rule 4C. of the Rules Governing Standards of Conduct of Magisterial District Judges. C. The conduct of Respondent in the waiting room which included the manner of his announcement of the “not guilty” findings to the defendants en masse and his impatient, undignified and discourteous treatment of those defendants was such that brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution. D. Respondent is subject to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution. ORDER PER CURIAM. AND NOW, this 20th day of July, 2006, based upon the Opinion filed herewith, it is hereby ORDERED: That, pursuant to C.J.D.R.P. No. 503, the attached Opinion with Findings of Fact and Conclusions of Law be and it is hereby filed, and shall be served on the Judicial Conduct Board and upon the Respondent, That, either party may file written objections to the Court’s Findings of Fact and Conclusions of Law within ten (10) days of this Order. Said objections shall include the basis therefor and shall be served on the opposing party, That, in the event that such objections are filed, the Court shall determine whether to entertain oral argument upon the objections, and issue an Order setting a date for such oral argument, That, in the event objections are not filed, within the time set forth above, the Findings of Fact and Conclusions of Law shall become final, and this Court will issue an Order setting a date, pursuant to C.J.D.R.P. No. 504, for a hearing on the issue of sanctions. SANDLER, J., files a concurring opinion. PANEPINTO, J., files a concurring and dissenting opinion. MUSMANNO, J., did not participate in the consideration or disposition of this case. . In the Complaint the Board inaccurately quotes the Rule as providing "... prompt and proper disposition of the business of court.” . It is not clear whether any, some, or all of the charges filed by the Board are meant to apply to Respondent’s findings of not guilty in the cases of John Sterling Murray and Neil Salopek, although it is certainly clear that Chief Wood and Officer Quinn were not happy about those findings. . At one point in his testimony the Respondent said: "... the chief one more time demands that he be allowed — demanded that I should say that he be allowed to read the ticket. And I frankly don’t understand what the purpose of a reader is. But anyway ... what is the point of reading it because I can read it." (N.T. 201). .We would be remiss if we did not note here that we consider Judge Evashavik’s instructions to Respondent as to how to conduct the trials (trials which he had sworn to conduct according to law — not according to her) as an explicit and improper attempt to influence the outcome of those cases. See, In the Matter of Larsen, 532 Pa. 326, 327, 616 A.2d 529, Appendix I at 384, 616 A.2d at 558 (1992). We, likewise, consider the repeated remonstrations of Chief Wood, to be improper. Chief Wood, as the representative of the Commonwealth, was a party to these proceedings, and his instructions to Respondent as to how to conduct the trials, as to what evidence to admit, were ex parte communications made for the sole purpose of influencing the cases to the detriment of the other parties. . We are aware that the Board presented the testimony of Michele Prior, one of the thirty-two defendants who were found not guilty, that she was disappointed, even annoyed, that she didn’t have the opportunity "to say what I thought happened when I coasted through a stop sign. I expected to plead my case about a stop sign.” (N.T. 30). Presumably, the Board offered this testimony to show that, by finding the witness "not guilty,” Respondent denied her "full right to be heard according to law” — a violation of Rule 4D. We do not know of any law which requires a judge to take testimony from a defendant in a criminal case who, for lack of any evidence, has been found not guilty. . These four cases involved three defendants' — one of the defendants was the recipient of two of Quinn's citations.

OPINION BY President Judge COLINS. Before the Court is Candidate Carl Ro-manelli’s challenge to Section 951 of the Election Code, 25 P.S. § 2911, which requires that a minor party candidate for statewide office at the 2006 General Election submit nomination papers containing 67,070 valid signatures. This number is calculated under Section 951 by taking two (2 percent) of the “largest entire vote for any elected candidate in the State at large in the last preceding election at which State-wide candidates were voted for.” We previously determined that the relevant “last preceding election” was the election of Bob Casey, Jr. as Treasurer in the 2004 General Election rather than the retention election of Justice Sandra Shultz Newman in the 2005 Municipal Election. See In re Nomination Papers of Rogers, et al, Pa.Cmwlth. No. 426 M.D.2006, filed August 24, 2006, petition for permission to appeal pending, No. 122 MM 2006. Because Casey garnered 3,353,489 votes in that election, we agreed with the Secretary of the Commonwealth that the 2 percent rule required 67,070 valid signatures. Candidate Romanelli (Candidate) now argues that the 2 percent requirement of Section 951 is unconstitutional under both the federal and state constitutions. Prior to discussing the history of Section 951 and the relevant authorities, we first must note and dismiss Objectors’ contentions that the constitutional challenge is barred by estoppel or laches. In Rogers v. Cortes, 426 F.Supp.2d 232 (M.D.Pa.2006), the federal district court denied a preliminary injunction to the Green Party and its then-candidate for Governor, Marakay Rogers, who sought to invalidate the 2 percent requirement on federal constitutional grounds. The denial of the preliminary injunction was recently affirmed by the Third Circuit Court of Appeals in Rogers v. Corbett, 460 F.3d 455 (3d Cir.2006). Notably, Carl Romanelli was not a party to that litigation. Nonetheless, objectors argue that principles of estoppel should still apply since the Green Party stipulated in federal court that 67,070 signatures were required, and Romanelli is “in privity” with the Green Party. While such an argument may have prevailed against Mara-kay Rogers, who was initially a party in both this proceeding and the federal litigation but who later withdrew her nomination papers, we cannot agree that Roma-nelli is estopped by the federal litigation, as he was not a party to that litigation. Moreover, although Romanelli may be a candidate of the Green Party, the present objections do not name the Green Party and do not seek to challenge the entire slate of Green Party candidates. Accordingly, we find that Romanelli is neither estopped by the federal litigation nor is he barred by laches from raising his constitutional challenge at this time. Although we do not find that the federal litigation bars Romanelli from raising his constitutional challenges, we do agree with the federal courts that the 2 percent requirement is not unconstitutional under the U.S. Constitution for reasons stated by those Courts. Therefore we are left with Romanelli’s challenge to Section 951 under Article I, Section V of the Pennsylvania Constitution. To fully appreciate that challenge, a review of Pennsylvania’s requirements for minor party ballot access is instructive. The General Assembly adopted Section 951 in 1937 concurrent with its enactment of the Pennsylvania Election Code. At the time of its adoption Section 951, 25 P.S. § 2911, provided in pertinent part as follows: (b) Where the nomination is for any office to be filled by the electors of the State at large, the number of qualified electors of the State signing such nomination paper shall be at least equal to one-half of one percent of the largest entire vote cast for any elected candidate in the State at large at the last preceding election at which State-wide candidates were voted for. (Emphasis added.) As with most legislative action in Pennsylvania, there is scant legislative history regarding the policy decisions behind various provisions the General Assembly adopted in the Election Code. The legislative history of the 1937 Act adopting the Code contains no remarks from either the House or Senate suggesting the reason why the General Assembly incorporated this provision, or why it chose the .5 percent figure for nomination signatures. The .5 percent signature requirement remained the same until 1971, when the General Assembly amended Section 951 by the Act of December 22, 1971, P.L. 618, which increased the number of signatures required from .5 percent to 2 percent, a 200 percent increase in the requisite number of signatures for third-party candidates. However, as the Candidate points out, at the time the General Assembly amended Section 951, Section 801(a) and (b) of the Election Code appear to have allowed minor parties to hold primaries for state-wide elections if a candidate for their political organization received more than 2 percent of the vote of the largest state-wide vote cast at the next preceding election. Other candidates or parties who did not receive the requisite number of votes had to proceed under Section 951 in order to place a candidate on the ballot. In 1986, the General Assembly added to the Election Code Section 912.2 by the Act of February 19, 1986, P.L. 29, 25 P.S. § 2872.2(a). This section added the following definition of “minor political” parties: “a political party as defined in Section 801(a) or (b) whose State-wide registration is less than fifteen per cen-tum of the combined State-wide registration period immediately preceding the most recent November election.” Section 801(a) and (b), 25 P.S. § 2881(a) and (b), as previously suggested, define political parties as: (a) Any party or political body, one of whose candidates at the general election next preceding the primary polled in each of at least ten counties of the State not less than two per centum of the largest entire vote cast in each of said counties for any elected candidate, and polled a total vote in the State equal to at least two per centum of the largest entire vote cast in the State for any elected candidate, is hereby declared to be a political party within the State, and shall nominate all its candidates for any of the offices provided for in this act, and shall elect its delegates and alternate delegates to the National convention as party rules provide. (b) Any party or political body, one of whose candidates at either the general or municipal election preceding the primary polled at least five per centum of the largest entire vote cast for any elected candidate in any county, is hereby declared to be a political party within said county; and shall nominate all its candidates for office in such county and in all political districts within said county, or of which said county forms a part, and shall elect such party officers as its rules provide shall be elected therein, by a vote of the party electors, in accordance with the provisions of this act. Accordingly, before the adoption of this provision, if a party or political body satisfied the vote requirement of Section 801(a) and (b), they could engage in the primary election process rather than the process required under Section 951. Now, “minor political parties,” as well as other individuals unassociated with a political organization, are all denied access to the primary election process, which allows participation by only “major political parties.” However, even under the previously applicable definition of political party, under Section 801(a) and (b), the burden upon such organizations to engage in the primary election process was onerous, as such organizations were required to show that they garnered the two per centum of votes cast in previous elections (in at least ten counties) in order to gain ballot placement on the state or five per centum of the votes cast at the previous election for ballot placement for a county and intra-county elective positions. As a matter of historical interest, in the 1966 gubernatorial election, two non-major parties (the Constitution and Socialist Labor parties) had candidates on the ballot. The third-party candidates obtained approximately 1.77 percent of the vote. Interestingly, in the 1970 gubernatorial election five non-major parties placed candidates on the ballot (Constitution, American Independent, Socialist Labor, Consumer, and Socialist Workers), whose candidates received a total of approximately 3.09 percent of the votes. This election preceded the 1971 amendment to Section 951. Following the amendment to Section 951, third-party gubernatorial candidates (representing the Socialist Workers and Constitution parties) in the 1974 election together obtained only 1.23 percent of the votes. Similarly, in the 1978 gubernatorial election, the two third-party candidates (representing the Socialist Workers and Consumer parties) obtained 1.02 percent of the votes. United States Senatorial elections in 1968 included three non-major parties (Constitution, Socialist Labor, and Militant Workers), who garnered a total of 2.31 percent of the vote. However, in 1970, a trend similar to that reflected in the gubernatorial election of 1970 resulted in a total vote for third-party candidates (representing the Constitution, American Independent, Socialist Workers, Socialist Labor, and Consumer parties) of 3.19 percent. Following the amendment to Section 951, there was only one third-party candidate for U.S. Senate (representing the Constitution Party), who obtained 1.10 percent of the vote. In the 1976 Senatorial election the Constitution and Socialist Workers parties placed candidates on the ticket who earned a total of .82 percent of the vote. However, in the 1980 Senatorial elections there were three third-party candidates (representing the Socialist Workers, Consumer, and Libertarian parties) who obtained 1.48 percent of the vote. These statistics, of course, establish nothing except to suggest that in 1970, before the General Assembly amended the signature requirement, more third parties were placing candidates on the ballot — five on the 1970 Senatorial ballot — and that, following the amendment, fewer third parties had candidates running, with a commensurate reduction in votes for third-party candidates. In the most recent presidential, senatorial, and gubernatorial elections, the number of third-party candidates was two or three (although there were four third-party candidates in the 2000 presidential election). We cannot venture to answer whether the legislative amendment to Section 951 reflects a legislative desire to exclude third-party candidates, or simply the generally proffered policy reason that voters may become confused when presented with a greater number of candidates. Thus, “political bodies” such as the Green Party, previously could participate in primaries only if they satisfied the former requirements of Section 801(a) or (b). With this history of the ability of third parties to access the ballot, we now turn to Article I, Section V of the Pennsylvania Constitution, which provides that “[ejections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” That “elections shall be free and equal” has been a part of the Pennsylvania Constitution since 1776. The language concerning interference with the right of suffrage was added in 1874. Robert E. Woodside, Pennsylvania Constitution Law, 1985 at 457 (hereinafter Wood-side ). Our Supreme Court has stated that the provision “enjoins the duty in the abstract but leaves the means of accomplishment in the concrete to the legislature. This necessarily gives the legislature a wide field for the exercise of its discretion in the framing of acts to meet changed conditions and to provide new remedies for such abuses as may arise from time to time. The power to regulate elections is a legislative one, and has been exercised by the general assembly since the foundation of the government.” Patterson v. Barlow, 60 Pa. 54, 75 (1869). Although cases on the Pennsylvania constitutional provision are not numerous, those reviewed in Woodside at pp. 457-461 reveal, as astutely stated by Judge Wood-side, that “the courts have been reluctant to hold unconstitutional acts of the legislature concerning eligibility of citizens to vote and the regulation of elections.” Id. at 460. Of these cases, we find several of some relevance and guidance. In Oughton v. Black, 212 Pa. 1, 61 A. 346 (1905), the Supreme Court concluded that the free and equal exercise of the elective franchise is not impaired by a statute allowing straight party votes, finding that the statute was merely a convenience for certain voters. Of somewhat greater interest is Winston v. Moore, 244 Pa. 447, 91 A. 520 (1914), in which the Supreme Court considered the constitutionality of an act providing for non-partisan nominations and elections of judges and all elected officials in cities of the second class. The Court first noted that prior cases ... show conclusively that our courts have never undertaken to impale legislative power on points of sharp distinction in the enactment of laws intended to safeguard the ballot and to regulate the holding of elections. Indeed, so far as we are now advised, no act dealing solely with the details of election matters has ever been declared unconstitutional by this court. This for the reason that ballot and election laws have always been regarded as peculiarly within the province of the legislative branch of government, and should never be stricken down by the courts unless in plain violation of the fundamental law. It is contended that the act under consideration is discriminatory and restrictive in its operation because it limits the names of candidates on the official ballot to the two who polled the highest vote at the primary. There is nothing new or novel in the provision thus criticized. If there is to be an official ballot, there must of necessity be a limit to the number of names printed thereon, else such a ballot would mean nothing. The Constitution says nothing about nominations, or how candidates shall be chosen, or how many names shall be printed on the ballot. It furnishes no rule by which to accurately determine what the Legislature may or may not do in the enactment of laws relating to such details in the exercise of the elective franchise. In the absence of any express constitutional limitation upon the power of the Legislature to make laws regulating elections and providing for an official ballot, nothing short of gross abuse would justify a court in striking down an election law demanded by the people, and passed by a power always recognized and frequently asserted. Id. at 455-57, 91 A. at 522-23. In a somewhat more recent decision in Shankey v. Staisey, 436 Pa. 65, 257 A.2d 897 (1969), cert. denied, 396 U.S. 1038, 90 S.Ct. 684, 24 L.Ed.2d 682 (1970), our Supreme Court declined to strike a statute requiring non-cumulation of write-in votes, and further requiring that a write-in candidate receive a number of votes equal to or greater than the number of signatures required on a nomination petition for the particular office. In that case, the Constitutional Party, although authorized to nominate candidates in a primary election, had no candidates who filed petitions for various Allegheny County offices. The party argued, however, that several of its candidates had been “nominated” by write-in votes, although the candidates had failed to garner the minimum number of votes required by the Election Code. The Supreme Court noted that the complaint in Shankey was that the challenged statute denied “equality” in that it wrongfully equated public petitions (i.e., the number of signatures required to appear on a primary ballot) with secret ballots so as to deny the ballots of people who voted for write-in candidates the same weight as ballots who voted for major party candidates. The Court then concluded that the statute promoted “equal” elections by requiring every candidate who desires to appear on the general electoral ballot to have satisfied the same condition — the show of support by a set number of people. This condition could be accomplished by petition or by primary election victory, and “what is important is not that ballots and petitions are equated but that the number of people behind each are equated.” 436 Pa. at 69, 257 A.2d at 899. From Winston v. Moore, we find that our Supreme Court has applied a “gross abuse” standard to determine whether election statutes violate the “free and equal” clause, thereby giving substantial deference to the judgment of the legislature. This stands in stark contrast to the standard utilized under the federal constitution, which employs a “balancing test.” Our review of the history of ballot access for minor parties in Pennsylvania reveals what we view as the legislature’s intent to make ballot access by these parties difficult, under the guise of maintaining an “uncluttered” ballot. The fact that the “magic number” of 2 percent fluctuates from one election to another is, in the mind of this jurist, somewhat problematic, in that the playing field is certainly not level and varies considerably depending solely on the number of votes cast for the winner in the last similar election. Nevertheless, the federal courts, utilizing a balancing test that subjects the challenged statute to significant scrutiny in order to determine whether it unduly violates constitutional rights, have not found Pennsylvania’s system to rise to the level of a federal constitutional violation. Our review of cases under the Pennsylvania Constitution leads us to the same result. Initially, we view the state standard as considerably less than that employed by the federal courts. According to Winston v. Moore, the General Assembly is vested with the responsibility of establishing a regime for ballot access, and its acts should be accorded a presumption of constitutionality, to be invalidated only for “gross abuse.” While we may well question whether the “2 percent” is the best way to achieve the valid state interest of eliminating ballot clutter, we cannot conclude that the method chosen by the legislature constitutes a “gross abuse” of discretion. Like Shankey, a candidate may gain access to the General Election ballot either by winning a primary election or by gathering a set number of signatures. While the number of signatures for a minor party candidate is much higher than that required to appear on a partisan primary ballot, it is “equal” to the extent that it requires a set number of signers, determined under the 2 percent rule, for each candidate at a given election. Additionally, while this number is much higher than the number of signatures required to gain ballot access in a primary, this is not the proper number for comparison. In order to appear on the General Election ballot, the primary winners have demonstrated support not of the small number of persons who signed their nomination petitions, but of the substantially larger number of electors who voted for them in the primary election, in this case 629,271 who voted for Bob Casey, Jr. in the Democratic primary, and 561,952 who voted for Rick Santorum in the Republican primary. Accordingly, we conclude that the challenge to Pennsylvania’s “2 percent” requirement does not rise to the level of a violation of Article I, Section V of the Pennsylvania Constitution. ORDER AND NOW, this 8th day of September, 2006, the Preliminary Objection filed by Candidate concerning the constitutionality of Section 951 under the United States and Pennsylvania Constitutions is overruled. The Court is of the opinion that our order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an intermediate appeal from our order may materially advance the ultimate termination of the matter. Therefore, we shall certify this matter for appeal by permission pursuant to 42 Pa.C.S. § 702(b) and Pa. R.A.P. 1311(b). In the event that a petition for permission to appeal is filed and granted, the Court further concludes that it retains jurisdiction to proceed in this matter under Pa. R.A.P. 1701(c) unless otherwise ordered by the Pennsylvania Supreme Court. . Act of June 3, 1937, P.L. 1333, as amended. . We note that decisions of lower federal courts are not binding on this Court, even when the issue concerns the federal constitution. Finnegan v. Pa. Bd. of Probation & Parole, 576 Pa. 59, 838 A.2d 684 (2003). However, we are persuaded by the analysis of the Third Circuit in Rogers v. Corbett, and adopt this analysis in this matter. . Act of June 3, 1937, P.L. 1333, as amended. . As with the original adoption of Section 951, neither house of our General Assembly included any discussion in their respective chambers of the amendment. Nor did research disclose the existence of committee reports or transcripts of hearings on this provision. . The information related following this footnote was obtained from a web site created by Harold Cox of Wilkes University. The web site is found at www.staffweb.wilkes.edu/harold.cox. . Section 801(c) explains how these political bodies placed candidates on ballots, presumably without satisfying the present definitional requirements of "minor political party,” as it states that "[a]ny political body which is not a political party, as hereinabove defined, but which has nominated candidates for such general or municipal election by nomination papers in the manner provided by this act, shall be deemed to be a political body within the meaning of this act, but such political body shall not be entitled to nominate its candidates or elect its party officers at primaries held under the provisions of this act.” . In Rogers v. Corbett, the Third Circuit discussed the standard of review, stating: At oral argument before us, the parties were questioned about the applicable level of scrutiny and whether Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), annuls, or otherwise changes, the familiar strict scrutiny, intermediate scrutiny, and rational basis classifications as applied to ballot access cases. First, we note that this Court, as well as others, has been unclear whether the Anderson balancing test applies to ballot access claims brought under the Equal Protection Clause, given that Anderson is a First Amendment case. See Belitskus v. Pizzingrilli, 343 F.3d 632, 643 n. 8 (3d Cir.2003). We clarify here that the Anderson test is the proper method for analyzing such equal protection claims due to their relationship to the associational rights found in the First Amendment. In Belit-skus, we observed that we could not see any basis for refusing to so apply (Anderson). Id.; see also Reform Party of Allegheny Co. v. Allegheny Co. Dep't. of Elections, 174 F.3d 305, 314 (3d Cir.1999) (assuming that “burdens require the same level of scrutiny in an equal protection analysis that they do in an associational rights-analysis.”). Likewise, our sister Circuits have applied Anderson to similar claims under the Equal Protection Clause. See, e.g., Fulani v. Krivanek, 973 F.2d 1539, 1542-44 (11th Cir.1992); Republican Party of Arkansas v. Faulkner Co., 49 F.3d 1289, 1293 n. 2 (8th Cir.1995) ("In election cases, equal protection challenges essentially constitute a branch of the associational rights tree.”). As such, we conclude that Anderson sets out the proper method for balancing both associational and equal protection concerns and the burdens that the challenged law creates on these protections as weighed against the proffered state interests. What then is the import of Anderson on the traditional three tiers of scrutiny? Although we appreciate that the strict scruti ny, intermediate scrutiny, and rational basis categories represent a convenient and familiar linguistic device by which courts, including our Court, have characterized their review under Anderson, we note that Anderson promulgated a less categorical system of classification. See Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (noting that the full Court agreed in Anderson that "a more flexible standard applies.”). Put another way, ballot access cases should not be pegged into the three aforementioned categories. Rather, following Anderson, our scrutiny is a weighing process: We consider what burden is placed on the rights which plaintiffs seek to assert and then we balance that burden against the precise interests identified by the state and the extent to which these interests require that plaintiffs’ rights be burdened. Only after weighing these factors can we decide whether the challenged statute is unconstitutional. Anderson, 460 U.S. at 789, 103 S.Ct. 1564. Consequently, we will look at the nature of the rights involved here and the burdens imposed by Pennsylvania election law on minor political parties in order to determine if the burden is justified. Rogers v. Corbett, at 460-61.

OPINION BY TAMILIA, J. ¶ 1 Tracy McCandless and Daniel Diamond Sr., appeal both as individuals and in their capacity as co-executors of the estate of Daniel Diamond, Jr., from the January 26, 2006, judgment entered following the trial court’s denial of post-trial motions seeking a new trial or judgment notwithstanding the verdict. ¶ 2 The underlying facts in this case are not in dispute. Appellee Girard Medical Center, a subsidiary of the North Philadelphia Health System (“NPHS”), prescribed Wayne Edwards methadone as part of a pain management program. Wayne’s nephew, Gregory Edwards, stole the methadone from Wayne’s residence and sold it to Daniel Diamond, Jr. (“decedent”). On April 30, 2001, decedent ingested a pharmaceutical cocktail that included the methadone and lapsed into aspiration pneumonia, resulting in his death. ¶ 3 On June 12, 2002, appellants filed a complaint alleging, inter alia, Girard Medical and NPHS were negligent in oversupplying Wayne Edwards with methadone in violation of applicable federal regulations. Record, No. 8. After months of procedural maneuvering by the parties, the trial court entered a default judgment against Gregory Edwards for failing to answer the complaint on June 6, 2003. Record, No. 27. Subsequently, the trial court also entered default judgment against Wayne Edwards for failing to answer on June 23, 2003. Record, No. 30. ¶ 4 A jury trial commenced on October 18, 2004 and at the close of appellees’ case, both parties moved for a directed verdict. N.T., 10/20/04, at 52, 55. The trial court granted Girard and NPHS’s motion by Order of October 22, 2004. Record, No. 64. Shortly thereafter appellants filed their post-trial motions. Record, No. 65. The case then proceeded to the jury for an assessment of damages against Wayne and Gregory Edwards. The jury determined Wayne was sixty percent responsible for decedent’s death and Gregory was forty percent responsible. Thereafter, appellants perfected a timely appeal to this Court. ¶ 5 Appellants raise the following issues for our review: I. Whether the Plaintiffs were entitled to a New Trial because the trial judge improperly directed a verdict on behalf of North Philadelphia Health Systems and Girard Medical Center based on his conclusion that they owed no duty to the decedent, Daniel Diamond, Jr. II. Whether the lower court improperly allowed in evidence from the defendants’ expert that was based upon double hearsay contained in a police report. III. Whether the lower court should have granted the Plaintiff a judgment notwithstanding the verdict. Appellants’ brief at 4. ¶ 6 As to the first two issues raised, our standard of review is as follows: When assessing the trial court’s denial of a motion for new trial, we apply a deferential standard of review. The decision whether to grant or deny a new trial is one that lies within the discretion of the trial court. We will not overturn such a decision unless the trial court grossly abused its discretion or committed an error of law that controlled the outcome of the case. B & L Asphalt Indus. v. Fusco, 753 A.2d 264, 267 (Pa.Super.2000) (internal citations and quotations marks omitted). ¶ 7 In directing a verdict in favor of Girard Medical and NPHS, the trial court came to a number of conclusions. First, the court relied on the framework outlined in F.D.P. ex. rel. S.M.P. v. Ferrara, 804 A.2d 1221 (Pa.Super.2002), in concluding Girard and NPHS did not owe a duty of care to the decedent. Trial Court Opinion, Jelin J., 1/13/06, at 3-5. Second, the court found Girard Medical’s internal regulations did not, in of themselves, create a duty of care in favor of the decedent as a matter of law. Id. at 4. Furthermore, the trial court concluded federal regulations governing clinical distribution of controlled substances did not impose a duty upon Girard Medical and NPSH in favor of the decedent as a matter of law but, rather, created a duty flowing from Girard Medical and NPHS to Wayne Edwards as patient. Id. at 5. ¶ 8 In reviewing a trial court’s decision to direct a verdict in favor of a defendant, we must view the evidence in the light most favorable to the plaintiff in order to determine whether plaintiff failed to prove his case as a matter of law. Riley v. Warren Mfg., 455 Pa.Super. 384, 688 A.2d 221, 224 (1997) (citation omitted). If a jury reasonably could have concluded, on the basis of the evidence and all reasonable inferences therefrom, that the defendant was hable, then the directed verdict must be reversed. Our review over questions of law is, as always, plenary. Id. ¶9 To establish a cause of action sounding in negligence, a party must demonstrate they were owed a duty of care by the defendant, the defendant breached this duty, and this breach resulted in injury and actual loss. Brisbine v. Outside In Sch. of Experiential Educ., Inc., 799 A.2d 89, 93 (Pa.Super.2002), citing Brezenski v. World Truck Transfer, 755 A.2d 36, 40 (Pa.Super.2000). ¶ 10 At trial, appellants’ argument was premised on the theory that Girard Medical and NPHS owed a general duty of care to the public at large. In addressing this theory, the trial court pointed to the following rule of law used to determine whether this alleged duty was legally cognizable: The following factors, which are derived from the above principles, are to be applied in determining the existence of a duty: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; (5) the overall public interest in the proposed solution. Trial Court Opinion, Jelin, J., 1/13/06, at 3, citing Ferrara, supra at 1231 (Pa.Super.2002) (internal citations and quotation marks omitted). ¶ 11 In determining whether to create a duty of care, the most important factor to consider is social policy. Fer-rara, supra at 1231. It is a question of law as to whether a duty of care exists. Brisbine, supra at 95. ¶ 12 In applying the Ferrara factors, the trial court pointed out that no relationship existed between Girard Medical, NPHS and the decedent. It noted that Girard Medical’s services provided great social utility by rehabilitating heroin addicts and further opined that it was highly unforeseeable a person would steal methadone from a patient and then sell it to a third party, who would turn around and lethally overdose. The court also emphasized that imposing a duty in this instance would effectively prevent methadone clinics from disbursing take-home medication to patients. Finally, the trial court pointed out the public interest would not be served by preventing incapacitated heroin addicts from taking medication at home. Trial Court Opinion at 4. ¶ 13 Appellants attack this analysis by arguing Ferrara is factually inapposite to the matter sub judice and, hence, other cases should be deemed to be factually controlling. Appellants’ argument is flawed because the trial court did not draw a correlation between the facts in Ferrara and the facts at hand but, rather, relied on the legal principles set forth in Ferrara. After careful review of the trial court’s analysis, we conclude it did not err as a matter of law in determining Girard Medical and NPHS did not owe a duty of care to the decedent. ¶ 14 Appellants also aver Girard Medical’s internal regulations created a duty of care running to the decedent. In doing so, appellants point out that Girard Medical and NPHS itself recognized it had a duty to the public at large. ¶ 15 Appellants’ argument in this regard misses the mark. Although Girard Medical and NPHS took steps to regulate the dissemination of methadone in accordance with federal guidelines and general principles of social responsibility, this in no way means a duty of care was created de facto as a matter of tort law in the Commonwealth. See Ferrara, supra at 1231. ¶ 16 Appellants’ final argument with respect to the first issue raised is that various provisions in federal law create a duty of care in this instance as a matter of law. In attempting to bolster this argument, appellants point to a number of federal provisions. Initially, their reliance on 21 U.S.C. 823, Registration requirements, is wholly misplaced because its only purpose is to provide guidelines for the Attorney General to consider when deciding whether to register a party as a manufacturer or distributor of a controlled substance. As such, it has no bearing on the issue of whether a duty of care exists. Appellants next point to 42 U.S.C. 257, which was repealed in October 2000 and, therefore, has no import whatsoever. Appellants also point to “66 F.R. 4090,” which does not exist. Finally, appellants point to sections 8.4, 8.2, and 8.12(j)(4)(i) of “that Act” (a phrase which seemingly refers to the non-existent 66 F.R. 4090) for the proposition that “[Programs or Practitioners engaged in opioid treatment of individuals] must maintain current procedures adequate to identify the theft or diversion of take-home medication.” Appellants’ brief at 26. Appellants, however, fail to point to any authority providing that this requirement can be enforced through private causes of action sounding in negligence in state court. ¶ 17 Turning to the second issue raised, appellants argue the trial court erred in admitting testimony from an expert witness who noted decedent was a user of the narcotic oxycotin. Appellants allege the expert witness extrapolated this evidence from a statement taken from an eyewitness to decedent’s death and contained in a police report and, as such, the expert witness’ testimony in this regard constitutes inadmissible double hearsay. ¶ 18 Appellants’ argument is easily dismissed. As appellees point out, the trial court entered a directed verdict in their favor after finding they did not owe decedent a duty of care as a matter of law. Consequently, the double hearsay issue is moot as a consequence of our determination that the trial court’s finding was appropriate. ¶ 19 Turning to the final issue raised, appellants aver: “The testimony was so overwhelming in favor of the claim presented, that a judgment notwithstanding the verdict should be entered.” This averment constitutes the entirety of the argument with respect to this issue. Appellants’ brief at 39. ¶ 20 Appellants’ failure to support this bald averment by pointing to any relevant facts or pointing to any legal support constitutes waiver of the issue. Commonwealth v. Luktisch, 451 Pa.Super. 500, 680 A.2d 877, 879 (1996), citing Pa.R.A.P. 2119, Argument (other citations omitted). ¶ 21 Judgment affirmed. . As a general matter, there is no duty to control the acts of a third party unless a defendant stands in a "special relationship” with either the third party whose conduct needs to be controlled or the intended victim of such conduct. Brisbine v. Outside In Sch. of Experiential Educ., Inc., 799 A.2d 89, 93 (Pa.Super.2002), citing Brezenski v. World Truck Transfer, 755 A.2d 36, 40 (Pa.Super.2000), accord Restatement of Torts (Second), Title A, Duty to Control Conduct of Third Persons § 315, General Principle. In Pennsylvania, “special relationships” are only those described in sections 316-319 in the Restatement of Torts (Second). Id. These special relationships include a parent’s duty to control a child (§ 316), a master’s duty to control a servant (§ 317), a landowner’s duty to control a licensee (§ 318), and the duty of those in charge of individuals with dangerous propensities to control these individuals (§ 319). Id. . Appellants support their argument by forwarding two lists of cases in their brief followed by a factual summary and commentary on all cases included in these lists. Appellants’ brief at 26-36. Appellants’ argument reads like a cut-and-paste law review article and does little to bolster their position. . The Code of Federal Regulations only contains fifty titles.

OPINION BY President Judge COLINS. Green Party candidate for United States Senate, Carl Romanelli (Candidate), has filed a document entitled generally Motion to Quash the Objectors’ Petition to Set Aside his nomination papers. The document includes preliminary objections to the Petition to Set Aside. The objections pertain to certain paragraphs of the Objectors’ petition, and raise issues concerning alleged (1) lack of specificity, (2) inclusion of “scandalous and impertinent material,” (3) failure to plead fraud with specificity, and (4) illegality of Section 951 of the Election Code under the state and federal constitutions. The Objectors have filed an amended Motion for Expedited and Limited Hearing that seeks an order of the Court approving the amendment of line challenges in the initial Petition to Set Aside: objections originally based on the illegibility of signatures and the lack of registration of petition signers would be amended to include challenges to the addresses of the signers. In this memorandum, we will discuss all issues raised by the parties with the exception of the constitutional challenge to Section 951. The Court will issue a separate decision regarding Candidate’s constitutional challenge. The Objectors initially challenged numerous signatures as illegible and numerous other signatures as not registered. During the parties’ review process to stipulate validity or invalidity of the challenged lines as ordered by this Court, many of the “illegible” signatures were identified, and many of the “unregistered” signatures were found to be those of a registered elector. Accordingly, the original reason for challenging these signatures has not been proven. Objectors argue, however, that the review process has shown that the addresses of the signers do not match the registration records and seek to amend the objections to now include address challenges. The Candidate opposes these amendments. Authority to Allow Amendment Pertinent to our discussion is Section 977 of the Election Code, 25 P.S. § 2937, which provides that All nomination petitions and papers received and filed within the periods limited by this act shall be deemed valid, unless, within seven days after the last day for filing said nomination petition or paper, petition is presented to the court specifically setting forth the objections thereto, and praying that the petition or paper be set aside. The Objectors rely upon the Supreme Court’s decision in In re Bryant, 578 Pa. 421, 852 A.2d 1193, 1195-6 (2004), to support their argument that granting the amendment is appropriate under the circumstances. Bryant involved the discrete issue of whether the objector could amend his challenge to a nomination petition, which originally raised improprieties in the signature and affidavit of circulation requirements, to add a substantive challenge to the candidate’s statement of financial interests after the expiration of the seven-day time period for filing objections to nomination petitions. Before the seven-day period had lapsed, the objector had filed a pre-hearing memorandum purportedly reserving the right to pursue additional grounds for setting aside the nomination petition. The Supreme Court reversed this Court’s decision, and concluded that the objector could not raise an entirely new objection, i.e., to validity of the candidate’s statement of financial interest, after the seven-day period for filing objections. In rejecting the objector’s argument that trial courts have discretion to allow amendments to objections, the Supreme Court cited with approval a line of cases that recognized a court’s discretion to permit amendments when the objector’s timely filed general allegations of invalidity put the candidate on notice of more specific allegations of invalidity. The cases the Supreme Court cited clearly support a decision in this case to allow amendment. Most significant among those cases is Appeal of Beynon, 370 Pa. 532, 538, 88 A.2d 789, 792 (1952), also cited by the Objectors here, which stands for the proposition that, as long as an objector has challenged signatures on a nomination paper, the objector is not precluded, after the seven-day period, from seeking to advance a challenge to those signatures on other grounds in the Election Code at the hearing on a petition to set aside the nomination petition. The Candidate does not dispute that the Objectors’ proposed amendments relate to signatures that the Objectors challenged in their timely filed petition to set aside. Thus, in accordance with Beynon, which we confidently follow as reliable precedent, if the amendments the Objectors here seek pertain to the challenged signatures, and assert invalidity based on a different but sound reason, that reason having its foundation in the Election Code, granting the Objectors’ request to amendment is appropriate. Specific Amendments Requested a. Signatures Originally Challenged as Illegible The Objectors first argue that the amendments they seek with regard to signatures originally challenged as illegible is proper because they have already objected to the specific signatures. A review of the original nomination papers would indicate that many of the illegible signatures were later deciphered after several individuals reviewing the signatures came up with variations of possible names, one of which turned out to be the actual name of the voter. Objectors seek to amend these challenges to assert that the signatures are invalid because the signers are not voters registered at the addresses given. Although the signature review ordered by this Court subsequently revealed that the names could be identified, the Objectors assert that the signers are not registered at the addresses listed. Thus, while the original objection related to the fact that the signatures and printed names could not be deciphered or associated with the name of any registered voter, subsequent review using the SURE system supported disqualification of these signatures for another reason — one not originally listed with the objection, but one that is nevertheless a valid reason for rejection under the Election Code, i.e., an invalid address. The Candidate’s representatives refuse to stipulate that these signatures are invalid because of the failure of the names and addresses to match registration records. On August 30, 2006, this Court, during the course of oral argument on the present Motion, accepted into evidence an example of one of the challenged signatures. The example was a signature that appeared to be the name “Mario Thomas,” with an address of “5913 Irving Phila.” A SURE review of the address indicated that two other registered voters had such an address, but neither of those names corresponded to the name that appeared to be “Mario Thomas.” Based upon that eviden-tiary exhibit, which included a demonstration of the use of the SURE system by the parties for stipulations regarding challenged signatures, this Court determined that the signature was not valid because none of the persons with the identified name had the address listed on the circulation sheet as the address of the alleged voter. Because we conclude that an amendment should be allowed, we will strike that particular signature as invalid for failure to match the address on the petition with the address of a registered voter. The Objectors’ request for further amendments of signatures of this type is granted and, the Court notes, that any addresses on the petition that fail to match an address on registration records will be found to be invalid at any hearing in this case pursuant to our Supreme Court’s opinion in In re Nomination Petition of Mary Flaherty, 564 Pa. 671, 770 A.2d 327 (2001). b. Incorrect Addresses The Objectors also seek to amend challenges to signatures where they first alleged that signatures were invalid because official registration records could not be located for a registered voter with the name indicated. Later investigation showed that the signer was registered, but not at the address listed on the petition. Thus, at the above-noted hearing and argument on August 30, the Objectors used the SURE system to demonstrate by example that the signature of someone whose first name is recognizable as “Clayton,” but whose last name was illegible but began with the letter “D,” could have been one of four registered persons in Philadelphia County, but none of the addresses listed for that name included the clearly identifiable address on the nomination petition. For the reasons stated above, the Court will grant the motion to amend the objection, strike this signature, and again we note that all such signatures will be similarly invalid if presented at an eviden-tiary hearing before the Court. Qualiñed Elector or Registered Voter? Candidate notes throughout his amended response to the Objectors’ amended Motion that the Objectors are wrong to rely upon invalid voter registration to discredit signers in calculating the number of signatures necessary to place the Candidate on the ballot. The Candidate argues that, under Section 951(c) of the Election Code, 25 P.S. § 2911(c), the signers need only be “qualified electors,” rather than registered voters. The Candidate also relies upon the dissenting state ment of Justice Saylor in In re Nader, 580 Pa. 134, 860 A.2d 1 (2004). The General Assembly, in addressing the requirements for partisan nomination petitions, determined that petition signers must be a registered member of the particular party. Section 908 of the Election Code, 25 P.S. § 2868. On the other hand, as Candidate notes, Section 951 refers only to “qualified electors.” In Nader, the Candidate pointed to a federal court decision, Morrill v. Weaver, 224 F.Supp.2d 882 (E.D.Pa.2002), in which the federal district court reviewing Section 951(d) concluded that to interpret the phrase “qualified electors” to mean registered voters would be unconstitutional, and that a person who simply possesses the constitutional qualifications to vote could sign nomination papers. For the reasons that follow, we conclude that, under 951, persons signing a candidate’s nomination papers must be a registered voter. A “qualified elector” is defined as “any person who shall possess all of the qualifications for voting now or hereafter prescribed by the Constitution of this Commonwealth, or who, being otherwise qualified by continued residence in his election district, shall obtain such qualifications before the next ensuing election.” Section 102(t) of the Election Code, 25 P.S. § 2602(t). The Pennsylvania Constitution provides that a “qualified elector” is any citizen who meets the minimum age and residency requirements, “subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.” Article VII, Section 1, emphasis added. Our Pennsylvania Supreme Court has addressed this question before. In Aukamp v. Diehm, 336 Pa. 118, 8 A.2d 400 (1939), (which involved the distinct question of whether signers of a referendum petition under the Liquor Control Act of 1937 must be registered voters), the Court evaluated the issue under the voter qualification provision of the Pennsylvania Constitution, and also noted the Election Code’s definition of “qualified elector.” The Court concluded that the legislature had incorporated the word “elector” to mean a person qualified to vote at the election and therefore one who was also, at the time of signing the petition, a registered voter. The Court rejected the argument that a non-registered signer of a petition might register before the election. The Court stated that “the legislature, by using the word ‘electors,’ intended petitioners to be persons at that time registered; unless that were held to have been the legislative intention the commissioners would have no way of ascertaining whether the requisite number of signers were electors.... ” 336 Pa. at 121, 8 A.2d at 401. In our view Aukamp disposes of the issue. Further, we conclude that Morrill is distinguishable. Factually, Momll involved petition circulators, as compared to the signers of nomination papers at issue in this case. Morrill, and other cases involving the status of circulators, most notably the United States Supreme Court’s decision in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), required evaluation of the nomination process under the First Amendment. Those cases held that the act of circulating was core political speech, because such activity involves communication regarding political change. Buckley, 525 U.S. at 186, 119 5.Ct. 636. Such interests are not at stake in the case of signors and are distinguishable. As to the Candidate’s challenges to the specificity of the objections, we conclude that the objections are sufficiently specific and deny the objections thereto. To the extent that the petition to set aside may contain scandalous and impertinent matter and fail to plead fraud with specificity, we note that an objector bears the burden of proving the invalidity of each individual challenge alleged. Mere allegations of patterns of fraud are insufficient to strike a nomination paper. Therefore, while “fraud” may not have been pled with particularity, we find that it need not and should not be plead at all. To the extent that the Objectors allege patterns of fraud in the collection of signatures, these allegations are immaterial, and to the extent that the allegations may be scandalous and impertinent, the Court will disregard them and consider them stricken from the petition. Finally, the Candidate raises new matter in his response to the Objectors’ amended Motion, averring that counsel for the Candidate expended time and money preparing for that aspect of the initial Motion seeking to amend challenges to circulators’ petitions and corresponding strikes of such petitions. The Candidate seeks compensation from the Objectors for the lost time and money now that that issue has been, for the moment, taken from the table. However, if by chance the Objectors renew the request, counsel’s time will not have been wasted. In any event we deny this request without prejudice to the Candidate to raise the issue again following the resolution of these proceedings. ORDER AND NOW, this 1st day of September 2006, upon consideration of the Objectors’ Amended Motion for Expedited and Limited Hearing Seeking: (1) To Amend Certain Line Challenges Concerning Illegibility in the Petition to Set Aside and Striking as Invalid; and (2) To Amend Certain Line Challenges Concerning Incorrect Addresses in the Petition to Set Aside and Striking as Invalid, and Candidate’s Motion to Quash (excepting the constitutional challenge raised therein) it is hereby ORDERED: 1. Petitioners are permitted to amend their line challenge to the signature on Petition Page 2624, line 19, to challenge the signature on the basis that the signer is not a voter registered at the address noted on the line, and upon review of the evidence at hearing, the signature is not a valid signature and shall be stricken for the purpose of calculating Candidate’s required signatures; 2. Petitioners are permitted to amend their line challenges to signatures on Petition Page 87, lines 43 and 50, and to challenge the signatures on the basis that the signer is not a voter registered at the address noted on the line, and upon the review of the evidence, the signatures on these two lines shall be deemed invalid and shall be stricken for the purpose of calculating Candidate’s required signatures; 3. Candidate’s request to dismiss for lack of specificity is DENIED; 4. Candidate’s request to dismiss for failure to plead fraud with particularity is DENIED; 5. Candidate’s request to strike scandalous and impertinent matter is GRANTED in part as indicated in our opinion; and 6. Candidate’s request for relief as indicated in his new matter is denied without prejudice to Candidate to renew the request at the appropriate time. . Act of June 3, 1937, P.L. 1333, art. IX, as amended. . We observe that in the case of signatures initially challenged as illegible, a challenge made at that time also asserting that the unidentified individual is not registered or is registered at an incorrect address could not possibly be made in good faith. Only after the “illegible’' signature has been identified is it possible to review the registration records to determine whether the person is properly registered at the address listed. . The Court want to emphasize that he could not, as trier of fact, determine from the petition paper, whether the name was "Mario” or "Merlo.” . Two years ago in the challenge to the nomination papers of Ralph Nader and Peter Miguel Camejo, this Court was presented with this precise issue. We concluded that signers of a petition must be registered electors. Although our per curiam memorandum opinion, dated September 29, 2004, was unpublished and therefore not binding precedent, we agree with its analysis and therefore below adopt its reasoning as further explained below in this opinion. We further note that the Pennsylvania Supreme Court denied an application for extraordinary relief of our order at No. 171 MM 2004 on October 1, 2004 with a concurring and dissenting statement from Justice Saylor. Ultimately the Supreme Court affirmed per curiam our disposition of the Nader challenge, with a dissent by Justice Saylor on this precise issue. Therefore, while Justice Saylor clearly would have agreed with the Candidate’s position, it would appear that the remainder of our Supreme Court would not. . We note that decisions of lower federal courts are not binding on this Court, even when the issue concerns the federal constitution. Finnegan v. Pa. Bd. Of Probation & Parole, 838 A.2d at 684 (2003). . We also conclude that the federal district court’s conclusion to the contrary does not control, for the reasons stated in footnote 4 and for the reasons that follow. . We note the decision of the Court of Appeals for the 7th Circuit in Nader v. Keith, 385 F.3d 729 (7th Cir.2004), which upheld the requirement that petition signers be registered voters.

OPINION BY Judge SMITH-RIBNER. Erie County and Sheriff Bob Merski appeal from an order of the Court of Common Pleas of Erie County that dismissed their petition to review the final order of the Pennsylvania Labor Relations Board (PLRB). They question whether the PLRB erred in ruling that they committed an unfair labor practice under Section 1201(a)(1) and (5) of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201(a)(1) and (5), by refusing to permit an employee to bump into a position in the Sheriffs office where the Sheriff retains the sole discretion to hire, supervise and discharge his employees pursuant to Section 1620 of The County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1620, and Article 27.1 of the collective bargaining agreement. I The American Federation of State, County and Municipal Employees, District Council 85, Local 2666 (AFSCME) is the certified bargaining agent for County employees in a court-related bargaining unit that includes the Sheriffs office and also a residual unit. In 2003 AFSCME and the County negotiated a Collective Bargaining Agreement (CBA) covering these employees, effective from January 1, 2003 through December 31, 2006. Sheriff Mer- ski took office in 1998; he was a deputy-sheriff since 1980, and for over nine years he was a union steward and served on the negotiating committee during several contract negotiations. Article 14 of the CBA provides that an employee subject to layoff or whose position is abolished has “bumping” rights with regard to a position occupied by an employee of the same classification in the bargaining unit at equal or lower pay who has less seniority, provided that the more senior employee has the necessary qualifications and ability to satisfactorily perform the duties. The provision was incorporated verbatim from previous CBAs. During negotiations for the current CBA, neither side proposed changes to Article 14. Sheriff Merski was present at one or two bargaining sessions, and he made proposals for drug testing of employees and for a physical fitness policy for deputies. In 1993 the previous Sheriff refused to abide by seniority-based posting and bidding procedures in Article 13 of the CBA in regard to vacancies in the Sheriffs office. AFSCME filed a grievance, and the arbitrator denied it after concluding that Article 13 was unenforceable as to the Sheriff because it was in conflict with the right of row officers to select their staffs under Section 1620 of The County Code. On appeal, the court of common pleas upheld the denial. In 1998 the Clerk of Records refused to abide by the Article 13 bidding procedure. An arbitrator sustained a grievance in that case, but the trial court reversed, relying on the decision in the earlier case. In 2002 David Orr was laid off after his job in the Weights and Measurements Department was eliminated; he sought to bump into a Deputy Sheriff I position. Sheriff Merski would not permit it but considered Orr for and offered him a Security/Transport Deputy position, which he accepted. In 2003 Robert Skarupski was informed that his position as Chief Printer in the County Printing Office was to be eliminated. He expressed his desire to bump into a position in the Sheriffs office. Sheriff Merski indicated that he would not allow Skarupski to bump because the Sheriff retains the right to hire, fire and supervise employees under Section 1620 of The County Code. AFSCME filed an unfair labor practice charge with the PLRB. A Hearing Examiner conducted a hearing on the matter, and he issued a Proposed Decision and Order. He concluded, primarily on the basis of the holding in Troutman v. Pennsylvania Labor Relations Board, 735 A.2d 192 (Pa.Cmwlth.1999), that the row officers, including Sheriff Merski, had adequate notice of the existence of Article 14 and adequate opportunity for consultation during negotiations such that the requirement of consultation between the row officers and the county commissioners as their representative had been fulfilled and that they were bound by that provision. The County and Sheriff Merski filed exceptions, and in a Final Order the PLRB dismissed the exceptions and made the proposed decision and order final. The PLRB reviewed the history of interpretations of Section 1620 of The County Code as amended by Section 1 of the Act of June 29, 1976, P.L. 460 (Act 115), in particular County of Lehigh v. Pennsylvania Labor Relations Board, 507 Pa. 270, 489 A.2d 1325 (1985), and Troutman, and stated that bumping rights fall squarely within the definition in Section 701 of the PERA, 43 P.S. § 1101.701, of mandatory subjects of bargaining. The PLRB stated that the key factor in Troutman was that Section 1620 is satisfied when consultation or the opportunity for consultation has occurred and that the Hearing Examiner found such consultation here. Because bargaining as to hire, fire and supervisory issues is not contrary to Section 1620, Article 27.1 of the CBA, relating to legality, did not apply. If Sheriff Mersld wished to amend Article 14 of the CBA, it was incumbent upon him to so inform the county commissioners. Any reliance upon the common pleas court decisions noted above was deemed to be misplaced after Trout-man. The County and Sheriff Mersld petitioned the trial court to review. The trial court noted that under Section 1620 of The County Code as amended by Act 115, county commissioners are restrained from bargaining over .terms related to the hiring, discharge and supervision of certain employees, namely those appointed by the common pleas courts or by row officers. Section 1620 had been held to mean that county commissioners “must consult with the judges of the courts of common pleas and row officers regarding proposals that may affect their powers to hire, discharge, and supervise employees.” Troutman, 735 A.2d at 195. The trial court referred to the Supreme Court’s observation that the final collective bargaining agreement should ideally cover “all aspects bargainable under PERA” and should be entered into only after the commissioners have received input from the respective row officers. Pennsylvania Labor Relations Board v. Della Vecchia, 517 Pa. 349, 356, 537 A.2d 805, 808 (1988). Where a CBA has been reached after meeting this consultation requirement, a public employer cannot repudiate its terms by asserting that the CBA is contrary to law. The trial court deemed the facts of the present case, with a provision carried over from prior CBAs and the opportunity for row officers to comment, to be similar to Troutman, and it concluded that previous decisions or past practice did not apply after that decision. II Section 701 of the PERA, relating to matters subject to bargaining, provides that public employers and their employee representatives must meet and confer in good faith “with respect to wages, hours and other terms and conditions of employment. ...” Section 702, 43 P.S. § 1101.702, relating to matters not subject to bargaining, provides in pertinent part: Public employers shall not be required to bargain over matters of inherent managerial policy, which shall include but shall not be limited to such areas of discretion or policy as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, the organizational structure and selection and direction of personnel. (Emphasis added.) The Sheriff is required to appoint a Chief Deputy, whose appointment is revocable at the Sheriffs pleasure on recording of a signed revocation, under Section 1203 of The County Code, 16 P.S. § 1203, and the Sheriff “may appoint such deputies and clerks as may be necessary to properly transact the business of his office” and may revoke the appointment of deputies in the same manner as for the Chief Deputy under Section 1205,16 P.S. § 1205. Section 1620 of The County Code, as amended Act 115, provides: The salaries and compensation of all appointed officers and employes who are paid from the county treasury shall be fixed by the salary board created by this act for such purposes: Provided, however, That with respect to representation proceedings before the Pennsylvania Labor Relations Board or collective bargaining negotiations involving any or all employes paid from the county treasury, the board of county commissioners shall have the sole power and responsibility to represent judges of the court of common pleas, the county, and all elected or appointed county officers having any employment powers over affected employes. The exercise of such responsibilities by the county commissioners shall in no way affect the hiring, discharging and supervisory rights and obligations with respect to such employes as may be vested in the judges or other county officers. (Emphasis added.) In Ellenbogen v. County of Allegheny, 479 Pa. 429, 388 A.2d 730 (1978), judges sought a declaration as to who was the managerial representative for bargaining with the employees they supervised. The Supreme Court held that the designation in Section 1620 of The County Code of the county commissioners as managerial representatives in bargaining avoided the problem of having too many decision-makers, none with full authority to reach early agreement. In County of Lehigh the Supreme Court rejected the argument that the proviso in Section 1620 limited the permissible subjects of bargaining to purely financial terms, stating: The proviso merely recognizes that, under PERA, matters affecting the hiring, discharge and supervisory powers of the public employer are not subjects of collective bargaining.... In Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, [479 Pa. 440, 447, 388 A.2d 736, 739 (1978)], we rejected the argument of the judges of the Philadelphia Court of Common Pleas that “subjecting ‘wages, hours and other terms and conditions of employment’ ... to bargaining [would] interfere with their ability to administer justice.” ... Relying on our decision in Ellenbogen ..., in which we held that so long as judges retain their authority to select, discharge and supervise court personnel, the independence of the judiciary is unimpaired, we upheld the applicability of PERA to courts of common pleas and their appointees.... Thus under our decisions county commissioners are not prohibited from negotiating “wages, hours and other terms and conditions of employment” provided such terms do not impinge upon judicial control of hiring, discharge and supervision in some concrete manner. County of Lehigh, 507 Pa. at 277-278, 489 A.2d at 1329 (emphasis added). In Della Vecchia the court noted that County of Lehigh reiterated that the Section 1620 proviso did not limit bargaining to purely economic matters, but it recognized that under PERA matters relating to hiring, firing and supervisory powers of the public employer are not subject to bargaining. This Court specifically considered the powers of a sheriff under Section 1620 of The County Code in Pennsylvania Social Services Union Local 668 v. Cambria County, 134 Pa.Cmwlth. 523, 579 A.2d 455 (1990). There the agreement negotiated by the county commissioners included a section stating that nothing therein should affect the rights of judges and other county officers with respect to hiring, discharging and supervising employees as guaranteed in Section 1620, the Pennsylvania Constitution and relevant court cases. When a newly elected sheriff discharged employees under Sections 1203 and 1205 of The County Code and the county refused to arbitrate the discharges, the union filed unfair labor practice charges. The matter was presented to an arbitrator, who concluded that the grievances were not arbi-trable under the agreement provision, Section 1620 and Della Vecchia. This Court observed that Ellenbogen and Della Vecc-hia reaffirmed that matters affecting the hiring, firing and supervisory powers of public employers under Section 1620 were not subjects of bargaining, whether for courts or row offices. Sections 1203 and 1205 granted the sheriff power to appoint a chief deputy, deputies and clerks and to discharge the chief deputy and deputies. The conclusion that the dismissals were not arbitrable under the provision regarding Section 1620 drew its essence from the terms of the agreement. The County and Sheriff Merski first argue that Troutman is distinguishable because, they assert, in that case the row officers had abided by the bidding provisions of the CBA. In this case, by contrast, there is no evidence that Sheriff Merski or any other row officer ever abided by the provisions of Article 14. As noted above, it was held by the court of common pleas that posting and hiring rights under the CBA could not be enforced against the Sheriff under Section 1620 of The County Code. The same result was reached in regard to hiring rights of the Clerk of Records in 1999. Sheriff Merski actively and successfully asserted his rights under Section 1620 in 2002 in regard to the effort of Orr to bump into a particular position. At no time did Sheriff Merski agree to relinquish his rights. The CBA applies to bargaining units that include employees apart from court employees and those of row officers; thus Article 14 was effective as to employees of other offices and departments. In view of these cases and history, Sheriff Merski had no reason to object to the inclusion of Article 14 in the CBA because such provisions had been held to be unenforceable against his office. He did not have to propose a change to preserve a right that was his already as a matter of law. The County and Sheriff Merski argue that past practice is relevant and important where there is no evidence that any row officer has ever permitted an employee to bump into a position. They contend that AFSCME should have the burden to propose a change if one were to be made. Finally, the County and Sheriff Merski maintain that enforcement of Article 14 against the Sheriff would violate Section 1620; therefore, Article 27.1 of the CBA, relating to legality, applies. That section states that any provision of the CBA determined by proper authority to be in conflict with statutes, governmental regulations or court decisions shall be automatically adjusted to comply. The PLRB first asserts that Section 1620 of The County Code does not limit the scope of bargaining for row office employees. The section on its face does not affect preexisting “rights and obligations” of row officers regarding negotiation, and cases such as County of Lehigh established that under it the commissioners were not limited to negotiating purely economic issues. In Pennsylvania Labor Relations Board v. American Fed’n of State, County & Mun. Employees, Dist. Council 84, 515 Pa. 23, 526 A.2d 769 (1987), the Supreme Court held that the commissioners erred in refusing to bargain on proposals relating to paid sick leave, paid funeral leave, pay for jury duty and shift differential pay for court-appointed staff. The PLRB states that under Ellenbogen, County of Lehigh and Della Vecchia, the scope of bargaining also includes those negotiable issues that flow from the right of row officials to hire, fire and supervise their work force. The PLRB argues that “job security” issues such as bumping rights are mandatory subjects of bargaining under Section 701 of the PERA. It contends that to determine whether there is a duty to negotiate job security matters such as bumping rights, the “balancing test” of Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975), must be applied, namely, whether the impact of the issue on the interest of the employee in wages, hours and terms and conditions of employment outweighs the probable effect on the basic policy of the system as a whole. It asserts that bumping is a mandatory subject of bargaining under this test, citing Commonwealth v. Pennsylvania Labor Relations Board, 125 Pa.Cmwlth. 114, 557 A.2d 1112 (1989) (affirming PLRB decision that Department of Public Welfare was required to bargain over transfer of work outside of a hospital bargaining unit). The PLRB emphasizes that the County and Sheriff Merski adequately consulted during negotiation of the CBA, and it disputes their contention that the employer in Troutman consistently abided by the parties’ CBA. The PLRB does not agree that the record shows that AFSCME conceded that Article 14 did not apply to the Sheriffs office, but regardless a union’s prior acquiescence to an employer’s bargaining violations does not operate as a waiver as to future, similar unfair practices. Crawford County v. Pennsylvania Labor Relations Board, 659 A.2d 1078 (Pa.Cmwlth. 1995). Also the PLRB strongly suggests that adopting the policy it formulated in Troutman of requiring row officials to inform the commissioners and the union in writing before conclusion of negotiation that the officials’ rights and obligations under Section 1620 have been satisfied would serve the interests of all concerned and eliminate wasteful litigation. Intervenor AFSCME agrees that the consultation that took place here was sufficient under Troutman. It asserts as well that the single instance in which Sheriff Merski challenged the application of Article 14 in regard to Orr should not be held to establish a past practice, and it notes that the two common pleas court cases relied upon did not involve Article 14 or Sheriff Merski as a party. AFSCME stresses that it has long been settled that a public employer may not enter into a CBA with its employees’ representative and then repudiate that agreement on the grounds of illegality. Pittsburgh Joint Collective Bargaining Committee v. City of Pittsburgh, 481 Pa. 66, 391 A.2d 1318 (1978). The Court first rejects the PLRB’s argument that bumping rights are a mandatory subject of bargaining where Section 1620 of The County Code applies. In Ellenbogen, County of Lehigh and Della Vecchia, as noted above, the statutory right of courts and row officers to hire their staffs was very plainly acknowledged and protected. In Teamsters Local 115 v. Pennsylvania Labor Relations Board, 152 Pa.Cmwlth. 394, 619 A.2d 382, 389 (1992), this Court referred to those decisions and stated that judges, through collective bargaining, can voluntarily limit their absolute right to supervise employees through appropriate procedures, and there is no legal principle suggesting that the same cannot be said of their ability to hire and discharge employees but added: “If it is not voluntarily granted, of course, that would summarily end the matter.” Although bumping rights may be mandatory subjects of bargaining in other contexts, they are not where Section 1620 applies. The Court agrees with the County and the Sheriff that the overall circumstances in Troutman are distinguishable and concludes that its holding does not justify removal of the Sheriffs statutory right to hire employees for his office. In Troutman the county and union engaged in “reopener” negotiations in July 1994, ultimately resulting in an agreement between the county and the employees of the Berks County row offices. In September the personnel director advised row officers of the objectives, and only Troutman responded; he stated that he wished to retain the right granted under Pennsylvania law to hire, fire and discipline employees. A provision carried over verbatim from prior agreements, section 28.3, required posting of vacancies and filling of positions based on qualifications, including seniority. Various row office positions were filled in a manner inconsistent with section 28.3, and an unfair labor practice charge was filed. The PLRB in Troutman found sufficient notice and acquiescence by row officers and held that the provision was effective, but the trial court required greater efforts to seek involvement of the row officers and reversed. The Court reviewed the requirement as stated in Ellenbogen, County of Lehigh and Della Vecchia that county commissioners must consult with judges and row officers, and it concluded that the requirement of input from the row officers had been met. The provision had been included verbatim in prior agreements, and row officers were given ample opportunity before the agreement was signed to raise their objections when notified in writing of the objectives. The Court noted that no objections were raised; rather, it perceived one vague comment by Trout-man, and it reversed the trial court and reinstated the PLRB decision. There is no question here that Sheriff Merski never intended to give up what he regarded as his exclusive right to hire employees for his office. Further, there was objective support for his view in the form of common pleas court decisions holding that Section 13, relating to filling jobs through posting and seniority, did not apply to the Sheriffs office or to the Clerk of Records office under Section 1620 of The County Code. Section 13 was not completely voided and removed from the CBA, but under the legality provision of Article 27.1 the CBA was adjusted to comply, meaning that it applied to other employees. Under the overall circumstances, it was reasonable for Sheriff Merski to conclude that the same situation would exist under the new CBA even after Troutman. The Court concludes that Troutman does not justify removal of the Sheriffs statutory right to hire his employees. Because the trial court’s conclusions are based on an error of law, the Court reverses the order of the trial court. ORDER ■ AND NOW, this 28th day of August, 2006, the order of the Court of Common Pleas of Erie County is reversed. . The Court's review is limited to determining whether substantial evidence supports the findings of fact and whether the conclusions based on those findings are reasonable and not arbitrary, capricious or incorrect as a matter of law. Troutman. . Article 2 "Recognition” provides that AFSCME is the bargaining representative for Bargaining Unit “B,” a residual unit of clerical-technical employees in the Department of Human Services (MH/MR, Drug and Alcohol and Children and Youth Services), Operations, Finance, Planning, Health, 9-1-1, Elections, Veterans’ Affairs, Library and Prison Maintenance, and Bargaining Unit "C,” a court-related unit of clerical-technical employees in the departments of Sheriff, Clerk of Records, District Attorney and Public Defender. Joint Ex. 1, R.R. 108a, 113a. . As for the PLRB’s efforts to remove some of the incentive for litigation in this area, the Court agrees that row officers upon receiving a copy of the proposed agreement should provide written notification to the commissioners and the unions that the row officers' rights and obligations under Section 1620 have been satisfied.

ORDER PER CURIAM. AND NOW, this 30th day of August, 2006, the Petition for Allowance of Appeal is GRANTED, and the order of the Commonwealth Court is hereby REVERSED. See McCray v. Pennsylvania Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005); Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980); 42 Pa.C.S. § 9760. Jurisdiction relinquished. Justice SAYLOR notes his dissent.

ORDER PER CURIAM. AND NOW, this 29th day of August, 2006, the Petition for Allowance of Appeal is hereby GRANTED. It is further ordered that oral argument will be limited to the issue of whether the Superior Court erred in holding that the alleged negligence constitutes six occurrences under the Donegal Mutual Insurance Company policy. The remaining issues will be considered on a submitted basis.