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OPINION LARSEN, Justice. This is the latest in a parade of cases coming before us for interpretative review of the Pennsylvania No-Fault Motor Vehicle Insurance Act (No Fault Act). The single issue presented in this appeal is: Whether the Estate of a deceased victim is entitled to receive work loss benefits under the provisions of the No-fault Act. The Superior Court held that a deceased victim’s estate is entitled to work loss benefits. We agree and therefore affirm. On January 14, 1977, John Goss Freeze, III, a minor child of eleven years of age, while riding a sled near his home in Wrightsville, Pennsylvania, was fatally injured when he was struck by an automobile. At the time of his accidental death, the minor-decedent was an insured under a no-fault automobile insurance policy issued by appellant, Donegal Mutual Insurance Company. Subsequently, the minor decedent’s father, John G. Freeze, Jr. (Appellee) was duly appointed administrator of the minor-decedent’s estate. Appellee applied to the appellant for payment of no-fault wage loss benefits. Appellant Donegal refused to pay the claim. Appellee instituted a complaint in assumpsit against appellant Donegal seeking to recover work loss benefits pursuant to the policy of insurance and the Pennsylvania No-fault Insurance Act. The appellant filed preliminary objections in the nature of a demurrer asserting that under the Pennsylvania No-fault Act, work .loss benefits are not provided for an eleven year old minor who has not entered the labor market prior to his death. The lower court agreed and sustained appellant’s demurrer. The court also, sua sponte, granted appellee leave to amend his complaint to seek survivor’s benefits and funeral expenses. The appellee chose not to amend and filed an appeal. The Superior Court reversed the lower court decision and held that the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Act. Appellant filed a petition for allowance of appeal which we granted. Appellant argues that our opinion and decision in Allstate v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980) restricts recovery of work loss benefits to those who are “survivors” of a deceased victim, and an estate is not a survivor within the meaning of the No-fault Act. In Heffner, it was decided that the right to work loss benefits is not terminated by the demise of a victim. We held that “survivors” of deceased victims are entitled to payment of these benefits under the terms of the No-fault Act. It follows then that, if work loss benefits do not terminate upon the death of a deceased victim, absent a statutory bar those benefits are recoverable by the deceased victim’s estate. This is the natural, logical and compelling extension of our holding in Heffner. Upon a close and careful examination of the No-fault Act, we find no language which precludes the. recovery of work loss benefits to the estate of a deceased victim. We previously have noted that the declared purpose of the No-fault Act, as set forth in its preamble is: “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Common wealth highways ...” Our approach in interpreting the No-fault Act, has been to consistently apply the rule of liberal construction mandated by the Statutory Construction Act. We also have presumed that the legislature intended to favor the public interest over any private interest. This has meant that in close or doubtful insurance cases we have found coverage for the insured. Further, this has meant that if we should err in ascertaining the intent of the legislature or the meaning of an insurance policy provision, we should err in favor of coverage for the insured. Allstate v. Heffner, supra. In support of the argument that only “survivors” are entitled to the wage loss benefits of a deceased victim, the appellant points to the No-fault Act and Section 201(a) which provides: If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this Act. Appellant argues that the language, “any victim or any survivor of a deceased victim is entitled to recover basic loss benefits,” demonstrates the legislative intent that only survivors of a deceased victim and not the estate may receive wage loss benefits. Apparently, this is because the estate of a deceased victim is not specifically mentioned. The appellant’s argument, however, overlooks the very basic and fundamental fact that a person who dies as a result of injuries sustained in a motor vehicle accident is, within the meaning of the No-fault Act, a victim. That an injured victim is entitled to basic loss benefits under the Act is beyond question. The fact that a “victim” dies as a result of his injuries and becomes, a “deceased victim”, makes him no less a “victim” entitled to benefits under the provisions of the Act. A personal representative in the person of the executor or administrator of his estate stands in the shoes of the deceased victim as far as entitlement to benefits is concerned. The event of a victim’s death activates the rights of statutory survivors to benefits under the Act. However, the activation of survivors’ rights does not diminish or erase the victim’s rights even though he now be a deceased victim. If it was intended that a victim’s right to benefits be extinguished at his death, the legislature could have and would have said so directly. The appellant argues that if work loss benefits are required to be paid to estates of deceased victims even where there are no statutory survivors, the work loss benefits would be, in effect, a $15,000 life insurance policy. Appellant’s argument assumes payment to be automatic and fails to take into account all of the requirements of the Act which necessitate a showing of the loss claimed. Nevertheless, even if payment is automatic as appellant suggest, estates of deceased victims are entitled to work loss benefits under the No-fault Act unless and until the legislature amends the statute to the contrary. The order of the Superior Court is affirmed. McDERMOTT and ZAPPALA, JJ., join in this opinion. FLAHERTY, J., joins in this opinion and filed a concurring opinion. ROBERTS, C.J., filed a dissenting opinion in which HUTCHINSON, J., joined. HUTCHINSON, J., filed a dissenting opinion in which ROBERTS, C.J., joined. NIX, J., did not participate in the consideration or decision of this case. This case was reassigned to this author on October 26, 1983. . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101, et seq. . Work loss means: (A) loss of gross income of a victim, as calculated pursuant to the provisions of section 205 of this Act; and (B) reasonable expenses of a victim for hiring a substitute to perform self-employment services, thereby mitigating loss of income, or for hiring special help, thereby enabling a victim to work and mitigate loss of income. Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 103; 40 P.S. § 1009.103. . Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982). . The automobile policy was issued to the decedent’s father, appellee, John G. Freeze, Jr. insuring the family vehicles. . Before addressing the merits of the case in Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), the Superior Court raised sua sponte the issue of the appealability of the trial court’s order. The court raised this issue because the lower court’s order granted the plaintiff Freeze leave to amend his complaint to seek “survivor’s loss” benefits and funeral benefits. Ordinarily, where a court sustains preliminary objections without dismissing the complaint or otherwise terminating the action, the order is interlocutory and lacks the finality needed to be appealable. The court went on to say, however, that if the amendment permitted by the order would, for all intents and purposes, put him out of court on the question he seeks to litigate, then the order is definite and final and is appealable. The court found that in this case, the amendment permitted by the order would drastically alter Freeze's cause of action so as to effectively put him out of court on the issue he sought to litigate, therefore, the order is final and appealable. We agree with this analysis. . "Survivor" means: (A) spouse; or (B) child, parent, brother, sister or relative dependent upon the deceased for support. Act of July 19, 1974, P.L. 489, No. 176 Art. I, § 103, 40 P.S. §§ 1009.103. . Allstate v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 102, 40 P.S. §§ 1009.102. . Act of Dec. 6, 1972, P.L. 1339, No. 290 § 3, 1 Pa.C.S.A. § 1928. . Act of Dec. 6, 1972, P.L. 1339, No. 290 § 3, 1 Pa.C.S.A. § 1922. . "Victim” means an individual who suffers injury arising out of the maintenance or use of a motor vehicle; "deceased victim” means a victim suffering death resulting from injury, [emphasis supplied] Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 103, 40 P.S. §§ 1009.103. . Act of July 19, 1974, P.L. 489, No. 176, Art. II, §§ 201 and 205, §§ 40 P.S. §§ 1009.202; 1009.205.

Opinion by Mr. Justice Maxey, This is a petition for a writ of certiorari. The petitioner, John A. McGinnis, prays for a review of the decision of the Court of Common Pleas of Allegheny County. On March 30, 1931, petitioner was sentenced by the Court of Oyer & Terminer of Blair County to three terms of one to two years each, the sentences to run consecutively. On December 17, 1932, he was sentenced by the Court of Quarter Sessions of Centre County to three to six years for escaping from Eockview Prison Farm. Petitioner avers that his “original sentence” in Blair County for one to two years was not completed when he was sentenced in Centre County. He contends, therefore, that the sentence for escape should have been the same as the sentence he was serving at the time he committed that offense. The Criminal Code of March 31, 1860, P. L. 382, sec. 3 (18 PS sec. 251), provides that “. . . if any prisoner imprisoned in any penitentiary or jail, upon a conviction for a criminal offense, other than murder in the first degree, or where the sentence is for imprisonment for life, shall break such penitentiary or jail, . . . such person shall be guilty of a misdemeanor, and upon conviction of said offense, shall be sentenced to undergo an imprisonment, to commence from the expiration of his original sentence, of the like nature, and for a period of time not exceeding the original sentence, by virtue of which he was imprisoned, when he so broke prison and escaped, ...” The question now is what was the “original sentence” which petitioner was serving at the time he “broke prison”? Was it the sentence from one to two years first imposed or should these three consecutive sentences of from one to two years each be treated as one original sentence of from three to six years? Multiple sentences are always imposed separately. Whether they are to be served concurrently or consecutively, they are never judicially lumped into one. See Com. ex rel. Hallett v. McKenty, 80 Pa. Superior Ct. 249, 250. The Superior Court said in Com. ex rel. Miller v. Ashe, 114 Pa. Superior Ct. 332, 174 A. 295, that “lumping the [two] sentences into one . . . was illegal.” This court held in Com. ex rel. Lynch v. Ashe, 320 Pa. 341, 182 A. 229, that prison authorities cannot lump two or more sentences into one, that the practice was “without statutory or other legal support,” and that such authority must be obtained from the legislature. (Such authority was obtained in 1937, see the Act of June 25, 1937, P. L. 2093, but this act being subsequent to tbe prisoner’s escape does not affect the present proceedings.) Under these authoritative decisions, the petitioner’s “original sentence” was the sentence of from one to two years he was serving at the time of his escape. It follows that his sentence for escape could not exceed that “original sentence,” as the Act of 1860 provides. It is contended that this construction of the Act of 1860 would result in the prisoner’s serving his sentence for escape concurrently with the second sentence imposed on him in 1931, and that in practical effect this would mean that he would go unpunished for escaping. This argument overlooks the inherent power of courts to fix the time of the beginning of the service of sentences imposed. Courts have immemorially exercised the power of either suspending sentence or deferring sentence to a particular day. “The right to temporarily defer sentence ... is universally recognized. . . . Where [the] practice [of an indefinite suspension of sentence] is recognized, the right to later impose sentence remains with the trial court and the time of its exercise is a matter for judicial discretion”: Com. ex rel. Wilhelm v. Morgan, 278 Pa. 395-7, 123 A. 337. “The court has the power to remand and hold convicts for sentence as long as may be deemed necessary and advantageous to the ends of justice”: Com. v. Mayloy, 57 Pa. 291, 300. “There is no doubt but that at common law courts . . . had the power to . ... suspend sentences; such power is inherent in the courts”: 8 R. C. L. 250. This power could not be taken away from them except by express and unequivocal statutory enactment. No such deprivation of power can be grounded on the Act of 1860 (supra). .It does say that the sentence for escape is “to commence from the expiration of his original sentence,” but the obvious meaning of this is that the sentence is to be served after his original sentence is served. It does not mean that he must begin to serve the sentence for escape on the very day his original sentence expires, if at that time he is about to begin serving another sentence previously imposed on him. The Commonwealth is concerned only with seeing to it that a prisoner who escapes is penalized for doing so. The exact date on which he begins to pay the penalty is of no importance. Since courts can suspend or defer sentences, it follows that they have the power to postpone the date for the beginning of service of sentence. The framers of the Act of 1860 (supra) apparently had in mind the escape of a convict who had only one sentence to serve, and the provision about the commencement of sentence was to make it certain that he would not begin to serve his sentence for escape while still serving the sentence from which he escaped; in other words, the two sentences must not be in any part concurrent. The act required that the sentence should not begin to be served until after the expiration of the original sentence; it did not require that it must begin to be served immediately after the expiration of the original sentence. The sentencing judge has the power to order that the sentence for escape .begin immediately after the expiration of the “original sentence” or, if, as here, there are other sentences already imposed and still to be served, he has the power to order that the sentence for escape be served immediately after the expiration of any and all other sentences theretofore imposed but which at the time are in whole or in part unserved. The petitioner’s complaint, like that in Com. ex rel. Snyder v. Francies, 58 Pa. Superior Ct. 273, 278, “is not that he is wrongfully in prison but that the court had not jurisdiction to impose the penalty exhibited in the record.” In re Bonner, 151 U. S. 242, it was said that the defect in jurisdiction to enter the particular judgment could be cured by giving the (sentencing) court an opportunity to pronounce the sentence which the law requires. “By this course,” as Judge Hendebson said in Halderman’s Case, 53 Pa. Superior Ct. 554, “the relator is relieved from the excessive punishment imposed and the law is vindicated by the appropriate penalty.” This court said in Com, ex rel. v. Smith, 324 Pa. 73, 187 A. 387: “It is well established that sentence to imprisonment for a greater period than warranted by law is an illegal sentence, to correct which the prisoner is entitled to a writ of habeas corpus: Com. v. Ketner, 92 Pa. 372.” Now, May 9, 1938, the judgment of the Court of Common Pleas of Allegheny County is reversed and it is ordered and adjudged that the relator be remanded and that the record be remitted to the Court of Quarter Sessions of Centre County to the end that appropriate process may be issued to bring him into that court and that he be there resentenced in accordance with law.

Opinion by Mr. Chief Justice Horace Stern, Shortly after seven o’clock on the morning of June 2, 1954, John T. Neelans, a 62 year old- attendant at a gasoline station located at Reedsdale Street and Ridge Avenue in the City of Pittsburgh, was struck on the head, shot in the chest, and robbed, by someone who stepped out from the side of the station; he died a few minutes later. The crime thus committed was murder in the first degree, the only question being the identity of the assailant: Thé defendant, Earl Richard Saunders, a lad not quite 16 years of age at the time, of the crime, was charged with the murder, tried, convicted, and sentenced-in pursuance of - the tecommendation of the jury to life imprisonment, the court having denied him a new trial. The record is extraordinarily voluminous. No trial could have been conducted with more meticulous care and judicial fairness, nor did counsel for the defendant overlook any point helpful to his client. A careful reading of the testimony does not support appellant’s contention that the evidence in regard to the identification of the perpetrator of the crime was not sufficiently clear and convincing to justify the conviction. A witness named Smaltz, a workman who happened to emerge at the time of the occurrence from a steel supply company where he was employed and which was in close proximity to the gasoline station, saw the scuffle between the robber and his victim. He testified as to the cap, shirt or jacket, and jeans worn by the assailant, the gray or white mask which covered part of his face, that he was a colored man, that there was something unusual about his gait — “he had sort of a gangling walk”- — and that he ran up Fulton Street. Smaltz further testified that he attended a line-up in the police station two days after the murder where he picked out Saunders by Ms posture, the way he was built and the manner in which he walked. However, at the coroner’s inquest and at the trial he stated that he could not “positively” identify him, as he had not had a good look at his face. Another witness named Grainer, employed as a truck driver for an express company, saw the man running up the street with a white mask covering the lower part of his face; his height was about five feet, ten inches; he wore a pair of blue jeans. A witness named Wenzelburger, employed as a milk driver for a dairy company, testified that he was not able “positively” to identify the man; he saw him run ning up Fulton Street and turning left into Medley Street; lie noticed that as he ran “he sort of held his arms away from his body”; he saw him “sort of adjust” his mask as he turned into the latter street. At the police line-up Wenzelburger identified defendant on his “general appearance as it looked to me the morning I saw the crime,” — on his color, his height, his build and the way he carried his arm. Arizona Nicholson, a clergyman, testified that the assailant was a colored man, that he was partially masked, and that he was approximately five feet, eight inches tall. He identified the defendant at the police line-up but could not now “swear to it” not having been able to see his face clearly, but he “believed” that defendant was the man he had seen with the mask; he resembled the fellow he saw bending over the man. The principal witness for the prosecution was a ten-year old lad named Edward Hargrove, whom the trial judge, in the court’s opinion denying a new trial, characterized as a “bright lad,” saying that “It was obvious to the court, to the jury and to the spectators that young Edward was telling the truth. He handled himself so intelligently, so quietly and so effectively on cross-examination that no one could doubt the sincerity of his story.” This young negro boy was on friendly terms with defendant; they had known one another very well for from three to five years; their houses were only five doors apart, they attended adjoining schools, and they saw one another practically every day. Hargrove testified — not aggressively nor venomously but with laudable caution and restraint — that he happened to be standing with his little sister that early morning in front of the defendant’s house at Fulton and Medley Streets when he saw the gas-station attendant come down Ridge Avenue to open the station door. He saw someone wearing a mask come out from the side of the station and attack the attendant, and he heard the victim’s screams. He saw the robber go through the man’s pockets and then run up Fulton Street still wearing his mask, but when he came to the corner of Fulton and Medley Streets, right across the 24 foot wide street from where Hargrove was standing, the mask slipped for a moment, Hargrove got a good look at his face and immediately recognized the defendant. He told his mother and stepfather what he had seen and that it was the defendant who had committed the crime, and he identified defendant at the police line-up. He testified at the trial that he was sure it was the defendant, that he had “never doubted it,” that he had had a good look at his face and had recognized him also by his arm which “was kind of bent out” of all the boys he knew none looked like the defendant. Hargrove was well acquainted with defendant, he saw his face clearly even though briefly, his identification of him was without reservation, and his testimony was not weakened in the slightest by cross-examination. Defendant denied his guilt, and several members of his family testified, by way of an alibi, that they saw him in bed at various times between six-thirty and eight o’clock A.M., two of them — a ten-year old brother and an eight-year old nephew — at about the time of the occurrence of the crime. Some of them said that he was in bed that June morning under the covers with his clothes on, including a pair of blue jeans, from which the jury might well have believed that he had but recently and hurriedly slipped into bed, although his family testified that it was his habit to sleep with his clothes on. This brings us to one of the principal issues in the case which arises from the so-called “recantation” of the Hargrove boy’s testimony. It appears that some five months after the trial, in an examination in the office of defendant’s counsel, he stated: “I was going to change my mind because it could be somebody else who looks like Richard [the defendant] and I don’t think it was him now.” Because of this development the court itself examined Hargrove in connection with the argument on the motion for a new trial. At that hearing Hargrove insisted that he had told the truth when he testified at the trial, but that he had had “bad dreams” and “something kept telling me it wasn’t him.” The court came very definitely to the conclusion that it was not “something” but more likely “somebody” who “kept telling” him. He gave his testimony this time under obvious stress, tension and emotion and occasionally with tears. While he insisted that it was because of the “bad dreams” that he came to believe that it was not the defendant whom he had seen, it appeared that the boys in the neighborhood, friends of the defendant, would no longer play with Hargrove as they had been wont to do, nor talk to Mm except to call Mm names and charge him with having told a lie at the trial; some of them told him they weren’t allowed to play with him because of his having “told on Richard.” There were other manifestations of pressure, brought to bear upon Mm to get him to retract Ms identification which he had made so positively at the trial. Never theless, while he insisted upon the “bad dreams,” he would not admit that what he had testified to at the trial was a lie. The court was unanimous in its finding that Hargrove had told the truth at that time and that it was the “recantation” that “rang false.” This, therefore, is not a ease of an essential witness admitting that he had committed perjury, in which event a new trial should be granted (Kvaternik v. Yochim, 360 Pa. 387, 389, 61 A. 2d 815, 816); on the contrary, as was said in Commonwealth v. Palarino, 168 Pa. Superior Ct. 152, 155, 77 A. 2d 665, 666, quoting from 16 C.J. 1188, §2715, “. . . recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.” Certainly the court below cannot be held to have been guilty of an abuse of discretion in refusing a new trial in view of the little faith it placed in Hargrove’s so-called recantation. We find no merit in appellant’s contention that the court committed error in permitting the witnesses Smaltz, Wenzelburger and Nicholson, to testify that they had identified the defendant at the police line-up. In many respects identifications made immediately after the occurrence of a crime are more reliable than when testified to at a later trial. As pointed out in 70 A.L.R. 911, the majority of jurisdictions have decided in favor of the admission of such so-called “extrajudicial identification” both as substantive and corroborative evidence. It must be borne in mind that wé are dealing here, not with the hearsay testimony of witnesses who merely heard- such identifications being -made, but with testimony given by those who themselves made the identifications at the line-up. Appellant’s criticism of the court’s charge to the jury on the ground' that .it did not sufficiently call; at tention to the failure of the witnesses, other than the Hargrove boy, to make a positive identification of the defendant at the trial, is wholly unwarranted. The charge carefully summarized the testimony of each of these witnesses and instructed the jury that it was their duty to evaluate the testimony, the opportunity there had been for identifying, and whether a proper identification was made. While it was said in Commonwealth v. Kloiber, 378 Pa. 412, 424, 106 A. 2d 820, 826, 827, that, where the accuracy of the identification is doubtful the court should warn the jury that the testimony as to identity must be received with caution, it was there also pointed out that where the opportunity for positive identification is good, and the witness — as here Hargrove — is positive in his identification, such testimony need not be received with caution and may be treated even as the statement of a fact. Incidentally, it is there further stated that “a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.” (citing many cases). There was admitted into evidence a shoe which had been taken from defendant the day after the commission of the crime and which had on it a smudge of blood. Defendant was not harmed by this exhibit because the witness who testified in regard to it, the Director of the County Crime Laboratory, admitted that there was nothing to show that the blood on the shoe was that of the decedent, nor the length of time that the blood had been there, nor how it got there. •' ■ The cómpláint that the court refused to admit testimony offered by 'defendant that some two to three months after Iiis arrest he had expressed Ms willingness -to take-a .polygraph or “lie detector” test — it being argued that tMs showed consciousness .of innocence — is likewise without merit. Since it is uniformly held that such a test is not judicially acceptable (see Commonwealth ex rel. Riccio v. Dilworth, 179 Pa. Superior Ct. 64, 67, 115 A. 2d 865, 866), it is obvious that neither a professed willingness nor a refusal to submit to such a test should be admitted. Defendant’s offer was merely a self-serving act or declaration which obviously could be made without any possible risk, since, if the offer was accepted and the test given, the result, whether favorable or unfavorable to the accused, could not be given in evidence. Distressing as is the conviction of a sixteen-year old boy of the crime of murder there is nothing in the record of the trial in this case nor in any of the proceedings in connection with it that would have warranted the court below in granting a new trial. Not only is defendant’s complaint unfounded that the charge of the court was prejudicial, but, on the contrary, if the trial judge displayed any leaning at all it was in defendant’s favor, evidencing an earnest desire to safeguard and protect his every right. The judgment of sentence is affirmed. There is not the slightest basis for any criticism of defendant’s counsel in connection with this “recantation.” Having heard that Hargrove had made statements expressing doubt as to his previous identification of defendant they naturally and justifiably sent for him in order that they might question him in regard to it, but they gave notice to the District Attorney’s Office to have a number of his staff present if he so desired, but the invitation was declined.

OPINION OF THE COURT LARSEN , Justice. The issue in this case is whether after discovered evidence, as that term is used by the courts when considering a motion for a new trial, is the only basis upon which the Workmen’s Compensation Appeal Board (Board) may grant a rehearing. Lewis Cudo (decedent) was an employee of Hallstead Foundry, Inc. (employer) for 22 years. For the five years preceding his death, decedent worked as a grinder, which position involved standing in a booth, grinding and turning metal castings weighing between 25 and 150 pounds. On May 17, 1979, decedent performed his normal tasks at work for seven hours. As he awaited the lunch whistle, he fell over and, shortly thereafter, was pronounced dead on arrival at Binghamton General Hospital. The autopsy listed the causes of death as advanced coronary atherosclerotic heart disease and acute congestive heart failure. Decedent had had a pre-existing heart condition which had been alleviated by surgery in 1966. Decedent’s wife, Barbara Cudo, appellant herein, filed a fatal claim petition under the Workmen’s Compensation Act (Act). 77 P.S. §§ 1-1603. Dr. James J. Grace, the Susquehanna County coroner’s physician, provided the only medical testimony during the hearing before Referee Fraser Donlan. Dr. Grace, who had not prepared the autopsy report and who could not recall ever having treated dece dent, testified that the stress and tensions of decedent’s regular work were directly related to decedent’s heart attack and resulting death. On the basis of this testimony, the referee awarded death benefits of $117.30 per week to appellant and directed that the employer’s insurance carrier pay $70.00 for medical expenses and $1500.00 for funeral expenses. The employer appealed to the Board, and, during the hearing before the Board, appellant requested that the matter be remanded for further hearings on the issue of medical causation. This request was refused, and the Board reversed the referee, finding that the medical testimony of Dr. Grace was equivocal on the issue of whether decedent had suffered a work-related injury resulting in death. An appeal was erroneously taken to the Court of Common Pleas of Susquehanna County. While that appeal was pending and within 18 months of the Board’s decision, appellant filed a petition for rehearing pursuant to section 426 of the Act. Appellant alleged in her petition for rehearing that after discovered evidence had become available, which evidence would show unequivocally that decedent’s death was work-related. The after discovered evidence referred to in the petition for rehearing was the testimony of Dr. William H. Sewell, who had performed heart surgery on decedent in 1966, but who had not been consulted by appellant until after the hearing before the referee. The Board acknowledged that Dr. Sewell’s testimony would have been available at the time of the hearing through the exercise of due diligence. The Board granted appellant’s petition for rehearing, however, stating that it was “in the interests of justice, particularly considering the difficult burden on a claimant in a death case such as ... the one here involved” to grant the petition. The employer’s appeal to Commonwealth Court of the Board’s grant of a rehearing was quashed as interlocutory. The rehearing was conducted before Referee Joseph Olexy, who admitted into evidence, in addition to the testimony of Dr. Sewell, the testimony of a co-worker of decedent and the deposition testimony of the employer’s medical expert. The referee awarded benefits to appellant and the Board affirmed. On appeal, Commonwealth Court, in a memorandum opinion, determined that the Board had abused its discretion in granting the petition for rehearing and ruled that the Board’s original order denying benefits must stand. Quoting Young v. Workmen’s Compensation Appeal Board (Britt & Pirie, Inc.), 72 Pa.Commw. 471, 475, 456 A.2d 1150, 1152 (1983), Commonwealth Court stated that the Board may only grant a rehearing where there is “after discovered, noncumulative evidence which could not have been, by the exercise of ordinary diligence, produced at the original hearing.” We granted appellant’s petition for allowance of appeal, and we now reverse. The Board has broad powers to grant a rehearing. The standard against which the Board’s discretion must be measured was early enunciated by Superior Court, which stated in a case similar to the case at bar: One of the purposes of the workmen’s compensation laws is to give a claimant full opportunity to present whatever competent evidence he desires to reach the merits of the case. In harmony with this liberal tendency, the courts have held that the board has broad powers to grant a rehearing when justice requires: Kocher v. Kocher et al., 300 Pa. 206, 150 A. 468 [1930]; Manley v. Lycoming Motors Corp., 83 Pa.Superior Ct. 173; Fedak v. Dzialdowski, 101 Pa.Superior Ct. 346. In Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 [1926], it is held that the court’s duty does not extend to sending the record back for an opportunity to furnish cumulative evidence to strengthen a weak case, as the board’s finding is binding on it; but it does not hold that so long as the record is within the grasp of the board it may not order a rehearing for further testimony to be taken. Greeby v. Philadelphia Asbestos Co., 120 Pa.Super. 9, 12, 181 A. 452, 453 (1935) (emphasis added). Moreover, the Board, “upon rehearing and without new evidence being presented before it, may change its mind and come to a different conclusion ...”, Lieberman v. Sunray Drug Co., 204 Pa.Super. 348, 351, 204 A.2d 783, 784 (1964) (emphasis added), cert. denied, 382 U.S. 819, 86 S.Ct. 43, 15 L.Ed.2d 65 (1965). When the Board grants a petition for rehearing, the Board is unrestricted in receiving additional, competent testimony. Serafini v. West End Coal Co., 131 Pa.Super. 476, 200 A. 245 (1938). Commonwealth Court is not serving the humanitarian purposes of the Act in restricting the Board’s exercise of discretion, and such a restriction is particularly abhorrent when one considers that many claimants are unrepresented by counsel. In addition, Commonwealth Court incorrectly imposed upon the Board the standards that are employed by the courts in determining whether to grant a new trial on the basis of after discovered evidence. See, e.g., Der Hagopian v. Eskandarian, 396 Pa. 401, 153 A.2d 897 (1959) (To justify new trial, after discovered evidence must have been discovered after trial, must be such that could not have been obtained at trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be likely to compel different result), cert. denied, 361 U.S. 938, 80 S.Ct. 381, 4 L.Ed.2d 358 (1960). The law is well settled in this Commonwealth that rules of procedure are relaxed in workmen’s compensation cases. See, e.g., Lako v. Schlessinger, 208 Pa.Super. 85, 220 A.2d 665 (1966). Hence, the rules of review which are employed by the courts should not be transplanted wholesale to procedures before the Board. The Board herein did not abuse its discretion in granting appellant’s petition for rehearing in the interests of justice. In fact, it would have been an abuse of discretion had the Board not granted a rehearing in that decedent, with a preexisting heart condition, was fully able to perform his job for seven hours immediately prior to his collapse. These circumstances, which strongly suggested a work-related acceleration of his death, called for a full and complete medical inquiry. Because the Board determined that the medical testimony presented at the first hearing was equivocal, further hearings should have been held to develop a complete record upon which to assess the merits of appellant’s claim. Accordingly, we reverse the order of Commonwealth Court and reinstate the Board’s award of benefits to appellant. NIX, C.J., joins the majority opinion and files a concurring opinion. McDERMOTT and PAPADAKOS, JJ., join the majority opinion. FLAHERTY, J., files a dissenting opinion joined by ZAPPALA, J. STOUT, J., did not participate in the consideration or decision of this case. This case was reassigned to this writer on Feb. 18, 1988. . 77 P.S. § 871 provides, in relevant part: The board, upon petition of any party and upon cause shown, may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation or other order or ruling, or upon which the board has sustained or reversed any action of a referee; but such rehearing shall not be granted more than eighteen months after the board has made such award, disallowance, or other order or ruling, or has sustained or reversed any action of the referee. . The only statutory restriction upon the Board is that its discretion may be exercised “upon cause shown.” 77 P.S. § 871. The appellate courts of this Commonwealth have ruled that the authority of the Board to grant a rehearing is to be liberally administered in the interest of the claimant. Conti v. Butler Consolidated Coal Co., 169 Pa.Super. 276, 82 A.2d 528 (1951). . The decedent in Greeby fell while working for his employer and struck the upper part of his left arm. He died within six months of the injury from a sarcoma in his left arm. The referee awarded benefits to decedent’s widow, but the Board found that there was evidence in the record to show that the sarcoma pre-existed the accident. The case was remanded to determine whether the accident at work accelerated decedent’s death. Decedent's widow did not offer further evidence at the second hearing. The referee reaffirmed the award of benefits, and the Board reversed. While the case was on appeal, decedent's widow filed a petition for rehearing, “alleging that she had located several witnesses whose testimony she desired to offer.” Greeby, 120 Pa.Super at 11, 181 A. at 453. The Board granted the petition and, following further hearings and a reaward of benefits which was upheld by the Board, Superior Court affirmed, specifically refusing to rule that the grant of rehearing was an abuse of discretion.

The opinion of the court was delivered by Gibson, C. J. That a sale on a judgment for a debt, secured by a mortgage, discharges the lien of the mortgage notwithstanding the act of 1830, was asserted in Pierce v. Potter, (7 Watts, 477,) and put on what we think tenable ground. That case was not exactly like the present, nor was a decision of the point absolutely necessary in it; still it is one of the buttresses of the judgment, and what is of decisive importance is, that at least one title, we are told, has been advisedly paid for on the authority of it. I may add to the reasons of the judge who delivered the opinion, that, though such a sale is within the letter of the act, it is not without its spirit, because it is not within the mischief which was intended to be remedied by it. We well remember how that act was procured, and what it was designed to meet. It was the offspring of a panic among a very numerous class of creditors, who supposed that their debts would be jeoparded if the lien of a mortgage might be discharged without the mortgagee’s consent. It is bootless now to say, what is shown by daily experience, that their fears were groundless, and that the fruit of their influence with the legislature bears heavily on debtors and younger lien creditors; but the disastrous consequences of the supposed remedy is a legitimate reason why it should not be pushed beyond the supposed mischief. That its consequences have been disastrous, has been perceived whenever we have had occasion to observe them; of which Garro v. Thompson, (7 Watts, 416,) and Colwill v. Hamilton, to be reported in Mr. Watts’s forthcoming volume, are pregnant instances; nor would the present one be less so, did we make the purchaser pay the price of the land twice told, by giving to the words of the enactment, the widest sweep of which they are susceptible. The act is redundantly worded, and the meaning is consequently ill expressed; but the purport of it is, perhaps, to declare that no mortgage or judgment shall bind more than the equity of redemption springing from a prior mortgage; and that no more shall be sold on a liberari or fieri facias by a subsequent incumbrancer. The object was professedly to do no more than guard the security of the prior mortgage creditor from disturbance by those who should come after him, and be entitled only to what should be left when he should have been satisfied; but what need could there be to guard his security against another security under his own control 1 In the present case, the securities are cumulative; but that is immaterial, for, I take it, the consequence would be the same were they securities for debts arising out of different transactions. The design was to protect the mortgage from the intermeddling of subsequent creditors; but can a judgment creditor, who is himself the prior mortgagee, be deemed a subsequent creditor within the purview of the statute, or, in his capacity of mortgagee, an object of protection against himself1 When he appears in a double character, it is obvious that a case has occurred which was not contemplated, nor consequently provided for. It is a maxim that any one may renounce the benefit of a privilege provided for himself; and when a mortgagee desires to sell the land on his judgment before a year and' a day has elapsed from the time when the debt became due, what is to prevent him. The letter of the statute! We all know what that is, and how worthless are accidental and sweeping expressions. There may be no intermediate creditor; and where there is one, it is not his interest, nor that of the debtor, to object to a sale of the entire estate. That the mortgagee may sell it thus on his judgment alone, cannot be disputed on any principle of legitimate interpretation. But what if he choose to sell only the equity of redemption! He may certainly do so, since the statute, as he might, according to Stackpole v. Glassford, (16 Serg. & Rawle, 163,) have done before it. Suppose, however, that he does not propose the estate expressly subject to the mortgage. Let him, then, be taken to sell the fee as he would have been taken to do in like circumstances before the statute. Pie did not propose the property specially in this instance; and the purchaser consequently took it discharged of the mortgage. Judgment of the Common Pleas reversed; and judgment rendered on the case stated, for the defendant below.

The opinion of the Court was delivered by Rogers, J. The 5th section of the Act of the 15th of March 1832, enacts that every register shall have jurisdiction within the county for which he shall have been appointed, of the probate of wills and testaments. The 13th and 25th sections provide the mode of proceeding when objections are made, or caveats entered, and the 31st section enacts that from all judicial acts and decisions of the registers, appeals may be taken to the Register’s Court. In the performance of, this duty, the register is a judge, and admitting the will to probate is a judicial act, and the only remedy given to the party aggrieved is an appeal to the Register’s Court. It is settled in repeated decisions, that the sentence or decree of a judge or court of competent jurisdiction is conclusive, and cannot under any pretence be re-examined in a collateral proceeding. To this will there were two subscribing witnesses. One of them personally appeared before the register, and proved the will in proper form. The other being absent, the register after proof of the hand-writing of the testator, admitted the will to probate, and granted letters testamentary to the executors named in the will. These letters have never been revoked, and although there is no formal decree that the proof of the will was deemed good, yet that the will was admitted to probate we cannot doubt, as otherwise the grant of letters of administration to the executors, would be preposterous and absurd. Although this laxity -in practice is not to be commended, yet we cannot venture to' say, that where a formal decree is omitted, the whole proceeding is to be considered null and void. It is believed that such strictness would, under our loose practice, be productive of more harm than good. In Logan v. Watt, (5 Serg. & Rawle 212) it was contended that a register was not constituted a judge of what a legal probate is, so as to render his certificate to that effect evidence. This was denied, and the court decided that the certificate of the Register of Wills, that a will of lands had been duly proved, and approved before him, and a copy thereof annexed, is primfi, facie evidence of such will, though a copy of the probate is not set out. The court held that the register was a judicial, and not a ministerial officer, as regards this part of his duty, and that the only remedy of the party aggrieved by his decree, was an appeal to the Register’s Court. The only difference in this case is, that in Logan v. Watt, no copy of the probate was set out, and here the register certifies the will defectively proved, but this does not prevent it from being prima, facie testimony, at least, and as such admissible in evidence. The proof of the will being deemed defective, attempts were made to remedy this defect, by proving in the first place, the hand-writing of the subscribing witness; and secondly, by a commission to Pittsburg, to examine Elizabeth Pennock, now Connell, the other subscribing witness, on interrogatories. To the latter proof two objections are made: First: That the witness proves that she saw Hugh Ferguson sign the written document annexed to the commission, and acknowledge it to be his act and deed; and secondly, that the commission is not under seal. The first has been faintly pressed; surely this is a good authentication of the instrument as a will, accompanied by proof that the person signing it was of sound disposing mind. To require more would frequently do mischief, as a testator is frequently disposed to conceal the fact, that the instrument executed is a will. But does the want of an official seal to the commission invalidate the probate? The commission to examine the witness was issued under the authority of the 9th section of the Act of the 15th of March 1832, and should have been under the official seal of the register; this is another of the tissue of blunders into which the successive registers have fallen. But, notwithstanding the want of the seal, we think that on this trial the objection cannot avail the defendant. The commissioners have acted on the commission, it has been returned to the register, who has received it, and has certified it as part of the record under his official seal. This supplies the want of an official seal to the commission, which was nothing more than the authentication of the authority of the commissioners to take the examination of the witness. Judgment affirmed.

Opinion by Judge Crumlish, Jr., Consolidated for argument and disposition are the appeals of Appellants, eight Pennsylvania-based manufacturers of modular and mobile homes, from the denial by the Pennsylvania Department of Transportation (Penndot) of their applications for special hauling permits for the primary movement of fourteen feet wide mobile homes and requests for hearings thereon. The applications were rejected pursuant to a “final directive,” issued by Penndot on January 3, 1974, which limited the issuance of special “oversize” permits for fourteen feet wide units to those in production by January 31, 1974, and in transit by February 28, 1974. This directive effectively ended an experimental period conducted by Penndot throughout the Fall of 1973 during which special hauling permits for fourteen feet wide mobile home and modular units were routinely issued. On February 14, 1974, Newport Homes, Inc., Burlington Homes, Inc. and Poloran Homes of Pennsylvania, Inc. (Appellants herein) filed a complaint in the United States District Court for the Middle District of Pennsylvania to enjoin then Secretary of Penndot, Jacob Kassab, from discontinuing this policy of issuing fourteen feet wide special permits. A preliminary injunction was denied by the District Court on March 20, 1974. Newport Homes v. Kassab, Civil No. 74-944 (M.D. Pa., filed March 20, 1974). Thereafter, Appellants filed applications in the appropriate district offices of Penndot for special hauling permits for the movement of fourteen feet wide units for which Appellants had received pur chase orders. Penndot rejected each application and request for hearing thereon because the applications failed to comply with the width limitations of its “final directive.” The instant appeals to this Court followed. Appellants contend that the “final directive,” implemented internally by Penndot, violates and sub silentio alters the provisions of Regulation 800 of the Department of Transportation, and, as applied to them, violates their Fourteenth Amendment rights to Due Process and Equal Protection. Penndot has moved to quash the appeals on the ground that its actions in denying the permits did not constitute “adjudications” within the meaning of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. §1710.1 et seq., or otherwise an act of a judicial nature from which an appeal will lie. Before reaching this question, however, we must briefly dispose of Appellants’ contention that their right of appeal, guaranteed by Article V, Section 9 of the Pennsylvania Constitution of 1968, was implemented by Section 403(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 637, as amended, 17 P.S. §211.403(1) (Supp. 1974-1975), irrespective of whether the administrative action appealed from is judicial or quasi-judicial in nature. This position we rejected in Manheim Township School District v. State Board of Education, 1 Pa. Commonwealth Ct. 627, 276 A. 2d 561 (1971). Manheim was recently reaffirmed in LaCamera v. Board of Probation and Parole, 13 Pa. Commonwealth Ct. 85, 317 A. 2d 925 (1974). Although Section 403(1) of the Appellate Court Jurisdiction Act does not create an independent right of appeal, we must conclude that Appellants do have a right of appeal from the denial of special hauling permits under the Administrative Agency Law. As concerns appeals from administrative agencies which are not expressly provided for by substantive law, Article V, Section 9 has been implemented by Section 47 of the Administrative Agency Law, as added by the Act of December 2, 1968, P.L. 1135, 71 P.S. §1710.47 (Supp. 1974-1975). Smethport Area School District v. Bowers, 440 Pa 310, 269 A. 2d 712 (1970); Commonwealth v. Kready, 7 Pa. Commonwealth Ct. 448, 300 A. 2d 291 (1973). This section provides in pertinent part: “Where an Act of Assembly expressly provides that there shall be no appeal from an adjudication of an agency ... or where the applicable acts of assembly are silent on the question of judicial review, any person aggrieved by such an adjudication, who has a direct interest in such adjudication may nevertheless appeal the same in the manner provided by section 41 through 44 of this act, [71 P.S. §§1710.41-.44 (Supp. 1974-1975)]. . . . Section 31 through 35 of this act [71 P.S. §§ 1710.31-.35 (Supp. 1974-1975)] shall apply to all proceedings leading to an adjudication of an agency which may be appealed under this section.” The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. §901 et seq., under which Penndot purported to act in denying Appellants special hauling permits, is silent as to judicial review. Therefore, the instant administrative actions are reviewable if they can be characteried as a matter of law as “adjudications.” “ ‘Adjudication’ means any final order, decree, decision, determination, or ruling by an agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding in which the adjudication is made . . . .” Section 2 (a) of the Administrative Agency Law, 71 P.S. §1710.2(a) (Supp. 1974-1975). The denial of special hauling permits, as opposed to the promulgation of the “final directive” here attacked, is clearly a final decision of an agency which affect Appellants’ privilege to transport mobile homes with widths in excess of fourteen feet. That the decision was communicated in the form of “a letter, rather than a formal adjudication, if of no particular significance, for, as this Court has noted previously, a letter can under certain circumstances, constitute an adjudication. ” McKinley v. State Board of Funeral Directors, 5 Pa. Commonwealth Ct. 42, 45, 288 A. 2d 840 (1972). Nor are we here dealing with the mere promulgation of an administrative regulation or quasi-legislative fact finding of general application to persons throughout the Commonwealth. Compare Insurance Company of North America v. Commonwealth, 15 Pa. Commonwealth Ct. 462, 327 A. 2d 411 (1974); and Pittsburgh v. Insurance Commissioner, 4 Pa. Commonwealth Ct. 262, 286 A. 2d 475 (1971), rev’d on other grounds, 448 Pa. 466, 294 A. 2d 892 (1972). Rather, we have here a final determination of an administrative agency applying a challenged internally promulgated policy against individual parties, and the real issue is whether the agency can insulate the basis of its decision from meaningful judicial review by labelling its actions the product of administrative discretion. Justice Roberts in Man O'War Racing Association, Inc. v. State Horse Racing Commission, 433 Pa. 432, 250 A. 2d 172 (1969), suggests three indicia of administrative decision-making which is judicial in nature and appealable that we find to be germane to the instant appeals. “First, the decision making power of the [agency] and the manner in which it functions indicate judicial characteristics.” 433 Pa. at 438, 439, 250 A. 2d at 175. Under Section 905(a) of The Vehicle Code, 75 P.S. §905(a), “The Secretary of Highways of this Commonwealth [now Penndot], and local authorities in their respective jurisdictions, may, at their discretion, upon application in writing accompanied by the fee provided in this act, and good cause being shown therefor, issue special permits in writing, authorizing the applicant to operate or move ... (a) a vehicle or a tractor, or combination thereof, of sizes and weights exceeding the maximum specified in this act [maximum width of ninety-six inches under Section 902(a), 75 P.S. §902(a)] . . . .” (Emphasis added.) Implementing this discretion to permit oversize vehicles, Penndot promulgated Regulation 800 in 1970, “to regulate the use of State highways for the purpose of moving thereon mobile homes, construction trailers and oversize and/or over-weight office trailers . . . in order to preserve the safety of the users of State highways; to facilitate the movement of mobile homes . . . as %oell as the movement of traffic, generally; and to encourage the economic growth of commerce and industry in the Commonwealth of Pennsylvania without the necessity of constant supervision of Department employees, police and local officials.” Regulation 801 (Emphasis added.) Unlike the ministerial function of issuing occupational certifications where the only determination is whether specific minimum standards have been met, see Fricchione v. Department of Education, 4 Pa. Com monwealth Ct. 288, 287 A. 2d 442 (1972), the exercise of administrative discretion in the instant cases resembles an adjudicative process as “the [agency] must judge the merits of each applicant in terms of complicated and multi-faceted statutory standards.” 433 Pa. at 439, 250 A. 2d at 175. “Second, the decisions made by the [agency] are so frought with the public interest that an appeal must lie.” 433 Pa. at 439, 250 A. 2d at 176. As Regulation 801 indicates, granting or denying a special hauling permit involves the balancing of three distinct factors which potentially affect the public interest and welfare: 1) the preservation of safety on the State highways; 2) the facilitation of the movement of mobile homes without unduly interfering with normal traffic flow; and 3) the encouragement of economic growth in the Commonwealth. Added to these is the obvious impact upon the tax revenues available to the Commonwealth generated by the manufacture and movement of fourteen feet wide mobile homes in the form of application fees, highway taxes, as well as corporate and individual income taxes. There can be no question that many of these interests are conflictory and within the Secretary of Penndot’s particular expertise and sound discretion to reconcile. The presence of this expertise and discretionary power, however, does not insulate an agency’s ultimate decision from judicial review, but simply limits the scope of a court’s review. “Third, and finally, some courts have considered whether the action ‘substantially affects property rights’ to determine if the action is judicial.” 433 Pa. at 440, 250 A. 2d at 176. As in Man O'War, supra, Penndot argues that Appellants can have no “property right” in the issuance of a special hauling permit because Section 902(a) of The Vehicle Code limits vehicular width to ninety-six inches, and exceptions thereto are purely a matter of legislative grace. “However, to take such a narrow view of the licensing process herein involved not only yields an incongruous result, but also flies in the face of the test: Does the decision ‘substantially affect property rights?’ Indeed, it must. That which is being granted is a very valuable privilege even though it calls for a substantial investment.” 433 Pa. at 441, 250 A. 2d at 176 (Emphasis added.) Similarly, Appellants here claim to have expended considerable sums of money in tooling-up and stockpiling parts for a continued production of fourteen feet wide mobile homes. In most cases, applications for a special hauling permit are made after a manufacturer has received a purchase order for a fourteen feet wide unit, and the obvious effect of Penn-dot’s decision to ban the fourteen footers is to prevent completion of these orders. Most importantly, however, we feel is the effect of the settlement of this issue upon Appellants and other domestic manufacturers’ capacity to compete successfully with out-of-state manufacturers in the out-of-state market for these units and the obvious effect of this exclusion upon the Pennsylvania economy and consequent revenue to the Commonwealth. These interests are of such great significance that they meet the third criteria of an adjudication as suggested in Man O’War. Reaching the merits, then, we must conclude that the rejection of Appellants’ applications cannot be sustained by what is conveniently categorized as a “final directive” which purports to ban the transport of fourteen feet wide mobile homes. However we arrive at our destination by a route which was not charted by Appellants. Appellants argue that the “final directive,” admittedly promulgated without the formalities required of a rule or regulation, alters several express provisions of the outstanding regulations of Penndot. Although it is well established that the duly authorized and promulgated regulations of an administrative agency have the force of law and are equally binding on the agency itself as on others, Herdelin v. Greenberg, ... Pa. Commonwealth Ct. ..., 328 A. 2d 552 (1974); Good v. Wohlgemuth, ... Pa. Commonwealth Ct. ..., 327 A. 2d 397 (1974), we fail to see any inconsistency between the instant “final directive” and the outstanding provisions of Regulation 800. The “final directive” here challenged essentially represents an internal policy codifying the discretion vested in the Secretary of Penndot by Section 905(a) of The Vehicle Code, 75 P.S. §905(a), which has been exercised with respect to mobile homes in excess of twelve feet in width. Regulation 800, in turn, does not specify or otherwise limit the Secretary’s discretion as to the type of oversize vehicles which will be granted special hauling permits. Rather, once the Secretary’s discretion under Section 905(a) has been affirmatively exercised in favor of a particular oversize vehicle or class of vehicles, the regulations establish the application procedures and specific conditions which must be complied with in making the movement. For example, were the Secretary to determine the allowance of fourteen feet wide movements to be in the best interest of the Commonwealth, as he did in the Fall of 1973, movements on State highways would be restricted to Monday through Friday from 9:00 A.M. to 3:30 P.M. [Regulation 810 (g) ] ; and pilot cars with warning signs would have to precede and follow the oversized unit, depending upon the number of lanes of the highway over which the unit passes [Regulations 810(m)(n)]. As a practical matter, it would be overly burdensome and administratively inefficient to require the Secretary of Penndot to exercise his discretion under Section 905(a) upon each individual application for an oversized special hauling permit. Common sense dictates that the Secretary has the power to adopt a policy, to be uniformly applied by district offices of Penndot in the absence of extraordinary circumstances, which implements the Secretary’s discretionary power under Sec tion 905 (a) as to a particular class of oversized vehicles. Such necessary administrative latitude, however, does not excuse Penndot from complying with the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, 45 P.S. §1101 et seq. (Supp. 1974-1975), if this internal policy is in the nature and has the effect of a rule or regulation. Given the general applicability and future effect of the instant “final directive,” it is clear that it falls within the definition of “regulation” under either Section 102(12) of the Commonwealth Documents Law, 45 P.S. §1102(12), or Section 2(e) of the Administrative Agency Law, 71 P.S. §1710.2 (e), and thus its promulgation must be in accordance with the Commonwealth Documents Law. See Insurance Company of North America v. Commonwealth, supra; Pittsburgh v. Insurance Commissioner, supra. Having failed to comply with the Commonwealth Documents Law, the “final directive” issued by Penndot is a nullity and cannot form the basis for the rejection of Appellants’ special permit applications. Section 208 of the Commonwealth Documents Law, 45 P.S. §1208 (Supp. 1974-1975). We do not share the fear expressed by Penndot that the requirment of promulgating its policy decisions in accordance with the Commonwealth Documents Law would deprive the Secretary of the flexibility he needs in dealing with emergency situations. Certainly, were a regulation prohibiting the movement on State highways of mobile homes in excess of fourteen feet promulgated, the Secretary would still have the power under Section 905(a) of The Vehicle Code to permit wider movements in an emergency. Moreover, Regulation 811 contemplates an emergency oversize movement without the requirement of a prior permit so long as the Secretary of Penndot or his local subordinate is notified immediately, and a permit is subsequently issued. There is no serious question but that the Secretary of Penndot could promulgate a valid regulation which would ban the oversize movements which are the subject of this dispute. But until he does so, the discretion vested in him by Section 905(a) must be exercised on a case by case basis. Having disposed of the appeals directed on the invalidity of the “final directive,” the authority by which Appellants’ applications were denied, we need not reach the constitutional questions raised. The procedures herein employed by the Secretary of the Department of Transportation, Commonwealth of Pennsylvania, are accordingly reversed, and the individual applications are remanded to the Secretary with direction to exercise the discretion vested in him under Section 905(a) of The Vehicle Code as to each application and to hold such hearings as are required to make appropriate judgments. . A “primary movement” is the “movement of a house trailer, mobile home or office trailer from the place of manufacture ... to its destination, either by or for the manufacturers or the purchaser. . . .” Reg. 802(b) of Regulation 800 adopted by Penndot November 24, 1970, and published December 12, 1970, 1 Pa. B. 651-654. . In the case of Burlington Homes, Inc., a special hauling permit was issued on April 23, 1974, but revoked the next day as the application had erroneously described the movement proposed as from a dealer’s lot rather than a primary movement covered by the “final directive.” . Providing: “There shall be a right of appeal in all cases to a court of record from a court not of record; and 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 courts to be as provided by law; and there shall be such other rights of appeal as may be provided by law.” . Penndot is an agency subject to the provisions of the Administrative Agency Law though not specifically enumerated in Section 51(a), 71 P.S. §1710.51 (a) (Supp. 1974-1975). . Standard Lime and Refractories Company v. Department of Environmental Resources, 2 Pa. Commonwealth Ct. 434, 279 A. 2d 383 (1971). Also, see State Board of Chiropractic Examiners v. Life Fellowship of Penna., 90 Dauph. 44 (1968), rev’d on other grounds, 441 Pa. 293, 272 A. 2d 478 (1971).”

Opinion by Judge Kramer, This is an appeal by Thomas J. O’Keefe (O’Keefe) from an order of the Unemployment Compensation Board of Review (Board), dated April 9, 1974. The Board’s order reversed an order of an unemployement compensa tion referee dated January 29, 1974, which had awarded benefits to O’Keefe. O’Keefe was employed as an “unpacker” at a branch of Kaufmann’s, a large Pittsburgh-based department store. He had held this job from October 1, 1968 until November 20, 1973, the date of his discharge. O’Keefe frankly admits that for several months prior to his discharge he had been in the habit of removing small, stale pastry items from a hamper located near his work station. He ate these items as a supplement to his lunch. These pastries had been offered for sale in the branch store, reduced in price after one day, and thereafter stored in the hamper prior to being shipped to Pittsburgh for some incidental use. It is uncontroverted in the record that O’Keefe only took stale pastries which had been removed from the sales area. On the morning of November 20, 1973, O’Keefe took two pastries out of the hamper. Afterwards, at approximately 11:00 A.M., O’Keefe’s immediate supervisor informed him that he was not permitted to take the pastries and that he should not eat any more of them. At approximately 1:30 P.M. on that same date O’Keefe was discharged for eating the stale pastries. The Board denied benefits on the basis of section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (e), which provides, in relevant part, that an employe shall be ineligible for compensation for any week: “(e) in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . .” The burden of proving willful misconduct is on the employer. MacFarlane v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 550, 554, 317 A. 2d 324, 326 (1974) and Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 98, 309 A. 2d 165, 169 (1973). Whether the facts, as found below, constitute willful misconduct is a question of law. Long acre, Inc. v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 176, 179, 316 A. 2d 110, 111 (1974). Our power to review for errors of law is clear, as is our duty to determine whether all necessary findings are supported by substantial evidence. Stale v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 131 134, 318 A. 2d 398, 400 (1974). We have interpreted section 402(e) of the Law as requiring (1) the wanton and willful disregard of the employer’s interest; (2) the deliberate violation of rules; (3) the disregard of standards of behavior which an employer can rightfully expect from his employe; or, (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer’s interests or the employe’s duties and obligations. Kentucky Fried Chicken, supra. This definition indicates that before the actions of an employe can constitute willful misconduct, the employe must display a serious disregard of his responsibilities to his employer, in a manner that is in some real sense detrimental to his employer’s interests. The question is primarily a matter of degree, and the inquiry must be framed in terms of whether the employe’s acts rise to the level of willful misconduct. Loder v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 484, 296 A. 2d 297 (1972). O’Keefe’s immediate supervisor testified that he had observed O’Keefe and other employes taking the stale baked goods on many occasions, but that he had never warned any employe that such action was a violation of company policy. The supervisor explained this inaction by stating that he did not realize that there was anything wrong with taking the stale pastries until the day of O’Keefe’s discharge, when his superior informed him of the policy. A reading of the record reveals that O’Keefe made no attempt to conceal his actions, since both he, the other employes, and their immediate supervisor believed that the stale pastries were valueless waste material. Comparing this factual situation with the definition of willful misconduct noted above, we must conclude that O’Keefe’s actions do not rise to the level of willful misconduct. It is difficult to see how O’Keefe’s conduct can amount to a willful disregard of his employer’s interest, a deliberate violation of rules, or negligence which manifests wrongful intent or evil design, when O’Keefe’s supervisor observed the suspect action over a period of time, said nothing, and, in fact, did not know himself that any company policy was being violated. The only remaining basis for concluding that O’Keefe’s actions constituted willful misconduct would require a finding that eating the stale pastries amounted to “the disregard of standards of behavior which an employer can rightfully expect from his employe.” Kentucky Fried Chicken, supra. Once again we point out that willful misconduct is a matter of degree, and, while we do not condone theft by an employe, we simply cannot agree with the Board that this case shows any improper motive on the part of O’Keefe. In the peculiar circumstances of this case, we can find no indication of any wrongful conduct on O’Keefe’s part. Indeed, it is difficult for us to see how O’Keefe can be said to have disregarded a “standard of behavior” when the record shows, without contradiction, that none of the other employes, or the immediate representative of management, had the slightest idea that anything was wrong with eating a piece of stale, apparently unsalable, pastry. We note that O’Keefe, at the instigation of Kaufmann’s security personnel, signed a waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and a statement in which he “admitted” that he knew eating the pastries was wrong. This statement was signed by O’Keefe but was written in the handwriting of another person. It included an offer to make restitution in the amount of $50 (to cover all of the pastries consumed by O’Keefe over a period of several months), and, in fact, O’Keefe did pay Kaufmann’s $50. From this, the Board found that O’Keefe had been “stealing baked goods” from his employer. The entire balance of the record leaves us with no doubt that O’Keefe was not “stealing” as we understand the meaning of that term, and the statement containing the “admission” (which is the only evidence indicating O’Keefe knew his actions were disapproved of by his employer) does not constitute the substantial evidence necessary to support the finding of the Board. O’Keefe testified that he signed the statement at the request of security personnel because he was upset over the incident and feared a criminal prosecution at Kaufmann’s instigation. The procedure of this large department store security force used in this case appears to be similar to the procedure followed in shoplifting cases. The portion of the signed statement which purports to acknowledge that eating the pastries was “wrong” is patently incredible in light of the fact that the management’s own representative did not see anything wrong with the practice and had, in fact, knowingly permitted it to continue. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support the finding of the Board. Tritex Sportswear, Inc. v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 335, 315 A. 2d 322 (1974). Considering the circumstances under which the “admission” was made, the nature of the document itself, and the fact that it is the only evidence indicating that O’Keefe was aware of any relevant company policy, we cannot conclude that, standing alone, it provides adequate support for the Board’s finding. The Board cites Kostik v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 32, 315 A: 2d 308 (1974) as authority for the proposition that even one isolated instance of theft is sufficient to constitute willful misconduct. We do not disagree with this view of Kostik, but we note that in Kostik, and in contrast to the instant case, there was considerable evidence in the record to support the necessary finding of fact concerning the theft. In Kostik the employe had also signed a written “admission” (written in her own hand), but there was independent corroborating testimony to indicate that a theft had been attempted. Also, in Kostik the employe was allegedly engaged in tampering with price stickers on pieces of meat, an activity which the employe could not reasonably deny was an intentional violation of her employer’s trust. The consumption of stale pastry items, in the circumstances of the instant case, presents a totally different situation, in which an innocent misapprehension of company policy (or “non-policy”) is a clear possibility. Our holdings in this case are, of course, limited to the facts we have before us, and we do not imply that we approve of theft by employes. Our careful review of the record, however, leads us to conclude that O’Keefe’s conduct simply does not rise to the level required to mandate a denial of benefits. Accordingly, we ORDER And now, this 21st day of March, 1975, it is hereby ordered that the order of the Unemployment Compensation Board of Review, dated April 9, 1974, denying unemployment compensation benefits to Thomas J. O’Keefe, is reversed. . The record indicates that these stale pasteries were “ground up” for use in producing new baked goods. The Board’s brief, however, states that the pastries were used as animal feed. Unchallenged testimony in the record reveals that neither O’Keefe nor his immediate supervisor know of any further use for the pastry items. . The record does not indicate that any other employes were discharged for eating stale pastries.

The opinion of the court was delivered, January 3d 1871, by Williams, J. — The defence set up by the plaintiffs in error, the defendants below, on the trial of this case, was based on the hypothesis that the contract between the parties is entire, and that no recovery could be had thereon, because the plaintiffs below had not in all respects fully performed their part of the agreement. All the points submitted by the defendants — with the exception of the 6th relative to the measure of damages — and the refusal of which by the court is assigned as error, were predicated of an entire contract. If then the contract was severable, and not entire, the court rightly refused to give the instructions prayed for. The criterion for determining whether a contract is entire or separable is thus stated by Mr. Parsons in his work on the Law of Contracts: “If the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. * * * But if the consideration to be paid is single and entire, the contract must he held to be entire, although the subject of the contract may consist of several distinct and wholly independent items2 Pars. Oont. 29-31. This rule of classification is based on a distinction so simple that it may be easily understood and readily applied. It is the consideration to be paid, and not the subject or thing to be performed, that determines the class to which a contract belongs. Its entirety or separableness depends not upon the singleness of its subject, or the multiplicity of the items composing it, but upon the entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single the contract is entire, whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned, expressly or impliédly, to each of these items, the contract is severable. Judged by this criterion, there is no difficulty in determining to which class the contract in this case belongs. It is manifest from an inspection of its provisions that singleness or entirety of consideration cannot be predicated of it. It consists of several and distinct items, and the consideration to be paid therefor is several, and apportioned to each item; the whole is dependent upon the amount of the advances made, and of the net proceeds of the oil and other products manufactured by the company. The contract therefore was not. entire but severable; and the court rightly instructed the jury that the plaintiffs might recover the balance of the advancements, less whatever damages the company had sustained by the failure of the plaintiffs, if any, to comply with their contract. Nor was there any error in the refusal of the court to charge as requested in the defendant’s 6th point. If the plaintiffs neglected or refused to furnish the amount of money they agreed to advance, the company had the right to set off the special damages it had sustained by such neglect or refusal. But the court was asked to instruct the jury that they were not limited in their finding to any special damage suffered by such refusal, but might find such damages as they saw proper under all the circumstances in evidence before them. If the court had given this instruction, it would have Been manifest error, for it would have left the jury without any rule or measure for their guidance in assessing the damages. The refusal of the court to allow the defendant’s witness to answer the question proposed to him, was properly overruled for the reason given by the learned judge — that it was an offer to set off damages arising out of a collateral agreement between the. defendant and one of the plaintiffs. Judgment affirmed.

Opinion by Mr. Chief Justice Bell, Before passing upon the question raised by the appeal, namely, whether or not the lower Court properly assumed jurisdiction in a Declaratory Judgment proceeding, we shall first dispose of the appellees’ petition to quash the appeal to this Court based on the contention that'the Order of the lower Court dismissing preliminary objections to the petition was interlocutory. The right of appeal raising a question of jurisdiction under the Act of 1925 has proved so perplexing to the bar that we shall consider it at some length. ' The appellants contend that their right to appeal is authorized by the Act of March 5, 1925, P. L. 23, §1 (12 PS §672 et seq.) which provides: “Wherever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the' pleadings or with depositions, as the case may require; and the decision may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments.” The provisions of this section, insofar as they apply to the practice and procedure in actions governed by the Rules of Civil Procedure, have been suspended by Rule 1451 of the Rules of Civil Procedure, except insofar as they relate to appeals. Therefore, as pointed out by Mr. Justice Chidsey, in a footnote to his opinion in Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 102 A. 2d 170, “the right to appeal from a preliminary determination of jurisdiction has been preserved.” In Dozor Agency v. Rosenberg, 403 Pa. 237, 169 A. 2d 771, defendants appealed from the Order of the lower Court which dismissed their respective preliminary objections. The appeal was taken under the Act of 1925 on the ground that Equity had no jurisdiction of the complaint since jurisdiction lay by statute solely and exclusively in the Insurance Commissioner of Pennsylvania. In that case the Court said (pages 240, 242) : “However, generally speaking, an Order overruling preliminary objections is interlocutory and not appealable: Grosso v. Englert, 381 Pa. 351, 113 A. 2d 250. That general rule is, however, subject to the exception that if a question of jurisdiction is involved that question is appealable under the Act of March 5, 1925: Gardner v. Allegheny County, 382 Pa. 88, 114 A. 2d 491; Powell v. Shepard, 381 Pa. 405, 113 A. 2d 261. . . . We believe that defendants’ contention that The Insurance Unfair Practices Act gives the Insurance Commissioner exclusive jurisdiction and ousts all jurisdiction from Courts of Equity, raises a question of jurisdiction under the Act of 1925, although as we shall see there is no merit in this contention.” We have been unable to find any case involving the application of the Act of 1925 to declaratory judgment proceedings. However, in Strank v. Mercy Hospital of Johnstown, supra, it was construed in connection with an action in mandamus and the language of the statute there considered is strikingly similar to that in the Uniform Declaratory Judgments Act. The Act of June 8, 1893, P. L. 345, §1, as amended (the most recent amendment being the Act of May 13, 1925, P. L. 664, 12 PS §1911) provides: “The several courts of common pleas shall . . . have the power to issue writs of mandamus. . . .” The Uniform Declaratory Judgments Act of June 18, 1923, P. L. 840, §1, 12 PS §831, provides: “Courts of record, within their respective jurisdictions, shall have power to declare rights, status and other legal relations. . . .” In the Strank case we said: “Since the present appeal is under the Act of March 5, 1925, supra, the sole question within the scope of our inquiry on this appeal is whether the cause of action sued upon and sought to be enforced by. mandamus against a private institution, is within the general class of controversies committed to the lower court: see Witney v. Lebanon City, 369 Pa. 308, 85 A. 2d. 106. In the Witney case, Justice (now Chief Justice) Horace Stern, reviewed at length the .cases in Pennsylvania dealing with the question of jurisdiction of subject matter and then enunciated principles that guide us in resolving the instant question. It was there held that the 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, and the controlling question is whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to. grant the relief sought in the particular case. It was further held that the Act of 1925 was not concerned with matters going to the right of the plaintiff to recover on his cause of action but only with his right to have his cause of action heard and determined. Again in Upholsterers’ International Union of North America v. United Furniture Workers of America, C.I.O., et al., 356 Pa. 469, 473, 52 A. 2d 217, Mr. Justice Jones, speaking for the Court, declared that, ‘. . . The thing of chief importance on a question of jurisdiction of subject-matter is not whether, the plaintiff may recover in the particular forum on the cause of action pleaded but whether the court is empowered to hear and determine a.controversy of the character involved: . . In Main Cleaners & Dyers, Inc. v. Columbia Super Cleaners, Inc., 332 Pa. 71, 2 A. 2d 750, Mr. Justice (■later.Chief Justice) Stern, aptly said: “A court may have jurisdiction over the subject-matter of litigation even though the statement of claim or. the bill. of complaint be obviously demurrable as not setting forth a good cause of action. The test of jurisdiction is whether the. court has power to enter upon the inquiry, not .-whether it may ultimately decide that it is unable to grant the relief sought in the particular case: Kaisha, Ltd. v. Ewing-Thomas Corporation, 313 Pa. 442, 446; Heffernan’s Appeal, 121 Pa. Superior Ct. 544, 547. The question of jurisdiction relates solely to the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs: Skelton v. Lower Merion Township, 298 Pa. 471, 473; Grime v. Department of Public Instruction, 324 Pa. 371, 378; Massachusetts Bonding & Insurance Co. v. Johnston & Harder, Inc., 330 Pa. 336, 340. Thus, in Welser v. Ealer, 317 Pa. 182, it was held that the court had jurisdiction over a suit for damages for injuries resulting from an automobile accident, although plaintiff was an employee of defendant and was injured in the course of his employment and thereby precluded from recovering damages for his injury by any method other than that prescribed in the Workmen’s Compensation Act.” In Gardner v. Allegheny County, 382 Pa. 88, 114 A. 2d 491, the Court said (page 95) : “‘. . . Jurisdiction of the cause of action, as used in the statute, relates “solely to the competency of the particular court to determine controversies of the general class to which the case then presented for its consideration belongs”: Skelton v. Lower Merion Twp., 298 Pa. 471, 473.’ ” This principle has been reiterated time and again. See Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A. 2d 566; Upholsterer’s International Union of North America v. United Furniture Workers of America, C.I.O., 356 Pa. 469, 52 A. 2d 217; Gardner v. Allegheny County, 382 Pa. 88, 114 A. 2d 491; Pennsylvania Coal Co. v. Luzerne County, 390 Pa. 143, 134 A. 2d 657; Fairchild Engine & Airplane Corp. v. Bellanca Corp., 391 Pa. 177, 137 A. 2d 248; Guzek v. Empire Wholesale Co., 396 Pa. 78, 151 A. 2d 470; Adler v. Philadelphia, 397 Pa. 660, 156 A. 2d 852; Dozor Agency v. Rosenberg, 403 Pa., supra; Dauphin Dep. Trust Co. v. Myers, 388 Pa. 444, 461, 130 A. 2d 686. In the present case, the lower Court was expressly given the power to hear and determine in a declaratory judgment proceeding controversies of the general character or class here involved, and consequently it had jurisdiction of the subject matter. The fact that the lower Court might, or that on appeal we might determine that it should not or could not grant a judgment or decree sought by petitioner does not destroy that Court’s power or nullify its jurisdiction. It follows that an Order of the lower Court exercising such power in response to a pleading which raises the issue is appealable under the provisions of the Act of 1925. Accordingly, the appellees’ motion to quash or dismiss the appeal must be denied. We come now to the question as to whether the lower Court properly dismissed appellants’ Answer Raising Questions of Law. The pertinent facts as set forth in the petition are that on October 20, 1959, plaintiffs conveyed to defendants a tract of 5 acres in fee simple, which conveyance they averred was made pursuant to an agreement of sale which contained, inter alia, the following provision: “It is understood and agreed that Buyer may improve the land to be conveyed, that is the five acre tract, only with an office building, hotel, inn, or apartment; any such improvements shall be of first class design and construction and subject to the approval of all authorities having jurisdiction and the Owners, which approval shall not be unreasonably withheld.” Petitioners further averred that “During the course of negotiations for said Agreement of Sale and for the aforesaid Option Agreement, and at the time the five acre tract was conveyed and the Option Agreement en tered into, respondents represented to petitioners that they intended to erect a ‘motor hotel’ project on the five acre tract; that they might need an additional two acres to ensure the success and high quality of said ‘motor hotel’ project; and that they would use the adjacent two-acre tract, if they purchased it pursuant to the Option Agreement, only in conjunction with and as part of said ‘motor hotel’ project.” Petitioners also averred that on the same day, to-wit, October 20, 1959, the plaintiffs granted to defendants an option to purchase, at any time not later than September 20, 1961, an adjacent two-acre tract; that the option contained the following clause: “If the option is exercised, plans and specifications for the improvement to be erected on said premises will be subject to the approval of Seller, which approval shall not be unreasonably withheld”; that by letter dated February 10, 1961, defendants exercised their option and submitted with said letter a plan and description of an office building which they intended to erect on the two-acre tract. The prayer of the petition was that the Court enter a decree construing the terms and provisions of the option agreement and declare that the plaintiffs are not obligated to convey or, in the alternative, if plaintiffs convey, the defendants be enjoined from erecting any building which does not form part of a “motor hotel”. The defendants filed an answer praying the Court to dismiss the petition, asserting that declaratory judgment does not lie because the plaintiffs were in effect attempting to reform the agreements, and because the litigation would not terminate or be a practical help in terminating the controversies. Since the question of when a Court can and should take jurisdiction of a petition for a declaratory judg ment has been widely misunderstood we shall review the pertinent principles. In Keystone Insurance Company v. Warehousing and Equipment Corporation, 402 Pa. 318, 165 A. 2d 608, the Court said (pages 320-322) : “The two most important questions raised in this appeal are (1) whether the Court below abused its discretion in exercising jurisdiction in this proceeding, . . . “Notwithstanding the broad language of the Declaratory Judgments Act, they are not, and practical experience and realities have demonstrated that they should not be a matter of right, but a matter initially for the sound discretion of the lower Court. In the leading case of Eureka Casualty Company v. Henderson, 371 Pa. 587, 92 A. 2d 551, this Court, speaking through Chief Justice Stern, said (pages 591-592) : ‘We start with the fundamental proposition that whether or not a court will take jurisdiction of a petition for a declaratory judgment or decree is purely a matter of judicial discretion. . . . This discretionary character of the judicial process in such actions has been consistently proclaimed by this court ever since declaratory judgments first came into being: Kariher’s Petition (No. 1), 284 Pa. 455, 471, 131 A. 265, 271; Carwithen’s Estate, 327 Pa. 490, 494, 194 A. 743, 745; Capital Bank and Trust Company’s Petition, 336 Pa. 108, 111, 6 A. 2d 790, 792; Kahn v. William Goldman Theatres, Inc., 341 Pa. 32, 35, 17 A. 2d 340, 341; Schoenbrun v. Nettrour, 360 Pa. 474, 477, 61 A. 2d 868, 869. “ ‘The question arises, therefore, whether, under the facts here presented, judicial discretion would be wisely exercised if plaintiff’s petition were granted. ... It was said in Capital Bank and Trust Company’s Petition, 336 Pa. 108, 111, 6 A. 2d 790, 792: “. .. the vital factor in the assumption of jurisdiction is the presence of antagonistic claims indicating imminent and inevitable litiga tion, coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy “See to the same effect: Lifter Estate, 377 Pa. 227, 228-229, 103 A. 2d 670. “In Stofflet & Tillotson v. The Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274, the Court said (pages 576-577) : ‘Even though the granting of a petition for a declaratory judgment is a matter that lies within the judicial discretion of the court (Kahn v. Wm. Goldman Theatres, Inc., 341 Pa. 32, 35, 17 A. 2d 340), and though both parties have joined in asking for such a judgment, the question of its availability must be determined by the appellate court on appeal: Taylor v. Haverford Twp., 299 Pa. 402, 406, 149 A. 639; Erie v. Phillips, Admx., 323 Pa. 557, 559, 187 A. 203; Oberts v. Blickens, 131 Pa. Superior Ct. 77, 80, 198 A. 481. It is not an optional substitute for established and available remedies. “The Uniform Declaratory Judgments Act . . . was not intended for, and should not be invoked in cases where the judgment sought can be had as expeditiously in the ordinary course of legal procedure as it can under the statute”: Nesbitt v. Mfrs. Casualty Ins. Co., 310 Pa. 374, 380, 165 A. 403. The fundamental principle so declared in numerous cases was not changed by the amendment of 1935: Allegheny County v. Equitable Gas Co., 321 Pa. 127, 129, 183 A. 916.’ • “In the instant case the question does not. involve an interpretation of the words or the terms of the policy of insurance, but basically involves a question .of fact as to whether the insured gave to the insurance company notice that the trailer was to be included as part of the automobile which was insured. The Court is thus asked to decide, without the aid of a jury trial, a question, not of the interpretation of a contract of insurance, but a disputed question of fact. • ‘ “Ordinarily, it [the court] will not act [under the Declaratory Judgments Act] where there is a dispute as to facts, or such controversy may arise”: Ladner v. Siegel, 294 Pa. 360, 368, . . .’: Stofflet & Tillotson v. Chester H. A., 346 Pa., supra.” In Lifter Estate, 377 Pa., supra, where we sustained declaratory judgment proceedings, we reviewed and attempted to settle the vexing question and the proper applicable tests for sustaining a petition for a declaratory judgment and said: “In Eureka Casualty Co. v. Henderson, 371 Pa. 587, 92 A. 2d 551, Mr. Chief Justice Stern said (pages 591, 592) : . . whether or not a court will take jurisdiction of a petition for a declaratory judgment or decree is purely a matter of judicial discretion. ... It was said in Capital Bank and Trust Company’s Petition, 336 Pa. 108, 111, 6 A. 2d 790, 792; “. . . the vital factor in the assumption of jurisdiction is the presence of antagonistic claims indicating imminent and inevitable litigation, coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy “The facts in the instant case bring it within the aforesaid requirements; the problems involved are so unusual and difficult, litigation was so imminent and inevitable, and the peril to the Federation was so great and immediate that we consider this to be an appropriate matter for a declaratory judgment.” The Lifter case was followed by Wirkman v. Wirkman Co., 392 Pa. 63, 139 A. 2d 658. In that case we affirmed the action of the lower Court which had sustained preliminary objections to a petition for declaratory judgment, thus denying the availability of the remedy. Mr. Justice Cohen, speaking for a unanimous Court, aptly said (page 66) : “A declaratory judgment should not be granted where a more appropriate rem edy is available. See Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274 (1943) ; Borchard, Declaratory Judgments 302 (2nd ed. 1941).” These principles were again reiterated in Keystone Insurance Company v. Warehousing and Equipment Corporation, 402 Pa., supra. Our most recent consideration of the Uniform Declaratory Judgments Act was in Holt Estate, 405 Pa. 244, 252, 174 A. 2d 874, where we said: “The questions here involved readily could and should have been raised by an appeal from the probate of Holt’s will of 1944 and the codicil of 1950, instead of by declaratory judgment proceedings. There are no exceptional circumstances to justify such proceedings. Declaratory judgment proceedings in cases such as this, disrupt appropriate well settled procedures and are likely to increase litigation which is already swamping our Courts; and ‘A declaratory judgment should not be granted where a more appropriate remedy is available. See Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274 (1943); Borchard, Declaratory Judgments, 302 (2nd ed. 1941)’: Wirkman v. Wirkman, 392 Pa. 63, 66, 139 A. 2d 658. See to the same effect Eureka Casualty Co. v. Henderson, 371 Pa. 587, 592, 92 A. 2d 551; Capital Bank & Trust Company’s Petition, 336 Pa. 108, 6 A. 2d 790; Lifter Estate, 377 Pa. 227, 103 A. 2d 670.” The conveyance by plaintiffs of the five acres, pursuant to the above mentioned agreement of sale — which gave the buyer the right to improve the five-acre tract with an office building, hotel, inn or apartment, and that any such improvements were subject to the approval of the owners- — must be construed in conjunction with the option to purchase the adjacent two-acre tract, which option, if exercised, required the approval of the seller to the plans and specifications for the improvement to be erected on said premises. The sale of the five-acre tract and the option for the two-acre plot were, under petitioner’s averments, inextricably interwoven. Petitioner is therefore asking the Court in this declaratory judgment proceedings, first, to very substantially change, vary, limit and negate — under the guise of “interpreting” — the written agreement of sale for the five acres and secondly to impair, modify and effectually nullify a fee simple deed to said premises, by parol evidence. How often do we have to reiterate that we intend to uphold the integrity of written contracts and that we will not permit them to be altered, modified, changed, circumvented, or effectually nullified by parol evidence — -in the absence of fraud, accident or mistake which induced or Avas contemporaneous with the written agreement and was omitted therefrom by fraud, accident or mistake: Sokoloff v. Strick, 404 Pa. 343, 348, 172 A. 2d 302; Pellegrene v. Luther, 403 Pa. 212, 169 A. 2d 298; Orner v. T. W. Phillips Gas & Oil Co., 401 Pa. 195, 163 A. 2d 880; Amour Estate, 397 Pa. 262, 154 A. 2d 502; Furjanick Estate, 375 Pa. 484, 100 A. 2d 85; Phillips Gas & Oil Co. v. Kline, 368 Pa. 516, 84 A. 2d 301; Grubb v. Rockey, 366 Pa. 592,. 79 A. 2d 255; Walker v. Saricks, 360 Pa. 594, 63 A. 2d 9; Gianni v. Russell & Go., Inc., 281 Pa. 320, 126 A. 791. Moreover, what Avould happen to titles to real, estate if fee simple deeds could be limited or nullified by parol - evidence or oral agreements such a,s are alleged in the instant case? Since the original agreement of sale' with respect''to-the- five acres "must-Tie 'cons'truedy'niidiev petitioner’s' pleadings,in-cónjuríetiori wiili'ihe optioii} the óptioh dealing with an ^improvement” on-' -the 'twóJ acre lot-would similarly have tó he substantially: limited by parol evidence which* 6h the trial,'would be inadmissible.' • In Savitz v. Weinstein, 395 Pa. 173, 149 A. 2d 110, the Court said (page 174) ': “In Gardner v. Allegheny County, 382 Pa. 88, 114 A. 2d 491, the Court said (page 94) •: ‘Defendants by their “preliminary objections admit as true all facts which aré averred in the'bill of complaint but not'the pleaders’ ■ conclusions: or averments of law”: Narehood v. Pearson, 374 Pa. 299, 302, 96 A. 2d 895. . . .’ ” However, the applicability of the Parol Evidence Pule may be raised by preliminary objections in advance of trial, and preliminary objections do not admit the allegations that parol evidence changed the written agreement. Furthermore, notwithstanding the name given to it, the parol evidence rule is a rule not of evidence but of substantive law: Sokoloff v. Strick, 404 Pa., supra; O’Brien v. O’Brien, 362 Pa. 66, 71, 66 A. 2d 309; Lefkowitz v. Hummel Furniture Co., 385 Pa. 244, 247, 122 A. 2d 802; Bardwell v. Willis, 375 Pa. 503, 100 A. 2d 102. The defendants properly point out that an action for the reformation of a contract lies solely in. equity: Baskind v. National Surety Corporation, 376 Pa. 13, 101. A. 2d .645. It.is .their contention that, what the plaintiffs are actually requesting is that the Court, under the guise of “interpretation,” (a) grant equitable and injunctive relief and (b) determine that the word ‘^improvement”, in the, sale .and .conveyance of the five-acre tract and in the option agreement for the-two-acre, tract, be changed, reformed and limited to read “motor court” or “adjunct to; a motor , hotel”. A similar contention was made, but was rejected; py this .Court in Baskind v. National Surety Corporation, supra. Plain tiffs, on the other hand, contend that they merely desire to have the option construed, not reformed. If the Court, as plaintiffs desire, should (after hearing) determine that the defendants could not erect any “building which does not form part of the ‘motor hotel’ project”, this would terminate the present controversy, but it would not terminate other controversies which would likely or almost certainly arise under and from the option. Furthermore, it. is clear that if the lower Court did not agree with the interpretation presently desired by plaintiffs, it could not possibly determine and cover or limit by decree all the possible uses for which the two-acre tract could be Utilized, e.g., office building, apartment house, restaurant, supermarket, ad infinitum, or end the many likely controversies between the parties. This is particularly a case for relief, if any, in Equity and not for a declaratory judgment. A declaratory judgment is particularly inappropínate in the light of the facts averred by petitioners who, we repeat, in effect seek a reformation of a written agreement of sale and of an option, and necessarily rely for recovery on a parol agreement (a) to limit or nullify a deed in fee simple and (b) to change and reform a written agreement of sale and a written option, in the teeth of the Parol Evidence Rule. For each and all of the aforesaid reasons: Order reversed; petition dismissed, costs to be paid by appellees. Italics throughout, ours. Defendants also vigorously contended that no relief could be decreed since it was predicated on an inadmissible parol agreement. See infra. An example of a broad interpretation wbicb at. first brush is not in accord with all the principles and authorities hereinabove cited and quoted is Johnson Estate, 403 Pa. 476, 171 A. 2d 518, where the Court allowed a declaratory judgment after assuming that all other requisites were present, including the availability of another remédy. On the trial such, evidence, if objected to, would be inadmissible.

OPINION OF THE COURT POMEROY, Justice. Following a trial before a jury, appellant was convicted of murder in the first degree and aggravated robbery. He filed timely motions for a new trial and in arrest of judgment which were denied by the court en banc. He was subsequently sentenced to life imprisonment for murder and to a consecutive term of from ten to twenty years imprisonment for robbery. This appeal followed. Appellant presents a number of assignments of error, none of which, we have concluded, merits reversal. Accordingly, we will affirm. The evidence presented at trial, viewed in a light most favorable to the Commonwealth as verdict winner, established the following facts. In the late afternoon of October 15, 1971 one Keith Moore obtained a silver-barrelled .32 caliber pistol from a friend. Shortly thereafter Moore learned from his brother and two others that Bernard Sparrow, the defendant, was looking for him. The four men then left Moore’s house and began walking, Moore taking the gun with him in a paper bag. One member of the group, Erie Boyd, left the others for a short while and returned with two bullets. He thereupon asked for and was given the gun, which he placed in his trousers. Soon the group was augmented by two other persons, Kenneth Wallace and Jerome Bryant. Bryant informed the others: “We’re rumbling white boys at 16th and Morris.” He asked if any of the others had a weapon, whereupon the pistol was given to Bryant by Boyd, and loaded. Later Wallace asked for the weapon and Bryant complied. As the group reached the corner of Dickinson and Mole Streets in Philadelphia they were joined by the defendant, who demanded the pistol from Wallace and was given it. Sparrow was then heard to boast: “I’m going to get me a homicide.” He made it clear that the object of his remark would be a white person. Sparrow, Bryant and Wallace, separated from the other members of the group, then proceeded along Mole Street. Sparrow carried the gun underneath his coat and expressed his intention to rob someone. As they were walking, an automobile being driven along Mole Street stopped and a white male alighted. This person, later identified as Joseph Jaworski, opened the car’s trunk and began removing some pies. Wallace walked past Mr. Jaworski, but Bryant and Sparrow approached him from opposite directions, the appellant from the sidewalk side and Bryant from the street side. Sparrow waved the gun in Jaworski’s face, saying,o “You don’t think this gun is real, do you?” When Jaworski rejoined that he did believe the gun was real, the defendant ordered, “Give me your money.” Jaworski told the defendant he didn’t have any money and began calling for help. As he was shouting, the defendant fired the pistol once, killing Mr. Jaworski instantly. Sparrow was subsequently arrested, tried and convicted as detailed above. At trial, the appellant testified in his own behalf, giving an account of his actions at the time of the shooting which differed from that which he had given to the police during interrogation following his arrest. On cross-examination the prosecuting attorney confronted Sparrow with his testimony at a pre-trial suppression hearing that his statements to the police were true. It is now contended that this use of the suppression record violated Pa.R.Cr.P. 823(g), 19 P.S. (1975 pamphlet). We considered and rejected this argument in Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972), wherein we observed: “ [Wjhenever a defendant’s credibility is an issue it is in ‘the interests of justice’ to show that he had testified in a completely contrary manner at an earlier hearing in the same case. To decide otherwise would be tantamount to the condoning of perjury.” 448 Pa. at 174, 292 A.2d at 371. See also Commonwealth v. Good, 461 Pa. 546, 552-553, 337 A.2d 288, 291 (1975). There was here no misuse of suppression testimony. The statements made to the police were themselves also used by the prosecution to impeach Sparrow on cross-examination at trial. Error is assigned to such use on the ground that, although the suppression court had held the statements to be voluntary, they were obtained in violation of appellant’s constitutional rights, and therefore could not be used for any purpose. See Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). The main thrust of this argument is that the confession was involuntary because (among other reasons) of denial of access to appellant’s lawyer during the police interrogation. The suppression court heard all of the evidence relating to the circumstances under which the statements were obtained, including conflicting testimony on the question whether the defendant had requested and been denied an opportunity to consult with an attorney. The court found that the statements were voluntary and that none of appellant’s constitutional rights had been denied him. Under these circumstances, as we have held, “[t]he findings of the trier of fact, supported by the record, may not be disturbed. Commonwealth v. Karchella, 449 Pa. 270, 278, 296 A.2d 732, 733 (1972); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 89 (1972).” Commonwealth v. Johnson, 457 Pa. 554, 557-58, 327 A.2d 632, 634 (1974). Appellant also objects to the latitude allowed the district attorney in the cross-examination of Sparrow’s sister, Joan Sparrow. Before trial, Joan made certain threatening remarks to a prosecution witness. After she had testified on behalf of her brother, she was asked by the district attorney if she had made such threats, and whether she had been warned by the district attorney that it was illegal to threaten a witness. The trial court overruled objections to these questions and Joan Sparrow then answered affirmatively. “ [T]he scope or limitation of cross-examination is largely within the discretion of the trial court, and its action will not be reversed in the absence of an abuse of such discretion. Commonwealth v. Woods, 366 Pa. 618, 79 A.2d 408 (1951).” Commonwealth v. Cheatham, 429 Pa. 198, 203-04, 239 A.2d 293 (1968); see also Commonwealth v. Petrakovich, 459 Pa. 511, 523, 329 A.2d 844, 859 (1974). We find no abuse of discretion here. As this Court said long ago in the case of Commonwealth v. Farrell, 187 Pa. 408, 41 A. 382 (1898): “Whatever tends to show the interest or feeling of a witness in a cause is competent by way of cross-examination.” 187 Pa. at 423, 41 A. at 384. See also Commonwealth v. Coades, 454 Pa. 448, 452, 311 A.2d 896 (1973); Commonwealth v. Cheatham, supra; Lenahan v. Pittston Coal Mining Co., 221 Pa. 626, 70 A. 884 (1908); Commonwealth v. Emmett, 74 Pa.Super. 86 (1920). Questioning concerning the witness’ alleged threats was obviously designed to bring out the strength of Joan’s “feeling” towards her brother; the fact that she made them was a significant factor to be considered by the jury in passing upon her credibility. We consider next appellant’s argument that the trial court unduly restricted the scope of the voir dire examination and improperly denied several challenges for cause. For the most part, the questions defense counsel was not permitted to ask fell into two categories: first, questions through which counsel sought to ascertain the attitude of veniremen toward the defendant, including why they felt they were not prejudiced against him; second, questions seeking to explore prospective jurors’ reactions to the possible failure of the defendant to take the stand or present any evidence on his behalf. Both types of inquiry are foreclosed by our decision in Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). As to the first category of questions, we there said, “The only legitimate inquiry in this area was whether or not the juror had formed a fixed opinion in the case as to the accused’s guilt or innocence.” 427 Pa. at 298, 234 A.2d at 561 (emphasis added). Concerning the second type of questions, we said in Lopinson that such questions are “wholly unwarranted and properly excluded.” Id. As to the challenges for cause which are now claimed to have been improperly denied, we must bear in mind “that the scope of the voir dire examination rests in the sound discretion of the trial judge and his decisions, even in a challenge for cause, will not be reversed in the absence of palpable error.” Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A.2d 467, 471 (1953); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). Applying this rule, we find that no abuse of discretion occurred. In each case the record shows that none of the prospective jurors so challenged was possessed of any animus towards the appellant, or entertained a fixed opinion as to his guilt or was for any other reason subject to disqualification for cause. Finally, in addition to the alleged trial errors we have discussed, Sparrow urges reversal of his robbery conviction (or at least vacation of the sentence for robbery) on the ground that his Fifth Amendment guarantee against double jeopardy was violated when he was sentenced on both the murder and the robbery convictions. His theory is that the offense of robbery merged into the offense of robbery-murder, and so disappeared as a separate crime for which he could be sentenced. There was ample evidence in the case (such, for example, as Sparrow’s announced purpose, “I’m going to get me a homicide”) from which the jury could find that the slaying of Joseph Jaworski was wilful, deliberate and premediated. Were that the basis of the verdict of murder in the first degree, there would be no room for the double jeopardy argument. But the jurors were charged that they could also return that verdict if they determined that the killing occurred during the commission of a robbery. Since there is no way of knowing on which theory the jury proceeded, we must consider appellant’s contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable. We conclude that the argument is without merit. Our decisions on the doctrine of merger are not altogether harmonious. In general, however, the rule has been limited to situations where the offenses involved were in effect merely degrees of the same principal crime and the same facts proved both. The focus has been on the conduct of the defendant; if there is essentially but one criminal act, there can be but one punishment. An obvious example is that of an attempt to commit an offense, and the completed offense; the former merges into the latter. See also Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 142 A. 317 (felonious assault with intent to maim and disfigure, merges into felonious assault with intent to murder); Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190, (1941) (assault and battery with intent to commit rape and aggravated assault and battery merge into rape); Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973) (assault and battery in resisting arrest merges into assault and battery). These cases bear out the formulation of the doctrine in Russo, supra, that “where the distinct crimes set forth [in an indictment] grow out of the same transaction, differing only in degree, only one penalty can be imposed after conviction”. 293 Pa. at 324, 142 A. at 318. The test for merger was restated in Commonwealth ex rel. Moszcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) as follows: “The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are ‘successive steps in the same transaction’ but it is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. . . . When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence fon both.” 343 Pa. at 104, 21 A.2d at 921 (emphasis in original). See also Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973); Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953). It is true, of course, that the offense of; murder in the first degree, when based on the concomitant commission of a different felony, “necessarily involves” that other felony in the sense that the felony supplies the essential ingredient of malice. The language above quoted from Moszcynski, however, is not to be given so literal an interpretation. In that case, the defendant had been convicted and sentenced for bank robbery, breaking and entering with intent to commit a felony and a felonious attempt to kill. The Court held that although these several crimes arose from the same continuous episode, no one of them was a necessary ingredient of the others, and no merger occurred. The Court was there concerned to disapprove a line of cases which had held that all that was necessary to invoke the merger doctrine was the fact that “ ‘two or more of the things forbidden are but successive steps in the same transaction,’ ” Commonwealth ex rel. Ciampoli v. Heston, 292 Pa. 501, 503, 141 A. 287, 288 (1928); it was in no way considering a felony-murder situation, which bears but a superficial similarity to those circumstances in which merger has been found. “As applied in Pennsylvania, common law felony-murder ‘is a means of imputing malice where it may not exist expressly . . ’ ” Commonwealth v. Yuknavich, 448 Pa. 502, 506, 295 A.2d 290, 292 (1972), quoting from Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 224-25, 261 A.2d 550, 553 (1970). This degree of commonality, and the circumstance that both crimes were committed in the course of a single “episode”, cannot obscure the obvious fact that robbery is not a lesser degree of murder; it is a totally discrete offense. Both our common law and statutory law has said that when an unj ustified killing occurs in the course of the commission of a robbery (or other specified felony) the killing is not simply an unfortunate accident or manslaughter or even murder in the second degree, but is murder in the first degree. It is a simple matter of definition of the crime involved in one type of wrongful killing: if the killing is committed in the course of committing another specified type of crime, the homicide is murder in the first degree. The societal interest behind such a doctrine is the preservation of human life, so often casually forfeited in the commission of crimes of violence. That purpose would be ill-served by a rule which would say to a felon that “if you happen to kill the victim of your robbery (or your rape, or burglary, or kidnapping or arson) you will not be punished for the underlying crime.” Sparrow committed two distinct crimes, robbery and murder; one was a stealing, the other a killing. There was no merger of these crimes, and he cannot complain that he was sen-, tenced for both. Having concluded that the merger doctrine is inapplicable to the facts of this case because separate offenses are involved, we are satisfied that no double jeopardy problem is posed under the Constitution of the United States. Cf. Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Wells v. Missouri, 419 U.S. 1075, 95 S.Ct. 665, 42 L.Ed.2d 671 (1974) (Opinion of Mr. Justice Brennan, joined by Mr. Justice Douglas and Mr. Justice Marshall dissenting from the denial of certiorari). Judgments of sentence affirmed. ROBERTS, J., filed a dissenting opinion in which MANDERINO, J., joined. NIX, J., filed a dissenting opinion, in which ROBERTS, J., joined. . Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202 (Supp. 1975-76). An appeal from the judgment of sentence imposed on the robbery conviction was taken to the Superi- or Court. That appeal was certified to this Court. . Paragraph (g) of Rule 323 of our Rules of Criminal Procedure provides as follows: “(g) A record shall be made of all evidence adduced at the [suppression] hearing. The clerk of court shall impound the record and the nature and purpose of the hearing and the order disposing of the application shall not be disclosed by anyone to anyone except to the defendant and counsel for the parties. The record shall remain thus impounded unless the interests of justice require its disclosure.” . The statements were to a large extent exculpatory, Sparrow denying in them that he was present at the scene of the killing; they were not introduced into evidence by the Commonwealth in its case in chief. , Appellant also asserts that the use of the statements for impeachment purposes should have been prohibited because they were obtained during a period of “unnecessary delay” between the time of his arrest and his preliminary arraignment. See Pa. R.Cr.P. 130; Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). We have never had occasion to consider whether the exclusionary rule of Futch, established pursuant to our supervisory authority and designed to discourage excessive detention in police custody of persons under suspicion of crime before bringing formal charges, should extend to the use of confessions for impeachment purposes. The exclusion involved in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), of course, was based on the constitutional infirmity of the statement there sought to be used for impeachment. However that may be, the alleged delay defect may not be considered on this record. Although the Futch decision preceded the suppression hearing in the case at bar by approximately six months, the point was first raised in post-verdict motions. This was too late. Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1974); Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974); Commonwealth v. Reed, 458 Pa. 8, 326 A.2d 356 (1974); Commonwealth v. Blagman, 458 Pa. 431, 326 A.2d 296, 300 (1974). In aid of the unnecessary delay argument the appellant also asserts that his arrest was illegal, apparently because made without a valid warrant. While we fail to see the pertinence of the arrest question to the issue of delay, the question cannot be considered because, as stated above, the delay issue itself is untimely raised. . The dissenting opinion of Mr. Justice ROBERTS states, mistakenly as we believe, that we have applied an improper standard for assessing the voluntariness of appellant’s confession. The standard which it would have us apply in this case is drawn from a portion of the opinion of Mr. Justice Frankfurter announcing the judgment of the Court in the case of Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) and followed by this Court in a number of cases starting with Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). That we have not departed from the guidelines espoused by Mr. Justice Frankfurter can be seen if the relevant portion of his opinion is viewed in its entirety: “Determination of what happened requires assessments of the relative credibility of witnesses whose stories, in cases involving claims of coercion, are frequently, if indeed not almost invariably, contradictory. That ascertainment belongs to the trier of facts before whom those witnesses actually appear subject to whatever corrective powers a State’s appellate processes afford. “This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review — with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence. See Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. Where there are no explicit findings, or in the case of lacunae among the findings, the rejection of a federal constitutional claim by state criminal courts applying proper constitutional standards resolves all conflicts in testimony bearing on that claim against the criminal defendant. In such instances, we consider only the uncontested portions of the record: the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” (citations and footnote omitted) (emphasis added) 367 U.S. at 603-04, 81 S.Ct. at 1879-1880, 6 L.Ed.2d at 1058. It is apparent from the italicized portions of this quotation that, in Justice Frankfurter’s formulation, there are two separate standards to be used by an appellate court in considering the voluntariness of a defendant’s confession. One is to be applied where there are findings of fact by the trial court; the other, where there are none. In the present case, the suppression court made four explicit findings: “1. The Commonwealth, through the testimony of police officers, established by a preponderance of credible testimony that the statement of defendant was voluntary. “2. The defendant was warned of his rights on three occasions and, otherwise, received the benefit of procedural and substantive safeguards set forth by the United States Supreme Court. “3. The evidence shows that the defendant was alert, responsive, normal and not under the influence of drugs or intoxicants at the time of the statement. “4. The statement was obtained by police without fear, threats, brutality or other forms of duress, or in response to any direct or implied promises.” Furthermore, the court in its memorandum opinion accompanying these findings stated that “[t]he interrogation was not prolonged.” Under these circumstances, applying the first portion of the Culombe test, supra, “those findings conclude us and form the basis of our review,” provided they are supported by the record. Our review of the record satisfies us that the suppression court’s findings were fully supportable; no more need be said. In addition to Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974), supra, we have applied this portion of the Culombe test in several other cases. See, e. g., Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103, 104 (1972): “An appellate court does not weigh evidence or pass upon the credibility of witnesses, and there is no basis for us to hold as a matter of law that the court’s finding of voluntariness was not adequately supported and well within the court’s discretion.” Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651, 653 (1973): “When the suppression court has determined that no beatings or physical coercion occurred ‘the appellate court will accept the determination of the [trier] of facts if there was any substantial evidence to support [its] conclusion’ Commonwealth v. Johnson, 365 Pa. 303, 314, 74 A.2d 144, 149, reversed on other grounds, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640 (1950).” See also Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865 (1975). . In connection with these same questions, appellant contends that the court erred because it failed to charge that the threats made by Miss Sparrow were to be considered solely insofar as they related to her credibility and were not to be considered as substantive evidence of any guilt on the part of the defendant. Because, however, no point for charge was offered to this effect and no objection was made to the failure so to charge, the issue has been waived. Pa.R.Cr.P. 1119(b), 19 P.S. (1975 pamphlet); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). . The Constitution of Pennsylvania, in article I, section 10, like the Fifth Amendment to the Constitution of the United States, guarantees that “[n]o person shall, for the same offense, be twice put in jeopardy of life or limb”. The clause in our state constitution, however, has traditionally been thought to apply only in capital cases. Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964); McCreary v. Commonwealth, 29 Pa. 323 (1857). Double jeopardy claims in other types of cases have thus normally been asserted under the federal constitution, Commonwealth v. Richbourg, 442 Pa. 147, 275 A.2d 345 (1971); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), or through the pleas of autrefois acquit or autrefois convict, Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368, 207 A.2d 814 (1965), or under the so- called merger doctrine discussed in the text, infra. For a further discussion of the Pennsylvania double jeopardy clause, see the opinion of Mr. Justice ROBERTS speaking for a plurality of the Court in Commonwealth v. Campana, 452 Pa. 233, 243-245, 304 A.2d 432, 436-437 (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 issue of the propriety of the sentencing of appellant Sparrow on both his conviction for murder and his conviction for robbery was not raised at the time of sentencing or in posttrial motions. In Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), this Court held that a challenge to the sentencing of the appellant for both forcible and statutory rape based upon a single incident of intercourse was not waived by Walker’s failure to raise the issue for consideration by the trial court; the issue was “exclusively . . the lawfulness of the sentence imposed upon these convictions.” 362 A.2d at 230. This writer dissented in Walker, supra, 362 A.2d at 233, on the ground that consideration of the double jeopardy issue had been foreclosed by the holding in Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974). In Piper the Court decided (also over this writer’s dissent) that failure to object at the time of sentencing to the constitutionality of the sentence imposed constituted a waiver of that issue. Cf. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976) (dissenting opinion of Pomeroy, J.). Because we are bound by Walker, supra, we shall proceed to consider the merits of the double jeopardy issue raised in this case. . “This Court has not had occasion to consider the question whether, following application of the Fifth Amendment’s Double Jeopardy Clause to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), our ‘merger’ decisions might satisfy the requirements of federal double jeopardy law. Our merger test, however, focuses on the conduct of the defendant rather than on evidentiary considerations and as such is generally thought more lenient to defendants than the ‘same evidence’ tests. See Note, Twice in Jeopardy, 75 Yale L.J. 262, 275 (1965).” Commonwealth v. Campana, 452 Pa. 233, 274 n. 11, 304 A.2d 432, 448 n. 11 (1973) (dissenting opinion of this writer). . See also Act of June 24, 1939, P.L. 872 I 701, 18 P.S. § 4701 (repealed, June 6,1973); 18 Pa.C.S. § 2502. . In Commonwealth v. Smith, 452 Pa. 1, 10, 304 A.2d 456, 461 (1973), Mr. Justice O’Brien, speaking for himself and Mr. Justice Pomeroy, in the opinion rendering the judgment of the Court, dealt with this issue as follows: “Appellant argues that, since he was convicted of a first-degree murder, it necessarily ‘involved’ the robbery because there was no other evidence which would support a verdict of murder in the first degree. We disagree. All robberies are not murders: the two offenses do not merge. If only one of the verdicts were overturned, the other could still stand.” Mr. Chief Justice Jones and Mr. Justice Eagen concurred in the result. Mr. Justice Roberts filed a dissenting opinion on another issue, in which Mr. Justice Nix joined; Mr. Justice Manderino noted a dissent. . Our interpretation of the merger doctrine and our decision today is, we believe, completely consistent with the relevant provision of the new Crimes Code: “Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for: (iii) the same conduct, unless: (A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil”. 18 Pa.C.S. § 110. See and compare § 1.07(4) of the Model Penal Code, (proposed official draft, 1962). Our decision today is also in accord with the weight of authority in other jurisdictions: In State v. Briggs, 533 S.W.2d 290, 291 (Tenn.1976), the Supreme Court of Tennessee, overruling one of its earlier cases, Acres v. State, 484 S.W.2d 534 (Tenn.1972), refused to hold that robbery was a lesser included offense of murder so as to prevent separate conviction and punishment for the robbery as well as the murder in a robbery-murder situation. Said the court: “The Acres opinion has been generally understood as authority for the proposition that one who commits a murder in the perpetration of a robbery cannot be convicted both for the robbery and for first degree murder; the theory being that the robbery is a lesser included offense within the offense of first degree murder because under our statute, T.C.A. § 39-2402, the perpetration of the robbery serves, in lieu of premeditation, to constitute one of the essential elements of first degree murder. “So understood, the decision in Acres is contrary to the great majority of the decisions in this country dealing with this specific issue. State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963); McChan v. State, 9 Md.App. 311, 264 A.2d 130 (1970); Brown v. State, 10 Md.App. 416, 271 A.2d 194 (1970); State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930); State v. Calvo, 240 La. 75, 121 So.2d 244 (1960), cert. den. 364 U.S. 882, 81 S.Ct. 170, 5 L.Ed.2d 103 (1960); Centers v. Commonwealth, 318 S.W.2d 57 (Ky.1958); State v. Orth, 106 Ohio App. 35, 153 N.E.2d 394 (1957); State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P.2d 706 (1965), 11 A.L.R.3d 828; Commonwealth v. Crecorian, 264 Mass. 94, 162 N.E. 7 (1928); Duvall v. State, 111 Ohio St. 657, 146 N.E. 90 (1924); People v. Johnson, 67 Cal.App.2d 195, 153 P.2d 784 (1944); Johnson v. People, 152 Colo. 586, 384 P.2d 454 (1963), cert. den. 376 U.S. 922, 84 S.Ct. 682, 11 L.Ed.2d 617 (1964). The holding in each of the foregoing cases is that robbery is neither the same nor an included lesser offense within the crime of murder in the first degree and that convictions for both offenses may properly be allowed to stand when murder is committed during the perpetration of a robbery. “We find neither reason nor authority for holding that one who commits murder during the perpetration of a felony named in the T.C.A. § 39-2402(4) cannot or should not be convicted and punished for both the offense of murder in the first degree and for the named felony. Nothing in the statutory definitions of murder in the first degree and of the felonies listed in T.C.A. § 39-2402(4) indicates a legislative intent that conviction and punishment for both offenses should not be permitted. Moreover, we agree with the holding in each of the cases from our sister states, supra, that the felony during the perpetration of which a murder is committed is neither the same offense as murder in the first degree nor a lesser offense included within that charge; hence, to permit convictions and punishments for both murder in the first degree and the other felony to stand in no way offends the constitutional protection from double jeopardy.” Accord, Price v. State, 261 Md. 573, 277 A.2d 256 (1971) (no merger in an arson-murder killing). Contra, People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 630 (1975); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); Ex parte Jewel, 535 S.W. 2d 362 (Tex.Cr.App.1976); Ronzani v. State, 24 Wis.2d 512, 129 N.W.2d 143 (1963). See also Reeves v. Henderson, 380 F.Supp. (W.D.La.1974).

OPINION OF THE COURT ROBERTS, Justice. This is an action for divorce governed by Pennsylvania’s new Divorce Code, Act of April 2, 1980, P.L. 63, § 101 et seq., 23 P.S. § 101 et seq. (Supp.1981) (effective July 1, 1980). The Court of Common Pleas of Chester County refused the request of appellant Lena Troiani Bacchetta, pursuant to section 401(d) of the Code, for equitable distribution of property acquired before the Code’s effective date on the belief that the requested distribution would unconstitutionally deprive appellee Vincent Louis Bacchetta of his property rights. Upon application of appellant, this Court assumed plenary jurisdiction. We conclude that the Legislature’s clear direction that all property acquired during the marriage of the parties shall be subject to the equitable distribution provision of the Divorce Code is a constitutionally permissible exercise of the Legislature’s authority to regulate the marital relationship. Hence we reverse and remand for proceedings consistent with this opinion. I The language of the Divorce Code makes clear that in actions governed by the Code all “provisions of the act,” including those relating to the equitable distribution of marital property, shall apply. “Marital property” subject to equitable distribution includes “all property acquired by either party during the marriage.” 23 P.S. § 401(e). There is no basis in the statute to qualify this legislative mandate by restricting the applicability of the equitable distribution requirement to only that marital property acquired after July 1, 1980, the effective date of the Code. Indeed, of the seven specific exceptions to the equitable distribution provision, none demonstrates the slightest legislative intention that the date of acquisition during marriage shall be at all relevant. Moreover, the stated purpose of the new Divorce Code is to deal effectively with the “realities of the matrimonial experience” by giving “primary consideration to the welfare of the family,” “mitigating] the harm to spouses and their children caused by the legal dissolution of the marriage,” and effectuating “economic justice” as well as “a fair and just determination and settlement of . . . property rights.” 23 P.S. § 102(a). Where, as here and in most cases for years to come, the parties were married before the enactment of the Divorce Code, it would be unreasonable to interpret the Divorce Code as providing for equitable distribution of only that property acquired after the Code’s effective date. Such an interpretation would impose the unmanageable burden on courts and litigants of determining which properties were acquired before, and which after, the effective date of the Code. Such an interpretation would also substantially deny the benefits of the Divorce Code to spouses in marriages in existence at the time of the Code’s enactment, thereby prolonging for at least a generation the very inequity the Legislature sought to remedy. In view of the stated purposes of the Code, it must be concluded that the Legislature’s definition of marital property as “all property acquired by either party during the marriage” includes property acquired before the effective date of the Code. II The trial court properly recognized that the equitable distribution provision of the Divorce Code applies to all property acquired during the marriage without regard to the Code’s effective date. However, the trial court erroneously held that, under Willcox v. Penn Mutual Life Insurance Co., 357 Pa. 581, 55 A.2d 521 (1947), such an application of the equitable distribution provision is unconstitutional. Willcox considered the constitutionality of those provisions of the Community Property Law of 1947 designed to confer upon Pennsylvania spouses a federal income tax advantage similar to that enjoyed in states which already had community property laws. The Community Property Law deemed the income from properties acquired and owned by one spouse prior to the Law’s effective date to be the common property of both spouses. The statute applied to all marriages, and automatically bestowed upon each spouse an “undivided one-half interest” in income from property owned separately by the other spouse. This Court concluded that this automatic bestowal of a one-half interest in separate property of another was an unconstitutional deprivation of property, in violation of due process. In enacting the equitable distribution provision of the Divorce Code, the Legislature sought to accomplish far different objectives than were sought in enacting the Community Property Law. Prior to the enactment of the Divorce Code, in many marriages a nonworking spouse contributed years of service to the family, but did not realize any significant economic gain. Thus, upon divorce, nonworking spouses, who frequently had no marketable skills, were left with few, if any assets of their own and faced the risk of becoming public charges. By providing for the distribution of property acquired during the marriage, the Divorce Code permits the correction of the economic injustices which often arose under former law and allows nonworking spouses to become self-supporting with the least financial hardship possible. The objective of providing for orderly transition upon the dissolution of marriages is manifestly within the Legislature’s broad control over the marital relationship: “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.” Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654 (1888). As Willcox itself recognized, it is within the Legislature’s prerogative in exercising the police power to provide for the distribution of property upon divorce. See 357 Pa. at 593, 55 A.2d at 527. “ ‘[Neither] property rights nor contract rights are absolute .... Equally fundamental with the private right is that of the public to regulate it in the common interest.’ ” PruneYard Shopping Center v. Robins, 447 U.S. 74, 84, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980), quoting Nebbia v. New York, 291 U.S. 502, 523, 54 S.Ct. 505, 510-11, 78 L.Ed. 940 (1934). That public right, the “police power,” “is one of the ‘most essential powers of government . . . . ’ Hadacheck v. Sebastian, 239 U.S. 394, 410, 36 S.Ct. 143, 145, 60 L.Ed. 348 (1915). * * * The police power is fundamental because it enables ‘civil society’ to respond in an appropriate and effective fashion to changing political, economic, and social circumstances, and thus to maintain its vitality and order. See, e.g., Mugler v. Kansas, 123 U.S. 623, 668, 8 S.Ct. 273, 301, 31 L.Ed. 205 (1887). ‘The police power of the state [must therefore be] ... as comprehensive as the demands of society require under the circumstances.’ [Commonwealth v. Barnes & Tucker, 472 Pa. 115, 126, 371 A.2d 461, 467 (1977) (Barnes & Tucker II).] * * * Indeed, it is the state’s least limitable power. See Hadacheck v. Sebastian, supra, at 410, 36 S.Ct. at 145.” National Wood Preservers, Inc. v. Commonwealth of Pennsylvania, Dep’t of Environmental Resources, 489 Pa. 221, 231, 414 A.2d 37, 42 (footnote omitted), appeal dismissed for want of substantial federal question, 449 U.S. 803, 101 S.Ct. 47, 66 L.Ed.2d 7 (1980). Due process requires that an exercise of the police power “ ‘shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objective sought to be [obtained.]’ ” Prune-Yard Shopping Center v. Robins, supra, 447 U.S. at 84, 100 S.Ct. at 2042, quoting Nebbia v. New York, supra, 291 U.S. at 525, 54 S.Ct. at 511. Accord, National Wood Preservers, Inc. v. Commonwealth of Pennsylvania, Dep’t of Environmental Resources, supra, 489 Pa. at 232-33, 414 A.2d at 43; DePaul v. Kauffman, 441 Pa. 386, 394, 272 A.2d 500, 504 (1971). Here, the means selected by the Legislature to mitigate the economic harms upon divorce unquestionably withstand constitutional scrutiny. As in other jurisdictions, equitable distribution occurs only upon divorce, when the need for economic assistance to the spouse with lesser resources is real and immediate. See Kujawinski v. Kujawinski, 71 Ill.2d 563, 17 Ill.Dec. 801, 376 N.E.2d 1382 (1978); Fournier v. Fournier, 376 A.2d 100 (Me.1977); Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974). The Code mandates that marital property be distributed “in such proportions as the court deems just after considering all relevant factors.” 23 P.S. § 401(d). As the Supreme Court of New Jersey has observed, such a court-order distribution “must by its terms be ‘equitable.’ ” Rothman v. Rothman, supra, 65 N.J. at 230, 320 A.2d at 502. Specifically excluded from property subject to distribution is that property which a party has “sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.” 23 P.S. § 401(e)(5). See also id. at § 401(e)(7) (property excluded to extent encumbered in good faith for value). To aid the court in the exercise of its equitable discretion, the Legislature has provided ten specific factors for the court’s consideration: “(1) The length of the marriage. (2) Any prior marriage of either party. (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties. (4) The contribution by one party to the education, training, or increased earning power of the other party. (5) The opportunity of each party for future acquisitions of capital assets and income. (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits. (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker. (8) The value of the property set apart to each party. (9) The standard of living of the parties established during the marriage. (10) The economic circumstances of each party at the time the division of property is to become effective.” 23 P.S. §§ 401(d)(1)-(10). A party claiming that the court should take into account one of the above factors must of course establish the relevance of the factor to the particular case. And in exercising its discretion, the court is required to set forth the “reason or reasons for the distribution ordered.” 23 P.S. § 404. This provision not only serves to enhance the rationality of decisionmaking but also permits effective appellate review. Cf. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (court required to articulate reasons for sentence). Thus, equitable distribution of property acquired during the marriage occurs only upon divorce, only in cases where it is justified, and only in amounts warranted by the facts. Because this effective, carefully tailored provision unquestionably applies to marital property acquired before the Code’s effective date, and because such an application is constitutional, the order of the Court of Common Pleas of Chester County is reversed and the record remanded to the trial court for proceedings consistent with this opinion. Order reversed and record remanded. NIX, J., files a dissenting opinion. FLAHERTY, J., files a dissenting opinion in which LARSEN, J., joins. This case was reassigned to this writer on April 26, 1982. . Section 103 of the Code provides: “The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act.” 23 P.S. § 103. . Section 401 exempts from “marital property”: “(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage. (2) Property excluded by valid agreement of the parties entered into before, during or after the marriage. (3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage. (4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce. (5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced. (6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to [38 U.S.C. § 3101] except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation. (7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced.” 23 P.S. §§ 401(e)(l)-(7). . In a community property state, half of the income earned by one spouse could be reported on the separate tax return of the other spouse. After the enactment of the Community Property Law of 1947, Congress provided for the same result in all non-community property states by adjusting the income tax rate structure applied to spouses filing joint returns. See Stanley & Kilcullen, Federal Income Tax Law § 1, p. 2-2 (1975). . We do not address appellant’s claims that the trial court abused its discretion in awarding an allegedly insufficient amount of alimony and that the trial court improperly determined that, for purposes of 23 P.S. § 401(e)(4), the parties had become “separated.” If an appeal is taken following the trial court’s determination upon remand, appellant may, of course, renew these claims.

Tilghman C. J. The first question in this case, is, what estate passed to Solomon Hall, by the following devise in the will of Sarah Mallowes. “ I give and bequeath to my kins- “ man Solomon Hall, 10Ɩ. in lawful money, likewise 60 acres “ of woodland, joining on the northeast side the plantation “ he now dwells on, I give to him, and his lawful begotten “ heir for ever." The first reading of these words made a strong impression on my mind, that the land was intended' to go to the lawful issue of Solomon Hall; and that impression has been strengthened by the argument which we have heard, and by subsequent reflection. I cannot think, that an unlettered person as the testatrix evidently was, would make a distinction between the expression “ his lawful begotten “ heir,” and “ the heirs lawfully begotten by him.” If the devise had been to him and to the heirs lawfully begotten by him, it would have been a clear estate tail. I will consider the objections against an estate tail, and the authorities which have been cited. It is objected, that the words for ever indicate an intent to give a fee. But these words are properly applied to an estate tail, because an estate tail may continue for ever, and was, at common law, a fee simple of a particular nature. It is next objected, that there cap be no estate tail, because the devise is to the lawfully begotten heir, not heir's. Lord Coke in 1 Inst, 8 b., does say, that a gift to A and his heir, is only an estate for life; his Opinion is upon a gift by deed, and therefore not strictly applicable to a devise; But even on a deed, the opinion of Coke is positively denied by Eyre C; J. in delivering the opinion of the court in Dubber v. Trollop, 8 Fin. 233. pli 13. His expressions are, that “the opinion “ of Coke is not warranted by any thing in Littleton, and is “ directly contrary to 39 Ass. s¿ 20., where lands were “ given to a man and his wife and one heir of their bodiek, “ which was held to be an estate tail.” In Whiting v. Wilkins, 1 Buls. 219., a devise to A for ever, and after his decease to his heir male for ever, was adjudged an estate tail. It is there said, that heir male and heirs male is all one, because heir is nomen collectivum. The plaintiff’s counsel cited other cases to the same purpose, which it is unnecessary to notite, as the point is sufficiently clear. The last and principal objection is, that it is not expressed from whose body the heirs shall issue, but only that they shall be the heirs of Solomon Hall, and that they shall be lawfully begotten. The rule of law certainly is, as laid down in 2 Black. Comm. 113., that to create an estate tail, it must appear from whose body the issue is to be. The question still recurs, does it not appear by this devise? It is sufficient, if the intention of the testator appears with reasonable certainty. But it is not necessary that the body from which the issue is to come, should be mentioned in express terms. Why was the word begotten introduced into this devise, if not intended to designate heirs begotten by the devisee? It is tod far fetched an idea; to suppose, that the testatrix looked to the general heir,’ and used the words latvfully begotten only to prevent any person unlawfully begotten, from inheriting. The defendant’s counsel think it unnatural that an ignorant woman should take it into her head to create an estate tail. I agree with them, that she might not think of an estate tail, because probably she did not know'what it was. But it was very natural that she should wish to limit the estate to the issue of the devisee. The desire of confining property to a particular family, seems deep rooted in the human breast. From whence this passion springs, which delights in exercising a kind of dominion over property after death, it is unnecessary to inquire. But the fact is, that we see it prevail in people of all conditions. I have hitherto considered the intention of the testatrix, appearing only from the words which I have mentioned. But there are other parts of the will which strengthen the idea of an estate tail. In the concluding paragraph the testatrix devises land to her kinsman Joseph Hall and to his lawful heirs for ever. Also for the love and affection she bears him, she gives to him and his heirs for- ever, all the reversion of what she had before given of her estate both real and personal. Here it appears, that Joseph was her favourite, and that she knew how to give an absolute fee simple, where she intended it. The devis’e bf the reversion may it is true be satisfied, by referriug it to a piece of land which had been given in the former part of the will, to the negro boy Toby expressly for life. But it may also be referred to the land devised to Solo-’ man Hall, and at all events it leaves no ground for the argument which might otherwise have been raised, that a fee pimple was intended to Solomon, because there was no devise of the reversion. These are the arguments which would have satisfied me, that Solomon took an estate tail, if no authorities could be produced on the subject. But we are not without respectable authority. Mr. Hargrave in his edition of Co. Lift, note 121., says, a devise “to one and his heirs lawfully begotten,” is an estate tail; and he cites 43 Eliz. rot. 1408., Moore, case 711. It is very true that nothing is to be found in Moore to support this opinion. There is certainly a mistake in the reference to Moore. Whether the original roll justifies Mr. Hargrave’s citation, we are left to conjecture. In general he bears the character of a man of accuracy. But what has much greater weight with me is the opinion of lord Hardwicke in Barret v. Beckford, 1 Ves. 521., that a devise to one and his heirs lawfully begotten, means heirs of his body. The case decided by lord Hardwicke did not turn on those words, but the opinion I have mentioned was given in the course of his argument. It is not of equal authority with an adjudged case, but co^sideripg the man from whom it came, it carries weight with it. Upon the whole I am well satisfied that Solomon Hall took an estate tail. , The second question is on the act of limitations, and will depend on the effect of the deed of the 30th August 1750, from Solomon Hall deceased (father of the lessor of the plaintiff) to John Hall son and heir of Solomon the devisee. At the time of making this deed, John Hall was seised of the premises as tenant in tail, and Solomon (the grantor or lessor) was not seised of any estate, but had a possibility of becoming tenant in tail, in case of John's death without issue. The deed contains words of grant, as well as of release, and there was a small consideration of money. It is contended for the defendant, that this deed operated by way of extinguishment only, and that the act of limitations began to run from its date. If the grantor had any right capable of being transferred, the deed would operate as a legal transfer during his life. It would pass an estate in fee simple, defeasible by the entry of his issue. It did not take away the right of entry of his issue, because it could not work a discontinuance of the estate tail. I cannot conceive that the act of limitations could take any effect, before the death of John Hall the grantee, because during his life he was rightfully seised of an estate tail. Immediately on his death, a right to the estate tail descended upon Solomon (the father of the lessor of the plaintiff), or would have descended on him, if he had not made the deed before mentioned. From that time there was a possession adverse to the estate tail, and from that time the act of limitations would run. This act made in the year 1785, enacts, that no person shall make an entry into any lands &c., after the expiration of twenty-one years next after his title first descended or accrued, nor shall any person maintain any action for any lands &c., of the seisin or possession of himself or his ancestors, or declare or allege any other seisin or possession of himself or his ancestors, than within twenty-one years next before the commencement of his suit. Now the right of the lessor of the plaintiff’s father Solomon Hall, first descended or accrued on the death of John Hall his brother within twenty-one years before the commencement of the suit. At the time of his making the deed, he had neither right or title accrued, but only a possibility that it might thereafter accrue. It is the spirit of the act of limitations to allow twenty-one years from the time that a person might make an entry, or support an action; understanding always that when the twenty-one years once begin to run, they shall not be suspended by infancy, coverture, or any-other circumstance. Upon this principle, the lessor of the plaintiff is not barred of his action. I am therefore of opinion, that he is ifttitled to ajudgment. Yeates J. It is admitted on all hands, that the words “ heirs of the body” are the proper technical terms, to create an estate tail in all grants and gifts by deed; but it is also certain, that the precise expressions de corpdre are not indispensably necessary in such cases to create an estate tail, so long as there are other words equivalent; as in a grant to “ a man “ and his wife, and the heirs by them procreated,” or “ to a “ man and his heirs which he should beget on the body of “ his wife,” &c. Co. Litt. 20 b., 7 Co. 41 b. In wills the fundamental principle is, that the intention of the testator shall govern the construction; provided the estate devised be not inconsistent with the rules of law. It is a melancholy truth, that men too frequently postpone putting their houses in order, and making their final arrangements until the last moments of their existence. Hence the legal presumption arises, that in the performance of this solemn act, they are ignorant of the law and without learned counsel; for which reason, the law will execute their intention, if it can be plainly collected from the expressions they have made use of. By recurring to the instrument before us, we find, that Sarah Mallowes the testatrix, bequeathed “ to her kinsman “ Solomon Hall 10/.'; likewise 60 acres of woodland adjoining “ on the northeast side the plantation he then dwelled on, “ she gave to him and his lazvfitl begotten haire for &ver.” To her negro boy Toby, she gave 10 adres of land lying on the northeast corner of her land, to have during his life: “ and “ to her kinsman Joseph Hall and to his lawful heirs for ever, “ she gave all her plantation, that she had not before given, “ with all the improvements thereon to him and his heirs for “ ever; and for the love and affection she had unto him, she “ gave and bequeathed to the aforesaid Joseph Hall, all the " reversi°n °f what she had therein before given of her es- “ tate both real and personal, or of what kind or nature “ soever unto her said kinsman Joseph Hall and his heirs for u ever” It appears then, that Joseph Hall was the favourite object of her regard and affection; and that whoever penned the will, knew well how to describe an estate for life, as well as an estate in fee simple. It would naturally occur to any one who reads this will, to inquire why -in the devise to Joseph Hall the words used are to him and his heirs for ever, and in the devise to Solomon to him and his lawfully begotten heir for ever, if the testatrix meant to grant to each devisee a fee simple? The difference of phraseology would seem to import a difference of intention; and this construction is fortified in my idea, by the expressions u his lawfully begotten “ heir” The pronoun his coupled with the other words, has the same signification as by him lawfully begotten, negativing the idea of collateral heirs; and heir in the singular number, would seem to point to the individual heir at common law, claiming/;crforman doni, in contradistinction to the rules of descent established by our acts of assembly. At the same time, I freely admit, that heir may be rtomen collectivum as well in deeds as wills, and operate in both in the same manner as heirs in the plural number, according to the authorities cited in Hargrave's note 4 to Co. Litt. 8 b. The ex-pressionsfor ever are often inserted in the formation of estates tail. The issue in tail may by possibility exist the same period of time as general heirs. The case of Abraham v. Twigg was cited by the defendant’s counsel from Cro. El. 478. It is said in the conclusion thereof, that in a devise, the words of the body must be expressed t'o make an estate tail. But this is contradicted by the whole current of authorities; and in a more full report of the same case in Moore 424., the instances of feoffments and wills are expressly distinguished from each other in this particular. The rule at law is, that in every estate tail, within the statute of Westm. 2., it must be limited either by express words, or words equipollent, of what body the heir inheritable shall iss'ue. Co. Litt. 27 b. And if it be riot ex pressed, it cannot be taken to be within the equity of the said statute; so that if the gift be to one and his heirs females or males, the donee has afee simple. Litt. s. 31. The only question here therefore is, whether the testatrix has used sufficient words to limit the inheritance of the 60 acres of land in dispute to the issue of Solomon Hall. To the different abridgments for the several decisions on this subject, I refer. 10 Vin. 254, T. 5. Tail. — 3 Com. Dig. Devise N. 5. 26. 1st ed. — 2 Bac. Estate Tail B 259. 1st ed. The expressions of lord Hardwicke in Barret v. Beckford, 1 Ves. 521., are very strong. The proper construction of legitimate heirs, is heirs of his body lawfully begotten; for if to him and his heirs lawfully begotten, that would be heirs of his body. But the case which most nearly resembles the present, is' that of Church v. Wyatt, Moore 637. case 877., Hil. 37 Eliz. C. B. Rot. 1408., (which in Hargr. note 2. to Co. Litt. 20 b. is called 43 Eliz., but in the same court, term, and roll). There one seised of a copyhold inheritance, surrendered it to the use of his will; and having a daughter born, and a child in ventre sa mere, devised part of the land to his son or daughter in ventre sa mere, wherewith his wife was then going, and hceredibus suis legitime procreatis, and the residue he devised to his daughter born, to have to her and the fruit of her body, and if she should die without fruit of her body, remainder to the child in ventre sa mere, and if both should die without fruit &c., then that f. S. should sell the lands; and he willed, that one should be heir to the other. And all the justices agreed that it was an estate tail in the daughter after born. It is true, that case was stronger than the one now before the court, by reason of the words without fruit of their bodies, and that one should be heir to the other. But we have the authority of lord chief baron Comyns in the third volume of his Digest N. 5. Devise p. 26, 1st ed., that the words “ hceredibus suis legitime procreatis,” in a will, create an estate tail without other words; and Mr. Hargrave in his note before referred to, adopts the same opinion. The different operation of the same words in deeds and wills is strongly marked in Idle v. Coke, 2 L. Ray. 1144., 1 Wms. 70., Salk. 620., 11 Mod. 57., Holt. 164.; and conceiving here that the intent of the testator was plain and manifest, that the inheritance of the 60 acres in question was limited to ^le lawful issue of Solomon Hall, I am of opinion that he took an estate tail in the premises, A second point has been made and argued during the present term. It has been objected that the plain tiff is barred from recovery of the premises by the act of limitations, the release of the 13th August 1750 operating by way of extinguishment; that no interest whatever passed thereby, and the statute then attaching, it ran on notwithstanding subsequent infancy, coverture &c. But the release of Solomon (the second) did pass his future contingent interest in case he should survive his elder brother John, and that the same fohn should die without issue. Were this even otherwise, the plaintiff would not be barred. Previous to the act of 26th March 1785, the statute of 32 Hen. 8. c. 9., and not the statute of 21 yac. 1. c. 16., was held to be in force here. 1 Dali. 67. Now counting back from even December term 1804 (when this ejectment was commenced) to August 1754, only fifty-four years and four months would have elapsed, which is five years and eight months short of the period of time declared by the statute of 32 Hen. 8. c. 9. to operate as a bar. If the devise to Solomon Hall was an estate in fee tail, his eldest son yohn Hall and those holding under him, were in-titled to the legal possession of the premises during the natural life of the said John Hall, and therefore they could not be considered as holding by an adverse title to the lessor of the plaintiff. The act of assembly of the 26th March 1785, 2 St. Laws 281., was passed previous to the death of yohn Hall, as it is agreed that he died in the latter end of 1785 or beginning of 1786, and consequently the estate tail then descended on and accrued to him. Before this time he could make no legal entry, nor support an ejectment. The provisions therefore of the law [of 1785 only can preclude him from recovering the lands in question. But his case is not embraced by the act, the second section enacting, 44 that from 44 henceforth, no person shall make entry into any manors, 44 lands &c., after the expiration of twenty-one years, next af44 ter his right or title to the same first descended or accrued There is an interval of nineteen years between 1785 and 1804, arid therefore the act interposes no bar in the present case. Whatever my private feelings may be in favour of innocent purchasers, I feel myself bound to give my voice that judgment be entered for the plaintiff. Brackenrid'ge J. To make this an estate tail there are wanting the words of the body; and it is only on the ground of an intention to intail, that the words used can be construed an intail; and this on the ground of indulgence in a devise. But I do not believe that an estate of this nature was intended; and thisJFrom considering, 1. The rank and country of the devisor. Had she been of the gentry or nobility of England, I could more readily have inferred the family pride of preserving an estate unbroken, and continued in the succession of a single heir. But the will in question was made in this state, and by an inhabitant of it. 2. The nature of the estate devised. It is not such a possession as one would suppose she could have had a wish to preserve undivided: a piece of woodland conterminal to the estate.of the devisee; a strip of 60 acres, which if not given out and out, as we say in common parlance, would not so well suit the estate which he had adjoining. 3. I cannot easily suppose that if she had considered it an estate tail, there would not have been some understanding of it in the immediate devisee, and his family, and some tradition respecting it; whereas it appears not to have been thought of on the son of the devisee taking. Else why releases from the other children, if as heir in tail he could alone take? Or why not bar before alienation? It is evident that it did not come into his mind, or of those concerned at that day, that it was not a fee simple. The reversion she bequeathes to Joseph Hall, is satisfied by referring to the life estate in the devise immediately preceding to the boy Toby; so that it will not be necessary to construe this an estate tail in order to constitute a reversion’. But from the terms of the devise, must not an intention be inferred of devising in tail? No. The language of the will is evidently that of a half learned person, with motes of lazo terms glimmering in his brain; but without seeming to know use °f each, in its particular place. Lawful heir, begotten heir, used now, and omitted again, carries with it evidence to me, of one who was aiming at the diction of the learned; or having an idea that certain terms of art were necessary in a will, without knowing where to place them. But are not the terms such as are peculiarly applicable to an estate tail? The word heir in the singular number, (for I will read it heir, though it is spelt haire) and the word begotten. Agreed. But there is the word “ forever,” that is destructive of their special meaning, and goes to the fee simple. It is the natural adjunct of a fee simple, and inconsistent with an estate tail; which, in the nature of it, is not supposed to last for ever, but to be revertible to him from whom it came. An estate tail clearly given, yet would be raised to^ an estate in fee simple by the word forever, as implied in the observations of lord Mansfield, Cowper 412. The law contemplates as certain the determination of every estate tail. Fearne 171. And “ a life estate to M(wife), remainder to M “ (daughter) and the heirs of her body lawfully begotten, or “ to be begotten, as tenants in common” gives a fee simple by purchase. So I say of the word forever. It is a word technically belonging to the fee simple; and being the more worthy, in the language of grammarians, must qualify and raise the special meaning of the others to its own dignity. I must confidently demand that this at least be granted me, that the word forever qualifies, so far as to leave in balance the evidence of intention drawn from the mere force of the terms. The question then will be, to which construction shall I incline, where the evidence of intention is in balance. I speak of the evidence which is attempted to be drawn from the use of the terms. Which estate shall be favoured; that of the intail, or the fee simple? If we advert to juridical history, we shall find that the fettering of alienation by the fee conditional at the common law, was not a favourite of the judges, but that they winked at the evasion of it; or in the words of Blackslone, “ gave way to a subtle finesse of construction, in “ order to shorten the duration of these estates.” And he goes on to observe that “ when the nobility by procuring the statute H de donis, introduced the fee tail, the courts, by a kind of pia “ fraus, eluded the statute, by a fiction in barring the intail.” And though the maxim of serving the intention in a devise, was extended in the construction of an estate tail, as well as with regard to any other subject of a devise, yet it is impossible not to see, in the juridical history of British decisions, what I may call an emancipation from the shackles of early precedent, in the case of intails; and I cannot but be of opinion, that were the same judges who at an early-period made some of those decisions, on a bench at this day, they would be shackled still less; in this country, more especially, where a change of property under such decisions, could not affect; and where, in inferring an intention, they would look to the manners, customs, and habits of the people. 2 Massachusetts Reports, 62. Nor is it only to these that we are to look, but to the laws of a community, and the policy of a construction according to the spirit of the statutes on the same subject. Under our colonial government, the policy of the intail became more questionable than it was in the mother country. The right of primogeniture did not exist in the same extent; nor was there the same reason for it, the support of a nobility. If we look to the early laws of distribution in the case of intestacy, we shall discover the inclination to subdivide estates amongst the individuals of a. family, which is totally repugnant to the succession of a single heir. Is it not justifiable in narrowing or enlarging rules of construction, to look at the progress of alterations in the law itself by the legislature of a country? Is it not justifiable to look at even the change in the state of society which may vary the reason of a rule? We brought no church establishment with us from England, to enable us to provide for younger branches; nor was there an equal opportunity of advancement in the army or navy. The locking up ¡estates was unfavourable to the “ enlarging the em- “ pire, and promoting useful commodities,” which is recited in the charter as a consideration of granting it, and to which the subdivision of property was favourable. Shall we not take these things into view in the indulgence we shall give to the construction of terms not technically constituting an estate tail? In the application of a rule of construction, or even in the application of a principle under a different state of ^nSs> there is this latitude. Tails enhn est humará juris disciplina, ut opiniones, secundum varietatem temporarily senes~ cant et intermoriantur, aliceque diversas renascantury et dehide pubescant. A rule of construction is spoken of as flexible. See BlackstonPs argument, Perrin v. Blake. Why not yield to a change in the genius and spirit of a system? But taking it even according to the precedents to which we are referred' of British decisions at the earliest period in the construction of terms, there has been none read that comes up to this. Nay, devises; as it would seem to me, more looking like an estate tail, have been adjudged a fee simple. I refer to the case of Abraham v. Twigg, “ heir male lawfully “ engendered,” held not an estate tail, because there was not any body from whom this heir male should come. This case was that of a deed; but it is added in the report, Cro. Eliz. 478., that “ so it is in the case of a devise." In the devise in question there Is not only the want of the word bodtjy which must be supplied to make an estate tail, but the word ever, which must be rejected to keep clear of the fee simple. I incline more to reject the wor;d “ begotten,” and the insensible word “ hairef and the devise will then be “ to him and his for ever,” which in a devise is a fee simple. The word haire is insensible, and I must reject one letter, and transpose another, to make it heir. Why this spelling to make out an estate of questionable policy, and of extreme hardship in an individual case? There can be toothing collected of improvidence in the ancestor, er that in transferring to the defendants, or those under whom they hold, there was not a full and valuable consideration which has substantially come to the use of the family, and of which the plaintiff himself may be presumed to have participated; and the amelioration of the property which may be presumed to have been made by the labour and the money of the defendants, must aggravate the hardship of a recovery against them; more especially as they are without warranty from the ancestor, and even if they were not, the value of the estate more than half a century ago, would go but little way to alleviate the misfortune. It cannot therefore be supposed that under th.ese circumstances I can have any great inclination to col lect and infer from technical terms merely, an intention which does not appear by declaration plain, or necessary and unavoidable inference. But the fact is that I could not possibly infer, were I disposed to indulge a construction, that she meant a taking in succession by the eldest born. The tout en~ semble of the whole will together carries with it to me intrinsic evidence of the contrary. I take it to have been drawn by some clerk's vade mecum scrivener of the neighborhood, who had seen words in forms, and took them to be necessary in a last will and testament, without distinction of the use. This from my knowledge of the country, and what is usual in such cases. And I take it from the length yf time that had elapsed before the idea of an estate tail in tliis case would seem to have been entertained, that the discovery of it at last was a matter of accident; and that it may well be called a windfall to the plaintiff succeeding in it. The term* of this devise therefore, on the strictest precedents, not imperiously demanding of me1 the construction contended for, l shall not give it; but hold the estate devised in this case a fee simple.' It becomes therefore unnecessary for me to go into a consideration of the other point that has been made in the argument, the statute of limitations. Judgment for plaintiff.

Jan. 8. Gibson, C. J. The case which most distinctly recognises the power of a spiritual Court to vacate its sentence when obtained by imposition, is Prudham v. Phillips, stated in Meadows v. The Dutchess of Kingston, Amb. 763, and rather more fully in 1 Harg. Tracts, 456, note. It was tried before Chief Justice Willes in 1737; and, though a Nisi Prius decision, it was quoted with approbation by Lord Apsley. To show, by analogy, that the sen tence in a suit of jactitation of marriage, is conclusive in a common-law action, the Chief Justice took a distinction founded on the common-law principle, that a party to a fraudulent judgment can reverse it only directly, but that a stranger may reverse it collaterally by pleading and evidence. “ Who ever knew,” he said, “ a defendant plead that a judgment against him was fraudulent ? He must apply to the Court; and if both parties colluded, it was never known that either of them could vacate the judgment. Here the defendant was party to the sentence; and whether she was imposed upon, or she joined in deceiving the Court, this is not the time and place for her to redress herself. She may, if she has occasion, appeal, or apply to the proper judge.” So was it with the legitimate husband in the case under consideration. The time for appeal had gone by, and he applied to the only tribunal that was open to him. Chief Justice Willes does not intimate how it ought to proceed on the application; but it must necessarily be by summary examination and order. In Bacon’s Abr. Error, I. 6, the remedy for a surreptitious judgment at common law, is said to be a writ of error coram nohis; but Ronney v. Robinson, 2 Roll. Abr. 724, which is cited for it, leans the other way. If a clerk of the King’s Bench, it was there said, enter judgment against an order by a judge of the Court, it may be vacated at a subsequent term. If by writ of error, it would have been unnecessary to say anything about the time; and the meaning undoubtedly is, that such a judgment may be vacated after the term, just as if the record were still in the breast of the Court. That case shows that the principle of Prudham v. Phillips is a general one, and applicable alike to ecclesiastical sentences and common-law judgments. It has - no relation to the doctrine of amendments, which make the record speak a language it did not speak before: the vacation is a new and independent judgment, of which the recorded entry is its appropriate evidence. If it can be entered only on a writ of error, what is to be done with a surreptitious sentencé of an Ecclesiastical Court, to which no such writ lies ? As imposition on it would else be without the means of correction, it must necessarily have a power of summary revision. Facts put in issue as they may be, by the pleadings in error, are triable by jury; but as there is no jury in such a Court, there is the less objection to summary proceeding by it. There is certainly more reason for it than there was in Ronney v. Robinson. True, a statute has given the Common Pleas jurisdiction in libel for divorce; but it has not made it a Court of record in any other aspect, than 'the one in which it had before been considered. Its proceedings in divorce are not according to the course of the common law—at least where a feigned issue is not directed—and no writ of error lies to remove its sentence, whatever may be its power to remove the record of such an issue. In every other respect, the remedy is by appeal, as it is in the Ecclesiastical Courts. It may seem an arbitrary act to expunge a sentence of divorce with a stroke of the pen, bastardize after-begotten children, involve an innocent third person in legal guilt, and destroy rights acquired in reliance on a judicial act, which was operative at the time: and under this-first impression, I would have decided as did the judge at Nisi Prius. But the legitimate husband also has rights; and if any one must suffer from the invalid marriage, it is he who procured it. By the terms of the contract, he took the lady for better for worse; and having assumed at least her moral responsibilities, he stands as to hardship in her place. He, therefore, has no right to complain. The children, who are the fruit of the connexion, are the only persons who have it, if indeed to have been brought into the world in any circumstances, can give such a right; but their condition is not worse than that of the dishonoured husband. There is no injustice, therefore, in a proper exercise of the power assumed in this instance; and the apparent danger of excess in the use of it, vanishes when it is viewed in connexion with a principle, which requires the record to exhibit the ground of every judgment. Possibly there may have been no sufficient ground exhibited in this case; but even if there were not, the order to vacate would be only erroneous, and unimpeachable after the expiration of the period for reversing it by appeal. In stating, however, the charge of imposition, without the facts and circumstances to sustain it, the Court has perhaps stated enough to justify their action upon it. Confidence must be reposed in the wisdom and justice of the tribunals ; and hence the maxim, that all things are presumed to have been rightfully done in Courts of record. • The endorser of the note in suit before us, had no property in it; and the plaintiff has no title. Judgment for plaintiff reversed, and judgment rendered for defendant.

Per Curiam, The decree of the court below dismissing plaintiff’s bill is affirmed on the opinion of President Judge Oliver. Costs to be paid by the City of Philadelphia. Order on Petition to Withhold Return oe Record and Supplemental Opinion, Per Curiam, We have considered the petition to withhold the return of the record for an additional period of thirty days and are of opinion that the public interest requires that the petition be and it hereby is dismissed. When this case was argued, our attention was not called by counsel to Sections' 12, 14 and 15 of the recent Act of June 27, 1939, P. L. 1199, which cover, inter alia, the subject of taxation here involved and in themselves provide adequate methods whereby the taxpayer may have any assessment made against him reviewed by the Board of Revision of Taxes of Philadelphia County and may appeal from that Board to the Court of Common Pleas and from there to the appellate courts. This statute confirms our conclusion that due process of law is afforded to plaintiff and to all taxpayers.

Mr. Justice Sharswood delivered the opinion of the court, There is no doubt that a corporation is a trustee of its stockholders, and is bound to proper vigilance and care that they may not be injured by unauthorized transfers of their stock: Bayard v. Bank, 2 P. F. Smith 232 ; and there is no doubt, we think also, that, had the certificates of stock, which are the subject of the controversy, been lost or stolen from the possession of the appellees, the appellants would have been responsible. Though the signature of Samuel P. Fearon to the powers to transfer was genuine, yet they had actually been revoked by his death, and, in fact, before; and the circumstance that at,the time the transfer was permitted they were thirteen years old, was enough to arouse suspicion and inquiry; and it is necessarily to be presumed that if proper inquiry had been made the truth would have been elicited. The clerk by whom the transfer was permitted, unfortunately, is dead, and we are without evidence on the subject. The onus, however, of showing due diligence was on the corporation appellants, and they must suffer from the want of the evidence. But there certainly was negligence on the part of the appellee. As executrix she placed the certificates in the hands of Creeley, as her attorney, with the blank powers endorsed uncancelled. Thus by her act he was enabled to commit this fraud. The equities of the respective parties are not equal. Where one of two parties, who are equally innocent of actual fraud, must lose, it is the suggestion of common sense, as w’ell as equity, that the one whose misplaced confidence in an agent or attorney has been the cause of the loss shall not throw it on the other. As Judge King has well expressed this principle in the Bank of Kentucky v. Schuylkill Bank, 1 Parsons’s Eq. Rep. 248: “The true doctrine on this subject is that, where one of two innocent persons is to suffer from the tortious act of a third, he who gave the aggressor the means of doing the wrong must alone bear the consequences of the act.” The appellee in this case selected the attorney. She had entire confidence in him. She placed these certificates, with the blank powers, in his hands. He proved unworthy of the trust reposed in him. . He perpetrated a gross fraud by which he converted this property to his own use. That he was an attorney at law in good standing does not help her case. He added to the crime of which he was guilty that of moral perjury, by the violation of his official oath. On what principle of equity can she be allowed to throw off from herself on to the appellants the loss which has resulted from the dishonesty of her own agent ? This important element in the case was entirely overlooked by the learned master and the court below ; and we think, applying it to the undisputed facts of the case, the appellee’s bill as to the appellants ought to have been dismissed. Decree reversed, and now the bill of the appellee, Mary Eearon, is dismissed as to the Pennsylvania Railroad Company, with costs, and the costs of this appeal.

Opinion by Mr. Justice Kephart, Unless we hold that a direction “to pay all my just debts and funeral expenses” in one item of a will, and in another the power “I hereby authorize my executors to make sale of any of my real estate,” work a conversion at the moment of testator’s death, breaking the descent and vesting the entire estate as personalty, or that section 30 of the Fiduciaries Act of 1917 controls, we are bound to reverse this judgment. The question before us arose in a very simple manner. The executor of such a will, within a year of testator’s death, made a contract to sell real estate of decedent “free from all encumbrances”; in an action to recover the purchase price, defense was made that he could not convey the land “free from all encumbrances” because it was subject to the lien of general or unscheduled debts of testator. There were many such debts and some had been indexed in the prothonotary’s office as provided by law. There were no liens, judgments or mortgages. Equitable conversion is a fiction, — wherein money directed to be employed in the purchase of land is treated as land, and land directed to be sold is treated as money, — created to sustain and carry out the intention of the testator or parties; and, for certain purposes of devolution and transfer, it is sometimes necessary to regard the property in its changed condition, although the change has not absolutely taken place. As to the circumstances under which conversion will take place, and the legal principles governing, we need but refer to the opinion of our present Chief Justice in Cooper’s Est., 206 Pa. 628, 630, 631, wherein is collected, in brief epigrammatic style, the leading cases on the subject: “If, as was said in Hunt’s and Lehman’s Appeals, 105 Pa. 128, and subsequently repeated in Irwin et al. v. Patchen et al., 164 Pa. 51, anything ought to be settled by this time, it is that, in order to work a conversion of a testator’s land into money from the time of his death, there must be either, ‘1st. A positive direction to sell, or, 2d. An absolute necessity to sell in order to execute the will; or 3d. Such a blending of real and personal estate by the testator in his will, as to clearly show that he intended to create a fund out of both real and personal estate, and to bequeath the said fund as money.’ ‘The direction to sell must be absolute and unconditional’ : Stoner v. Zimmerman, 21 Pa. 394. ‘To establish a conversion, the will must direct it absolutely, or out and out, irrespective of all contingencies’: Anewalt’s App., 42 Pa. 414; and, ‘unless there be an imperative direction to sell, irrespective of contingencies and independent of discretion, conversion will not take place until the sale is actually made: Anewalt’s App., 6 Wright 414; Henry v. McCloskey, 9 Watts 145’; Peterson’s App., 88 Pa. 397. ‘It must not rest in the discretion of the executor, nor depend upon contingencies’: Jones v. Caldwell, 97 Pa. 42. ‘It must be imperative, not contingent or discretionary merely, or a conversion does not take place until the sale is actually made’: Mellon v. Reed, 123 Pa. 1.” Tested by this language, we find nothing in this will upon which could be predicated a positive direction to sell or a necessity to sell to execute the will, nor such blending of real and personal property as would create a fund to devolute as personalty. The law does not favor conversions and it is not to be regarded as a formal rule of law without regard to its real purpose. Land should be regarded as land and personalty as personalty, and creditors advancing on the basis of either should not run the chance of being deceived. Conversions will be presumed only so far as necessary to carry out the intention of testator. Land passes as land unless there is a conversion and, where such is testator’s intention, the general rule is that the conversion takes place from the death of the testator, but when there is no intention to convert out and out and the power is discretionary in the executors or trustees, the course of descent is not broken; the land is still land, the heir at law takes, he may intermeddle with the estate and collect the rents and profits thereof. In such case, by force of the law of this State (see Judge Simpson’s opinion in Kirk v. Van Horn, 265 Pa. 549), at the moment of testator’s death the lien of the unscheduled debts attach, to be released only in the manner provided by law, i. e., by judicial sale, or other appropriate remedy. It has been held that where there is an absolute direction to sell for the payment of debts, the purchaser is bound to see to the payment of the recorded debts, but he is not bound to see to the payment of general debts, as they became payable in the ordinary course of administration: Cadbury v. Duval, 10 Pa. 265; but where the power of sale is discretionary, as in this case, conversion takes place when the land is sold. In the meantime, and from the moment of testator’s death, general debts have acquired a lien which can only be continued or divested in the mode provided by statute: See Seeds v. Burk, 181 Pa. 281 at 288; Hunt’s App., 105 Pa. 128; Darlington v. Darlington, 160 Pa. 65; Chamberlain’s Est., 257 Pa. 113. The law has determined the status of the general debts against the land: Henszey’s Est., 220 Pa. 212; or, as said in Taylor v. Haskell, 178 Pa. 111, “until the exercise of the power, ......the estate remains land.” Where land is sold under a discretionary power more than two years after testator’s death, his unrecorded debts have lost their lien, our present Chief Justice in Cooper’s Est., supra, saying, “it was held that the limitation annexed to the lien of a debt of the decedent on his lands was not exclusively for the security of purchasers, but that heirs and devisees were equally the objects of the act’s protection ; and, in reannouncing this rule, there is no reason why it should not include the legatees of the proceeds of land sold after the liens of the debts of the decedent upon it had expired; for if, as owners of the unconverted land, it could not be taken from them, they ought not, in reason, to be deprived of the proceeds of it when converted into money.” The mere blending of real and personal estate without a clear and indubitable intent to create a common fund and bequeath it as money, will not constitute a conversion : Lindley’s App., 102 Pa. 235; Chamberlain’s Est., supra. “When it is manifest that each and every provision of the will can be carried out without a sale of the real estate and the effort is to derive an intention to convert from the fact of blending of the real and personal estate, such inference cannot be supported except as it rests on something more than a mere failure on the part of the testator to distinguish between two kinds of property in directing that his estate be divided into shares and sold and distributed”: Martin v. Provident Life and Trust Co., 235 Pa. 281, 286. Does section 30 of the Fiduciaries Act of 1917, P. L. 447, 498, as follows, “Whenever any person seized of real estate.......having........made his last will....... wherein said executors.......are authorized to make sale of said real estate......and distribute the proceeds of such sale or sales......or hold the same in trust for any particular purpose, or for the use of any particular person or persons named in said last will and testament, the person or persons purchasing the real estate....... from the executors......under the power of sale or direction to sell......shall take title thereto free and discharged of any obligation to see to the application of the purchase money,” make any change in the law as it previously existed with respect to the lien of general debts against a decedent’s real estate where a discretionary power to sell is given as mentioned in the act? As we have observed, the purchaser, under an absolute direction to sell, did not need to see to the application of the proceeds, as the freehold never, in contemplation of law, reached a point that general debts had any lien on it as such. By fiction of law it was converted into money and the money thus provided, with the remainder of the estate, could be used in payment of these debts. But under a discretionary power of sale, the freehold passed to the heii’S unless the will provided otherwise. The real estate security given by the lien of the general debts was not taken away, and these liens could be discharged by judicial sale, or such other method as the law provided; but they were liens against the decedent’s real estate. Land had passed as land. The policy of the law for more than a hundred years has been to give, preserve and protect the lien of general debts as against land, that the creditor might have some security for the collection of his claim apart from the personal estate; the only exception being the one created by the fiction of conversion, and there the value of the land was substituted for land and the security was not in fact taken away, it still remained as a fund for the creditors. It was not the intention of section 30 to change the course of devolution nor to break the current of descent by holding that a conversion took place from the moment of testator’s death under a mere authority to sell. The section did not intend to take away from general creditors the land as security for the payment of debts. It still remained such security and the lien of general debts attached thereto, but they will be discharged not only by judicial sale, but also by sale under the discretionary power, not by a positive direction of the legislature that general debts shall not be liens, but by and through the application of the rule expressed in section 30 of the Act of 1917. But, to bring the case within this section and act, it must be clear that the statutory direction has been followed, and, as the general debts are liens, then, in a case under the act, the land having passed as land and the liens having attached, when the land is sold under the power before the expiration o'f the year, while the purchaser may buy free from the lien of general debts because he is not required to see to the application of the purchase money (which is merely another way of stating that he takes the land free of debt, Doran v. Piper, 164 Pa. 430,) the creditor still has a claim on the purchase money realized from the sale. If no sale is then held and the creditor is diligent and files his claim of record, it will remain as a lien under the law to be discharged when the executor exercises his discretionary power. If he does not so exercise it, the lien will still stand as a lien under the law applicable thereto. The point is, that by this interpretation of section 30, as between the vendee and all others, he need not see to the application of the purchase money by the executor and takes the land discharged of the lien of general debts; but as between the creditor and the estate, the former is not deprived of his right to have his debt paid out of the land of the testator, or its value, if there is no other property with which it pay the debt. The legislature did not intend generally to remove from creditors the security given to them under the operation of the law recently discussed by Judge Simpson in the case mentioned above, and section 80 applies only so far as its language is made the basis of a last will and testament. If we were to hold that, under a discretionary power, the conversion for all purposes related back from the day of sale to the date of the testator’s death, then the general debts would at no time be a lien against the real estate. We are bound to regard, for it has been so abundantly decided, that under a mere discretionary power of sale, land descends as land and there is no conversion, no fiction of the law. We may suppose a case wherein A dies, leaving a will, as herein discussed with land worth $10,000, no personal property, and general debts of $5,000. Before the act, these debts would be liens to be discharged only by judicial sale, or by some other mode provided by law: Seeds v. Burk, supra; and when so discharged the purchase money was substituted for the land. Whereas, now, since the passage of the Act of 1917, if the sale related back to the date of testator’s death, these debts would not be liens on the real estate; yet the land has passed as land. There was no conversion, and, while all the property of the testator was liable for the testator’s debts, the real estate was only liable within the year, unless the claim had been duly indexed and suit brought: Cooper’s Est., supra; but if the Act of 1917 intended to wipe out the lien of general debts on real estate and another act states that such debts can be collected from funds derived from the sale of real estate, only as such debts are proceeded on in a certain way, as we have indicated, we are legislating land away from the reach of creditors when we hold that the lien act cannot be put in operation because general debts are not liens under the Act of 1917, and we close the door against recovering these debts from the real estate of the testator; except possibly as the executor might within the year petition for an order of sale for the payment of debts. To prevent such an inequi table conclusion, so much out of harmony with all the law, we follow Judge Bell’s advice in Cadbury v. Duval, 10 Pa. 265, 270: “Legislative enactments are to be expounded as near to the use and reason of the prior law as may be, when this can be done without violation of its obvious meaning; for, say the cases, it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely requires.” From an examination of the will before us, it apparently comes within the terms of section 30. Not only is there an authority to sell, but also a direction to pay debts. This is nothing less than an authority to convert into money and distribute. The will also directs the executrix to pay “to my father and mother...... jointly, and after the death of either to the survivor, the sum of Seventy-five Dollars each and every month”; the sum necessary for this purpose, if computed on an interest-bearing investment, would exceed the purchase price named in the contract of sale. The money, therefore, would be held “in trust......for the use of any person” named in the last will and testament. It follows, therefore, that the sale by the executrix would be made under a will controlled by this act. The purchaser not being required to see to the application of the proceeds of sale would take the property free of the lien of general debts: Piper v. Doran, supra; and, with the explanation here given, the judgment of the court below is affirmed.

OPINION OF THE COURT PAPADAKOS, Justice. In March of 1984 Edmund and Janice Zinsser entered into an agreement with Butler Petroleum Company which provided that Butler Petroleum would refurbish Zinsser’s gasoline station, fitting it, among other things, with gasoline tanks, appropriate plumbing and pumps for the tanks, a Texaco credit card imprinter, a Texaco sign, and a complete exterior painting scheme following the Texaco pattern. In return, the Zinssers would purchase petroleum products from Butler Petroleum for a certain length of time. Additionally, the agreement contained an indemnity clause which provided: [The Zinssers] ... exonerate, discharge, and agree to protect and save harmless and indemnify [Butler Petroleum] ... from any and all liability for claims for loss, damage, injury or other casualty to persons or property ... caused or occasioned by any leakage, fire, explosion or other casualty occurring through any imperfection in, injury or damage to, or by reason of the installation, use, operation and/or repair of the said equipment or of the premises. In keeping with its obligation under the agreement Butler Petroleum called AMG Sign Company to erect a new sign. On March 29, 1984 Gary Ruzzi, who worked for AMG, appeared at the Zinsser’s station to remove the old sign and install a new one. Butler Petroleum had also arranged with George Shockey for the purchase and transportation of four used fiberglass gasoline tanks, three of which were to be installed below ground at Zinsser’s station, but which at the time Ruzzi arrived, were sitting on the ground near the sign. Unknown to Ruzzi, one of the tanks had a hole in the top and contained 50 to 100 gallons of gasoline. Neither Ruzzi nor Zinsser, who was also present, saw the hole or realized that the tank contained gasoline. Ruzzi was injured when a torch he was using to cut rusted bolts from the existing sign ignited fumes escaping from the fiberglass tank, causing an explosion and fire and knocking Ruzzi from his ladder. Thereafter, Gary and Sharon Ruzzi filed suit against Butler Petroleum Company in the Court of Common Pleas of Allegheny County, seeking damages for personal injuries Mr. Ruzzi received because of the explosion. Butler Petroleum, in turn, filed a complaint joining George Shockey and Edmund Zinsser as additional defendants. The Ruzzis subsequently filed their own complaint against Edmund and Janice Zinsser, Zincon (a corporation owned by the Zinssers), and George and Brenda Shockey d/b/a Shockey Excavating Co. A third action, filed by Butler Petroleum against the Zinssers, was based on the indemnification agreement. These actions were consolidated for trial. The jury returned a verdict in favor of the Ruzzis and against Butler Petroleum and Shockey in the amount of $321,000.00, assigning 84% of the negligence to Butler Petroleum and 16% to Shockey. The trial court also awarded delay damages of $67,981.85 and the verdict was molded to include delay damages for a total award of $388,981.85. Post-trial motions were filed by Butler Petroleum and Shockey and were denied. Judgments were entered on the verdict and in favor of the Ruzzis, the Zinssers and Zincon. Butler Petroleum and Shockey filed timely appeals from these judgments. Superior Court affirmed but remanded for a hearing on the question of pre-judgment delay. 385 Pa.Super. 664, 555 A.2d 254. Butler Petroleum and George Shockey filed cross-petitions for allowance of appeal and this court granted allocatur on both petitions. The issue raised in Butler Petroleum’s appeal is whether the indemnity clause in the Butler Petroleum-Zinsser agreement is legally binding and, in Shockey’s appeal, whether the trial court erred in admitting the testimony of an expert witness. Butler Petroleum claims that the indemnity clause was enforceable as a matter of law. The trial court disagreed, relying on our decision in Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). Superior Court affirmed the trial court on the grounds that Butler Petroleum was found to be 84% negligent, and was, therefore, not entitled to indemnity, citing DiPietro v. City of Philadelphia, 344 Pa.Superior Ct. 191, 496 A.2d 407 (1985). The law has been well settled in this Commonwealth for 87 years that if parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee’s own negligence, they must do so in clear and unequivocal language. No inference from words of general import can establish such indemnification. Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). See also, Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961); Tidewater Field Warehouses, Inc. v. Fred Whitaker Co., 370 Pa. 538, 88 A.2d 796 (1952); Darrow v. Keystone 5, 10, 25, $1.00 Stores, Inc., 365 Pa. 123, 74 A.2d 176 (1950); Schroeder v. Gulf Refining Co. (No. 2), 300 Pa. 405, 150 A. 665 (1930). In Perry v. Payne, supra, Payne and Company were hired to construct a building for Perry. Payne agreed to indemnify Perry: ... from all loss, cost or expense ... arising from accidents to mechanics or laborers employed in the construction of said work, or to persons passing where the work is being constructed ... Additionally, Payne agreed to: ... protect and keep harmless the said Edward Perry of and from all loss, costs and damages, for non-fulfillment of same, or by reason of any liens, claims or demands for material for labor furnished for the construction of said work, or from damages arising from accidents to persons employed in the construction of, or passing near the said work, or for damages done to adjacent properties by reason of the construction of said work, or by depositing material in such a manner as to damage either the city or the individual. Perry’s employee negligently lowered an elevator and crushed to death one of Payne’s employees, who was painting the bottom of the elevator shaft. The estate of the employee recovered a judgment against Perry who then sought indemnification from Payne based on their agreement. We ruled that “a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it.” Perry, at page 262, 66 A. 553. The indemnification clause included in the agreement between the Zinssers, as indemnitors, and Butler Petroleum, as indemnitee, provided in pertinent part: [The Zinssers] ... exonerate, discharge, and agree to protect and save harmless and indemnify [Butler Petroleum] ... from any and all liability for claims for loss, damage, injury or other casualty to persons or property ... caused or occasioned by any leakage, fire, explosion or other casualty occurring through any imperfection in, injury or damage to, or by reason of the installation, use, operation and/or repair of the said equipment or of the premises. Because Perry was the law in this jurisdiction when Butler Petroleum and the Zinssers entered into their indem nification agreement we must assume that they knew that the law would not recognize as effective their agreement concerning the negligent acts of the indemnitee (Butler Petroleum) unless an express stipulation concerning negligence was included in the document. This rule of contract interpretation like the law applicable to any contract is a part of this agreement as if expressly incorporated in its terms. De Paul v. Kauffman, 441 Pa. 386, 272 A.2d 500 (1971); Northwestern National Bank v. Commonwealth, 345 Pa. 192, 27 A.2d 20 (1942). We must assume that the parties knew that the law gives to the words used herein a specific meaning and that the words, therefore, must be interpreted in their legal sense. We must also assume that the parties wrote this agreement in conformity to these well established rules of contract construction. That being the case, we conclude that the only intent that can be gleaned from this document is that the parties did not intend to indemnify for acts of the indemnitee’s negligence, since words of general import are used. We can discern no reason to abandon the Perry rule of contract interpretation which is still a valuable rule of construction, rooted in reason and authority and reject Butler Petroleum’s contrary arguments. With respect to the Shockey appeal, the question is whether an expert witness was erroneously permitted to testify as to Ruzzi’s loss of earning capacity. In particular, Shockey raises the issues of whether the witness who testified with respect to Ruzzi’s loss of earning capacity had a reasonable pretense of expertise in this area; whether earning capacity should have been determined by the jury without the aid of expert testimony; whether the expert testimony in question was speculative, lacking in foundation, and contrary to the evidence; and whether the expert testimony went beyond the scope of the witness’s pretrial report. In reviewing the various pertinent cases of our Court, the Superior Court has properly summarized the law of expert witnesses in Erschen v. Pa. Independent Oil Co., 259 Pa.Superior Ct. 474, 477, 393 A.2d 924, 926 (1978) as follows: In general, it is for the trial judge to determine whether a particular witness qualifies as an expert[,] Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A.2d 896 (1967), and his decision on this matter will be reversed only for a clear abuse of discretion. Houston v. Canon Bowl, Inc., 443 Pa. 383, 278 A.2d 908 (1971).... An expert witness has been defined as a person who possesses knowledge not within the ordinary reach and who, because of this knowledge is specially qualified to speak upon a particular subject. Steele v. Shepperd, 411 Pa. 481, 192 A.2d 397 (1963)____ It is not necessary that the witness possess all the knowledge in his special field of activity____ However, the witness must have a reasonable pretension to specialized knowledge on the subject under investigation. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974).... Jarrell’s qualifications as an expert in this matter were that he was the managing partner of an employment agency in Pittsburgh where he had worked for 32 years, that this agency operates nationwide, that he had experience in determining the employability and earning capacity of injured persons, that he was active or formerly active in a number of business organizations, and that he taught a graduate course in recruitment and selection at LaRoche College. As part of his responsibilities at the employment agency, he periodically reviewed a number of publications having to do with statistics on incomes within various industries and for various occupations throughout the United States. At trial, Jarrell testified that Ruzzi’s earning capacity was diminished by 17%, based on studies he had read concerning the earning capacities of injured employees, and that persons with physical limitations had twice the unemployment rate of those who are not injured. Jarrell had a reasonable pretension of expertise as to the degree of impairment of Ruzzi’s earning capacity in that he had 32 years of experience placing employees in jobs, including injured employees, and in that, as part of his work, he regularly reviewed studies on employment trends, including trends in job placement for injured persons. Shockey’s first assertion of error, therefore, is rejected. The second issue, whether earning capacity should have been determined by the jury without the aid of expert testimony, is subsumed in the first. Since Jarrell had a reasonable pretension of expertise in the subject under consideration, i.e., the degree of impairment of Ruzzi’s earning capacity, by definition, he had knowledge relevant to the matter under investigation that was not within the ordinary reach. Since this knowledge was relevant to the issues at trial, and since the jury would not have been aware of this knowledge absent Jarrell’s testimony, it was not error to permit the introduction of this expert testimony. Next Shockey claims that Jarrell’s testimony was speculative, lacking in foundation and contrary to the evidence. The first assertion, that Jarrell’s testimony was speculative, is based on the idea that because Jarrell used general terms such as “unemployed handicapped” to describe the class to which Ruzzi belonged, and because he failed to explain Ruzzi’s physical capabilities and limitations in relation to potential jobs or vocations, his testimony was speculative. The speculation, presumably, is whether Ruzzi is in fact a member of the class to which Jarrell referred and whether Ruzzi was limited at all with respect to his economic horizons. As Ruzzi points out, it was not speculative for Jarrell to rely on the testimony of Dr. Flit, Ruzzi’s medical expert, which established that Ruzzi suffered from a permanent back injury and that he was limited to jobs requiring light exertion. Neither is Ruzzi’s work history both before and after the injury speculative. Ruzzi, a high school graduate, worked in the sign business installing signs his entire working life, and he lost considerable time from work following the accident. It is clear that the doctor’s testimo ny and the work history, including Ruzzi’s educational background, establish that Ruzzi’s economic horizons were limited. He could not pursue his former job and his work history suggested no obvious alternatives. It is perhaps less clear that the government studies cited by Jarrell were applicable to Ruzzi’s case, since the jury was not told how the injuries of those in the studies compared to Ruzzi’s injuries, but this goes to the weight of the evidence, not its admissibility. If defense counsel wished to challenge the application of these studies to Ruzzi’s case, cross-examination and closing argument were available for that purpose. We conclude, therefore, that Jarrell’s testimony was not speculative. Next, Shockey claims that Jarrell’s testimony was lacking in foundation. This assertion is without merit. As we have seen, Jarrell had examined Ruzzi’s work history and earnings, had viewed the testimony of Dr. Flit, and had interviewed Ruzzi. When Jarrell took the stand, all of the evidence in the case suggested that Ruzzi had a permanent back injury. The foundation for his testimony was adequate. Shockey also claims that Jarrell’s testimony was contrary to the evidence. The basis of this claim is that at the time of trial Ruzzi was employed by AMG Sign Company at a less physically demanding job, but at the same salary he made before the injury. The error in this claim is that it ignores the difference between actual loss of earnings and loss of earning capacity. This court discussed the difference between these concepts as follows: The defendants contend that there was no evidence of impairment of earning power and that the fact that Bochar’s wages were higher after the accident than before proves no deterioration of earning ability. A tortfeasor is not entitled to a reduction in his financial responsibility because, through fortuitous circumstances or unusual application on the part of the injured person, the wages of the injured person following the accident are as high or even higher than they were prior to the accident. Parity of wages may show lack of impairment of earning power if it confirms other physical data that the injured person has completely recovered from his injuries. Standing alone, however, parity of wages is inconclusive. The office worker, who loses a leg has obviously had his earning ability impaired even though he can still sit at a desk and punch a comptometer as vigorously as before. It is not the status of the immediate present which determines capacity for remunerative employment. Where permanent injury is involved, the whole span of life must be considered. Has the economic horizon of the disabled person been shortened because of the injuries sustained as the result of the tortfeasor’s negligence? That is the test. Bochar v. J.B. Martin Motors, Inc., 374 Pa. 240, 244, 97 A.2d 813, 815 (1953). (Footnotes omitted.) Shockey’s claim is without merit, for the fact of Ruzzi’s current employment at the same salary as before the injury does not, as this court explained in Bochar, negate his claim for a diminished earning capacity. Earning capacity has to do with the injured person’s economic horizons, not his actual earnings, and the fact that Ruzzi was fortunate enough to earn as much as he had formerly earned, but at a new and less physically demanding job, does not establish that a loss of earning capacity, on these facts, is contrary to the evidence. Finally, Shockey contends that the expert testimony was inadmissible because it went beyond the scope of Jarrell’s pretrial report. In particular, Shockey claims that although the pretrial report addresses future wage loss, it does not address diminished earning capacity, and thus, does not place Shockey on notice that the expert would testify as to diminished earning capacity. We disagree with Shockey’s characterization of Jarrell’s pre-trial report furnished to Shockey pursuant to pertinent discovery rules. As stated earlier in Bochar v. J.B. Martin Motors, Inc., lost earning capacity involves the question, “Has the economic horizon of the disabled person been shortened be cause of the injuries sustained as a result of the tortfeasor’s negligence?” Jarrell’s report states that, based on his understanding of Dr. Flit’s testimony, Ruzzi was permanently injured and would never again be able to perform work of the type he had performed before the accident. Instead, he would be limited to light duty work where he could frequently change positions and not lift over twenty pounds. Jarrell also stated, in the last paragraph of his report: It [future earnings loss] is based on AMG Sign Company’s continuing willingness to provide Mr. Ruzzi with employment on an “as able to work, as light duty work is available” basis. Should that willingness cease or should AMG Sign Company go out of business, Mr. Ruzzi would have to re-enter the open labor market where he would face the well known difficulties of the unemployed handicapped. Their unemployment rate is typically twice that of the non-handicapped, and their average earnings are 54%-82% of those of the non-handicapped (Employer Attitudes Towards Hiring Persons With Disabilities, Human Resources Center publication, 1978). At trial, Jarrell testified that “countless studies done on the earnings of an impaired handicap [sic] versus the earnings of a nonimpaired, nonhandicapped” person indicate that the handicapped person suffers a loss of 17% earning capacity. Since lost earning capacity is the limitation of economic horizons, and since Jarrell’s report describes not only the nature of Ruzzi’s injuries, but also, in Jarrell’s opinion, what would happen to Ruzzi were he forced to compete on an open job market, including a prediction that he would be able to earn no more than 82% of his former salary (an 18% loss of earning capacity), the testimony was within the scope of the report and it was not error to admit Jarrell’s expert testimony. The order of Superior Court is affirmed. NIX, C.J., did not participate in the decision of this matter. ZAPPALA, J., did not participate in the consideration or decision of this matter. LARSEN, J., files a concurring opinion. FLAHERTY, J., files a dissenting opinion. Reassigned to the writer. . The trial court has again imposed delay damages. Appeals of this ruling are pending before Superior Court at Nos. 385, 386, 387, 388, 389 and 390 Pittsburgh, 1989, and is not before us. . In DiPietro, the Superior Court concluded: “Under Pennsylvania law, indemnity is disallowed if the indemnitee is actively negligent.” 344 Pa.Super. at 195, 496 A.2d 407. That court’s ultimate authority for this proposition is Pittsburgh Steel v. Patterson-Emerson-Comstock, 404 Pa. 53, 171 A.2d 185 (1961), which in turn relied heavily on Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). Because the rule announced in Perry is dispositive of the issues raised by the parties, we feel no further need to discuss the Superior Court’s reasoning on this issue. . The entire cross-examination of Jarrell by two lawyers is contained in three pages of testimony.

OPINION Justice EAKIN. In 1909, Milton and Catherine Hershey established the Milton Hershey School, a charitable institution, funded by the Milton Hershey School Trust. The deed of trust is the original agreement between the Hersheys, the Hershey Trust Company as Trustee, and the Managers of the Trust. The deed, as amended in 1976, provides that the Trust Company and the Board of Managers (which consists of members of the Board of Directors of the Trust Company), are to administer the Trust and have responsibility for all aspects of running the School and for managing the Trust’s assets. The deed also states, “[a]ll children shall leave the institution and cease to be the recipients of its benefits upon the completion of the full course of secondary education being offered at the School.” In re Milton Hershey School, 867 A.2d 674, 678 (Pa.Cmwlth. 2005) (quoting Deed of Trust, November 15, 1909, at 12-13). In 1930, at Milton Hershey’s direction, school alumni and a former superintendent formed The Milton Hershey School Alumni Association. The Association is composed mostly of School graduates, though it includes honorary and associate members. The Association is not a division of the School or Trust Company; it was not named in the deed of trust and is not an intended beneficiary of the Trust. Around 1990, the Association believed the Trust’s resources were being diverted from the purpose of helping orphaned children. The Association contacted the Attorney General, which investigated and concluded the Trust Company was not acting consistent with the Trust’s intent. In 2002, the Attorney General, the School, and the Trust Company entered an agreement governing certain aspects of the administration of the Trust and the School. In 2003, this agreement was modified, essentially rescinding the 2002 agreement. Following the modification, the Association commenced an action in the orphans’ court, seeking rescission of the 2003 agreement, reinstatement of the 2002 agreement, and appointment of a guardian ad litem and trustee ad litem. The School and the Trust Company filed preliminary objections alleging the Association lacked standing to challenge the rescission of the 2002 agreement; the trial court granted the preliminary objections. The Commonwealth Court, en banc, reversed in a four-to-three decision, finding the Association had a “special interest” in the complained-of actions of the Trustee that supported its standing to seek enforcement of the Trust. See In re Milton Hershey School, at 691. The court observed the Association was created at the direction of the Trust’s primary settlor, with the purpose of promoting school interests and establishing and maintaining supplemental education programs and activities for students. Id., at 677-78. It also summarized the Association’s efforts to preserve School traditions and Trust assets, including prompting of the Attorney General to address perceived improprieties, and expending its own financial resources to aid that investigation. Id., at 678-80. The court acknowledged standing generally requires a “substantial, direct, and immediate interest” in the subject matter of the litigation. Id., at 684 (quoting William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269. (1975)). It observed in charitable trusts, courts have fashioned a “special interest” doctrine, consistent with the Restatement (Second) of Trusts. Id., at 686-87 (quoting Restatement (Second) Trusts § 391 (1959) (“A suit can be maintained for the enforcement of a charitable trust by the Attorney General or other public officer, or by a co-trustee, or by a person who has a special interest in the enforcement of the charitable trust....”)). The court cited Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981) (approving standing of historical society to restrain trustees of memorial chapel from evicting society from chapel under special interest doctrine), and Wiegand v. Barnes Foundation, 374 Pa. 149, 97 A.2d 81 (1953) (citing Restatement (Second) Trusts § 391). The court then implemented a five-part test to determine special interest standing in the charitable trust setting, which requires consideration of: (1) the extraordinary nature of the acts complained of and the remedy sought; (2) the presence of fraud or misconduct on the part of the charity or its directors; (3) the attorney general’s availability or effectiveness; (4) the nature of the benefited class and its relationship to the charity; and (5) subjective, case-specific circumstances. In re Milton Hershey School, at 689 (quoting Mary Grace Blasko et al., Standing to Sue in the Charitable Sector, 28 U.S.F. L.Rev. 37, 61-78 (1993)). The court found this test struck the best balance, preventing unnecessary litigation involving charities while assuring the philanthropic purposes underlying trusts are maintained. Id. Applying this test, the court found the circumstances here to be extraordinary, citing the need for reform administration of Trust assets, the decrease in the number of children the School served vis á vis over $5 billion in Trust assets, and the Association’s instrumental role in addressing problems in the Trust’s administration. Id., at 690. The court delineated the 70-year relationship between the Association and the Trust, including their common founder, the membership’s successful participation in School affairs, its ongoing bonds with students, the location of the Association’s offices on Trust lands, the Association’s administration of student-related activities and graduate assistance programs, and the Association’s intimate knowledge of the type of care provided at the School. Id. The court indicated the risk of vexatious or unreasonable litigation was “virtually non-existent,” as the Association only sought reasons why the 2002 agreement was supplanted, when such agreement had resulted from an extensive investigation by the Attorney General (funded in part by the Association), which concluded the Trust’s charitable purposes were being impeded. Id. The court also found the Association’s efforts neither vexatious nor unreasonable. Id. Given the nature of the Trust and its status as the largest residential childcare charity in the world, the court concluded judicial scrutiny would advance the public interest in assuring the Trust is operating efficiently and effectively. Id. President Judge Colins, joined by Judges Cohn Jubelirer and Simpson, dissented, arguing the analysis should begin and end with the deed of trust, which endows the Board of Managers and the Trust Company with responsibility for School management and Trust administration, and which does not name the Association as an intended beneficiary. See In re Milton Hershey School, at 691 (Colins, P.J., dissenting) (“To now give the Association legal rights that were expressly excluded by the Settlor of the Trust is a dangerous expansion of standing not supported by over 300 years of case law within the Commonwealth.”). The dissent pointed out that affording the Association standing interferes with the performance of the Attorney General’s statutorily mandated duties. Id., at 692. The dissent also characterized the majority’s holding as “a quantum leap” away from historical concepts of standing. See id. The facts are not in dispute. The Commonwealth Court found the trial court committed an error of law by granting the preliminary objections. Id., at 691; see also In re Estate of Bartol, 846 A.2d 209, 213 (Pa.Cmwlth.2004) (order sustaining preliminary objections affirmed unless trial court committed abuse of discretion or error of law). We are left to decide whether the Commonwealth Court committed an error of law in its standing analysis. Crawford Central School District v. Commonwealth, 585 Pa. 131, 888 A.2d 616, 619 (2005). As this is a purely legal question, our standard of review is de novo and scope of review is plenary. Craley v. State Farm Fire and Casualty Company, 586 Pa. 484, 895 A.2d 530, 539 n. 14 (2006). The core concept of standing is that “a party who is not negatively affected by the matter he seeks to challenge is not aggrieved, and thus, has no right to obtain judicial resolution of his challenge.” City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 577 (2003). A litigant is aggrieved when he can show a substantial, direct, and immediate interest in the outcome of the litigation. William Penn Parking Garage, Inc., at 280. A litigant possesses a substantial interest if there is a discernable adverse effect to an interest other than that of the general citizenry. Id., at 282. It is direct if there is harm to that interest. Id. It is immediate if it is not a remote consequence of a judgment. Id., at 283. Private parties generally lack standing to enforce charitable trusts. In re Pruner’s Estate, 390 Pa. 529, 136 A.2d 107, 109 (1957). Since the public is the object of the settlor’s beneficiaries in a charitable trust, private parties generally have insufficient interest in such trusts to enforce them. Id. Those who may bring an action for the enforcement of a charitable trust include the Attorney General, a member of the charitable organization, or someone having a special interest in the trust. Valley Forge Historical Society, at 1127 (citing Miller’s Estate, 380 Pa. 172, 110 A.2d 200, 203 (1955); Wiegand v. Barnes Foundation, 374 Pa. 149, 97 A.2d 81, 82 (1953); Restatement (Second) of Trusts § 391). A person whose only interest is that interest held in common with other members of the public cannot compel the performance of a duty the organization owes to the public. Id. (citing Wiegand, at 82). The question here is whether the Association had such a special interest in the enforcement of the Trust. In In re Francis Edward McGillick Foundation, 537 Pa. 194, 642 A.2d 467 (1994), the settlor directed half of a foundation’s income be used to establish scholarships for Catholics, which a Catholic Bishop of Pittsburgh and his advisory board selected; the other half was to be accumulated toward the establishment of a vocational school, again with the participation of the Bishop and his advisory board. Id., at 468. The Pittsburgh diocese sued to remove the Foundation’s trustees. We held the diocese had standing to bring the action because it had an “integral involvement ... in the awarding of scholarships and its prerogative to participate in the establishment of a vocational school under the trust create[d] an interest ... which is immediate, direct, and substantial.... ” Id., at 469-70. In re Francis Edward McGillick Foundation is distinguishable from the instant case on one key point; the Hershey Trust does not provide the Association with any decision-making power or administration over it. The trust in In re Francis Edward McGillick Foundation specifically directed the Bishop and his advisors to select scholarship recipients that were funded through the trust; thus, the diocese was directly involved in the trust’s administration. Here, the Trust does not mention the Association and excludes those who would be members of the Association from benefiting from the Trust. The Association argues Valley Forge Historical Society is on point. There, the Washington Memorial Chapel sought to evict the Valley Forge Historical Society from its property. Dr. W. Herbert Burk founded the Chapel and the Society, although not by a written document called a “trust.” Since its inception in 1918, the Society maintained its offices and its collection in the same building as the Chapel, and claimed a right to remain there based on a trust relationship. The Society sought declaratory and injunctive relief; the Chapel argued the Society lacked standing to bring its action. We found a trust relationship existed, and the Society had special interest standing. Valley Forge Historical Society, at 1127. We noted Dr. Burk intended for both the Chapel and the Society to develop patriotism, one through religion and the other through education. Id. The Society contributed large sums of money to enlarging the Chapel, and from its origin, was a real link to the Washington Memorial in Valley Forge; thus, the Society had a special interest distinguishable from any other historical society not designated by the trust. Id. Valley Forge Historical Society is instructive, but distinguishable from the instant case. Valley Forge involved a settlor creating two foundations which shared the same building since 1918; we found a trust relationship existed. Here, the Hersheys created the Trust in 1909, but the Association was not created until 20 years later. If the Hersheys intended for the Association to have direct input on Trust affairs, they could have altered the Trust, but did not do so. The Trust has not been so amended. More importantly, a written trust exists here, specifically excluding School graduates from being recipients of the Trust’s benefits. The Association is not mentioned in the Trust, and the bulk of the Association’s members are specifically excluded from receiving the benefits of the Trust. To give the Association “special interest” standing where the settlors of the Trust specifically denied beneficiary status to its members, would surely contravene the settlors’ intent expressed through their written trust. See In re Milton Hershey School, at 691 (Colins, P.J., dissenting). We find the Association did not have a special interest sufficient to vest it with standing. Nothing in this litigation would affect the Association itself; it loses nothing and gains nothing. The Association’s intensity of concern is real and commendable, but it is not a substitute for an actual interest. Standing is not created through the Association’s advocacy or its members’ past close relationship with the School as former individual recipients of the Trust’s benefits. The Trust did not contemplate the Association, or anyone else, to be a “shadow board” of graduates with standing to challenge actions the Board takes. See In re Francis Edward McGillick Foundation, at 469 (grave doubt as to standing of stranger to object to waste of trust assets). The Attorney General is granted the authority to enforce charitable trusts. Valley Forge Historical Society, at 1127; see also 71 P.S. § 732-204(c). Current law allowed the Association, an outside group, to urge the Attorney General to enforce the Trust. However, the Association’s disagreement with the Attorney General’s decision to modify the 2002 agreement does not vest the Association with standing to challenge that decision in court. Ultimately, the Association’s dismay is more properly directed at the Attorney General’s actions and decisions; it is insufficient to establish standing here. We hold the Association did not have standing to bring this action. Order reversed. Jurisdiction relinquished. Chief Justice CAPPY, Justices CASTILLE, NEWMAN and BAER join the opinion. Justice BALDWIN did not participate in the consideration or decision of this case. Justice SAYLOR did not participate in the decision of this case.

The opinion of the court was delivered, January 4th 1869, by Agnew, J. On the former writ of error in this case judgment was reversed because the testimony of Mr. Liston had been rejected, bearing on the question whether the plaintiff was a passenger entitled to a safe transit, or a mere servant running the risk of the negligence of his fellow servants. The testimony of Mr. Liston on the second trial was more clear and pointed upon this question than it had been on the first. The substance of it is this: He had the supervision of the carpenter work on the road from Kittanning to Pittsburg, and was authorized to employ hands. He specially employed the plaintiff to do carpenter work upon the bridge over the Kiskiminetas, about fifteen miles below Kit-tanning. The plaintiff and other hands lived in and near Kit-tanning, and it was an accommodation to the company to have them to work at the bridge. Liston agreed with the plaintiff as; a part of his contract of hiring that he should travel on the passenger train down and up free of charge, and in consequence of this hired him at a less price per day than if the plaintiff had paid his fare, and if he had not so agreed he could not have been employed at the wages he was paid, [fhe work of the plaintiff was wholly at the bridge, and he received his pay there. At the time of the accident the plaintiff had finished his day’s work, and was ten or twelve miles distant from the bridge on his way home. Under these circumstances the court below instructed the jury that the plaintiff was travelling as a passenger and not in the capacity of a servant. The defendants in error, considering it a fundamental question fatal to the plaintiff’s right to recover, asks us to affirm the judgment, although no writ of error was taken by them. We think the company cannot set up this objection upon the present writ of error. But as this case must go back for a retrial for misdirection of the court on another point, it is proper to express our opinion as a guide to the court on the next trial. We think the court left this question fairly to the jury on the testimony of Liston and with proper instructions. It is now settled in Pennsylvania, as it had been in other states and in England, that when several persons are employed as workmen in the same general service, though in different parts of it, and one of them is injured through the carelessness of another, the employer is not responsible, unless he had employed unfit persons for his service: Ryan v. Cumberland Valley Railroad Co., 11 Harris 384; Caldwell v. Brown, 3 P. F. Smith 453. In the last case our brother Read has brought together most of the decisions./ But this case is clearly distinguishable from them all./ In Ryan v. Cumberland Valley Railroad Co., the plaintiff was a laborer on a gravel train, whose business caused him to travel upon it in the exercise of his employment. The loading and unloading of gravel necessarily required the hands employed in that work to travel with the train from place to place. He gave nothing out of his wages for his fare and travelled not as a passenger to a place of destination, but went with the train whither-soever it became necessary to get and deposit gravel. His travel-ling on the cars was like that of a brakesman or a fireman in pursuance of his employment, and not under a contract for carriage. Grilshannon v. Stony Brook Railroad Co., 10 Cush. 228, resembles this case in the feature that the plaintiff was a laborer at a particular place upon the railroad and was carried to and from his work. But it differs in these marked characteristics: He rode merely for his own convenience and ease, voluntarily and beneficially, on the gravel train under no contract for carriage, and no compensation for his passage directly or indirectly. Dewey, J., likened the case to that of a wood-chopper riding for his own convenience upon his employer’s wagon driven by another servant, who overturns it by his negligence: Tunney v. The Midland Railway Co., 1 Law Rep. C. P. 291 (1866), differs from this case in the important feature that it was part of the plaintiff’s employment as a laborer for specific wages to travel from Birmingham to Derby on a train called the “pick up” train for the purpose of gathering up materials left along the line of road; and he was required to be ready for the train at Birmingham and start thence on his duty and to return there. The case was put directly on the ground that it was part of his contract to traveL thus on the traprA" He was carried as an employee and not^as a passenger, and it was not found that he paid fare for his travel either directly or indirectly. Farwell v. Boston and Worcester Railroad Co., 4 Metcalf 49, was the case of an engineer on a locomotive injured by the negligence of a switch-tender, both being in the course of their regular employment and in the same general service. Morgan v. Vale of Neath Railway Co., Law Rep. 1 Q. B. 149 (1865), has no bearing upon the point of this case. It decides the same general principle that servants in the same general business, though dissimilar in the immediate objects of their employments, take the risk of each other’s negligence. The plaintiff, a carpenter, standing on a scaffold near a turn-table, was thrown from his stand by the negligence of porters engaged in turning an engine on the table. These are the only cases which need be particularly noticed. In this case, however, the plaintiff, O’Donnell, travelled not as a part of his employment as a carpenter at the bridge, but as a passenger from and to his home. He was not hired to pursue his business on the train, but was carried in consideration of a reduc-! tion in the price of his wages. When his day’s work was performed he was no longer in the service of the company, but was free to go or to stay, and when he travelled in effect paid his fare out of his wages: Myers v. Cumberland V. Railroad Co., 5 P. F.’ Smith, is more directly in point. There as soon as Myers had performed the special act he had undertaken to do, which on the first writ of error was held to place him in a temporary relation of service, and had returned to his stand on the platform, his relation as employee ceased, and it was held he was entitled to the protection of a passenger. We adhere to the doctrine of Ryan v. Railroad Co. and Caldwell v. Brown as the general rule, and as the safe one in governing the relation between the employer and employed. But human life is too precious to force the doctrine beyond its reasonable bounds, and this was declared in effect by the Chief Justice in Catawissa Railroad Co. v. Armstrong, 13 Wright 186. He said: “ I am not for extending the doctrine further than our cases have extended it. I am for leaving it there.” Referring to the former writ of error he said: “ It was before us in the case of O’Donnell v. Allegheny V. Railroad Co., at the last term of the Western District, and in that decision we did not extend the doctrine.” Eollowing the same track, it was held in Hunt v. Pennsylvania Railroad Co., 1 Smith 475, that the liability to the hands employed by a contractor was confined to him as their principal, and that he and they were not to be considered as common employees under the same company. If the facts be as alleged by the plaintiff, his case stands also on the ground that the casualty did not arise from an ordinary peril of the service. Ordinary peril is the rule stated by Shaw, C. J., in Farwell v. Boston & Worcester Railroad Co., 4 Metc. 57. In Caldwell v. Brown, supra, Justice Read quotes the rule as stated by Judge Gray in Gilman v. Eastern Railroad Co., 10 Allen 233, to wit, that the servant assumes all the risks of the master’s service which the master cannot control, including those arising from the negligence of fellow-servants, but qualified thus: —“ The master indeed is bound to use ordinary care in providing suitable structures, engines, tools and apparatus, and in selecting proper servants, and is liable to other servants in the same employment if they are injured by Ms own neglect of duty.” In the more recent case of Weger v. Pennsyvania Railroad Co., 5 P. F. Smith 465, Justice Read restates the substance of the rule and remarks, “ that it seems to be conceded that if there be any fault in the selection of the other servants, or in continuing them in their places after they have proved incompetent perhaps; or in employing unsafe macMnery, the master will be answerable for ¡all the injury to his,servants in consequence.” In the present case the injury arose from the breaking of a rail, and according to the plaintiff’s testimony this was caused by its resting upon rotten ties. One of the chief witnesses of the defendants says the ties were the same put in when the road was made; that two-thirds were hemlock, and that the road had been built twelve or thirteen years. If the fact be so, it is a clear case of faultiness; and insecurity in one of the permanent structures of the company,] evidencing the negligence of the company itself. A railroad company is bound to furnish a safe and sufficient roadway. It owes this as a duty to all who travel over it. It is true, that remotely its unsafe condition might have been owing to the negligence of some one in its service, who failed to report its condition or to put it in repair. But it might also be the mere neglect of the company from false economy to order the repair or to furnish the means. The remote negligence of servants will not excuse the non-performance of such a direct and immediate duty as this. If the substructure carrying the rails were suffered to lie until it had become rotten and unsafe, it is the negligence of the company itself, and not merely that of its servants. Casualty from such a cause is not one of those ordinary perils which presumptively every one incurs who takes service with the company. It is not to be likened to the breaking of a rail from frost or mere accident, or from some cause immediately traceable to the negligence of another employee. It would be a cruel exposure of life to hold such a casualty to he an ordinary risk of the service, and it would extend a license to negligence on part of those whose duty it is to be careful of liuman life. The next question relates to the car in which the plaintiff was^ at the time of the accident. Summing up -the doctrine of the court as found in the charge and answers to the points, it was this: That the baggage-car is an improper place for a passenger, and whether the rule of the company forbidding him to be there is made known to him or not,- his own intelligence should teach him that it is not his proper place — that if he leave his seat in a passenger-car and go into the baggage-car, he is guilty of negligence. That nothing less than a direction or an invitation from the conductor to go there will excuse this negligence, and such direction or invitation should not be inferred from the mere fact that he had been accustomed to ride frequently in the baggage-car with the knowledge of the conductor, and without objection. The judge therefore instructed the jury that if the plaintiff left the passenger-car without the direction or invitation of the conductor, he did what no passenger has a right to do, even though he had been accustomed to ride there with the knowledge of the conductor and without his objection. In view of the evidence this instruction was erroneous. The plaintiff had been riding in the baggage-car twice a day for about two months. Murphy the conductor himself admitted that Liston’s men rode frequently in the baggage-car without his objecting — that he never ordered them out. When they got on that car they generally remained there without objection — that he had no recollection of requesting them to go into the passenger-car, and that' he had not at any time requested the plaintiff to leave the baggage-car. The reason for this is obvious. These hands, though passengers on the train from the terms of their employment, still retained the outward appearance of employees. They were in their working clothes, which owing to their employments were doubtless often soiled and filled with perspiration. They were probably at times not considered pleasant travelling companions for those who sat in the passenger-cars, and at times the cars were probably filled. It was not at all unnatural that they themselves should wish, and that the conductor should desire them to travel on the baggage car out of the immediate presence of the passengers. Under these circumstances it cannot be justly said of them as of ordinary passengers, “that any one who is possessed of sufficient intelligence to travel should be held to know that the baggage-car is not an appropriate place for passengers,” nor to say although the consent of the conductor to riding there may be inferred from these facts, yet it does not follow that the company is liable unless it is shown that they were there at the invitation or by the direction of the conductor. It is undoubtedly the right of the company to prescribe rea sonable rules for the regulation of those who travel as passengers on the cars: Sullivan v. Philadelphia and Reading Railroad Co., 6 Casey 238; Powell v. Pennsylvania Railroad Co., 8 Id. 416; Miles v. West Chester Railroad Co., 5 P. F. Smith 209. But the right to regulate is not to be carried to an unreasonable extent, or to make one regulation conflict with another. It is no doubt a proper rule that passengers shall not travel in a baggage-car, but it is as well known that the conductor is the person to administer the rules of the company and to apply them according to the circumstances. The passenger travels under his directions, and generally is bound to conform to them. The conductor acts under a general authority, and from the nature of his position must necessarily exercise some discretion. In Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith, it was held that when the owner of a freight-car attached it with the consent of the agents of the company to a passenger train, contrary to the rules of the company, he agreeing to run the risk, the company could not repudiate the act of their agents so as to free themselves from responsibility for their negligence, by which he was hurt and his car wrecked. The same principle was asserted in perhaps a stronger case, where a valuable mare was lost by using straw (which caught fire from the sparks of the engine) for her bedding in the car, contrary to the positive rules of the company : Powell v. Pennsylvania Railroad Co., 8 Casey 414; Goldey v. Railroad Co., 6 Id. 242. Erom the evidence in this case, the jury might reasonably conclude that O’Donnell was in the baggage-car with the permission of the conductor and for the benefit of the company, and was rightfully there at the time of the accident. His right to recover for an injury arising from an unsafe track was the same when in the baggage-car as when in the passenger-car. The risk attended every car which traversed the unsafe roadway, and was confined to none in particular. Judgment reversed, and a venire facias de novo awarded.

Opinion by Hoffman, This appeal raises the question of whether a trial judge may dismiss a divorce action on the basis of improper venue, where neither party has objected or raised the defense, and a Master’s report has already been filed. On November 16, 1971, plaintiff filed a Complaint in Divorce in Dauphin County against her husband alleging as a basis for recovery the ground of indignities. The Complaint stated that both parties were residents of Cumberland County. On November 17,1971, defendant’s attorney entered an appearance on behalf of the defendant. A Master was appointed, and, after proper notice, a hearing was held on January 13, 1972. The Master filed his report with the Court recommending that a Decree in Divorce be entered. No exceptions were taken by the defendant or his attorney with respect to the proceedings. On March 3, 1972, the Court upon its own motion ordered the case dismissed on the ground that venue was improperly laid in Dauphin County. This appeal followed. The controversy in this case centers around the meaning and effect of Pa. R. C. P. §1122 which provides that a “[divorce] action may be brought in and only in the county in which the plaintiff or the defendant resides.” This Rule, although framed in obviously mandatory language, is by its very title a venue and not a jurisdictional provision. The lower court read this Rule as mandatory, and dismissed the instant case for want of proper venue. As our Court has held, the question of which county in the state may entertain the action is a “question . . . of venue and not jurisdiction and venue may always be waived. It is a matter of procedure and not substance.” Blair v. Blair, 195 Pa. Superior Ct. 406, 407-8, 171 A. 2d 854 (1961). See also, Tanis v. Tanis, 206 Pa. Superior Ct. 213, 213 A. 2d 103 (1965). The instant case, therefore, poses the questions: (1) absent an express waiver of venue, at what point does either the action or inaction of defendant result in waiver and of improper venue; and, (2) may the Court refuse to accept such waiver and dismiss a cause of action for reason of improper venue. Appellant contends that a waiver took place in two ways. First, it is contended that by entering an appearance appellee waived all defenses and objections. While the filing a form denominated an “appearance” does give the other party notice of legal representation, it does not constitute, in and of itself, the kind of “general appearance” which is a waiver of the right to raise defenses or objections to a plaintiffs complaint. Notwithstanding the promulgation of Pa. E. C. P. §1012, a waiver will still be held to have occurred where the Court finds that a defendant has performed some act which unconditionally accepts the jurisdiction of the court for all purposes. Monaco v. Montgomery Cab Co., 417 Pa. 135, 208 A. 2d 252 (1965). We come then to appellant’s second contention, i.e., that appellee entered a general appearance by failing to respond in a timely fashion to plaintiff’s complaint, thereby waiving his right to object to the venue of the proceedings. With this contention, we must agree. The Rules of Civil Procedure provide that every pleading subsequent to the complaint must be filed within twenty days after service of the preceding pleading, and absent any objections or defenses by way of preliminary objection, answer or reply, all such objections are waived. See Pa. R. C. P. §1026, §1032; also cf. C. E. Williams Co. v. H. B. Pancoast Co., 412 Pa. 166, 194 A. 2d 189 (1963). The proper manner in which a party may raise improper venue is by preliminary objection, and if it is “not so raised shall be waived.” Pa. R. C. P. §1006 (e). Although it is clear that appellee’s entry of appearance did not constitute a “general appearance” so as to waive all defenses, it is likewise evident that by failing to raise the defense by way of preliminary objection and by failing to contest in any form whatsoever the proceedings before the Master, appellee acted by way of a general appearance thereby waiving his right to raise improper venue. Chasman v. Chasman, 161 Pa. Superior Ct. 77, 53 A. 2d 876 (1947); Miln v. Miln, 175 Pa. Superior Ct. 613, 106 A. 2d 862 (1954). Once appellee has waived his right to raise the question of improper venue, the issue becomes whether the Court on its own motion may disregard that waiver and dismiss the complaint. As we have already stated, venue is a matter of procedure and not substance. Furthermore, where the court has jurisdiction of the subject matter, it has been held by our Court that the right to raise the objection of venue is a mere personal privilege belonging to the defendant which may be waived by him. Yohey v. Yohey, 205 Superior Ct. 329, 208 A. 2d 902 (1965); Fennell v. Guffey, 155 Pa. 38, 25 A. 785 (1893). Unlike the question of subject matter jurisdiction, it has generally been held that the Court on its own motion may not order a change of venue, nor may it dismiss for improper venue. See generally, 92 C.J.S., Venue, §155. (For cases in other jurisdictions: Du Pont v. Banh of Utica, 222 N.Y.S. 2d 362, 15 A.D. 2d 620; King v. Ainsworth, 225 Miss. 248, 83 So. 2d 97 (1955); Humphrey v. Rawlins, 88 S.W. 2d 776 (Texas Civ. App.); State ex rel. Keogh v. Gilmore, 35 Ohio Abs. 97, 39 N.E. 2d 860 (1941). Our Court was faced with a similar issue in General Mills, Inc. v. Snavely, 203 Pa. Superior Ct. 162, 199 A. 2d 540 (1964), where the court below entered judgment on the pleadings, after it sua sponte determined that defendant filed an Answer defective in form. Judge Wright, wilting for the Court reversed, saying at page 167, “We are not in accord with this [the lower court’s] reasoning .... It should be noted that General Mills did not question the propriety of the verification. This defect was first noticed and raised by the court below in its opinion. Under Pa. R. C. P. No. 1032, a party waives all defenses and objections which are not presented either by preliminary objection, answer or reply.” Our holding in General Mills is consistent with the view that while matters affecting the substantive rights of the parties, e.g., jurisdiction of the subject matter, may be raised at any stage by the parties or by the Court itself, procedural matters are personal to the parties, and must be raised by the parties in a timely fashion or be waived. Since appellee failed to object to venue, it was not within the Court’s power to dismiss the action. We, therefore, reverse the order of the court below, and the case is remanded with a procedendo. By the Act of June 21, 1937, P. L. 1982, §1, as amended, 17 P.S. §61 et seq., our Legislature vested in the Supreme Court of Painsylvania the power to prescribe procedural rules governing all civil actions. It was provided, however, that such rules “shall neither abridge, enlarge nor modify the substantive rights of any litigant nor the jurisdiction of any of the said courts.” Neither party raises nor may it be argued that jurisdiction was lacking in the court below. All courts of common pleas have jurisdiction of the subject matter to determine a divorce action. Act of May 2, 1929, I’. L. 1237, 23 P.S. §1 et seq. Furthermore, the court had jurisdiction over the person of the defendant since defendant was personally served by the Sheriff of Dauphin County in Harrisburg. Pa. R. C. P. §1124(a)(1). Pa. R. C. P. §1012 provides: “A party may enter a written appearance which shall state an address within the Commonwealth at which papers may be served. Such appearance shall not constitute a waiver of the right to raise any defense including questions of jurisdiction or venue.” We do not at this point consider the propriety of a lower court to raise improper venue within the twenty-day period following the service of process of plaintiff’s complaint upon the defendant. Even if the Court were able to raise the question of venue on its own motion, it nevertheless could not dismiss the action. Our Kules clearly state that “[i]f a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county.” Pa. R. C. P. §1006(e).

Opinion by Keller, P. J., The relator, George Paige, has appealed from the order of the court below discharging a writ of habeas corpus and remanding him to the custody of the warden of the Eastern State Penitentiary. The relevant facts on which the appellant relies may be stated as follows: On April 12, 1934 Paige pleaded guilty to an indictment for burglary, (March Term 1934, Ho. 1103). When brought before the court for sentence, on May 4, 1934, the day before the last day of the April 1934 Term, he stated that he had never before been in trouble except for a trifling liquor violation, and there appeared to be no record of his previous conviction or imprisonment. The presiding judge, apparently overlooking the fact that persons convicted of burglary are specifically excepted from the probation provisions of the Act of June 19, 1911, P. L. 1055, and its amendment of May 7, 1925, P. L. 554, erroneously placed the defendant on probation for a period of ten years. Subsequently having learned that the defendant had a long criminal record in other states, the same judge ordered him brought into court on a bench warrant, and after a hearing, in the course of which Paige admitted his prior criminal record and the falsity of his statements about his prior imprisonment, on June 4, 1934, revoked the order placing him on probation and sentenced him to the Eastern State Penitentiary for a term of not less than five years nor more than ten years, to take effect as of May 4,1934 —a sentence admittedly within the maximium allowed by law. The sentence of June 4,1934 was imposed after the ending of the April Term aforesaid, at which the defendant pleaded guilty and was placed on probation. The relator claimed to be entitled to his discharge on two grounds: (1) That the placing of the defendant on probation was a sentence, and that the court had no power, after the expiration of the term, to revoke it and sentence him to the penitentiary, for any cause except the subsequent violation of the terms of his probation, pursuant to the fourth section of the Act, of which violation there was no allegation or proof. (2) That the sentence to the penitentiary was imposed in chambers and not in open court as required by law. On the oral argument, the second ground was withdrawn, because it was based on an inadvertent error of fact, and is not pressed. The appellant’s argument rests on the premise that the order of May 4, 1934 placing him on probation was a sentence. We have, however, definitely ruled to the contrary in Com. v. Fox, 69 Pa. Superior Ct. 456, 458, and held that placing the defendant on probation under the Act of 1911, supra, is not a sentence. “Heading the first, fourth and fifth sections together we think it apparent that it was not the intention of the legislature to make the order of probation a sentence or to make it a substitute for a sentence.” Furthermore, as was pointed out by Judge Henderson in that case, (p. 459), the title to the said Act of 1911 — “An Act authorizing the release on probation of certain convicts, instead of imposing sentenceetc. [italics supplied] — “shows that the order of probation is not a sentence. It delays the sentence and may result in the release of the defendant at the end of the probationary period but until the conduct of the defendant has been such as to harmonize with the conditions of probation the sentence is in abeyance. And on failure to perform the conditions the defendant may be sentenced as provided in the act under which the indictment was drawn.” It is nowhere in the act called, or referred to as, a sentence. On the contrary, the amendment of May 7, 1925, P. L. 554, which was evidently enacted in consequence of the decision of this court in Com. v. Ciccone, 84 Pa. Superior Ct. 224, (which held that if a fine was imposed on the defendant in connection with placing him on probation, he could not be further sentenced subsequently under section 4, for violating the terms of his probation), clearly shows that neither the order placing the defendant on probation nor the condition authorized by the amendment, directing the payment of money by the defendant for the use of the county, not exceeding the fine fixed by law for conviction of the offense, as part of the terms of the probation, shall be considered a sentence. Section 1 of the Act of 1911, P. L. 1055, as amended by the Act of 1925, P. L. 554, is printed in the margin, the italics representing the changes and additions made by the amendment of 1925. It expressly provides that where the circumstances of the case warrant it and the public good does not require the imposition of the penalty imposed by law, the court may in all cases, — except convictions for the offenses specific ally excluded from its operation, see note 1 — “suspend the imposing of the sentence and place the defendant on probation for a definite period” etc. They are not in the alternative or disjunctive, but in the conjunctive; and whether a specific order suspending the imposing of sentence is made or not, the placing of the defendant on probation is, in effect, a suspension of the imposing of sentence. We have ruled that an order suspending the imposing of sentence is not appealable, because not a final judgment,— (See Com. v. Carelli, 90 Pa. Superior Ct. 416, 421, 422) — and have quashed appeals taken from such orders: Com. v. Mellon, 81 Pa. Superior Ct. 20. This was done in recognition of the well-established rule that final judgment in a criminal case means sentence. The sentence is the judgment: Miller v. Aderhold, 288 U. S. 206, 210; Hill v. Wampler, 298 U. S. 460, 464; Berman v. United States, 302 U. S. 211. Of course, in those jurisdictions which permit the court to suspend the execution of a sentence imposed, an appeal must be taken from the sentence, even though its execution is suspended: Berman v. United States, supra. The rule as broadly stated by us in Com. v. Mellon, supra, has been modified by our Supreme Court in Com. v. Trunk, 311 Pa. 555, 167 A. 333, where speaking through Mr. Justice Schaffer, it was said: “While it may be true generally that appeals may not be taken in criminal proceedings where judgment of sentence has not been passed, this rule should not be held one of universal application. There are instances where great injustice would thereby be done to defendants. This case is an instance. Just why the trial judge suspended sentence on certain of the indictments in view of the severe sentences which he imposed upon Einalducci and Trunk it is difficult to understand. All of the offenses charged were part of a continuous series of events and should have been so treated in sentencing. We think there was an abuse of judicial discretion in suspending sentence on the bills upon which the court did not act. In the exercise of that broad jurisdiction conferred upon us by section 13 of the Act of May 22, 1122, 1 Smith’s Laws 131, 140, and June 16, 1836, P. L. 784, 17 PS section 41 (Com. v. Jones, 303 Pa. 551; Stone v. Phila., 302 Pa. 340; Cordin et al. v. George, 308 Pa. 201), we sustain the assignments of error to the action of the Superior Court in ruling that the parts of the charge which relate to indictments upon which the defendants were not sentenced should not be considered and the assignments quashing the appeals from the indictments upon which sentence was suspended.” The extent of that modification has not been exactly stated, but it should be applied to cases where the quashing of such an appeal might work injustice to the defendant. The appellant points out that in Com. v. Reilly, 125 Pa. Superior Ct. 340, 189 A. 768, we reviewed the orders of the Court of Quarter Sessions of Philadelphia County, placing the defendant appellant on probation under two indictments on which he was found guilty, while suspending the imposition of sentence on the remaining indictments on which there were also verdicts of guilty. No objection was made to our doing so, and we did not specifically rule on the matter. But it was frankly stated at the oral argument that the defendant was placed on probation on those two bills, instead of simply suspending the imposing of sentence, in order that his conviction ¡might be reviewed on appeal. An examination of the provisions of section 1 of the Probation Act shows that the placing of the defendant on probation on such terms and conditions as the court may deem right and proper is regarded as a judgment, and the terms and conditions of probation are directed to be duly entered of record “as a part of the judgment in such case”. But it is not a final judgment of sen tence. The act is clearly to the contrary. It is rather an interlocutory judgment, in the nature of a conditional order placing the defendant under the supervision and control of the court, in a system of tutelage designed for his reformation, (Frad v. Kelly, U. S. Marshal, 302 U. S. 312; Burns v. United States, 287 U. S. 216, 220), to be followed by a final judgment of discharge, if the conditions of his probation are complied with (section 5), or by a final judgment of sentence on his' being brought before the court following a violation of the terms of his probation, “which court may thereupon pronounce upon such defendant such sentence as may be prescribed by law, to begin at such time as the court may direct” (section 4). We are of opinion, giving consideration to the spirit of the decision in the Trunk case, that an order placing a defendant on probation, in the circumstances authorized by the Act of 1911 (P. L. 1055), is a judgment from which the defendant may appeal if he claims that error was committed on the trial, but it is not a sentence from which he must appeal within forty-five days after its entry, on pain of losing his right' to appeal from a sentence subsequently imposed for violation of the terms and conditions of his probation. Like many other judgments, interlocutory in character, from which an appeal is allowed, (e. g. Act of April 18, 1874, P. L. 64; Act of April 4, 1877, P. L. 53), the defendant is not obliged to appeal until a final judgment — which in criminal cases is the sentence — is entered. We have gone into the matter thus fully to clear up a matter of practice, as to which the courts and the profession have been in some doubt. In the present case, however, such a review is not really essential. The relator pleaded guilty to burglary. A plea of guilty is just as effectual for a conviction as a .verdict of guilty. “The mode of conviction whether by plea of guilty or trial before a jury, was a matter of no moment”: Com. v. Thompson, 321 Pa. 327, 331, 184 A. 97. A person convicted of burglary is expressly excluded from the probation provisions of the Act of 1911, P. L. 1055. See Com. v. Arbach, 113 Pa. Superior Ct. 137, 145, 172 A. 311. The court had no jurisdictional authority to extend the provisions of the act relating to probation before sentence (Com. v. Arbach, supra, p. 138), to a person convicted of burglary. No such power or authority has been given to any court in this Commonwealth. It was not a case of mere error, but one in which the court transcended its powers. The order was, in consequence, a nullity. In Miller v. Aderhold, 288 U. S. 206, 210, 211, the Supreme Court affirmed the judgment of the Circuit Court of Appeals, (5th Circuit), which had affirmed a judgment dismissing a writ of habeas corpus. The petitioner had pleaded guilty to stealing from the United States mails. Sentence was suspended and he was discharged from custody. Six months later, at a subsequent term of court, he was sentenced by another judge to four years imprisonment, from which he sought release by a writ of habeas corpus. Mr. Justice Sutherland, speaking for the court said: “In a criminal case final judgment means sentence; and a void order purporting permanently to suspend sentence is neither a final nor a valid judgment......If the suspension be for a fixed time, the case undoubtedly remains on the docket of the court until disposed of by final judgment. There is no good reason, in our opinion, why a different rule should obtain where the order of suspension, though expressly made permanent, is void. Such an order is a mere nullity without force or effect, as though no order at all had been made; and the case necessarily remains pending until lawfully disposed of by sentence.” [italics supplied]. In Frad v. Kelly, U. S. Marshal, 302 U. S. 312, the petitioner pleaded guilty to three indictments in the District Court for the Southern District of New York. Judge Inch, a district judge from another district (Eastern of New York), who had been assigned to try the cases, imposed a sentence of two years imprisonment under the first indictment (C96-116) and on the other indictments made the following order: “Imposition of sentence suspended. Probation for four years to begin after serving sentence on C96-116, subject to the standing probation order of this court”. The petitioner served his sentence and thereupon entered upon his period of probation. Twenty months after Judge Inch had returned to his own district,' application was made to him at chambers to discharge the petitioner from probation and to terminate the proceedings against him, pursuant to section 2 of the Act of March 4, 1925, c. 521, 43 Stat. 1259, 1260, U. S. Code, Title 18, secs. 724-727, authorizing the suspension of imposition or execution of sentence and the placing of defendant upon probation, for such period — not exceeding five years— and on such terms and conditions as the court may deem best. After notice to the probation officer of the Southern District and a hearing on the merits in the Eastern District, Judge Inch entered an order revoking the probation, discharging the petitioner from further supervision and terminating the proceedings against him. About a year later, on a petition by the probation officer of the Southern District a judge sitting in that district authorized a warrant for the petitioner’s apprehension on a charge of violation of the terms of his probation. Thereafter the United States Attorney for the Southern District moved to vacate the order of Judge Inch. Before this could be heard the petitioner surrendered himself to the United States Marshal and sought a writ of habeas corpus and the United States Attorney moved that the petitioner be sentenced on the two indictments under which sentence had been suspended. The case came to the United States Supreme Court from the judgment of the Circuit Court of Appeals (2d Circuit), reversing the District Court which granted the petition of habeas corpus and denied the motion for sentence. The Supreme Court, in an opinion by Mr. Justice Roberts, affirmed the Circuit Court of Appeals, and held ¡that the order of Judge Inch, sitting in the Eastern District, after the termination of his service in the Southern District, was “null” for want of jurisdiction in him to make any order under the Probation Act, other than as a judge for the Southern District, specially sitting therein. In United States ex rel. Campbell v. Bishop, 39 Fed. (2) 208, the trial judge, following a plea of guilty by the defendant to an indictment charging him with violation of the National Prohibition Act, indefinitely suspended sentence, — which was unlawful under the Federal practice, (See Miller v. Aderhold, supra)—and six months later revoked the suspension and committed defendant to the penitentiary. On appeal to the Circuit Court of Appeals for the 5th Circuit, this action was approved. The court pointed out that the indefinite suspension of sentence was unlawful and that the judge could have been required by mandamus to eliminate it, (citing Ex parte United States, 242 U. S. 27), and continued: “It follows that without mandamus he could, as he later did, eliminate the attempted suspension, and order commitment to the penitentiary.” See also, United States ex rel., Hansen v. Hill, 4 Fed. Supp. 748. Had the Commonwealth appealed from the order of May 4, 1934—see Com. v. Mayloy, 57 Pa. 291, 295; Com. v. Lewis (No. 1), 29 Pa. Superior Ct. 282—it would have been reversed as wholly beyond the power of the court. The fact that no appeal was taken did not render it a legal judgment, (Com. ex rel. Nuber v. Keeper of Workhouse, 6 Pa. Superior Ct. 420, 428), which could not be revoked after the term at which it was entered. Being without any jurisdictional warrant to enter it, the court had the power to revoke it during a later term and impose a legal sentence in conformity with law. If the action was right, the court’s reasons for it are not important: Hill v. Wampler, 298 U. S. 460, 467. The judgment of sentence which was imposed on June 4, 1934 was a valid j'udgment entered pursuant to the provisions of the Criminal Code and was the first judgment of sentence entered in the case. The order of probation of May 4, 1934 was a nullity, without any warrant or authority in law, which the court itself could revoke, without the action or intervention of an appellate court. Our Supreme Court has, in recent cases, limited the common law rule that a court cannot change, modify or revoke its judgment after the term at which it was entered. In Markofski v. Yanks, 297 Pa. 74, 78, 146 A. 569, it was held that the rule applies only to final judgments and is not applicable to interlocutory orders or judgments. In Kantor v. Herd, 276 Pa. 519, 120 A. 450, a mechanic’s lien case, it was suggested (p. 524, Mr. Justice Sadler) that the rule should be limited to common law judgments and that as respects judgment in a statutory proceeding — and placing a defendant on probation is wholly statutory and apart from the common law — diligent appropriate action might be taken to change it though the term had passed. Following this, in M. A. Long Co. v. Keystone P. C. Co., 302 Pa. 308, 312, 153 A. 429, Mr. Justice Simpson, speaking for the court, said: “To clarify the situation for the future, we now definitely say that in statutory proceedings the rule should not be applied, in the absence of a legislative requirement......The rule itself is a survival of a time when the judgment roll was finally closed at the end of the term, and all things appertaining to it were supposed to be closed with it; hence there appeared then to be some excuse for the existence of the rule. How, however, no such reason exists.” But even if we were wrong in our conclusion that as the order of May 4, 1934 was wholly without any legal power or authority to support it, it could be revoked and a legal sentence imposed at a term subsequent to the April 1934 term, the appellant would not, in any event, be entitled to be discharged on a writ of habeas corpus. We have already shown that the order of May 4,1934 placing the defendant on probation was not a sentence. If, by a strict adherence to the old common law rule, it should be held that, although without any legal authority for its entry, it was such a judgment as could not be revoked by the coixrt at a term subsequent to its entry, and a legal sentence imposed, on appeal from habeas corpus proceedings reviewing the sentence of June 4, 1934, we would not discharge the relator, but would send him back to be sentenced in accordance with law: Com. v. Curry, 285 Pa. 289, 298, 132 A. 370; Halderman’s Case, 53 Pa. Superior Ct. 554, 557, 558; Com. ex rel. Snyder v. Francies, 58 Pa. Superior Ct. 273; Com. ex rel. Gaffigan v. Francies, 75 Pa. Superior Ct. 269. This, the appellant states, he does not want. In Beale v. The Commonwealth, 25 Pa. 11, 22, where the sentence was reversed and the record remitted to the court below in order that the defendant might be sentenced as required by law, Chief Justice Lewis said: “The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine, that a prisoner whose guilt is established by a regular verdict is to escape punishment altogether, because the Court committed an error in passing the sentence. If this Court sanctioned such a rule, it would fail to perform the chief duty for which it was established. Our duty is to correct errors, and to ‘minister justice’. But such a course would perpetuate error, and produce the most intolerable injustice.” See also: Com. v. Cameron, 42 Pa. Superior Ct. 347, 361, affirmed 229 Pa. 592, 79 A. 169; Com. v. Shields (No. 2), 50 Pa. Superior Ct. 194, 210; Com. v. Bingle, 62 Pa. Superior Ct. 105, 110; and section 8 of the Act of June 24, 1895, P. L. 212, creating this court. The order of the court below dismissing the writ of habeas corpus and remanding relator to the Eastern State Penitentiary is affirmed. The probation provisions of the Act of 1911, supra, do not apply to persons convicted of murder, administering poison, kidnapping, incest, sodomy, buggery, rape, assault and battery with intent to ravish, arson, robbery or burglary. They are specifically excepted. “That whenever any person shall be convicted in any court of this Commonwealth of any crime, except murder, administering poison, kidnapping, incest, sodomy, buggery, rape, assault and battery with intent to ravish, arson, robbery, or burglary, and it does not appear to the said court that the defendant has ever before been imprisoned for crime, either in this State or elsewhere (but detention in an institution for juvenile delinquents shall not be considered imprisonment), and where the said court believes that the character of the defendant and the circumstances of the ease [are] such that he or she is not likely again to engage in an offensive course of conduct, and that the public good does not demand or require that the defendant should suffer the penalty imposed by law, the said court shall have power to suspend the imposing of the sentence, and place the defendant on probation for a definite period, on such terms and conditions, including the payment of money for the use of the county, not exceeding, however, the fine fixed hy law for conviction of such offense, as it may deem right and proper; said terms and conditions to be duly entered of record as a part of the judgment of the court in such case. 'No such condition for the payment of money shall he considered as the imposition of a fine or a sentence nor prevent the court from thereafter sentencing any defendant under the act under which he or she was convicted, upon violation of his or her parole

The opinion of the court was delivered, January 7th 1868, by Thompson, C. J. Subrogation is purely an equitable result, and depends like other controversies in equity on facts to develop its necessity, in order that justice may be done. Privity of contract is not necessary to its support; it may, and does, exist on principles of mere equity and benevolence: 1 Johns. Ch. 409; Cottrel’s Appeal, 11 Harris'294. It will not arise in favor of a stranger, but only in favor of a party who on some sort of compulsion discharges a demand against a common debtor. For instance, a surety who pays the debt of his principal, will be entitled to the securities of the creditor. So, where one of several joint sureties has paid the whole debt, he will be entitled to the judgment to enforce contribution by his co-sureties : 9 Wright 451. In Cottrel’s Appeal, to prevent a salé the defendant in the judgment gave his note with an endorser, to the plaintiff, for the amount of the judgment, and took up the single bill on which the judgment had been entered. The note went to protest, and was paid by the endorser, and it was held that the endorser was entitled to he subrogated to the judgment of the plaintiff, which the proceeds of his note went to pay, in preference to a subsequent judgment, entered previously to the giving of the note. In The Silver Lake Bank v. North, 4 Johns. Ch. 370, a mort gagee, compelled for- his own security to satisfy an execution on a prior judgment in favor of another, was by Kent, Ch., held by right of subrogation to stand in the place of the judgment-creditor, and entitled, on a sale of the mortgaged premises, to receive out of the fund the amount of the judgment as well as the mortgage-debt. See also Paine v. Hathaway, 3 Ves. R. 212; Dixon on Subr. 166, to the same effect. In Wallace’s Appeal, 5 Barr 103, it was decided that an administratrix, who had paid her own money in relief of the estate of her intestate, was entitled to sub stitution to those whose debts her money paid. Kelchner v. Forney, 5 Casey 47, was the case of an advance by a guardian to his ward, and he was subrogated to the ward’s security for money coming to him. Greiner’s Appeal, 2 Watts 414, recognises the same doctrine, and there are many other decisions to the same effect. ' The principles of subrogation do not apply in favor of volunteers as already said. -They can obtain the right of substitution only by contract. The cases which I have referred to above, illustrate who are not to be regarded as volunteers and strangers. One was the case of an endorser, who was substituted to the judgment creditor, whose judgment the proceeds of the note paid. His endorsement was voluntary. Another paid off, for his own security, an execution on a prior judgment. He was not legally compelled to pay. A third and fourth advanced money, one in favor of an estate and another to his ward. They were all subrogated and not regarded as strangers. I regard the doctrine as applicable in all cases, where a payment has been made under a legitimate and fair effort to protect the ascertained interests of the party paying, and when intervening rights are not legally jeopardized or defeated. Such payments, whatever might be their effect in law as extinguishing the indebtedness to which they apply, will not be so regarded in equity, if contrary to equity to regard them so. In the case in hand it became very apparent, as I think the proof shows, that the order in which the sale of the joint property of E. and C. II. Olmstead was directed to be made by the court out of which the executions in favor of the First National Bank of Susquehanna Depot v. William Hamnet and Charles Olmstead; The First National Bank of Meadville v. E. and C. H. Olmstead; S. G. Thurston v. W. B. Hunter and C. H. Olmstead; and G. Mosier v. E. Olmstead, C. H. Olmstead and James Irvin, issued, would defeat a junior judgment of J. B. Dick & Co. To save it and under the pressure of this circumstance, they advanced money to pay off these executions. This was done not only with the knowledge of the defendants, but they were very solicitous that the Dicks should do so, as they believed that the sale of the property in detail, that is, by a sale of an undivided interest at a time, would in a measure sacrifice it. It is very obvious that connected property, as it was, would not sell as well in undivided interests as in solido; and as the whole would be required to be sold to pay the liens upon it against the defendants, it is not apparent why such an order was made. But the fact that it was so made, left the Messrs. Dick no alternative but to do as they did, or lose their judgments. Subrogation to the judgments, the executions on which were paid by the money of the Messrs. Dick, was applied for and resisted; not by new lien creditors, but by those existing when. the money was paid. It is true the appellants claim that there was an intervening judgment in favor of Gr. Hosier and O. Derrickson v. C. H. Olmstead for $25,000 entered. Why this judgment should have been made the foundation of objection, I do not see, for it was marked' satisfied in full on the docket, and at the time of the decree its nature was understood to be merely cautionary with nothing due on it. The case stood solely as it did between the creditors when the money was paid, and when the decree in this case was entered. Their liens were, in legal contemplation, in no way impaired by the acts of the appellees. They were not postponed in any of their legal rights or remedies. Any of those whose judgments were ripe for execution, might have proceeded to put the property to sale the next day after it was stopped by the payment of the executions if they had chosen. The entry of satisfaction on the judgments by the plaintiffs did not extinguish them, excepting in favor of intervening liens, of which, as we have seen, there were none ; and equity would not allow its principles to be set aside by an act against equity, which the satisfaction entered would result in. The right of sub - rogation having been found to exist, it was certainly proper, on part of the court, to decree that the entry of satisfaction should be cancelled, and that the judgments should stand for the use of the plaintiffs in the bill. The fact that the Messrs. Dick entered judgment against the defendants, E. and C. H. Olmstead, for the money advanced, did not destroy their equity, unless it could have been shown that it was in effect so intended. Nothing of this was shown. The appellants were not prejudiced by the act, and it would be hard to hold that the appellees were, if the former were not. The case was well decided below, and the decree is affirmed at the costs of the appellant.

The opinion of the Court was delivered by Rogers, ,T. The gravumen of the action is the enticing away the plaintiff’s wife. There was no direct and positive proof of any combination between the defendants for the purpose, but the jury was asked to infer their participation in her abduction, from their acts, declarations and conduct before, at the time, and after her departure from the dwelling of her husband. To disprove the allegation in the declaration, that the wife deserted her husband by the advice and at the procurement and solicitation of the defendants, they offered to prove by her attending physician, that about ten days before Mrs Bale left her husband,she complained that he had treated her badly; that she showed marks on her arms which she said she had received from bis beating her; and asked him what she should do. That he advised her to go to her father’s and leave her husband. This evidence was offered in connection with proof that Bale treated her kindly as long as he thought he could, by that means, prevail upon her to deliver up a certain bond for 1000 dollars, which the defendant Gilchrist had given to her. The evidence was very pertinent; for if Mrs Bale left her husband in consequence of ill treatment, it was an answer to the plaintiff’s action. The material part of the testimony was the advice of the witness that she should leave her husband. The, residue of the offer explains the reasons which induced him to givé this advice, and were evidence in explanation. The witness saw the marks on her arm, and was informed by her, at the time, that they arose from the ill treatment of her husband. If I am correct; the latter part of the offer was unconnected with information derived from Mrs Bale, and in that view was undoubtedly evidence, as it tended to show the motives which governed the wife in leaving the protection of her husband. It is said that this may have been a contrivance between the wife and the defendants, and it may have been so; but the court would not be justified in excluding testimony from a jury, on the ground of suspicion that there may have been unfair and improper conduct. Of this, the jury are the best judges; such matters go to the credit rather than the competency of testimony. It is a general rule that the declarations of a husband or a wife cannot be received in evidence against each other, either civilly or criminally. But this rule cannot be extended to all possible cases; for where no confidence has been violated, the law .has admitted of some exceptions. Thus in Aveson v. Lord Kennard, 6 East 18S, in an action by the husband on á policy of insurance on the life of his wife, declarations by the wife, made by her when lying in bed, apparently ill, stating the bad state of her health, &c., and her apprehensions that she could not live ten days longer, by which time the policy was to be returned, are admissible in evidence to show her own opinion of the ill state of her health at the time of effecting the policy. In the argument, it was stated by the counsel, that the declarations by the wife upon her elopement from her husband, accusing him of misconduct, could not be given in evidence against him in an action against the adulterer. To this Lord Ellenborongh replied: “ It is not so clear that her declarations, made at the time, would not be evidence under any circumstances. If she declared at the time that she fled from immediate terror of personal violence from her husband, I should admit thé evidence, though not if it were a collateral declaration of some matter which happened at another time.” For the same case, in illustration, his lordship referred to Thompson and Wife v. Freeman, Skinner 402, where, in an action by the husband and wife for wounding the wife, Lord C. J. Holt, allowed what the wife said immediately upon the injury received, and before she had time to devise any thing for her own advantage, to be given in evidence as part of the res gestu. The motives which induced Mrs Bale to desert her husband, are the matters in controversy; and his conduct about that time has a material bearing on the issue. The defendants allege that she left him, not for the cause assigned in the declaration, but because of his wicked and brutal conduct. This, in most cases, cannot be shown, except by her declarations made at the time to her relations and friends. Few persons are so lost to every sense of propriety as to act thus in public. The treatment of which she has most reason to complain, is usually acted in secret, and can only be known from her complaints, or, as here, from marks of violence on her person. When an act is done to which it is necessary to ascribe a motive, it is always considered that what is said at the time, from whence the motive may be collected, is part of the res gesta. It was necessary to explain the reason the witness advised her to leave her husband, and for this purpose her complaints of ill treatment, with the marks of violence on her person, were competent testimony. When the conduct of the wife is in question, her declarations have been held admissible for her husband in an action against him. Thus in an action for necessaries supplied to the wife, the defence being that her husband had turned her out of doors for adultery, her declarations as to her adultery, made previously to her expulsion, were admitted. Abbot, C. J., 1 C. & P. 621. The defendants also complain of the rejection of the record of the action of trespass, vi et armis, for criminal connection with the plaintiff’s wife. This is an action on the case, and a difference is taken between such actions and actions in tort, which are stricti juris. A former recovery, release or satisfaction cannot be given in evidence in an action for tort, on the general issue, but must be pleaded; but an action on the case is founded on the mere justice and conscience of the plaintiff’s case, and is in the nature of a bill in equity, and therefore a former recovery, release or satisfaction need not be pleaded, but may be given in evidence under the general issue. For whatever will, in equity and conscience, according to the circumstances of the case, bar the plaintiff’s recovery, may, in this action, be given in evidence by the defendant: because the plaintiff must recover upon the justice and conscience of his case, and upon that only. Bird v. Randall, 3 Burr. 1353; 1 Wils 45; Thillhaffer v. Herr, 17 Serg. & Rawle 319. There is, therefore, no reasonable doubt, on authority, that the evidence was admissible on the pleading, if in other respects unexceptionable. The actions were brought on the same day, covered the same space of time, and the question is, whether they are not, in substance, for the same injury. A former recovery is no bar, unless it be for the same injury, but where the plaintiff has received a full satisfaction, for the same cause, he cannot recover a second time. And this does not depend on the form of the suit; for the inquiry in every case is, whether the former recovery or satisfaction was for the same thing, or whether the grounds of controversy in the two actions are the same. Thus, when a person takes the personal property of another, and sells it, the owner may elect either of four remedies, trespass, replevin, trover, or an action on the case, for money had and received, but a recovery in one, may be pleaded in bar to another action, although differing in form, for the same injury. When A enters the close of B, cuts down his timber, and takes and carries it away, as in Cochran and Wife v. Castlere, Co. E. 96, the plaintiff may bring trespass quart clausum fregit, and recover for the trespass in entering the close, and also for the value of the timber under improvement. But such a recovery would be a bar to an action of replevin, trover, and to an action on the case, for the value of the timber. No person can recover a double satisfaction for the same injury, and nemo debet bis vexari pro eadem causa. Whether a recovery for the value of articles would be a bar to an action for breaking the close merely, it is not necessary to decide, and is not so clear. For what injury did the plaintiff recover, in the action of trespass? or, what is the same thing, as was ruled in Hess v. Heeble, 6 Serg. & Rawle, what might he have recovered? In the first action the plaintiff’ does not declare for the criminal conversation alone, but he also demands damages for depriving him of the comfort and society of his wife, during the whole time laid in the present action. He elects to consider the whole as one offence, and it can not be questioned that he did or might have recovered, in the first suit, for all the injury he received from the defendant, including not only the criminal intercourse with her, but also compensation for her desertion at the solicitation of the defendant, and thereby depriving him, in the language of the declaration, of her aid, comfort and assistance. Gavin v. Dawson, 13 Serg. & Rawle 246, was decided on this principle. Gavin brought two suits against Dawson—one on the act of the 21st of March 1772, to recover double the value of his goods wrongfully distrained by the defendant, and the other, an action on the case at common law, for the same cause, and alleging his complaint in the same words. The defendant arbitrated both, and report was made in both, that the plaintiff had no cause of action. The plaintiff appealed from the decision in the case to recover double damages on the statute, but did not appeal from the action at common law, where judgment remained in full force. The court held that the plaintiff was barred, and a plea puis darrein continuance was held good. In the case at bar, for the same thing, the plaintiff will recover a double satisfaction for the same injury, and the defendant will be punished twice for the same offence. There was error in rejecting the record of the former recovery. But it is said the declaration is bad, because no request by the plaintiff to the defendant, to deliver up the wife, and refusal by the defendant, are laid. This objection is made on the authority of a dictum of Chief Justice Wilmot, in Winsmore v. Greenland, 1 Wittes 582. But the remark is made in reference to the third count of the declaration, but does not touch the count for enticing her away. “ It is not necessary,” says the Chief Justice, “ to determine, in this case, whether a request and refusal are necessary, because both ave expressly laid here; but according to my present thoughts, in the case of a detainer, I think them necessary.” But however this may be restricted to a suit for detaining the wife, yet it does not apply to an action for enticing her away; for if it is necessary to aver a request and refusal, it would be necessary to prove them. But it will hardly be pretended that a person could screen himself from punishment for such a wrong, by consenting (after the injury, which consists of the illegal and improper act of inducing her to desert her duty) to deliver up the wife on request. But this would be the consequence of holding that a request and refusal were necessary. In other respects we perceive no error in the record. Judgment reversed, and a venire de novo awarded.

The opinion of the court was delivered by Servant, J. The defendants were bound by their contract to transport the wheat from Pittsburgh to Philadelphia, and have shown no legal excuse for refusing to do so. The question is, what is the measure of damages to be paid by.a carrier for violating such a contract? The defendants contend, that the damages should be merely nominal, unless the plaintiffs show that they could no.t get the wheat carried by some, other person. But we think it is the duty of the defendants to do this if practicable, and not of the plaintiffs. Then as the defendants have not'fulfilled their engage ment, the next thing he ought to do, is to place the plaintiffs in the same situation as if they had fulfilled it. They ought to be indemnified. The wheat was a consumable article of merchandize, at its port of destination, calculated for salé in the market there, where the price fluctuates from day to day, and sometimes from hour to hour. The market value of the article there, at the time it would probably have arrived and been ready for sale, is what it would have been worth to the plaintiffs, and the difference between that and the value at the place of shipment, added to the cost of freight, is the amount of loss which the plaintiffs have sustained. In Bracket v. M’Nair, 14 Johns. 170, this rule was recognized. It was an action for a breach of contract to transport salt from A to B, and it appeared that other vessels sailed, and there was no reason why the plaintiff’s salt was not carried at the time agreed on; the difference between the value of the salt at A, and its increased value at B, was deemed the proper measure of damages. This rule seems tó be fair and reasonable, and the only one by which justice can be done between the parties. There is no reason why carriers who engage with merchants to transport merchandize, should not be held to a strict performance of their engagements, and that is to be done by obliging them to indemnify the shippers fully. Here, it would seem, the market price in Philadelphia was two dollars and six cents per bushel; but the jury were permitted to give less, if they believed the plaintiffs’ vendee had sold the wheat at one dollar and 80.cents, and of this direction the defendants had no cause to complain. Judgment affirmed.

The opinion of the Court was delivered by Kennedy, J. The first error is, that the note upon which the plaintiff below claims to recover in this action, had not become payable according to its tenor at the date of the impetration of the writ commencing the action. By an inspection of the record, the date certainly appears to be so, and therefore forms an insuperable objection to the plaintiff’s recovery. The note is dated on the 30th December 1840, payable according to its terms 12 months after its date; and the writ was sued out on the 1st day of January 1842. Though, in general, when a,deed mentions a month, it ia construed to mean a lunar month, or 28 days, yet in bills of exchange,'notes and other mercantile contracts, the rule is otherwise; and by the custom of trade, when a bill or note is made payable at a month or months after date, the computation must in all cases be by calendar and not by lunar months. 1 Strange 652: Lang v. Gale, (1 Maule & Selw. 111); see also 2 Chit. Black. 140 and note (3). And again, in the case of a bond made payable a year after its date, if not paid on the last day of the year, a suit for the recovery of its amount may be commenced the next day: but in respect to bills and notes it is otherwise; there three days of grace are allowed to the acceptor or drawer before he can be sued. Bank of North America v. Pettit, (4 Dall. 127); Fisher v Evans, (5 Binn. 541). Originally they were called days of grace, because they were gratuitous, depending altogether on the will of the holder, and could not be claimed as a right by the person bound to pay; and although they still retain the name of grace, yet the custom of merchants recognised by law has long reduced them to certainty, and given the acceptor or maker a title to claim them as a matter of right. Chitt. on Bills 374. Allowing then the three days of grace to the defendant below, it is clear that the plaintiff there had no right to bring his action before the 3d of January, that is, not until after the three days of grace had fully expired. And accordingly the Supreme Court of New York held that an action brought against the maker of a promissory note on the third day of grace was prematurely brought, and that advantage might be taken of the error on the trial by nonsuiting the plaintiff. Osborn v. Moncure, (3 Wend. 170). Had this objection been brought to the notice of the court below, it is not likely that they would have rendered a judgment for the plaintiff, or haye held that the defendant was bound to file an affidavit of defence in such cases. For it would be preposterous to hold that the defendant was bound or could be required under the Act of Assembly or Act of the court, to file an affidavit of defence, when it «appeared from the plaintiff’s own showing that he had no cause of action against the defendant at the time of commencing his suit. The second error relates to sufficiency set out by the defendant below in his affidavit of defence to a part of the plaintiff’s claim, which was that he claimed to defalcate $15.46 from the plaintiff’s claim, that had been paid and allowed by him to the plaintiff as an excess of legal interest upon prior loans of monies made by the latter to the former. That money obtained by oppression and by taking advantage of the distresses of others, in violation of laws made for ,their protection, may be recovered back in an action for money had and received, seems to be well settled; because in such case the parties are not in pari delicto. Lowry v. Bourdieu, per Lord Mansfield, (Doug. 472); Jones v. Barkley, (Ib. 697, note); Mathers v. Pearson, (13 Serg. & Rawle 258). And according to this principle it has been held that such action will lie to recover back the excess of interest taken from the plaintiff on an usurious loan to him. Smith v. Bromley, (Doug. 697, notes a and b); Astley v. Reynolds, (Strange 915); Williams v. Hedley, (8 East 378); Rep. Temp. Talb. 40, note; Lofft 345; Browning v. Morris, (Cowp. 792). Seeing then that the defendant below might have maintained an action against the plaintiff for money had and received to recover back the $15.46, excess of interest alleged to have been taken by the plaintiff below from the defendant, it cannot be questioned that under our Defalcation Act the latter may and has the right, if he chooses, to defalcate that sum from the plaintiff’s demand. We therefore think that the court below erred in rendering a judgment against the defendant for the whole amount of the plaintiff’s claim. Had not the plaintiff brought his action prematurely, and been willing to have accepted a judgment for the residue of his claim, after deducting the $15.46, the court might have rendered judgment for such residue in favour of the plaintiff against the defendant, but not otherwise. Judgment reversed.

Opinion by Mr. Justice Jones, The claimant’s petition for compensation under The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 PS §1201 et seq., was dismissed by the referee on the ground that it was not filed within the time limited therefor by the Act. On exceptions, the compensation board affirmed the referee’s action. The claimant appealed from the board’s decision to the court of common pleas which reversed in an order remitting the matter to the board for specific findings as to the date when the claimant’s total disability from silicosis became known or should have been known to him. The corporate employer and its insurance carrier at once appealed to the Superior Court from the common pleas - court’s, order, as did also the Commonwealth of Pennsylvania acting on behalf of the State Workmen’s Insurance Board. The Superior Court reversed and entered judgment for the appellants: 179 Pa. Superior Ct. 538, 543, 118 A. 2d 229. We granted an allocatur on the claimant’s petition, and the matter is now before us on appeals by the administratrix of the claimant who has died in the meantime. The referee found “. . . that claimant was totally disabled, as a result of silicosis, on December 22, 1952, and did not file a claim for compensation until January 4, 1954” and “. . . that claimant has not filed his claim petition within the period provided by the Occupational Disease Act, as amended.” Section 315 of the Act provides that “In cases of disability all claims for compensation shall be forever barred, unless, within one year after the disability begins, . . . one of the parties shall have filed a petition as provided in article four hereof”, which Article provides in Section 403 (a) that “All proceedings before the board or any referee . . . shall be instituted by petition addressed to the board.” It was on the basis of these findings that the referee concluded that the claim Avas filed too late and dismissed the petition. The claimant contended below, and it is now his personal representative’s contention here, that the bar to the claim, as prescribed by Section 315 of the Act, did not commence to run until the claimant knew or should have known that Ms total disability was due to silicosis. And, there is no evidence in the record to support a finding that the claimant’s total disability on December 22, 1952, was due to silicosis. That he did become totally disabled on that date is a finding which there is evidence to support. The company’s doctor, Dr. Christ, Avho attended the claimant as his private physician, so testified. But, Dr. Christ did not testify (and the record is barren of any evidence) that silicosis was the cause of the claimant’s to tal. disability on December 22, 1952. The question, then, is whether it is not necessary to do what the court of common pleas did, namely, remand the case for further hearing and consequent finding as to when the claimant’s total disability from silicosis became an established fact. Section 315 of the Occupational Disease Act of 1939 is not and, in the circumstances to which it specifically applies, cannot be construed as a legislatively intended statute of repose. The year within which a claim under that Act must be filed runs from the date when the compensable disability, due to the occupational disease, begins and that date is necessarily a variable one depending upon when the pertinent medical diagnosis is competently established to the Imoioledge of the claimant. It follows, therefore, that the prescribed time within which a claim for total disability due to an occupational disease must be filed is a limitation upon the remedy and not upon the substantive right. It is true that Section 315 of the Workmen’s Compensation Act of 1915 has long, and uniformly, been held to be a statute of repose. But, the difference between the provisions of Section 315 of the Workmen’s Compensation Act and the provision of Section 315 of the Occupational Disease Act is the same as the difference between Sections 311 in the two Acts which, in the main, require that notice of .an employee’s claim for compensation must be given to the employer- within ninety days of the “accident” or “disability”, otherwise “no-compensation .shall be allowed.” The legal distinction between the substantially 'similar*-.provisions of -Section 311 of ■the Workmen’s..Compensation-. Act-and Section-311 of the Occupational-Disease Act...was-, clearly and cogently pointed, out in Roschak v. Vulcan Iron Works, 157 Pa. Superior Ct. 227, 232, 42 A. 2d 280. There, the Superior Court found a differing legislative intent between the relatively comparable Sections 311 of the respective Acts. The only difference in the language of the two Sections 311 (and the same is equally true of Sections 315) is that in the Occupational Disease Act it is the “disability” that begins the running of the prescribed period while, under the Workmen’s Compensation Act, it is the “accident” and, likewise, it is “the beginning of disability” in the Occupational Disease Act and “the occurrence of the injury” in the Workmen’s Compensation Act that starts the running of the notice limitation. The Roschak case was the first time that Section 311 of the Occupational Disease Act had come before an appellate court of this State for interpretation. The employer argued that, it should be given the same construction as had uniformly been ascribed to Section 311 of the Workmen’s Compensation Act, namely, that the period of limitation for serving notice of the claim was mandatory and not extendable. But, the Superior Court, noting the marked difference between the two Acts in respect of the character of the circumstances to which the period of limitation was made applicable, held that the period within which a compensation claimant, under the Occupational Disease Act, must give notice to his employer as required by Section 311 of that Act begins to run “from the time the employee is disabled and definfcely knows he is disabled by the occupational disease.” In justification of that ruling, we cannot do better than quote what the Superior Court so well said with respect thereto. “In the Workmen’s Compensation Act, the time is computed from the date of the ‘accident’ and ‘injury’; in the Occupational Disease Act, from the date the ‘disability begins’ and ‘the beginning of the disability.’ In the former, the time which starts the running of the statute of limitations is easily fixed; in the latter it is much more difficult. On this subject, Corpus Juris says: ‘An occupational disease is not an injury by accident, and an injury by accident is not an occupational disease; an accident is distinguished from an occupational disease in that the former rises from a definite event, the time and place of which can be fixed, while the latter develops gradually over a long period of time’: 71 C. J. 600, Sec. 357. An accident or injury is a definite happening or occurrence or event of which the employee is almost invariably aware. An occupational disease is latent and insidious and the resultant disability is often difficult to determine. It is apparent, then, that the difference between the relevant provisions of the two acts is fundamental and basic. In construing the Occupational Disease Act, the problem devolves to one of ascertaining the point of time at which the disability begins.” We refused an allocatur in the Roschak case which forthwith became the leading case in this State on the point involved and has since been either quoted from directly or cited with approval many times: see, e.g., Nickolay v. Hudson Coal Company, 164 Pa. Superior Ct. 550, 552, 67 A. 2d 828; Tracey v. M. & S. Coal Company, 165 Pa. Superior Ct. 569, 571, 69 A. 2d 184; Coma v. Hudson Coal Company, 166 Pa. Superior Ct. 503, 505, 72 A. 2d 604; Shemanchick v. M. & S. Coal Company, Inc., 167 Pa. Superior Ct. 350, 352, 74 A. 2d 764; Masouskie v. Hammond Coal Company, 172 Pa. Superior Ct. 409, 410, 94 A. 2d 55; and Lowe v. American Radiator & Standard Sanitary Corporation, 178 Pa. Superior Ct. 137, 144, 113 A. 2d 330. Cf., also, Valent v. Berwind-White Coal Mining Company, 172 Pa. Superior Ct. 305, 94 A. 2d 197, which was con cerned with a widow’s claim for the death of her husband from silicosis, the death having occurred more than three years after the husband’s last employment: see Section 301 of the Occupational Disease Act of 1939, as amended. Whether the widow’s claim for her husband’s death from silicosis had been filed timely was the crucial issue, and the answer depended upon whether the deceased husband had, in his lifetime, filed a valid claim for total disability from silicosis. The latter issue was made to depend, in turn, upon when the employee knew that he was totally disabled from the occupational disease. Just as in the Roschak case, so also here, “The difficulty in ascertaining the exact point of time, at which the occupational disease causes the disability to begin, becomes obvious from a review of the facts in the instant case.” When, by reason of his weakened physical condition, the claimant was forced to abandon his employment on December 22, 1952, the precise nature of his disabling illness was undetermined. It was not until February 5, 1953, that Dr. Bisbing, a specialist in diseases of the lungs who had been called in as a consultant, diagnosed silicosis as the cause of the claimant’s total disability as of that date. Up to that time Dr. Christ, the company’s physician, had been treating the claimant for a cardiac condition exclusively; he never diagnosed silicosis as the primary cause of the claimant’s physical disability; nor did he ever treat Mm for silicosis. As allegedly precluding a recovery, the defendants rely on the fact that the petition for compensation, which was filed on January 4, 1954, averred that the claimant had become totally disabled from silicosis on December 22, 1952. However, the petition was not introduced in evidence nor was it otherwise made a part of the record. Of itself, it is without evidentiary value. It partakes of the nature of a complaint at law which may be amended in order to make it conform to the actual proofs. Here, the undisputed proof is that it was not medically determined until February 5, 1958, that the claimant’s total disability was due to silicosis. Since the claim petition was filed within a year after the compensable disability began, it is unnecessary to consider what effect Act No. 355 of February 28, 1956, which extends to sixteen months the time for filing a claim for compensable occupational disease, would have had had the claimant’s total disability from silicosis begun on December 22, 1952. Compare Agostin v. Pittsburgh Steel Foundry Corp., 354 Pa. 543, 549, 47 A. 2d 680. The judgment is reversed and the record remanded with direction that the order of the court of common pleas be reinstated for further proceeding on the petition not inconsistent with this opinion. In material part, Dr. Christ testified as follows: “Q. Now, finally, after you had taken him to Dr. Rentsehler for further x-ray in November, 1952, he did not improve, but became worse? A. Yes, in spite of the cardiac therapy. Q. You were then treating him only for a cardiac condition? A. Yes. Q. Did you at any time then treat him for this condition, dust of the lungs? A. Not of itself. Q. Your treatment was primarily for tlie heart condition, or relieving the heart condition? A. That is right. Q. Then, finally, as he did not respond, you then referred him to Dr. Bisbing? A. Ves, sir. Q. After you got Dr. Bisbing you first had definite information yourself the man was suffering from silicosis, or silico-tuberculosis ? A. Yes, that is my first information that it was a primary lung condition, previously it was all cardiac, with occasional respiratory infections.”

Opinion by Mr. Justice Eagen, In this mandamus action, the court below ordered the issuance of certain grading and building permits to the plaintiffs for the construction of a shopping center in Mt. Lebanon Township, Allegheny County. The township and residential intervenor-defendants appeal. The facts are lengthy and require extended discussion. The particular property involved is a tract of approximately 10 acres of land located in the Virginia Manor section of the Township of Mt. Lebanon at the intersection of Cochran and Greentree Roads. Virginia Manor Land Company (Manor), the legal title holder of the property, has entered into a contract of sale for the property with Southgate Plaza, Inc. (Southgate), for a consideration of $210,000, contingent upon the acquisition of necessary township approvals and permits for the construction of a shopping center on the land in question. Commercial Properties, Inc. (Commercial), is the duly authorized agent of Southgate for the purpose of constructing the said shopping center. In 1948, a township zoning ordinance classified the present parcel of land as “Commercial”; in 1955, this classification was narrowed to “Neighborhood Shopping” (NS), which classification remained extant at all times relevant to the present action. (Either classification permits the proposed use as a shopping center.) However, on July 8, 1963, at a regular public meeting of the Board of Commissioners of Mt. Lebanon Township (Board), a proposed amendment to the zoning ordinance was introduced, changing the classification from NS to Residential (R-l), and a public hearing was scheduled for September 9, 1963 (which hearing was in fact held). On November 26, 1963, the Township Planning Commission (Commission) met, discussed the proposed amendment, and recommended that it not be adopted. Thereafter, the Board, on December 9, 1963, voted to table the proposed amendment, where it lay until June 8, 1964, at which time it was removed from the table and enacted as an ordinance. In early April .1.963, one Jennings, an officer of both Commercial and Southgate, met with the township manager, Finley, to determine the necessary procedure to be followed in order to erect the shopping center. He was told at that meeting that he was required to obtain “preliminary site plan approval” from the Commission, and to secure a grading permit under a separate grading ordinance before he could apply for a building permit. Shortly thereafter, Jennings filed copies of his plot plan with the Commission and appeared before them on April 23, 1963, to discuss obtaining their approval. At that meeting five objections were raised to the plot plan, which Jennings set about to remedy. The next meeting with township officials took place on the site proposed for development, at the suggestion of (lie township and in the presence of several abutting owners, on May 4, 1963. Further conversations and meetings ensued, during each of which new objections were raised to the plot plan, until on June 25, 1963, the Commission voted not to approve the plot plan. As a result of this action and at the request of Jennings, a letter listing 16 objections to be overcome in order to secure approval was issued. Jennings then met with the township director of public works, Peternel, and one Williams, a township engineer, to discuss the objections and the manner of overcoming them. As a result, late in July (note that the proposal for rezoning had then intervened) a revised plot plan was given to Peternel, which plan was in fact approved by the township engineer as being in “technical compliance” with the local requirements. A formal application for a grading permit, filed on August 7, 1963, was denied because it was not in triplicate, it was not prepared by a registered professional engineer, and it had no “specifications” attached. In the meantime, Jennings requested to be placed on the Board’s agenda to obtain their approval of the site plan; but at their meeting the Board ignored his request and, in a move aimed directly at the plaintiffs, amended the grading ordinance (under which the plaintiffs had been proceeding) so as to make the securing of a building permit a prerequisite to obtaining a grading permit. Then, on August 30, 1963, the Board refused to issue a grading permit: because the Commission had not given approval, because no building permit had been obtained, and because they were “unsure” of the effect on the project of the proposed rezoning. Again, on September 20, 1963, Jennings was notified that, although they were in “technical compliance”, no grading permit could issue until a building permit was secured, a performance bond filed, and approval obtained from the Department of Forests and Waters. On November 26, 1963, plaintiffs applied for a building permit, but no formal action has ever been taken thereon, apparently because of the present litigation, although it is admitted that “structurally” the permit could issue. On October 18, 1963, this action in mandamus was instituted, requesting that the court direct the issuance of a grading permit to the plaintiffs for the land in question. Abutting and neighboring property owners, whose rights could have been affected by the decision in this case, were allowed to intervene. On January 8, 1964, a second amended complaint was filed, adding a separate count, requesting the court to direct the issuance of a building permit for the shopping center. At the close of the pleadings, a hearing was held and the court directed that both the grading permit and the building permit issue. It is the correctness of this order which is here challenged. Initially, we observe that mandamus is an extraordinary writ which can issue only when plaintiffs have a clear legal right to the performance of a ministerial act by the defendant, whose duty it is to perform that act: Verralti v. Ridley Township, 416 Pa. 242, 206 A. 2d 13 (1965), and Travis v. Teter, 370 Pa. 326, 87 A. 2d 177 (1952). Mandamus will not lie to control the exercise of official discretion, but it will issue to compel the exercise of discretion or to prevent the arbitrary or fraudulent exercise thereof: Garratt v. Philadelphia, 387 Pa. 442, 127 A. 2d 738 (1956), and Maxwell v. Farrell School District Board of Directors, 381 Pa. 561, 112 A. 2d 192 (1955). And where plaintiffs have a clear legal right to the issuance of a building permit, then mandamus is the proper means to compel the officials to issue it: Verratti v. Ridley Township, supra, and Lhormer v. Bowen, 410 Pa. 508, 188 A. 2d 747 (1963). Thus, the question resolves itself into the simple matter of whether or not the plaintiffs had a clear legal right to the issuance of the requested permits. We find it unnecessary to determine appellants’ claim that they are bound by, and have a right to enforce, a restrictive agreement (made by the township and the present legal titleholder in 1948) between the township and a private landowner. While the court below so stated, such a contention was not the basis for decision, the court finding that plaintiffs here did not violate the terms of that agreement. We find support in the record for the court’s factual determinations and no error of law in the conclusions drawn from the facts or in the interpretations attributed to the various restrictive provisions. Having complied with its provisions, the restrictive agreement could not have been a ground for refusal to issue the permits. Appellants contend primarily that the plaintiffs acquired no “vested right” in the extant zoning classification, and that the proposal to rezone on July 8, 1963, before any formal application for a permit was filed, had the effect of cutting off any rights which plaintiffs might have acquired had they moved more quickly. While, under ordinary circumstances, it is unquestionably true that a building permit may be denied because its issuance would not be in conformity with a “pending” ordinance on the subject, this necessarily presupposes that the “pending” ordinance is a valid one. This is merely another way of stating the holding of Lord Appeal, 368 Pa. 121, 125-126, 81 A. 2d 533, 535 (1951), that a property owner is entitled to use his property in any way he desires as long as he does not “(1) violate any provision of the Federal or State Constitutions; or . . . (4) violate any laws or zoning or police regulations which are constitutional.” (Emphasis added.) It was there further said that “it is now well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation whenever they are . . . not unjustly discriminatory, or arbitrary, or unreasonable, or confiscatory in their application to a particular or specific piece of property: [citing cases].” (Emphasis in original.) In the opinion entered in support of the court’s decision below, it was said, “. . . there is not the slightest doubt that the sole purpose of this [proposed rezoning] Ordinance was to prevent these plaintiffs from constructing the project they planned. . . . We think that plaintiffs have met their burden of proving the invalidity of this Rezoning Ordinance. . . . [T]he conduct of the Township officials in their relations with the plaintiffs and the action of the Township Commissioners in introducing the Rezoning Ordinance were not in good faith, but were contrived for the sole purpose of preventing the legal use by plaintiffs of their property, and therefore constituted ‘arbitrary and unreasonable intermeddling with the private ownership of property,’ which the Supreme Court has condemned in Medinger Appeal, [377 Pa. 217, 104 A. 2d 118 (1954)]. It is impossible to escape the conclusion that the Rezoning Ordinance here involved was ‘ “special legislation, unjustly discriminatory, arbitrary, unreasonable, and confiscatory in its application, in that it was aimed at this particular piece of property” ’: Shapiro v. Zoning Board of Adjustment, 377 Pa. 621, 628.” (Emphasis in original.) If this conclusion is justified by the record, then there is no doubt that the introduction of the ordinance could have no effect upon the plaintiffs’ right to the permits sought, and we think the record does amply support this conclusion. In so deciding, we impute no personal vindictiveness to the township officials who apparently were striving to maintain the high character of their bailiwick and to represent the desires of their constituency. But, while their motives may have been of the highest sort, their course of action was ill conceived. When plaintiffs set out to construct a shopping center on their property, they had every right to do so. But at each step of the way they were met with obstructionism and hastily erected barriers. As plaintiffs overcame each objection or complied with each request, township officials were busily erecting new barriers. Plans revised to meet objections were met with additional objections, and requests for approval were summarily cast aside. While plaintiffs were attempting to secure a grading permit as a prerequisite to obtaining a building permit, the township changed its requirements to make the securing of a building permit a prerequisite to obtaining a grading permit. And so the circular pursuit went. In an effort to show the proposed rezoning was not spot-zoning, appellants assert that the property involved was a 10 acre tract. But this ignores the fact that this tract was proposed to be developed as a single, integrated unit. It makes no difference whether it is a % acre lot or a 50 acre industrial complex area which is the subject of the rezoning. If it is aimed at preventing a theretofore legal use of an integrated unit owned by one common interest, the action cannot be supported as valid rezoning. In so saying, we do not mean to stagnate zoning classifications. However, under the peculiar facts of this case, it cannot be said that the purpose was for the health, safety and general or moral welfare of the community. The sole purpose, as found by the court below, was to prevent a then lawful use of this land by these plaintiffs. Verratti v. Ridley Township, supra, and Lhormer v. Bowen, supra, are inapposite to the present case. Each of those cases dealt with a valid ordinance, and the question was whether or not the ordinance was “pending” at the time of application for a permit. As we view the present case, the question here is whether a “pending” ordinance was valid, without regard to the actual date of application. On August 30, 1963, the township, by a letter from Finley, stated that the Board had not acted upon plaintiffs’ petition for site plan approval and the issuance of a grading permit because (1) there had been no final recommendation from the Planning Commission, (2) a building permit had not been secured, a prerequisite according to the amended grading ordinance discussed above, and (3) the zoning status might be changed by amendment. The amended grading ordinance, as applied to these plaintiffs, suffers from the same fatal infirmity as the proposed rezoning ordinance, and is therefore inapplicable. The proposed rezoning could not affect these plaintiffs. Therefore, the lack of site plan approval is the only matter left regarding this barrier. Unfortunately, the township zoning ordinance has not been included in the record. Such being the case, we adopt the following, unchallenged finding of fact by the court below: “The only provision in the Township Zoning Ordinance relating to site plan approval in an NS District is contained in Article IX, Section 2-9, which provides: ‘The location, site plan and general character of the development [must] be approved by the Board of Township Commissioners.’ “There is no provision in the Ordinance defining a site plan nor specifying any criteria by which the Board of Township Commissioners is to exercise its function of approving or disapproving ‘the location, site plan and general character of the development.’ ” Thus, we see that in fact the zoning ordinance never required “site plan” approval by the Planning Commission, and the lack thereof could not be prejudicial to plaintiffs’ position. Furthermore, zoning ordinances, being in derogation of a property owner’s constitutional rights, must be strictly construed (Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A. 2d 408 (1964), and cases cited therein), and “certain and definite and valid standards for zoning must be prescribed ... in the zoning ordinance”: Cleaver v. Board of Adjustment, 414 Pa. at 374, 200 A. 2d at 413. See also, Archbishop O’Hara’s Appeal, 389 Pa. 35, 131 A. 2d 587 (1957), and 8 McQuillin, Municipal Corporations §25.62 (3d ed. rev. 1957). The lack of definite criteria upon which the Board must base its decision vitiates the entire requirement, and the Board’s “site plan” approval, therefore, was not a prerequisite to the issuance of a grading permit. Thereafter, on September 20, 1963, Peternel (the Director of Public Works, whose function it is to issue grading permits) informed plaintiffs that, while in “technical compliance”, the grading permit could not issue until a bond had been posted, a building permit secured, a permit from the Department of Forests and Waters secured, and an undisclosed “legal question” resolved. The question of the building permit in this context has been discussed above, as well as the “legal question” (or questions, as the case seems to be). In regard to the bond, the ordinance requires the posting of a bond in the amount of 25% of the estimated cost of the grading project. It seems as though there was some dispute as to what the cost would be, but this question was not resolved until after the institution of this suit. The question is now moot, however, the township having waived this objection by accepting a subsequently tendered bond, apparently sufficient to comply with the requirement. As for the permit from the Department of Forests and Waters, the record discloses that traditionally it has been the function of the township to secure same, and the lack thereof cannot prejudice plaintiffs’ position. Any permit which issues as a result of this decision will necessarily be contingent upon Department of Forests and Waters approval, which approval will, we presume, be sought in the normal course of administrative procedure by the township officials. Its present lack is not a ground for the denial of a grading permit. No formal action or official communication has occurred in regard to plaintiffs’ application for a building permit. However, we agree with the court below that plaintiffs have complied with all valid requirements and the building permit should issue. The comments made above with regard to the invalidity of the proposed rezoning are equally applicable here, and it presents no bar to the construction of plaintiffs’ shopping center. Neither does the restrictive agreement of 1948. Furthermore, we concur in the construction by the court below of the “parking space” provision of the zoning ordinance and in the factual determination that plaintiffs’ plan complies therewith, a determination well supported by the record. Appellants also i*aise the requirement of prior site plan approval, but we have disposed of that contention above. Finally, appellants contend that certain proposed uses of various portions of the shopping center would be in violation of the zoning ordinance. In this regard, we again approve of the comments of the court below which point out that the requirement of use and occupancy permits thereunder provides “ample machinery” for the protection of the township. While not approving of the proposed uses, the township could still issue the building permit and allow the shopping center to be built, still reserving the right to restrict the use to which it is to be put. It is plaintiffs’ duty to find suitable tenants who meet the requirements of the “use” provisions. That plaintiffs have improperly proposed unacceptable tenants is not a ground for the denial of the building permit. The future tenancy is a problem for future regulation. Order affirmed. While we speak in terms of building permits, the principles here enunciated apply with equal force to grading permits.

Opinion by Mr. Justice Cohen, Appellant is Louden Hill Farm, Inc., a Pennsylvania corporation. Its registered office, principal place of business and producing farm is located at Dimock, Susquehanna County, and it operates cash-and-carry dairy stores for the retail sale of store-bought milk. It sells its product in reuseable glass containers in half-gallon and gallon quantities only. Appellee is the Milk Control Commission of the Commonwealth of Pennsylvania, an independent administrative agency created by the Milk Control Law, Act of April 28, 1937, P. L. 417, §101 et seq., as amended, 31 P.S. §700j-101 et seq. Pursuant to a public hearing held on August 10 and 11, 1964, at which appellant presented evidence, appellee promulgated Official General Order No. A-643. This order is a comprehensive schedule of prices governing. the sale of milk and allied products at every level. At the hearings, appellant contended, inter alia, that the price of store-sold milk should be lowered. By the official general order the Milk Control Commission reduced the prices of gallon and half-gallon containers of milk, and prescribed a larger differential between store-bought and home-delivered milk than in the prior order. The reduction and differential, however, were not as great as contended for by appellant. Louden Hill Farm filed an appeal from the order to the Court of Common Pleas of Dauphin County under the Milk Control Law of 1937, P. L. 417, §901, 31 P.S. §700j-901. This section limits appeal from orders of the Commission to “[a]ny person aggrieved.” The appeal set forth appellant’s position that the commission had not taken into proper consideration the economies of its method of production and marketing and it therefore requested a lowering of retail store prices and other changes. Appellee presented a motion to dismiss the appeal contending appellant was not a party aggrieved within the meaning of the statute. The court below entered an order dismissing the appeal. From that dismissal, Louden Hill Farm took this appeal. Who is a “person aggrieved” has been explained many times by this Court. In Pennsylvania, Commercial Drivers Conference et al. v. Pennsylvania Milk Control Commission, 360 Pa. 477, 62 A. 2d 9 (1948), this Court reiterated what it had said in Lansdowne Borough Board of Adjustment’s Appeal, 313 Pa. 523, 525, 170 Atl. 867, 868 (1934): “‘A cardinal principle, which applies alike to every person desiring to appeal, whether a party to the record or not, is that- he must have a direct interest in the subject matter of'the particular litigation, otherwise he can have no standing to appeal. And not only must a party desiring to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial.’ ” To be thus aggrieved the interest of the party must be adversely affected by the order, judgment or decree appealed from. Thus in Atlee Estate, 406 Pa. 528, 532, 178 A. 2d 722, 724 (1962), this Court said: “A party is ‘aggrieved’ when he is directly and adversely affected by a judgment, decree or order and has some pecuniary interest which is thereby injuriously affected.” The interest which must be thus invaded must be one in which the appellant has a right to be protected. Thus in Elliott Estate, 388 Pa. 321, 131 A. 2d 357 (1957), where a co-trustee sought to appeal from a court decree refusing to vacate a previous order finding the settlor unable to take care of his property and appointing a guardian of his estate, the co-trustee was held to have no standing. Quoting Musser's Estate, 341 Pa. 1, 17 A. 2d 411 (1941), it was said that neither the trustee’s abstract interest in seeing the settlor’s intent carried out “nor his concrete interest in his. fees” would be sufficient to make him aggrieved. He must, for example, be surcharged, or be protecting the rights of those unable to act for themselves. In other words, to be aggrieved a party must have suffered the> invasion of-a legal right. To determine.what the rights of the party are it is necessary to look to the Act as well as the pertinent facts. Keystone Raceway Corporation v. State Harness Racing Commission, 405 Pa. 1, 173 A. 2d 97 (1961). The Act vests in the commission the power and imposes up.on it the duty to provide a reasonable return to the-producer and dealer. Act of April 28, 1937, P. L. 417, §801, as amended, 31 P.S. §700j-801. Colteryahn Sanitary Dairy v. Milk Control Commission of Pennsylvania, 332 Pa. 15, 1 A. 2d 775 (1938). The appellant’s, right is only to this reasonable return, and it so recognizes in its brief. .In order to appeal, appellant must allege that the return would not be reasonable. This it did hot do. Nor could it have done so, since appellant’s profit and loss statement presented at the -hearings for the contested order showed an operating profit of 3.29 percent, of sales before taxes- under the prior order, admittedly a reasonable return. The new order allowing a greater differential between store-sold and home-delivered milk, although not as large as sought by the appellant, should tend to increase this percentage of profit. Appellant may not complain because its profit is not maximized. Elliott Estate, supra. Order affirmed.

Opinion by Me. Chief Justice Jones, Sanat Kantilal Parikh (father) and Nayana Sanat Parikh (mother) were married on March 13, 1967, in India and immigrated to Pittsburgh, Pennsylvania, three months later. A son, Rejeev, was born in Pittsburgh on February 16,1969. The father left for a visit to India during August 1969; the mother and son joined him one month later and the three of them resided at the home of the paternal grandparents. While in India, marital difficulties arose and the mother eventually left the home of the paternal grandparents. Due to an illness contracted by the son in India, the father’s business in Pittsburgh and marital difficulties, the father and son returned to Pittsburgh on November 29, 1969. The mother arrived in the United States on August 28, 1970. The mother immediately filed a habeas corpus petition in the Family Division of the Court of Common Pleas of Allegheny County. After a lengthy hearing, that court denied the relief requested by the mother. While recognizing the “tender years” doctrine, e.g., Com. ex rel. Ackerman v. Ackerman, 204 Pa. Superior Ct. 403, 205 A. 2d 49 (1964), it was the considered opinion of the hearing judge that “the best interests and welfare of the child dictate that custody remain with the father.” On appeal, the Superior Court reversed the hearing judge over the dissents noted by three judges. Com. ex rel. Parikh, v. Parikh, 219 Pa. Superior Ct. 240, 280 A. 2d 621 (1971). The Superior Court applied the “tender years” doctrine and concluded that the father did not establish the compelling reasons necessary to rebut the “tender years” doctrine. We granted allocatur. It is well settled that the best interest of the child is paramount in contests between parents for custody of minor children. Cochran Appeal, 394 Pa. 162, 145 A. 2d 857 (1958); Com. ex rel. Graham v. Graham, 367 Pa. 553, 80 A. 2d 829 (1951). “While it is generally held that, other factors being equal, a child of tender years should be with the mother, this rule is by no means absolute. Each case must finally rest upon and be determined by its own facts.” Com. ex rel. McLeod v. Seiple, 193 Pa. Superior Ct. 131, 136 (1960). The mother’s right to custody is not absolute, but must yield to the welfare of the child. Com. ex rel. Bell v. Bell, 200 Pa. Superior Ct. 646, 189 A. 2d 908 (1963). The record of the Court of Common Pleas is replete with support for the position that the physical and spiritual well-being of the child will best be promoted by awarding custody to the father. The father has a gross monthly income of $1,100.00. The father has demonstrated a deep affection for his son; devotes all available time to the child; and performs the most menial tasks required for the care and maintenance of his child. The mother has displayed some lack of affection for her son. At. the time marital problems arose, Mrs. Parikh was not forced, but chose, to leave her husband and son and take, up residence with her parents. The child became ill during his stay in India. However, he recovered upon his return to the United States and there are indications that the Indian climate and diet were responsible for the son’s illness. Since the child has resided with his father continuously since November 12, 1969, it is reasonable to expect his relocation would disturb the physical and emotional stability he now enjoys. The paramount interest of this Court is the welfare of the infant Rajeev. All conflicting considerations, including here the “tender years” doctrine, must be subordinated to the child’s physical, intellectual, spiritual and emotional well-being. Com. ex rel. Thomas v. Gillard, 208 Pa. Superior Ct. 95 198 A. 2d 377 (1964). To award custody to the mother on the strength of the “tender years” doctrine, under these circumstances, would be to lose sight of the fact that “tender years” is merely the vehicle through which a decision respecting the infant’s custodial well-being may be reached where factual considerations do not otherwise dictate a different result. In the present case, we agree with the hearing judge in his finding that the child’s best interests dictate custody in the father. The order of the Superior Court is thus reversed and the order of the Court of Common Pleas, Family Division, is affirmed. Mr. Justice Mandebino concurs in the result.

Opinion by Mr. Justice Moschzisker, David Mintz, the plaintiff, sued in assumpsit to recover $3,786.07 for natural gas sold to the Tri-County Natural Gas Company, the defendant, under a written contract. Defendant filed an affidavit of defense, followed by a supplemental affidavit, wherein it averred a set-off, in effect, as follows: That, prior to the contract in suit, plaintiff and five other persons, naming them, entered into another written contract with defendant, whereby the former sold to the latter all the gas under and from a certain other tract of land; that, notwithstanding this contract of sale, plaintiff, before the accruing of the claim in suit, “without the consent of defendant” and “without right or warrant in law or equity,” entered upon the land covered by the lease just mentioned and disconnected defendant’s gathering lines, connecting them, with those of another gas company, thus “wrongfully” diverting gas -belonging to defendant to an amount in value exceeding plaintiff’s present claim; that defendant had a contract of sale with another gas company, under which the fluid wrongfully taken by plaintiff had been disposed of at a price, as stated in the affidavits of defense, exceeding the purchase price defendant was to pay therefor; that the act of plaintiff in wrongfully converting- and appropriating defendant’s gas, and the former’s “failure to deliver or permit the said gas to be delivered to defendant,” had prevented and was preventing the latter from making delivery thereof to its vendee, and that this had caused a loss to defendant of the difference between the price it was to pay for the fluid in question and the price at which it had sold the same, stating quantity and prices; hence, that there was “now due and owing from plaintiff to defendant, on account of gas abstracted and diverted by plaintiff as aforesaid, after deducting plaintiff’s claim [in suit], the sum of $598.27,” for which defendant asked a certificate; Judgment was entered in favor of plaintiff: for want of a sufficient affidavit of defense, and defendant has appealed. In a written opinion accompanying the order for judgment, the court below states the view that, since the cause of action averred by defendant against plaintiff, by way of set-off, is “a tortious taking of the property of defendant by plaintiff,” and, since the affidavits of defense contain no sufficient averment that the tort-feasor had sold the converted property, defendant’s claim is in trespass and, therefore, cannot be allowed as a set-off'in the present action of assumpsit; furthermore, that, since the affidavits are not.made by an officer of the defendant company, but by one'styling himself “chief accountant,” in that particular they áre insufficient for want of essential averments. ■ ' The defendant contends that it has a fight to waive tbé tort and "treat its .counterclaim against plaintiff as á breach of contract; and that, from this point of view, such claim is available as a set-off. The difficulty with this contention is that the contract alleged to be breached is not simply between the present plaintiff and defendant, but it is a written agreement, or gas lease, executed by plaintiff and five other persons, as lessors, and defendant, as lessee; if, therefore, plaintiff’s alleged tortious act, in diverting the gas thus sold to defendant, is to be treated merely as a failure to deliver in accordance with the contract, then all six lessors are jointly liable for this breach of their covenant, and defendant cannot of his own volition single out any one of them as the object of a suit based upon such default, which is the effect of the set-off averred in the affidavits of defense. The question whether a contractual promise, made by two or more persons, is joint, several, or joint and several, depends upon the intention of the parties as evidenced by the language employed in the agreement under consideration, the general rule being that, in the absence of an apparent intent to the contrary, such promises are presumed to be joint, and not several or joint and several : Philadelphia v. Reeves & Cabot, 48 Pa. 472; Pittsley v. King, 206 Pa. 193; Morrison v. American Surety Co., 224 Pa. 41; Boltz v. Muehlhof, 37 Pa. Superior Ct. 375, 380. As said by our present Chief Justice in Pittsley v. King, supra (p. 196), “It is a general presumption of law, Avhen two or more persons undertake an obligation, that they undertake jointly, and words of severance are necessary to overcome this primary presumption.” In the present instance, no such words appear; hence we say that the plaintiff and his fellow lessors are all jointly liable for a failure to deliver the oil sold to defendant, and the latter cannot maintain a suit against plaintiff alone for such a breach of contract. At common law, there are three distinct forms of obligations ex contractu, i. e., (1) joint, (2) several,'and (3) joint and several. In an action on the first, it was necessary to sue all the obligors together, or the.' survivors of them; on the second, the obligors had to be sued separately; but, on the third, the plaintiff could elect either to sue separately or jointly: 9 Cyc. 651 et seq.; 30 Cyc. 121. Except where changed by statute, these principles are still applicable: 9 Cyc. 654, and n. 35. Since the defendant cannot maintain a suit against the present plaintiff alone, for the breach of contract which it contends it has a right to take advantage of in this action, it follows that the defendant is not in a position to use this alleged breach in defense, as a set-off; for the rule requiring mutuality of debts, where set-off is pleaded, forbids the setting off of a joint debt against a separate one: 34 Cyc. 712, 727, 730. “Mutuality of debts is the essential circumstance in set-off”: Cramond et al., Exrs., v. Bank of U. S., 1 Binn. 64, 69; McDowell v. Tyson, 14 S. & R. 299; see also Milliken & Co. v. Gardner, 37 Pa. 456; Schalcher v. Bergdoll, 41 Pa. Superior Ct. 547, 550-1; and, on the general subject involved, Hibert v. Lang, 165 Pa. 439. The cases which hold that two or more persons sued jointly may set off a debt due by the plaintiff to any one of them (Childerston v. Hammon, 9 S. & R. 68; Stewart v. Colter, 12 S. & R. 252; Cochran v. Cutter, 18 Pa. Superior Ct. 282) have no application here, since they rest upon the theory that defendants have the right to agree among themselves as to the adjustment of the proceeds of the set-off, and hence no harm is done to any one. This rule also permits one of two joint obligees, with the consent of the other, to use the obligation as an equitable defense in an action by the obligor against one of them alone (Smith & Co. v. Myler & Aber, 22 Pa. 36; Cochran v. Cutter, supra), for, again, no harm is done; but a claim due from plaintiff and others jointly cannot be set off in an action by plaintiff alone, because to allow such a set-off would compel the latter to pay, individually, a debt for which he is liable only when called upon jointly with others. . None of the cases above cited is precisely like the one at bar, but a discussion of relevant ruling principles will be found therein. While we do not adopt the views of the learned court below as the basis of our decision that the counterclaim was properly refused, yet, for the reasons we have stated, it is apparent that, when treated as a breach of contract, defendant’s claim against plaintiff is no more available, by way of set-off, than when considered as an action sounding in tort; therefore, no1 error was committed in declining so to allow it in defense. The propriety of the ruling on the question of the attempted set-off is the sole point raised by appellant’s statement of the “question involved,” and we might well confine our consideration thereto (Spang v. Mattes, 253 Pa. 101, 103-4; Hopkins v. Tate, 255 Pa. 56, 62); but we shall briefly pass upon the point of practice referred to in the opinion of the court below. The affidavits in question not having been made by an officer of the defendant corporation, the court rightly viewed them as insufficient for want of essential averments. As President Judge Sloan says, “The affidavits are made by one A. J. Hamilton, chief accountant of the corporation, but it is not stated that he is an officer of the corporation, nor why the same was not made by an officer of the corporation, and it is not averred that he has personal knowledge of the facts..... .In the supplemental affidavit he states that he has a knowledge of the facts, and that he. is duly authorized by the corporation to make and file this supplemental affidavit; but there is nothing in the supplemental affidavit of defense that in any way relates to the original affidavit which would cure the defects in it [the original] ; and, as it [the supplemental] neither states nor alleges why it is not made by an officer of the corporation, it is open to the same objection.” In addition, it may be said that, although the affiant avers that he “believes and expects to be able to prove” the facts therein stated, in neither affidavit does he claim personal knowledge, or that he makes the averments thereof after, investigation or upon Information imparted to him by one possessing personal knowledge. In short, he neither claims to be an officer who would naturally possess a knowledge of tbe facts averred in tbe affidavits, nor does be attempt to state tbe sources of his information or even formally to allege that be makes tbe averments contained therein upon “information and belief”; moreover, be fails to aver bow be is “duly” authorized. Hence, tbe affidavits are insufficient to prevent judgment. True, tbe Practice Act of May 14, 1915, P. L. 483, provides that affidavits of defense “shall be sworn to by tbe defendant or some person having knowledge of tbe facts”; but this provision in no way changes tbe requirements laid down in our prior cases for such affidavits when made by agents of corporations who are not regular officers acting within tbe scope of their authority. For discussion of this point, see tbe opinion written by Mr. Justice Mestkezat in Wakely v. Sun Insurance office of London, Eng., 246 Pa. 268, 271, 274-5; and, on tbe general subject involved, see Griel v. Buckius, 114 Pa. 187, 190; see also Yeier v. Hanover Fire Ins. Co., 63 Pa. Superior Ct. 258; Galashevsky v. Camden Fire Ins. Co., 63 Pa. Superior Ct. 511; Yeier v. Camden Fire Ins. Asso., 66 Pa. Superior Ct. 571; and, for an example of a sufficient averment, see Giordano v. St. Paul Fire & Marine Ins. Co., 63 Pa. Superior Ct. 233, 236. Tbe assignment of error is overruled and tbe judgment is affirmed.

Opinion by Mr. Chief Justice Bell, The Executors of the Estate of Gilbert Mather took this appeal from a decree which entered judgment on the pleadings and ordered specific performance of a written stock option agreement. The Executors claim the agreement was invalid as an unreasonable restraint on alienation, because the optional purchase price was fixed at $1 per share, which was only a small fraction of the stock’s actual value. In order to decide this question a review of the relevant facts is necessary. Prior to 1926 Mather & Co. was a partnership consisting of Charles E. Mather, his two sons Victor C. Mather and Gilbert Mather, and his daughter Josephine C. Mather. In December, 1926, the partners incorporated their insurance business under the name of “Mather & Co.” Of the 1,000 authorized shares of common stock, 800 were issued as follows: Charles E. Mather 250 shares; Victor C. Mather 250 shares; Gilbert Mather 250 shares; Josephine C. Mather 50 shares. On December 22,1926, the four stockholders entered into a written agreement which provided, inter alia, that if any one of the four die or desire to sell his (or her) stock during his (or her) life he (or she) would first have to offer it to the others at $50 per share. Charles E. Mather died October 31, 1928. Victor and Gilbert exercised their respective options and bought the stock which was owned by (the executors of) Charles E. Mather for $50 per share. As a result of these purchases Victor C. Mather owned 375 shares, Gilbert Mather owned 375 shares, Josephine C. Mather owned 50 shares. On or about January 9,1933, 50 shares of stock held in the treasury but previously unissued, were issued to Charles E. Mather II, the son of Victor C. Mather. On November 6, 1939, Victor C. Mather, Gilbert Mather and Josephine C. Mather entered into a writ ten agreement which provided “. . . the said contract of December 22,1926 is hereby canceled and terminated by the unanimous consent of Victor C. Mather, Gilbert Mather and Josephine O. Mather insofar as the Fifty Shares of Common Stock of the said Mather & Co., held by the said Josephine C. Mather, is concerned, to the end that the said Josephine C. Mather may enter into an Agreement with Mather & Co. relative to and touching upon said Fifty Shares of Common Stock held by her.” On the same day, viz., November 6, 1939, Josephine C. Mather and Mather & Co. entered into a written agreement which pertinently provided: “That the said Josephine C. Mather agrees to sell and the said Mather & Co. agrees to buy said Fifty shares of Common Stock of Mather & Co., a Pennsylvania Corporation, from the personal representatives of the said Josephine C. Mather at her death at the rate of Fifty Dollars ($50.00) per share, the payment for same and the •transfer of same to be consummated within thirty days of the death of Josephine C. Mather. And the said Josephine C. Mather on her part agrees not to sell said Fifty Shares of Common Stock of Mather & Co. during her lifetime to any person or corporation other than the said Mather & Co. without first obtaining from the said Mather & Co. its consent in writing to such sale and transfer.” On the same day, viz., November 6, 1939, Victor,, Charles II and Gilbert entered into a written agreement which pertinently provided: “2. That in the event of the death of Gilbert Mather, or in the event of his offering his stock for sale during his life, he, for himself, his heirs, executors and administrators, agrees to sell, and Victor C. Mather and Charles E. Mather, 2nd agree to buy, in equal propor tions, at One Dollar (fl.OO) per share, any or all of the Common Stock holdings of the said Gilbert Mather. “4. That as to any or all of the above three provisions, the survivors or survivor among the class of purchasers in each case shall be entitled to the entire rights given the purchasers in each case. “5. That in the event that any of the aforesaid stock, when for sale by the stockholder, or his estate, is not purchased by those entitled to purchase, as aforesaid, then the holder of said stock, or his personal representatives shall have the right to sell same upon the open market without restrictions. “9. That the parties hereto further agree that the provisions of the aforesaid agreement and the rights to purchase thereunder shall accrue in each case not only as to the original holdings of each of the signatories hereto, but also to any and all additional holdings of common stock as may come into the ownership of any of the signatories hereto by operation of this agreement, or otherwise. “10. That the parties hereto further agree not to at any time sign or hypothecate or make any effort to transfer shares of Common Stock of Mather & Co. contrary to the terms of this agreement. “11. That the parties further agree that this agreement shall be binding upon the heirs, executors and administrators of the parties hereto . . .” Following the death of Victor C. Mather, his executors sold and Gilbert and Charles II, purchased on July 16, 1943, in equal proportions at $1.00 per share, all of the common stock of Victor, in accordance with the aforementioned agreement of November 6, 1939. After this purchase, the stock was held as follows: Gilbert Mather 562-1/2 shares; Charles E. Mather, II 237-1/2 shares; Josephine C. Mather 50 shares. On June 5, 1950, Gilbert sold 61-1/2 shares to Charles II at $1.00 per share, making the holdings: Charles E. Mather, II 299 shares; Gilbert Mather 501 shares; Josephine C. Mather 50 shares. Josephine C. Mather died August 12, 1953, and her 50 shares were sold to Mather & Co. at $50 per share, as per the above mentioned agreement between her and Mather & Co. dated November 6, 1939. Following the death of Gilbert on October 23, 1959, Charles II tendered $501 to the Executors of the Estate of Gilbert Mather for the purchase of Gilbert’s stock. At the time of the tender, the stock of Mather & Co. was carried on the books at $444.92, and its actual value was not less than $1,060 per share. After the tender had been refused, Charles E. Mather II filed a petition in the Orphans’ Court asking for specific performance of the aforesaid agreement of November 6, 1939. It is well settled that a summary judgment either on the pleadings or after preliminary objections will be entered only in a case which is clear and free from doubt: Schrader v. Heath, 408 Pa. 79, 83, 182 A. 2d 696; Robinson v. Philadelphia, 400 Pa. 80, 82, 161 A. 2d 1; Vrabel v. Scholler, 369 Pa. 235, 85 A. 2d 858, 860; London v. Kingsley, 368 Pa. 109, 81 A. 2d 870; Waldman v. Shoemaker, 367 Pa. 587, 589, 80 A. 2d 776. In order to determine the meaning of the agreement, we must examine the entire contract since it is well settled that in construing a contract the intention of the parties governs and that intention must be ascertained from the entire instrument taking into consideration the surrounding circumstances, the situation of the parties when the contract was made and the objects they apparently had in view and the nature of the subject matter. Betterman v. American Stores Co., 367 Pa. 193, 80 A. 2d 66; Waldman v. Shoemaker, 367 Pa. 587, 589, 80 A. 2d 776; Scholler Trust, 403 Pa. 97, 169 A. 2d 554; Wolters Estate, 359 Pa. 520, 59 A. 2d 147. Cf. also Walton Estate, 409 Pa. 225, 231, 186 A. 2d 32; Althouse Estate, 404 Pa. 412, 416, 172 A. 2d 146. In addition to the hereinabove recited provisions, this agreement provided: “Whereas: The parties, for their mutual benefit, desire to perpetuate the business of Mather & Co., and the ownership of the Common Stock thereof in the Mather family.” * When the family changed the form of the family business from a partnership to a corporation their language and intent was crystal clear — they wanted and intended to keep the stock of Mather & Co. in the Mather family if any Mather wanted it; and to carry out this intent they gave the options, rights and obligations so clearly and specifically set forth in the aforesaid agreements. The Court, in Bechtold v. Coleman Realty Co., 367 Pa. 208, 214-215, 79 A. 2d 661, pertinently said: “. . . ‘By-laws constitute in effect a contract between the different members and the corporation’ ... a by-law [which] required the corporation to repurchase a stockholder’s shares upon his death or removal from the vicinity was held to be immune from repeal. And see Constructors Association of Western Pennsylvania v. Seeds, 142 Pa. Superior Ct. 59, 15 A. 2d 467 (1940), holding a by-law of an incorporated association con stitutes an agreement between tbe association and its members and is subject to tbe same rules of construction as a written contract signed by all parties. “There remains but to be said that by-laws restricting the transfer of stock as here have been recognized in this State as serving a useful purpose, lawful and enforcible: Garvin’s Estate, 335 Pa. 542, 6 A. 2d 976 (1939); Fitzsimmons v. Lindsay, 205 Pa. 79, 54 A. 488 (1903); Garrett v. Philadelphia Lawn Mower Co., 39 Pa. Superior Ct. 78 (1909).” In Garrett v. Philadelphia Lawn Mower Company, supra, the Court said (page 86) : “‘Neither is the objection that the agreement is in restraint of alienation sufficient. Such agreements are quite common among partners as to their shares in the firm assets and are enforced by courts without hesitation. No reason of overruling public policy is apparent why they should not also be sustained in relation to shares of stock in what is really only a private trading corporation.’ In Lindsay’s Estate, 210 Pa. 224, that agreement was finally enforced, and in speaking for the court Mr. Justice Brown said: ‘In Fitzsimmons v. Lindsay, 205 Pa. 79, we held that the agreement of the stockholders of the James C. Lindsay Hardware Company by which each subscribing stockholder acquired a preferred right by way of option to purchase the shares of any one who died or who might withdraw from the business was a binding contract supported by a mutual and sufficient consideration.’ ” The aforesaid written agreements, including the one in suit, were made between mature members of a close family and it is conceded that there was no overreaching or fraud or deceit. The facts and the lawfulness of the purpose were admitted by appellants. However, appellants argue that the agreement was an invalid restraint on alienation because the price was clearly very unfair and unchangeable. The contention that a stock option or purchase price must be flexible is unrealistic and utterly devoid of merit, even if we overlook the fact that the price was not unchangeable since in 1939 the parties entered into the present written agreement changing the price on options, purchases and sales from $50 to $1. Moreover, we repeat, the agreement clearly and expressly set forth the intention of all the parties — they wanted to keep the family business in the Mather family and to give each other and their personal representatives the options, rights and obligations hereinabove recited. There was a limited but not an absolute restriction on sale, since if the option was not exercised by a living signatory to the family agreement “the holder of said stock or his personal representatives shall have the right to sell same upon the open market without restrictions.” In this free land of ours where even a State cannot impair the obligations of a contract, we cannot understand how it can be seriously contended that this written family agreement — and family agreements are always favored in the law — when made by adult business men without any overreaching or fraud, is “a scrap of paper”. Not only was there no overreaching or fraud but Gilbert Mather himself in 1950 bought from Victor Mather’s executors 187-1/2 shares at $1 per share and in 1950 sold 61-1/2 shares of Mather & Co. stock at a price of one dollar a share to Charles E. Mather, II. In the light of this, it seems anomalous that Gilbert’s executors contend that the agreement was valid for Gilbert, but invalid for Charles. Appellants contend, we repeat, that this agreement is an unreasonable restraint on alienation. The classic example of the application of “the restraint on alienation” principle is furnished by the Rule against Perpetuities. The basic underlying purpose of that Rule (which prohibited the limitation or fettering of an estate for longer than lives in being and 21 years thereafter together with the period of gestation) was to prohibit unreasonable restraints on alienation of property. Cf. Newlin Estate, 367 Pa. 527, 80 A. 2d 819; Lewis Estate, 349 Pa. 571, 573, 37 A. 2d 482; Ledwith v. Hurst, 284 Pa. 94, 130 A. 315; Hale v. Scanlon, 88 Pa. D. & C. 506. 41 Am. Jur., §6, p. 53, Perpetuities and Restraints on Alienation, states: “Purpose of Rule. — The underlying and fundamental purpose of the rule against perpetuities is founded in the public policy of preventing the fettering of the marketability of property over long periods of time by indirect restraints upon its alienation.” Barton v. Thaw, 246 Pa. 348, 92 A. 312; Mifflin’s Appeal, 121 Pa. 205, 15 A. 525. A similar question was raised in Allen v. Biltmore Tissue Corporation, 2 N.Y. 2d 534 (Court of Appeals of New York, April 4, 1957), 141 N.E. 2d 812, where the Court said: “The question posed, therefore, is whether the provision, according the corporation a right or first option to purchase the stock at the price which it originally received for it, amounts to an unreasonable restraint. In our judgment, it does not. “The courts have almost uniformly held valid and enforcible the first option provision, in charter or bylaw, whereby a shareholder desirous of selling his stock is required to afford the corporation, his fellow stockholders or both an opportunity to buy it before he is free to offer it to outsiders. See, e.g., Penthouse Properties, v. 1158 Fifth Ave., supra, 256 App. Div. 685, 11 N.Y.S. 2d 417; Hassel v. Pohle, 214 App. Div. 654, 212 N.Y.S. 561; Cowles v. Cowles Realty Co., 201 App. Div. 460, 194 N.Y.S. 546; Palmer v. Chamberlin, 5 Cir., 191 F. 2d 532, 27 A.L.R. 2d 416; Doss v. Yingling, 95 Ind. App. 494, 172 N.E. 801; Baumohl v. Goldstein, 95 N.J. Eq. 597, 124 A. 118; see, also, 8 Fletcher, op. cit., §4205, p. 787. The courts have often said that this first option provision is ‘in the nature of a contract’ between the corporation and its stockholders and, as such, binding upon them. Hassel v. Pohle, supra, 214 App. Div. 654, 658, 212 N.Y.S. 561, 565; see, also 8 Fletcher, op. cit., §4194, p. 736. In Doss v. Yingling, supra, 95 Ind. App. 494, 172 N.E. 801 a leading case on the subject and one frequently cited throughout the country, a by-law provision against transfer by any stockholder — there were three — of any shares until they had first been offered for sale to other stockholders at booh value, was sustained as reasonable and valid, 95 Ind. App. at page 500, 172 N.E. at page 803: ‘The weight of authority is to the effect that a corporate by-law which requires the owner of the stock to give the other stockholders of the corporation ... an option to purchase the same at an agreed price or the then-existing booh value before offering the stock for sale to an outsider, is a valid and reasonable restriction and binding upon the stochholders.’” Another familiar example of the application of the restraint on alienation principle, is an attempted fettering of an absolute gift or grant of a fee, by a restraint on alienation or sale. Cannistra Estate, 384 Pa. 605, 121 A. 2d 157; Sowers Estate, 383 Pa. 566, 119 A. 2d 60; Stineman v. Stineman, 382 Pa. 153, 114 A. 2d 137; Grossman v. Hill, 384 Pa. 590, 595, 122 A. 2d 69. More recently the principle has been applied, on Constitutional grounds, to restraints on alienation to per sons except those of the Caucasian race. Shelley v. Kraemer, 334 U.S. 1; Barrows v. Jackson, 346 U.S. 249. Lauderbaugh v. Williams, 409 Pa. 351, 186 A. 2d 39, relied upon by appellants, is clearly distinguishable on its facts, and to extend “the restraint on alienation” principle to a case like this, would be worse than a “Procrustean stretch.” To summarize: We find no merit in appellants’ contention that where there is no overreaching or fraud, the great difference between the sale price and the actual value of the stock is sufficient, alone or with the aforesaid additional facts, to invalidate the agreement or defeat specific performance. Decree affirmed, costs to be paid by appellants. The record does not disclose the purchase price. There were similar provisions with respect to each of the other two signatories. The record does not disclose the book or actual value of the stock on other dates except as follows: As of December 22, 1926, the book value and the actual value of the stock is unknown; as of November 6, 1939, the book value of the stock was zero while the actual value was not less than $50 per share. Italics throughout, ours. Apparently, what is sauce for the goose is not sauce for the gander. And numerous eases cited in footnote 2 on page 595. Grossman v. Hill was overruled on a procedural point.

Opinion by Mr. Justice O’Brien, This case comes to us on appeal from a judgment of sentence of the Court of Quarter Sessions of Northampton County. The defendant was charged with operating his motor vehicle at the rate of seventy miles per hour on Route 22 in Hanover Township, Northampton County. An information was filed against the defendant with a justice of the peace in Hanover Township, by officers of the Pennsylvania State Police. The defendant-appellant waived the hearing before the justice of the peace and the matter was heard de novo by the Court of Quarter Sessions of North ampton County. After presentation of the Commonwealth’s evidence the appellant moved for a judgment of not guilty because the Commonwealth had failed to prove that official warning signs had been erected on the highway, indicating that radar was in operation, as provided by the 1961 Amendment to The Vehicle Code (Act of April 28, 1961, P. L. 108, §2, 75 P.S. §1002). The court below took judicial notice of the existence of official warning signs on Route 22. This appeal is before us on “broad certiorari” and it is our duty to determine whether the findings of the court below are supported by competent evidence and that the lower court committed no error of law. First Bellefonte Bank v. Myers, 410 Pa. 298, 301, 188 A. 2d 7262 (1963). It is our opinion that the trial judge erred in taking judicial notice of the existence of warning signs along Route 22. In order to convict under the act, the Commonwealth must prove the factors listed in the act. The existence of signs on the road indicating that radar is in use is a necessary element of the Commonwealth’s case. Commonwealth v. Browning, 5 Chester 76. The Commonwealth has the burden of proving all of the elements of its case by competent evidence. In Commonwealth v. Perdok, 411 Pa. 301, 192 A. 2d 221 (1963), we reversed a radar speeding conviction for want of competent evidence of the fact that the apparatus was of a type approved by the Secretary of Revenue, another of the requisites of the statute. The effort which the Commonwealth would have had to expend to prove the existence of warnings signs is small and this failure was to the benefit of the appellant and his motion should have been granted. The judgment of the court below is reversed.

Mr. Justice Paxson delivered the opinion of the court, October 23d 1876. This cause was contested step by step in the court below, and pressed with marked zeal and ability here. The Commonwealth was met at the threshold of its case with a motion to quash the array of grand and petit jurors, and also to quash the indictment. Both motions were overruled, and this action of the court below forms the subject of the first and second specifications of error. We will consider briefly the reasons assigned in support of these motions respectively. It was urged that there was irregularity in regard to the custody of the jury-wheel, the sealing of the same, and in the manner in which the keys were kept. It appears from the evidence taken in support of the challenge to the array, that the wheel was deposited by the jury commissioners in the vault of the county commissioners’ office, after being first placed in a chest, and the chest locked. The clerk of the county commissioners was also the clerk of the jury commissioners, and was duly sworn. It was therefore in the actual charge of their own sworn officer. After the drawing of the jurors for the February Term, the sheriff and one at least of the jury commissioners sealed the wheel. The other jury commissioner was not sworn. The sheriff says: “I have a seal. Mr. Etter has also a seal. My seal is on this wheel. These impressions are not with the same seal. Two seals were there, I think — that is my impression.” It also appeared that the sheriff kept the key of the wheel in his desk at his office, to which his son, who is also his deputy, had access. The desk was not kept locked all the time. The second section of the Act of 10th April 1867, Pamph. L. 62, provides, that “ the said jury-wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof in the custody of the sheriff of said county.” We must give this section a reasonable interpretation. It does not designate where the wheel shall be kept, and provides no place in which the jury commissioners may deposit it. It was not intended that they should carry it to their private residences. In many instances they reside several miles from the county seat. Its removal from the seat of justice would be as inconvenient as unnecessary. It is difficult to see what better disposition these commissioners could have made of the wheel than to deposit it in a vault attached to one of the public offices, where it was under the immediate charge of their own sworn officer. It was clearly in their custody within the meaning of the law. The objection that the wheel was not properly sealed is not made out by the proof. The onus was upon the party making the challenge, and it has not been sustained. In Brown v. Commonwealth, 23 P. F. Smith 322, there was proof that the wheel was not sealed as required by law. Here there was positive proof that the sheriff and one commissioner did seal, and no proof that the other did not. It was the duty of the plaintiffs in error to have called the other commissioner. That he also sealed is probable from the testimony of the sheriff. In the absence of any negative proof the presumption is that his duty in this respect was properly performed. The sheriff had the custody of the key. In that the law was complied with. We think, however, that it was carelessly kept. Officers charged with such delicate duties cannot be too exact in the performance of them. A prudent regard for the public interest requires that the key of the jury-wheel should be kept where it is not accessible to any one but the person charged with its custody. We do not see much force in the further objection that the minimum number of an Oyer and Terminer panel, viz.: forty-eight, were not in point of fact summoned. One of the names drawn from the wheel was returned by the sheriff “not found,” and one as “ dead.” This of course reduced the panel to that extent. Sect. 113 of the Act of 14th of April 1834, Pamph. L. 39, requiring forty-eight jurors to be summoned and returned as petit jurors in the Oyer and Terminer, must be read in connection with sects. 118,119 and 125 of said act. Sect. 113 refers to the venire, and the manifest meaning of it is that the venire shall require that at least forty-eight jurors shall be drawn. Sect. 118 provides that so many persons shall be drawn as- shall be required by the writ of venire. By sect. 119 the slips containing the names of persons removed or dead are to be destroyed and other names to be drawn in their stead until the panels are complete. This of course means where the death or removal of the persons whose names are drawn was known to the sheriff and commissioners at the time of the drawing. The 125th sect, provides that the sheriff shall summon at least ten days before the return day of the venire the persons whose attendance shall be thereby required. Taken together we do not think that these provisions of the Act of 1834 require more than that forty-eight names shall be drawn from the wheel, and that in the absence of any knowledge at the time that any of the persons whose names are so drawn are dead or removed, the sheriff shall summon so many thereof as can be found within the county. This we believe has been the practice generally throughout the state, and is entirely consistent with Foust v. Commonwealth, 9 Casey 338. In that case forty-eight persons were summoned, but one of them was disqualified by reason of not residing within the county and being an alien. He was therefore not a juror and of no more service than the persons returned by the sheriff in this case as “not found” and “dead.” It is not a right of a defendant to have forty-eight jurors in actual attendance in the .Oyer and Terminer. If all are summoned and attend, the court may excuse some of them, and this cannot be assigned for error: Jewell v. Commonwealth, 10 Harris 94. Nor can a defendant be prejudiced thereby. It does not impair his right of challenge. He has a right to his peremptory challenges and as many more as he can show cause for, while special venires are provided by law in case the panel should be exhausted. It was clearly no ground of challenge that the sheriff and jury commissioners did not destroy the slips containing the names of the jurors absent or deceased, and draw others in their stead. It does not appear that such death or absence was known to either the sheriff or jury commissioners when the names were drawn. There was therefore no omission of duty on their part. Nor do we see any force in the further objection that the names of persons exempted at the February Term from serving as jurors were not returned to the wheel at the time the present panel was drawn. The 135th sect, of the Act of 14th April 1834, Pamph. L. 364, provides that “ the name of every person selected, drawn, summoned and making default as aforesaid; also the name of every person who shall be excused from serving, shall be returned by the sheriff and commissioners to the wheel from which it was taken at the time of the next drawing from the said wheel for any of the courts of such county,” &c. This duty was neglected. The names were not returned to the wheel as they should have been. But we are unable to see how the defendants ifere injured by this omission. It is a matter of which they have no right to complain. This section. of the Act of 1834 was intended to secure equality in the performance of jury duty, and was not for the purpose of keeping the names in the jury wheel for the benefit of defendants. They have no such right. Otherwise a person who should be tried at the commencement of the year would possess superior advantages over those tried at its close when the wheel is comparatively empty. It was urged, however, that the array should be quashed because “ it does not appear from the return to the precept that the jurors were legally drawn, how they were drawn or that they were in fact drawn at all. Nor does it appear from the record that they were legally summoned.” I have examined the record with some care, and it discloses no return to the venire by the jury commissioners. This is certainly an irregularity. It should appear from the record that the names of the panel were drawn from the wheel in the manner required by law. This can only appear by the return of the sheriff and jury commissioners. It is true the Act of Assembly 'does not require the jury commissioners to return the venire. But this is a common-law duty, and needs no legislative command. It is the duty of every officer to whom a writ is directed to make return of the manner of its execution, and such return is the appropriate evidence of that fact. This omission could and ought to have been supplied in the court below as soon as its attention had been called to it by an order upon the jury commissioners to return the venire. It was but an amendment of the record, and a record may be amended even after writ of error or certiorari lodged in the office: In re Election of Sheppard, 27 P. F. Smith 297. Serious as this irregularity is we would hesitate to reverse upon this ground, especially in view of the Act of 21st of February 1814, 6 Sm. Laws 11, Br. Purd. 388, pi. 56, and the construction which said act received in Dyott v. Commonwealth, 5 Whart. 67. The error is more formal than substantial, and the court below appears to have had such evidence before it as satisfied its conscience that the law had been complied with in all important particulars. Yet as this judgment must be reversed for other reasons it is proper to call attention to what we regard as a loose and careless practice. What has been said applies as well to the motion to quash the indictment as to the • challenge to the array. In support of the former motion, there was, however, the additional reason that two of the grand jurors were stockholders in the National Bank of Chambersburg. This was no ground to quash the indictment. It might have been a ground of challenge as to the particular jurors. It is well settled that a grand juror may be challenged for cause. This is the current of the English authorities. It was allowed in this country in the trial of Col. Burr, and in this state in an Oyer and Terminer case tried before Tilghman, C. J., and Breokin-RiDfiE, J., in 1814, 2 Browne 323. We see no merit in the third specification. The witness, John L. Black, had sufficiently identified the defendant Johnston to permit his statement in regard to the satchel to go to the jury and it was not competent for the defendants’ counsel to interrupt the examination in chief at this point in order to inquire into the opportunities of the witness of knowing Johnston.. Such cross-examination was competent, but not at that particular time. The fourth, fifth and sixth specifications are also without merit and need not be discussed. The admission of the “jury record,” referred to in the seventh specification, was of doubtful propriety, as it was not sworn to, and does not appear to have been kept in pursuance of any Act of Assembly. The offer was to the court, not to the jury, and is unimportant. The eighth specification is wholly unsustained. The order in which counsel shall sum up is in the discretion of the court below, and is not assignable for error. The learned judge was right in declining to affirm the defendants’ first point, referred to in the ninth specification. The evidence for the Commonwealth, if believed by the jury, was sufficient to make out the offence of burglary, either at common law or under the statute. There was error in the answer to the defendants’ second point, embraced in the tenth specification, but it was in their favor. They have, therefore, no cause of complaint. We might well stop here, but as this case must go back for another trial, we deem it our duty to indicate the principles upon which this branch of it should be ruled. It is established by numerous authorities that there may be a constructive breaking. This may be done by an act in fraudem legis, or by fraud not carried on under cloak of legal process. Accordingly it has been held, that where thieves came to a house in the night-time, with intent to commit a robbery, and knocking at ‘ the door, pretending to have business with the owner, and being by such means let in, robbed him, they were guilty of burglary: Le Molt’s Case, Kel. 42; 2 Hawk. P. C. 131; 1 Russell on Crimes 793; 1 Hale P. C. 552; 2 Arch. Cr. Law 279. The evidence for the Commonwealth upon this point was that the defendants (plaintiffs in error) came to-the door of Mr. Messersmith’s house, after dark, on the evening of the 24th of March last. The witness Kindline says: “ I opened the door, and Rolland and another man were outside. * * * I did not know the other man. Rolland asked whether Mr. Messersmith was in. I said he was not, that he had just walked out. . He said he would like to see Messersmith; that he had a friend from New York who wanted to transact a little business with him. He introduced his friend as Mr. Johnston. * * * He said ‘ Good evening. Perhaps we will call later in the evening.’ ” They did call about twenty minutes afterwards, rang the bell and were admitted by Mr. Kindline. Messersmith had returned, and they were shown into his room. Rolland introduced Johnston as the man of whom he had previously been speaking to Messersmith in regard to the purchase of a farm. Some other conversation occurred in reference to matters of alleged business, when Mr. Messersmith was suddenly seized and the robbery attempted. There was evidence here to go to the jury of a constructive breaking; of a trick and a fraud by means of which the defendants had obtained admission to the house. The learned judge of the court below evidently regarded the first attempt to enter as a trick, but held that inasmuch as they did not obtain admission then, but went away and returned in the course of twenty minutes, and were admitted without any further reference to their pretended business, such entry was not a constructive breaking. This was error. It was for the jury to say whether upon all the evidence they believed the first call at Mr. Messersmith’s house was for the purpose of gaining admission by fraud and artifice, with intent to commit a felony therein ; and whether the second call, when they actually obtained admission, was a part of the same transaction in pursuance of such previously formed design. The learned judge was right in refusing to affirm the prisoners’ third point. But it was error, as has already been stated, to say that there “ is not such evidence of fraud or trick practised by the the prisoners to gain admission into the house as will constitute a breaking.” It was also error to say, in the same sentence, that • “ the entry of the prisoners may have been a burglarious entry without breaking.” There is no such thing as burglary in Pennsylvania without a breaking, either actual or constructive. We shall refer to this more fully when we come'to the last assignment of error. ^ The answer to the fourth point was error. The mere unlatching 4 or breaking of a door in an attempt to escape is not burglary in this Instate. We do not think it was ever so at common law. It is true ] it was at one time asserted to be so by Lord Bacon and other eminent English lawyers, but it was denied by authority of equal weight; notably by Sir Mathew Hale, by Lord Holt and by Trevor, C. J., in Clark’s Case, 2 East P. C. Ch. 15; in 1 Hale 554, where it is said: “ If a man enter in the night-time by the doors open, with the intent to steal, and is pursued, whereby he opens another door to make his escape, this, I think, is not burglary, for fregit et exivit non fregit et intravit.” And see Black. Com., vol. 4, p. 223. This difference of opinion ’among eminent jurists in England led to the passage of the Statute of 12 Anne, which, after referring to the doubt on the subject, provides, that a breaking out of a dwelling-house by a burglar in the night-time, in an attempt to escape, was a sufficient breaking to sustain a conviction. This statute was subsequently repealed by the statute of 7 & 8 Geo. 4, ch. 27, and reenacted by 7 & 8. Geo. 4, ch. 29. The passage of the Act of 12 Anne is strong evidence that it was not the common law. No such | statute was ever enacted in Pennsylvania, and I am not aware of ! any decision recognising such a rule here. In the fifth report of the English commissioners on criminal law, we find the following remarks on burglary, which are so forcible, and bear so directly upon this point, as to justify their admission here: “By the statute of 12 Anne, ch. 1, § 7 (subsequently repealed and re-enacted), the crime of burglary was extended to the case of an offender who, having committed a felony in a dwelling-house, or having entered therein with intent to commit a felony, afterwards broke out of such dwelling-house in the night-time. This extension does not, we think, rest upon just principles. After a felony has been committed within the dwelling-house, the offence is not in reality aggravated by lifting the latch of a door, or the sash of a window, in the night-time, in order to enable the offender to escape. A breaking-out, indeed, may be an innocent act, as it may be committed by one desirous of retiring from the further prosecution of a crime, and the extension of the law of burglary to such a case is not warranted by the principles upon which the law is founded, inasmuch as a circumstance not essential to the guilt of the offender, or the mischief of the act is made deeply essential to the crime. It is ineffectual, even with a view to the object proposed; the pretext for the conviction fails in the absence of a breaking out, which is a casual , and uncertain circumstance.” The thirteenth and fourteenth specifications raise a question that ' is not free from difficulty. It was not error to refuse to affirm the defendant’s seventh point for the reason that two of the counts of the indictment charge the offence of burglary at common law, to wit: the breaking and entering a dwelling-house in the night-time with the intent to commit a felony. But the case requires from us a construction of the 135th section of the Act of 31st March 1860, Pamph. L. 415, and of the second section of the Act of 22d April 1863, Pamph. L. 531. The first-named act provides that “if any person shall by night wilfully and maliciously break or enter into any dwelling-house * * * with an intent to commit any felony whatever, whether the felonious intent be executed or not, the person so offending shall, on conviction, be deemed guilty of felonious burglary,” &c. It will be seen that, by the terms of the act, an entry without breaking, in the night-time, constitutes felonious burglary. Then came the Act of 1863, before mentioned, which provides that, “ if any person shall in the day-time break and enter any dwelling-house, * * * or wilfully and maliciously, either by day or by night, with or without breaking, enter the same with intent to commit any felony therein, the person so offending shall be guilty of felony,” &c. I have given so much of each act as relates to dwelling-houses. The learned judge of the court below held that the Act of 1863 was “ intended to punish and provide for the breaking and entering a dwelling-house by day-time, and of other buildings by day or by night. Any other reading of this section makes it cover what was burglary at common law, which was not the legislative intention.” The Act of 1863 is an\ exact rescript of the 136th section of the Act of 31st of March 1860, with the exception that the words “ with or” are interpolated so as to make it read “ wilfully and maliciously, either by day or by night, with or without breaking, enter the same,” &c. That the 136th section of the Act of 1860 was intended to apply to cases where the breaking takes place in the day-time, or there is an entry by day or night without breaking, with intent to commit a felony, is manifest. This was the view taken of it by this court in Hollister v. Commonwealth, 10 P. F. Smith 105. But the Act of 1863 supplied the aforesaid section of the Act of 1860, and extends to an entry by night, with or without breaking. Then as to the 135th section of the Act of 1860. By its terms it makes an entry at night, with or without breaking, felonious burglary. If we construe this act literally, it is supplied by the Act of 1863, and the crime of felonious burglary no longer exists by statute in this state. The offence is reduced to the grade of an ordinary felony, punishable by four years’ imprisonment. For it is impossible for two statutes defining exactly the same offence, the one punishing it as felonious burglary, and the other as a simple felony, to stand together. Under which statute shall a prisoner be sentenced ? How shall he be tried ? In the Quarter Sessions, or the Oyer and Terminer ? These are matters that must not be left to conjecture, to be guessed at upon the trial, or decided upon the caprice of the judge. It is therefore our duty to put such a construction upon these statutes as will most effectually carry out the legislative intent, and produce a consistent and harmonious system. In view of all this legislation, we have no doubt it was the intention of the legislature, by the 135th section of the Act of 1860, to define and punish the common-law offence of burglary, and that the word “ or” in said act, “ break or enter,” was introduced by mistake or inadvertence; for the sueceeding section (136) of said act proceeded to punish the offence of entering a dwelling-house in the night-time without breaking. It is made a lighter offence, a simple felony, punishable by four years’ imprisonment. To read the 135th section, therefore, to break or enter, is inconsistent with the 136th section. We are therefore led to the conclusion that the word “or” in the 135th section should be read “and,” which would make the offence that of burglary at common law. Such a mode of construing a statute is not without precedent. It was done by this court in Murray v. Keyes, 11 Casey 334; Bollin v. Shiner, 2 Jones 205; Foster v. Com., 8 W. & S. 77. It is said in Dwarris on Statutes 772, that “ ‘ and’ is not always to be taken conjunctively. It is sometimes, in the fair and rational construction of a statute, to be read as if it were ‘or,’ and taken disjunctively and distributively.” Giving to the 135th section of the Act of 1860 the construction we have indicated, it harmonizes perfectly with the 136th section of the same act so far as relates to dwelling-houses; the former punishing as felonious burglary the common-law offence of breaking and entering a dwelling-house in the night-time with intent to commit a-felony, and the other punishing a lesser offence, partaking of the nature of burglary, viz., when the breaking takes place -in the day-time, or there is an entry by day or by night without breaking. Then we have the Act of 22d of April 1863, the 2d section of which interpolates the words “with or” into the 136th section of the Act of 1860, yet in all other respects leaves the latter act intact. What was the legislative intent in the Act of 1863 ? Was it intended that the words “with or” should apply to dwelling-houses? The whole subject was completely covered by the legislation contained in the 136th and 136th sections of the previous Act of 1860. They provide for, 1st, breaking and entering by night; 2d, breaking and entering by day; and 3d, entering by day or by night without breaking. There was therefore no reason why the words “ with or” should be applied to. dwelling-houses, but on the contrary ample reasons why they should not. It will be observed that' the 136th section, with the single exception of dwelling-houses, relates to a class of buildings entirely different from those embraced in the 136th section. As to such buildings it is not difficult to see why the legislature enlarged the offence by the Act of 1863 so as to make it the entering, either by day or by night, with or without breaking. We are of opinion that as to the 136th section, the word “or,” must be read “and,” and that the words “with or ” in the second section of the Act of 22d April 1863, were not intended to apply to dwelling-houses. This construction makes the legislation referred, to a consistent and harmonious whole. We are not surprised, in view of the wording of the 135th section of the Act of 1860, that the learned judge of the court below instructed the jury in answer to the defendant’s fifth point, that there could be a conviction under the counts which charged an entry without breaking. But under the construction which we have placed upon said section, it was error. The judgment is reversed and set aside, and the record remitted to the Oyer and Terminer for another trial. And it is further ordered that the inspectors and warden of the Eastern Penitentiary, at the city of Philadelphia, surrender the bodies of Ralph L. Rolland and B. Johnston, the plaintiffs in error, to the high sheriff of. Franklin county for custody and trial in due course of law.

OPINION OF THE COURT EAGEN, Justice. The appellant, Eddie Leonard Miller, was adjudged guilty following a non jury trial of criminal conspiracy and criminal mischief, arising out of the felling and destruction of the Snowy Mountain Fire Tower at South Mountain, Franklin County. Post trial motions were filed and denied, and a term of imprisonment was imposed on Miller for the criminal mischief conviction. Sentence was suspended on the criminal conspiracy conviction and Miller was placed on probation for a period of seven years, said probation to commence upon the expiration of the sentence imposed on the criminal mischief conviction. An appeal was then filed in the Superior Court which subsequently affirmed the judgments of sentence. We granted allocatur, limited to a determination of whether Miller was properly convicted and sentenced for both the crime of criminal conspiracy and the crime of criminal mischief. It has long been the law of this Commonwealth that the crime of criminal conspiracy does not merge with the completed offense which was the object of the conspiracy. Commonwealth ex rel. Perry v. Day, 181 Pa.Super. 73, 121 A.2d 904 (1956); Commonwealth v. Dunie, 172 Pa.Super. 444, 94 A.2d 166 (1953); Commonwealth v. Downer, 159 Pa.Super. 626, 49 A.2d 516 (1946); Commonwealth v. Corcoran & Corcoran, 78 Pa.Super. 430 (1922). That is, the law has always considered criminal conspiracy and the completed substantive offense to be separate crimes. Miller, while recognizing the current status of the law in Pennsylvania, nevertheless contends that the Legislature, by its adoption of the Crimes Code, intended to effect a change in the existing law. He argues that the tenor of the Crimes Code evidences a legislative intent to limit multiple prosecutions and convictions of a defendant for conduct which may establish the commission of more than one offense. However, even attributing to the Legislature the intent to limit multiple prosecutions and convictions in the manner articulated by Miller, it must be noted that the Crimes Code contains no provision barring the prosecution and conviction of criminal conspiracy when that criminal conspiracy consists only of the conspiracy or preparation to commit another crime for which the defendant stands charged. And no such provision is contained in the Crimes Code despite the fact that the Model Penal Code, upon which the Crimes Code is based, did contain a specific provision mandating the merger of criminal conspiracy into the completed substantive offense. Since statutes are not presumed to make changes in the rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions, Rahn v. Hess, 378 Pa. 264, 270, 106 A.2d 461 (1954); Gratz v. Insurance Co. of North America, 282 Pa. 224, 234, 127 A. 620 (1925); Commonwealth v. Hartung, 156 Pa.Super. 176, 39 A.2d 734 (1944), we are constrained to hold that the failure of the Legislature to include, within the Crimes Code, any provision mandating the merger of criminal conspiracy into the completed substantive offense indicates that no change in the existing law was intended. Moreover, where the Legislature intended to preclude multiple prosecutions and convictions, it manifested this intention clearly and precisely. Cf. Glass v. Bureau of Traffic Safety of Pennsylvania, 460 Pa. 362, 367-368, 333 A.2d 768 (1975). Thus, Section 906 of the Crimes Code provides: “A person may not be convicted of more than one offense defined by this chapter [inchoate crimes] for conduct designed to commit or to culminate in the commission of the same crime.” And Section 3502 of the Crimes Code provides: “(d) Multiple convictions. — A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.” In the absence of any similar provision manifesting a legislative intent to preclude prosecution and conviction for both criminal conspiracy and the completed substantive offense, we may not impute such an intent to the Legislature. Order affirmed. . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1,18 Pa.C.S.A. § 903. . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1,18 Pa.C.S.A. § 3304. . 234 Pa.Super. 146, 339 A.2d 573 (1975). . We have Independently reviewed the evidence presented at trial and are satisfied it was sufficient to support the convictions. . The rationale for this distinction is well-stated by the Supreme Court of the United States in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). The Court therein noted: “ ‘This settled principle derives from the reason of things in dealing with socially reprehensible conduct: collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime make more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.’ ” Id. at 778, 95 S.Ct. at 290, quoting from Callanan v. United States, 364 U.S. 587, 593-594, 81 S.Ct. 321, 325, 5 L.Ed.2d 703 (1961). See also United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). . Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 101 et seq. . Section 1.07 of the Model Penal Code (Proposed Official Draft, 1962) provides: “Section 1.07. Method of Prosecution When Conduct Constitutes More Than One Offense. “(1) Prosecution for Multiple Offenses; Limitation on Convictions. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if: (b) one offense consists only of a conspiracy or other form of preparation to commit the other.” . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1,18 Pa.C.S.A. i 906. . The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1,18 Pa.C.S.A. § 3502. . We further note that, as criminal conspiracy is not merely a lesser crime which is a constituent of the completed substantive offense, the doctrine of merger espoused in Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973), is inapplicable.

Opinion by Mr. Justice O’Brien, This is an appeal by West Penn Power Company, a corporation, from a judgment entered against it and National Mines Corporation on a verdict of a jury, in a survival action by appellee, as administratrix of her deceased husband’s estate. Frank B. Skoda, Jr., employed by National Mines Corporation as a mechanic, was injured while at work on June 24, 1957, and died on August 17, 1957, as a result of the injuries. The West Penn Power Company supplied electricity to the National Mines Corporation at its plant in Luzerne Township, Fayette County. Wrongful death and survival actions were instituted by Virginia Skoda, widow of the deceased, in her capacity as administratrix of her husband’s estate. The wrongful death action was nonsuited as it was barred by the statute of limitations and a verdict in the sur vival action was returned in the amount of $152,213. We are only concerned with the judgment in the survival action, as it is agreed the wrongful death action is barred by the statute of limitations. The National Mines Corporation was joined as additional defendant by the West Penn Power Company and the verdict is against both defendants. The- West Penn Power Company filed motions for a new trial and for judgment n.o.v. The National Mines Corporation did not file any motions or join in this appeal. Appellant, in its contention for judgment n.o.v., maintains that: (T) there is not sufficient evidence to submit to the jury the issue of negligence of West Penn Power Company, either as the sole legal cause of the accident, or as the concurrent cause with the negligence of National Mines Corporation; and (2) the decedent was, as a matter of law, contributorily negligent. In its motion for new trial, West Penn says the verdict was so shockingly disproportionate to the injuries of decedent as to be excessive. In considering judgment n.o.v., the evidence,'together with all reasonable inferences therefrom, are considered in the light most favorable to the verdict winner. Ischo v. Bailey, 403 Pa. 281, 169 A. 2d 38 (1961); Matkevich v. Robertson, 403 Pa. 200, 169 A. 2d 91 (1961); Muroski v. Hnath, 392 Pa. 233, 139 A. 2d 902 (1958). The evidence, so considered, shows that Frank B. Skoda, Jr., at the time of his death was 35 years old, he was employed by the National Mines Corporation as a mechanic for about ten years. His place of employment was in and about the garage building, repair shop and other buildings of National Mines in Luzerne Township, Fayette County. On June 24, 1957, the day of the accident, he was engaged with another employee in repairing a fuel tank on -a 22 ton Euclid dump truck, which was used exclusively on the premises of National Mines for the purpose of hauling mine refuse from the mine opening to the slate dump. It was necessary to remove the fuel tank from the body of the truck and in order to do so the truck body was elevated hydraulically and then a timber was wedged under the body to prevent it from falling while the tank was removed. The truck was placed over an underground fuel tank, near the entrance to the mine garage, to drain the fuel from the truck before removing it for the repairs. It became necessary to move the truck in order for other trucks to have access to the underground fuel tank. The work of removing the fuel tank, welding and painting it was done in the morning, and in the afternoon, in moving the truck without the fuel tank, Skoda walked along beside the truck carrying a gallon fuel can in which was placed a line feeding to the engine of the truck. Robert Pierno, a fellow employee, slowly drove the truck in reverse while watching Skoda’s feet. The truck was moving backwards with the body in the upright position, Pierno watching Skoda’s feet, when the topmost part of the body, known as the truck cab protector, came in. contact with a high tension wire. Pierno heard a hissing sound and stopped the truck and, alighting, saw decedent on the ground enveloped in fire. The fire was extinguished with the help of other employees and Skoda was taken to the hospital where he died as a result of the burns on August 17, 1957. The wire touched by the truck was one of three parallel wires which carried 25,000 volts of electricity. The electrical lines of the appellant supplied the electricity to National Mines, which lines were carried by means of poles to a transformer station, which was a brick structure with an enclosed area in which were poles and transformers. The wires were between 20 and 21 feet from the ground, copper and uninsulated. The top of the dump truck, with the bed extended at the- time of the accident, was 20 to 21 feet from the ground. The truck bed extended approximately 3 to 5 inches aboye the wire at the point of contact. The truck stopped with the bed between the first and second wire, contact having been made with the first wire. The vehicle was equipped with large rubber tires. The truck was backed approximately 93 feet from where it was at the garage to the point of contact with the electrical wire. The poles supporting the wires to the transformer yard had a span of approximately 154 feet. There would be a normal sag in the line which would vary somewhat with the temperature. ' National Mines had five trucks that were used and serviced in this area. They were greased and washed once a week. The lubrication of the trucks generally took place in the garage and outside the doors on an apron which extended about 55 feet from the garage door towards the transformer station. The trucks were washed at a place nearer the transformer station and closer to the overhead electric wires and the trucks were sometimes parked in the vicinity of the transformer yard and had sometimes been parked under the wires with the bodies in a flat position. The area in which the trucks were lubricated, which operation required the extension of the bodies, was approximately 60 feet from the high tension wires, and the area in which the trucks were washed, also with the bodies extended, was nearer to the wires. It is a well recognized statement of the law that a supplier of electricity must exercise the highest degree of care, however, it is not an insurer against injury. While the supplier of electricity is under the duty of a high degree of care there is likewise imposed upon those who are aware of and work in the vicinity of electrical high tension wires a duty to exercise reasonable care to avoid injury to themselves and others. Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A. 2d 123 (1957); Brillhart v. Edison Light & Power Co., 368 Pa. 307, 82 A. 2d 44 (1951) ; Durinzi v. West Penn Power Co., 357 Pa. 576, 55 A. 2d 316 (1947) ; Reed v. Duquesne Light Co., 354 Pa. 325, 47 A. 2d 136 (1946). The high tension wires were between 20 and 21 feet above the ground. The wires had been erected and maintained in this condition for many years previous to the death of the decedent. The employees of National Mines engaged in work in the immediate vicinity of the transformer knew of the existence and danger of the wires. The record indicates that the men discussed the danger of this situation. The transformers were in the area of a cluster of buildings in which were carried on the various activities of National Mines in maintenance incidental to the operation of mining by National Mines. The buildings consisted of blacksmith shop, garage and paint shop'. The maintenance work on the trucks was conducted at a distance of 60 feet and less from the high tension wires. The work on the trucks required the bodies to be raised in servicing and washing them. The evidence indicates that the large trucks with their bodies extended were between 20 and 21 feet above the ground. There is evidence in the record that the trucks had been parked with the bodies flat under these high tension wires, but the practice had been discontinued about a year previous to the death of the decedent. There is no statutory requirement regulating the minimum height of the high tension wires. In Brillhart v. Edison Light & Power Co., supra, this Court said: “Although a minimum clearance for high voltage wires strung over buildings and land has not been statutorily prescribed, the common usage in the business is a fair test or standard of care: Maize v. Atlantic Refining Company, 352 Pa. 51, 57, 41 A. 2d 850. As stated in Koelsch v. The Philadelphia Company, 152 Pa. 355, 362, 25 A. 522,—While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken.’ ” There was evidence of the Federal Mine’s Safety Code prescribing a minimum of 20 feet clearance height for wires of this type. However, this code did not apply to the electrical industry. There was evidence of the appellant’s minimum wire clearance specifications which indicated the minimum clearance to the ground in this type of wires should be 22 feet. The record herein indicates sufficient evidence for the jury to consider negligence of appellant. Stark v. Lehigh Foundries, Inc., supra. Appellant maintained that even if it was in some manner negligent in the installation and maintaining of its power lines, that negligence was quiescent, and but for the independent negligent act of the driver, Robert Pierno, in backing the truck in a diagonal course, where he was unable to see the power lines, although he knew they were there, the accident would not have occurred. The general rule is stated in the Restatement, Torts, § 447: "The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, . . ." In Roadman v. Bellone, 379 Pa. 483, 108 A. 2d 754 (1954), page 492, we said: "It is true that an intervening negligent act is not always a superseding cause which relieves an antecedent wrongdoer from liability for negligently creating a dangerous condition which results in injury: Restatement, Torts, § 447. This section has been cited with approval in Darrah v. Wilkinsburg Borough, 318 Pa. 511, 178 A. 669; Murrary v. Pitts burgh Athletic Co., 324 Pa. 486, 188 A. 190; Kline v. Moyer, 325 Pa. 357, 191 A. 43; Nelson v. Duquesne Light Co., 338 Pa. 38, 12 A. 2d 299; Mautino v. Piercedale Supply Co., 338 Pa. 435, 13 A. 2d 51; Brogan v. Philadelphia, 346 Pa. 208, 29 A. 2d 671; Styer v. Reading, 360 Pa. 212, 61 A. 2d 382; Malitovsky v. Harshaw Chemical Co., 360 Pa. 279, 61 A. 2d 846; St. John v. Kepler, 360 Pa. 528, 61 A. 2d 875; and Levine v. Mervis, 373 Pa. 99, 95 A. 2d 368. These cases have greatly modified the decision in Stone v. Philadelphia, 302 Pa. 340, 152 A. 550, that an intervening negligent act operates as a superseding cause and insulates an antecedent tortfeasor from liability. “However, some intervening negligent acts which operate upon a condition created by an antecedent tortfeasor do constitute superseding causes and relieve him of liability. In determining whether an intervening force is a superseding cause we said in Hendricks v. Pyramid Motor Freight Corp., 328 Pa. 570, 574, 195 A. 907, 909: ‘The answer to this inquiry depends on whether the [intervening] conduct was so extraordinary as not to have been reasonably foreseeable or whether it was reasonably to be anticipated.’ The Restatement, Torts §435(2), (1948 Supplement, p. 736) says: ‘The actor’s conduct is not a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.’ Cf. Restatement, Torts, Penna. Annotations, §442.” Also in the Stark case, supra, page 11: "`"`One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of a third party may have contributed to the final result.' And when there are two contributing acts, it is not proximate in time that determines which of them is the proxi mate cause of the resulting injury:" Mars v. Meadville Telephone Co., 344 Pa. 29, 31. An intervening negligent act is not always a superseding cause which relieves an antecedent wrongdoer from liability for negligently creating a dangerous condition which results in injury. Restatement, Torts, sec. 447.'" The record in this case clearly indicates that the action of the trial judge, in submitting the question of superseding cause to the jury for its determination, was entirely proper. Of course, if the facts indicating a superseding cause are so clear as to become a matter of law, it is the duty of the trial court so to determine the matter. Kline v. Moyer, 325 Pa. 357, 191 A. 43 (1937); Hajduk v. Fague, 200 Pa. Super. 55, 186 A. 2d 869 (1962). That, however, is not the situation presented by this record. Malitovsky v. Harshaw Chemical Co., 360 Pa. 279, 61 A. 2d 846 (1948); St. John v. Kepler, 360 Pa. 528, 61 A. 2d 875 (1948). There is evidence in the record that the decedent tyas aware of the high tension lines and their danger and the necessity to avoid contact with them. The area in which decedent was engaged in his work was in the vicinity of and at times under the lines. It is quite normal and likely that, at times, the decedent, as other men working in the area, could conceivably become so engrossed in his work, particularly on trucks of the size and type here involved, as to make him temporarily oblivious to any other surrounding danger than the trucks he was working on. The decedent is presumed to have exercised due care for his safety, and a finding as a matter of law that he was contributorily negligent requires evidence so clear, direct and positive as to preclude any difference in the minds of fair and reasonable men with regard to it. Scholl v. Philadelphia Suburban Transportation Co., 356 Pa. 217, 51 A. 2d 732 (1947). It is only in clear cases and where there is no room for fair and reasonable disagreement as to the existence of contributory negligence that the court will declare it to exist. In Cooper v. Heintz Manufacturing Co., 385 Pa. 296, 122 A. 2d 699 (1956), we said (p. 306): "We have stated repeatedly that the Court `can declare as a matter of law that a certain state of facts amounts to contributory negligence on the part of a plaintiff only in cases so clear that there is no room for fair and sensible men to differ on their conclusions from the available data.'" Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A. 2d 414 (1962); Weidemoyer v. Swartz, 407 Pa. 282, 180 A. 2d 19 (1962). The court en banc properly refused appellant’s motion for judgment n.o.v. Appellant’s motion for new trial, on the ground that the verdict in the amount of $152,213 is excessive, was refused by the court en banc and the refusal to grant the motion is assigned as error. Suit was instituted both under “wrongful death action” (12 P.S. §§1602-1604) and “survival action” (20 P.S. §320.603). The complaint, however, was not filed for more than a year following the date of death and the trial judge properly granted the defendants’ motion for nonsuit as to the “wrongful death action.” The jury had for its consideration the “survival action” only. The trial judge, in the course of his charge, said: “The amount representing the present worth of Mr. Skoda’s future loss of earnings, less the probable cost of future personal maintenance, to that amount you would then add the amount that he would have earned from the date of the injury or death to the date of trial. In other words, they would be entitled to recover the full amount of his earnings from the time of the injury until the date of trial, without reduction of present worth . . .” (Emphasis supplied) And further, inter alia, in the charge, on a point submitted by defendant: “By The Court : They are all refused except the sixth point, which is as follows: 6. Since you are concerned only (I am reading this to you because it will summarize the measure of damages), since you are concerned only in this case with the so-called ‘survival action,’ the proper measure of damages, therefore if you find in favor of the plaintiff administratrix, would be the present worth of Skoda’s likely earnings during the period of his life expectancy, and that sum must be reduced by the amount of the provision he would have made for his wife and children for their support during the period of his life expectancy and while the family relationship continued between them, and reduced also by the probable cost of his own maintenance during the time he would likely have lived but for the accident. No allowance can be made for any mental suffering, grief, or loss of companionship sustained by his family. “By The Court: That point is affirmed with this qualification that you calculate his earnings from the time of the accident to this time, today, and you only reduce his future earnings from today on to present worth and deduct those other items, the cost of his maintenance and his family and so on.” (Emphasis supplied) In Ferne v. Chadderton, 363 Pa. 191, 69 A. 2d 104 (1949), we said (pp. 197, 198): "Under the Death Statutes the administratrix was entitled to recover for the benefit of the daughter and herself as widow the amount of the pecuniary loss they suffered by reason of decedent's death, that is to say, the present worth of the amount they probably would have received from his earnings for their support during the period of his life expectancy and while the family relationship continued between them, but without any allowance for mental suffering, grief, or loss of companionship; in other words, the measure of damages is the value of the decedent's life to the parties specified in the statute: Minkin v. Minkin, 336 Pa. 49, 55, 7 A. 2d 461, 464. Recovery is also allowed for the expense incurred for medical and surgical care, for nursing of the deceased, and for the reasonable funeral expenses: Act of May 13, 1927, P.L. 992. Under the Survival Statute the administratrix was entitled to recover for the loss of decedent's earnings from the time of the accident until the date of his death, and compensation for his pain and suffering during that period. Recovery may also be had for the present worth of his likely earnings during the period of his life expectancy, but diminished by the amount of the provision he would have made for his wife and children as above stated (thus avoiding duplication: Pezzuli, Administrator v. D'Ambrosia, 344 Pa. 643, 650, 26 A. 2d 659, 662) and diminished also by the probable cost of his own maintenance during the time he would likely have lived but for the accident: Murray, Administrator v. Philadelphia Transportation Co., 359 Pa. 69, 73, 74, 58 A. 2d 323, 325." (Emphasis supplied) The trial judge, in his instructions to the jury on damages, stated the measure of damages which the plaintiff, as representative of decedent’s estate, would be entitled to receive as follows: “In other words, they would be entitled to recover the full amount of his earnings from the time of the injury until the date of trial, without reduction of present worth.” (Emphasis supplied) This was not proper instruction in this survival action. The amount of decedent’s earnings from the time of injury until the trial should be reduced by the amount he would have contributed to his family. The decedent contributed for the family’s support $4,-920 annually and approximately four years elapsed from the time he was injured until trial. This would amount to $19,680 which the jury undoubtedly award ed under the instructions by the court. This instruction was not cured in the affirmance of defendants’ sixth point for charge with the qualification “that you calculate his earnings from the time of the accident to this time, today, and you only reduce his future earnings from today on to present worth and deduct those other items, the cost of his maintenance and his family and so on.” The trial judge instructed the jury to include the funeral bill in the amount of $976.85. This was' not a proper item of damage in this action. Appellant questions the correctness of the court’s charge on the items of damages the administratrix of the decedent’s estate would be entitled to from the time of the accident until the date of trial. This is a correct statement of the law although the Feme case, supra, page 197, does say “. . . the administratrix was entitled to recover for the loss of decedent’s earnings from, the time of the accident until the date of his death. . . .” (Emphasis supplied) The administratrix is entitled to recover for the loss of the decedent’s earning power from the time of the accident until the time of trial and of course compensation for decedent’s pain and suffering from the time of the accident until the date of his death. While the administratrix may not recover the item of funeral bill in a survival action, since there is no statutory authorization for it, there may be a recovery in a survival action for medical services, nursing and hospital care, since that is provided for by the Act of 1949, P.L. 512, § 601, since he could in his lifetime bring an action for these items. The right survives the death of the decedent and may be asserted by his representative as though decedent were alive. Obviously he could not bring an action for his funeral bill in his lifetime and, therefore, his personal representative, prosecuting an action that he could have maintained in his lifetime, is barred. In Radobersky v. Imperial Volunteer Fire Department, 368 Pa. 235, 81 A. 2d 865 (1951), we said (p. 243): "Obviously, the expenses for his own funeral do not fall into the category of the damages allowable to him personally." Decedent was taken to the hospital where he lived for 55 days. He had third degree burns over 65 percent of his body which were describéd by an attending physician as burns which go through the entire thick? ness of the skin, plus some of the structure beneath it. Third degree burn is practically cooked. Decedent wgs in shock because of the loss of plasma portions of the blood and during the first 24 hours in the hospital he was administered approximately ,10 quarts of fluid -to. replace his blood fluid, which whs lost. The doctor in describing his injury said: “Well, with extensive damage to the skin it blanched it. It became white and hard. With just looking at burned skin, it has lost, its color. We know that the blood supply of, that skin has been damaged or ruined. The skin is hard to touch. He was in bad shape. Sixty-five per cent (65%) of him was that way.” The doctor further testified: “I.don’t have the descriptive terms available” to describe his condition. The doctor said it was one of the worst cases he had ever seen and it was the doctor’s opinion that: “I don’t think he was without pain from the time he went in until he died,” although morphine was administered several times a day in order to somewhat relieve the pain. The burned skin broke down and became soft and mushy and two skin grafts were attempted. The burns were so extensive that a general anesthetic had to be administered to the decedent to dress the burns and after the burns were first dressed under the general anesthetic decedent’s condition was so bad the doctor could not touch him for the first nine days. He lived for 55 days in a condition of excruciating pain. He was placed under a general anesthetic seven times for five dressings of the burns over his body, and two skin grafts. Appellate courts are properly reluctant to interfere with jury verdicts in personal injury cases, which verdicts are supported by the opinion and approval of the trial judge and the court en banc. Roadman v. Bellone, supra. The granting or refusal of a new trial because of excessiveness is peculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion. Hall v. George, 403 Pa. 563, 170 A. 2d 367 (1961). We will not hold that a verdict is excessive unless it is "`so grossly excessive as to shock our sense of justice.'" Kane v. Scranton Transit Co., 372 Pa. 496, 94 A. 2d 560 (1953), and cases cited therein. In view of the agony endured by the decedent for 55 days, we cannot say that our sense of justice is shocked. The jury, in all probability, made a large award for pain and suffering and we will not substitute our judgment for that of the jury in determining the monetary value of the torture suffered by decedent between the accident and his death. As we have pointed out, however, the trial court erred in its instructions to the jury in the matter of decedent’s lost earnings to trial and the funeral bill. The verdict should be reduced by the amounts representing these erroneous instructions, to wit: $19,680 and $976.85, or a total of $20,656.85, thus avoiding the necessity of a new trial. Radobersky v. Imperial Volunteer Fire Department, supra. The judgment is reduced by the sum of $20,656.85 and, as so reduced, is affirmed. Mr. Chief Justice Bell and Mr. Justice Benjamin R. Jones dissent and would enter judgment n.o.v. for West Penn Power Co.

Opinion by Mr. Justice Simpson, Plaintiff sued to recover the difference between the market and contract prices of certain sugar, which it alleged it had sold to defendant but he had refused to accept ; the pleadings were duly filed, a rule for judgment for want of a sufficient affidavit of defense was taken and made absolute, and defendant appeals. After the argument of the rule in the court below, but before it was decided, defendant petitioned the court for leave to amend its affidavit in certain specified particulars ; the petition was dismissed and this is assigned as error. It was error: Bordentown Banking Co. v. Restein, 214 Pa. 30. True, that case was decided while the Procedure Act of May 25,1887, P. L. 271, was in force; but the Act of May 14, 1915, P. L. 483, makes no change in this respect. Plaintiff urges, however, that if the amendment had been allowed it would not have defeated the right to judgment, and hence the error was harmless. This conclusion is accurate, if the premise is correct; but in the view we take of the case it is not necessary to decide the question. Of course, where, as here, the averments of the affidavit of defense contradict those of the statement of claim, the former must be taken as true, and those of the latter only where they are not specifically denied. Thus viewed, we find the facts to be as follows: Plaintiff is a refiner of sugar and sold its product through certain brokers, one. of whom was J. H. Huston Co., Incorporated, to whom it gave authority to enter into contracts, when advised by plaintiff it had sugar for sale; and to whom it paid commissions for effecting the sales. The broker had customers of its own, to whom it offered the sugar when so advised; defendant was one of these. If the offer was accepted, the broker executed a sales memorandum and sent a copy thereof to the buyer, another to the seller, and kept one itself. Ordinarily, in this phase of the transaction, it was acting for both parties. With a wealth of detail, the statement of claim avers the broker was defendant’s agent in signing the sales memoranda, which, it is stated, constituted completed contracts; these allegations the affidavit of defense disputes, and avers that, in so far as defendant’s acts seem to give color thereto, they were induced by the affirmative fraud of the plaintiff, or of the broker, who was plaintiff’s agent, or of both. The court below agreed with plaintiff on these points, but we do not intend to rule upon them, or any other of the matters elaborately argued, save such as are specifically considered in this opinion. Most of. the others will probably fall by the wayside, as a result of the conclusions actually reached; for if the evidence is sufficient to establish part performance, in order to make the contracts enforceable under section 4 of the Sales Act of May 19,1915, P. L. 543, it will also establish the agency; and if there was no part performance, for the reasons hereinafter stated, they are unenforceable, because of noncompliance with that statute. We, therefore, turn at once to the main question in the case, which is: Were the contracts unenforceable because of section 4 of the Sales Act? which provides as follows: “A contract to sell or a sale of any goods or choses in action of the value of $500 or upwards shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, oi unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.” In the present case, there is no averment of any payment by defendant, except in those instances in which it is averred on the one side and denied on the other that there was part performance; and hence our inquiry is limited to determining whether it undisputedly appears there was an adequate note or memorandum of any or all of the contracts, signed by defendant or his agent, and if not whether there was part performance of any of them. In considering these matters it is not necessary to review the other statutes having the same purpose in view as this provision of the Sales Act, though the exact language of the clause relating to the note or memorandum appears in the Act of April-26, 1855, P. L. 808, and has often been construed in the way we shall interpret it in the present case. So far as affects the present controversy, we have ample and satisfactory authority under the Sales Act for all the questions now arising. In Mason-Heflin Coal Co. v. Currie, 270 Pa. 221, it is said that the facts, showing plaintiff’s right to recover under this provision of the act, must be averred as well as proved; and in Manufacturer’s Light & Heat Co. v. Lamp, 269 Pa. 517, that every essential element of the contract must be in writing, signed by the purchaser or his agent, or must be so referred to in the paper which is signed, as in effect to incorporate it therein by the internal reference made to it. It is. clear also, that every agreement is made and to be construed with due regard to the known characteristics of the business to which it relates (McKnight v. Manufacturers Natural Gas Co., 146 Pa. 185); and hence the language used in a contract will be construed according to its purport in the particular busi ness, although this results in an entirely different conclusion from what would have been reached, had the usual meaning been ascribed to those words: Guillon v. Earnshaw, 169 Pa. 463. This is the limit of the rule, however; it does not make contracts, hut only applies the trade meaning to the words actually used, and particularizes nothing which the contract itself does not particularize. In this suit there are seven sales memoranda, exactly alike except as to the various dates mentioned and quantities purchased. Hence we use only one of them for the purpose of this opinion, and insert here an exact duplicate thereof as follows: It will be noticed that this memorandum does not specify any price to be paid by defendant. The words “basis 22.50” and “price 22.50,” as the court below accurately says, are meaningless if taken by themselves. The normal meaning of the line “50 barrels or equivalent, price 22.50” would be fifty barrels, or their equivalent in other packages, at $22.50 per barrel. The dollar mark, however, is not used, and was not intended to be; admittedly the price was to be 22% cents for each pound of sugar in each barrel purchased. Ordinarily, if this was intended, it would be written 22% cents, or .225. We therefore start out with the fact that an important term of the contract cannot be ascertained from the paper alone, if its words are to be given their usual significance. It will be observed, also, that in the memoranda there are no specific references to anything extraneous, by which the figures 22.50 can be translated into 22% cents a pound. They clearly show, and it is admitted, there were many grades of sugar, which, when the different methods of packing them are taken into account, made forty or more varieties. This is also a necessary conclusion from the sales memoranda themselves, for they say “assortment to be furnished to seller by buyer......but subject to such substitutions as seller may find necessary to make,” which must mean that some selection of grade may be made by defendant, subject, however, to plaintiff’s right to substitute another grade, if necessary so to do, in order to deliver the quantity required. The same conclusion is reached from a consideration of the later clause, that “in the event assortment is not furnished promptly, seller reserves the right to ship such grades as he has available at the time of shipment.” We need pursue this subject no further, however, since plaintiff admits “the memorandum necessarily implies some differential”; the unavoidable conclusion therefrom being that what it is must be shown by something extraneous, if the foregoing requirement of the Sales Act is to be satisfied. The contract not having specified the price, and there being nothing referred to therein from which it can be ascertained, our next inquiry is whether or not, by the customs of the business, the words actually used have a trade meaning which will supply the missing term. Apparently recognizing this need, plaintiff avers in its statement of claim that “a standard barrel in which sugar is packed is, by the custom of the sugar trade, of a size to contain approximately 350 lbs., of extra fine granulated sugar”; “unless some other grade is specifically mentioned, granulated sugar is the standard grade upon which all quotations and calculations are based”; “350 lbs. of sugar in fixed weight packages or bags is considered as the equivalent of a barrel”; and “if the assortment calls for delivery not in barrels but in fixed weight bags or packages, then, by the custom of the sugar trade, irrespective of the grade of sugar specified, the quantity in pounds to be delivered is determined by multiplying the given number of ‘barrels or equivalent’ by 350. If the assortment calls for delivery in barrels, then, by the custom of the sugar trade, the quantity in pounds to be delivered is that quantity of the grade specified which will be contained in the given number of standard barrels.” The affidavit of defense qualifies these averments in several particulars, among others by alleging “that a standard barrel will contain from 240 to 375 lbs. of other kinds of sugar, depending entirely upon the grade thereof”; although “the price of extra fine granulated sugar in barrels is a basis price from which the price of various other grades and packages of sugar are computed, by means of adding or subtracting a differential, it is denied that in any other respect, under the customs of the sugar trade, granulated sugar is considered the standard grade upon which all quotations and calculations are based”; and, moreover, “under the prevailing custom of the sugar trade, the buyer under such a contract may at his option furnish seller with assortments specifying that all deliveries thereunder shall be of the lightest grade of sugar packed in barrels.” If these disputes were important in the present stage of the case, we would be compelled to hold that the averments of the affidavit of defense in some respects contradicted those of the statement of claim, and hence this matter should be referred to a jury for its consideration. We are not required to decide the appeal on this point, however, since plaintiff’s averments, even if given full effect as stated, do not fix the price which defendant would have to pay for any of the grades of sugar except, perhaps, the extra fine granulated in barrels; and yet he had a right to select any one or all of the other grades. Plaintiff frankly admits there is no “custom of the trade [averred] which would make the price list a part of the contract obligation, and......even if such a custom existed it would be insufficient to bring in the price list, except as a definition of the meaning of ‘basis 22.50’ and ‘assortment’ ”; "which, of course it cannot effectively do here, since the price list is unsigned and is not by reference incorporated into the memoranda. In a further endeavor to overcome this difficulty, plaintiff avers that a price list, giving full information upon this point, was “conspicuously displayed in plaintiff’s office, in the broker’s office, was published in the trade periodicals, was distributed widely to the sugar trade generally, and was well known to the trade, including defendant. Said price list, or a copy thereof, was furnished by broker to defendant prior to the making of any of the contracts here in suit.” Assuming all this to be true, it does not meet the difficulty, for this particular list is not signed by plaintiff, either directly or by reference, and the custom alleged does not carry it into the sales memoranda so as to make it a part thereof. Apparently impressed with the thought that this was the crucial point of the case, the court below asks: “Suppose A, by written contract, agreed to sell to B 100 shares of Pennsylvania Railroad stock, ‘at the opening price today on the Philadelphia Exchange’ or at the ‘highest price to-day on the exchange,’ would the contract be unenforceable? Or to sell the stock of merchandise in a certain store, ‘at the book values shown in seller’s books’? Or suppose A agreed in writing to pay five dollars a barrel for the production for a fixed period of a certain well, or to pay one thousand dollars for the furniture described in a certain inventory, or a million dollars for Willow Grove Park? Would any of these contracts of fend against the statute? Would proof of the sales on the exchange, the book values, the number of barrels produced, the details of the inventory, or the boundaries and contents of the park, be excluded?” Assuming that these supposed contracts made clear that the “exchange” therein mentioned was the Philadelphia Stock Exchange, and not that of some other exchange, here or elsewhere, that the Willow Grove was the one located in Montgomery County, Pennsylvania, and not that in Kent County, Delaware, and the other matters referred to were equally well identified, there would be no difficulty in answering these questions as the court below desired; and this for the reason that, by reference, every necessary matter was incorporated into the supposed contracts. There would have been but one opening price and one highest price on the “exchange,” on the day fixed for the sale; there would have been but one “stock of merchandise in a certain store,” and the “book values shown in seller’s books” are also individuated; there would have been but one “cex'tain well” and but one total outflow therefrom; there would have been but one “certain inventory” of the furniture referred to; and there would have been but one “Willow Grove Park,” with definite boundaries and acreage; thus, by applying these particular matters, which by reference are incorporated into the contracts, there would be but one result in each case, and the requirement of the statute would have been satisfied. In the present case, however, this is not so. We may conclude, not because the contract says so but because experience shows it is usual, that somewhere, in memory or in writing, there was a schedule of the cost of the different kinds of sugar in the different receptacles; we may conclude, not because the contract says so but because it would be difficult to bear in mind all those figures, that there was a written or printed price list somewhere, to which one might go in order to ascertain the different prices; but we cannot conclude, because the statute says we shall not, that the price list attached to the statement of claim is the one which must be applied to these contracts, especially as it says “prices are subject to change at any moment without notice.” It would have been easy to clear up this difficulty by attaching a copy of the price list, or by a proper reference in the memoranda, but neither was done. Hence, as the prevention of frauds and perjuries in the enforcement of such contracts was the purpose for enacting this provision of the Sales Act, we are compelled to hold its requirements have not been complied with by these memoranda. .The legal situation upon this point is fairly summarized in 27 Corpus Juris, 277, 278, as follows: “The note or memorandum must contain the terms of the contract, together with the conditions, if any. It must show all the terms of the contract'. That is, all essential terms of the contract must be made to appear in the writing. Likewise all essential conditions of the agreement must be contained in the memorandum. Where essential terms are omitted from the writing, the contract, being partly in parol, is within the statute, and there is no sufficient memorandum thereof. A writing is insufficient as a memorandum where it does not state any [all] of the terms of the contract; where it omits or states incompletely a single essential term; where it merely refers to the contract without stating its terms; or where it shows expressly or inferentially that there are terms which it either does not state or does not clearly and sufficiently state.” This conclusion is in keeping with what we said in Title Guaranty & Surety Co. v. Lippincott, 252 Pa. 112, following the cases cited therein; and one of these “essential terms,” required to be in the writing, is the price to be paid by the buyer (Soles v. Hickman, 20 Pa. 180; Briggs v. Morris, 244 Pa. 189, 144), whenever, as here, it is alleged to have been part of the contract. We can only conclude, therefore, that, in so far as the sales memoranda are concerned, or any custom of the trade appertaining to them, there is not a complete “note or memorandum” in writing of any “of the contracts ......signed by the party to be charged or his agent in that behalf.” Was there part performance of these contracts, or any of them, so as to make them enforceable? Plaintiff avers that three of them were partly performed; this defendant denies. If they have not been, then, because of the main question already considered, all are unenforceable; if three of them have been, then by the express terms of the act they may be enforced, though there was no note or memorandum in writing in regard thereto. In this latter event, the measure of damages may become important, and hence we proceed to consider it. The court below held that under the contracts, if enforceable, recovery could be had upon the basis of 350 pounds to the barrel, and at the difference between the contract price of 22% cents a pound for extra fine granulated sugar, and eight cents a pound, the market price at the time of the breach. Assuming the facts set forth in the affidavit of defense are true, this conclusion cannot be adopted as a matter of law; it may or may not be correct, as a matter of fact, depending upon the jury’s findings regarding two questions: (1) What number of pounds per barrel is to be taken, in view of the fact that the contents of the barrels vary in weight from 240 to 375 pounds? and (2) with the cost of what grade of sugar is defendant to be charged, in view of the fact that it varies in price, depending on the kind taken? On the second of these questions, plaintiff alleges there is a trade custom which fixes 350 pounds to the barrel, and that this is what is meant, in the trade, by the words “barrels or equivalent,” appearing in the contract. If there was such a custom (determinable, of course, by what has been often said as to the requisites necessary to make it valid), then it is binding upon defendant. If there was not, then this question, as well as the first of those above stated, must be determined by the court and jury upon the same principles. The contracts gave to defendant the right to specify? in the first instance, what kind of sugar he desired, and admittedly the price varied, depending upon the kind taken. It is true, if he asked for a kind which was not “available,” plaintiff; could send him some other grade, and if it did the price to be paid would be that scheduled for the sugar actually received; but that which was sent would have to be selected from what was “available,” to conform as nearly as possible to that which was specified; and, if the time limit for selection had not expired, defendant, if he could not get the grade specified, could cancel the order and leave the contract in force. We need not consider this question any further, however, since no order was given; in which event the contract provided that plaintiff might determine the kind of sugar to send, and defendant was obliged to accept that which was sent, and pay accordingly. None was actually tendered, however, and the question to be determined is, therefore: What measure of damages is applicable in this aspect of the matter? If plaintiff had refused to assent to the attempted rescission, and had shipped whatever kind of sugar it chose, “F. O. B. Philadelphia,” and defendant had refused to receive it, plaintiff could have sold it in the nearest available market and held defendant for the difference between the contract price and the net sum realized by the sale: Barber Milling Co. v. Leichthammer Baking Co., 273 Pa. 90. This it did not do, however, but on the contrary treated the rescission as ending the contracts, and sued for the difference between the market price and contract price at the time of its acceptance of the cancellation. Under these circumstances, subject to the other questions herein eon.sidered, the rule as to the smallest possible amount of damages would apply. Plaintiff further contends, however, that during a number of years defendant had purchased certain grades of sugar, the relative proportions of which can be stated with accuracy, as can also the weight of the contents of each barrel included in those purchases. It claims, therefore, that since defendant is still in the same busi ness as when the prior purchases and deliveries were made, by the course of dealings stated there was established a reasonable measure of damages by apportioning the sugar which defendant should have taken under these contracts, exactly as he selected it in the previous purchases. That contention would be more forcible if it were, shown that plaintiff was the only refiner from whom defendant bought sugar at the time of the deliveries under the previous contracts, that he intended to continue in the same business, and that the demands of his customers were substantially the same. This, however, introduces speculative elements, difficult if not impossible of proof. At the time defendant repudiated the contracts, it was his option to say: “I will select that kind of sugar which, considering the price and number of pounds per barrel, will make my loss as small as possible.” Had he done so, and that kind of sugar was “available,” plaintiff would have been bound to deliver it. When he did not, as already pointed out, plaintiff had the right to refuse to accept the tendered rescission and to deliver such sugar as it had on hand; and thus, if defendant refused to receive it, plaintiff could have accurately measured its damages. When, however, it treated the rescission as ending the contracts, and sued without attempting a delivery, it introduced into the problem the speculative elements above referred to, and can only blame itself if the law adheres to the rule that the least damages possible is the measure of recovery. In view of what has been said, it is not necessary to quote at length from the authorities bearing upon this question. It is conceded by appellee that ordinarily the difference between the market and contract prices is to be applied in measuring damages, and that if either of two methods of assessment is possible, the one producing the smaller amount is to be adopted. “The recognized rule in cases of uncertainty of this kind is not to reject altogether, but to assess the damages on the basis of the lowest sum”: Jones’s App., 62 Pa. 324, 328. If a buyer is given an option to select goods of differ ing qualities or prices, lie may exercise the privilege within the limitations fixed by the contract: Berg Co. v. Thomas & Son Co., 256 Pa. 584. “When, however, no choice has been made, either expressly by the promisor, or automatically by the terms of the contract, or by law, the measure of damages for the breach of such a contract is the value of the alternative least onerous to the defendant”: 3 Williston on Contracts 2498; 1 Sedgwick on Damages, section 421; 17 Corpus Juris 847; 35 Cyc. 600. This controlling principle has been thus stated in the leading case of Holliday & Co. v. Highland Iron & Steel Co., 43 Ind. App. 342: “Where a contract is entered into between parties, giving to one of them an alternative, and the party having the right to such alternative breaches the contract, in estimating the measure of damages for a breach of such a contract, the alternative must be accepted which will be least injurious to the party having a right to exercise the choice.” The same rule is recognized in Kimball Bros. v. Deere, Wells & Co., 108 Ia. 676; Delker Co. v. Hess Spring & Axle Co., 138 Fed. 647; and by leading text writers. As already pointed out, the present agreement fixed a price based on barrels of granulated sugar, ordinarily containing 350 pounds, but an option was given to the buyer to designate other kinds, varying in price as well as in the quantity in the container. By the affidavit of defense, defendant could have selected barrels the contents of which weighed as low as 240 pounds; hence, in the absence of some undisputed averment in the statement that the purchase was of granulated sugar alone, or that no other grade was available for delivery at the time of the breach, defendant could not be charged, in entering judgment for want of a sufficient affidavit of defense, on any other basis than the one least burdensome to him. In order to avoid misapprehension, it should be stated that the controlling questions above set forth, were not raised and, therefore, were not considered or decided, in Franklin Sugar Refining Co. v. Hanscom Bros., 273 Pa. 98, for the obvious reason that the two contracts referred to in that case, had been partially performed. The judgment of the court below is reversed and a procedendo is awarded.

Opinion by Mr. Justice Schaffer, Three firemen, employed by the City of Philadelphia, were injured, while riding on one of the city’s fire trucks, which was struck at a street intersection by one of defendant’s trolley cars, negligently operated. For the injuries received, the men brought actions of trespass against defendant and recovered verdicts aggregating 125,000, one of which was paid after the trial and the other two affirmed on appeal. In the statement of claim filed by them in the suits, the three plaintiffs claimed for loss of wages and the cost of medical care. On the trial, no evidence of loss of earnings or of the cost of medical care was introduced, and the trial judge instructed the jury that there could be no recovery for these. After the injury to the three men, the city complied with the mandate of the Act of June 28, 1935, P. L. 477, (amended by the Act of May 14, 1937, P. L. 632, 53 PS Sec. 327),’ and paid them the compensation they were entitled to receive and their medical'and hospital bills. Section 1 of the 1935 Act reads as follows: “That any policeman or fireman of any city (except of the second class A), borough, town or township, who is injured in the performance of his duties and by reason thereof is temporarily incapacitated from performing his duties, shall be paid by the municipality, by which he is employed, his full rate of compensation until the disability arising therefrom has ceased. All medical and hospital bills, incurred in connection with any such injury, shall be paid by such municipality.” The suit now before us was brought by the City of Philadelphia to recover from defendant the sums paid the three men and expended for their medical care, amounting in all to $6,092.27. The case was heard: by Judge Lamberton without a jury, who denied recovery. This action was affirmed by the court in banc.- The city appeals. The court below was of opinion that the city’s right to recover for any loss it may have sustained should have been asserted in the original actions brought by the three men on the theory that the city was entitled to subrogation in their recovery for the amounts it had expended, and the fact that they did not press for recovery of their wages and hospital and medical expenses, by proof of them, makes no difference so far as this suit is concerned. With this view we are in accord. Appellant’s attorney has devoted much research and learning to the presentation of his side of the controversy, going back to ancient English cases and some modern ones to sustain the principle he invokes. We think the controversy is within the lines of our own decisions and not difficult of solution. The sums here paid by the city to the firemen were not strictly speaking wages. They were in the nature of disability compensation, similar to workmen’s compensation payments and payments under an accident insurance policy and should be treated in the same manner. Such payments have always been disregarded in determining the amount of damages to which an injured plaintiff is entitled: Lengle v. North Lebanon Twp., 274 Pa. 51, 117 A. 403; Littman v. Bell Telephone Co. of Pa., 315 Pa. 370, 172 A. 687. There was nothing to prevent the recovery of these payments in the original suits. . The same is true of the medical expenses and hospital bills. Nothing said in Quigley v. Penna. R. R. Co., 210 Pa. 162, 59 A. 958; Pensak v. Peerless Oil Co., 311 Pa. 207, 166 A. 792, and Rundle v. Electric Ry. Co., 33 Pa. Superior Ct. 233, denied to the three plaintiffs, the right to recover all these disbursements from defendant. The right to recover wages and expenses being in the individual fireman, whatever right the city , has to recover, the payments made by it must of necessity be based upon the equitable doctrine of subrogation. Under our practice the right of subrogation can only be enforced in the original action and not in a separate suit in the name of the city: Scalise v. F. M. Venzie & Co., Inc., 301 Pa. 315, 152 A. 90; Beimel v. Northwestern Trust Co., 304 Pa. 121, 155 A. 106; Paxos v. Jarka Corp., 314 Pa. 148, 171 A. 468; Moltz v. Sherwood Bros., Inc., 116 Pa. Superior Ct. 231, 176 A. 842. If the city wished to assert its right to recover the payments made against defendant, it should have intervened in the suit brought by the firemen: Mayhugh v. Somerset Telephone Co., 265 Pa. 496, 109 A. 213; Gentile v. P. & R. Ry., 274 Pa. 335, 118 A. 223. The policy of the law is opposed to the splitting up of actions : Fields v. Phila. Rapid Transit Co., 273 Pa. 282, 117 A. 59. As the city could have intervened in the original suit to claim its outlays, it cannot maintain this separate and independent action. Appellant contends that the relation between the city and the firemen was that of master and servant and at common law a master has a right of action for loss of services of his servant caused by the negligence of a third party and that the city’s suit can be sustained on that theory. It is extremely doubtful whether such a right of action should be recognized under modern conditions. It had its beginnings at a time when the relation of master and servant was totally different from that of today: Chelsea Moving & Trucking Co., Inc., v. Ross Towboat Co., 280 Mass. 282, 182 N. E. 177. In any event, no attempt was made to establish the extent of the city’s loss by reason of the incapacity of the firemen. Apparently the only loss sustained was the compensation and expenses paid. As pointed out, the right to recover these items is in the firemen themselves and the city’s right is based on subrogation, which cannot be asserted in a separate suit. Judgment affirmed. Attorney-General v. Valle-Jones, 2 K. B. (1935), 209; Robert Marys’s Case (1612), 9 Coke Reps. 201, 77 Reprint 895; Martinez v. Gerber (1841), 3 Man. & G. 88; Berringer v. Great Eastern Ry. Co. (1879), 4 C. P. D. 163; Gilbert v. Schwenk (1845), 14 M. & W. 488; Hall v. Hollander (1835), 4 B. & C. 660; Osborn v. Gillett (1873), L. R. 8 Ex. 88; Jones v. Brown (1794), 1 Peake 306; Bradford v. Webster (1920), 2 K. B. 135.

Opinion by Mr. Justice Patterson, This is a taxpayer’s appeal from a decree determining that outstanding indebtedness of the City of Philadelphia, in the sum of $59,156,500, invested in the City’s sewer system and facilities for the treatment and disposal of sewage, and the further sum or sums, not to exceed $42,000,000, now proposed to be borrowed and invested in said system and facilities and for the improvement and extension thereof, is self-liquidating utility debt within the meaning of Article IX, Section 8, of the State Constitution, and, pursuant to the provisions of the enabling Act of May 21, 1921, P. L. 1054, directing that such outstanding and proposed sewer indebtedness be wholly excluded in ascertaining the City’s borrowing capacity. By a duly enacted ordinance, approved August 1, 1940, the City of Philadelphia imposed a charge “upon each lot or parcel of land, building or premises having any connection with or being available for connection with the sewer system of the City or otherwise discharging sewage, industrial waste, water or other liquids or substances, either directly or indirectly, into the said sewer system . . . at a rate equal to forty (40) cents for each one hundred (100) dollars of assessed valuation of such lot or parcel of land, building or premises,” with a proviso that the rate for charitable institutions and public and private schools shall be ten cents for each one hundred dollars of assessed valuation. The charge thus provided for is designated “sewer rental” and is purportedly imposed pursuant to the provisions of the Act of J uly 18, 1935, P. L. 1286, as amended by the Act of May 14, 1937, P. L. 630, hereinafter referred to as the “Sewer Rental Act,” whereby municipalities are empowered to provide for the imposition and collection “of an annual rental or charge for the use” of sewer facilities, said annual rental to be “apportioned equitably among the properties servedand to be a lien on such properties. That the charge imposed by the ordinance is reasonably calculated to yield revenue in excess of operating expenses sufficient to pay the interest and sinking fund charges on both the outstanding and the proposed sewer indebtedness is not questioned. Appellant-taxpayer’s position, broadly stated, is that the charge sought to be imposed by the City is not, in reality, a rent, but rather a tax, levied in violation of our constitutional requirement of uniformity of taxation, and further that the revenue derived thereby will not support an exclusion of the City’s outstanding and proposed sewer indebtedness under Article IX, Sec. 8, of the Constitution. The contention of the City, sustained by the court below, is that the charges in question are not taxes, but rentals, authorized to be imposed by the Sewer Rental Act, and sufficient, both in character and amount, to sustain the exclusion. Sewers, like water systems, are owned and operated by municipalities in their proprietary capacity, not governmentally: Williams v. Samuel, 332 Pa. 265; Gemmill v. Calder, 332 Pa. 281, 283; Graham v. Philadelphia, 334 Pa. 513, 519. “The construction, operation, or maintenance of sewer systems, water systems and gas systems by a municipal corporation is in the nature of a private enterprise. A municipality is not required to construct, own, or operate such public utilities. It may contract with private corporations or individuals to furnish such service, or it may, if it so elects, own and op erate such utilities for the benefit and convenience of its inhabitants and property owners.”: Lighton v. Abington Twp., 336 Pa. 345, 357. In the ownership and operation of such facilities, the municipality stands on the same footing as a private corporation and is entitled to the same privilege of receiving payment for the service rendered: Jolly v. Monaco Borough, 216 Pa. 345, 349. The right of the City of Philadelphia to receive such payments for the use of its sewer facilities was expressly recognized in Williams v. Samuel, supra, at 271. These charges are not taxes, nor a substitute for taxes, but charges made, without discrimination, for an industrial service rendered in value equal to the respective sums charged; by using the facilities with knowledge of the rates charged, the consumer, by implication, contracts and agrees to pay the rates, and his obligation to make payment rests upon contract rather than upon any exercise of the taxing power. See Fisher v. Harrisburg, 2 Grant 291, 296; Kilcullen v. Webster, 260 Pa. 263, 267; Jolly v. Monaco Borough, supra, 348-9, 350; Rieker v. Lancaster, 7 Pa. Superior Ct. 149, 156; Silkman v. Board of Water Comrs., 152 N. Y. 327, 46 N. E. 612. They are “simply charges for a commodity sold as any others sell commodities.”: Shirk v. City of Lancaster, 313 Pa. 158, 173. There is, however, a clear distinction to be drawn between rents paid for actual use of municipally-owned utility facilities and charges such as the City here seeks to impose. The Sewer Rental Act, relied upon as authorizing the charge imposed, provides merely, as indicated in its title, for the charging and collection of “annual rentals for the use of sewers, sewage systems, and sewage treatment works,” and specifically provides, in section 2, that the charge “shall be apportioned equitably among the properties served by the said sewer, sewage system or sewage treatment works.” As the court below stated, by.the ordinance of 1940, “the City is requiring payment to be made not only by those who have availed themselves of the right to connect with the sewer but by all those to whom it is made available by its presence.” By the terms of the ordinance the charge is made applicable not only to properties actually connected with and accommodated by the sewer system, but as well, inter alia, to (1) vacant lots not connected to the sewer system but abutting thereon, (2) vacant lots connected to the sewer system but not using it, (3) vacant buildings not connected with the sewer system but abutting on it, (4) vacant buildings connected with the sewer system but not actually using it, (5) occupied buildings not connected to the sewer system but abutting thereon, and (6) as construed by the court below, to all properties directly or indirectly discharging surface water into the storm sewer system, regardless of whether they are connected with or are available for connection with the sanitary sewer system. Having due regard for the ordinary meaning of the unambiguous language used in the Act, it would appear to apply solely to charges based upon actual user of the sewer system, and further would seem to require that the charge be reasonably proportional to the value of the service rendered, and not in excess of it; so construing the Act, we think it furnishes no authority for the ordinance in question. Cf. Allentown v. Henry, 73 Pa. 404. There an act of assembly authorized the levy of assessments, by the City of Allentown, “in the nature of water rents,” upon “every dwelling-house situated in any of the streets, lanes and alleys of the said city, in, through and along which, and as far as the water-pipes . . . are now laid, and shall hereafter be laid.” This Court, speaking through Mr. Justice Mercur, held an ordinance laying a “tax” upon dwelling-houses “not supplied with hydrants” unauthorized by the act and invalid, saying: “This is an unwarranted departure from the letter and spirit of the law.” See also City of Allentown v. Helfrich, 1 W. N. C. 350. If the language of the Act can properly be construed as authorizing the imposition of charges except in proportion to the extent of the user, and, a fortiori, if it can be construed as authorizing the imposition of charges irrespective of any use, it is doubtful whether there is a sufficient expression of legislative intent to confine the charge within constitutional limits. See Carson v. Sewerage Comrs. of Brockton, 175 Mass. 242, 56 N. E. 1, aff’d 182 U. S. 398. While we are fully cognizant of the practical difficulties involved in the situation with which the City is confronted, we are nevertheless duty bound to judge the ordinance of August 1, 1940, by its legal effect and not by statements as to what is proposed to be done therein or otherwise. So doing, it is manifest that the charge here in question can not be sustained on the theory by which sewer and water rentals have heretofore been upheld by this Court and the Superior Court in cases already referred to; the burden of this charge being imposed in invitum, no implied assent to its payment can possibly be deduced. Nor, can the charge be sustained on any theory of supposed special benefits arising from the mere presence or availability for use of the facility. As is pointed out in Southern Ry. Co. v. City of Richmond, 175 Va. 308 (1940), 8 S. E. (2d) 271, 274, “The right to use, 'the privilege of using,’ a sewer may enhance the value of an abutting lot. [But,] this enhanced value accrues, if at all, immediately upon construction of the sewer. The municipality may levy [a] special assessment to the full amount of the enhanced value. If, in lieu of this method . . ., the city elects to levy a special assessment ffor use of sewer/ the amount of assessment must be in proportion to the value of the use. In the one case, the value of the peculiar benefits must be measured by the difference between the value of the lot with and without available sewers. In the other case, the limit of the special assessment is the value of the peculiar benefits accruing to the abutting landowner from actual use of the sewer, as distinguished from the privilege of using.” Cf. City of Pittsburgh v. Phelan, 85 Pa. Superior Ct. 548, 550-551; Provident Trust Co. v. Judicial B. & L. Assn., 112 Pa. Superior Ct. 352, 359. It is noteworthy in this connection that, as stated in Williams v. Samuel, supra, at 268, a large part of the cost of the sewer system of the City of Philadelphia was raised by assessments against abutting property owners. Being imposed without any regard whatever to the extent or value of the use made of the sewer facilities, or whether any use is made, the charge provided for by the ordinance is, in legal effect, undoubtedly a tax, and the obligation to pay it could be created only by the City’s exercise of its general taxing power. See New York University v. American Book Co., 197 N. Y. 294 (1910), 90 N. E. 819; In Re Union College, 129 N. Y. 308 (1891), 29 N. E. 460; Remsen v. Wheeler, 105 N. Y. 573 (1887), 12 N. E. 564; Village of Lemont v. Jenks, 197 Ill. 363 (1902), 64 N. E. 362; Culver v. Mayor and Aldermen of Jersey City, 45 N. J. L. 256 (1883); 3 Dillon Municipal Corporation (5th ed.), Sec. 1323, page 2223. Cf. Sanitary Sewer Dist. v. Smith, 342 Mo. 365 (1938), 115 S. W. (2d) 816; Grim v. Lewisville, 54 Ohio App. 270 (1935), 6 N. E. (2d) 998. As a tax it is palpably violative of our constitutional provision requiring uniformity of taxation. Since the charge sought to be imposed can be legally justified, if at all, only as a resort to the taxing power, it is clear that, irrespective of any question as to its validity as a tax, the revenue derived thereby is not such income as will support a debt exclusion under Article IX, section 8. While that constitutional provision, according to its terms, provides merely a limit upon the power to contract indebtedness and not upon the power of taxation, that its underlying purpose is to serve 'as a limit to taxation, as a protection to the taxpayers, is well settled. This Court said, in Appeal of City of Erie, 91 Pa. 398, 402: “Here is an agreement to pay, and that agreement to pay must be provided for by a taxation over and above what is now necessary for the current expenses of the municipality. But this is just what the Constitution was intended to prevent; to prevent the citizen from being overburdened with municipal taxation.” Again, in Keller v. Scranton, 200 Pa. 130, 135, the purpose of the provision was expressed thus: “The Constitutional provision is intended . . . to prevent municipalities from loading the future with obligations to pay for things the present desires but can not justly afford, and in short to establish the principle that beyond the defined limits they must pay as they go. No limit is fixed to expenditure for which present means of payment are provided . . . but a peremptory prohibition is put on expenditure on credit beyond the prescribed bounds.” And, as was said in Lesser v. Warren Borough, 237 Pa. 501, 513, “In determining whether any legislative or municipal act conflicts with [this provision of] the Constitution, its substance, and not its form, must always be the test.” The fact that a special fund will be created is of no importance. As stated in 1 Dillon, Municipal Corporations, (5th ed.), Sec. 198, page 370, “If the fund from which the obligations are to be paid is to be created by the levy of a tax under the general power of taxation vested in the municipality, although the contract stipulates that no general indebtedness for the stipulated amount shall be created against the city, and that the only obligation undertaken by the city is to levy, anticipate, and pledge the tax agreed to be imposed, indebtedness is created, and the contract is void if the existing indebtedness of the municipality has reached the constitutional limit.” See also Boswell v. State, 181 Okla. 435 (1937), 74 Pac. (2d) 940; City of Ottumwa v. City Water Supply Co., 119 Fed. 315. Any speculation as to our law on this point is foreclosed, by plain implication, in the recent decision in Graham v. Philadelphia, 334 Pa. 513. We there sustained an undertaking by the City to levy a special tax to be appropriated to the payment of a possible future liability on tbe part of tbe City, to arise by reason of legislation that might be enacted, in the event that it should arise, only because such a liability is so remote and contingent that it does not effect an increase of municipal indebtedness beyond the constitutional limitation, as a careful reading of the opinion in that case will demonstrate. The City’s contention boils down to this: that notwithstanding that it is already indebted beyond the constitutional limit and is without power, even with legislative sanction, to incur any new indebtedness, to the amount of a single dollar, it may, nevertheless, borrow money in the amount of $42,000,000, issuing its bonds therefor, and immunize such debt from attack as violating the constitutional limitation by simply providing for the levy of taxes to be collected annually from the taxable property of the City over a long term of years, or indefinitely, until the sum borrowed has been paid therefrom, and by providing further that such indebtedness shall only be paid from the taxes so specially levied. If the City may do this to build sewers, it may likewise borrow and issue its bonds for similar or greater amounts to finance municipal enterprises almost without limit. Simply to state the proposition is, we think, to refute it. The mischief which it is the purpose of the constitutional limitation to prevent, i. e., unduly burdensome, if not ruinous, taxation, would clearly be present in the same degree were a number of special levies for various municipal enterprises thus permitted to be imposed, the sum total of which when added to the necessary tax for current expenses would exceed what the taxable property of the municipality can support, as where the whole amount is collected under one assessment. As appellant states: “If a public utility should be held to be self-sustaining, within the meaning of the constitutional ‘exclusion’ clause where it is supported by revenue from an exercise of the taxing power, then the constitutional exception has become the constitutional rule.” For the reasons above stated, the order entered October 7, 1940, reversing the decree appealed from, is confirmed. Costs to be paid by the City of Philadelphia.

Opinion by Mr. Justice Bell, Plaintiff brought a taxpayer’s bill to declare null and void an ordinance of the City of New Castle, enacted December 1, 1947, setting up a pension or retirement system for officers and employees of the City, and praying for an injunction to prevent payments thereunder by the City to the Officers’ and Employees’ Retirement Board. Municipalities are not sovereigns; they have no original or fundamental power of legislation; they have the right and power to enact only those ordinances which are authorized by an act of the legislature: Kline v. Harrisburg, 362 Pa. 438, 68 A. 2d 182; Murray v. Phila., 364 Pa. 157, 71 A. 2d 280. Moreover, an ordinance must be in conformity with the provisions of the enabling statutes; if it conflicts therewith it is void: Bussone v. Blatchford, 164 Pa. Superior Ct. 545, 67 A. 2d 587; Grisbord v. Phila., 148 Pa. Superior Ct. 91, 24 A. 2d 646; Kline v. Harrisburg, 362 Pa., supra; 1 Dillon on Municipal Corporations, 5th Ed., 449. The Legislature of Pennsylvania by Act of May 23, 1945, P. L. 903, 53 P.S. 12198, 4371-4384, authorized Cities of the Third Class to establish a retirement system for officers and employees and prescribed certain conditions or limitations. The Act expressly permitted such a city to include in a pension ordinance persons who were officers or employees of the city at the time of the enabling ordinance and those who were thereafter elected. The third class city of New Castle had a Council of five members composed of the Mayor and four elected officials. The Ordinance of December 1, 1947 covered all the Councilmen and if valid would permit 4 of the 5 to retire on a pension at the end of their respective terms, which was 1948 for one councilman and 1952 for three councilmen. Their ages varied from 55 to 72. Two of them had served the City of New Castle for 8 years; one for 15 years; and one for 19 years. The heart of the Ordinance was contained in Section 7 and Section 14. A, B and C of Section 7 dealt with officers or employees who had attained or shall attain the age of 60 years after having served 20 years. These are in conformity with Section 4 (a) of the Act and appear to be valid. D, E and F of Section 7, as well as other parts of the Ordinance, appear to be invalid and therefore require further discussion. (1) The Act, Section 4 (b), provided that where an officer or employee is involuntarily retired after serving between 12 and 20 years, he shall be entitled to such proportion of full compensation as the period of his service bears to 20 years; and where an officer or employee’s tenure of office is involuntarily terminated after 20 years’ service, he shall be entitled to full compensation for the remainder of his life. The Ordinance, Section 7 D, authorized an employee to involuntarily retire after 12 years of service. The Ordinance, Section 7 E, applied only to elected officials and provided that anyone who had served 12 years or more and voluntarily quits or otherwise retires, is entitled to a pension based upon the years served divided by 20. Section 1¡. (b) of the Act has been declared void and it follows that Sections 7 D and 7 E of the Ordinance, which are based thereon, are likewise null and void: Altieri v. Allentown Retirement Board, 368 Pa. 176, 81 A. 2d 884. (2) Section 4 (b) of the Act further provided that if an officer or employee is permanently disabled before attaining the age of 55 years and has served the City 15 years he would be entitled to receive full compensation. Section 7 F of the Ordinance, which was obviously passed for the benefit of one councilman, provided that if an employee is permanently disabled after 1 year’s service he should receive a pension'. (3) Section 10 of the Ordinance provides that anyone working for an agency of the City financed in whole or in part by funds not of the City, can join the retirement system and such agency shall pay such money as the Board shall require. The Act of the Legislature nowhere authorises such a municipal provision. (4) The Act is silent as to amendment or repeal. Section 1I¡ of the Ordinance provides that if the Ordinance is amended at any time without the consent of more than 50% of the contributors to or beneficiaries of the fund, the fund shall be liquidated upon a petition to the Board signed by a majority of contributors and beneficiaries. This deprives future Councils of the right of amendment without the consent of a majority of the contributors, even where a contributor’s rights have not matured; and it is certainly contrary to public policy. But Section Ilf of the Ordinance goes even further and provides that if the Ordinance is repealed at any time, the fund shall be liquidated and distributed among beneficiaries and contributors in proportion to their contribution, thus requiring public or tax money which has been paid into the fund to be forthwith distributed to the contributors or beneficiaries. There is no provision in the Act authorising this shackling or impairment of the right of future Councils to amend or repeal the Ordinance. It is a well and wisely established principle of public policy in Pennsylvania that a public official may not use his official power to further his own interests. . This principle originated in the common law and has become embodied in the Constitution of Pennsylvania and has been declared to be the policy of this state in many Acts of Assembly: Reckner v. German Township School District, 341 Pa. 375, 19 A. 2d 402; Com. v. Raudenbush, 249 Pa. 86, 94 A. 555; Com. ex rel McCreary v. Major, 343 Pa. 355, 22 A. 2d 686; 62 C. J. S. §402, p. 761; 43 Am. Jur. §266, p. 81; The Third Class City Law of June 23, 1931, P. L. 932, Art. X, §1009, 53 P.S. 12198-1009. The reasons for this must be obvious — a man cannot serve two masters at the same time, and the public interest must not be jeopardized by the acts of a public official who has a direct pecuniary or personal or private interest which is or may be in conflict with the public interest. With respect to the- specific issues in this case, the authorities have held that a councilman is disqualified from voting in any matter or proceedings where he has a direct personal or pecuniary interest, and the prohibition is so strictly enforced that if a measure is passed by the vote of one or more persons who have a direct private interest therein, no matter how beneficial the ordinance may be, it is void: Reckner v. German Township School District, 341 Pa. 375, supra; Com. v. Raudenbush, 249 Pa. 86, supra; The Third Class City Law, June 23,1931, P. L. 932, §1009, supra. There is no doubt that, as stated by President Judge Bkaham in his able opinion for the court below, each of the four Couneilmen had a direct pecuniary interest in certain important pension provisions of the Ordinance. However, because of necessity, the legislature in this instance expressly or by necessary implication authorized Couneilmen óf a Third Class City to vote on pensions which directly affected themselves. Since this was a radical departure from the salutary public policy of this Commonwealth, the enabling legislative Act would have to be strictly complied with, and where public officials with .a possible dual interest are concerned, strictly construed : Com. ex rel. McCreary v. Major, 343 Pa. 355, supra. The City Ordinance (1) went as we have seen, far beyond anything authorized by and in some respects conflicted with the Act of Assembly, and (2) was fundamentally contrary (a) to the public policy of Pennsylvania, and (b) to the purpose of a retirement or pension system; and (3) in important pension provisions directly benefited four of the five Councilmen in a manner and to a degree unauthorized by the Act of Assembly. To this extent, the Ordinance was obviously null and void. The City of New Castle and the employee contributors to the fund who were not members of City Council point out that in spite of these illegal provisions— which comprise almost the whole heart of the Ordinance — the Ordinance has several valid provisions and these should be sustained, especially as the Ordinance contained a severability clause. Unfortunately, this Ordinance in many of its important provisions is such a fundamental and radical departure from the provisions and the privileges authorized by the Act of Assembly, and the valid and the invalid are so inseparably interwoven that the Ordinance must be held void in its entirety: Murray v. Phila., 364 Pa. 157, 71 A. 2d 280; Willcox v. Penn Mutual Life Ins. Co., 357 Pa. 581, 55 A. 2d 521; Kelley v. Kalodner, 320 Pa. 180, 181 A. 598; Rothermel v. Meyerle, 136 Pa. 250, 20 A. 583; Grishord v. Phila., 148 Pa. Superior Ct. 91, 24 A. 2d 646. Justice Linn in Murray v. Phila., 364 Pa., supra, said (p. 176) : “The principle to be applied by this court in dealing with severability provisions was stated in Kelley v. Kalodner, 320 Pa. 180, 191, 181 A. 598 (1935) as follows: ‘Even though the operation of the act might possibly be valid in some instances, the good and the bad are so inseparably interwoven that we are obliged to reject the levy in its entirety.’ ” In Rothermel v. Meyerle, 136 Pa. 250, supra, this Court said (p. 265) : “If the part which is unconstitutional in its operation, is independent of, and readily separable from that which is constitutional, so that the latter may stand by itself, as the reasonable and proper expression of the legislative will, it may be sustained as such; but, if the pcurt which is void is. vital to the whole or the other provisions are so dependent upon it, and so connected with it, that it may be presumed the legislature would not have passed one without the other,. the whole statute is void: Gibbons v. Ogden, 9 Wheat. 203; City of New York v. Miln, 11 Pet. 102; Packet Co. v. Keokuk, 95 U.S. 80; Tiernan v. Rinker, 102 U.S. 123; Presser v. Illinois, 116 U.S. 252; Lea v. Bumm, 83 Pa. 237; In re Ruan St., 132 Pa. 257; Sedg., St. & Const. Law, 413.” For these reasons we are unanimously of the opinion that the learned court below correctly held that the ordinance was null and void. Decree affirmed at cost of the City of New Castle. Art, III, Section 13. Cf. Altieri v. Allentown Retirement Board, 368 Pa. 176, 81 A. 2d 884. Emphasis supplied.

Opinion by Spaulding, J., Appellant Sampson;-,Miller Associated Companies filed a mechanics’ lien in 1971 for work performed on vacant land in Allegheny County owned by appellee Landmark Eealty Company. The work which furnished the basis of this asserted lien consisted of the following: clearing, grubbing, excavating and grading the land; installation of storm sewers, sanitary sewers, paving and curbing; and seeding. No buildings or other permanent structures were built on these parcels of land. The trial court dismissed appellant’s complaint and struck the mechanics’ lien, holding that “a mechanics’ lien cannot attach to land; there must be a building or part of a building or some type of structure upon which a lien may attach. . . .” This appeal requires a determination of whether a proper construction of the Mechanics’ Lien Law of 1963, will support a mechanics’ lien filed for work on land on which no buildings have been constructed. Mechanics’ liens were non-existent at common law, being purely of statutory origin. As they are in derogation of the common law and since they effectively represent a special remedy in favor of a unique class of creditors, our courts have generally reviewed such claims with a strict construction of the statute which created them. Brann & Stuart Co. v. Con. Sun Ray, Inc., 433 Pa. 574, 253 A. 2d 105 (1989); McCarthy v. Reese, 419 Pa. 489, 215 A. 2d 257 (1965) ; see Act of May 28, 1937, P. L. 1019, art. IV, §58, 46 P.S. §558. The first mechanics’ lien law, enacted in the Commonwealth in 1803, provided, that “Every dwelling house or other building hereafter constructed and erected within the City and County of Philadelphia . . . shall be subject to the payment of the debts contracted for. . . .” By the passage of the Act of 1836, the lien was extended to all counties of the Commonwealth. That Act stated, inter alia, “that every building erected . . . shall be subject to a lien. . . .” Subsequently, numerous amendments to the 1836 Act were adopted, extending the lien to cover various services rendered in conjunction with building construction. These culminated in the passage of the Act of 1901, which repealed the 1836 Act and most of the amendments. That statute provided: “Every structure or other improvement and the curtilage appurtenant thereto, shall be subject to a lien for the payment of all debts due to the contractor or subcontractor, in the erection and construction or removal thereof . . . and all sidewalks, yards, fences, walls or other enclosure belonging to said structure or other improvement, and in the fitting up or equipment of the same, for the purpose for which the improvement is made.” Prior to this, however, Article III, §7, of the Pennsylvania Constitution of 1874 had prohibited the General Assembly from passing “any local or special law authorizing the creation, extension, or impairing of liens ... or providing or changing methods for the collection of debts. . . .” The foregoing legislative attempt to broaden the right to lien was thereafter declared unconstitutional and unenforceable insofar as it extended the right to lien beyond that which existed at the time of the adoption of the 1874 Constitution. Parkhill v. Hendricks, 53 Pa. Superior Ct. 9 (1913); Kinsinger v. Keasbey & Mattison Co., 193 Pa. Superior Ct. 383, 165 A. 2d 107 (1960). The most recent change in this remedy was the 1963 Act which provides the statutory basis for the instant claim. Essentially it recodified the 1901 Act and existing decisional law, without abridging or enlarging the right to lien. In 1967, the existing constitutional limitation on legislative power to affect such liens in Article III, §7, was repealed. Appellee contends that our interpretation of the scope of the lien provisions of the 1963 Act is nevertheless limited by the constitutional prohibition which existed at the time of its enactment, in spite of the subsequent repeal of that prohibition. However, our construction of the plain wording of the 1963 Act renders unnecessary a resolution of this constitutional question. The 1963 Act provides: “Every improvement and the estate or title oí the owner in the property shall be subject to a lien . . . for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement. . . .” “Improvement” is defined in the Act as “[including] any building, structure or other improvement of whatsoever kind or character erected or constructed on land, together with the fixtures and other personal property used in fitting up and equipping the same for the purpose for which it is intended.” This language, without more, would appear to support appellant’s argument in support of a valid lien, i.e., that his work created a permanent and valuable improvement on appellee’s land, regardless of the construction of any kind of “building” thereupon. “Improvement” has been defined as “a permanent addition to real property that enhances its capital value . . . and is designed to make the property more useful or valuable.” Certainly the erection of curbing, paving, and sewers, if not grading, excavating, clearing and seeding, would fit within this standard without any stretching of the word. Here, however, we are faced with additional statutory material which governs such preliminary work and precludes the interpretation sought by appellant. “Erection and construction” means “. . . the erection and construction of a new improvement or of a substantial addition to an existing improvement. . . .” The definitional sections go on to include within the scope of “erection, construction, alteration or repair”, the following: “demolition, removal of improvements, excavation, grading, filling, paving and landscaping, when such work is incidental to the erection, construction, alteration or repaid.” (Emphasis added.) The aforementioned section was intended to declare “existing decisional law with respect to such work upon the ground . . . which is incidental to the erection, construction, alteration or repair of an improvement, as compared to such work when it is performed independently of any erection, construction, alteration or repair of an improvement, in which latter case no lien is allowed.” Comment— Joint State Gov’t. Commission, 1964 Report, 49 P.S. §1201(1), (12). Court interpretations of earlier statutes prior to the 1963 enactment had indeed provided protection for those who did preliminary work similar to that performed by appellant, but only if that work was connected to, and an integral part of, the erection, construction, alteration, or repair of the main improve- meat, the main improvement being a dwelling or other permanent building or structure. See Alan Porter Lee, Inc. v. Du-Rite Products Co., 366 Pa. 548, 79 A. 2d 218 (1951) (architect’s lien for drawings and plans under 1901 Act valid only if he actually supervises or superintends construction work); Yearsley v. Flanigen, 22 Pa. 489 (1854) (lien for paving valid only when part of a contract for brick and stone work for building construction); Kinsinger v. Keasbey & Mattison Go., supra. “Buildings” as improvements have been extended to include all structures of a substantial and permanent nature. Short v. Miller, 120 Pa. 470 (1888); Short v. Ames & Keese, 121 Pa. 530, 15 A. 607 (1888) (lien allowed on oil refinery). In no case, however, has a lien been allowed for work on land alone where no building or permanent structure is erected. Constrained as we are by the plain words of the statute and by these expressions of the intention of the legislature, see The Statutory Construction Act, Act of May 28, 1937, P. L. 1019, art. IV, §51, 46 P.S. §551, we must affirm the trial judge’s holding that no lien can attach to land for work unconnected to the construction of a building. We reach this result reluctantly, however, and urge the legislature, now freed of restraints in this area by the 1967 constitutional amendments, to liberalize the wording of the statute to bring within the purview of the lien work similar to that done by appellant. The present scope of the lien -would deny a lien to a mason who constructed the foundation for a building, if the building, for whatever reason, were not constructed. Likewise, as here, one who laid a network of streets on undeveloped land is given no security for this debt, while one who does the identical work on land where a house is being built enjoys the security of the lien. These seem to be anomalous if not inequitable results, particularly in light of the aims of such legislation to encourage construction and afford protection for laborers. In addition, the conditions prevalent at the time of the inception of the mechanics’ lien concept and on which the refusal to extend it to work on land alone were based, no longer exist. The historical opposition to the extension of such liens stems from the common law and later-day reluctance to encumber real property, particularly as land and agriculture were viewed as the source of all prosperity. See, e.g., Young v. Shriver, 56 Cal. App. 653, 657, 206 Pac. 99, 101 (D.C. App., 1922). In light of the transformation to a commercial, service-oriented economy, it would appear that the failure to extend the lien to cover improvement of land, regardless of its connection to the construction of buildings, lacks any rational policy basis. The order of the court below is affirmed. 49 P.S. §§1101 et seq., Act of August 24, 1963, P. L. 1175, art. I. It should be noted that some jurisdictions have applied a liberal interpretation of their statutes, e.g., Mazel v. Bain, 272 Ala. 640, 133 So. 2d 44 (1961) ; others construe the right to lien narrowly and the procedure for perfecting such liens liberally, e.g., Friedman v. Stein, 4 N.J. 34, 71 A. 2d 346 (1950). Act of April 1, 1803, P. L. 591, 4 Sm. L. V. Act of June 16, 1836, P. L. 695, §1. Act of June 4, 1901, P. L. 431, §2, 49 P.S. §21. See Comment — Joint State Gov’t. Commission, 1964 Report, 49 P.S. §1201(1), (12). In support of the claim that the 1967 constitutional amendment would not apply retroactively, appellee cites Lower Macungie Township Annexation Case (No. 1), 213 Pa. Superior Ct. 313, 248 A. 2d 58 (1968), for the proposition that new constitutional provisions of a restrictive nature apply prospectively only, allowing existing statutes, not expressly or impUedly repealed, to remain in full force and effect. Perkins v. Slack, 86 Pa. 270 (1878). The issue here differs in that appellant contends that a constitutional amendment repealing a prior restriction on legislative authority effectively “breathes life” into statutes which were, at least partially, unconstitutional when enacted, due to their scope having conflicted with the repealed constitutional provision. Although there appear to be no Pennsylvania cases on this precise question, the weight of authority in other jurisdictions appears to bo against the validation of unconstitutional statutes by subsequent constitutional amendments which merely authorize the enactment of such statutes, absent an express or implied ratification of those statutes. Village of Mt. Pleasant v. Vansice, 43 Mich. 361, 5 N.W. 378 (1880), Fleming v. Hance, 153 Cal. 162, 94 P. 620 (1908). But see People ex rel. McClelland v. Roberts, 148 N.Y. 360, 42 N.E. 1082 (1890), where the court found “no reasonable or just foundation” for requiring the legislature to re-enact a statute in order to give it effect. See footnote 1, supra, 49 P.S. §1301. See footnote 1, supra, 49 P.S. §1201(1). Webster’s Third New Int’l. Dictionary (1969). Indeed, a growing number of states have seen fit to include witbin tbe purview of tbeir mechanics’ lien statutes sueb work wbicb is preliminary to actual building construction. See, e.g., Cal. Civ. Code §§3106, 3110 (Supp. 1973) ; Hawaii Rev. Statutes, Title 28 §§507-41 (1955) ; Texas Rev. Civ. Stat. art. 5452 (Supp. 1961) ; Ill. Rev. Stat. ch. 82 §1 (1972). See footnote 1, supra, 49 P.S. §1201(10). See footnote 1, supra, 49 P.S. §1201(12) (a). Sidewalks, alone, have never been regarded as “improvements” subject to lien. The Comment to the definition of “improvement” in the 1963 Act notes that “improvements such as sidewalks, yards, fences, walls” are “deemed included in the generic definition of ‘fixtures and other personal property used in fitting up and equipping [the improvement] for the purpose for which it is intended’.” This indicates the envisioning of there being a building or structure to be “fitted up”; a sidewalk would not as appellant contends, itself qualify under the Act as an improvement. Indeed, the first mechanics’ lien statute in America was enacted to facilitate the construction of the city of Washington, D. C. See Cushman, The Proposed Uniform, Mechanics’ Lien Law, 80 U. of Pa. L. Rev. 1083 (1932).

The opinion of the Court was delivered by Sergeant, J. By the 7th section of the Act of 26th July 1842, establishing the Nisi Prius Court, the provisions of the 7th section (among others) of the Act of 11th March 1836 are extended to original actions brought in the Supreme Court in the city and county of Philadelphia. The 7th section of the Act of 11th March 1836 enacts that whenever the defendant upon the trial of a cause in the District Court shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if in his opinion the plaintiff shall have given no such evidence as is in law sufficient to maintain the action; with leave, nevertheless, to move the court in banc to set aside such judgment of nonsuit. And in case the said court in banc shall refuse to set aside the nonsuit, the plaintiff may remove the record by a writ of error into the Supreme Court for revision and revisal, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence. The case, therefore, seems to come up to this court by certificate from the Nisi Prius judge in the same manner as it does by writ of error from the District Court; and there, although the first part of the clause requires the judge on motion for nonsuit to grant it if the plaintiff has given insufficient evidence, yet by the latter which controls it, the motion for nonsuit is in efféct a demurrer to evidence, with the exception noticed in Smyth v. Craig, (3 Watts & Serg. 18), that the judge is not at liberty to give judgment for the plaintiff, should he think the case made out, but should refuse the nonsuit and put the case to the jury. Considered, therefore, as a demurrer to evidence, the rule is that the plaintiff is entitled to the benefit of every inference of fact which the jury might draw from the evidence, the defendant being considered as admitting every fact which the evidence tends to prove. The law arises on the facts, not on the evidence. In the present case there was some evidence, though slight, on the part of the plaintiff, on which he had a right to an inference by the jury, if they chose to make it, and therefore the case ought, we think, to have gone to the jury. It is proper to say that this point was not made in the court below, on the motion for a nonsuit. Judgment reversed, and venire facias de novo awarded.

Mr. Justice Green delivered the opinion of the court, October 2d, 1883. This vras a proceeding on the equity side of the court below. It was a bill, the purpose of which was to procure a decree, setting aside a voluntary conveyance, made by a son to his father of the whole of his estate upon certain trusts therein stated. The property conveyed was personal estate, and by the terms of the deed, the income was to be received by the grantor during his life. After his death the grantee was to pay ten thousand dollars, at his discretion, to the only child of the grantor, and the remainder of the estate was to be divided equally between his father, mother and sister. The value of the property conveyed was about $70,000, and the only consideration for it stated in the deed was the sum of five dollars, which, it is said and not denied, was never paid. Jacob A. Miskey, the grantor, had a wife, and one child, a son, about fifteen years of age at the time of his death. No provision whatever was made for the wife and none for the child except the payment of $10,000 in the manner stated. The deed contained no power of revocation. Miskey’s wife and child were living apart from him at the time of his death and for some sixteen months prior thereto, the separation having been occasioned, as was alleged and found by the Master, by his habits of gross and long-continued intoxication and disorderly conduct in his household. The deed was impeached upon various grounds, principally, want of consideration, undue influence exerted by the father, mother and sister, great mental weakness resulting from his long-continued and excessive use of intoxicating liquor, and fraud and deception practiced upon him by the donees named in the deed. An answer ■was filed denying the allegations of the bill and after replication the case was referred to a Master, who reported a decree declaring the deed to be fraudulent and void, and ordering it to be delivered up to be cancelled, and ordering also a return of the various stocks and securities conveyed by the deed. An examination of the Master’s report discloses the various considerations upon which his findings of fact and law were based. He does not find that the deed from Jacob A. Miskey to Anthony Miskey his father, was procured to be made by actual fraud and imposition practiced upon the son by the father, but that certain facts were shown to have existed, and certain other facts which ought to appear in support of such an instrument do not appear, and are not to be found in the testimony, and that the combined effect of these affirmative and negative facts is such that an inference'>of fraud arises sufficient to invalidate the deed. Thus he finds that the conveyance was purely voluntary and without consideration; that it contained no provision whatever for the support of the wife of the grantor, and no adequate provision for the support of his only child; that the grantor had for several years before, and up to the time of the execution of the deed to his father, been given to habits of gross intoxication and to the excessive and inordinate use of alcoholic liquors, insomuch that he had become, and was, an habitual drunkard; that the deed contained no power of revocation, and that there was no testimony in the case showing that this fact was known to him or was in any manner explained to him ; that it did not appear that tlie deed was read over or explained to him at or before its execution; that the grantor was, at the time the deed was signed, and always had been, especially subject to the parental influence of his father, and that from all the testimony in the case it was fairly to be inferred that the deed was procured to be made by means of the exertion of that influence: that the grantor entertained a strong affection for both his wife and his child and that they had done nothing to forfeit either his affection or their right to adequate protection and support from him and his estate; that the grantor had become very-much impaired both in mind and body in consequence of his excessive use of alcoholic liquor, and that the deed to his father was not the intelligent act of Jacob A. Miskey when in the fair possession of his faculties. The Master applies the equitable rules, that the absence of a power of revocation from a voluntary deed conveying the property of a grantor, is a circumstance which may be availed of to set aside the deed on the ground of mistake, and that where one occupying a confidential relation with another takes a voluntary benefit from the person reposing the confidence, he is subject to a duty to prove affirmatively that the conveyance was the intelligent and deliberate act of the grantor, free from the exercise of the influence of the relation existing between the parties. As to many of these findings there is no controversy. There is no question that the conveyance was purely voluntary, that it contained no provision for the support of the wile, and a provision of but ten thousand dollars for support of the child. As the estate transferred amounted to seventy thousand dollars, we think it clear that ten thousand dollars, or one seventh of the whole, was an inadequate provision for the child. A mere inspection of the deed shows that it contains no power of revocation, and there is no testimony that it was Jacob A. Miskey’s expressed desire that it should contain no such power, or that the fact of its omission was explained to him or in any way known to him. It is also quite clear that he was much attached to both liis wife and child, and treated them with kindness and sincere affection, when in the full possession of his faculties. There is nothing in the testimony showing that either of them had done anything to forfeit his regard for them or their right to his protection, and to support from his estate. The act of his wife in leaving him was occasioned solely by bis habits of intoxication and his conduct when in that condition. The Master has so found, and the evidence abundantly justifies liis finding on that subject. The only remaining matters of fact involved in the controversy are those which relate to liis use of liquor and habit of intoxication, and the effect thereby produced upon liis mind, and the extent and character of the parental influence to which he was subject, and its employment in producing the execution of the deed in question. There is considerable testimony in the case of persons who saw Jacob A. Miskey with greater or less frequency, and say that they never, or very seldom, saw him intoxicated. Most, perhaps all, of these witnesses testify that in their opinion he was of sound mind, capable of transacting business and of making contracts, and of ample testamentary capacity. A number had business transactions with him and base their opinions .upon those transactions, and upon the negative fact that they did not see him intoxicated. Of course a great deal of this testimony is of a negative character, and the opinions expressed are necessarily affected to some extent by that consideration. One who is frequently drunk may nevertheless in 'his sober moments have adequate capacity for the transaction of business. In this case it is not disputed that Jacob A. Miskey accumulated quite a fortune, and there is no evidence that he had made unfortunate transactions or squandered his means. Were there no other evidence in the case except the testimony of the witnesses to whom we are now referring, we should regard the contention of the appellants as sustained on this branch of the case. But when we regard the character, and the extent of the testimony on the other side, and the great number of the witnesses who testify to facts observed by themselves, of almost daily occurrence, who had the very best opportunities of observation, whose testimony is not contradicted, who had no rnotiye for concealing or exaggerating the truth, we cannot resist the conclusion that the Master’s findings on this subject were not only justified but demanded bj7 the evidence before him. It is not necessary, and would scarcely be proper, to review in detail, in this opinion, the whole of the testimony on this subject. It came largely from bar-tenders and saloon keepers from whom he was in the daily habit of obtaining liquor, and from police officers who, at his father’s request, watched him, cared for him, and frequently took-him home in a condition of gross intoxication. One of the witnesses, John Able, Jr., who was a saloon keeper, and had known him for many years, and said he was a drinking-man from 1859, described his habit of coming to his saloon and getting his flask or bottle filled every week, and thus testified : “ During 1868 and 1869 the bottle would average about once a week, and three times a week with the flask during the same week. The flask generally Monday, Wednesday and Friday, and the bottle on Saturday for ‘ home use,’ which was his remark. I considered him a great drinker from 1868 to 1875, in the fall. There was very little deviation. He was worse as a drinker toward 1874 and 1875. I have indeed seen a great many hard drinkers. I must say one thing for Jacob Miskey, that during the years 1873, 1874 and 1875 I never saw a man in such a beastly state of intoxication, so often as I saw him. It appeared to me, and I saw him nearly every morning, about a quarter of ten in the morning, that he was in a beastly state of intoxication at that hour in the morning on his way to the office.” After describing Miskey’s habit of constant and excessive drinking with much more detail, the witness said further: “His memory in 1874 and 1875 seemed to be very much impaired, because I don’t think he could recollect what occurred from one hour to another. In my opinion he was most undoubtedly an habitual drunkard. During 1874 and 1875 I don’t think that mentally he retained his manhood.”.“In 1874 and 1875 I did not consider him a sane man. He acted like as if his brain was diseased — softening or something or other. I did not in fact consider he was a responsible man for his actions during those two years. 1 do not consider that during those two years he was capable of properly conducting business.”. “I think those things” (a number of facts to which he had testified) “ indicated that his mind was unsound. He was imbecile or idiotic.” James M. West, a member of the bar, who occupied an office in the rear of that of A. Miskey & Son, said: “I suppose I saw young Jacob Miskey every day — had to pass his office door to get into mine.I think he was the hardest drinker, for a man of his age, that I ever knew. ..... I don’t think I ever saw him when he was entirely sober. He would be tolerably free from liquor in the early part of the morning, but by two or three o’clock in the afternoon he would be very drank — this was a constant occurrence — he manifested it very often by making most terribly uncouth noises in his room, to the great annoyance of myself and those in my office.I have had occasion to go into his office and found him frequently in such a condition that he would bo unable apparently to understand and answer a question that I would ask him.Personally he had all the appearance of being a habitual drunkard, very much bloated, and the general appearance of a man who drinks hard. As far as I can judge, most of the time he was not in condition to attend to any business at all. What little business I had with them I always transacted with the father on that account. I did not consider him fit to attend to business. 1 mean to say this: that my judgment was that he went to bed drunk at night, was so thoroughly saturated with the liquor that it was’nt worked off him in the morning by the night’s sleep, and that when I would see him the next morning he was still under the effects of a previous day’s dissipation.” Frederick Day, also a member of the bar, having an office in the same building across the hall from A. Miskey & Son, testified : “ He was unquestionably a constant drinker, there is no doubt about that.His appearance was that of a man who was, to put it plainly, soaked in whiskey.He really looked to me, and his speech and action indicated, that he was a man who was semi-idiotic, imbecile. I wish to be understood that it was not the mere temporary effect of whiskey, but he seemed to have got to that point when he was becoming — well, idiotic is the only expressive word.” William P. Jones, who was a bar-tender, first at Prosser’s on Market street, and afterwards at Price’s restaurant on Chestnut street, said he first knew Jacob A. Miskey at Prosser’s in 1865, when he would come about three times a week, get a drink and his flask filled, and was then a moderate drinker. Afterwards he saw him at Price’s until in July, 1875. At the latter place, the witness testified, “He used to come there twice every day. I was behind the bar. He would come there about nine or ten — about ten — and get whiskey, and I would fill his flask, generally every morning, and also at noon —at dinner time he would get his flask filled.”.“ When. I saw him at Price’s-he used to drink more. It grew on him. I can hardly describe it. He would take about half of an ordinary bar tumbler full of whiskey.” Being asked how Miskey ranked as a whiskey drinker, as a moderate one or otherwise, he answered: “ Otherwise, I should say he excelled any one I ever saw.”.“I have seen him intoxicated. For the last three years I could hardly tell when he was not intoxicated. He was of very full habit, flushed about his face. He indicated a man that drank very hard. A man that did not know him would say that. I have frequently seen him stagger — generally before three — somewhere in the neighborhood of one, when he came to dinner. Q. So far as you were able to judge during the last three years, what was his mental capacity ? A. He didn’t really seem to know sometimes what he liad said to me a few minutes before. I judge it was excessive drinking that did it.Q. In your opinion was he, or was he not, an habitual drunkard ? A. He was' — one confirmed drunkard for the last three years. I could scarcely tell when he was sober: if he was, it was in the morning when he first came.” George R. Stocker, who lived next door to Miskey during 1874, and to the time of his death, after describing occasions when he saw him intoxicated, was asked: Q. In your opinion was Mr. Miskey, dur ing tbe time you knew him, an habitual drunkard or not ? A. “ Yes, sir ; he was undoubtedly, that is, I would say that eighty or eighty-fiye per cent, of the time that I knew him I should say he was drunk. Q. What was his capacity, as far as you know, to transact business ? A. I should say he had none at all for transacting business.” William H. Price, who was a restaurateur at Price’s on Chestnut street, said that he knew Jacob A. Miskey from 1860, but more particularly from 1871, when he came to liis father’s restaurant where he was cashier. “ He visited our place on an average four or five times a day.He came there mostly to drink whiskey. He would get a small flask filled with whiskey, which I judge he carried in his pocket. He would first come between nine and ten A. m., on his way to bis office, I judge. He came to drink whiskey. When he first came in the morning, or at no time was he perfectly sober; lie was generally 'iiot sober by no means; be was trembling, and he acted to me more like a man who was getting off a spree.” • The witness further describes tbe frequency of Miskey’s drinks, and was asked: Q. What was his mental condition? A. “Well, I think it was very poor. I have seen a great many drinking and drunken men. 1 think he excelled all men I ever did see in. regard to drink. 1 don’t think in my opinion he was able to take care of himself after he left me.I have had conversations with him. He appeared not like a man to me, but a child. Ho talked more foolishness, and he appeared more like a child. His memory was poor. ..... I think lie was an habitual drunkard.” The foregoing are mere fragments of a huge mass of testimony of a similar character, which abundantly justifies the. findings of tbe Master, in this branch of the ease, in the following words: — “ lie became more and more tbe victim of liis intemperate and insatiable thirst for whiskey. His sprees were frequent and more than once he had the delirium tremens. He would come home and be brought home by policemen and others at all hours of the night drunk, and when in that condition he would behave himself in a rude, noisy, and unkind manner, to his wife and child, breaking the furniture and behaving in such a manner that tbe house was not a quiet and desirable borne, and be annoyed and disturbed bis neighbors. His debauches would last for a week or more, to be followed by sickness'at home, when his wife and mother would nurse him. liis habits were such and so well known, that when he would be away from the place of business of the firm, his father would apply to the police to find him and get him to go home ; and this applies to the police officers in Germantown as well as those in the city. Frequently nurses and police officers were employed by Mr. Anthony Miskey to nurse and take care of him when he was gotten off from his debauches and was sick in consequence. The result of these debauches and the excessive amount of whiskey he drank began to tell upon his phyiscal condition. He became slovenly in his habits, his appearance became that of a drunkard, he was bloated and besotted, and maudlin-looking, he appeared to be saturated with liquor; he was bloated and had the general appearance of a man who drinks hard. In the early part of the day he would be tolerably free from liquor, but toward the afternoon lie would be well drunk, and would make uncouth noises in his office, such as loud hallooing, imitating cats, barking like a dog, and various other noises, some of the witnesses describe him as having the appearance of a man soaked in whiskey. At the taverns where he had his debauches his performances were so filthy as to be unfit for further description in this report. He reeled in the streets of the city, in the highways of Germantown, •and became a shame and a disgrace and humiliation, to his own and his wife’s family.At one time Mr. Anthony Mis-key consulted physicians in reference to the propriety of put-ling him in an asylum, but this unfortunately was never done. He was attended repeatedly by his physicians in his sickness, produced by his excessive use of whiskey, and he was by them remonstrated with on the subject, but it was of no avail. The Master has no hesitation in reporting as a fact that at the time of the execution of the deed Jacob A. Miskey was an habitual drunkard, and had been so for several years previously thereto.He had ‘a fixed habit of drunkenness.’ He was ‘ habituated to intemperance whenever the opportunity-offered.’ And he himself made this opportunity, filling his flask, silently drinking by himself, hiding his stores of whiskey in unusual places about the house, and getting continually drunk. And this state of things continued during the last six or eight months of his life, covering the period of the execution of the deed of trust.” A patient and attentive examination of the testimony satisfies us that all the details of this finding were fully established by the evidence before the Master. It was argued that because the proceeding in habitual drunkenness resulted iri a finding by the jury that Jacob A. Miskey was not an habitual drunkard, that finding is conclusive upon the parties and can not now be impeached. We do not regard this position as tenable. All the authorities concur in holding that the inquisition whether of lunacy or habitual drunkenness is only prima facie evidence of mental infirmity during the period found, and its effect is to shift the burden of proof to the party asserting capacity: Sill v. Mc Knight, 7 W. & S. 244; Leckey v. Cunningham, 6 P. F. S. 370; Klohs v. Klohs, 11 P. F. S. 245; McGinnis v. Commonwealth, 24 P. F. S. 245. As this is the rule in 'cases where the finding is affirmative, of the fact of lunacy or drunkenness, it certainly can have no higher effect where the finding is merely negative. Moreover, this is a proceeding in a court of chancery to set aside an alleged improvident deed, partly upon the ground that the mind of the grantor had become greatly weakened and impaired by the long-continued, and execessive use of alcoholic liquor, and not upon the mere technical, statutory fact, of habitual drunkenness. The conscience of the court, if satisfied of the truth of the allegation upon the whole of the evidence taken, certainly would not be relieved by the statement that a jury of laymen in another proceeding to declare the party an habitual drunkard, had found that the charge was not established. This would be so even if the evidence in the two proceedings were the same, much more would it be so where, as here, considerably more testimony was given before the Master than before the jury. The proceedings were not the same nor was the issue the same. But in any event the prima facies of the-inquest has been overthrown by the preponderating testimony taken before the Master. The finding of the Master that Miskey was an habitual drunkard has no relation to the proceeding in habitual drunkenness. It does not affect it one way or the other. He does not declare that because he has so found, the deed of trust is void, but he uses the facts found by him to show the character of Miskey’s mental qualifications to appreciate and to execute the deed. Ho thus states the bearing of the fact of habitual drunkenness found by him, upon the case: “Yet this fact and all others in this connection, have a material bearing upon the main question, whether the deed was the intelligent act, uninfluenced, of a man competent, by reason of the full possession of his faculties, to execute such an instrument.” On the question of parental influence, the Master finds that Jacob A. Miskey never passed beyond the parental influence or control of his father. He was with his father as clerk before he attained his majority, and on the day he became of age his father took him into partnership, and this relation continued for eighteen years. After that, and to the time of his death, he continued under his father’s care and influence. A strong mutual affection at all times subsisted between them, and the Master reports that there was no reason to doubt “what a very intelligent witness said about them, ‘There was no man alive that could do with Jacob Miskey what his father could. I think he would do for his father what he would not do for any living person on earth; from his affection and regard for his father.’ ” After the dissolution of the partnership which was the act of the father, in 1873, he was still employed and paid some compensation by his father for some months, his rent and other bills were paid through his father’s bank account, and the counsel who defended him in the proceeding in habitual drunkenness, were employed and paid by his father. During his last sickness and for some time before, Anthony Miskey came to his son’s house every day, controlled him in the use of money, paid the servants, and gave orders shortly before his son’s death that Jacob’s wife and son should not be left alone in the room with him. Many other facts showing the character and extent of the influence and control exercised by Anthony Miskey over his son are set forth in the Master’s report, are fully established by the testimony, and indeed are not contradicted by any opposing testimony. The Master also finds that there was no reasonable motive shown for the deed, as Jacob’s father was a man of wealth, and his mother and sister were well provided for, and in his rational moments he always regarded his wife and son with great affection. He further finds, upon uncon-tradieted testimony that apart from the facts of execution and acknowledgment there is no evidence that Jacob A. Miskey read the deed or heard it read, or that he clearly understood its effect; and that there was no affirmative evidence to show that he never knew there was no power of revocation in the deed, or that he had a deliberate intent to make the deed irrevocable. The Master sums up his report on this branch of the case thus: “The whole testimony in the cause, with all the circumstances surrounding the deed satisfies the Master that the deed of trust was the result of the undue parental influence of Anthony Miske.y.” We think this conclusion is a legitimate deduction from the evidence. These facts being established, the legal and equitable principles applicable to the case, render it of comparatively easy solution. In Russell’s Appeal, 25 P. E. S., on page 289, Agnew, C. J., referring to the effect of the absence of a power of revocation in a marriage settlement, and the necessity of an intent to make the gift irrevocable, appearing in the case, says: “The cases cited by the Master show very distinctly that the actual intent of the donor is necessary; and in the absence of a certain intent to make the gift irrevocable, the omission of a power to revoke is prima facie evidence of a mistake, and casts the burthen of supporting the settlement upon him who, without consideration or a motive to benefit him or protect the donor, claims a mere gratuity against one who is sui juris and capable of taking care of bis own estate.” The report of Mr. Robb, the Master in that case, which was ordered to be printed with the opinion of the court, contains a most able and exhaustive review of the law in such cases. He cites a number of recent English cases which were fully recognized as authoritative in the opinion of this court. Among others is that of Wollaston v. Tribe, Law Reps. 9 Eq. 44, in which it was held that a person taking a benefit under a voluntary gift, which is not subject to a power of revocation, has thrown upon him the burden of proving that the gift was meant by the donor to be irrevocable, and that a voluntary gift not subject to a power of revocation, but not meant to be irrevocable may be set aside by the donor. In Coutts v. Acworth, Law Reps. 8 Eq. 558, it was held that the party taking a benefit under a voluntary settlement or gift containing no power of revocation, has thrown upon him the burden of proving that there was a distinct intention on the part of the donor to make the gift irrevocable. In Hall v. Hall, Law Reps. 14 Eq. 365, it was decided that “ where, in a voluntary settlement of real estate a revocable deed would have answered the settlor’s purpose as well as an irrevocable one, the absence of a power of revocation is prima facie evidence of mistake, and that evidence can only be rebutted by showing that the settlor had his attention pointedly called to the fact that the instrument was irrevocable, and that he could have equally effected his purpose by a revocable one.” Of course it is not pretended, and the Master in the present case did not decide, that the mere absence of a power of revocation is sufficient, of itself, to set aside the instrument. But that fact is a circumstance which throws the burden of proof upon the party taking the benefit, and in the absence of proof of a distinct intention to make the gift irrevocable, if the other circumstances of the case require it, the conveyance will be set aside. Other authorities to the same effect are: Huegenin v. Baseley, 14 Ves. 273 ; Phillipson v. Kerry, 32 Beav. 628 ; Garnsey v. Mundy, 13 Am. Law Reg. 345 ; May on Voluntary Conveyances, 451. It needs only to be added in this connection that there was no affirmative proof of a distinct intention on the part of Jacob A. Miskey to make this gift irrevocable, nor is there any proof that iiis attention was ever called to the subject. In regard to the effect of the parental relation, and the influence thereby exerted upon the transaction, the authorities are very clear, and are strikingly applicable to the facts of this case. This court has adopted and enforced the most advanced equity doctrines upon this subject. In Darlington’s Appeal, 5 Norris 518, Mr. Justice Trunkey, in delivering the opinion of this court, said : “Constructive fraud often exists where the parties to the contract have a special, confidential, or fiduciary relation, which affords the power and means to' one to take advantage of or exercise undue influence over the other. Whenever from such relation considerable authority or influence necessarily exists on the one side, and a .corresponding reliance and confidence is placed on the other, a party will not be suffered to abuse this authority or influence by extracting any advantage to himself. A transaction between persons so situated is watched with extreme jealousy and solicitude, and if there be found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party. Owing to the near connection between the parties in manjr relations, the transaction itself is considered so suspicious as to cast the burden of proof upon the person who seeks to support it, to show that he has taken no advantage of his influence or knowledge, and that the arrangement is fair and conscientious.” In Turner v. Collins, Law Rep., 7 Ch. App. 829, the Lord Chancellor, Hatherly, said : “ If the father himself takes a benefit then arises the jealousy of the court, and we have to consider how the child’s intention was produced. And even if we find the intention which the instrument describes, still the question arises, how has that intention been produced ? Influence is a thing which is assumed as between father and child, not that the influence is assumed to be unduly exercised, but that the influence is assumed, and it is then thrown upon the father, if he takes any benefit, to prove what is called the righteousness of the transaction, and the court has to see that every proper protection was thrown around the child, and that the child has deliberately and advisedly, and under protection, done that by which his father has obtained a benefit.” In the same opinion the Chancellor thus describes the character of the parental influence to be apprehended and guarded against: “ When we talk of parental influence we do not think of terror in connection with it — that is not the primary idea — it is not terror and coercion, but kindness and affection which may bias the child’s mind, and induce the child to do that which may be highly imprudent, and which if the child were properly protected he would never do.” This is the very kind of influence which existed in an eminent degree between Anthony Miskey and his son. In Huegenin v. Baseley, 14 Ves. 273, Lord Eldon thus presents the subject: “ Take it that she intended to give it to him, it is by no means out of reach of principle. The question is, not whether she knew what she was doing, had done, or proposed to do, but how the intention was produced ; whether all tbat care and providence was placed round her, as against those who advised her, which from their situation and relation with respect to her they were bound to exert on her behalf.” In Hoghton v. Hoghton, 15 Beav. 278, the Master of the Rolls said: “lam of opinion, as I lately held in a case of Cook v. Lamotte, that wherever one person obtains by voluntary donation a large pecuniary benefit from another, the bur-then of proving that the transaction is righteous, to use the expression of Lord EldoN in Gibson v. Joyes, falls on the person taking the benefit. But this proof is given if it be shown that the donor knew and understood what it was that lie was doing. If, however, besides obtaining the benefit of this voluntary gift from the donor, the donor and donee were so situated towards each other that undue influence might have been exercised by the donee over the donor, then a new consideration is added, and the question is not, to use the words of Lord Eldon in Huegenin v. Basely, whether the donor knew what he was doing, but how this intention was jjroduced : and though the donor was well aware of what he did, yet if his disposition to do so was produced by undue influence, the transaction would be set aside. In many cases the court, from the relations existing between the parties to the transaction, infers the probability of such undue influence having been exerted.” In Rhodes v. Bate, Law Rep., 1 Ch. App. Cases 252, Lord Justice Turter said: “ I take it to be a well established principle of this court that persons standing in a confidential relation towards others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the court that the person by whom the benefits have been conferred had competent and independent advice in conferring them. This, in my opinion, is a settled general principle of the court, and I do not think that either the ago or the capacity of the person conferring tiie benefit, or the nature of the benefit conferred, affects this principle.” In Savery v. King, 5 House of Lords Cases, p. 627, the Lord Chancellor said: “ I must not be understood as questioning the position that a son may give up all or any portion of his property to his father without consideration. Undoubtedly lie may do so : but then it is incumbent on the father, accepting such a benefit, to satisfy the court before which the transaction is impeached that the son fully understood what he was doing ; that no artifice or contrivance was made use of to induce him to do the act complained of, and that the son had competent means of forming an independent judgment. The father is bound to make this out.” The same doctrine was asserted and applied in the cases of Comstock v. Comstock, 57 Barb. 453, and Boyd v. De La Montagnie, 73 N. Y. Rep. Court of Appeals 498, and by this court in cases of wills giving benefits to the persons who were instrumental in procuring their execution; in Boyd v. Boyd, 16 P. F. S. 283; Cuthbertson’s Appeal, 1 Out. 163; and in Jones’s Appeal, 39 Leg. Int. 52, which was a voluntary deed set aside by the court below, affirmed by this court, Sharswood, C. J., saying: “It is sufficient to invalidate any instrument by a person of weak intellect to show that the person in whose favor it is framed held a situation of confidence with respect to the maker of such instrument.” In reference to the matter of “ independent advice,” it is to be observed that the. deed was prepared by Mr. W. L. Hirst, a very eminent member of the bar of this Commonwealth, but that gentleman had previously been; and was at the time, the counsel of Mr. Anthony Miskey, and, in point of fact, he was employed and paid by the latter to defend his son in the proceedings in habitual drunkenness. In these circumstances Mr. Hirst cannot be regarded as the independent adviser of Jacob A. Miskey in the matter of the deed of trust, in which Anthony Miskey was so largely interested. Did time and space permit, it would be interesting and instructive to point out’ the many circumstances which indicate the presence and exertion of the parental influence of the father in procuring the execution of the deed of trust. But this work has been so well and ably done in the report of the learned Master, that it is unnecessary to repeat it here, and the already too great length of this opinion is admonitory of the necessity of curtailment. It has seemed to us appropriate to dwell with rather moi-e than usual fullness upon our review of the case, because of the unusual character of the questions involved and the relief invoked, the very large amount at stake, and the earnestness, zeal and ability .with which the argument was conducted by the learned counsel on both sides. In brief, the controversy presents to us the case of a voluntary conveyance by a son to his father, mother and sister, of his entire estate, less a small provision for the only child of the grantor, the latter having at the time a wife for whom no provision was made, and a son for whom there was an inadequate provision, the father being of affluent circumstances, and the mother and sister being entirely comfortable and requiring no provision; the deed containing no power of revocation, and-there being no proof that the grantor was conscious of that fact, or that his attention was called to it, and a revocable deed being just as serviceable for his purpose as one that was irrevocable ; the grantor being at the time, and for many years previously, a person of grossly intemperate habits, in an almost constant state of intoxication, with mind and body greatly impaired and enfeebled thereby; the relation of parent and child existing between the principal grantee and the grantor, and there being no proof by any of the grantees independently of the deed itself that it was the intelligent, deliberate, and free act of the grantor, done of his own desire and accord, and no proof that the transaction was righteous and conseionable, and the evidence indicating with great force that the execution of the deed was procured by the active exertion of the parental influence of the father; the deed having been executed without independent advice of counsel representing the grantor alone, and having been prepared by one who was counsel for the father. In our judgment, so strong a combination of circumstances against the validity of the instrument in question, is not found in any of the reported cases, and upon a most patient and careful review of the entire case we cannot but think that the decree recommended by the Master, and made by the court below, is required by the principles we have considered, and the practice of the courts, is most consonant with the teachings of reason, of justice and humanity, and therefore demands the sanction and approval of this court. Decree affirmed at the costs of the appellants.

Opinion by Mr. Justice Eagen, This is an appeal from an order of the Superior Court, affirming the judgment of sentence imposed upon appellant, Howard Jeffries, following Ms conviction of possession of narcotic drugs after trial before a judge sitting without a jury. We reverse because of the admission at trial of certain evidence obtained by the police in violation of the Fourth Amendment. The record discloses the following pertinent facts. On the afternoon of November 6, 1970, four police officers in an unmarked police automobile observed Jeffries walking along a public street in Pittsburgh. One officer testified when Jeffries saw the officers, he “quickened his pace”. Upon seeing him do so, the officer left the police vehicle and started to pursue Jeffries, who then began to run. While giving chase, the officer observed Jeffries throw a cigarette package under an automobile parked along the street. Shortly thereafter, the officer overtook Jeffries and directed him to stand against a wall. At that moment the other officers arrived on the scene and they were told by the officer, who apprehended Jeffries, to “hold him one minute”. The officer then recovered the cigarette package from underneath the parked vehicle, and it was found to contain several foil-wrapped packages of a substance later determined to be heroin. Jeffries argues the police had no lawful right to chase Mm and arrest him, and the fruits of the unlawful police activity should have been suppressed. The Commonwealth counterargues the police had probable cause to pursue and arrest Jeffries, or alternatively, his conduct gave them cause to conduct an investigatory stop, thus the evidence was properly admitted since it was not the fruit of illegal activity. Moreover, the Commonwealth argues the evidence was obtained independent of an arrest or search; hence, the legality of the arrest merits no consideration. Given tMs premise, the Commonwealth contends the narcotics should be admitted under the doctrine of abandoned property, or under the plain view doctrine. The lower court found the action of the police officers constituted an arrest with probable cause. The law is clear a warrantless arrest is constitutionally invalid unless based on probable cause, which is defined as, facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information, sufficient in themselves to warrant a man of reasonable caution to believe an offense has been or is being committed, and the person to be arrested has committed the offense. In the instant case, the Commonwealth contends that Jeffries’ flight supplied the necessary factual foundation for probable cause. This Court, however, has consistently rejected the contention that flight, in and of itself, constitutes probable cause to arrest. In Commonwealth v. Pegram, 450 Pa. 590, 301 A. 2d 695 (1973), this Court stated: “Although flight may indicate, to some degree, ‘consciousness of guilt’, Commonwealth v. Collins, 440 Pa. 368, 371, 269 A. 2d 882, 884 (1970), flight standing alone ... is not sufficient to establish probable cause for an arrest. As the Superior Court noted in Commonwealth v. Santiago, 220 Pa. Superior Ct. 111, 114-15, 283 A. 2d 709, 711 (1971): ‘The Commonwealth urges that even if this does not constitute probable cause the subsequent flight created valid grounds for the arrest. The Court in United States v. Margeson, 259 F. Supp. 256 (E.D. Pa. 1966), considered the question of whether flight could constitute probable cause and stated: “Flight, coupled with other factors, such as knowledge of the defendant’s prior criminal record or the sight of contraband or screams for help or reliable information that defendant had attempted to commit or had committed a crime, may be strong indication that there is something that those fleeing wish to hide from the police and may constitute probable cause for arrest. . . . However, flight, in and of itself, is not sufficient to constitute probable cause for otherwise anyone, who does not desire to talk to the police and who either walks or runs away would always be subject to a legal arrest. Such a procedure cannot be countenanced under the Fourth and Fourteenth Amendments as presently interpreted by the Supreme Court.” ’ ” Id. at 593-94, 301 A. 2d at 697. See also Commonwealth v. Roscioli, 454 Pa. 59, 309 A. 2d 396 (1973); Commonwealth v. Bailey, 448 Pa. 224, 292 A. 2d 345 (1972). Since there were none of the above mentioned factors to couple with the element of flight, probable cause did not exist to arrest Jeffries. Notwithstanding this finding, the Commonwealth attempts to justify the officer’s action as a stop or seizure under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968). We cannot, however, agree with this position. This Court interpreted Terry and Sibron in Commonwealth v. Hicks, 434 Pa. 153, 253 A. 2d 276 (1969), and stated: “[E]ven if probable cause to arrest is absent, the police officer may still legitimately seize a person, such as Hicks was seized in this case, and conduct a limited search of the individual’s outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous.” [Emphasis supplied.] Id. at 158-59, 253 A. 2d at 279. To come within the Terry rule, therefore, the police must be able to point to articulated facts which give rise to the reasonable belief criminal activity is afoot. See also Commonwealth v. Swanger, 453 Pa. 107, 307 A. 2d 875 (1973), and Commonwealth v. Pegram, supra. Instantly, there is not one fact which would give rise to the reasonable belief Jeffries was involved in criminal activity. Jeffries was simply walking along a public street in Pittsburgh in broad daylight and when he saw a police officer he knew, he “quickened his pace” and started to run when the officer began to chase him. This is not enough to justify a seizure under Terry, as interpreted by this Court, absent some other factor which would give rise to suspicion of criminal conduct. Thus, it is clear the police had no right to “arrest” or “seize” Jeffries and the action of the police in chas ing him and subsequently arresting him was a violation of Ms Fourth Amendment right. The Commonwealth, however, asserted that notwithstanding a finding of primary illegality, the evidence should be admissible because there was no search and the property was abandoned. In Commonwealth v. Pollard, 450 Pa. 138, 299 A. 2d 233 (1973), tMs Court was confronted with tMs exact question and stated: “Although abandoned property may normally be obtained and used for evidentiary purposes by the police, such property may not be utilized where the abandonment is coerced by unlawful police action. “As the Fifth Circuit noted in Fletcher v. Wainwright: ‘Several courts have considered this situation and have uniformly held that the iMtial illegality tainted the seizure of the evidence since the throwing was the direct consequence of the illegal entry. In such a situation it cannot be said that there was a “voluntary abandonment” of the evidence. The only courts that have allowed the seizure of evidence that was thrown out the window have emphasized that “no improper or unlawful act was committed by any of the officers prior to the evidence being tossed out the window.’ 339 F. 2d 62, 64 (5th Cir. 1968) (citation omitted). See also Hobson v. United States, 226 F. 2d 890, 894 (8th Cir. 1955).” “Here the record establishes that the police officer’s unlawful and coercive action was the causative factor which motivated appellant’s abandonment.” Id. at 143-44, 299 A. 2d at 236. The causative factor in the abandonment presently under consideration was the unlawful and coercive action of the police in chasing Jeffries in order to seize him. This is not a situation where the party spontaneously abandons the property upon sight of the police, or where the police are not involved in an unlawful act towards the accused. Cf. Commonwealth v. Shaffer, 447 Pa. 91, 288 A. 2d 727 (1972). We instantly have an unlawful act which motivated the abandonment. Lastly, the Commonwealth argues the evidence should be admitted under the plain view doctrine. In Harris v. United States, 390 U.S. 234, 88 S. Ct. 992 (1968), the United States Supreme Court stated that objects falling in the plain view “of an officer who has a right to be in the position to have that view” are admissible evidence. In the instant case it cannot be questioned the officer had a right and duty to be on the street, but the only reason he had a “plain view” of the object seized is because of his unlawful act of attempting to seize Jeffries. Thus, the officer had no lawful right to be in the position to have the view. Moreover, inherent in the plain view doctrine is the principle the seized object must not have been put in plain view as a result of unlawful police conduct. Thus, the doctrine does not apply in the instant case to validate the evidence. Consequently, the evidence should have been suppressed as fruit of the primary illegality. Cf. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963). Judgment reversed. Mr. Chief Justice Jones took no part in the consideration or decision of this case. 226 Pa. Superior Ct. 471, 303 A. 2d 833 (1973). [Judge Spaulding filed a dissenting opinion in which Judge Hoffman joined.] A pretrial motion to suppress the evidence was denied after a hearing. In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d 304 (1963), tins Court defined arrest in the following manner: “Officers are not required to make any formal declaration of arrest or use the word ‘arrest’ . . . nor to apply manual force or exercise ‘such physical restraint as to be visible to the eye’ in order to arrest a person. . . . An arrest may be accomplished by ‘any act that indicates an intention to take [a person] into custody and that subjects him to the actual control and will of the person making the arrest.’ ” Id. at 68, 190 A. 2d at 311. See McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056 (1967); Commonwealth v. Bailey, 448 Pa. 224, 292 A. 2d 345 (1972); Commonwealth v. Murray, 437 Pa. 326, 263 A. 2d 886 (1970); Commonwealth v. Marino, 435 Pa. 245, 255 A. 2d 911 (1969); Commonwealth v. Brayboy, 431 Pa. 365, 246 A. 2d 675 (1968). See Beck v. Ohio, 379 U.S. 89, 85 S. Ct 223 (1964). The lower court found that even if probable cause did not exist prior to the arrest, the recovery of the narcotics from underneath the parked vehicle provided an adequate foundation for probable cause. We disagree with this reasoning. It is well settled that evidence discovered after an arrest, cannot be considered when determining whether probable cause existed for the arrest Cf. Henry v. United States, 361 U.S. 98, 80 S. Ct. 168 (1959). In Terry, Mr. Chief Justice WabEen stated: “We have recently held that ‘the Fourth Amendment protects people, not places,’ Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967), and wherever an individual may harbor a reasonable ‘expectation of privacy’, id., at 361, 88 S. Ct. at 507 (Mr. Justice Hablen, concurring), he is entitled to be free from unreasonable government intrusions. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For ‘what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.’ Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 1446, 4 L. Ed. 2d 1669 (1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland.” [Emphasis supplied.] 392 U.S. at 9, 88 S. Ct. at 1873.

Tilghman C. J. I shall consider this cause under three points of view. 1. Was any part of Cutting’s answer evidence? 2. Was there any part of it which was not evidence? 3. If there were parts not evidence, have any circumstances arisen, which preclude the plaintiff from the benefit of his exceptions? 1. Several objections have been made to the answer of Cutting in toto. First, it is said, that he was an incompetent witness, because he had assigned the bond which his testimony tends to invalidate. It is not pretended that he was interested in supporting the defendant’s plea. On the contrary, if he had any interest, it would have been promoted by the plaintiff’s recovery. By the principles of the common law, every person not interested, and not of infamous character, may be a witness. This principle was first broken in upon in the case of Walton v. Shelley, where from motives of policy it was decided that a man should not be allowed to invalidate an instrument to which he had given credit, by signing his name. The rule thus broadly laid down, has since been denied in England, particularly in the case of Jordan v. Lashbrooke, 7 D. & E. 601. But what is much more to the purpose, the rule was confined to negotiable instruments by a decision of this Court, in Pleasants v. Pemberton, 2 Dall. 196. and the law has since been considered as settled. But it is contended, that granting the law to be so restricted, still Cutting was incompetent, because a bond is a negotiable instrument, being assignable by an act of assembly. But though assignable, I do not consider it as coming within the mercantile idea of a negotiable instrument, because it is liable in the hands of the assignee to every plea discount and objection, which might have been offered by the obligor against the obligee. As to that kind of- negotiable paper (such as bills of exchange &c.) which passes by indorsement, and. is held by the indorsee, not subject to any right of discount existing between the original parties, there may be great public convenience in the rule which prevents any one from impeaching by his testimony the writiqg to which he has given credit by his name; but there is no such necessity in case of bonds, where every assignee knows that he takes the paper liable to objections. It never has been decided, that the assignee of a bond is an incompetent witness; and as it is not quite clear to me, that courts have a right to set aside principles of law from motives of policy, I am not for extending the rule farther than it has been already carried. Next it has been urged, that Cutting’s testimony was altogether improper, because Mrs. Shippen could read, and ought to have examined the bond before she executed it. If issue had been joined on the plea of non est factum, in England, this, in a court of common law, might have been a good objection. But the parties stand in our courts, on a different footing. By a rule of Court, matters that shew fraud or want of consideration, may be given in evidence under the plea of payment, notice being given to the adverse party. In this case notice was given. Now who can say that the answer of Cutting is not material to prove fraud? It tends to prove that a bond, which was given by Mrs. Shippen to him, for the sole purpose of raising money for her use, was applied by him to the purpose not of raising money at all, but of paying a debt of his own. If Mr. Baring had applied to Mrs. Shippen before he took the assignment, (which in prudence he ought to have done) he would have found at once that Cutting was acting a fraudulent part, and the mischief would have been prevented; not having done so, he took the assignment at his peril, and has no right to complain of the defence set up against him. 2. But are there no parts of the answer which were not legal evidence? Undoubtedly there are. I think that has not been denied by the defendant’s counsel; indeed it could not have been denied with any hope of success. The answer contains conversations between Mrs. Shippen and Cutting in Antigua, long after he made the assignment, which certainly are not evidence against Baring. The plaintiff has excepted to all and every part of this answer. It is true, consent had been given, that the answer should be read; but it was subject to all legal objections, and it is perfectly understood that this reservation gives the right to object to particular parts as well as the whole, and this is every day’s practice. This brings me to the third point. 3. Is there any thing to preclude the plaintiff from the benefit of his bill of exceptions in its full extent? It is said that there is. Affidavits have been read, to prove that it was understood at the trial that no objections were to be made in this Court, but those which went to the answer of Cutting in toto. To these affidavits of the defendant’s counsel, a counter affidavit has been filed by the counsel for the plaintiff. But no agreement appears upon the record; and sitting here in a court of error, I do not think myself at liberty to go out of the record in order to form a decision on facts which are disputed. If it was confessed that such an agreement had been made, means might be found to do justice. But under the present circumstances, I am afraid of setting a precedent which may be attended with dangerous consequences. Confining myself to the record, I must say that the plaintiff’s exception has been supported. At the same time I cannot help adding, that it may tend to obstruct the administration of substantial justice, if at the trial of a cause, .objections are brought forward and urged, which go to the whole of a deposition, while others are kept back, (though included under general expressions in the bill of exceptions) which are good as to particular parts, and those perhaps not very material. It takes the adverse counsel by surprize, who in many instances would strike out the objectionable parts as soon as they were pointed out; and it keeps the court in ignorance, who may have their judgment reversed on a point on which they gave no opinion, and which was not even submitted to their consideration. I think it my duty therefore to express my hope, that in future, when objections arc intended to be made against particular parts, they will be brought forward, and distinctly stated in the bill of exceptions. On the whole it is my opinion that the judgment of the Circuit Court be reversed, and a venire facias de nave awarded. Ye ates J. On the fullest reflection, I am of opinion, as well upon general principles and the rule of this Court, as upon the terms under which the proceedings upon the judgment entered in this action, were stayed on the 2d May 1801, that the general matters contained in the answer or deposition of JohnBrowne Cutting, might well be given in evidence under the plea of payment, with notice of the special matters. They tended to avoid the bond, by shewing that it was made use of for a very different purpose, from that for which the deed was executed by the defendant. It is clearly settled that an obligation in the hands of an assignee, is subject to all the equity which could have prevailed against the original obligee. The circumstance of Mrs. Shippen not being unlettered, forms in my idea no difference. I am further of opinion, that Cutting was a competent witness to establish, the several facts within his own knowledge previous to the assignment. The cases cited by the defendant’s counsel, in my apprehension abundantly prove both positions. I will not enter into a detail of them, but will content myself with observing that the rule, that a party shall not be permitted to give evidence to invalidate an instrument which he has signed, has been confined by a decision of this Court to negotiable instruments, in Pleasants v. Pemberton, January term 1793. 2 Dallas 196. The only difficulty which strikes me in the case is, whether suffering the conversations, inserted in the deposition, which took place between Cutting and the defendant at Antigua in 1801, to go to the jury, was error or not, under all the circumstances of the case. I agree that sitting as a court of error, we are confined to matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support them. 3 Bla. Com. 405. The rule laid down is, that the plaintiff in error is confined to the objections taken at the trial, and stated on the face of the bill of exceptions; and was so decided in the house of lords in a case of Rowe v. Power on a bill of exceptions from Ireland. 2 New Rep. 36. and cited in Kensington v. Ingles et al. 8 East 281. And I also agree that the evidence excepted to was inadmissible on abstract principles, because the conversations alluded to happened more than two years after Cutting had assigned the bond to the jplaintiff, and therefore were in truth, res inter alios acta. Whether Such facts exist in this case, of which the court can legally take judicial notice, as would prevent the plaintiff from taking advantage of this error, is a question which necessarily demands consideration. It led during the argument to a very unpleasant discussion, which the court greatly regretted. If there were no decisions on the subject, it would be just and reasonable, that the act of the attorney should bind the client; but the law is clearly so settled. 1 Salk. 86. Carth. 412. 1 Dall. 164. A writ of error cannot be taken out against the agreement of the attorney. 1 H. Bla. 21. 2 T. R. 183. The court will order a non pros, to be entered when the writ of error has issued; 1 T. R. 388. and where a defendant undertook in a cause at law not to bring a writ of error for delay, or to lile a bill in equity for an injunction, and he afterwards filed a bill in chancery for a discovery, the Master of the Noils said, that although'the agreement was not a good plea to the bill for a discovery, yet he would not suffer him after such an agreement to come for an injunction. 4 Bro. Cha. Rep. 499. And so far have the agreements of counsel been carried in this court, that in December term 1803, where the plaintiff’s declaration below was materially defective, we gave leave to amend after a writ of error brought, without costs, upon a certificate of the adverse counsel that he had assented to such amendment previous to the trial in the court below. 1 Binn. 75. Johnson v. Chaffant. The bill of exceptions states that on the trial on the 17th May 1803, the defendant’s counsel offered in evidence the answer of John Browne Gutting, prout agreement of the plaintiff’s counsel, which is in these words, as it appears on the record in the form of a letter dated May 26,1801, from John 'Ewing attorney for the plaintiff to Joseph Hopkinsan attorney for defendant. “ Sir, upon reflection, I think itpra- “ per to give you this early information, that that part of J*. “ B. Cutting''s answer to the bill filed in Antigua hy Mrs. “ Shippen, which is said to be the copy of a letter from Cut- “ ting to Manley, will be objected to by me at the trial as “ inadmissible. The other parts of the answer may be read, “ subject to all legal exceptions, at the trial of Baring v. Ship-“pen.” The plaintiff’s counsel objected thereto, “ that the said “ several matters and things contained in the said answer 44 were inadmissible. That the defendant at the time of giv44 ing the bond and warrant, w as and still is a person learned “ in the English language, and capable of reading and un- “ derstandiug the same, both in writing and in print; and 44 also that the said ohn Browne Cutting was not a compe44 tent witness for the purpose aforesaid, and that the said 44 answer ought not to be admitted or given in evidence to 44 prove the said several matters and things &c. But the said “ Justices delivered their opinion, that the said several 44 matters and things so offered to be given in vidence, and “ proved by the defendant to maintain the said issue on her “ part, were proper to be given in evidence and proved on 44 the part of the defendant, and that the said John Browne 44 Cutting was a competent witness to prove the same, and 44 ordered directed and permitted the answer of the said “ John Browne Cutting to be read to the jury. Where-44 upon &c.” It is obvious that besides the g¿ neral objection, two specific objections are here taken to the testimony offered. The first to the nature of the testimony, on the ground that Mrs. Shippen was not unlettered. The second to the competency of Cutting as a witness, on the ground of his invalidating the bond which he had previously assigned for a valuable?'*' .consideration. I think it cannot be denied thatthé • words made use of, 44 the said several matters and things contained 44 in the said answer,” are sufficiently large to meet the present exception, independently of the contents of Mr. Ewing's letter before stated; but to that letter I can give but one construction. I read it thus. 44 The letter in the answer •“ from Butting to Manley is now expressly objected to, and •6t'you have hereby notice of it; but the other parts of the an-44 swer may be read, saving such objections as may be made “ thereto on the trial.” Under this letter, thus specially penned, I feel myself thoroughly at liberty to take judicial notice of what passed upon the trial, that the most perfect good faith may be preserved between the counsel. I Well know the usual practice on trials, when a deposition has been ruled to be received in evidence on argument, and the adverse counsel excepts to particular parts thereof, that the court desire such counsel ‘o note the passages excepted to, which they will decide on if the counsel cannot agree the matters between themselves. And I have no hesitation in saying, that it was incumbent on the plaintiff’s counsel here to state their exceptions specially, to' such parts of Cutting’s answer as they deemed objectionable. It has not even been insinuated that such part of the answer as is now objected to, was specifically excepted to upon the trial, or that the judges gave any opinion thereon. What then actually took place at the time of the trial? Mr. John Ewing, one of the plaintiff’s counsel, states in his letter of the 17th October 1807 to Mr. Hopkinson, “ that to the best “ of his recollection, the general question as to the admissi- “ bility of Cutting’s evidence, was only discussed; but after “ the opinion of the court was given against the plaintiff, “ Mr. 'Lewis stated that certain parts of Cutting’s answer “ clearly ought not to be admitted, and he thought particu- “ larly alluded to Manley’s letter. The court after some con- “ versation agreed to adjourn, and requested the counsel in “ the mean while to look over the answer together, as they “ might possibly agree upon the parts, which were admissible. “ He recollected perfectly well that Mr. Hopkinson and him- “ self read over the answer together in the tavern, and “ thought it most probable that Mr. Lewis and Mr. Tilgh- “ man were consulted upon the subject. The letter of Mr. “ Manley was cut out, either by Mr. Hopkinson or himself. “ He did not recollect any objection being afterwards made “ as to the admissibility of any part of the answer, which “ was not erased by them during the adjournment.” It cannot be denied, that the affidavits of the different counsel cannot be reconciled; though we cannot do otherwise than presume that each of the gentlemen in his affidavit speaks most conscientiously, according to the best of his knowledge, recollection and belief. Yet I am impelled to make the observation, that though both the defendam’s counsel positively state, “ that Mr. Lewis for the plaintiff and “ Mr. E. Tilghman for the defendant were present in the “ room after the adjournment of the court, and were occa- “ sionally consulted by the two other gentlemen who were u examining the answer of Cutting in pursuance of the re- “ quisition of the court,” in which particulars they are corroborated by the foregoing letter off Mr. Ewing, Mr. Lezuis asserts, that “ he is well satisfied that the examination with “ respect to the letter, and any references thereto which might ' “ be contained in the answer, took place in a great measure, w if not altogether, between Mr. Ewing and the opposite “ counsel or one of them; and that it related to the letter “ only, as he has always understood, except so far as it might “ be referred to by the answer.” He further says, “ that M after the decision of the court, he does not recollect or “ believe that any discussion, examination or inquiry, took “ place between him and the opposite counsel or either of “ them, with respect to any or what part or parts of Cutting's “ answer was proper or improper to be given in evidence; “ nor does he recollect or believe that after the decision, he “ ever proposed to them or either of them, that any part or “ parts of it should be struck out.” Though Mr. Lewis may neither have assented nor dissented to the proposal of the court'm the forenoon, “ to examine the deposition of Cut- “ ting, and agree to such parts as they should mutually agree “ upon to be admissible,” it is most certain from Mr. Ewing's second letter, that he acquiesced therein and acted in pursuance thereof, And though Mr. Lewis is sure and positive, that he never did in any way or manner, consent or agree, either directly or indirectly, that any part or parts of Cutting’s answer was to be considered as evidence, or that the bill of exceptions should be limited or confined to any part thereof, still both he and his' client must be bound by the true meaning and fair construction of the letter of Mr. Ewing the attorney upon record, of the 26th May 1801. I consider Mr. Ewing’s letter of the 17th October 1807 as a safe ground, whereon I can form my judgment in the present instance. It materially agrees with the affidavits of the adverse' counsel; and it also accords with the notes taken upon the trial by the late Chief Justice Shippen, as far as they go. Viewing the discussion in this light, I am constrained to believe that the general nature of the testimony disclosed in Cutting’s answer, and his competency as a witness, were the sole matters on which the court decided; and that it was submitted by them to the counsel on both sides, to point out and ascertain the different passages in the answer wherein they agreed, which would at once shew wherein they disagreed; that some parts of the answer were in consequence hereof, erased therefrom by mutual consent; that no objections were afterwards made , to other parts of the answer, but the same went to the jury as it then stood; and that the counsel on both sides made such remarks to the jury thereon as they thought proper. It follows from hence in my idea, that the plaintiff in error cannot take advantage of the objectionable parts now insisted upon, or assign them for error under all the circumstances of the case. Upon the whole my opinion is, that the judgment of the Circuit Court for the defendant be affirmed. The court being thus divided in opinion, Judgment affirmed.

OPINION NIX, Chief Justice. This is an appeal by the Commonwealth from an Order of the Superior Court which affirmed the suppression of all evidence obtained from the stop of a vehicle driven by Appellee, Jack A. Whitmyer. We granted allocatur to review the standard applied by the lower courts in addressing the legality of the automobile stop by police under the following facts. On October 30, 1990, Trooper Thomas Kambic of the Pennsylvania State Police was traveling south on Interstate 81 in Dauphin County when he observed Appellee’s vehicle proceeding in the same direction. Appellee was behind another vehicle as the two cars approached a point on the Susquehanna River Bridge where two lanes of traffic merged into a single lane. Trooper Kambic then saw Appellee drive over a solid white line and pass the vehicle in front of him before that vehicle merged into the same lane. There was no evidence, however, that Appellee operated his vehicle in a careless or reckless manner or that he interfered with any other vehicle on the road. Trooper Kambic followed Appellee as he traveled across the bridge into Cumberland County. Utilizing his speedometer for two-tenths of a mile, Trooper Kambic estimated Appellee’s speed at seventy miles per hour. Shortly thereafter, Appellee slowed down and proceeded onto an exit ramp at the southern end of the bridge. Trooper Kambic stopped Appellee on the exit ramp intending to cite him for driving at an unsafe speed and to “tell him about his erratic lane change.” (R.R. at 14a). The trooper approached Appellee’s vehicle and directed him to roll down his window. As Appellee rolled down the driver’s side window, Trooper Kambic detected a strong odor of burnt marijuana. Appellee was then ordered out of the vehicle at which time the trooper conducted a pat down search of Appellee’s person. Trooper Kambic discovered a film canister in Appellee’s right jacket pocket which contained marijuana. The trooper also found some rolling papers and a lighter in Appellee’s pocket. Appellee was taken to a nearby hospital where he underwent a urine test to determine whether marijuana was present in his system. Appellee was charged with driving under the influence of a controlled substance, unlawful possession of a small amount of marijuana, unlawful possession of drug paraphernalia, and failing to drive at a safe speed. Appellee filed an omnibus pretrial motion which sought the suppression of all evidence obtained as a result of the stop. The trial court granted the motion and ordered all evidence suppressed. Commonwealth v. Whitmyer, 414 CR 1991 (C.P. Cumberland County June 17, 1991). In so holding, the court concluded that there was no probable cause to believe that Appellee was in violation of the Vehicle Code. This determination was based on the fact that Appellee did not fail to yield to any oncoming vehicle when he entered the highway nor did he pass the vehicle in front of him in a posted no passing zone. Id. at 4. The court additionally held that Trooper Kambic’s estimate of Appellee’s speed did not constitute probable cause because 75 Pa.C.S. § 3368(a) requires that a vehicle’s speed be timed for at least three-tenths of mile whereas the trooper had timed Appellee for only two-tenths of a mile. Id. at 4-5. On appeal, the Superior Court affirmed the order suppressing all evidence derived from the stop of Appellee’s vehicle. Commonwealth v. Whitmyer, 415 Pa.Super. 393, 609 A.2d 809 (1992). Relying upon this Court’s decisions in Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), and Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975), the Superior Court held that the trial court had correctly applied the law concerning when motor vehicles may be lawfully stopped. Id. at 397, 609 A.2d at 811. Because we likewise conclude that the stop of Appellee was unlawful, we now affirm. In Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), this Court addressed the issue of whether a police officer could stop the driver of an automobile without having observed that driver violate any of the provisions of the Vehicle Code. We first acknowledged that the stopping of a vehicle and the detainment of its passengers constitutes a seizure and therefore implicates the Fourth Amendment. Because the Fourth Amendment protects against unreasonable searches and seizures, we relied upon the standard articulated by the United States Supreme Court in assessing the reasonableness of the seizure: “[I]t is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ ” Id. at 111, 307 A.2d at 877 (quoting Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)) (further citation omitted). In regard to the governmental interest, the Commonwealth in Swanger argued that because the automobile was a dangerous instrumentality that was responsible for numerous deaths each year, the police should have been permitted to stop vehicles without cause in order to ensure that drivers were in full compliance with the Vehicle Code. The interest on the other side was the individual’s personal liberty and the right to be free from governmental intrusions. This Court concluded that given these competing interests the interest of the individual outweighed that of the government. Commonwealth v. Swanger, 453 Pa. at 112, 307 A.2d at 878. Thus, it was held that “before the government may single out one automobile to stop, there must be specific facts justifying this intrusion. To hold otherwise would be to give the police absolute, unreviewable discretion and authority to intrude into an individual’s life for no cause whatsoever.” Id. Two years later, we revisited the issue of vehicle stops under the Fourth Amendment in Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). In Murray, the police responded to a burglar alarm that had been activated inside a clothing store. When they arrived, the police noticed an individual fleeing in the shadows of the building but were unable to apprehend or identify the (suspect. Approximately one hour after the initial alarm, the police observed an automobile pull into the driveway of a house near the store, stop momentarily, and then depart. The police followed the car for approximately one-half mile, during which time no traffic laws were violated nor was anything unusual observed with regard to the vehicle or its occupants. The police signaled the vehicle to stop, and the driver complied. One of the officers approached the passenger side of the vehicle and saw a hammer and a railroad spike lying on the floor behind the driver’s seat. Based on these observations, a search warrant was obtained for the automobile and a subsequent search uncovered the items that had been stolen from the clothing store earlier that evening. This Court reversed the defendant’s conviction on the basis that the evidence obtained from the search of the vehicle should have been suppressed because “the Commonwealth’s power to regulate vehicular traffic within its borders did not supply an adequate justification for the intrusion upon privacy occasioned by the stop.” Id. at 59, 331 A.2d at 417. In so holding, we reaffirmed the rule set forth in Swanger: If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is encumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code. Id. at 58-59, 331 A.2d at 416-17 (citing Commonwealth v. Swanger, 453 Pa. 107, 115, 307 A.2d 875, 879 (1973)) (footnote omitted). In this appeal, the Commonwealth submits that the rules set forth in Swanger and Murray were necessitated by the fact that police officers possessed virtually unlimited authority to stop motor vehicles under now-repealed 75 P.S. § 1221(b). The 1983 enactment of 75 Pa.C.S. § 6308(b), the Commonwealth argues, provides the correct basis upon which a police officer’s stop of a vehicle should be judged. Section 6308(b) provides: Authority of police officer. — Whenever a police officer ... has articulable and reasonable grounds to suspect a violation of this title, 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 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. According to the Commonwealth, both the trial court and the Superior Court have disregarded the above provision in favor of a heightened probable cause standard in assessing the legal justification of the stop of Appellee. We disagree and find that the law has been correctly applied in this case. The crux of the Commonwealth’s argument centers on the semantic difference between the standard articulated in Murray — probable cause to believe that there has been a violation of the Vehicle Code, and the language of the statute — articulable and reasonable grounds to suspect a violation of the Vehicle Code. However, when we balance the underlying interests of the individual and the government, the two standards amount to nothing more than a distinction without a difference. The Commonwealth has an interest in enacting and enforcing rules and regulations for the safety of those who travel its highways and roads. The police should thus be permitted a sufficient degree of latitude to stop automobiles in order to meet this objective. On the other side, the privacy interest of the individual has been cogently articulated by the United States Supreme Court: An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391, 1400-1401, 59 L.Ed.2d 660, 673 (1979) (footnote omitted). When previously faced with these two competing interests, we held “that a stop of a single vehicle is unreasonable where there is no outward sign the vehicle or the operator are in violation of The Vehicle Code.... [Bjefore the government may single out one automobile to stop, there must be specific facts justifying this intrusion.” Commonwealth v. Swanger, 453 Pa. at 112, 307 A.2d at 878. Thus, the presence of similar facts in this case should dictate a similar result. The legislature has vested police officers with the authority to stop vehicles whenever they have “articulable and reasonable grounds to suspect a violation” of the Vehicle Code. 75 Pa.C.S. § 6308(b). Applying that standard to the instant case, it is apparent that the trial court and Superior Court were correct when they concluded that Trooper Kambic had no justifiable basis for stopping Appellee. In reviewing the grant of a suppression motion, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole [that] remains uncontradicted. To hold otherwise would make a mockery of the suppression court and place an impossible burden on every defendant regardless of his success or failure at the suppression hearing. Commonwealth v. Robinson, 518 Pa. 156, 159-60, 541 A.2d 1387, 1389 (1988). Trooper Kambic testified that he intended to cite Appellee for driving at an unsafe speed. That offense is proscribed by 75 Pa.C.S. § 3361, which provides as follows: No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around [a] curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. Our review of the record fails to disclose any evidence that would refute the trial court’s conclusion that there was no outward sign that Appellee was driving at an unsafe speed. The trooper testified that Appellee “made an erratic lane change from the ramp onto the interstate.... ” (R.R. at 14a). This observation clearly does not fit within the ambit of prohibited vehicle operation as defined in section 3361. Likewise, the trooper could not have relied upon his estimate of Appellee’s speed as that estimate was based on a distance of only two-tenths of a mile instead of the three-tenths required by the statute. See note five, supra. As the learned trial court stated, the only other evidence bearing upon a possible Section 3361 violation, was the trooper’s testimony that traffic at the time was medium to heavy. That conclusion is of no legal significance where [AppelleeJ’s speed was only estimated at fifteen miles over the speed limit on a three-lane interstate highway at a time when his vehicle was not changing lanes, traveling too close to another vehicle, or presenting a potential hazard to any other vehicle or person. Commonwealth v. Whitmyer, 414 CR 1991, slip op. at 5 (C.P. Cumberland County June 17, 1991). Based on the evidence of record, there were no articulable and reasonable grounds for Trooper Kambic to believe that Appellee was driving at an unsafe speed. We note that this is not a case where further investigation would lead to a discovery of a violation of the Vehicle Code. If the trooper was unable to clock Appellee for three-tenths of a mile or observe the conditions that would warrant a citation for driving at an unsafe speed, there is no further evidence that could be obtained from a subsequent stop and investigation. Thus, we conclude that the fruits of the unlawful stop were correctly suppressed. Order affirmed. PAPADAKOS, J., did not participate in the decision of this case. MONTEMURO, J., participates by designation as a senior judge as provided by Rule of Judicial Administration 701(f). . 75 Pa.C.S. § 3731(a)(2). . 35 P.S. § 780-113(a)(31). . 35 P.S. 780-113(a)(32). . 75 Pa.C.S. § 3361. . 75 § 1221(b) stated as follows: Any peace officer, who shall be in uniform, and shall exhibit his badge or other sign of authority, shall have the right to stop any vehicle, upon request or signal, for the purpose of inspecting the said vehicle, as to its equipment and operation, or manufacturer's serial number or éngine number, and securing of such other information as may be necessary. Act of April 29, 1959, P.L. 58, § 1221 (codified as amended at 75 P.S. § 1221(b)) (repealed 1976).

The opinion of the court was delivered by Rogers, J. This was an action to recover the-undivided three-fourths part of a tract of land in Coal township, in the county of Northumberland. The title of. the plaintiff commences with a patent to Samuel Clarke, dated the 11th of April, 1776, from whom he deduces his title, thus: Deed, Clarke to T. Johnson: — Articles of agreement between Johnson and Abraham Cherry, and an assignment by Abraham Cherry to John Cherry: — 28th April 1813, articles of agreement between John Cherry and George Derk, recorded 26th Aug. 1814: —17th April 1815, Saxton and Wolverton, administrators of John Cherry, conveyed the same property to George Derk, under an order of the Orphans’ Court: — 22d December 1829, articles of agreement between George Derk and Christian Bower, acknowledged 24th December 1829, and on the same day — deed, George Derk to Christian Bower, recorded the 24th December 1829: — 28th December 1829, Christian Bower conveyed the property to the plaintiff, Hugh Bellas, which was recorded the same day. The defendant commences his title with George Derk, under whom both parties claim. To the May term 1820, Peter Richter, who was the assignee of John Spees, obtained a judgment in the common pleas of Union county, against George Derk for 540 dollars. This judgment was entered the 3d April 1820. The 25th December 1820, testatum was issued to Northumberland county, return tarde venit, and on the 25th May 1S21, the land in controversy was levied by the sheriff of Northumberland county, inquisition held and condemned. A testatum venditioni exponas issued, which was returned unsold, and an alias testatum venditioni exponas to the 22d February 1822, was returned sold to John Spees; viz. 100 acres, more or less, for 67 dollars. This is all that appears on the record in reference to the sale. It is alleged, and proof has been given, that James R. Shannon, who was at that time the sheriff of Northumberland county, gave a deed for the premises to the purchaser, but there is no record of the acknowledgment of the deed either on the record of Union or Northumberland county. It is also alleged, and proof has been given, that John Spees assigned the premises to P. Moore, on the back of the deed. The deed has been lost in some way, and parol proof has been given of the deed and the assignment. The defendant farther gave in evidence a judgment of the executors of George Moore against the executors of P. Moore. On the judgment a testatum was issued 1st February 1828, and the lands in dispute were levied on, and on the 3d May 1829, were sold to Samuel Siegfried for 100 dollars. On the 17th August 1829 the sheriff gave a deed for the premises to Siegfried, which, with the testatum fieri facias, &c., was duly recorded in the county of Northumberland. The 4th February 1830, deed from Siegfried to A. Jordan, for the undivided half of the property sold to Siegfried as the property of Moore, for the consideration of 50 dollars, with special warranty: recorded 15th June 1830, 50 dollars paid. The 5th January 1831,deed, Alexander Jordan and wife to Wm M’Carty el al. for the same property, consideration 500 dollars, with special warranty. The 29th January 1831, Peter Lazarus, who was the administrator of Samuel Siegfried, petitioned for leave to sell the remaining undivided half part of this tract, which was ordered by the orphans’ court. The property was sold by the administrator, and purchased by Wm M’Carty for 565 dollars, and on the 28th April 1832, the sale was confirmed. The 15th March 1833, Peter Lazarus executed a deed to Wm M’Carty. The 25th April 1832, Roger Wolverton, who was the administrator of John Cherry, made a deed to Wm M’Carty and Alexander Jordan for the undivided half of the tract, containing-50 acres, consideration 150 dollars; andón the same day, and for the same consideration, Wolverton, administrator as aforesaid, conveyed the other undivided moiety to Wm M’Carty. By these conveyances, Wm M’Carty became entitled to the three undivided fourth parts of the tract of land for which the ejectment is brought, the other one-fourth part being in Alexander Jordan. It also appears that George Derk, under whom both parties claim, on the 9th June 1818, entered into articles of agreement for the sale of the land to George Durbleberger for the sum of 866 dollars, payable in instalments. On this contract Durbleberger paid 66 dollars, took possession of the land, and continued in possession, but for what space of time, is unknown, cut timber off the land to reimburse himself for the same, and as it seems to be conceded by both parties, then abandoned his contract. It is also a part of the case, that neither Spees the purchaser at the sheriff’s sale, nor his assignee Moore, ever took possession, nor is there any proof that they, or either of them, ever paid taxes. This is a general outline of the case, and on this several questions depend. • After giving in evidence the judgment of Richter, for the use of Spees v. Derk, and the proceedings thereon, the defendants then offered the receipt book of sheriff Shannon, to prove the existence' of a sheriff’s deed for the premises. They also offered to prove, that the deed was delivered by James Merill to John Spees. That diligent search has been made for it, and that it cannot be found. That it is either lost, or has come to the plaintiff’s hand, and that notice has been served on him to produce it. The plaintiff objected to this testimony, because there was no acknowledgment of the deed in open court, or record made of it by the prothonotary. The court, however, admitted the testimony, whereupon the defendant proved by the evidence of several witnesses, after having given the receipt as above stated in evidence, that a deed for the premises was delivered by the sheriff to James Merrill, the plaintiff’s attorney, who handed the same to Jacob Spees, who delivered it to the purchaser John Spees. It was also proved, that Spees made an assignment of the premises, on the back of the deed' to Philip Moore. The defendant also made próof, that diligent search had been made for the deed, but without success. If the witnesses are to be believed, the existence of the deed is fully shown, and of the assignment of it to Moore, no reasonable doubt remains; a diligent search has been made, and it has been lost or mislaid. But there is no evidence which has any tendency to show that Bellas has, or ever had, the deed in his possession, or was aware of its existence. In the course of the examination, the defendant asked one of the witnesses this question, “ Had you any particular reason or cause, to deliver the deed to Mr. Bellas, [and do you believe you delivered it to him, for any purpose connected with your estate?]” The court allowed the latter part of the question to be put to the witness, the part in brackets, and overruled the rest. After giving this evidence, the defendant then offered the record of the judgment of the executors of George Moore against Philip Moore, from Union county, the proceedings thereon, including the testatum to Northumberland county, the sale of the premises to Samuel Siegfried, with the record of its acknowledgment by the prothonotary of the county of Northumberland, together with the record of the testatum in the same county. To this testimony the plaintiff objects, because the defendant has shown no title to the land in controversy, in Spees or in Moore; it being admitted that there is no record of the acknowledgment, nor any registry of the deed by the prothonotary, or recorder, either of Union or Northumberland county. The defendant then proposed to ask Mr Merrill, whether the deed from the sheriff, was acknowledged in court, and certified by the clerk. For this purpose, notwithstanding exception was taken to it by the plaintiff, the court permitted the examination of Mr Merrill. He testified in substance, “ That he could not say that it was acknowledged, nor positively that it was not. That he cannot recollect much of the facts; that he had forgotten them, until he saw his receipt: has no sort of recollection that there was a certificate to it, but his impression is strong, that there was none, and he has strong doubts whether there was an acknowledgment: Shannon who was the sheriff, was pretty consequential about that time, because Spees did not come and bring him up the money: Shannon said, he had sold the tracts for Richter, who was the plaintiff, and Spees had no right to the judgment, and would not be good for the money. He insisted the money should be paid into court.” Mr Merrill says, “he thought the deed should be acknowledged in the county from which the writ issued. He never called on Shannon as he recollects, to do any thing more in the business. He says he would have had no recollection about it, but for the receipt shown here, &c., and other papers. It was intended the deed should pay so much of the debt. Never saw the deed in the hands of Philip Moore or his executors, and does not know that the deed corresponded with the levy. Not sure he read it. Has no distinct recollection either from the receipt or return or record, whether both tracts were sold, or one only. Has no recollection of looking into the deed. He thinks there could not have been a certificate without his knowing it, but he does not say, there was not one. The strongest impression on his mind is, there was not one. He is almost positively certain, nay quite convinced, he never saw a certificate.” The defendant again after this examination, offers the record, &c., as before. To which the plaintiff objects, for the same reason as before stated. The court on argument, admitted the testimony, to which the plaintiff excepted. The plaintiff insists that there is error in the admission of the testimony contained in the four bills of exceptions, and in the special instruction to the jury, and in refusing to instruct them as requested in the fourth, fifth, seventh and eighth points of the plaintiff. The bills of exceptions and the charge of the court may be resolved into several general propositions, the division of which will supersede the necessity of examining each in detail. It cannot be denied, that the defendant has given satisfactory proof of the existence of the sheriff’s deed, and of the assignment of the premises to Philip Moore. He has also shown, that diligent search has been made, but that both the deed and the assignment have been lost or mislaid. But it is not so clear, that he has been equally successful in establishing the fact, that the deed was ever acknowledged. It is not pretended, that there is any record of the acknowledgment existing either in Northumberland or Union county. But the effort has been to show, directly or by inference', that the deed was acknowledged in open court, and that an entry was made to that effect by the prothonotary on the back of the deed. This was an affirmative proposition, the proof of which devolved upon the defendants, and for this purpose, they proposed to ask James Merrill, whether the deed from sheriff Shannon was acknowledged in court, and certified by the clerk. The amount of his testimony is, “ that he does not know that the deed was acknowledged. Has no recollection that there was a certificate on the deed. Thinks there could not be one without his knowing it. He is certain, nay absolutely sure he never saw a certificate.” Mr Merrill, who, it must be recollected, was the defendant’s witness, and whose character is without reproach, gives some reason for the opinion that the deed was not acknowledged; such as his recollection that Shannon was under the impression that the judgment did not belong to Spees but to Richter; that Spees was not good for the amount of his bid, and that he could be secure only by the payment of the money, and the same being brought into court. The result of this evidence, most certainly, is an expression of an opinion on the part of the witness introduced and examined, be it remembered by the defendant, that the deed was neither acknowledged, nor was there a certificate of acknowledgment by the prothonotary on the deed. But this fact, which is considered essential, is sought to be established by the inference, that Mr Merrill, who was the attorney of Spees and Richter, and the sheriff and the prothonotary have performed their duty, which duty the defendant alleges, consists in having the deed duly acknowledged in open court, and having the same certified by the prothonotary on the back of the deed. But the argument is neutralised by a countervailing inference, that the prothonotary is presumed to have discharged his duty, and that the presumption, that if the deed had been acknowledged, as is directed by the act, the acknowledgment would have been registered. The argument proves nothing. It is certainly the duty of the sheriff to acknowledge the deed, but it is not his province, nor the clerk’s, to make a certificate of the fact, nor is the sheriff bound to act until payment of the purchase-money. The acknowledgment, which is a judicial act, can only be made in open court, and by the order of the court only, can it be recorded; and this must appear, as will be hereafter shown, on the record of the court alone. There is no law which authorizes, or requires, that a certificate shall appear upon the deed, although the practice has been pretty general to make a memorandum to that effect on the deed, after it has received the sanction of the court. Insinuations have been made, that the deed has, in the language of the counsel, been spirited away; but of this there is not a shadow of evidence, and of course, must be determined by conjecture; there is as much reason, viz. that is none at all, for believing, that the deed has been suppressed, because there was no memorandum upon it. But no such charge can with any propriety be made, against either party; such surmises ought not to weigh a feather, either with the court or jury. It seems that Mr Merrill bad some doubt at the time, whether the acknowledgment should be taken in Northumberland or Union; he rather thought it should be registered in the latter county. ■ This, connected with the difficulties made by the sheriff, with the then trifling value of the property, may account for his taking the deed, as is undoubtedly his impression, without any acknowledgment, and that without any serious imputation against his character, as a careful and skilful lawyer, and an honest, conscientious man. It may be remarked also, that although several of the witnesses speak of the existence of the deed, yet there are none who testify to the acknowledgment. From the best consideration that can be given to this part of the case, the conclusion is inevitable, that there is no evidence whatever, of any acknowledgment by the sheriff, and that nothing has been proved, from which either the court or the jury, can legitimately infer it. The case therefore stands (and this is the best point of view in which it can be considered for the defendant) in the same light, as if the deed had been produced and offered without any evidence of an acknowledgment, either on the face of the deed or on the records of the court. The question then fairly arises, whether the defendants have shown such a title in Spees and Moore, as entitles them to give in evidence the judgment of Moore’s executors and Philip Moore against Bellas, who, as will be hereafter shown, is a bona fide purchaser for a valuable consideration from Derk, under whom both parties claim. On the bill of exceptions, and on the charge of the court, several interesting points will arise. Is a sheriff’s deed such an instrument as must be acknowledged in court, to be valid against a subsequent purchaser, from the defendant, without notice, actual or constructive? In this is included the question, whether the acknowledgment is a judicial act, which must be entered on the record. It has been already shown, that there is no evidence of acknowledgment on the face of the deed, and if there was, it would make no difference so far as this point is involved, as we deem it absolutely necessary, that the entry by the proper officer should be made on the minutes, or records of the court, in order to affect a bona fide purchaser with notice. And here we wish to be distinctly understood, as taking a distinction between the defendant in the execution, and a purchaser of his interests without notice, either actual or constructive. It is not necessary to contend, that Derk would or would not be postponed as against the purchaser, who had paid for the land, or, what is equivalent to it, had permitted a credit to that amount on his judgment. By the purchase, he acquires an interest in the land, although the deed may not have been acknowledged. This interest descends to his heirs and it may be taken in execution. The purchaser or his heirs may call for the execution of the deed, by payment of the amount of the bid, and the court, on a proper application, may compel the sheriff to acknowledge the deed. It is also possible, that under very peculiar circumstances, this defect would be cured, as in the case of the Lessees of Duncan v. Robinson, 2 Yeates 434. There the deed was acknowledged, but not till after the commencement of the suit. The court admitted it as evidence, stating, that the deed does not take effect upon its acknowledgment, but from its sealing and delivery. Every thing relates to the first act; but the acknowledgment being made at a late day, the defendant is at liberty to go into every objection against the sale which might have been made, if the deed was now offered for acknowledgment, as in common cases. Duncan v. Robinson was the suit of the purchaser at the sheriff’s sale, against a third person, who claimed by title, independent of the defendant in the execution. The defendant in the execution made no objection on that account, and the deed was acknowledged in court, on petition, of which the defendants in the execution must havé had notice. The court in such a case, might well say, that the deed did not take effect from its acknowledgment, but from its sealing and delivery, and that every thing related to the first act. The defendant might be well satisfied with this decision, particularly as the court reserved to him the right of going into every objection against the sale, which might have been made, if the deed was then woffered for acknowledgment. And to the same effect is the case of Moorehead v. Pearce, 2 Yeates 456, which was determined on the authority of Duncan v. Robinson. In the latter case, it was admitted, that many of the public papers had been lost and destroyed, owing to the war, the burning of Hannahstown, where the office was kept, and the frequent removal of them by a change of prothonotaries during the war. Under these peculiar circumstances, the court decided, that the want of the usual proof did not vitiate the sale. “ The words of the act,” (the act of 1705,) says the court, “ are only directory,” (in which, with all deference, subsequent cases show they were mistaken,) “and do not invalidate a sheriff’s deed, for want of an acknowledgment in court. Such an acknowledgment does not appear to be indispensably necessary in all given cases, &c. On the whole, we think, the present deed may be supported without the usual acknowledgment, after so great a lapse of time, and no objection made to it by the debtor. Butin its operation, it is subject to every exception, which may be had against a sheriff’s deed, on its acknowledgment being offered in court.” In Steever v. Rees, 3 Whart. 21, and Morrison v. Wentz 437, the principle was decided, which is not disputed, that a purchaser ata sheriff’s sale, before his deed has been acknowledged, has an jnceptive interest in the land by the contract. But although cases establish the point, that an acknowledgment is not indispensably necessary, in all given cases, yet, it by no means follows, that the sanction of the court which has ever been required since the settlement, of the province,, and which has been endorsed by various acts.of assembly, is an idle ceremony. Exceptio probat regulam is a maxim, which may be aptly applied in answer to the case cited on this point by the defendants. At a very early period attempts were made, by statute,.to establish a system for the registry of conveyances in the province, a history of which is very clearly given by Mr. Justice Sergeant, in his valuable Treatise on the Land Law of Pennsylvania, page 237. By an act which passed in 1683, (25 Charles 2,) the legislature prescribed a form of conveyances, and decided that they should be acknowledged in open court, and certified,under the clerk’s hand and seal, and should be registered. It is very probable Chat from hence we may date the origin of the practice of acknowledging a sheriff’s deed in open court, and the registering of it in the prothonotary’s office, which is referred to by Chief Justice M’Kean, in Snyder’s Lessee v. Nargar, 1 Dall. 68, which he says is always done. And also the phraseology of the act of 1705, which directs that the sheriff shall give the buyer a deed, duly executed and acknowledged in court, for what is sold, as has been heretofore used upon the sheriff’s sale of lands. The phrase, “ as has been heretofore used,” and “ as is alioays done,” used by the chief justice, are pregnant with meaning, and show the notions entertained at that day of the universality of the .practice of not only acknowledging the deed, but also of making a registry of it in the 'proper office. In Adams and another v. Thomas, Chief Justice Tilghman calls the acknowledgment, the sanction of the court to the act of the sheriff, and such it has been considered in the numerous authorities which have been cited at the bar. In this state the reception of an acknowledgment of a sheriff’s deed, is a judicial act in the nature of a judgment of confirmation of all the acts preceding the sale, curing all defects in process on its execution, which the court has power to act upon. 1 Bald. 272; Thompson v. Phillips, 10 Peters 472. When the acknowledgment is once taken, every thing which has been done, is considered as done by the previous order or subsequent sanction of the court, and cannot afterwards be disapproved of, collaterally. 1 Serg. & Rawle 101; 4 Yeates 214; 6 Binn. 254; 2 Serg. & Rawle 54, 55. The acknowledgment of a sheriff’s deed is the official proceeding of a court of record, acting judicially in relation to the'matter before it. Ordinary deeds may be acknowledged before a judge or justice of the peace, but a sheriff’s deed can only be acknowledged under the supervision of a court. The taking of the acknowledgment is an act as purely judicial as the awarding of the execution on which the land was sold. Till such deed is acknowledged, the legal title does not pass; the vendee cannot demand the rents or recover the possession. By the act of 1S02, the deed acknowledged, is made conclusive evidence of the purchase. The jurisdiction or relation to the acknowledgment of a sheriff’s deed, is accompanied by the power to set aside the sale, and confirm it, to distribute the moneys paid into court, and to award issues. It is a. judicial proceeding, conducted with all the solemnities of a court of record, affecting matters of the highest moment, and involving, wherever the acknowledgment is received, adjudication on the validity of the sale, and the rights of the parties to the execution and the purchase. Hoffman v. Coster, 2 Whart. 469. There is a marked distinction between sheriff’s deeds and other deeds in this particular. The former are judical acts, and require the sanction of the court, and therefore the acknowledgment must be registered by the court; whereas the latter are intended merely as process and execution; for which reason the act of 1719 expressly directs, that the justice shall, under his hand and seal, certify the acknowledgment or proof upon the back of the deed. In the face of all these authorities, and the whole current of cases which have been cited at the bar, it was with surprise we heard an intimation from the counsel, that, if the court should decide it was necessary that such a proceeding should be entered on the record, it would be nothing more nor less than judicial legislation, inasmuch as. it is no where expressly directed that the act of acknowledgment should be perpetuated by an entry on the record. If this argument proves any thing, it also proves that it would be judicial legislation to require that it should be noticed on the deed, or that any notice in writing should be taken.of it whatever. From this course of reasoning, it will follow, that a solemn judicial adjudication or record, which imports absolute verity, may rest on the frail recollection or memory of man. That it may be proved as any other fact by witnesses. Of this we have a practical example in the course pursued here, for Mr Merrill was examined to prove that the deed, although no record was made of it, was acknowledged in conformity to the act, in open court by the sheriff. This is among the very few attempts which have been made so to establish a record by parol, and it is most sincerely hoped it may be the last. If this experiment should receive countenance, we must not be surprised that the judgments of every court in the common wealth will rest in parol, and be established, notas has been heretofore done, by inspection of the record. Nor was it necessary that there should be an express direction to that effect in the act, as it is an incontrovertible and a universal rule, that every judicial act or judgment of the court, whether prescribed by the common law, or by statute, must be recorded. To keep regular minutes of the. proceedings of all courts, and particularly of courts of record, dockets are provided, and clerks and prothonotaries are appointed. The entries, although made by the officers selected for that purpose, are the acts of the court done by their authority, and are under, their supervision and control. A court of record is that where the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim, that nothing shall be averred against a record, nor shall any plea or even proof be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself, that is, upon bare inspection, whether there be any such record or not; else there would be no end of disputes. But if there be any mistake of the clerk in making up such record, the court will direct him to amend it. But it is a fundamental principle, which admits of but few exceptions, that the want of a record or an entry on the record, cannot be supplied by parol testimony in a collateral proceeding. The judgment itself, and all the proceedings upon it, are carefully registered and preserved, under the name of records in public repositories, set apart for that particular purpose. Co. Lit. 260; Fonbl. 231; 3 Black. Comm. 24; 1 Black. Comm. 68. The usual mode of proving a record, is by the production of the record itself, or by a sworn or office copy. But in Peake’s Ev. 29, 30, on the authority of Thompson v. Bullock, 1 Bay 364, it is said, that although inferior evidence of the contents of a record which is shown once to have existed, may be admitted, especially in cases where the record is the only inducement to an action, yet the inferior evidence must be above the degree of mere parol proof. But this evidence presupposes the existence of the record, and is admitted from necessity,because the records, which, for security,are preserved in public repositories, cannot be removed, from place to place, to serve a private purpose. The most solemn instruments may, it is true, be presumed to have existed to support a long uninterrupted possession. So where an ancient or even a recent record is lost, the contents of it, if they can be ascertained, may be supplied by inferior testimony, by an application to the court where the records are deposited. But where the court has omitted to have a record made of a judicial proceeding, it would be dangerous to the rights of suitors, and particularly to third persons, to permit the record to be made up on parol proof or their own recollection, after the lapse of several years. Certainly this would not be done in prejudice of third persons, whether by a direct application to the court, having the care of the record, or on a collateral proceeding. It is a strong feature in this case, that the purchaser at the sheriff’s sale, sold on a testatum from another county, neither had possession of the property, paid the taxes, had his deed acknowledged, nor did any act whatever to give notice that he had become the owner of the land. Under these circumstances, it may conduce to a correct understanding of the case, to inquire whether the defendants, who claim under Spees, are in a better situation than Spees himself, and connected with this to examine whether the plaintiff is a bona fide purchaser without notice. It is unnecessary to review this question in its relation to the owner of the land, as whose property it was taken and sold by the sheriff. But I must remark that even in that aspect the title of the defendants is by no means free from doubt. Till the sheriff’s deed is acknowledged, the legal title does not pass, and the vendee cannot demand the rents, or receive the possession. Hoffman v. Coster, 2 Whart. 469. Nor would a purchaser, or those who claim under him, be within the principle of the cases of the Lessee of Duncan v. Robinson, and Moorehead v. Pearce, 2 Yeates. They differ, as has been already shown, in many important particulars, which it is unnecessary to report. But be this as it may, is the plaintiff in the same, or is he in a better, situation than Derk, from whom he purchased? And this depends on the solution of the question; whether he is a purchaser without notice? The defendants contend that he is not entitled to protection, hecause he is the purchaser of an equitable title. And of this opinion was the court who charged the jury; that the plaintiff has purchased only an equitable interest from one who never had any thing more than an equitable interest or title, imperfect on its face. The plaintiff must, therefore, stand in no better situation than Derk, from whom he bought. It is certainly a most inconvenient and mischievous doctrine, that, because one link in the chain of a long title should be (so to speak) broken by a neglect to convey a legal title, therefore all subsequent purchasers of the property are put out of the protection of the recording acts. With all due respect to those who hold this opinion, the position ]s as absurd as it is contrary to the act itself. To put equitable titles on a different footing from legal titles, would be intolerable in Pennsylvania, where we have no means of compelling the conveyance of the legal title, and where one-third or perhaps one-half of the estates are in the same predicament. And this has been the view taken of the act in the numerous cases which have been cited, to notice which particularly, would swell this opinion to an unreasonable extent. The act of 18th March 1775 is not confined to deeds, but directs that every recorder of deeds, &c., shall keep a fair book, in which he shall immediately make an entry of every deed or writing brought into his office ,to be recorded. The language of the act is sufficiently comprehensive to embrace equitable as well as legal titles, and the record of an equitable title is notice to all subsequent purchasers. It is not doubted, that a free conveyance, duly registered, operates to give full effect to the legal and equitable estate conveyed thereby, against a subsequent conveyance of the same legal and equitable estate. Where a person has purchased an equitable title, which he has taken care to put upon the record in conformity to the directions of the act, it would be difficult to persuade any person that there was any justice in postponing his right in favor of a subsequent purchaser. This in truth will not be pretended. And when a purchase has beemmade of an equitable estate, which has undergone one or more operations by legal conveyances, which have been immediately recorded, why should a second be postponed to a prior purchaser, who has neglected to' have his deed recorded, who has neither paid taxes nor taken possession of the property, and who has done no act or thing in assertion of his right, calculated to give notice of his claim. Justice and sound policy would seem to require that in such cases nothing short of clear, positive and explicit notice, should prejudice the right of a second, fair and bona fide purchaser. But it is said that the defendants have clothed themselves with the legal title, and that where the equities are equal, the maxim is, qui prior in tempore potior estin jure. These elementary principles are not denied, but they have no application to the facts of the case. The rule only applies between persons who have been equally innocent and equally diligent. The parties are not in equal equity. One has been vigilant and the other sleepy, and this leaves room for the application of the maxim “ vigilantibus non dormientibus jura subveniunt.” And when one of two innocent persons must suffer, the loss should be thrown on him whose negligence caused it. It was the duty of the purchaser to have the deed acknowledged in open court, as is directed by every act which has been passed in relation to this matter, and it was his farther duty to see that a proper registry was made of the acknowledgment; and this has been repeatedly decided to he equivalent, and of equal effect, as any other deed recorded in the recorder’s office. If this was omitted, either from the neglect or the ignorance of the purchaser or his counsel, the loss cannot with any show of justice be visited on an innocent third person. The idea of Mr Justice Lewis as to equitable estates, would seem to have been taken from some general expressions of the present chief justice in Chew v. Barnitz, 11 Serg. & Rawle 389. But the remarks there must be viewed in reference to the case decided, and cannot in this state, where equitable and legal estates are, for most purposes, on the same footing, without the most-glaring injustice, be generally applicable to equitable interests. The case was this: — By articles of agreement, dated the 7th September 1794, William Parker and Moore Wharton sold to James Wilson, a large tract of land, and covenanted that they, who were the then owners, would have'the patents taken out in his name. In consideration whereof he agreed to pay them so much per acre, and to execute bonds for the purchase-money, and a mortgage on those or other lands of equal value as a security. On the 17th March 1795, Judge Wilson, in consideration of a large sum of money or stock advanced by Mr Chew, conveyed to him 36 of these tracts of land, with covenants of special warranty, and for further assurance, on the 13th July 1795, Jeremiah Parker, who was one of the defendants in the ejectment brought by Mr. Chew, and who was concerned with Parker and Wharton, and who took out the patents in his own name, conveyed to Judge Wilson the legal title to the land, which Wilson had previously sold to Chew. On the 14th October 1795, Judge Wilson executed bonds to Jeremiah Parker for 35,133 dollars, and to Parker and Wharton for 13,000 dollars, and a mortgage to the two latter to secure the payment of the above mentioned bonds and other debts to a large amount. .Mr Chew contended, that the subsequent acquisition of the legal title enured to his benefit. But the court was of opinion and so decided, that this could not be because being but the owner of an equitable title, he stood in no better situation than Judge Wilson. That it was his duty to trace the title back to the owner of the legal estate, and if this had been done, he would have discovered that the vendors of the land had an article of agreement with Wilson, in which there was an express covenant for the execution of bonds to secure the purchase, and a mortgage on these or other lands. That he was bound to examine the title which he purchased; but that, instead of doing this, he relied on a representation which turned out to be without foundation in fact. That an inquiry would have led to a knowledge that it was merely equitable, and subject to the covenants in favor of the original vendors. The equity between them was not equal, for Mr Chew had been guilty of laches, and was therefore not entitled to favour. The conveyance of the legal title to the mortgagor was made expressly with the view to receive the mortgage from Judge Wilson in pursuance of his covenants entered into previously to the conveyance to Mr Chew. This is the substance of the case, and if the defendants here had derived their title from the owner of the legal estate by an antecedent contract, then it would have been the duty of Mr Bellas to trace the title back, and to make the necessary inquiries at the fountain head, viz. to the owner of the legal title, and this would have led him to a knowledge of the title under which they claim; if he had neglected to do this, he would have been, as Mr Chew was, without equity, and the subsequent acquisition of the legal title, would have been available. But in this case the defendants, as well as the plaintiff, claim under Derk, and all Mr Bellas was bound to do, was to inquire of Derk. If he had inquired of the owners of the legal estate, what would have been the result? It would have been fruitless, and ended in nothing. They were as ignorant of the sale of the pro perty to Spees as the plaintiff. They had the means of information that he had, and no more. Surely, therefore, a man’s title cannot be affected becaus'e he omitted to do that which would have necessarily produced no advantage whatever, and which would not, by any conceivable means, have enabled him to avoid the loss to which he has been exposed by paying the money for a worthless .title. The maxim lex neminem, cogit ad vanum seu impossibile, applies with peculiar force, particularly as against persons who claim under a man who has altogether omitted to perform a duty which the law casts upon him. Christian Bower who purchased the property as the agent of Mr Bellas, testifies that he received no notice of any other claim when he purchased of Derk, than Dunkleberger’s; Derk told him of no other, and he heard of no other. Whether Derk was himself aware that the property was sold by the sheriff, does not appear, and is immaterial, as it was not communicated to Bower. The probability is, he did not know it, as a contrary supposition-would affect him with fraud, and because it might well be that he should be ignorant of a sale conducted as this appears to have been, and of which he may have had no express notice. This case then stands unaffected by the principle declared in Chew v. Barnitz, a misapprehension of which has led the court into this error. But was Mr Bellas a bona fide purchaser for valuable consideration and without notice? A notice is either actual or constructive. In the remarks which have been already made, I have endeavored to show that Mr Bellas had 'not constructive notice. The defendants, however, have been permitted to give in evidence .proof of the existence of a deed from the sheriff to Spees, a conveyance by assignment of Spees to Moore, a levy on the premises as the property of Moore, a sale and deed by the sheriff regularly acknowledged and recorded, to Siegfried under whom the defendants claim. A doubt has been suggested, whether this will operate as notice to Mr Bellas. But this cannot affect the title of the plaintiff, because, granting that he knew of the inquisition and sale of the property to Spees, of which, by the by, there is not a particle of proof, all he was bound to do, was to ascertain (which could only be done by recourse to the record of the common pleas of Northumberland) that the deed had not received the sanction of the court, and his inquiry was at an end. He was not required to search further, and to inquire either of the sheriff or Spees, whether the deed had in fact been acknowledged, although no minute of it had been made as is required by a proper construction of the act. .He is not bound to search after secret conveyances, and the more especially in such a case as is here presented, where the parties have neglected to take possession, or to assert their rights. A person is not visited with the consequences of constructive notice on slight grounds. In the Lessee of Heister v. Fortner, 2 Binn. 40, it is held that the registry of a deed defectively proved or acknowledged, is not constructive notice to a subsequent purchaser, although the registry be made in the proper county. To the same effect many other cases have been cited at the bar, to which, for a reason before stated, I refer generally. As to the allegation that Mr Bellas had actual notice of the conveyance to Spees, it is an allegation without proof. Publicity of the sale, and the fact that Mr Bellas was an attorney, amount to nothing, where the inquiry is into the title of a valuable tract of land for which the party has paid his money, and where, in addition, he has pursued his right diligently and without unnecessary delay. But it is insisted that from the terms of the contract between Bower and Derk, Mr. Bellas, who takes the place of Derk, is not entitled to the protection afforded by the character of a bona fide purchaser. To entitle himself to this protection, the purchase must not only be bona fide, aud without notice, and for a valuable consideration, but he must have paid the purchase money; but whether he is the purchaser of the-legal or equitable title, can make no manner of difference. 2 Hay’s Eq. 716; Taite 502. This -doctrine of the courts of chancery has been recognised in this state, in Yost v. Marten, 3 Serg. & Rawle 430; The Union Canal Co. v. Young, 1 Whart. 410; and in Rogers v. Hall, 4 Watts 359. The English rule has been somewhat modified, as appears by the case of Yost v. Marten, and, carried to its utmost extent, it would be anything but a rule of equity. It remains yet to be decided, that, when valuable improvements have been made by an innocent purchaser, he can be ousted by a prior equity when there has been no negligence on his part. There is an important difference, as is seen in Yost v. Marten, between the laws of England and Pennsylvania. By our recording act of 15th March 1785, every man who has articles of agreement affecting the title of land, may place them on record, which will be notice to all the world; so that he who does not place them on record is guilty of laches. In consequence of this law, it is the custom for purchasers to search the records before they pay the money; and if they find nothing there, they conclude they are safe. But in England such articles are not recorded, and the purchaser relies on the possession of the title papers. In England, therefore, some blame is imputable to the second purchaser, but none to the first purchaser, who has done all he has been required by law to do; whilst in Pennsylvania it is directly the reverse; the first purchaser is guilty of laches by neglecting to put his agreement on record, whilst the second has used due and proper diligence by registering his conveyance in proper time, and by taking possession of the property. In Pennsylvania, therefore, there is not the same reason, for the rule in all its strictness; and I have no disposition to extend it one jot beyond the cases that have been already decided. Does then Mr Bellas come within the rule, or in other words, does the purchase-money, or any part of it, remain unpaid? We think that it does not. The money which the purchaser is absolutely bound, to pay, is by the contract 50 dollars only, all of which was paid at the time, or shortly after, and before he had notice of any adverse claim, except by Dnnkleberger, whose title is disclaimed by plaintiff and defendants. In addition to this sum, for which he is absolutely bound, and which is paid, he is liable in the contingent event of establishing his right, to pay to Derk a further sum, in the whole amounting to 125 dollars. In effect, the contract amounts to little more than a warranty of title on the part of the vendor, with a stipulation that, instead of paying it to Derk, with an agreement for its repayment on the failure to establish the title, it was retained by the vendee with an agreement that on the happening of the' contingency, he, the vendee, would pay to the vendor an additional sum. Such a case as this has never árisen, and I do not consider it any stronger than as the case of a sale of an equitable estate, with a general warranty, which has not been supposed to deprive the vendee of the benefit attached to the character of a bona fide purchaser. I have examined all the facts and circumstances of this case with some care, and it does not strike me that there is any peculiar equity on either side, or any thing in it which can induce any person to view the cause with a good or evil eye. They have all shown themselves anxious to make an honest penny in an honest way, with this difference, however, of which the plaintiff has a just right to avail himself, that he has been vigilant and the others have slept on their rights. From the best consideration we have been able to give this case, we are of opinion that the court was wrong in the admission of the evidence as contained in the bill of exceptions, and in charging the jury “ that as the plaintiff purchased only an equitable interest from one who never had any thing more than an equitable interest, a title imperfect on its-face, he stood in no better situation than Derk from whom- he bought. If the defendants establish the existence of a prior right by virtue of the sheriff’s deed to Spees, that right will prevail, whether the plaintiff had notice of such right at the time he purchased or not. Notice is not necessary, as the recording acts do not affect the rights of either party. And in their instruction that it is sufficient if the jury are fully satisfied from the circumstances and facts in evidence, that there was an acknowledgment certified by the clerk of the court upon the deed. It is not necessary that the acknowledgment should be entered on the records of the court, nor is it necessary that the sheriff’s deed to Spees should be recorded in the recorder’s office. It is good without either of these acts, if duly executed and acknowledged in open court, and the acknowledgment is certified by the clerk on the deed itself.” This court are of opinion that the acknowledgment is a judicial act, and that a sheriff’s deed must be acknowledged in open court to be valid against a bona fide purchaser without notice either- actual or constructive. That -parol evidence of the acknowledgment is inadmissible in a collateral proceeding, whether by witnesses present in court at the time of the acknowledgment, by witnesses who saw the entry of the acknowledgment on the deed, or by the production of the deed itself, with an acknowledgment on the back when no registry has been made of it in court. We say this cannot be in a collateral proceeding, although by the last case put, it would be competent for the court to amend the record by making a registry of the acknowledgment, though this would in no case be permitted without saving the rights of third persons. We are further of opinion, that a bona fide purchaser of an estate, whether legal or equitable, without notice either actual or constructive, who has in due time recorded his deed, and in other respects pursued his claim with diligence, is to be preferred to a previous purchaser claiming under a sheriff’s deed, the acknowledgment of which has never been registered.

OPINION Chief Justice CAPPY. These cases, consolidated for purposes of this appeal, require us to resolve issues dealing with the timing of when an insurer is required to request that an injured employee submit to an impairment rating evaluation (“IRE”) for the purpose of obtaining an automatic reduction in benefits under the Workers’ Compensation Act, 77 P.S. § 511.2 (“Act”). For the following reasons, we affirm the Commonwealth Court’s decision in Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 814 A.2d 884 (Pa.Commw.Ct.2003)(“Gardner’’) and reverse the Commonwealth Court’s decision in Wal-Mart Stores, Inc. v. Workers’ Compensation Appeal Board (Rider), 837 A.2d 661 (Pa.Commw.Ct.2003)(“Rider ”). A brief discussion of the facts and procedural history of each of these matters precedes our discussion of the legal issues involved. The facts of Gardner were stipulated by the parties, and, thus, are not in dispute. Barbara Gardner (“Gardner”) sustained a compensable work injury on October 2, 1996. As of October 2, 1998, she had received temporary total disability benefits for a total of 104 weeks. On June 13, 2001, Gardner’s employer, Genesis Health Ventures (“Genesis”), requested that she submit to an IRE. Gardner objected to this request, claiming that the request was impermissible under 77 P.S. § 511.2(1), as it was not made within sixty days of her receipt of 104 weeks of temporary total disability benefits. Genesis, subsequent to Gardner’s objection, filed a Petition for Physical Examination on August 10, 2001, requesting that a Workers’ Compensation Judge (“WCJ”) order Gardner to submit to an IRE. The WCJ, on November 2, 2001, denied the Petition based on Section 511.2(1), which the WCJ found to require the insurer to request the IRE within the sixty-day period of Gardner’s receipt of 104 weeks of temporary total benefits, which had commenced October 2, 1998. Genesis appealed the WCJ’s decision to the Workers’ Compensation Appeal Board (“WCAB”). On August 1, 2002, the WCAB reversed, based on its conclusion that 511.2(1) was ambiguous and that 34 Pa. Code § 123.102(f) properly interpreted that provision not as a statute of limitations, but rather as a “window in which the insurer must act for the ‘adjustment of benefit status’ ‘to relate back to the expiration of the employee receipt of 104 weeks of total disability benefits.’ ” See WCAB Op. at p. 3. Gardner, in turn, appealed the WCAB’s decision to the Commonwealth Court. In a published opinion, the Commonwealth Court en banc reversed the WCAB order, holding that the language of Section 511.2(1) is clear and free from ambiguity. As such, the Commonwealth Court held that an insurer must request that the claimant submit to a medical examination within sixty days of the claimant’s receipt of 104 weeks of total disability benefits or be forever precluded from modifying the claimant’s benefits based on the procedure set forth in 77 P.S. § 511.2. The Commonwealth Court specifically noted in Gardner, however, that an employer may, at any time, request that a claimant submit to a medical examination under 77 P.S. § 651 in order to modify a claimant’s benefits based on a change in medical condition and earning power. Gardner, 814 A.2d at 887 n. 9. Genesis sought allowance of appeal, which we granted. Turning now to the Rider matter, the facts and procedural history of that case are as follows: Appellee Wal-Mart Stores, Inc. (“Wal-Mart”) had employed Leroy Rider (“Rider”) as a truck driver since 1993. On July 31, 1998, Rider sustained a neck injury while in the course and scope of his employment. He underwent chiropractic therapy and treatment through his family physician. This course showed promise but was short-lived, as he was diagnosed with a ruptured cervical disc. Rider stopped working for Wal-Mart on October 21, 1998. He filed a Claim Petition on November 1, 1998, alleging total disability from October 21, 1998, and underwent corrective surgery on November 20, 1998. A WCJ, on December 16, 1999, found Rider’s injuries to be work-related and awarded temporary total disability benefits from October 21, 1998. Wal-Mart appealed this decision to the WCAB and also requested a supersedeas order. On January 12, 2000, the WCAB granted Wal-Mart’s supersedeas request only as to the payment of attorneys’ fees for unreasonable contest and as to Rider’s claim for disfiguring scarring. This order was unequivocal that “Supersedeas is denied in all other respects.” (WCAB Order of January 12, 2000) The WCAB remanded the case to the WCJ and, on November 20, 2001, the WCJ again found for Rider, awarding him total disability benefits from October 21, 1998. Wal-Mart did not contest this decision. On December 10, 2001, 163 weeks after the date when disability benefits began, but within sixty days of the final adjudication of Rider’s claim, Wal-Mart requested Rider submit to an IRE. On January 11, 2002, Wal-Mart informed Rider that his disability status, following the IRE, changed from total to partial. Rider responded with a petition to reinstate his total disability status, alleging that Wal-Mart’s IRE request was untimely under Section 511.2(1). The WCJ agreed with Rider, granting his reinstatement petition on June 28, 2002, on grounds that Wal-Mart’s IRE request did not comply with the statute, as it was requested beyond the sixty days following Rider’s receipt of 104 weeks of benefits. The 104-week period began, according to the WCJ, on the date of Rider’s injury, October 21,1998, and ended October 21, 2000. Wal-Mart thus had until December 20, 2000, to request that Rider submit to the IRE. Moreover, the WCJ concluded that the pertinent language of Section 511.2(1) is mandatory in requiring the insurer to request the IRE within sixty days upon expiration of the 104 weeks. Wal-Mart appealed that decision to the WCAB, which affirmed on May 12, 2003. A three-judge panel of the Commonwealth Court reversed the WCAB in a published decision. The Rider court distinguished itself from Gardner on the grounds that, unlike Gardner, the employer disputed Rider’s entitlement to benefits. Wal-Mart Stores, Inc., 837 A.2d at 664. Because Wal-Mart litigated Rider’s claim, regardless of the amount of benefits Rider accrued, the Rider court held that he did not “receive” 104 weeks of total disability benefits until the WCJ rendered its decision on November 21, 2001. Id. Rider sought allowance of appeal, which we granted. Having discussed the factual and procedural backgrounds of the instant appeals, we turn now to an analysis of the parties’ positions. Each of the instant disputes centers on whether or not the insurers have met the timing requirements of Section 511.2 for the IRE to have an automatic effect on benefits. The dispute in Gardner looks to when the statute requires the insurer to make such an IRE request. On the other hand, the dispute in Rider relates to the when the prescribed 104-week period begins. We note as an initial matter that the instant appeals require us to construe a portion of the Act. As in all cases involving the interpretation of a statute, we are guided by the provisions of the Statutory Construction Act. 1 Pa.C.S. § 1901 et seq. The most basic tenet of statutory construction is that a court must effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a); In re: Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 577 Pa. 231, 843 A.2d 1223, 1230 (2004); Hannaberry HVAC v. Workers’Compensation Appeal Board (Snyder, Jr.), 575 Pa.66, 834 A.2d 524, 531 (2003). We have stated that the best indication of legislative intent is the language of a statute. Gilmour Mfg. Co., 822 A.2d at 679 (citation omitted). In addition, when a court is called upon to construe statutory language, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage....” Id. (quoting 1 Pa.C.S. § 1903). Further, 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. 1 Pa.C.S § 1921(b); see also, In re: Canvass, 843 A.2d at 1230 (citing Scheipe v. Orlando, 559 Pa. 112, 739 A.2d 475, 478 (1999)). “Where the words of a statute are clear and free from ambiguity, the legislative intent is to be gleaned from those very words.” Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84, 87 (1995). See also, Ramich v. Workers’ Compensation Appeal Board (Schatz Electric, Inc.), 564 Pa.656, 770 A.2d 318, 322 (2001). When the words of the statute are not explicit, the intention of General Assembly may be ascertained by considering the factors enumerated at 1 Pa.C.S. § 1921(c), including, inter alia, the occasion and necessity of the statute, the consequences of a particular interpretation, or administrative interpretations. 1 Pa.C.S. § 1921(c). We begin our analysis, as we must, with the statutory terms at issue. The pertinent statutory section reads as follows: When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.” 77 P.S. § 511.2(1). The next subsection in the statute dictates that, if the impairment rating produced in the evaluation process set forth in Section 511.2(1) is equal to or greater than fifty percent, the claimant is presumed to be totally disabled and will continue to receive total disability benefits. Should the outcome of the evaluation yield an impairment rating of less than fifty percent, the claimant’s total disability benefits, upon sixty days’ notice, are reduced automatically to partial disability benefits. 77 P.S. § 511.2(2). In a subsequent section of the statute, the General Assembly provided: Total disability shall continue until it is adjudicated or agreed under [77 P.S. § 512] that total disability has ceased or the employe’s condition improves to an impairment rating that is less than fifty per centum of the degree of impairment defined under the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment.” 77 P.S. 511.2(5). Finally, subsection 6 of the statute allows an insurer to request that a claimant undergo an impairment-related medical examination, providing: Upon request of the insurer, the employe shall submit to an independent medical examination in accordance with the provisions of section 814 [77 P.S. § 651] to determine the status of impairment: Provided, however, That for purposes of this clause, the employe shall not be required to submit to more than two independent medical examinations under this clause during a twelve-month period. 77 P.S. § 511.2(6). I. Rider Rider, the Appellant in that ease, contends Section 511.2(1) is unambiguous and that the sixty-day window for Wal-Mart to request an IRE commenced on October 21, 2000, when he had “received” 104 weeks of disability benefits. According to Rider, the failure of Wal-Mart’s insurer to request the IRE before December 20, 2000, the day the 104-week plus sixty-day window closed, made any subsequent request untimely. Rider asserts that the language of the statute does not provide that it shall or may be tolled while the underlying case is on appeal. No exceptions are found in this statute, and Rider declares that he did not engage in any conduct that would have misled Wal-Mart to inaction. Wal-Mart, on the other hand, asks us to construe the meaning of “received” as it is used in Section 511.2(1) to include a tolling requirement that the claimant first be entitled to the disability benefits that he or she received. Accordingly, Wal-Mart contends that the 104-week period in this matter did not start until the litigation ended and, for the second time, the WCJ awarded benefits to Rider on November 20, 2001. Based on this assertion, Wal-Mart suggests the sixty-day clock for requesting the IRE started 104 weeks after the WCJ’s final adjudication on November 21, 2003, and ended on January 20, 2004. Wal-Mart argues that its request for Rider to submit to the IRE, as it came on December 10, 2001, was well before the lapse of the applicable period. We cannot accept Wal-Mart’s position with respect to when the time arises for making the IRE request for purposes of the automatic relief set forth in Section 511.2(2). First and foremost, Wal-Mart’s argument is at odds with our statutory mandate to effectuate the intent of the General Assembly as evidenced by the language of the statute. 1 Pa.C.S. § 1921(a). Moreover, we are bound to construe words according to their common and approved usage. 1 Pa.C.S. § 1903. For purposes of resolving the Rider matter, the operative term of Section 511.2(1) is “received.” The meaning of this term is significant, as receipt of 104 weeks of total disability benefits triggers the sixty-day countdown for the insurer to act in order to benefit from the self-executing procedure set forth in 77 P.S. § 511.2(l)-(2). The term “received,” according to its common and approved usage, means acquisition or having come into possession. Wal-Mart suggests a meaning for “received” that is not common and approved and on that basis, its position cannot stand. Thus, under the procedure for obtaining an automatic reduction in benefits in 77 P.S. § 511.2(2), the sixty-day window for an insurer to request an IRE under Section 511.2(1) begins once the employee has received, that is, acquired or comes into possession of 104 weeks of total disability benefits. For these reasons, we must reverse the Commonwealth Court’s decision in Rider. II. Gardner Our statutory analysis of Section 511.2(1), however, does not end at this point, as the issues presented in Gardner compel us to continue this undertaking. Just as in Rider, where the outcome turned on the term “received” in Section 511.2(1), the correspondingly critical word in Section 511.2(1) for the Gardner matter is the term “shall.” As such, we are faced with the question of whether “shall,” as written in a statute, is a mandatory or permissive term. As may be suspected, the opponents in Gardner have taken up positions falling on both sides of the mandatory-permissive divide. Genesis, naturally, advocates that “shall” as it is used in Section 511.2(1) is permissive or directory. The foundation for Genesis’ conclusion rests almost exclusively on the premise that Section 511.2(1) is ambiguous, as Genesis contends that “shall” can be mandatory only when the statute is unambiguous. Genesis makes these assertions despite its explicit concession that Section 511.2(1), “appears to state a hard and fast rule requiring insurers to request an IRE only within a specific sixty-day period.” (Genesis’ brief at p. 12). Genesis argues, however, that ambiguity obscures the otherwise clear words of Section 511.2(1) when that statute is read in conjunction with other subsections of Section 511.2 and other portions of the Act. For example, Genesis cites 77 P.S. § 511.2(6) as an instance in which the time for requesting the IRE is not defined, as is the case in Section 511.2(1), but rather, open-ended. Genesis submits that, given the ambiguity as to when an insurer can request an IRE, there is no way that the General Assembly intended the insui*er to be required to request the claimant submit to an IRE under 77 P.S. § 511.2 within sixty days of the claimant’s receipt of 104 weeks of benefits. Genesis further argues that the General Assembly did not impose any sanction for failure of an insurer to comply with the sixty-day requirement in Section 511.2(1) and that this omission conveys the General Assembly’s intent that “shall” is permissive or directory. Genesis also asserts that “shall” only is mandatory when the time and manner of something is of the essence, and that, with respect to Section 511.2(1), there is nothing suggestive of such urgency. Genesis urges us to defer to regulations promulgated by the Bureau of Workers’ Compensation which resolve what Genesis terms is the “inherent ambiguity” of Section 511.2(1). Finally, Genesis avers that resort to legislative history and public policy considerations is necessary to resolve the quandary presented by Section 511.2(l)’s ambiguity. In sum, Genesis’ view of the statute is that an insurer is entitled to make an IRE request beyond the time constraints set forth in Section 511.2(1), and still be entitled to the automatic relief under Section 511.2(2). Gardner’s position, simply stated, is that “shall” as it reads in Section 511.2(1) is mandatory. We find Genesis’ arguments unpersuasive. Notwithstanding the general rule that “shall” is mandatory, Oberneder v. Link Computer Corp., 548 Pa. 201, 696 A.2d 148, 150 (1997), we are aware that the word “shall” also has been interpreted to mean “may” or as being merely directory, as opposed to mandatory. Commonwealth v. Baker, 547 Pa. 214, 690 A.2d 164, 167 (1997). See also, Commonwealth ex rel. Bell v. Powell, 249 Pa. 144, 94 A. 746, 748 (1915) (interpreting “shall” as “may”); Fishkin v. Hi-Acres, Inc., 462 Pa. 309, 341 A.2d 95, 97-8 (1975)(interpreting “shall” to be merely directory as opposed to mandatory). As stated above, we must construe the terms of a statute according to their common and approved usage. Given that this court has found “shall” to be susceptible to diametrically opposed interpretations, we cannot conclude that the term “shall,” as it is used in Section 511.2(1), is so clear and free from all ambiguity that we can attach one or the other meaning without reservation. Fortunately, the General Assembly provided us with the necessary guidance to address such a situation. When confronted with a statute whose terms are not explicit, 1 Pa.C.S. § 1921(c) permits us to ascertain the General Assembly’s intent in drafting Section 511.2(1) by considering any one of a list of enumerated factors set forth in that statutory provision. In our view, the General Assembly’s intent in drafting Section 511.2(1) becomes manifest in consideration of the consequences of a contrary interpretation. 1 Pa.C.S. § 1921(c)(6). In this manner, we find it remarkable as a measure of the General Assembly’s care and consideration in drafting Section 511.2(1) that the legislature chose to utilize the term “shall” no less than three times. Still more significant is that, in each of these three instances, the term “shall” correlates to an obligation imposed upon one of the three parties pertinent to the IRE process: first, the statute declares that the employee “shall be required submit to the IRE”; second, “a medical examination ... shall be requested by the insurer” within a specified time; and third, “[t]he degree of impairment shall be determined ... by a physician” according to specific criteria. Thus, the General Assembly addresses and imposes affirmative obligations upon not just one, but all three parties possessing indispensable roles in the IRE process. The obligations so imposed cannot be viewed in any other way but mandatory, as the success of the IRE process as a cost-containment measure depends on such. To construe the obligations imposed by Section 511.2(1) as merely directory, as opposed to mandatory, threatens to render the obligations, and, by extension, the process, meaningless. See Canvass, 843 A.2d at 1232. To adopt Genesis’ approach, that is, to say “shall,” as it relates to the insurer’s obligation to request the IRE in the dictated manner is directory or permissive, frustrates the obligations which the very same statute, indeed, the very same sentence, imposes upon the employee and the physician. Stated another way, if we were to hold that the timeline for the insurer to request an employee submit to an IRE for the purpose of obtaining the relief afforded by Section 511.2(2) was merely directory, it is not unforeseeable that a claimant who has been requested to submit to an IRE might be justified in declining to attend on the grounds that his or her obligation was but a mere suggestion. That scenario is not improbable either, as the results of an IRE could affect how long a claimant may receive benefits. The result of such a construction is absurd and would frustrate the cost-containment objectives of Section 511.2. Therefore, we cannot accept that one party’s obligation is merely directory or permissive when the very same statute imposes corresponding obligations on others. In conclusion, the term “shall,” as it is used in Section 511.2(1), imposes mandatory, and not directory or permissive, obligations when an insurer is seeking to obtain the automatic relief set forth in Section 511.2(2), i.e., a reduction from total to partial disability benefits pending notice based upon the outcome of the impairment rating evaluation. This conclusion, however, does not end our task in construing Section 511.2, as the preceding analysis does not address Subsection 6, which also permits an insurer to request a claimant submit to a medical examination geared towards the impairment concept. Unlike Subsection 1, this subsection neither imposes time restrictions upon an insurer’s ability to make the request, nor does it provide for an automatic reduction of benefits based upon the impairment rating. Rather, a reduction of compensation to partial disability when the examination occurs under Subsection 6 is governed by Subsection 5, which requires an adjudication or agreement under 77 P.S. § 512 before benefits may be modified, where “total disability or the employe’s condition improves to an impairment rating that is less than fifty per centum.” 77 P.S. § 511.2(5). The General Assembly thus has supplemented the traditional approach for securing a reduction in benefits to partial disability by incorporating the concept of an IRE, providing for a self-executing, automatic modification of benefits where an insurer secures a dispositive impairment rating within a defined time period, under 77 P.S. § 511.2(l)-(2), and affording insurers the opportunity to establish an impairment rating in other time periods to reduce benefits via the traditional administrative process, under 77 P.S. § 511.2(5-6). Genesis’ claims that the General Assembly’s failure to attach any express sanction on the failure to comply with the time requirements of Section 511.2(1) or suggest that time is of the essence in the IRE process serves no more than to draw attention away from the central issue, namely, that Section 511.2(1) imposes mandatory obligations upon the parties key to the IRE process as it relates to the self-executing portions of Section 511.2(2). Genesis and Amici Pennsylvania Defense Institute (“PDI”) and Pennsylvania Self-Insurers’ Association (“PSIA”) assert that we should reverse the Commonwealth Court’s decision in Gardner in deference to the rulemaking authority of the Bureau of Workers’ Compensation (“Bureau”) and the rules it promulgated with regard to Section 511.2(1), specifically, 34 Pa.Code § 123.102. “Although an interpretation of a statute by an administrative agency is entitled to great weight, the interpretation may be disregarded if the interpretation is clearly erroneous or inconsistent with the statute under which the regulation is promulgated.” Terminato v. Pennsylvania Nat’l Ins. Co., 538 Pa. 60, 645 A.2d 1287, 1293 (1994). We are precluded from deferring to the Bureau’s rulemaking authority in this instance because we find portions of the pertinent regulation, 34 Pa.Code § 123.102, to be inconsistent with Section 511.2(1). Subsection (a) of that rule states: During the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability benefits, the insurer may request the employe’s attendance at an IRE. If the evaluation is scheduled to occur during this 60-day time period, the adjustment of the benefit status shall relate back to the expiration of the employee’s receipt of 104 weeks of total disability benefits. In all other cases, the adjustment of the disability status shall be effective as of the date of the evaluation or as determined by the evaluating physician. 34 Pa.Code § 123.102(a). Subsection (f) of Section 123.102 states: Consistent -with section 306(a.2)(6) of the act (77 P.S. § 511.2), the insurer’s failure to request the evaluation during the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability benefits may not result in a waiver of the insurer’s right to compel the employee’s attendance at an IRE. 34 Pa.Code § 123.102(f). Reviewing Rules 123.102(a) and (f) and the statute under which these provisions were promulgated, Section 511.2, we find inconsistencies between statute and rule. Whereas in the statute, the General Assembly mandates the insurer to request the employee submit to the IRE for the purposes of obtaining the automatic relief in Section 511.2(2) within the sixty-day period, Rule 123.102(a), sets no time limits, providing that the “insurer may request the employe’s attendance at an IRE.” Similarly, Rule 123.102(f), which by its terms could abrogate the statutory mandate in the instance when an insurer seeks to obtain the automatic relief provided in Section 511.2(2), is inconsistent with Section 511.2(1). Consequently, we are not required to defer to the Bureau’s interpretive rules and the arguments of Genesis and the Amici must fail. Rules 123.102(f), however, may be read to support our view that, under Section 511.2(6) an insurer may request an employee submit to an IRE beyond the sixty-day window; the consequences of such examination however, cannot operate to automatically reduce the claimant’s benefits. In conclusion, once a claimant receives, that is, comes into possession, of 104 weeks of total disability benefits, the insurer has sixty days from that date during which it must request that the claimant submit to an IRE for the purposes of obtaining the automatic relief set forth in 77 P.S. § 511.2(2). An insurer’s failure to request an employee submit to an IRE within the proscribed time frames of Subsection 1, however, does not preclude an insurer from requesting that an employee submit to an IRE at a later time. As mentioned above, 77 P.S. § 511.2(6) permits an insurer to request the claimant submit to an IRE, the results of which are not, as in Section 511.2(2) self-executing, but rather, applicable to a traditional administrative process. For the aforementioned reasons, we affirm the Commonwealth Court’s decision in Gardner to the extent that Genesis is precluded from seeking an IRE to obtain the automatic relief under Section 511.2(l)-(2) and we reverse the Commonwealth Court’s decision in Rider to the extent that the IRE it obtained on January 8, 2002, could not be the basis for an automatic reduction in benefits and, therefore reinstate the decision of the Workers’ Compensation Appeal Board granting Rider’s reinstatement petition. Justice CASTILLE, SAYLOR, EAKIN and BAER join the opinion. Justice NIGRO files a concurring opinion. Justice NEWMAN files a dissenting opinion. . Generally speaking, when an employee has received total disability compensation for 104 weeks, unless otherwise agreed to, the employee will be required to submit to a medical examination for the purpose of determining the degree of impairment due to the compensable injury, if any. If such a determination results in an impairment rating that is equal to or greater than fifty percent impairment, the employee will be presumed to be totally disabled and will continue to receive total disability compensation benefits. However, if such determination results in an impairment rating of less than fifty percent, the employee will then receive partial disability benefits after proper notice. 21A Summ Pa. Jur. 2d, Employment & Labor Relations § 17:11 (2004)(citing 72 P.S. §§ 511-511.2). The IRE procedure “was part of the General Assembly's 1996 reform effort intended to reduce rising Workers’ Compensation costs and restore efficiency to the Workers’ Compensa-' tion system.” Hilyer v. Workers’ Compensation Appeal Board (Joseph T. Pastrill, Jr. Logging), 847 A.2d 232, 235 (Pa.Commw.Ct.2004) (citation omitted). . We acknowledge that the parties cite this provision as “Section 306(a.2)(l)”, in reference to its session law citation, 1915, June 2, P.L. 736, No. 338, art. Ill, § 306(a.2). For purposes of this opinion, however, all statutory citations will be to their Purdon's citation. . On January 8, 2002, Earl J. Wenner, Jr., D.O., conducted an IRE of Rider and concluded, in accord with the pertinent statute, that Rider had a 26 percent impairment. . The question before us involves the proper interpretation of a statute. This is a question of law and, thus, our standard of review is de novo. Commonwealth v. Gilmour Mfg. Co., 573 Pa. 143, 822 A.2d 676, 679 (2003). Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002). . The primary definition of the intransitive form of the verb "receive," is "[t]o acquire or get something; be a recipient.” American Heritage Dictionary, 2d College ed., 1032 (1981). . Moreover, Wal-Mart's assertion that its appeals tolled Rider's entitlement to benefits, stands in contrast to the longstanding principle that, absent a supersedeas, the burden remains on the employer to continue to pay compensation during the litigation period. See McLaughlin v. Workers’ Compensation Appeal Board (St. Francis Country House), 808 A.2d 285, 288-89 (Pa.Commw.Ct.2002). On December 15, 1999, the WCJ awarded benefits to Rider beginning October 21, 1998. Wal-Mart applied for supersedeas, but, on January 12, 2000, the WCAB denied Wal-Mart's request in all material respects; therefore, Wal-Mart’s obligation remained constant and unchanging. . Section 314 sets forth the procedure by which an insurer can secure a physical examination or expert interview and specifies the procedure for compelling a claimant to comply with such a request. See 77 P.S. § 651(a). While the section also allows a claimant to have a health care provider of his choosing participate in the physical examination, it exempts examinations occurring under 77 P.S. 511.2(1) from this provision, instead indicating that such examination shall be conducted by a licensed physician meeting certain qualifications. See 77 P.S. § 651(b). . Section 511.2(6) limits an employee from being required to submit to more than two examinations under this subsection during a twelvemonth period. . The Dissent fails to reconcile its interpretation of Subsection 7, 77 P.S. § 511.2(7) with Subsection 5, 77 P.S. § 511.2(5). Under its interpretation, Subsection 7 sets a strict and artificial limitation on the receipt of total disability benefits, whereas the clear and unambiguous terms of Subsection 5 mandate that total disability benefits shall continue until it is adjudicated or agreed that total disability has ceased or the claimant's impairment rating is less than fifty percent. The Dissent’s view of Subsection 7 injects the mere passage of time as one of the triggers for the cessation of total disability benefits. Moreover, a crucial premise of the Dissent relies upon a factual determination, namely, the employers’ "implicit agreement” to extend benefits in these matters, with no record citation to support such a finding. A finding of an agreement between an employer and claimant to extend benefits arguably would alter an employer’s status, as an employer who has not made such an agreement would not have the benefit, under the Dissent’s view, of the self-executing process for reducing benefits. To conclude, as the Dissent does, that the absence of an explicit agreement is tantamount to an implicit agreement could provide license to an employer to miss the deadlines of Subsection 1 and later claim an implicit agreement to extend benefits beyond 104 weeks which would allow the employer the benefit of the self-executing process for reducing benefits. Third, the Dissent fails to explain adequately how an agreement to extend benefits under its view of Subsection 7 translates into an agreement to extend the deadlines set forth in Subsection 1.

Opinion by Mr. Chief Justice Bell, Defendant was convicted by a jury of armed robbery, duly sentenced, and the judgment of the Court of Quarter Sessions was affirmed by the Superior Court. However, the Superior Court denied the motion of appellant, an indigent defendant, for appointment of counsel to argue his case before it. We allowed an allocatur. A person convicted of and sentenced for armed robbery is entitled to an appeal to the Superior Court, as of right. Act of June 24, 1895, P. L. 212, §7(a), 17 P.S. §182, with its amendments, as amended by the Act of August 14, 1963, No. 401, P. L. 819. However, a person convicted of and sentenced for armed robbery has no right of appeal to the Supreme Court, although an appeal from the decision of the Superior Court to the Supreme Court may be “specially allowed by the Superior Court itself or by any one Justice of the Su preme Court.” Act of June 24, 1895, P. L. 212, §7(e), as amended, 17 P.S. §190. See to the same effect, Stais v. Sears, Roebuck & Co., 378 Pa. 289, 290, 106 A. 2d 216; Kraemer v. Guarantee Trust and Safe Deposit Company, 173 Pa. 416, 418, 33 A. 1047. Cf. also, Act of February 15, 1870, P. L. 15, §1, 19 P.S. §1186. To repeat, defendant’s only appeal as of right is to the Superior Court. The Sixth Amendment to the Constitution provides that “In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense” and a denial of that right would constitute a violation of the Amendment. It is clear, therefore, that every person accused of crime is entitled to the assistance of counsel for his defense. Moreover, if the accused is indigent the Commonwealth must in every alleged felony and in every serious case furnish him, whether requested or not, counsel for his defense (a) at every critical stage of the proceedings below: Carnley v. Cochran, 369 U.S. 506, 513; Uveges v. Pennsylvania, 335 U.S. 437, 441; see also: White v. Maryland, 373 U.S. 59; Gideon v. Wainwright, 372 U.S. 335; Hamilton v. Alabama, 368 U.S. 52; and (b) in any direct appeal from a judgment of sentence which he has as of right: Douglas v. California, 372 U.S. 353, 356-358. However, this “constitutional right [to counsel] does not justify forcing counsel upon an accused who wants none”: Moore v. Michigan, 355 U.S. 155, 161; and, in every criminal case, an accused can waive whatever Constitutional rights he possesses, if the waiver is intelligently and understanding^ made: Carnley v. Cochran, 369 U.S., supra; Uveges v. Pennsylvania, 335 U.S., supra; Moore v. Michigan, 355 U.S., supra; Johnson v. Zerbst, 304 U.S. 458; Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A. 2d 303. While defendant had no counsel at his trial in the Court of Quarter Sessions, his right to counsel was, as he concedes, not violated in that trial but was violated in and only in the Superior Court. The judgment of the Superior Court is reversed and the record remanded * to that Court for further proceedings consistent with this Opinion and the hereinabove cited cases. As to the rights of an accused when the police investigation has passed from the investigatory stage to the accusatory stage, see Escobedo v. Illinois, 378 U.S. 478. See also the following cases which were handed down the same day as this Opinion: Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 204 A. 2d 439; Commonwealth ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A. 2d 450. Cf. also, Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A. 2d 446. Act of March 31, 1860, P. L. 427, §61, 19 P.S. §1185.

CAVANAUGH, Judge: Appellant, Keith E. Royer, entered a guilty plea to the second count of a charge of corruption of the morals of a minor. His sentence included a fine of five hundred dollars and imprisonment of not less than two nor more than four years. Appellant’s petition to modify the sentence was denied and he has appealed from the judgment of sentence. In this case, the offense occurred on November 25, 1982, and sentence is subject to the sentencing guidelines set forth in 204 Pennsylvania Code, Chapter 303, 42 Pa.C.S. § 9721. The sentence imposed was outside the range of the sentencing guidelines, although within the maximum sentence for the offense committed, and therefore falls within the requirement of the Sentencing Code, 42 Pa.C.S. § 9721(b) which provides: In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant. The appellant contends that although the court gave its reasons for imposition of sentence on the record at the sentencing proceedings there was no “contemporaneous written statement” of the reasons for deviating from the guidelines, sufficient to satisfy the above requirements. Initially, we note that there are two sets of “guidelines” for imposition of sentence. The earlier legislative “guidelines” are actually factors to be considered in weighing sentencing alternatives found in the Sentencing Code, 42 Pa.C.S. § 9701, and deal in general with the alternatives of (1) probation; (2) determination of guilt without further penalty; (3) partial confinement; (4) total confinement and (5) a fine. 42 Pa.C.S. §§ 9721 to 9726. As noted in Commonwealth v. Doyle, 275 Pa.Super. 373, 380, 418 A.2d 1336, 1340 (1979): In imposing sentence the court “must not overlook pertinent facts, disregard the force of the evidence, commit an error of law ... or inflict punishment exceeding that prescribed by statute.” Commonwealth v. Knight, supra, 479 Pa. at 212, 387 A.2d at 1299; see Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S. § 1321(b) (Supp.1977); Commonwealth v. Knight, supra; Commonwealth v. Riggins, supra. [474 Pa. 115, 377 A.2d 140 (1977)]. (Emphasis added). Many of our cases used the convenient phrase “guidelines” while discussing sentencing alternatives and the factors relevant thereto. Commonwealth v. Riggins, 474 Pa. 115, 134-5, 377 A.2d 140, 150, 151 (1970); referred to “[t]hese [alternative sentencing] factors provide the sentencing court with guidelines for the articulation of the reasons for its sentencing decision”; Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980), which refers to “those general guidelines we have developed in recent cases and which the Legislature has prescribed in the Sentencing Code ...” 490 Pa. 255, 416 A.2d 457; Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1981); Commonwealth v. High, 304 Pa.Super. 174, 450 A.2d 158 (1982); Commonwealth v. Townsend, 497 Pa. 604, 443 A.2d 1139 (1982); Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982). Perhaps confusion may be avoided in the future if we refer to “guidelines” only when we are considering the guidelines developed by the Pennsylvania Commission on Sentencing. In addition to the alternative sentence factors for imposing sentence the Sentencing Code also provides at 42 Pa. C.S. § 9721(b): (b) General standards. — In selecting from the alternatives set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing). (Emphasis added). The guidelines promulgated by the Pennsylvania Commission on Sentencing are set forth in the Pennsylvania Code and found at 42 Pa.C.S. § 9721. They were adopted by the legislature on May 14, 1982, to become effective on July 22, 1982. The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth. Accordingly, the guidelines set forth the minimum range, aggravated minimum range and mitigated minimum range of sentence for the offenses dealt with in the sentencing range chart. The sentence range chart deals with specific offenses and the range of sentence for that offense considering “the offense gravity score” and “prior record score” as well as “weapon enhancement”, if applicable. The sentencing guidelines now include specific as well as general standards which must be considered by the trial court. In every case where sentence is imposed the court must state on the record at sentencing the reasons for the imposition of the sentence. This rule is applicable whether or not the sentence imposed is within the specific guidelines established by the Pennsylvania Commission on Sentencing. In the instant case the appellant engaged in sexual acts with a twelve-year-old boy for whom he acted as a foster parent. The court pointed out in sentencing that the appellant violated a trust that had been imposed on him by reasons of his agreeing to care for the twelve-year-old. The court noted that this in itself was a very serious consideration for the imposition of sentence. The court considered the effect of the crime upon the victim and society and the seriousness of the offense. In addition, the court recognized the appellant’s need for rehabilitation and stressed that appropriate professional help was to be provided. The court analyzed the medical reports in the appellant’s record. Realizing the appellant’s need for help the court nevertheless felt that it could not give a sentence “to anything but a state correctional institution.” The court sentenced the appellant to Camp Hill for his own protection as the father of the victim was in the state penitentiary at Pittsburgh and the court did not want to risk sending the appellant to the same prison where the victim’s father was confined. The court also considered the appellant’s background and poor financial condition. The fact that the court made no specific reference to the factors set forth in the Sentencing Code is not fatal, as long as it is clear that the court considered the sentencing factors. Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980). We are satisfied that if the sentence imposed had been within the range of recommended sentences under the sentencing guidelines, that the record of the sentencing proceedings would have met the requirements of Commonwealth v. Riggins, supra, which held that the court must set forth on the record at the time of sentence the reasons for the sentence. See also, Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977). The requirements of Riggins and Kostka are also imposed by 42 Pa.C.S. § 9721(b) and Pa.R.Crim.P. 1405(b). The appellant’s reliance on Commonwealth v. High, 304 Pa.Super. 174, 450 A.2d 158 (1982) to establish an inadequate statement of reasons on the record is misplaced. In High, the court merely discussed with the defendant the contents of a psychiatric evaluation and then sentenced him to confinement. In our case the court considered factors individual to the appellant, as his needs for rehabilitation and psychiatric assistance. Similarly, in Commonwealth v. Cruz, 291 Pa.Super. 486, 436 A.2d 220 (1981), also relied on by the appellant, a panel of this Court remanded for resen-tencing since it found the court’s statement as to the basis for sentencing inadequate. The applicability of the sentencing guidelines involves different considerations. Since the sentence imposed was outside the guidelines provided by the Pennsylvania Commission on Sentencing, two issues are raised: (1) was the statement of the court made at sentencing in the defendant’s presence, and recorded, a “contemporaneous written statement”; and if so then, (2) is the statement sufficient to meet the requirements of the act. The first issue deals with the meaning of “contemporaneous written statement”, which requirement is mandatory and “not discretionary.” Commonwealth v. Love, 295 Pa.Super. 276, 280, 441 A.2d 1230, 1232 (1982). In Commonwealth v. Tomasso, 311 Pa.Super. 103, 457 A.2d 514 (1983), the Commonwealth appealed when the court imposed a sentence below the minimum guidelines. This Court noted at 311 Pa.Super. 107, 457 A.2d 516: “Where the court sentences the individual to a term less than that stated in the guidelines, the act requires that the court provide a contemporaneous written statement describing the reasons for the sentence. This was done.” The opinion does not discuss the nature of the contemporaneous written statement. The following opinions also refer to the “contemporaneous written statement” of the reasons for the deviation from the guidelines. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982); Commonwealth v. Nixon, 311 Pa.Super. 450, 457 A.2d 972 (1983). However, none of these cases sheds light on the question of what constitutes an adequate “contemporaneous written statement.” In Commonwealth v. Nixon, supra, the Commonwealth appealed under Section 5 of the Act of November 26, 1978, P.L. 1316, No. 319 (Act 319) which provides for interim sentencing pending adoption of guidelines by the Pennsylvania Commission on Sentencing. This Court held that the Commonwealth waived its claim that the sentence was unreasonable as it did not file a motion to modify sentence as required under Pa.R.Crim.P. 1410. The Court stated at footnote 4, 311 Pa.Super. 453, 457 A.2d 974: 4. Because of our determination, infra, that the Commonwealth waived its Act 319 claim, we need not determine the effect, if any, of the fact that the judge’s statement of reasons was neither “contemporaneous” nor “written” as required by section 5(b) of Act 319. In the instant case, the judge gave his reasons for imposing sentence at the sentencing proceedings, in the appellant’s presence, and his statement was recorded and ultimately transcribed as part of the record. We hold that the judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constitutes a “contemporaneous written statement”, within the meaning of the act. The purpose of the contemporaneous written requirement would appear to be to advise the defendant of the reasons for deviating from the guideline and provide a memorial for his use and for appellate review. It would be unreasonable to conclude that the legislature intended that the court do more than that when the sentence imposed is outside the sentencing guidelines. Having established that the court provided a contemporaneous written statement for his reasons for the sentence we must now determine if they were adequate, and we find that they were not. Nowhere does the record indicate that the judge was aware of the guideline range. The following colloquy between defense counsel and the court is the extent of the court’s reference to the sentencing guidelines as far as the permissible range of sentence is concerned: MR. AXINN: Please the Court? Your Honor, we ask the Court to consider also the guidelines of the Pennsylvania Sentencing Commission since this offense did occur in November of 1982, that it could be applied. And for corrupting the morals of minors, I believe' the guidelines’ sentence, without rating or mitigating factors, would be between zero and twelve months. The minimum term with aggravated factors, it would be— THE COURT: That’s a guide line but it’s not a mandate, you see. The sentencing guidelines are complex, including as they do references to “prior record score”, “offense gravity score”, “statutory classification”, “minimum range”, “aggravated minimum range”, and “mitigated minimum range.” 42 Pa.C.S. § 9721. At the minimum, the court must indicate that it understands the sentencing guideline range, in those cases in which the court deviates from the guidelines. As noted above, in every case where sentence has been imposed, the court then must make as part of the record and disclose in open court at the time of sentencing, a statement for the reasons for the sentence. However, the Sentencing Code imposes an additional requirement where the sentence is outside the guidelines and that is there must be a contemporaneous written statement of the reasons for deviation from the guidelines. Where the trial judge deviates from the sentencing guidelines set forth in 204 Pennsylvania Code, Chapter 303, he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range. The Act states that failure to provide an appropriate contemporaneous written statement shall be grounds for vacating the sentence and resentencing the defendant. In the instant case the court did not advise the defendant what the sentencing guidelines provided as far as the range of sentence, and did not state why he deviated from the sentencing guidelines. Judgment of sentence vacated and case remanded for resentencing. We do not retain jurisdiction. . The sentence imposed by the court was as follows: "It is the Order and Sentence of this Court that the said defendant shall pay a fine of five hundred dollars ($500.00), together with the costs of prosecution, Crime Victim’s Compensation in the sum of $10.00, Domestic Violence Costs in the sum of $10.00, and shall be committed ..." for a minimum term of two and a maximum term of four years. . The appellant was sentenced to two to four years imprisonment for corruption of the morals of a minor, which is a first degree misdemeanor. 18 Pa.C.S. § 6301(a). Since this offense is not subclassified by the guidelines, it has an offense gravity score of three. Because the defendant has no prior record, the prior record score is zero. The guidelines indicate in these circumstances a minimum range of zero to twelve months confinement; an aggravated minimum range of twelve to eighteen months; and a mitigated minimum range of non-confinement. The sentence imposed in this case having a minimum term of twenty-four months, is a deviation from the guidelines. . Our recent en banc decision in Commonwealth v. Mullen, 321 Pa.Super. 19, 467 A.2d 871 (1983) holds that the reasons for imposing sentence be recorded during the sentencing proceedings and that the defendant be present.

Opinion by Mr. Justice Brown, McNeely Company, a corporation, was a depositor with the appellee, the Bank of North America, and had in its employ one Charles S. Beber, who, between April 20, 1897, and February 24, 1903, forged the names of payees on ninety checks issued by it. Some of these checks were paid directly to him by the appellee, and others he deposited to the credit of his account with certain banks and bankers, who collected them through the clearing house. Each of said checks was charged to plaintiff’s account with the defendant, and the amount thereof entered as a charge against its deposit in its bank book when the same was settled. On each settlement the balance was struck and entered, after deducting the amount of the checks paid on the forged indorsements. During the period of these forgeries the bank book of the appellant was settled seventy-six times, and all checks that had been paid by the bank, including those bearing the forged indorsements, were regularly returned to the appellant at each settlement of its bank book. Reber continued in its employ until April 1,1903. Some of his forgeries were discovered on or about January 1, 1904, and within two or three weeks thereafter a very large number of the ninety forged indorsements were discovered. The twenty-fourth finding of fact of the referee is: “No notice was given by the plaintiff to the defendant of the forgeries or any of them until April 11, 1904. As stated in finding No. 10, the bank book was settled three times, viz., on February 1, 1904, February 28, 1904, and March 31, 1904, after the discovery of the forgeries and before notice was given thereof on April 11, 1904. During the same period, Robert K. Mc-Neely, who was a director of the bank, attended directors’ meetings weekly from January 4, 1904, to April 11, 1904, a total of fourteen meetings, but gave no notice to the bank concerning the forged indorsements or complaining of their payment.” Robert K. McNeely, referred to in the foregoing finding, was a director of the company and its secretary and treasurer, having charge of its offices and the examination of its trial balances. Reber was able to conceal his forgeries from his employer by a complicated and ingenious system, which need not be here described, for the referee has found that the appellant was not negligent in failing to discover them sooner, though they extended through a period of nearly six years. The reasons for this finding are unimportant, if the legal conclusion of the referee and court was correct, that the appellant so delayed giving notice to the bank of the forgeries, after it had discovered them, that it cannot recover the amount paid and charged to its account on any of the forged indorsements. The fact that Reber had forged some of the indorsements was, as stated, discovered about January 1, 1904, and within two or three weeks thereafter it was known to the appellant that a very large number of the ninety forgeries had been committed; but no notice of this was given to the bank until nearly three months afterwards. The duty of a depositor in a bank, upon discovering that it has paid and charged to his account either a check bearing his forged signature as drawer or his check on the forged indorsement of the payee, is to promptly notify it of the forgery. This notification is not only a duty, but it is what a depositor will instinctively do on discovering, upon the return of his bank book with canceled checks charged to his account, that there are among them some which he never signed or which were not paid to the payees named in them. This duty is not questioned by the learned counsel for the appellant. Their contention is, that, for the disregard of it, a depositor is not to be barred from recovering from the bank what it may have ■ paid on his forged signatures or on the forged indorsements of payees named in checks drawn by him, unless, by his failure to promptly notify it of the forgeries, it has lost rights over against other parties, and the burden is upon it to prove such loss. Authorities are not wanting to support this, but the referee and court below did not follow them. Relying upon others, they held that the plaintiff, by reason of its failure to promptly notify the bank of its discovery of the forgeries, could not recover, even though the bank had offered no evidence that it could have protected itself and the plaintiff had not shown that it could not, if prompt notice had been given. The relation between a bank and its depositor is a contractual one. Its undertaking with its depositor is to pay his checks, if he has sufficient funds with it for that purpose, and it assumes all the risk as against him of a mispayment in paying and charging to his account a check which he has not signed or one which he has signed bearing a forged indorsement of the payee. To his account it may not charge such a check. If it does, the depositor can recover from it the amount so charged. No payment by a bank on a forged signature of a depositor as drawer of a check, or on a forged indorsement of his payee can affect him. His right is to get back from the bank whatever he has deposited with it, less what has been properly paid out on his orders. The responsibility of the bank to the depositor is absolute, and it can retain no money deposited with it by him to reimburse it for any mispayment it has made out of such deposit; but it can recover from a forger responsible for the mispayment, or from those who, by their indorsement of a check, have vouched for previous indorsements or the genuineness of the signature of the alleged drawer. The right of a bank to recover from a forger, or from those to whom it may have paid a check bearing the forged signature of one of its depositors, or a forged indorsement, is its only remedy for the fraud practiced upon it by the forgery. The depositor’s money is not affected by it, and when he is the first to discover it, it is not reasonable that he should not be required to give prompt notice of it to the bank, if he intends to hold his depository liable for the mispayment, and this without regard to what may or may not result from a prompt effort to recover from the party or parties who may be liable to the bank for the mispayment. The depositor can gain nothing by withholding knowledge of the forgery, but the bank, if kept in ignorance of it after his discovery of it, may lose everything. As soon as a bank learns that it has paid a check on a forged signature of a depositor, or on a forged indorsement on his check, it is its duty to promptly restore to the depositor’s account what was improperly taken from it, and its right at the same time is to proceed against those who wrongfully got the money. This right is to proceed immediately, and to the promptness with which a bank is able to exercise it recovery is often due. When a depositor withholds from his bank his knowledge of the forgery, he withholds from it this right to proceed promptly for its own protection. It may or may not be able to recover from the forger by promptly proceeding against him, but its right is to try by so proceeding; and when one of its depositors discovers that it has innocently sustained a loss, he ought, not only in all good conscience, but as a legal duty, to notify it at once of its mistake, for by withholding from it what he has discovered, he can, as just stated, gain nothing, but it may lose all. A forger may be insolvent or beyond the reach of civil or criminal process, but, by prompt proceedings against him, others may become interested in him and come to his assistance, who after delay may not do so. This incident to a bank’s right to promptly proceed against a forger is not to be overlooked. Whenever a depositor knowingly withholds from it knowledge without which it cannot so proceed in an effort to protect itself, he ought to be regarded, when he comes to enforce alleged rights against it, as having withheld from it a substantial right, without regard to what might or might not have resulted from a prompt exercise of that right. When an indorser on a promissory note defends on the ground that prompt notice was not given him of its nonpayment, the holder will not be heard in reply that, if notice of the nonpayment had been promptly given, it would not have helped the indorser, because he' could have recovered nothing from the maker of the note or prior indorsers. The right of the indorser on a note is to prompt notice of its nonpayment, that he may have an opportunity of proceeding promptly against the maker or prior indorsers, without regard to what may result from his efforts, and if this right is not given him, his liability is at an end. “ The insolvency of the maker of a note, though- known to the indorser, ought not to discharge the holder from giving notice. There are various degrees of insolvency, and it rarely happens that a man is totally insolvent. So .that there is a chance of getting something by an 'application to the debtor. Besides, if a man has nothing of his own, he may have friends, who, to relieve him from pressure, will do something for him. The indorser, therefore, has a chance of securing himself, at least, in part. The only reason that can be assigned for insolvency taking away the necessity of notice is, that notice could be of no use to the indorser; but it is almost impossible to prove that it might not have been of use; therefore, it is necessary: ” Barton v. Baker, 1 S. & R. 334. “Why should a different rule apply to a bank, which never knowingly pays on a forgery but, in cases like the one now before us, is always an innocent victim ? Delay by a depositor in giving notice to a bank means not only its enforced delay in proceeding against those liable to it, but means loss of evidence as well; and if the rule for which appellant contends should prevail, a bank might be deprived of the opportunity of showing that prompt proceeding on its part would have resulted in its recovering for its loss. And again, in a suit brought by a depositor against a bank to recover the amount which it may have improperly paid on a forgery, the issue is the forgery. This issue ought not to be complicated with another, and a speculative one, as to whether anything might have been recovered from the forger, if prompt notice had been given to the bank of the forgery. The only reasonable and logical rule is the one adopted by the referee and the court below. Our own cases are in harmony with it, and it is approved by high authority. A different one would be putting a premium upon the laches of a depositor, and give to a dishonest one opportunity to help a forger to escape. Tn Rick v. Kelly and Rick v. Fisher, 30 Pa. 527, the plain tiffs below purchased from the defendants notes bearing the genuine signature of George Fox, as maker, but the forged indorsements of the payee. In reversing the judgments in favor of the plaintiffs and announcing the general rule that notice of a forgery within a reasonable time after discovery is necessary for the maintenance of an action for the recovery of the money paid for such notes, it was said by Portee, J.: “ The notes in this suit contained a genuine name. For aught that appears, timely application to that party might have saved the debt, for others thought proper to obtain judgments and sell his property. At some stage of the business, the plaintiffs obtained knowledge of the forgery, for they brought the actions and put the fact on record. Why not inform the defendant of his risk, and give him a chance of escape by a direct blow at the maker ? What justice could there be in permitting a holder to hold on until the very close of the period of limitation, and then to spring a suit on the seller, when the genuine parties are dead and their estates gone ? ” In Myers v. Southwestern National Bank, 193 Pa. 1, in a suit to recover what had been paid by the bank on the forged signature of the plaintiff to checks, judgment on a verdict directed for the defendant was sustained, because the plaintiff had not promptly notified it of the forgeries after he was held to have had notice of them, and we said: “ It was not the bank’s fault that the first forgeries were not promptly discovered and notice thereof given. If the plaintiff’s duty to the bank had been performed at the proper time the fact would have appeared that the bank had charged plaintiff, on his bank book, with the payment of two items ($300 and $200) for which no vouchers appeared among the checks handed to him by his clerk. These vouchers, the two forged checks, had been abstracted and destroyed by the latter. No objection having been made at the time of the first settlement, the bank had a right to assume that everything was correct, including the two checks purporting to be signed by him. His silence was tantamount to a declaration to that effect, and, in afterwards honoring checks signed by the same person, the bank had a right to consider the fact that the signatures had been at least tacitly recognized by the plaintiff as genuine. While the plaintiff was not chargeable with the knowledge of his clerk that the latter had committed the forgery, he was clearly responsible for the acts and omissions of his clerk in the course of the duties with which he was intrusted, viz.: to receive the checks from the bank, take them to his employer’s office, compare the amounts thereof with the amounts in the bank book and check book, etc. In view of the uncontradicted evidence as to the foregoing facts, it cannot be doubted that as between the bank and the plaintiff the latter alone should be held responsible for the consequences resulting from the failure to examine the checks in question and approve or reject them within a reasonable time. In contemplation of law, the delivery of the checks to plaintiff’s clerk was a delivery by the bank to the plaintiff himself, as the basis on which its credits were claimed. The bank was therefore entitled to have them examined and, if rejected, returned within a reasonable time. That was not done, and because of plaintiff’s failure to perform his duty in that regard, he should not be permitted to recover. Any other rule would be inconsistent, not only with general and long-established custom, but also with well-settled principles of law on the subject: Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, 107; United Security, etc., Co. v. Central Nat. Bank, 185 Pa. 586.” A very learned referee in United Security Life Insurance and Trust Company of Pennsylvania v. Central National Bank of Philadelphia, 185 Pa. 586, in his report, confirmed by the court, held that the plaintiff was not entitled to recover from the defendant the amounts paid and charged to its account on forged indorsements, because it had not promptly notified the defendant of the forgeries after it had what the referee held to be constructive notice of them. The judgment was reversed solely on the ground that the referee had erred in finding that the plaintiff had had constructive notice of the forgeries on March 27, 1894, and judgment was directed to be entered for it, because, when it actually discovered the forgeries on May 17, 1894, it gave immediate notice to the defendant. What the referee said and what was not held to be error was: “ The referee is of opinion that it is not necessary for the defendant to make effective the defense based upon the want of diligence of the plaintiff in giving notice of the forgery, to show with certainty that had notice been given at an earlier day a fund be longing to Williams (the'forger) was in existence which could have been attached and held. When it is once shown that the plaintiff failed to give prompt notice of the discovery of the forgery, the plaintiff’s right of action is gone. The law assumes, and does not find it necessary to conduct an inquiry to verify the assumption, that had the notice been given promptly, the Central Bank might have taken steps to protect itself as against Williams.” A sentence from the opinion in Iron City National Bank v. Fort Pitt National Bank, 159 Pa. 46, is pointed to by counsel for the appellant as an expression from this court sustaining their contention. In that case, the present chief justice did say that all a bank which has paid a forged check of one of its depositors “Need do in any case is to give notice promptly according to the circumstances and the usage of the business, and unless the position of the party receiving the money has been altered for the worse in the meantime, it would seem that the date of notice is not material.” This must be read with reference to the facts in that case. As to those in the present one, it is not applicable. There, the Fort Pitt National Bank, the defendant, which received the money on the forged check, had paid it out on the check of its depositor, to whose credit it had been placed, and all that we meant to say was, that, if the bank had not paid it out, and could still have protected itself by withholding it, the date of the notice of the forgery would not have been material. The rule followed by the learned referee and court below is the only reasonable, logical and proper one in this class of cases. It is approved by the supreme court of the United States in Leather Manufacturers’ Nat. Bank v. Morgan et al., 117 U. S. 96, where it is said by Harlan, J.: “If the depositor was guilty of negligence in not discovering and giving notice of the fraud of his clerk, then the bank was thereby prejudiced, because it was prevented from taking steps, by the arrest of the criminal, or by an attachment of his property, or other form of proceeding, to compel restitution. It is not necessary that it should be made to appear, by evidence, that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal. Whether the depositor is to be held having ratified what his clerk did, or to have adopted the checks paid by the bank and charged to him, cannot be made, in this action, to depend upon a calculation whether the criminal had at the time the forgeries were committed, or subsequently, property sufficient to meet the demands of the bank. ... As the right to seek and cómpel restoration and payments from the person commiting the forgeries was, in itself, a valuable one, it is sufficient if it appears that the bank, by reason of the negligence of the depositor, was prevented from promptly, and, it may be, effectively, exercising it: Continental Bank v. Nat. Bank of the Commonwealth, above cited: Voorhis v. Olmstead, 66 N. Y. 113, 118; Knights v. Widen, L. R. 5 Q. B. 660 ; Casco Bank v. Keene, 53 Maine, 103 ; Fall River Bank v. Buffinton, 97 Mass. 498.” Other questions raised by the appellant need not be considered in view of the correct conclusion of the court below that its delay in giving the appellee notice of the forgeries bars its right to recover. The assignments of error are all overruled and the judgment is affirmed.

OPINION MANDERINO, Justice. This litigation had its genesis in the Pennsylvania Human Relations Commission’s investigation, in conjunction with the Equal Employment Opportunity Commission (EEOC), into the employment practices of various companies throughout this Commonwealth. Designated the “Target Company Project,” the project involved a statistical review by the Commission of every major employer in the state, with a view towards initiating formal proceedings against any employer thought to be engaging in discriminatory practices. Respondent St. Joe Mineral Corporation (St. Joe), one of the employers under scrutiny, received a questionnaire from the Commission’s Executive Secretary on May 26, 1971, seeking information concerning the makeup of its work force. Respondent compiled the requested data and forwarded the information to the Commission. On August 21, the Commission, appellant in this case, served respondent with a complaint charging it with discriminatory employment practices in violation of the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963 (1964 & Supp.1977-78). Accompanying the complaint was a set of written interrogatories, seeking detailed information which bore on the alleged discriminatory practices. Respondent refused to answer the interrogatories despite the Commission’s admonition that unless the interrogatories were answered within 21 days, the Commission would “draw such adverse inferences as may be appropriate from the failure to complete the questions.” Before further action was taken by the Commission, the Commonwealth Court, in a case involving the same “target project,” unanimously held that a complaint nearly identical to the one served on respondent failed to set forth the particulars of the alleged discriminatory practices as required by § 9 of the PHRA, 43 P.S. § 959 (1964). Pennsylvania Human Rel. Comm’n v. United States Steel Corp., 10 Pa.Cmwlth. 408, 311 A.2d 170 (1973). The Commonwealth Court purportedly did not decide whether the Commission could obtain judicial enforcement of an order directing answers to interrogatories. This Court affirmed the Commonwealth Court. Pennsylvania Human Rel. Comm’n v. United States Steel Corp., 458 Pa. 559, 325 A.2d 910 (1974). We agreed that the Commission’s complaint was deficient in that it did not “set forth the particulars” of the alleged discriminatory practice as required by § 9 of the PHRA. Absent a proper complaint, we held that the Commission’s enumerated powers delineated in § 7(g) of the PHRA were not available to the Commission; that being so, we had “serious doubts” regarding the Commission’s power to compel answers to interrogatories under the same procedural infirmity. 458 Pa. at 565-66, 325 A.2d at 913-14. We expressed no opinion in United States Steel concerning the Commission’s interrogatory power in a proceeding initiated by a complaint meeting the requirements of § 9. Faced with our decision in United States Steel, the Commission renewed its attempted investigation of respondent, twice amending its complaint to include employment statistics obtained from the EEOC which purportedly demonstrated discriminatory hiring, placement, and promotional practices by respondent. In an attempt to discover detailed information bearing on these employment practices, the Commission again sent interrogatories to respondent, requesting that they be answered. Respondent refused, whereupon the Commission formally ordered compliance within fifteen days. When respondent again refused to answer the interrogatories, the Commission petitioned the Commonwealth Court to enforce its order that they be promptly answered. The Commonwealth Court dismissed the petition. Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., Zinc Smelting Division, 24 Pa.Cmwlth. 455, 357 A.2d 233 (1976). The Commonwealth Court held that the Commission’s twice-amended complaint met the particularity requirement of § 9 of the PHRA, but refused to enforce the Commission’s order that respondent answer the interrogatories. Although it was the Commission’s prerogative to issue and request answers to interrogatories, in its view it could not judicially enforce an order to answer interrogatories since the PHRA did not authorize use of interrogatories as a means of discovery. This direct appeal presents two issues for resolution: (1) whether the Commission’s complaint satisfies § 9 of the PHRA, and (2) whether the Commission can obtain judicial enforcement of its order that respondent answer written interrogatories. We think the Commonwealth Court correctly decided both these issues, and for the following reasons, we affirm its order. I. THE SUFFICIENCY OF THE COMPLAINT Section 9 of the PHRA, as amended, 43 P.S. § 959 (Supp.1977-78), provides that the Commission may, on its own initiative, file a complaint against one allegedly engaging in discriminatory practices. A complaint lodged by the Commission, no less than a complaint filed by any other moving party, must “set forth the particulars” of the alleged discriminatory practice. The Commission’s complaint, after identifying the parties involved, asserts that respondent “discriminates in its hiring of Blacks and females and fails or refuses to utilize recruitment sources which will, or may reasonably be expected to, provide it with Black and female applicants.” This assertion is followed by statistics such as the percentage of Blacks in respondent’s work force in comparison to the percentage of Blacks in the surrounding county, the number of minorities employed in managerial positions, and the percentage of females at respondent’s place of business in comparison to the percentage of females in the area. Based on these statistics obtained from the EEOC, the complaint concludes by charging that “Respondent maintains a pattern and practice of discriminating on the basis of race, sex, and national origin in its hiring, classification, and promotion policies, and its employment practices in connection therewith.” The statistics demonstrate substantial employment imbalances at respondent’s place of business. The complaint demonstrates the fact that respondent hires fewer women than men, has a disproportionate number of Caucasian employes in managerial positions, employs a smaller percentage of Blacks than the percentage residing in the surrounding county. The complaint does more than give respondent notice that a complaint has beén filed against it; it informs it of the facts giving rise to the Commission’s reason to believe that respondent is engaging in unlawful employment practices. Hence, the complaint comports with Pennsylvania Rule of Civil Procedure 1019, which this Court has suggested guides us in assaying the sufficiency of a complaint under § 9 of the PHRA. Pennsylvania Human Relations Comm’n v. United States Steel, supra, 458 Pa. at 565, 325 A.2d at 913. Appellee argues that the complaint is not “free of substantial defect” nor “legally adequate” because the Commission could have interviewed respondent’s representatives and employes in order to determine the reasons for the imbalance. We do not agree. The filing of the complaint in no way militates against voluntary compliance by St. Joe; a respondent is still at liberty to explain away racial or sex imbalances. The purpose of the complaint under § 9 is to apprise the Commission of the employment practices which may prove to be unlawful, and the Commission’s figures sufficed to warrant further investigation. Appellee also argues that because the complaint, filed in January, 1975, is based on employment statistics compiled for the year 1972, it fails to comport with § 9. Again we do not agree. Many employment relationships are not short term. The racial or sexual composition of an employer’s work force generally does not undergo a drastic change from year to year. Indeed, respondent does not allege that were more recent statistics compiled, they would reflect different ratios than those documented in the 1972 figures. We think the Commission could reasonably conclude that substantial racial imbalances existing at respondent’s plant in 1972 would still exist two or three years later. The Commonwealth Court correctly concluded that the complaint is sufficient to meet the requirements of § 9 of the Human Relations Act. II. THE COMMISSION’S POWER TO COMPEL ANSWERS TO INTERROGATORIES The Human Relations Commission’s investigatory powers are enumerated in § 7(g) of the PHRA, 43 P.S. § 957(g) (1964). That section empowers the Commission: “To hold hearings, subpoena witnesses, compel their ' attendance, administer oaths, take testimony of any person under oath or affirmation and, in connection therewith, to require the production for examination of any books and papers relating to any matter under investigation . . It is undisputed that § 7(g) does not expressly give the Commission the power to engage in discovery by written interrogatories. Section 6 of the PHRA, id. § 956, also gives the Commission all powers conferred on administrative agencies generally by the Administrative Code of 1929, 71 P.S. § 51-732 (1962 & Supp.1977-78). Although the Code gives agencies the power to subpoena witnesses as well as documentary evidence, id. § 200, it too is silent on an agency’s power to issue and compel answers to interrogatories. The Commission argues that we would distort the intent of the Legislature were we to limit the Commission’s investí gatory powers to those enumerated in § 7(g). Stressing its need for maximum flexibility, and the inadequacy inhering in its subpoena power, the Commission would have us grant it the power to compel answers to interrogatories because it “would prove of enormous help in unlocking the logjam created by respondents refusing to cooperate with Commission investigations.” Although the Commission may be correct that upholding a grant of power to compel answers to interrogatories would facilitate its investigations, our examination of the Commission’s enabling act, keeping in mind our function as a reviewing court, constrains us to reject its position. In delimiting the scope of an administrative agency’s power, we do not write on a blank slate, and the controlling principles are firmly established: “The principle guiding to decision is this: The power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist. Such tribunals are extrajudicial. They should act within the strict and exact limits defined.” Green v. Milk Control Comm’n, 340 Pa. 1, 3, 16 A.2d 9 (1940). See also Volunteer Firemen’s Relief Ass’n v. Minehart, 425 Pa. 82, 227 A.2d 632 (1967); Community College of Delaware County v. Fox, 20 Pa.Cmwlth. 335, 342 A.2d 468 (1975). Only those powers within the legislative grant, either express or necessarily implied, can be exercised by the administrative body. Commonwealth v. American Ice Co., 406 Pa. 322, 332, 178 A.2d 768, 773 (1962); Pennsylvania R.R. v. Pennsylvania Public Utility Comm’n, 396 Pa. 34, 40, 152 A.2d 422, 425 (1959). It being undisputed that the power to compel answers to interrogatories is not expressly granted by the PHRA, we must deny the Commission this power unless its mandate to “investigate” unlawful discrimination necessarily implies the power to compel answers to interrogatories. It is important to note that there are substantial differences between subpoenaing an employer’s personnel to testify before the Commission, producing the employer’s records and compelling an employer to answer extensive interrogatories inquiring into his employment practices, past records, system for promoting, hiring, and transferring employees, and recruitment practices. The former consumes only the time the Commission is willing to invest, and places the burden on the Commission to elicit information which indicates unlawful discrimination. The latter places a substantial burden on the employer in terms of both time and money, possibly requiring the hiring of additional employes to locate and compile the requested information. More fundamentally, allowing the use of interrogatories relieves the Commission of the burden of investigating possible PHRA violations: it would require the employer, not the Commission, to procure the information which might prove incriminating. In view of these differences, and the fact that the legislature empowered the Commission to subpoena witnesses and documents, we reject the view that compelling answers to interrogatories is necessarily implied in the Commission’s investigative powers. The term “investigate” is admittedly broad. Yet simply because interrogatories are one possible method of investigation does not mean that method is necessarily implied in an enabling act conferring the right to investigate. It is no answer that issuing subpoenas and documents is a more burdensome method of conducting an investigation than sending out interrogatories. Nor is it an answer that the Commission will lose needed flexibility if this power is denied. The focus of this controversy is not administrative convenience, or saving taxpayers money by expediting the Commission’s investigative function. We are concerned here with a legislative grant of power to the Human Relations Commission to combat discrimination, a grant accompanied by specific investigative tools backed by judicial enforcement if necessary. The Legislature did not include the power now sought to be confirmed in the Commission. Whether or not this omission was wise is of no moment to this Court. Our function is to interpret the statute accord ing to what the Legislature said, not according to what it should have said or might have said. We are not unmindful of the legislative mandate to broadly construe the provisions of the Human Relations Act to effectuate its purpose, that purpose being to assure equal opportunity to every individual regardless of race, age, sex, or national origin. 43 P.S. § 952(b) (Supp.1977-78). We may not, however, under the pretext of effectuating that intent, or of favoring the public interest over the private interest (see 1 Pa.C.S.A. § 1922(5) (Supp.1977-78)), ignore the letter of the statute or well settled principles concerning the scope of an agency’s power. Our decision today is strongly supported by § 7(k) of the Human Relations Act. That section provides for periodic reports from the Commission to the Legislature, the reports “describing in detail the investigations, proceedings and hearings it has conducted,” and instructing the Commission to “make recommendations for such further legislation” concerning unlawful discriminatory practices. 43 P.S. § 957(k). The Commission is claiming before this Court that with the powers given it by § 7(g), it is unduly hamstrung in investigating discrimination. We think that § 7(k) contemplated precisely this kind of situation. The Commission’s quest for powers not previously reposed in it should be directed towards the Legislature, not this Court. The Commonwealth Court acted properly in refusing to enforce the Commission’s order. Order affirmed. JONES, former C. J., did not participate in the consideration or decision of this case. ROBERTS, J., filed a dissenting opinion in which NIX, J., joined.

The opinion of the court was delivered by Tilghman, C. J. This is an action of debt on a bond for 5,000 dollars, payable the 1st April, 1815, brought by the executors of James Anderson, deceased, the obligee, against Benjamin, Abraham, and Christian Long, the obligors. The defendants pleaded payment with leave, &c.; replication, non-payment, and issue. The bond was given in consideration of some real estate in the Borough of Marietta, in Lancaster county, sold by James Anderson to Benjamin Long, one of the defendants, and the defence set up was of a threefold nature. First, fraud in the obligee. Second, actual payment by the obligors. Third, a deficiency in the quantity of land contracted for. The defendant having given evidence of several sums of money paid to Anderson, and of the deed of conveyance from Anderson to Benjamin Long, offered in evidence, the articles of agreement between the said Anderson and B. Long, for the sale of the said property, to which the counsel for the plaintiffs objected. The court admitted the evidence, and an exception was taken to their opinion. In support of the exception, it is contended, that the agreement was executed by the deed of conveyance, and therefore, no longer to be regarded. So far as the articles were executed, they were no longer of importance, but still, it might be of service to the defendants to show them to the jury. It was necessary to their defence, to prove, that the bond was given for the purchase of the property sold to Benjamin Long, by Anderson. This did not appear, either on the face of the bond, or of the conveyance, but might be proved by the articles, which specified what bonds should be given, and when they should be payable. There was another reason too why the articles were evidence; they contained a stipulation, that six months notice should be given to B. Long, before demand of payment. The defendants complain that this circumstance was concealed from two of them, Abraham and Christian, who are sureties for Benjamin, and that this-was fraud in the obligee. I will not say wh'at strength there is in a defence of that kind, but the court might think it worthy of consideration, and it might have had some weight in the decision • of the question, whether the articles should be received as evidence. I am of opinion, therefore, that there was no error in receiving them. Another exception taken by the counsel for the plaintiffs was, to the opinion of the court, in rejecting evidence offered by the plaintiffs of the character of James Anderson, for honesty and integrity-. In a criminal prosecution, the plaintiff may give evidence of his character, but in civil actions, except those in which character is put in issue, the law is otherwise. The plaintiffs counsel say, that the character of James Anderson was put in issue here, because the defendants accused him of fraud. But that is not putting his character in issue. By the same mode of reasoning, the defendant’s character is put in issue, in every action of assumpsit, because the declaration charges him with an intent to deceive and defraud the plaintiff. Indeed, in most of the controversies in Courts of Justice, it may be said, with some degree of truth, that character is in question; because an honest man would not act with injustice. But putting character in issue is a technical expression, and confined to certain actions, from the notice of which, the character of the parties, or some of them, is of particular importance. Such is the action brought by one man against another, for seducing his wife, and having criminal connection with her. There the injury done to the plaintiff, consists mainly in the good conduct of his wife, before her seduction; and therefore, the defendant is permitted to show that she was unchaste. So in an action of slander, the plaintiff in his declaration, asserts his own good character, and avers the intent of the defendant to rob him of it. He puts his character in issue, therefore, and the defendant is at liberty to impeach it. But it never has been supposed, that character is put in issue merely by the charge of fraud, made by one party against the other. I am of opinion, therefore, that this evidence was properly rejected. There was a third exception taken by the counsel for the plaintiffs, to the opinion of the court below. The defendant had given evidence of payment, not so positive but that it might admit of question, and it was of payment by money borrowed from the Bank of York, on a note, of which Benjamin Long was drawer, and James Anderson indorser. This money was borrowed of the bank nearly a twelvemonth before the bond was due, and the plaintiffs supposed,' that it was applied to some other purpose, which, in consequence of the death of Anderson, it was difficult to explain, and in order to show the improbability of Anderson’s receiving payment of this bond in so extraordinary a manner, they offered evidence, that in the autumn of the year 1813, and spring of 1814, he had received from another person, sums of money amounting to 50 or 60,000 dollars. This evidence was rejected by the court. Under the circumstances of the ease, I think it should have been admitted. In a doubtful case it might have had some weight. It certainly was somewhat singular, that Anderson, supposing him to be in the receipt of large sums, should have had recourse to an anticipated payment of the defendant’s bond, by pledging his own responsibility to the Bank of York, for the money received in payment. It is also to be taken into consideration, that by the death of Anderson, the plaintiffs may be unable to give as full explanations of a transaction, which he could easily have elucidated. The evidence which they offered, might not, per se, have been sufficient. lo counteract the force of the defendants evidence. But I am of opinion, that it was pertinent, and ought not to have been rejected. There is one more point in this cause, on which it is proper to express an opinion. The jury found a verdict for the defendants for 6,000 dollars, to be deducted from the other bonds given by the defendant to James Anderson, which were not due when this action was commenced ; and judgment was entered on the verdict. The defendant’s counsel contend, that whether this be an error or not, the plaintiffs cannot now take advantage of it, because they did not assign it for error. In strictness, they certainly cannot, because the rule of court has not been complied with. Nevertheless, the court always reserves to itself the right to correct an error which stares them in the face, when they think the justice of the case requires it. At present it is immaterial whether this error is noticed by the court or not, because the judgment is to be reversed for an error in one of the exceptions on which an opinion has been, already given. But it is for the benefit of the defendant to be informed of the court’s opinion, that the verdict was not warranted by law, and the judgment could not stand. It has been heretofore decided, that where issue is joined on the plea of payment with leave, &c. the jury cannot find any sum due from the plaintiff to the defendant. To authorise such a finding, some other notice must be given. Neither can the jury find such a verdict as has been given in this case, under any issue on any notice. At common law, a verdict cannot find a sum of money to be recovered by the defendant of the plaintiff. But by the “act for defalcation,” passed in the year 1705, 1 Sm. L. 49, “if it appear to the jury that the plaintiff is overpaid, they shall give their verdict for the defendant, and \vithal, certify to the court, how much they find the plaintiff to be indebted, or in arrear to the defendant, more than will answer the debt or sum demanded, and the sum so certified shall be recorded with the verdict, and deemed a debt of record; and if the plaintiff refuse to pay the same, the defendant for recovery thereof, shall have a scire facias against the plaintiff, and have execution for tfie same, with the costs of that action.” Now, the jury have not complied with the directions of this act. No scire facias can issue on this finding. They have ordered the sum found by them, to be deducted from another debt due from the defendants to James Anderson. Why they did so, we know not. If they thought, from the evidence, that it was the agreement of the parties, that this money should be so applied, they should have found for the defendant in this action, and no more. The other bonds should have been left to themselves; and if hereafter the plaintiffs should bring suit on them, the defendants will have an opportunity, under this plea of payment, to give evidence of their being paid, in whole, or in part. But when this cause comes to trial again, in the court below, the defendants may give such notice as will jus-* tify a verdict for any sum which the jury may think due from the plaintiffs to the defendants; and in such case, the counsel will, no doubt, see, that the verdict- is entered according to the act of assembly. Upon the whole, I am of opinion, that the judgment should be reversed, and a venire de novo awarded. Judgment reversed, and a venire facias de novo awarded.

The opinion of the court was delivered, May 5th 1870, by Sharswood, J. When it is said, as it has often been said, that the Orphans’ Court is a court of equity, all that is meant is that in the exercise of its limited jurisdiction conferred entirely by statute, it applies the rules and principles of equity. So Chief Justice Tilghman, with his well-known accuracy, clearly and succinctly expresses it: “ The Orphans’ Court, in matters within their jurisdiction, proceed on the same principles as a court of chancery:” Guier v. Kelly, 2 Binn. 299. “ Although the Orphanb’ Court,” said Chief Justice Gibson, in Brinker v. Brinker, 7 Barr 55, “ has been called a court of equity, in respect to the few subjects within its jurisdiction, the ancillary powers of such a court have not been given to it. It is a special tribunal for specific cases; and its resemblance to a court of equity consists in its practice of proceeding by petition and answer containing the substance, but not the technical subtleties and nice distinctions of a bill in equity; by which, however, justice is obtained more conveniently and as certainly as in courts of equity, purely so called. As the Orphans’ Court, therefore, has not the general powers of a court of equity, it cannot entertain a bill of discovery:” George’s Appeal, 2 Jones 260; Shollenberger’s Appeal, 9 Harris 341; Snyder’s Appeal, 12 Casey 168; Woodward’s Appeal, 2 Wright 328. The petition in the Orphans’ Court in this case was in the form of a bill in equity, conceived as though that court, like the Courts of Common Pleas, had a separate equity side. After setting forth the will of William Waldo Willard, and stating or charging a particular construction of it in six numbered paragraphs — it prefers nine special prayers for relief, besides the prayer for general relief in the usual style. 1. That the administrator cum testamento annexo shall be decreed to pay a legacy not charged upon land: Galloney’s Appeal, 6 Barr 37. 2. That the administrator file his account. 3. That he pay into court one-half of all the moneys of the estate in his hands (less $7000, the valuation money of a house and lot mentioned in the will), to he invested by the court or a trustee appointed by it. 4. That he pay the other half to the orator in the bill. 5. That the guardian of the two minor children file his account. 6. That the widow file an account of all the assets of the estate in her hands at the death of the testator or since received by her from the administrator. 7. That the trustee named in the will to hold the legacy bequeathed to the testator’s mother for life, shall within thirty days after her death pay over the principal of the said legacy to the children in certain proportions, both of them now being minors. 8. That the court shall decree that the title to all lands and tenements, wheresoever situated, of which the testator died seised (except the house and lot aforesaid), is vested in one of the children, subject to the life estate of the widow. 9. That the court shall decree that the title to the house and lot before mentioned is vested in the minor children in certain proportions, subject to said life estate. The only matters in this long list of prayers, which appear clearly to be within the jurisdiction of the Orphans’ Court, are, that the administrator and guardian respectively shall render their accounts. The court below, however, upon this bill and answers filed, decree nothing to be done, except that the guardian of Waldo William Willard, a minor, should file in the Orphans’ Court of Lycoming county before distribution of the estate a full release of all claims under the will of his father; the court holding that the will as to him was revoked by his subsequent birth. The other parts of the decree consist merely of a declaration of the opinion of the court upon the proper construction of the will. It would, perhaps, be a very convenient practice immediately upon the death of a decedent to have all possible questions which might arise upon the construction of his will, and in the settlement and distribution of his estate, settled by a decree of the Orphans’ Court in limine, and by way of anticipation, and by an appeal to the Supreme Court from such a decree, have a final and conclusive determination of the subject. It would certainly save counsel a great deal of responsibility in giving advice. But the Acts of Assembly which confer jurisdiction on the Orphans’ Court may be searched in vain for any such power. Without authority so derived we must say that the decree below or in this court on appeal would be inconclusive and possibly a snare. It would not be binding upon any of the parties; certainly not upon those of them not sui juris. Consent cannot give jurisdiction. Any opinion which we should express upon the proper construction of this will in this appeal would be merely extrajudicial. Decree reversed, and petition ordered to be dismissed, each party to pay their own costs in the court below and on this appeal.

Mr. Justice Green delivered the opinion of the court, February 25th, 1884. In this ease a bill in equity was filed by certain creditors of the Philadelphia and Susquehanna Blue Stone Company, suing as well for themselves as for all other creditors who might become parties thereto, against the company and the holders of its. capital stock, for the purpose of compelling the payment of the unpaid capital stock by the stockholders in order that the same might be applied to the payment of the debts due the plaintiffs. '-'^The bill alleged, and the master found, that the defendant company was incorporated under the general corporation law of April 29th, 1874, that the capital stock was fixed at |24,000, divided into 240 shares at $100 each, that a part only of the stock had been paid in, that the defendants were stockholders at the time of the assignment made by the company for the benefit of its creditors, and were indebted to the company in certain sums, which are set forth in detail, for their unpaid subscriptions to the capital stock, that the eompam’' was wholly insolvent, and all its available assets, except the balances due upon its capital stock, exhausted; that neither the company nor its assignee had made any call or assessment upon the stockholders to pay in the unpaid portion of the capital stock, but, on the contrary, had refused to do so, and that payment of such unpaid balances of the capital stock, or of some part thereof, was- necessary for the payment of the debts due the plaintiffs. i/The bill prayed for an account of the amounts remaining unpaid upon the capital stock, and for a decree that the stockholders pay whatever amounts were due by any of them upon previous assessments, and also that an assessment be levied for so much of the balances due, and not previously called for, as might be necessary to pay the ascertained debts of the corporation, and prayed also for the appointment of a receiver to whom the monies collected should be paid, and for general relief. >'3 “Most of the matters alleg’ed in the bill were admitted in the various answers filed, and such as were material and not admitted were found by the master. vThe debts due the plaintiffs were ascertained to be upwards of $8,000, of which the sum of $7,086.93 was due to John Maxwell, who had obtained judgment for the same. The amounts of unpaid capital stock were in the neighborhood of $10,000, the whole of which was decreed to be paid to a receiver. The chief contention before the master, as in this Court, was upon the liability of the stockholders in this proceeding. It was contended, on behalf of the defendants, that they could not be called upon by bill in equity, as proposed in this case, for two reasons:«“First. Because the complainants have a complete and adequate remedy at law specifically provided by the Act of 29th April, 1874, under which the company was incorporated; and, Second. That the plaintiff, John Maxwell, the principal creditor, had a complete and adequate remedy by attachment in execution upon his judgment. We will consider these defences separately and in their order. The remedy at law which it is said could be resorted to by the plaintiffs is that which is provided by the fourteenth and fifteenth sections of the Act of 1874. The fourteenth section is, so far as it relates to the present controversy, in the following words, viz.: “ The stockholders in each of said corporations shall be liable in their individual capacity to the amount of stock held by each of them, for all work or labor done, or materials furnished, to carry on the operations of each of said corporations.” The fifteenth section provides the method of proceeding to enforce the liabilities created by the fourteenth. It will be perceived at once that the liability established by the fourteenth section is of a special and extremely limited character. The stockholder is made directly liable for work and labor done, and for materials furnished to carry on the operations of the corporations. But two kinds of indebtedness only are imposed upon the stockholders, indebtedness for labor and indebtedness for materials furished. No other form or species of debt of the corporation can be collected from the stockholder under this section. Moreover, the liability created by this section is a direct liability from the stockholder to the creditor, and it exists to the amount of the stock held by the stockholder, without any reference to the question whether it has been paid for or not. Hence the stockholder, although he has paid in full to the corporation for bis stock, is nevertheless still liable to the extent of the whole value of his stock to the two classes of creditors named. This liability is, of course, of a purely statutory character, having no existence outside of the legislation, and whenever it is invoked it must be enforced in the very manner prescribed by the other portions of the Act. If that kind of remedy is not literally pursued when that particular liability is proposed to be enforced, there can be no recoveiy. Such were the decisions of this court in many cases, notably in Patterson v. Lane 11 Cas., 275; Hoard v. Wilcox, 11 Wr., 51; Brinham v. The Wellersburg Coal Co., Id., 43; Youghiogheny Shaft Co v. Evans 22 P. F. S., 331; Means’ Appeal, 4 Norr., 75. These were decisions under other Acts, principally the manufacturing law of 1849, but the controlling idea of the whole of them Avas that the liability and the remedy Avere special and statutory and therefore the provisions of the statute must be strictly pursued. Nothing more than this Avas decided in any of them. Thus in Patterson v. Lane, which was under the act of 1849, the 9th section of the Act provided that the stockholders should be individually liable for all the debts and contracts of the corporation, to the amount remaining unpaid on their shares respectively, until the whole amount of the capital stock Avas paid in and a certificate by the officers to that effect was made and recorded. It Avas alleged that a false certificate had been made as to the amount of stock paid in, and that the Avholé had not been paid, and a bill in equity Avas filed against certain stockholders to enforce their individual liability. But we held that such a bill would not lie because by the 23d section a special mode of proceeding for that purpose Avas provided and it must be strictly pursued. This was the whole of that decision. Precisely the same doctrine Avas held and applied in Hoard v. Wilcox, though the source of individual liability was different, and the defect in the proceeding was different, to-wit the corporation was not joined as required by the statute. Thompson J. said on p. 58: “ It is very evident that the remedy of the statute was not followed in these proceedings, and it is also quite apparent on the face of the lease, that it is under the statute that they seek to make the defendants answerable.” He said also “ The remedy for the collection of demands against such institutions is therefore statutory and special and must be followed. This we have lately held in Brinham et al v. The Wellersburg Coal Co. et al., ante p. 43, in obedience to the rule of the Act of 1806 requiring the remedy prescribed by a statute to be pursued.” The other cases referred to above were mere repetitions of the same doctrine applied to the facts involved in them. • In no one of these or any other cases cited in the paper book of the appellants, did any question arise as to the right of a creditor to enforce the equitable obligation of every stockholder in a moneyed corporation to pay the whole amount, if necessary, of his unpaid capital stock, in discharge of all the indebtedness of the corporation. That is a species’ of obligation which is founded in no statute, but exists by force of the consideration that the capital stock of a corporation is a trust fund for the payment of its debts, and upon the happening of the insolvency of the corporation, and the exhaustion of its assets, its unpaid capital stock may be appropriated for the benefit, not of any one creditor, but of the whole body of creditors. In none of the manufacturing laws of this Commonwealth is there , any substitution of any form of equivalent liability for this. On the contrary the special, limited and restrained forms of liability established by these Acts, are in the nature of penal obligations for derelictions of duty, or additional personal monetary duties imposed upon stockholders in favor of laborers, mechanics and material men, out of consideration for the meritorious character of the claims. They are an added means of satisfaction to these two classes of creditors under the Act of 1874, but substitutionary for nothing. They may be resorted to or they may not. If they are it must be in the precise methods, and within the special limits imposed by the legislation which authorizes them. But if they are not, upon what principle of law or morals shall it be said that these two meritorious classes of creditors shall be literally ousted of other rights and remedies available to all creditors, simply because of the relation of creditor to the common debtor. It is true that in the bill in this case the complainants, other than Maxwell, allege that the debts due them are for work and labor done, and materials furnished; and as to Maxwell, proof was offered, and refused, to show that the consideration of his judgment was for materials furnished. But of what consequence is this ? The learned counsel for the appellants argue with much ingenuity and earnestness, that because a statutory and peculiar remedy is given to creditors of this character, that one remedy alone must be pursued, and if it is not, all their other remedies against the same parties are taken from them. In other words, laborers and material men can make the stockholders pay them, because they are stockholders, and by the statute are bound to pay such claims in addition to paying for the whole of their stock, and because they have this right it is their sole, only right of redress against such persons. It is conceded that all other creditors can require the stockholders to pay in their unpaid capital stock in satis faction of their claims, but it is contended that laborers and material men cannot do so, because they have a right peculiar to themselves to resort to an additional remedy which enables them to call upon the stockholders, although they may have paid up the whole price of their stock. The answer to this is very simple. The laborers and material men are creditors of the corporation in as large and broad a sense as all other creditors, and of course in that capacity they have all the remedies which are common to the whole mass. In addition to that they have a special remedy which the others do not possess. This might be availed of if the other failed, but, in no possible view of the case can we hold that its existence deprives them of other remedies common to all creditors alike. The doctrine that the capital stock of a moneyed corporation is a trust fund available to creditors in the event of insolvency is admitted by the appellants, and-is established by very numerous decisions. A few of them are the following: Sawyer v. Hoag, 17 Wall., 610 ; Sanger v. Upton, 1 Otto, 56 ; Hatch v. Dana, 11 Id., 205 ; Wood v. Dummer, 3 Mas., 308; Webster v. Upton, 1 Otto, 65 ; Wilbur v. The Stockholders, 35 Leg. Int., 346; Story’s Equity, § 1252; Vose v. Grant, 15 Mass., 505 ; Spear v. Grant, 16 Mass., 9; Stang’s Appeal, 10 W. N. C., 409; Messersmith v. Bank, 15 Norr., 440. In Upton v. Tribilcock, 1 Otto, on p. 47, the doctrine is thus fully and forciblj1- expressed: “ The capital stock of a moneyed corporation is a fund for the payment of 'its debts. It is a trust fund of which the directors are the trustees. It is a trust to be managed for the benefit of its shareholders during its life, and for the benefit of its creditors in the event of its dissolution. This duty is a sacred one and cannot be disregarded.” In Sanger v. Upton, 1 Otto, 60, it is said: “ The capital stock of an incorporated company is a fund set apart for the payment of its debts......The creditors have a lien on it in equity. It is publicly pledged to those who deal with the corporation for their security. Unpaid stock is as much a part of this pledge, and as much a part of the assets of the company as the cash which has been paid in upon it.” U is also entirely clear that the creditors of an insolvent/ corporation may compel, by bill in equity, the payment of the unpaid capital stock in discharge of their debts. Thus in Myers, Assignee, v. Seeley, 10 Nat. Bankruptcy Reg. Rep., 412, it was said: “ Bills by creditors who have judgments against the corporation have been sustained against the c'orporation and its stockholders, said bills being framed in the name of the judgment creditors, and of all others who may choose to come in and be made parties thereto. In such cases the decree has been for an account to be taken of the debts and assets of the corporation, for the appointment of a receiver to whom the stockholders and officers are ordered to pay and account respectively for so much of the assets and capital stock as are necessary to pay the debts due to the creditors; the assets thus collected and received to be applied by the receiver in discharge of the debts.” There are other numerous authorities to the same effect, but it is unnecessary to repeat them, as the right to such a remedy is not at all disputed by the appellants, if any right of recovery exists. A special defence was made as to W. M. Bunn, one of the appellants, that he was an assignee of stock in the corporation defendant, and not an original subscriber. It was admitted however that by the seventh section of the Act of 1874 an assignee of stock is 'subject to the same liabilities as an original subscriber. But it is argued that as the fifteenth section provides a special remedy for any liability under the provisions of the Act, the liability of an assignee can only be enforced by pursuing that remedy. The argument is not sound however, because the seventh section simply places assignees in the same position as original subscribers. It does not create any special liability. When it subjects assignees to all the liabilities of subscribers, and gives them all their privileges and immunities, it simply confers a status. To determine what are the liabilities of assignees since this Act, we have simply to inquire what are the liabilities of subscribers. When wo determine the latter we thereby determine the former. We have already shown that among the liabilities of the subscribers is the obligation to pay the unpaid portion of the capital stock. This liability exists outside of the Act of 1874 and of all legislation, and of course attaches to assignees because their position is the same as that of subscribers. The fifteenth section relates only to the special personal liabilities to pay particular debts created by the other sections of the Act. Mr. Bunn is therefore liable specially for debts due to laborers and material men, under the Act, and he is liable as a subscriber for the unpaid capital stock. I''The second defence alleged relates to the plaintiff, John Maxwell, who was the holder of about seven-eighths of all the indebtedness of the corporation. Mr. Maxwell had obtained a judgment for his debt, and it was argued he had a complete and adequate remedy at law by process of attachment in execution.v *5 This writ is simply a species of execution, the purpose of which is to obtain satisfaction of the judgment upon which it is founded. It is not an original proceeding instituted to enforce a real or supposed legal or equitable liability by the procurement of a judicial decree as its result. In other words it is not a remedial process, and can scarcely be spoken of as a remedy in the sense in which that term is used in considering the subject of an adequate legal remedy which excludes a bill in equity. But leaving that thought aside we can not concede the correctness of the appellant’s contention in .this regard. In considering this subject it is necessary to observe some distinctions which must be borne in mind. There is no doubt that a contract of subscription to the stock of a moneyed corporation imposes upon the subscriber an obligation to pay to the corporation the amount of the subscription, according to the terms of the contract. If he fails to pay, the corporation may sue him at law upon his contract and recover whatever may be due. But recovery in this mode must be in accordance with the terms of the contract. If by those terms payment was to be made in any particular manner, or only of á certain portion of the par value, with an agreement that no more was to be paid, such contract is valid and binding upon the corporation. But if the corporation becomes insolvent and all its other assets are exhausted, and it is requisite for the payment of its debts that its unpaid capital should be paid up, then the law changes, and it is perfectly well settled by many decided cases, that all stipulations, conditions and devices agreed upon between the stockholders and the corporation, releasing the former from their obligation to pay in cash the full par value of their stock, become nugatory and void. Notwithstanding such terms of subscription the stockholders, in such circumstances, can be compelled to pay in full 'for their stock. This doctrine results from the character of the capital stock of corporations. It is a trust fund. It exists for the benefit of the creditors whenever their rights and interests require it. Its payment can be enforced in modes which are not available to the corporation and without using its name. Thus, creditors’ bills in the names of individual creditors, whether by judgment or otherwise, proceedings by assignees in bankruptcy either directly by bill or by petition to the court in bankruptcy, and proceedings by insolvent assignees or receivers under direction of the proper courts, are the ordinary modes in which the rights of the creditors are enforced in the circumstances we are now considering. In all of them however, it is absolutely essential that in some mode there should be an ascertainment in some form of the fact of insolvency, of the exhaustion of all other assets, of the amount of the debts due by the corporation, of the amount of capital stock required for the discharge of the debts, and a call or assessment upon the stockholders for the payment of the amount necessary to be paid by each. If the contract of subscription is absolute and without conditions or terms relieving the stockholders from the payment of the full par value of the stock, the call or assessment may be made by the directors of the corporation, and if the corporation is sui juris and has not passed into the hands of assignees or receivers, the proceeding to recover the money may be prosecuted by the corporation in its own name. If, however, the corporation refuses to act, or is disabled, either by the terms of its contract or by its legal incapacity by reason of insolvency or bankruptcy, the assessment must bo made by some court having jurisdiction of the matter and the parties, in some suitable proceeding by way of bill or petition. Upon such proceeding and the establishment of the requisite facts above stated, the court will either order an assessment to be made upon each stockholder of the amount to be paid by him, and upon such assessment an action can be founded and tried in the common law courts, or a decree can bejmade directly against each stockholder who has been made a party and served with process, for the payment of the money due by him, and such decree can be enforced by immediate execution process, c- • *' These principles are announced and illustrated in many eases. Wood v. Dummer, 3 Mason, 308, 314; Sagory v. Dubois, 3 Sandf. Ch. Rep., 467; Ward v. Griswoldville Manuf. Co., 16 Conn., 593; Ogilvie v. Knox Ins. Co., 22 How., 380; Mann v. Pentz, 3 Comst., 415, 423; Adler v. The Milwaukee Patent Brick Manufacturing Co., 13 Wise., 63; Myers v. Seeley, 10 Nat. Bank. Reg. Rep., 411; Upton v. Tribilcock, 1 Otto, 45, 47; Sanger v. Upton, Id., 56, 60; Webster v. Upton, Id., 65; Wilbur v. Stockholders, 39 Leg. Int., 346; Scovill v. Thayer, 15 Otto, 143; Patterson v. Lynde, 16 Id., 519; Sawyer v. Hoag, 17 Wall., 610. I' The question whether an attachment in execution will lie at the suit of a single creditor to secure payment of his own debt to the exclusion of all other creditors is one whose solution depends upon the application of some of the principles above stated. If the corporation is solvent, and the subscription is in the ordinary form of an absolute engagement to pay the price of the stock, there is no doubt that an attachment in execution is an effective remedy for a judgment creditor of the corporation. The reason is that in such circumstances the amount due by the subscriber to the stock is an ordinary debt due directly by the stockholder to the corporation, the payment of which may be enforced in an action on the contract of subscription. Being a debt due, there is a right of action for its recovery by the company, and therefore it is strictly and properly subject to seizure by attachment. Hence it was held in Peterson v. Sinclair, 2 Norr., 250, that a balance due on a subscription to stock of a corporation is attachable as other debts are. No question of the solvency or insolvency of the corporation was raised or considered in that case. In Hays v. Lycoming Fire Ins. Co., 2 Out., 184, an attachment was sustained against money due upon an assessment on the premium notes of the company for the purpose of paying losses, but it was expressly said by our brothel' GrOBDOir in the opinion that it was admitted the company was solvent, and the case was not complicated by the question of insolvency. It was held that as the company was solvent and the premium notes were assessable for the payment of the very debt in suit, and the assessment was lawfully made and the money partially paid into the hands of one of the garnishees, it was to be treated as any ordinary debt and subject to attachment as \other debts. In another case between the same parties, reported in 3 Out., 621, the facts were that a member had \sustained a loss by fire, for which he had brought an actibn and obtained judgment before the insolvency of the', company. An attachment in execution was issued, also qefore insolvency, and served upon a member who had given a premium note for his'insurance. He became indebted upon hid note, before insolvency, for the proportionate part necessary to pay the plaintiff’s loss, and nothing remained to be doiie except to ascertain the amount of that proportion. Upon) these distinct grounds the attachment was sustained. Mr. Justice Tbunkey in delivering the opinion said, on p. 625: “ The garnishee gave his notes to the defendant, to be paid in'.such portions and at such times as the directors may, agreeabty to the Act of incorporation, require. The losses by fire occurred, and this judgment for one of said losses was obtained prior to the proceedings for dissolution of the company. Before its dissolution the garnishee became indebted on his premium notes for the proportionate sum necessary for payment of said losses, and nothing remained to be done except to ascertain the proper amount of his indebtedness prior to his liability to an action to enforce payment. The writ of attachment was issued and served before the dissolution of the company, and the debt owing to the defendant by the garnishee became bound by it. After the receiver was appointed by order of the Court, he ascertained the measure or amount of the debt which had been levied upon by the attachment of the plaintiff.” The foregoing are the only cases of attachment in execution in the Pennsylvania Courts to which we are referred, and with the exception of the case In re Glen Iron Works, bankrupt, 13 W. N. C., 387, to be hereafter considered, are all we have found in the books of reports relating to this subject. But there are many eases which, as it seems to us, settle the principles which ought to control the decision of the question. In order to sustain an attachment in execution there must he a debt due from the garnishee to the defendant in the judgment, which may be payable at the time of the service of the writ, or may become payable subsequently. This debt must be at least a cause of action. If it be not, so that it cannot be enforced by the defendant against the garnishee, it certainly cannot be converted into a cause of action by the mere consideration that an attachment has issued instead of a summons in a common law action. If there is an inherent defect in the cause of action itself which prevents any recovery by the defendant or his representative because of the nature of the defect, it is not possible that such defect can be regarded removed simply because another proceeding is adopted. Now it is manifest, upon the plainest principles, that in the case of an insolvent corporation, all of whose assets are exhausted except its unpaid capital stock, there can be no recovery against a delinquent stockholder until a call or assessment has been made upon him fixing the amount he is required to pay. Prior to insolvency this might be done by the corporation if it is not disabled by the special terms of the subscription contract. But when iiisolveiic}^ and exhaustion of assets exist, the unpaid capital is not available to any one creditor in satisfaction of his debt, because then the whole amount of the unpaid capital is a trust fund which does not belong to the corporation, but to the whole body of its creditors. Hence, whether the proceeding originates in the name of one, or of several, or of all the creditors, the result is the same in each. The capital, when recovered, enures to the benefit of all, and must be distributed among all ratably. Before any recovery can be had in such proceedings, no matter of what particular form, there must be an assessment made by a competent authority. The necessity for an assessment arises from the consideration that only so much of the unpaid capital can be called in as is required for the payment of the unsatisfied debts. If tbe whole unpaid capital is not required the whole cannot be called. In order to ascertain how much is required there must be an account of debts, assets, and unpaid capital taken, and then a decree dor an assessment of the amount due by each stoekholder.^Thus in Mann v. Pentz, 3 Comst., on p. 423, the Court said: “ This liability (for unpaid capital) is only incurred when tbe capital paid in is not sufficient to satisfy the debts against the corporation, and then only to an amount sufficient to satisfy such debts. It is therefore necessary that an account of the assets and of the debts should be taken, of the amount of capital remaining unpaid upon the shares, and the amount unpaid by each stockholder, in order that they may be made equally liable.” In Myers v. Seeley, 10 Nat. Bank. Reg. Rep., 411, the court after stating the rule, says: “The reason of that rule is, that the unpaid subscriptions are assets applicable to the payment of corporate debts which the corporate authorities may call in for corporate purposes. If there are adequate assets other than said calls, then the creditor has no legal or equitable right to insist upon such calls. Primarily the amount due on subscriptions is a debt due to the corporation which it alone can enforce, and unless the corporation is without other assets to meet its obligations, and fails to make the needed calls, creditors cannot interpose. When the facts justify their interposition, an account of assets aud debts should be taken, in order that it may be known what, if anj', calls should be made. No further call should be made than what is sufficient, together with the other assets, to meet all debts ; for the bill by creditors cannot reach beyond the satisfaction of their demands. They have no other equity.” In Wilbur v. The Stockholders, 39 Leg. Int., 346, Cadwalader, J. said: “ Where the corporation is solvent, the unpaid capital is not due and payable by the stockholders until payment in part or in whole is called for by the corporate authorities, unless a postponement of the payment would be inconsistent with some provision of the Act of incorporation, or with a conventional engagement with the stockholders. Ordinarily there is no such inconsistency of either kind, and- thus in the case of a solvent corporation, a call or levy by the corporate authorities assessing the amount or amounts payable must ordinarily precede any ascertained obligation of the respective stockholders to pay. But in the contrary case of an insolvent corporation the recourse of its creditors does not depend upon such condition precedent, and cannot be thus postponed. Every stockholder is, with relation to creditors, under an obligation to pay so much of the amount represented by his share or shares, of the capital as may be required for the payment of the corporate debt. ’• * ' Upon the insolvency of the corporation the obligations of the stockholders thus at once become assets for the payment of its debts to such an extent as other assets are deficient. To this extent the obligation of every stockholder, in its just proportion, then becomes in equity a debt payable for the benefit of the creditors. No act of the corporation before or after its insolvency can derogate in this respect from the rights of creditors.” In Webster v. Upton, 1 Otto, 71, Strong, J. says: “ All the cases agree that creditors of a corporation may compel payment of the stock subscribed, so far as it is necessary for the satisfaction of the debts due by the company. This results from the fact that the whole subscribed capital is a trust fund for the payment of creditors when the company becomes insolvent.” l^The foregoing principles which are expressed in*many cases indicate the fundamental conditions which underlie the whole subject of the liability of the stockholders as to their unpaid capital stock. Such stock in cases of insolvency is due as an entirety: it is due to the aggregate of the creditors; only so much is due as is requisite to discharge the indebtedness of the corporation after all other assets have been thereto applied; as a necessary consequent there must be an account of debts, assets and unpaid capital taken; when such account has been taken, and the amount required from each stockholder has been ascertained, an assessment ordering the payment of such, proportionate amount by each may be made by a court of competent jurisdiction in a proceeding in which the corporation and the stockholders should be made defendants. I consider it as the clear result of the decisions that, except in eases where the corporate authorities have themselves made calls which are authorized by the subscription contracts, there is absolutely no liability of any kind whatever on the part of the stockholder to pay any part of his unpaid capital, except under and by force of an assessment made as above stated. If this be true there is nothing upon which an attachment can fasten at any time prior to the assessment.»'! apprehend this conclusion is sustained by specific authority which I now proceed to indicate. The case of Chandler, Receiver, v. Siddie, a stockholder, 10 Nat. Bank. Reg. Rep., 236, was an action at law by a receiver of an insolvent insurance company against a single stockholder, to collect eighty per cent., unpaid, of the defendant’s subscription to the capital stock of the company. The subscription contract provided for the payment in instalments, of twenty per cent, of the stock, and that the balance should be subject to the call of the directors as they may be instructed by majority of the stockholders represented at any regular meeting. There was no call by the directors, and the Receiver brought an action at law on the contract to recover the eighty per cent, against one stockholder defendant. The Circuit Court of the United States for the Southern District of Illinois, Milllií, J., in disposing of the case, said on p. 238: “ In this action at law, in which neither the corporation nor its stockholders other than the defendant are before the court, and in which the suit is on the contract of subscription for the entire eighty per cent, alleged to be due, I am of opinion, considering the terms of that contract, and that no call or assessment is alleged, either by the company before the insolvency, or by the court since,'that the petition does not state a cause of action.' In other words, in this action at law on the contract there must be a call or assessment, or something standing in the place thereof and equivalent thereto; either by the company, or by a proper court in order to make the defendant liable.” ' ■■/’ If there-was not a'cause of action, nothing to make the defendant liable without an assessment, surely there could be nothing to serve as the foundation of an attachment. Eor the writ of attachment cannot create a liability. It can at best appropriate a liability already existing. But if it already existed it could be enforced in the proceeding on the contract. The attachment'is also on the contract alone where there has been no assessment, and must fall with the action at law built ■upon the same foundation. » 1 4 The case of Adler et al. v. The Milwaukee Patent Brick Manufacturing Co. et al., 13 Wis., 63, was a proceeding by one creditor suing for himself and all other creditors, &c., against the corporation and a number of stockholders to compel the payment of unpaid capital stock in discharge of debts. The general principles we have heretofore stated were announced, and ón p. -70, Dixon, C. J., speaking of the question whether one creditor might acquire a preference over others, said: “ Whether in those cases where the stockholders are not individually liable by law for the debts' of the corporation,. one . creditor lean, by superior diligence, acquire a preference over the other creditors beyond that which- might result from.hi's: judgment becoming a lien on specific property, or his having' otherwise obtained a higher security at law, does not distinctly appear.- ;But the conclusion from the cases and the general doctrinés of courts > of equity is, I think, that he cannot, and. that when .he'is obliged to seek the aid of those 'courts for the] enforcement of -his demand, he must do so for the benefit.of all oth'er:ereditors who .may desire to unite with him, and that all must share alike in proportion to,the amount of their respective claims, in .the funds, which may be realized by the proceeding-.-.. The' maxim' of the law in like cases is, that equálity-.is.equity, and certainly no case more appropriate for its application, could be imagined. I conclude, therefore, and the: authorities clearly tend to show, that such is the prá-ctice. ..¡..i'-- ..... In the case, of Wilbur, assignee, v. Wilson et al., in the Circuit-Court of the United States for the Eastern District of Pennsylvania, 21 Oct. Sess., 1875, not reported, common, law actions were brought against the stockholders by the assignee in bankruptcy, upon promissory notes given by each - stockholder for the payment at a definite time of the full amount of each subscription. There was a condition annexed that only fifty per cent, of the amount of each note was subject to assessment, and that the remainder should be paid only in dividends of profits earned. Affidavits of claim were filed by the plaintiff setting out the notes and conditions in full, but alleging that the conditions were void because the corporation had become insolvent and bankrupt; that its assets were all exhausted; that eighty per cent, of the capital had never been paid, and that the whole of it was required for the payment of the debts. Defence was taken by affidavits which admitted the foregoing facts, but alleged that no assessment had ever been made upon the notes exeept one of thirty per cent, which was shortly after rescinded, and therefore there was no liability to pay any part of the eighty per cent. The justices of the Circuit Court, McKeaaaa and Cadw aladee, adopted this view and refused judgment for the plaintiff upon the exclusive ground that, no assessment having been made, there was no liability of the stockholders to pay any sum whatever, and hence there was no cause of action. The writer was of counsel for the assignee in that case, and has personal knowledge that the decision was made upon the one ground stated, and no other. No written opinion was filed. A petition for an assessment was then presented in the District Court, and the assessment was subsequently made. Although the plaintiff in the actions at law was the assignee who represented all the creditors, and who sought recovery for all, and all the stockholders were sued, and although the condition annexed to the notes was void against creditors, as was subsequently held, still it was decided that the absence of an assessment was fatal to the cause of action. We are very clear that if there was no liability at all sufficient to support an action, there was none upon which to found an attachment. The ease of Scovill v. Thayer, 15 Otto, 143, puts the whole subject at rest. There a corporation was adjudicated a bankrupt. The assignees presented a petition for an assessment upon the unpaid capital stock for payment of debts. The subscribers to the stock had made an agreement with the company that no more than twenty per cent, of the par of the stock should be paid. The petition of the assignees asked for an assessment of seventy-six per cent, for payment of debts. The defendant, Thayer, having failed to pay his assessment, the assignees brought an action at law against him upon the assessment, and to the declaration filed the defendant filed two pleas, the first of which was a general denial of the allegations in the narr., and the second set up the limitation of two years prescribed by section 2 of the Act of March 2,1867, c. 176, the general bankrupt law of the United States. The court below sustained the plea of the statute of limitations, and gave judgment for the defendant. The assignees took a writ of error from the Supreme Court, and the whole case was there considered and the judgment-of the lower court reversed. The question was, when did the cause of action arise ? If it arose upon the subscription contract, the bar of the statute applied, but if it did not arise unti-l the assessment was made, then it did, not apply, and the assignees were entitled to recover. On p. 153 the court say: “ The precise question with which we have to deal is, When would this action at law, brought by the assignees of the bankrupt company against a stockholder, to recover a part of the balance due on his stock, be barred by the statute ? This will depend on the answer to the question, When did the cause of action accrue to the assignees? In other words, when could they have commenced this action against this defendant to recover the amount due on his stock?.....The stock held by the defendant was evidenced by certificates of full-paid shares. It is-conceded to have been the contract between him and the company that' he should never be called upon to pay any further assessments upon it. The same contract was made with all the other shareholders, and the fact was known to all. As between them and the company this was a perfectly valid agreement. It was not forbidden by the charter or by any law or public policy, and as between the company and the stockholders was just as binding as if it had been expressly authorized by the charter......No suit’eould have been maintained by the company to collect the unpaid stock for such a purpose. The shares were issued as full paid, on a fair understanding, and that bound the company. ■ “In fact it has been held in recent English cases that not only is the company, but its creditors also are bound by such a contract. ..... But the doctrine of this court is that such a contract, though binding on the company, is a fraud in law on its creditors which they can set aside; that when their rights intervene ami their claims are to be satisfied, the stockholders can be required to pay their stock in full. .... The reason is that the stock subscribed is considered in equity as a trust fund for the payment of creditors......The question for solution is, therefore, when, under the facts of this case, did the cause of action accrue against the defendant in error ? Certainly not until. it became his duty to pay according to the terms'of.his contract or according to law. “It is well' settled that when the stock is subscribed to be paid upon call of the company, and the company refuses or neglects to make the call, a court of equity may itself make the cal-1 if the interests of the creditors require it. The court will do what it is the duty of the company to do. . . . . . But under such circumstances, before there is any obligation upon the stockholder to pay, without an assessment and call by the company, there must be some order of a court of competent jurisdiction, or, at the very least, some authorized demand upon him for payment. And it is clear the statute of limitations does not begin to rim in bis favor until such order or demand......In this ease there was no obligation resting on the stockholder to pay at all until some authorized demand in behalf of creditors was made for payment. The defendant owed the creditors nothing, and he owed the company nothing save such unpaid portion of his stock as might be necessary to satisfy the claims of the creditors. Upon the bankruptcy of the company 1ns obligation was to pay to the assignees, upon demand, such an amount upon his unpaid stock as would be sufficient, with the other assets of the company, to pay its debts. He was under no obligation to pay any more, and he was under no obligation to pay anything until the amount necessary for him to pay was at least approximately ascertained. Until then his obligation to pay did not become complete. But not only was it necessary that the amount required to satisfy creditors should be ascertained, but that the agreement between the company and the stockholders to the effect that the latter should not be required to make any further payments on his stock, should be set aside as in fraud of creditors. No action at law would lie to recover the unpaid balance due on the stock until this was done. The proceeding for an assessment in the bankruptcy court was, in effect, a proceeding to accomplish two purposes; first, to set aside the contract between the company and the stockholder; and second, to fix the amount which he should be required to pay. Until these things were done, the cause of action against the stockholder did not accrue, although his primary obligation was assumed at the time when he subscribed the stock.” In Patterson v. Lynde, 16 Otto, 519, a judgment creditor of the corporation brought an action against one stockholder to enforce the payment of his unpaid capital stock, in satisfaction of his judgment. It was held this could not be done. Waite, C. J., says on p. 520: “ Since this case was decided below, the Supreme Court of Oregon has passed on the same question, and in Ladd v. Cartwright, 7 Oreg., 329, determined that the individual liability of stockholders for the indebtedness of the corporation is limited to the amount of their stock subscribed and unpaid, and that the remedy of the creditor to enforce this liability is in equity where the rights of the corporation, the stockholder and all the creditors can be adjusted in one suit. Of the correctness of this decision we have no doubt. . . . No one creditor can assume that he alone is entitled to what any stockholder owes, and sue at law so as to appropriate it exclusively to himself.” Against all these doctrines and express decisions we are referred by the learned counsel for the appellant to one case in which a contrary decision was made. It is the ease In re Glen Iron Works Bankrupt, 13 W. N. C., 387. A careful examination of that case compels ns to say that we cannot agree with the learned Judge of the District Court who decided it. The case of Scovil v. Thayer does not appear to have been called to his attention.. Had it been, it seems to us his conclusion must have been different. The reasoning of that case is in clear hostility with any theory of the least degree of obligation on the part of the stockholders in the state of facts which existed in the case of the Glen Iron Works, until after the agreement of the stockholders bad been declared void, and an assessment had been made. When the attachment in the latter case was issued and served, there was no obligation or duty to pay anything on the part of the stockholders, except the subscription contract itself. On that contract there was no right of action whatever in favor of the company and against the stockholder. There was no cause of action. Not a penny could have been recovered if the company.'had, at the date of the attachment, brought an action on the contract. Even the assignee, as was held in his actions, had no cause of action whatever after his appointment, and after his much larger right of action on behalf of creditors had accrued. Two things were required to be done first, before the slightest cause of action arose. One was an assessment, and the other, a decree setting aside the fraudulent condition of the subscription contract. Neither of these had been done. The learned Judge thought the attachment might be used as equity process, to take alL the steps, and enforce all the-rights. We cannot think so. The machinery of an attachment would not admit of it, and if it did, the result would be, not an application of the proceeds to the payment of the attaching creditor alone, but an equitable distribution to all. An attachment in execution is a strictly statutory remedy for the sole benefit of the attaching creditor. We cannot regard it as equity process in any point of view. It has no machinery by which other creditors can be introduced as plaintiffs or other stockholders as defendants. Nor do we understand how it would be possible under a mere system of interrogatories to, and answers by, the garnishees named in the proceeding, and of jury trial, on the truth of the answers, to marshal the entire assets of the corporation, to take an account of all its debts and all its assets, to ascertain the amount of unpaid capital stock due from all the stockholders, whether-garnishees or not» to determine the proportionate amount due by each for the payment of so much of the indebtedness as cannot be discharged by other assets, or to make a final decree for an assessment upon delinquent stockholders, designating the amount payable by each. Only a portion of the stockholders were attached as garnishees in the Glen Iron Co. case. The remainder could not be brought in because the attachment law makes no provision for it, and if they could, the plaintiff’s lien would date only from the time they were brought in, thus making a conflict in the mode of distribution. As all other creditors except the plaintiff would or might get no benefit from the attachment, they certainly could not be forced to intervene, and if they wished to come in they could not do so. The attachment law makes no provision for such a purpose, and surely their rights could not be administered without their participation in the proceedings. Upon any consideration of the subject we are persuaded that the writ of attachment in execution is a proceeding of strict law not to be found anywhere in the system of equity law or practice, nor in the common law, existing only by force of special statutes, intended and devised for the sole advantage of the creditor who issues it, excluding all others from its benefits, and entirely unprovided with any methods for the introduction of strangers, and the administration of their rights. Moreover, it is a perfectly familiar rule in the attachment law that the attaching creditor stands in the shoes of the defendant in the judgment, and can assert no other or higher rights than his against the garnishees. Fessler v. Ellis, 4 Wright, 248; Dougherty v. Hunter, 4 P. F. S., 380. - Entertaining these views we are unable to regard the decision in the case In Re Glen Iron Works as authority in Pennsylvania for the doctrine it announces, and we cannot but regard it as in plain hostility with the decisions of the Supreme Court of the United States, and other eases to which we have referred. V^So far as the case at bar is concerned, it is only necessary to add that the assignment for the benefit of creditors was made in 1876, and the creditor Maxwell did not obtain his judgment until 1879. He was therefore in no position to issue an attachment until long after the insolvency of the company was ascertained, and its unpaid capital stock had become vested in the assignees for the benefit of all the creditors, to be administered as a trust fund belonging to them. Macungie Savings Bank v. Bastian, 10 W. N. C., 71. An attachment would- be no more available to him then, than would be a ii. fa, levied upon goods or lands which had passed by the assignment. The bill in equity in this case was the true remedy of the plaintiffs, framed and used in the proper form, and founded upon facts which entitle them to the decree made by the court below in their favor, and therefore it receives the sanction of this court. The assignments of error are all dismissed. * ? ¥ The decree of the court below is affirmed, and the appeals therefrom are dismissed at the cost of the appellants.

Opinion by Mr. Justice Patterson, On February 23, 1943, the Secretary of Revenue, after hearing, suspended the operating privileges of Francis Cole, appellee, for a period of three months for the reason that he was operating a motor vehicle involved in a fatal accident. Appeal was taken to the court below as provided by statute. After hearing, the court below concluded that the evidence failed to establish recklessness or negligence on the part of appellee and that “for want of competent and satisfactory evidence [appellee’s] operator’s license should not be suspended” and directed reinstatement of the same. The Commonwealth took this appeal. On August 19, 1942, about 7:30 P. M., Francis Cole, appellee, was proceeding in a westerly direction upon a state road sixteen feet wide in Conneaut Township. Earl Penfield, who died as a result of the accident, was proceeding in a northerly direction upon a township road fourteen feet wide. These roads form a right angle intersection at a point designated as “Conneaut Center”. The intersection is not protected by traffic signs of any kind. Immediately south of the intersection, on the township road, is a dip of approximately fourteen feet. Two hundred fifty feet east of the township road and facing the state road is a house. Both the dip in the road and the house obstruct the view of users of both roads. The evidence does not definitely establish the distance from the intersection at which the view is unobstructed. When appellee passed the house 250 feet from the intersection he was traveling between 40 and 45 miles per hour. After having passed the said house he removed his foot from the accelerator for the purpose of decreasing his speed, and looked for traffic on the intersecting road, but saw none. The collision occurred in the center of the intersection. Appellee’s automobile skidded and proceeded approximately 35 to 40 feet beyond the point of impact, where it rolled over on its side. The Penfield car stopped approximately 150 feet northwest of the Cole car, in a field. The only eye-witness to the happening of the collision is appellee, who testified that “I believe he hit mine [his car].” This Court has consistently interpreted the Act of 1929, P. L. 905, as amended by the Act of 1939, P. L. 1135, 75 P. S. 193, as vesting in the court of common pleas power to hear appeals de novo and determine from the evidence adduced before it whether the operating privileges should be suspended: Schwartz Automobile License Case, 348 Pa. 267, 268; Hardwick Automobile License Case, 348 Pa. 266, 267; Handwerk Automobile License Case, 348 Pa. 263, 265; Oesterling Appeal, 347 Pa. 241, 243; Commonwealth v. Cronin, 336 Pa. 469, 473; Commonwealth v. Funk, 323 Pa. 390, 399. All of these cases hold that an appeal to the court is not for the purpose of reviewing the evidence taken before the secretary, and his action thereon, but to hear evidence and determine, in the exercise of the court’s sound discretion and in the furtherance of justice, whether the license should be suspended: Hardwick Automobile License Case, supra, 267. In Hardwick Automobile License Case, supra, tbe appellee-driver admittedly was traveling at a speed in excess of tbe statutory limit. Tbe court below concluded that “tbe case does not appear so grave as to warrant a double penalty”, and directed that bis license should be reinstated. We said (p. 267) : “There is nothing in tbe record requiring this Court to bold that there has been a manifest abuse of discretion by tbe court below.” In Schwarts Automobile License Case, supra, appellee admitted that be was driving between 50 and 55 miles per hour. Tbe court below concluded that “at most, be was guilty of a technical violation” and directed tbe reinstatement of bis operating privileges. We there held (p. 268): “There is no manifest abuse of discretion on tbe part of tbe trial court.” The present case is squarely in point with these two eases; tbe petition admits that appellee “was involved in an automobile accident . . . wherein as a result of said accident Earl Penfield was fatally injured.” Tbe lower court properly held that tbe evidence and circumstances of tbe present case do not establish that tbe fatality resulted from tbe negligence of appellee. Nor can it be said that where one of tbe drivers in a two-car collision is fatally injured, tbe surviving driver of one of tbe cars must necessarily have bis license suspended by tbe secretary, regardless of whose negligence caused tbe accident. Tbe court below has not abused tbe broad discretionary power vested in it by tbe legislature in concluding that tbe operating privileges of Francis Cole, appellee, should not be suspended. Tbe order of tbe court below is affirmed. Costs to be paid by tbe Commonwealth. Act of 1929, P. L. 905, art. VI, Section 615, as amended by the Act of 1939, P. L. 1135, Section 9, 75 P.S. 192(b) : “The secretary may suspend the operator’s license or learner’s permit of any person, after a hearing before the secretary or his representative, or upon failure of the said person to appear at such hearing, whenever the secretary finds upon sufficient evidence — (4) That such person was operating any motor vehicle involved in an accident resulting fatally to any person.” Act of 1929, P. L. 905, as amended by the Act of 1939, P. L. 1135, 75 P.S. 193: “Any person, whose operator’s license or learner’s permit has been suspended, or who has been deprived of the privilege of applying for an operator’s license or learner’s permit under the provisions of this act, shall have the right to file a petition, within thirty (30) days thereafter, for a hearing in the matter in the court of common pleas of the county in which the operator or permittee resides ; and such court is hereby vested with jurisdiction, and it shall be its duty, to set the matter down for hearing upon thirty (30) days’ written notice to the secretary, and thereupon to take testimony and examine into the facts of the ease, and to determine whether the petitioner is subject to suspension or operator’s license or learner’s permit, or whether he may be deprived of the privilege of applying for an operator’s license or learner’s permit by the secretary under the provisions of this act.”

Opinion by Mr. Justice Walling, On December 27,1919, a written contract was executed between Max dross, the plaintiff, and Exeter Machine Works, Inc., located at West Pittston, Pa., by which the latter undertook to make and deliver to the former five hundred complete silk throwing machines, or a total of fifty thousand spindles, for a consideration therein stated. The first two machines were to be delivered on or before February 15, 1920, and at least two machines each and every day thereafter until the contract was filled. Plaintiff advanced the ten thousand dollars as the contract stipulated, but none of the machines was made or delivered and because of such failure he wrote defendant, on May 19, 1920, rescinding the contract and then brought this suit for the ten thousand dollars advanced and also for a like sum claimed as liquidated damages. Defendant filed an affidavit of defense and later an amended affidavit setting up divers matters in defense, and also a counterclaim, to all of which plaintiff replied, raising legal questions only, as provided by the Practice Act of 1915. Thereupon the trial court entered judgment for the plaintiff for the ten thousand dollars advanced, with interest thereon, refused judgment for the ten thousand dollars claimed as liquidated damages and dismissed defendant’s counterclaim as insufficient in law; from which each side has appealed and we will here dispose of both. Defendant sets up an alleged contemporaneous parol agreement, vitally changing the written contract, on the faith of which it executed the latter. The written contract provides that, “It is understood and agreed that all previous communications, either verbal or written, with reference to the subject-matter of this agreement, are hereby withdrawn and annulled, and this contract shall be modified only by written agreement between the parties hereto.” In view of which, the trial court properly rejected the alleged parol modification. Where the parties, as here, have deliberately put their agree ment in writing stipulating therein that it contains the entire contract and shall be modified only by the parties’ written agreement, such stipulation forms a material part of the contract and is enforceable as such: Dynamo & Engine Co. v. Cement Co., 221 Pa. 160, 165; Phila. and Gulf S. S. Co. v. Pechin, 61 Pa. Superior Ct. 401; Colt Company v. Evans, 74 Pa. Superior Ct. 73; Holcomb & Hoke Mfg. Co. v. Gamba, 80 Pa. Superior Ct. 191; Oxweld Acetylene Co. v. Hastings, 71 Pa. Superior Ct. 178; Tranter Mfg. Co. v. Blaney, 61 Pa. Superior Ct. 379. Parties having taken the precaution to put their agreement in writing may further safeguard their rights by such a stipulation as above quoted, otherwise a contracting party is powerless to protect himself against parol modifications of his solemn contract. The contract states, “It is understood that the date of the delivery of the above described machinery, whether expressed or implied, is subject to delays caused by common carriers or rolling mills in delivering to us the materials out of which said machinery is to be made, and subject to delays occasioned to us by reason of strikes, labor troubles, fires, accidents at our shops or other causes beyond our control,” and thereunder defendant seeks to escape the consequences of its failure to perform. But the affidavit of defense fails to aver sufficient facts to enable it to do so. An affidavit of defense must state the facts specifically (Frick & Lindsay Co. v. Kent & Kervin, 265 Pa. 264; Little v. Thropp, 245 Pa. 539; Gowan v. Boney, 74 Pa. Superior Ct. 123; Hallowell v. Paige, 46 Pa. Superior Ct. 108; Berko v. Kemper Construction Co., 65 Pa. Superior Ct. 589), and mere general averments are insufficient: Franklin Sugar R. Co. v. Hanscom Bros., 273 Pa. 98; Com. v. Bader et al., 271 Pa. 308; Wright v. General Carbonic Co., 271 Pa. 332; Iron Trade Products Co. v. Wilkoff Co., 272 Pa. 172. There is no averment as to what common carrier or what rolling mill failed to deliver the necessary material, or of what material, if any, defendant was de prived. True, a railroad strike and one in defendant’s factory are averred as beginning in April 1920, but that was two months after defendant had breached the contract and of course could not excuse it: see Wigton, Receiver, v. Climax Coal Co., 270 Pa. 420. The affidavit avers generally extraordinarily severe weather conditions during the first quarter of 1920, causing delay in transportation and its affiant expresses the belief that defendant was substantially hindered thereby, but fails to state what transportation companies were blockaded by storms, or for how long, or of what material defendant was thereby deprived. Moreover, he who undertakes to perform a contract during the winter months in this northern country cannot be excused because of general severity of the weather: Texter v. Wachs, 73 Pa. Superior Ct. 19. The affidavit also avers that, owing to the abnormal demand for rolling mill products, defendant was unable to obtain the required material “within any reasonable bounds of effort or expense”; but that is unavailing; mere hardship or difficulty is no excuse for failure to perform a contract: Com. v. Neff et al., 271 Pa. 312; Corona C. & C. Co. v. Dickinson, 261 Pa. 589. Defendant’s counterclaim consists of the lump sum of $39,925.61, claimed to have been expended by it, on the faith of the contract, for labor and material and $50,000 as its anticipated profits. As the trial court rightly held the contract was breached by defendant, its counterclaim, based on the theory that plaintiff breached the contract, falls. Furthermore, the counterclaim on its face is fatally defective in that it fails to state when, to whom, or for what the items comprising the lump sum were paid, or any sufficient facts to justify the claim for anticipated profits. It would be worthless as a plaintiff’s statement of claim and is equally so as a counterclaim, which must be stated with the same certainty: O’Neil v. Burnett, 263 Pa. 216, and see Frick & Lindsay v. Kent & Kervin, supra. It follows judgment was rightly entered for the plaintiff on the questions of law raised as to the counterclaim. The contract contained a further stipulation as follows, “In the event the Exeter Machine Works, Inc., fail or neglect to comply with the terms and conditions of this contract, then it is agreed between the parties hereto, that the stipulated damages shall be fixed in the sum of ten thousand ($10,000) dollars, that being agreed upon as the amount of damages which the said Max Gross would be entitled to as a result of the failure on the part of the said Exeter Machine Works, Inc., to carry out the terms of their contract; and also agree in addition thereto to return to the said Max Gross, the said sum of ten thousand ($10,000) dollars, which has been paid to the Exeter Machine Works, Inc., as an advanced payment.” This, plaintiff contends, entitles him to the stipulated ten thousand dollars as liquidated damages; but the trial judge properly held otherwise. Whether the parties have denominated the sum specified in any given case a penalty or liquidated damages is of little moment in determining its real character: Kunkel & Jordan v. Wherry, 189 Pa. 198. “The question......is to be determined by the intention of the parties drawn from the words of the whole contract, examined in the light of its subject-matter and its surroundings; and in this examination we must consider the relation which the sum stipulated bears to the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach in damages and such other matters as are legally or necessarily inherent in the transaction”: March v. Allabough, 103 Pa. 335. The general rule is that, where the covenant embraces the performance of several acts and a single sum is named, it will be treated as a penalty, especially so where the damages for any breach or breaches may be ascertained. In other words, where the agreement contains several matters of different degrees of importance and yet the sum named is for the breach of any, even the least, it is to be construed as a penalty and not as liquidated damages: Keck v. Bieber, 148 Pa. 645; March v. Allabough, supra; Shreve v. Brereton, 51 Pa. 175. Here, defendant might commit minor breaches of the contract; for example, it might fail to deliver one of the five hundred machines, or one of them, when delivered might not be equal in efficiency to the Atwood machines, or defendant might fail to extend plaintiff credit for the full $45,000 specified. In each instance there would be a breach of contract, but it cannot be affirmed that such would entitle plaintiff to the $10,000, irrespective of the actual loss sustained. Hence the amount stated must be treated as a penalty. The question is one of law and there is no force in the suggestion that it was first raised in the amended affidavit of defense. The assignments of error on each appeal are overruled and the judgment is affirmed.

Opinion, by Me. Justice Linn, June 30, 1933: Three complaints are made: 1, that the court refused to hold that an investment made by accountants was not a legal investment; 2, that the court refused to surcharge accountants with loss resulting from failure to convert into legal investments certain nonlegal investments made by the testator; 3, that the fund for distribution was awarded to the executor of the donee of the power and not to the donee's appointees. Henry B. Curran died in 1907. By his will, the part of his estate here involved passed to accountants (The Pennsylvania Company for Insurances on Lives and Granting Annuities, and William M. Davidson, Jr., testator’s son-in-law) in trust to pay the income to his widow for life, with power to dispose of the principal by will. She died June 23, 1931, testate, but without specifically disposing of the property, which therefore passed by implication (section 11 of Wills Act, 1917, P. L. 403) to her residuary legatees, of whom Laura A. Hill, the appellant, is one. 1. The first complaint arises out of an investment of $3,000 made by accountants February 21,1929, in Harry J. Ulrich First Mortgage 6s, due February 1,1934. Walnut and Quince Streets Corporation owned certain real estate at Walnut and Quince Streets, Philadelphia, and conveyed it to Harry J. Ulrich, a clerk in the employ of the Real Estate-Land Title and Tx*ust Company. That company insured the title and made a loan of $600,000 secured by first mortgage on said real estate. On the same day on which the conveyance was made to Ulrich, he executed and delivered to the Pennsylvania Company for Insurances on Lives and Granting Annuities, as trustee for bondholders, a mortgage of the property in the sum of $600,000, and, to secure the repayment of that sum in accord with the terms of the mortgage, executed 600 bonds of $1,000 each, for the payment of which he is liable to the holders. He then reconveyed the property to the Walnut and Quince Streets Corporation, under and subject to the mortgage. The Pennsylvania Company for Insurances on Lives and Granting Annuities purchased the entire issue for various accounts, one being the estate of Emma P. Hope, deceased, which became owner of three bonds. Subsequently, the accountants bought these three bonds at par from the Hope estate as an investment of trust funds of decedent’s estate. Before making the purchase of the entire issue, the trustee obtained the written opinion of counsel (inter alia) that the bonds were a legal investment for trust funds; had the property appraised; and made inquiries into the income, etc., of Shubert Theatre Corporation, which had guaranteed the payment of principal and interest of the bonds, and which operated the Forrest Theatre, constructed on the premises. It may be noted that the mortgage in question was, in amount, as the learned auditing judge found, “slightly less than 60% of the value placed upon the property at the time it was executed”; it was less than “% of the fair value of such real estate” the limit imposed by the subsequent amendment of 1929. No suggestion is made, in the statement of questions involved, concerning the propriety of or want of care in making the investment; the single complaint is that it is an investment in the bonds of a private corporation, and therefore is. not a legal investment permitted by the Act of June 29,1923, P. L. 955, amending section 41 (a) of the Fiduciaries Act of 1917, P. L. 447. To that point we limit our review. Article III, section 22, of the Constitution provides: “No act of the General Assembly shall authorize the investment of trust funds by executors, administrators, guardians or other trustees in the bonds or stock of any private corporation, and such acts now existing are avoided, saving investments heretofore made.” Section 41 (a) of the Fiduciaries Act as amended in 1923 is as follows: “1. When a fiduciary shall have in his hands any moneys, the principal or capital whereof is to remain for a time in his possession or under his control, and the interest, profits, or income whereof are to be paid away or to accumulate, or when the income of real estate shall be more than sufficient for the purpose of the trust, such fiduciary may invest such moneys ......in bonds of one or more individuals secured by mortgage on real estate in this Commonwealth, which may be either a single bond secured by a mortgage or one or more bonds of an issue of bonds secured by mortgage or deed of trust to a trustee for the benefit of all bondholders, or in ground rents in this Commonwealth. Section 41, paragraph 3, of the Fiduciaries Act of 1917, at page 509, provides: “In case the said moneys shall be invested as set forth in paragraph one of this clause,......the said fiduciary shall be exempted from all liability for loss on the same, in like manner as if such investments had been made in pursuance of directions in the will creating the trust, it being hereby declared the investments mentioned in this section are legal investments of moneys by fiduciaries.” In Maroney’s Est., 311 Pa. 336, an investment of trust funds by a fiduciary in a bond and a mortgage to the fiduciary, made by a private corporation, was challenged, and it was held that the Constitution did not prohibit investment of trust funds in real securities, but that the prohibition was directed against investment in personal securities. The origin of this classification of securities, and the well recognized distinction between them, was referred to, and it was concluded that the investment of trust funds in a mortgage of real estate, admittedly a real security, even if executed by a private corporation, was not prohibited by the Constitution and that, as it was specifically provided for by the statute, it was a legal investment. We need not repeat what was so recently stated on the subject. One element of the complaint is that Ulrich was merely an employee of the title insurance company and that title was conveyed to him for the express purpose of executing the mortgage and the bonds, and then reconveying the property of the former corporate owner, under and subject to the mortgage. The result, appellant contends, makes the instruments in fact the mortgage and bonds of the corporation, and, therefore, prohibited by the Constitution as the bonds of a private corporation. We cannot accept that argument, because it ignores essential facts in the transaction, particularly the fact of the mortgage in the sense that it is a real security. It is immaterial that Ulrich was a trustee or a straw man. The important question is, is there a mortgage of real estate, a real security? Ulrich’s mortgage exists. The terms of the mortgage, as well as the obligation in his bonds, are enforcible, the one against the land, the other against him. Moreover, the instruments are directly within the statute; the investment is “in bonds of one or more individuals secured by mortgage on real estate in this Commonwealth, which may be either a single bond secured by a mortgage, or one or more bonds of an issue of bonds secured by mortgage or deed of trust to a trustee for the benefit of all bondholders.” To avoid the plain effect of that provision, appellant contends (in the words of the brief) that “the ‘mortgage’ referred to in both the Act of 1917 and 1923 meant mortgages of land in common form......[foreclosable by]......action on the bond or a scire facias on the mortgage.” But no reason is suggested for so restricting the obviously more comprehensive meaning of words used by the legislature. No principle of statutory construction will permit this court so to limit the scope of the word mortgage where the context shows that it was used in its general and well understood meaning. The words “mortgage or deed of trust to a trustee for the benefit of all bondholders” show conclusively that a scire facias form mortgage was not alone intended but that the word was used in its much broader sense. We must reject the argument as without support, and, therefore, with it must go the accompanying criticism of the provisions of the mortgage containing the duties and responsibilities of the trustee, as appellant frankly states that “the constitutionality of the Act of 1923” is not “involved; it is merely the construction of that act.” As was stated before, the propriety of such investment is not presented for review. Appellant also refers to Com. ex rel. v. McConnell, 226 Pa. 244, 75 A. 367, decided in 1910, in which the statute, controlling the performance of the committee’s duties, was the act “Relating to Lunatics and Habitual Drunkards,” approved June 13, 1836, P. L. 589, the 34th section of which (P. L. 599) provides: “It shall be lawful for any committee as aforesaid, by the leave and under the direction of the court of common pleas having jurisdiction, as aforesaid, to invest the money of a lunatic or habitual drunkard, in such stocks, or upon such security, as shall be approved of by such court, and if such investment be made, bona fide, the committee making the same shall not be liable for any loss that may arise thereby.” At the audit of the account of the committee of a lunatic, the committee was surcharged with loss resulting from an investment in bonds of a private corporation. The investment was not made “by leave and under the direction of the court of common pleas......” (supra) and the surcharge was accordingly affirmed. In the course of the opinion of this court, written by the late Mr. Justice Mestrezat, the bonds in which the fund was invested were treated as personal securities. There is no discussion of the fact that the bonds were secured by a mortgage of real estate, nor, from what appears in the opinion, does the effect of that fact appear to have been called to the attention of the court. As there can be no doubt that an investment in a mortgage of land is a real security, as was held in Maroney’s Est., supra, following decisions going back over a century, and, as a real security is obviously not within the constitutional prohibition of investment in personal securities, anything to the contrary suggested by the opinion filed in Com. v. McConnell must give way to the more considered views of this court. An investment in a real security is none the less such investment, if the debt is also represented by an accompanying obligation, whether bond, note or otherwise appropriate. The first complaint is dismissed. 2. The second complaint results from the retention of certain bonds purchased by the testator, Curran, and awarded to accountants, as trustees, by the adjudication of the executor’s account filed December 17, 1908. No default on these bonds has occurred, though the market price is less than the appraised value at which they were taken. On this branch of the case evidence was taken to show that the trustees retained the securities “in the honest exercise of normally good judgment, based on actual consideration of existing conditions”: Taylor’s Est., 277 Pa. 518, 121 A. 310; Brown’s Est., 287 Pa. 499, 135 A. 112. The life tenant, having the general power of appointment, in a sense had complete dominion over the property (Lyon v. Alexander, 304 Pa. 288, 156 A. 84) as she could appoint to her own estate. There is evidence that she was advised by the trustee, as late as 1925, that part of the corpus was in nonlegal investments, and, an nually from 1909 to 1930, was furnished with reports, showing income received and distributed, and sales of securities during the period of the report. Certainly if, in the circumstances, with full knowledge of the facts and of her rights, Mrs. Curran was content, her appointees will not be heard to complain. On all the evidence on this phase of the case, the learned auditing judge found as a fact there was “neither neglect nor inattention on the part of the trustees. The retention of the securities in question was the result of the exercise of their sound judgment — the outcome of frequent consultations.” This finding was approved by the court in banc. We therefore accept that finding which requires the dismissal of the assignments raising the second complaint. 3. The third complaint is that the fund was awarded to the executor of Lillian H. Curran, deceased, instead of to appellant. This complaint is based on the proposition that an appointee takes immediately from the donor. The widow made no direct appointment. Her will was dated November 21, 1927. She first directed the payment of her debts and funeral expenses; then, made numerous bequests to individuals and to charities; and next, provided that “All bequests......are to be paid free and clear of all taxes whatsoever.” The residue she gave to two persons, one of them, appellant. In its opinion dismissing exceptions to the adjudication, the learned court below said — “The auditing judge awarded the fund to the executor under the will of the donee and directed it be kept segregated from her individual estate so that at the audit thereof it can be determined whether the appointed estate is subject to her debts, legacies and estate and inheritance taxes. This is our usual practice. Creditors are not now before us and they have a right to be heard on these questions.” That disposition was correct. See section 302 (f) Revenue Act of 1926, 44 Stat. 71, 26 USCA, section 1094; Porter, Exr., v. Commissioner of Internal Revenue, 288 U. S. 436, 441; Blackburne v. Brown, 43 F. (2d) 320; Stratton v. U. S., 50 F. (2d) 48. Decree affirmed at appellant’s costs.

Opinion by Mr. Chief Justice Kephart, An automobile accident occurred in Wayne County, Pennsylvania, involving plaintiffs, residents of Lackawanna County, and defendant, a resident of New York. Plaintiffs instituted action in Lackawanna County, and service was made by deputization upon the Secretary of Revenue of Pennsylvania, as agent for defendant pursuant to the Act of May 14, 1929, P. L. 1721, Section 1, as amended. The jurisdiction of the court was preliminarily challenged on the ground that the service was invalid since suit had not been commenced in the county where the accident took place. The court below sustained plaintiffs’ contention that suit could be brought in any county on the authority of Aversa v. Aubry, 303 Pa. 139. The long established principle of universal application is that statutes in derogation of the common law must be strictly construed. This rule has been steadfastly adhered to in the construction of statutes governing the service of process. Recently in Heaney v. Mauch Chunk Boro., 322 Pa. 487, this Court stated at p. 490: “The common law rule in regard to service of process, established by centuries of precedent, has always been accepted as binding in this State. In an action in personam the process must be served personally within the jurisdiction of the court in which the action was commenced, upon the person to be affected thereby. This rule prevails, unless a statute clearly and definitely manifests that a different method as to service has been promulgated by the legislature. We stated in Davidson v. Bright, 267 Pa. 580, that statutes in derogation of the common law must be construed strictly and only such modification of the law will be recognized as the statute clearly and definitely prescribes.” In Hughes v. Hughes, 306 Pa. 75, 78, this court said: “It is general law that service statutes are to be construed strictly, and particularly statutes authorizing substituted service or service by publication: 50 C. J. 490; Stamey v. Barkley, 211 Pa. 313; Lehigh Valley Ins. Co. v. Fuller, 81 Pa. 398.” The interpretation placed upon the Act of 1929 in the Aversa case permits suit to be brought in any county in the State, and service may be made on the Secretary of Revenue as agent for the nonresident defendant. This cannot he reconciled with the settled rules of construction. Its holding was predicated on the fact that no limitation of service was expressed in the act and the theory that general expressions of a service statute control its scope; no attention wras paid to common law restrictions and existing statutory regulations; nor was any given to Section 1208 of the Vehicle Code of May 1, 1929, P. L. 905, as amended, except to hold that it applied only to property damage. The opinion stated: “The act contains no provision limiting the right of suit to the county where the accident occurred, or providing that service of process can he made only by an officer of that county.” Section 1208 provides: “All civil actions for damages, arising from the use ... of any vehicle, may, at the discretion of the plaintiff, be brought ... in the county wherein the alleged damages were sustained . . . and service of process ... may be made by the sheriff of the county . . . wherein the defendant . . . resides. . . .” It is not limited to recovery of expenses paid in repairing property damages, for we held in Orloslcy v. Haskell, 304 Pa. 57, that such interpretation of it was incorrect, and it includes actions for personal injuries arising from the use of motor vehicles. Appellees’ contention that suit may be brought in any county accords plaintiffs an unrestricted choice of venue in automobile cases against nonresidents, with the right to serve defendant by deputization no matter where he may be; while in similar actions against residents service by deputization is only permitted if the suit is instituted in the county where the accident occurred. The Act of May 14, 1929, P. L. 1721, Section 1, as amended, under Avhich this broad power is claimed by appellees, providesany nonresident'. . .being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth . . . shall by such acceptance . . . constitute the Secretary of Revenue . . . his . . . agent for the service of process in any civil suit . . . arising out of . . . any accident or collision occurring within the Commonwealth. ...” This Act, however, must be construed in connection with Section 1208 of the Motor Vehicle Code, supra, which controls the venue of such actions apart from the common law. So construed, the Act of 1929, P. L. 1721, conferring the right of service on nonresidents by deputization is limited to the county in which the accident occurred. The nonresident Act is not clear. It names the Secretary as agent to accept service, but says nothing as to the venue of the action in auto cases which gives the right of service differing from the common law. The place where process may be served is an important field of the common law which these statutes invade, and the invasion, serving a defendant in a county other than that where the writ issues, must be definitely and clearly set forth in the act. The venue and service must be that permitted by the common law except as changed by statute. Section 1208 of the Motor Vehicle Code which comprehends all automobile accidents changes this requirement if the action is brought in the county where the accident occurs. The nonresident Act did not enlarge this change. Hence, it must be deemed to apply solely to suits instituted in the county where the accident happened, when service may be had on a nonresident no matter where he may be. We cannot assume that the legislature intended to sweep away all the protection accorded to nonresidents by the common law rules, and lift all these restrictions and expose them to suit in any county in the state irrespective of where the accident occurred, while suit against a resident for a similar accident must be in the county where it took place or where personal service can be made on the defendant. To create a different rule for nonresidents might give rise to a very serious constitutional question. The construction here enforced imposes no greater hardship on nonresidents than residents and promotes uniformity of service. The legislative policy under the Code was to restrict such actions either to the county where the cause arose or to the place where defendant could be personally served. Section 1208, outlining this policy, is general in scope applying to all civil actions for damages arising from the use and operation of any vehicle, when service by deputization is necessary. A plaintiff who desires to make service by deputization must comply with its terms. This interpretation of the two acts makes them fit into the legislative scheme and avoids the difficulties of an unreasonable classification between residents and nonresidents, which would be without apparent purpose, and places a reasonable limitation on the plaintiff’s choice of venue and prevents harassing a nonresident defendant by an unreasonable selection of the locality to start suit. In Heaney v. Mauch Chunk Boro., supra, a borough in Carbon County was sued for injuries resulting from the negligent maintenance of a sidewalk, and it brought in as additional defendant under the Sci. Fa. Act of April 10, 1929, P. L. 479, as amended, a resident of Northampton County served by deputization, who attacked the validity of the service. We held under this statute defendant had a limited right of service. The statute gave Mm the same right as plaintiff had, but since plaintiff could not have served defendant by deputization in another county, such right was not available to the original defendant. Nor did the words which follow (“Where it shall appear,”) etc., carry with them an imputation of legislative intent to give the original defendant rights exceeding those of plaintiff; to do so would ignore the words “original defendant shall have the same rights in securing serviceThe words which follow (“Where it shall appear,” etc.) relate to such actions ivhere a defendant might be served outside the county under some act of assembly. As plaintiff did not have any statutory right of service in another county, the deputized service on the additional defendant was invalid. The Heaney case was in line with the reasoning adopted in Gossard v. Gossard, 319 Pa. 129, and the rule there laid down. In that case an automobile accident occurred in Bedford County. Suit was instituted in Butler County and defendant personally served. Defendant secured service by deputization on an additional defendant in Allegheny County. We held that this service was valid. Plaintiff had the right to sue in Bedford County, where the accident occurred, and serve defendant by deputization under Section 1208 of the Vehicle Code anywhere in the state where he could be found; or he could sue in any county where defendant could be served personally. He did the latter, but by so doing he could not deprive defendant of the “same rights in securing service ... as the plaintiff . . . had” under the Sci. Fa. Act. The Act plainly gave defendant that right, and he could not be stripped of it merely because plaintiff saw fit to sue outside the county of the accident. Decree reversed; service set aside. “Any defendant, . . . may sue out, ... a writ of scire facias . . . and such original defendant shall have the same rights in securing service of said writ as the plaintiff in the proceedings had for service of process in said cause. Where it shall appear that service of said writ on an added- defendant cannot he obtained in the county wherein the action was instituted, service . . . may be made by the sheriff of the county in which the action was instituted deputizing the sheriff of the county wherein such added defendant resides or where service may be had upon him under the existing laws of this Commonwealth. ...”

Opinion by Mr. Justice O’Brien, This is an appeal by Henderson Newman from the order of the Superior Court, affirming the judgment of sentence of the Court of Quarter Sessions of Delaware County. Appellant was indicted on December 7, 1964, for the crimes of (1) traffic in lottery tickets; (2) setting up a gambling establishment; (3) procuring persons to gamble; (4) enticing persons to gamble, and (5) aid ing and assisting others to gamble. Appellant filed a petition to suppress evidence obtained by the detectives after their entry into his home. The petition was denied and the case went to trial. A demurrer was sustained as to all but the lottery count. On that count,1 the jury returned a verdict of guilty. After appellant’s motions for a new trial and arrest of judgment were denied and sentence imposed, he appealed to the Superior Court. That court affirmed, with two judges dissenting. We granted allocatur. The Commonwealth’s evidence disclosed that on No-. vember 16, 1964, at about 11:30 a.m. four detectives went to appellant’s home with a body warrant for appellant and a search warrant for the premises. The complaint for the search warrant recited that the affiant, Detective John MacCrory, deposed that there was probable cause to believe that certain books, papers, and other items used for the purpose of a lottery were in the possession of Henderson Newman at or near 721 West Mary Street. The complaint further recited that the affiant had received complaints and information from persons of reliable and good reputation which the affiant had reason to believe to be true and. which were relied upon in making the affidavit. It was further recited that the affiant had been told 'that the subject premises was a numbers drop, that a surveillance had revealed a considerable amount of traffic going in and out of the house, and that it was believed that gambling activities were conducted in the house. Appellant urges that the complaint fails to comply with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964). That case held that although an affidavit for a search warrant may be based on hearsay information and need not reflect the direct personal observation of the affiant, the magistrate must nevertheless be informed of some of the underlying circumstances on which the informant based his conclusions and some of the underlying circumstances from which the affiant concluded that the informant, whose identity need not be disclosed, was credible or his information reliable. The question thus is whether the recital of police surveillance of traffic going in and out of the house supplies the requisite underlying circumstances to remove the vice of being conclusory from the instant complaint. We need not decide this delicate question here, however, for we are convinced that the execution of the search warrant violated the Fourth Amendment. When the detectives arrived at appellant’s premises, they banged on the door and announced in a loud voice that they were the police. When there was no response within about twenty seconds, the detectives broke in the door with a sledge hammer. There can no longer be any doubt that such a procedure violates the Fourth Amendment. An announcement of both authority and purpose is required before a door can be broken down, absent exigent circumstances. It is clear that established federal constitutional standards are the minimum which must be satisfied in determining if the force used in the execution of a search warrant was proper. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961); Ker v. California, 374 U.S. 23, 83 S. Ct. 1623 (1963). These standards require that the method of entry be “reasonable”. Ker v. California, supra. Several recent cases arising in Pennsylvania have given content to “reasonable”, so that the constitutional standards appear to be those embodied in 18 U.S.C. §3109: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance, . . ,” In Commonwealth v. Manduchi, 203 Pa. Superior Ct. 373, 375, 198 A. 2d 613 (1964), the detective tried the door, found it to be locked, knocked, heard a “scuffling noise”, and without giving anyone inside the apartment the opportunity to open the door, and without announcing his authority and purpose, proceeded to break open the door with a sledge hammer. The Superior Court stated: “We find no Pennsylvania appellate cases which discuss or determine the circumstances under which police officers armed with a warrant may break into a private dwelling place without first announcing their purpose and giving the occupants a chance to admit them.” The Superior Court admitted the disputed evidence in that case, but the United States District Court for the Eastern District of Pennsylvania in a habeas corpus proceeding ordered the defendant released, United States ex rel. Manduchi v. Tracy, 233 F. Supp. 423 (1964), because the forced entry with no announcement made the entry and thus the search unreasonable. The United States Court of Appeals for the Third Circuit affirmed the decision of the District Court in 350 F. 2d 658 (1965). The result of the reversal of the Superior Court by the federal courts was to indicate that some “announcement” doctrine must apply in Pennsylvania, even though no case had as yet set forth the standard. That standard has now been delineated in the recent case of United States ex rel. Ametrane v. Gable, 276 F. Supp. 555 (E.D. Pa. 1967). The facts in that case were as follows: Two county detectives obtained warrants authorizing the arrest of Ametrane and a search of Ms premises. At 2:40 p.m. that same- day the detectives arrived at 'the alley passage leading to -the ground floor living quarters. The detectives were not in uniform; they wore ordinary street clothes.; As they proceeded down the alley, they saw Ametrane in the second floor bay window, sitting at a table where the detectives had on prior occasions observed him making and. receiving telephone calls. One detective testified that Ametrane “looked down as we were coming .., .”. The detectives then hurried up to Ametrane’s door and rapped loudly. They heard nothing, and no one answered their knock on the door. They knocked again and immediately began to pry-open the door with a two-foot crowbar. As they started to pry the door open, Ametrane said not to break the door, that he would let them in. The trial court held that Ametrane, by opening the door, had consented to the officers’ entry. The Supe; rior Court, however, -concluded that the trial court had found that the detectives had made an announcement by ringing a bell or by knocking. We affirmed, by a 3-2 vote. Two justices for affirmance were of the opinion that Ametrane could not object to the detectives’ failure to state their identity or purpose because “he was well aware of who were at his door and why they were there.” Commonwealth v. Ametrane, 422 Pa. 83, 88, 221 A. 2d 296 (1966). The third justice concurred in the result, indicating that he based his opinion on the consent to the entry. The district .court held that none of the conclusions of the state courts was supported by the evidence. Yet the district court pointed out that all three state court conclusions were based “on one implicit common premise: that the.officers did not explicitly announce their identity or purpose before they entered.” 276 F. Supp. at 557. Since the excuses or implied announcements found by the state courts were not supported by the evidence, this failure to announce invalidated the search. The district court found that “although the officers possibly may have identified themselves before entering, they- did not state their purpose or show their warrants.” .276 F, Supp. at 557. They were required to state their purpose : “The fourth amendment prohibition against unreasonable search and seizure clearly demands that, ordinarily, before a police officer enters upon private premises to conduct a search or to malte an arrest, he must give notice of his identity and purpose; the only exception is when exigent circumstances justify . the failure to give notice.” (Emphasis added) 276 F. Supp. at 557. Nor is it too much to expect of the officers to announce their purpose in demanding admission. As the United States Supreme Court pointed out in Miller v. United States, 357 U.S. 301, 309, 78 S. Ct. 1190 (1858) : “The burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirement in this case.” It is undisputed that there Avas no announcement of purpose in the instant ease. Nor were there any exigent circumstances Avhieh would justify entry without proper announcement. Both of the leading United States Supreme Court cases, Miller and Ker, recognized that the justification for noncompliance might be that the person to be arrested is fleeing or attempting to destroy eAddence. Miller also indicated that noncompliance ■ might be excused where the police have valid grounds for being • virtually certain-that petitioner already knows their purpose. Ker expanded -on. this by holding that Ker’s furtive conduct in eluding the police shortly before the arrest was ground for the belief that he might well have been expecting the police. Neither of these exceptions to the requirement of an, nouneement applies here. There is nothing in the record to indicate that appellant was fleeing or about to destroy evidence. Surely a mere twenty second delay in answering the door cannot constitute support for a belief that evidence was being destroyed (or in terms of 18 U.S.C. §3109, a refusal of admittance). In Ametrane, supra, the delay was a full minute, yet the district court did not find any exigent circumstances justifying a forceful entry made without proper notice. The court pointed out that Ametrane was on the second floor and “might have had countless legitimate reasons for taking a minute to answer the door.” 276 F. Supp. at 559. Although it is doubtful that a different result would obtain even if Newman had been on the first floor, Newman, too, was on the second floor. This was known to the police, who had observed him through a window. The fact that some lottery paraphernalia is easily destroyed does not justify the suspension of the Fourth Amendment in all lottery prosecutions. One of the prices we have to pay for the security which the Fourth Amendment bestows upon us is the risk that an occasional guilty party will escape. See Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437 (1960). Something more than the officers’ shout of “police”, combined with their belief that a lottery is being carried on, is necessary to suspend the vital safeguard of our liberty that the Fourth Amendment has proved to be. Ker is no authority to the contrary. The forced entry without proper announcement in that case was justified not merely by the possibility of easy destruction of narcotics, but also by the officer’s proper belief, based on Ker’s furtive conduct in eluding them shortly before the arrest, that he might well have been expecting the police. Nor can we justify the instant entry on the grounds that the police could properly believe that appellant was expecting them or knew their purpose. To do so would he to uphold every search that uncovers relevant evidence. The argument would be that since defendant was violating the law, he must have known the purpose of the police. The United States Supreme Court categorically rejected such an argument in Ker, supra at n.12. “It goes without saying that in determining the lawfulness of entry and the existence of probable cause we may concern ourselves only with what the officers had reason to believe at the time of their entry. Johnson v. United States, 333 U.S. 10, 17 [68 S. Ct. 367] (1948). As the court said in United States v. Di Re, 332 U.S. 581, 595 [68 S. Ct. 222] (1948), ‘a search is not to be made legal by what it turns up. In law it is good or had when it starts and does not change character from’ what is dug up subsequently.” (Emphasis in Ker). Thus we hold that the forcible entry without announcement of purpose violates the Fourth Amendment. The fruits of an illegal search are inadmissible under Mapp v. Ohio, supra. Therefore, the order of the Superior Court is reversed, the judgment of the Court of Quarter Sessions is vacated, and a new trial is granted. Although a majority of states have specific announcement statutes similar to 18 U.S.C. §3109, Pennsylvania does not. Por a listing of statutes, see Ker, supra (Justice Brennan’s opinion at 50 n.4).

Opinion by Reno, J., The Board found: “1. Claimant [appellant] was last employed by the Ernest Ince Beauty Salon, . . . Philadelphia, Pa., from August, 1949, until December 31, 1949. 2. Claimant voluntarily left her employment on December 31, 1949, because of pregnancy. She did not request a leave of absence nor did she return to her former employer in an effort to be reinstated when she was again available for work, after the birth of her baby on April 24, 1950.” She registered for work on May 26, 1950. The findings are supported by the evidence and are binding upon us. Unemployment Compensation Law, §510, 43 P. S. §830. Compensation was denied under §402, 43 P. S. §802, which provides: “An employe shall be ineligible for compensation for any week— ... (b) In which his unemployment is due to voluntarily leaving work without good cause.” This appeal requires us to consider for the first time the problem and the status of a pregnant employe under the unemployment compensation statute. It cannot be asserted, dogmatically and without reservation, that a pregnant woman who leaves her employment does so voluntarily and without good cause. A “good cause” may be personal to the employe and need not be directly connected with the employment, Teicher Unemployment Compensation Case, 154 Pa. Superior Ct. 250, 35 A. 2d 739, and where an employe is compelled to leave employment by necessitous circumstances the leaving is voluntary but with good cause. Sturdevant Unemployment Compensation Case, 158 Pa. Superior. Ct. 548, 45 A. 2d 898. Pregnancy is, of course, a physical condition which compels relinquishment or, at least, suspension of employment. However, the condition which requires a prospective mother to cease work .also prevents her from accepting other suitable work, and for a period she is ineligible for unemployment compensation. Law, §401 (d), 43 P. S. §801. There may be instances where a pregnant woman is “able to work and available for work” in a lighter or different occupation, less difficult or less detrimental to her health, for a period before her confinement, but the market for such service must, in the nature of things, be narrowly restricted. Subject to rare and exceptional cases, it may be said generally that a physical condition which justifies leaving employment will also prevent the employe from working, and consequently disqualify her from receiving benefits. D’Yantone Unemployment Compensation Case, 159 Pa. Superior Ct. 15, 46 A. 2d 525. In a realistic approach to the problem here involved, pregnancy must be treated as a temporary disability, the continuance of which varies with different individuals. Moreover, the birth of a child produces different results in various families. In some instances the mother returns to work after the confinement. In others the presence of a child in the household requires the mother’s constant attention, and she permanently withdraws from the so-called labor force. In some cases a mother may be so situated (e.g., where she is living with her mother) that she can resume her former work without appreciable diminution of her energy or hours of labor. In other cases the mother will be obliged to divide her time between her child and her employment, compelling her to seek and accept only part-time employment, thereby reducing her availability for work, and perhaps rendering her available only for work for which there is no demand in the labor market. And in all cases the health of the mother after the birth of the child is a potent factor. These are some aspects of the problem. The immediate question is whether, under the facts, the Board was warranted in withholding benefits from appellant. In a number of states the eligibility of pregnant women is regulated by statute. In the absence of a specific provision in our Pennsylvania legislation, the Board has adopted and, according to the brief of its able counsel, consistently followed and applied a rule which denies benefits to pregnant women who do not apply for a leave of absence before leaving their employment or offer to return to it within a reasonable time after confinement. In short, failure to apply for a leave of absence, whether allowed or not, or omission to report to her employer for further work after the confinement, is deemed a termination of the employer-employe relation and a permanent withdrawal from the labor force. We cannot say that the rule is unreasonable or without substantial relevancy to the problem. Some expressions by this Court lend support to the rule. For instance, in Vernon Unemployment Compensation Case, 164 Pa. Superior Ct. 131, 135, 63 A. 2d 383, which involved §402 (b) and the continuance of the employer-employe relationship, Judge Dithrich said: “It seems entirely* reasonable to hold that a claimant who neglects to take those precautions to guard his job, which a reasonably prudent person would take, and who is not permitted to return to his work in consequence thereof, in effect leaves his employment voluntarily.” Likewise, in Michalsky Unemployment Compensation Case, 163 Pa. Superior Ct. 436, 440, 62 A. 2d 113, dealing with the same principle and section in another factual frame, Judge Hirt, said: “A timely notice to an employer by an employe of his whereabouts and his reason for his absence from his employment in some cases will preserve his light to benefits. In others, the employer-employe relationship cannot be preserved by such notice alone. Each case must be viewed in the light of its circumstances and on its own facts.” The gist of these cases is, and accordingly we hold, that where an employe leaves employment because of a temporary disability with the expectation of later returning to work he is required to apply for a leave of absence, give a timely notice, or otherwise manifest an intention not to abandon the labor force. This is especially applicable where the leaving is an equivocal act, as where a pregnant woman leaves her employment and the leaving can be construed either as a temporary absence or an abandonment of the labor force. Repeating the statement in the Michalsky case, supra : “Each case must be viewed in the light of its circumstances and on its own facts.” In this appeal there can be little doubt of the correctness of the Board’s decision. When appellant applied for work she stated as the cause of her unemployment: “Laid off, Lack of Work.” At the referee’s hearing she frankly admitted that she left her work because of her physical condition. These contradictory statements alone indicate lack of good faith, the essential element of good cause. Brilhart Unemployment Compensation Case, 159 Pa. Superior Ct. 567, 49 A. 2d 260. In the brief written and submitted to this Court by appellant she says: “As for the ‘Laid off, Lack of Work,’ I’ll let the ap-pellee account for that. The only guilt I have in that connection is like an innocent man accused of crime and keeps his mouth shut.” Naturally such an attitude fortifies the conviction that appellant was not animated by good faith. Decision affirmed;

The opinion of the Court was delivered by Sergeant, J. The assignment, not being recorded within thirty days, was null and void, as against creditors, by the 5th section of the Act of 24th March 1818. Funds remained in the hands of the assignees at the time of the attachment, not paid over, consisting of money in hand $109.31, and debts to the assignees as such, not collected, $1361.14: the rest they had paid over to creditors under the assignment. The 35th section of the Act of the 16th June 1836, relating to executions, authorizes an attachment of execution to be levied on any debt due by the defendant, or money deposited by him; and the question is, whether these funds fall within the provisions of the Act. Although the assignment is null and void against creditors, yet it is good as between the assignor and assignees: the assignor, therefore, not being able to demand the funds, they are not, it is contended, a debt due to him. If we are bound down to the rigid letter of the Act, this position may, perhaps, be true. But we think we must look at the spirit of the Act giving the attachment, and endeavour to effectuate its design and object: and-these were to enable creditors to reach funds belonging to the debtor which could not be seized on a jfieri facias, but were in the hands of a third person, such as debts and other choses in action, goods pawned, &c.; and that for the benefit of the creditors, and to give them a remedy, the funds in hand or uncollected may be considered as debts due to the assignor. Indeed, if it were not so the creditors would not be able to reach them, and the assignment would, so far, be rendered valid as to creditors, notwithstanding the express enactment of the law to the contrary. In Flanagin v. Wetherill, (5 Whart. 280), moneys in the hands of assignees held under an assignment which became void by not being duly recorded, were- levied on by foreign attachment at the suit of a creditor, as the property of the assignor; being so treated as respected the creditors; and on the same prim ciple these funds may, for the benefit of the creditors, be treated as debts due to the assignor. We are, therefore, of opinion that the money in the hands of the garnishees ($109.31), as well as the debts due to them ($1361.14), were subject to this attachment; and that judgment should be rendered against them for the amount of the plaintiff’s judgment with interest and costs, tobe discharged from the moneys in their hands and from the moneys received or coming into their hands from the debts. As to the moneys paid over to creditors under the assignment before the attachment, we think they are not chargeable, it being done before the attaching creditors obtained a lien or took measures which legally arrested the proceedings of the assignees. Acts done and completed under the assignment could not be revoked, nor the assignees made liable for proceeding in the regular discharge of what, so far as appeared, was their duty. Judgment reversed, and judgment for the plaintiff accordingly.

The opinion of the Court was delivered by Huston, J. This case was before this Court formerly, and is reported in 2 Watts & Serg. 9, in which case the testimony of William C. Edwards is copied verbatim, and the testimony on this trial was read from the record of the testimony in that case, because the attendance of the witnesses could not be procured or was dispensed with by consent; and for this testimony and that of H. Smith, J. B. Kay, and Christian Dull, I refer to that report. James Verree was examined in this trial, and his testimony varied from that reported in being a little more full and precise than at the former trial. He states that Parker sent a bill of goods to their house, and that it read; “ William Donaldson to Samuel Parker and then followed the bill of goods.; “Edwards requested me to charge this to ‘ William Donaldson, Dr to Edwards & Verree.’ I don’t think Donaldson was in at the time this was done. Don’t think anything was said about the reason for changing.” The witness had been absent in the southwest a long time, and had returned a few days before. He says: “I don’t know what conversation passed between Parker and Edwards. As far as I was concerned, I did not purchase those goods of Parker. The account of sales was made out to Mr Parker, and showed that bill and several others sold for Mr Parker’s account. I believed, from all the circumstances at the time, that they were Parker’s goods.” He then said: “ I never charged Donaldson with those goods. I don’t remember that our firm bought any goods after my return from southwest, about 21st or 22d April.” Another matter not stated in the report is: “I don’t think our store was completely empty when Donaldson was in our store. I don’t think we had any sugars of our own; there was some of Mr Levering’s ; there might have been some teas. There was some coffee of very inferior quality, kegs, spices. All that was in our store was ours, and Mr Levering’s not worth over $500 or $1000.” I shall not state all the proof about former sales to Donaldson by Edwards & Verree, and their having got some of the goods from Parker; their taking Donaldson’s notes for those goods, and immediately transferring them to Parker in payment for those goods got from him; nor all that was said about Donaldson having lent his notes to Edwards & Verree and having been compelled to pay them; for though this might show why Donaldson might be desirous to get payment in goods or anything else from them when he found them failing, yet this cause must depend, not on what was his wish, nor on w'hat was the wish of Edwards or Verree, but on what took place and was agreed on as to these goods ; not on former dealings, but on the facts and agreements in this transaction. As to the bills of exceptions, I cannot say there was clearly error; for although some of the testimony had but a remote bearing on the matter trying, yet in an action of assumpsit, where the evidence is doubtful, almost anything which may probably throw light on the matter, is usually, and in general properly admitted; and if not pertinent — if after the whole has been heard it is found not to bear on the real point in issue — it is proper for the Judge to tell the jury so. This is sometimes done, and sometimes the Judge in charging the jury omits to mention it; and if not asked to mention it, this omission may have been intended by the Judge to show it was considered by him irrelevant; and the omission to mention or allude to it is not error, unless, as said, he had been asked to charge the jury as to the effect of it. Edwards had given a deposition, as I understand the case, before the last trial, but as he attended at that trial it was not read. He was then called by the plaintiff and cross-examined by the defendant at great length. When this trial came on the plaintiff read his deposition, and as his examination was made by bill of exceptions a part of the record, the cause having been sent back on a venire de novo, the defendant offered to read from the record the whole of what he swore in court. Under such circumstances it was not error to receive it. The effect of the whole, together with other testimony, was to decide, in a great measure, what would be the law of this case, for the law depends on the facts, on the agreement of the parties, and what was done in pursuance of those agreements. As I have stated that in some cases it is not easy or not possible to know what bearing facts or circumstances may have on the matter trying, until the whole evidence has been given and the points of law stated and considered, it may be proper to insist that some of the matters given in evidence ought to be thrown out of view by the jury, and- the Judge may, and sometimes ought to give his opinion as to such matters, but not in terms too peremptory, for the jury have the right to judge of the truth of testimony and credibility of witnesses, and also to draw inferences from facts and circumstances proved in the case. This is proved by the law on demurrer to evidence, on which the party demurring may be called on to admit not only the truth of the testimony given, but all fair inferences which a jury might draw from those facts. After the testimony was closed, the counsel of the plaintiff proposed certain points to the court; the answers given have been pressed here as errors. 1. The defendant, William Donaldson, having proved by William C. Edwards and James Verree that the said Edwards & Verree were not in possession of the goods in question nor intrusted with them at the time of sale, and having proved also that Edwards told him explicitly that they “ had not the articles,” that “ the goods did not belong to them,” but that “ they could get them for him and make a commission by furnishing them to him, and the only advantage to them would be the commission on the sale to him,” and having received the goods, is bound to pay Samuel Parker, the owner, whether Edwards & Verree were indebted to him or not at the time on an unsettled account. In assigning error on the answer the counsel have insisted that the Judge did not answer the point proposed and that he drew the attention of the jury to another and different point. The answer of the court was : “In this point it is stated that defendant has proved certain facts by Edwards. It is but just to bear in mind that the plaintiff introduced the deposition of this witness in the first place, and that the defendant, for the purpose of contradicting that witness, as well as for other purposes, gave in evidence his testimony taken on the former trial, when he was called as a witnéss by the plaintiff. It is also stated not hypothetically and open for decision for the jury, but as ‘ proved,’ that Edwards 6 Verree were not in possession of the goods in question, nor intrusted with them at the time of sale. The court cannot assume this as established, so as to preclude the jury from passing upon it. There is evidence on that, part of the case proper for the consideration of the jury. One witness (Kay) has a faint recollection that he saw Donaldson in the door of Parker’s store about the time the goods were bought. The other witness does not think that Donaldson did go with him to Parker’s on that occasion.” The above is particularly objected to. The point proposed required the Judge to state the law as to what effect Edwards & Verree having possession of the goods or not having possession of the goods, but stating they would or could get them from Parker or Levering or some of their neighbours, and make commission by furnishing them to Donaldson, would have on defendant’s right of set-off as offered in this case. It is true, the plaintiff’s counsel might more correctly have stated it thus: “ If the jury believe from the testimony of Edwards & Verree that they had not the possession of the goods, and told’ Donaldson so, and that he said this in their store,” &c. But the point put was distinctly on the effect of their being in possession of the goods or not on the case. That this wdll have an effect on the right of set-off by the purchaser, when sued by the owner of the goods, is well settled. The law is well settled in Smith on Mercantile Law, 74, 75, (17 Law Lib. 45, 46). “ When a factor, dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him to all intents and purposes the principal; and though the real principal may appear and bring an action on that contract against the purchaser of the goods, yet that purchaser may set-off any claim he may have against the factor in answer to the demand of the principal. 7 Term Rep. 359, 361; 4 B. & C. 551; 3 B. & Ad. 334. This rule is to prevent the hardship under which a purchaser would labour, if, after having been induced by peculiar considerations, such, for instance, as the consciousness of possessing a set-off, to deal with one man, he could be turned over and made liable to another, to whom those considerations would not apply, and with whom he would not willingly have contracted. But if at any time in the course of the transaction he have means of knowing that the person with he deals is not a principal, the above reason does not apply, and then cessante ratione, cessat ipsa lex. 7 T. R. 361; 1 East 335. Thus though if a factor sell goods in his own name the buyer may avail himself of the right of set-off against the factor ; yet if a broker do so, the rule will, except under extraordinary circumstances, be different; for a factor who has the possession of goods, differs materially from a broker ; the factor is a person to whom goods are consigned, and when he sells in his own name, it is within the scope of his authority, and it is right, therefore, that his principal should be bound by the consequences of such sale, one of which is the right of setting off a debt due from the factor. But the case of a broker is different; he has not the possession of the goods, and so the vendee cannot be deceived by that circumstance; and besides, the employing a person to sell goods as a broker does not authorize him to sell in his own name. If it be said the broker can by this means deceive innocent persons, the answer is decisive, that cannot be unless the principal deliver him the possession of the goods, which is evidence of ownership.” 2 B. & Ald. 137. The defendants endeavoured to get clear of this by saying the goods were in possession of Edwards & Yerree when delivered to their drayman; but it was proved in this cause that the drayman hauled for others as well as them. The goods were marked, “William Donaldson, Danville, Pennsylvania,” and a bill delivered, “ William Donaldson, Dr to Samuel Parker.” The point put was the effect of Edwards & Yerree selling Donaldson’s goods not in their possession, which they told him they had not, but could get from Parker or Levering or some other person, and would only make a commission from the owners. The Judge might have put it to the jury to say whether they believed the testimony of Edwards & "Yerree, but ought to have stated the effect of their evidence if believed. The counsel asked for such opinion, and it was error not to give it. The Judge then proceeded in his answer to this. He says: “ The plaintiff has selected a number of detached sentences as proved, or parts of sentences, from the testimony of Edwards, without taking into consideration other portions of the same witness’s testimony tending to favour the opposite view of the case; and he then proceeds to select parts of sentences, and a great many of them tending to favour what he calls an opposite view; of the case; and concludes by saying these circumstances are not brought into view to influence the jury in their decision upon the facts, but are merely stated as the reasons of the court for refusing to take the cause from the jury, as requested.” It does not appear that there was any intention to ask the court to take the cause from the jury, for there were three other points on which the opinion of the court was asked, and each put hypothetically. It is no doubt improper in counsel to ask the court to decide the cause on two or three detached parts of sentences, when there is other and contradictory evidence on that point; but was there any evidence that Edwards & Yerree were in posses sion of the goods when Donaldson came to purchase, or were ever in possession of them, as owners ? But if it is not proper for counsel to propose their points in this way, it is still more improper in the court to select sentences or parts of sentences tending to a different conclusion. The court may and ought to state that the cause or a point in the cause does not depend on the testimony of any one witness, but on that of all the witnesses; and if the court proceeds to state the testimony of the witnesses, it ought all to be stated, in substance at least; and it has been decided by this court to be improper to state all on one side and none on the other. Nieman v. Ward, (1 Watts & Serg. 82). The second point is, in substance, the same, and the answers are to an extent correct. If the effect of Edwards & Verree not having possession had been stated, and if the court had stated that the only evidence of what passed betwmen Donaldson and Edwards & Verree was to be found in their testimony, the answer would not have been objectionable. The third point is; “ If Edwards represented himself to be Donaldson’s agent and thereby induced Parker to sell the goods to Donaldson on Donaldson’s credit only, Parker, under the circumstances of this case as proved by the defendant, has a right to recover against Donaldson, whether Edwards disclosed to Donaldson the manner in which the goods were obtained or not, or whether he falsely represented to Donaldson that they were obtained on the credit of Edwards & Verree or not.” The answer is: “This puts the question referred to but not decided in the opinion of the Supreme Court, 2 Watts & Serg. 21. It is understood to be assumed in this point that both plaintiff and defendant were deceived by Edwards & Verree; that they deceived Parker by falsely pretending to be the agents of Donaldson, and thereby obtained the goods; that they deceived Donaldson by falsely pretending they had bought the goods on their own credit from Parker, and thereby induced Donaldson to purchase them of them. If these are believed by the jury to be the facts of the case, then there is no contract between Parker and Donaldson — and the plaintiff cannot recover in this action, which is founded on an alleged contract. It is impossible to raise a contract between the plaintiff and defendant founded on the transaction with Edwards & Verree, if they were agents of neither party. A contract requires the assent of at least two minds; and if Donaldson never made any contract either with the plaintiff’or his agents or factors, the plaintiff cannot sustain this action; he must in that case seek redress in some other form of action.” I suspect, neither the counsel nor the court expressed very clearly their meaning. In the point put, the words “ Parker, under the circumstances of this case as proved by the defendant,” must mean, “ under the testimony given in this cause.” Now, as I have said at the commencement of this business, the only testi mony given is that Donaldson, in the store of Edwards and Yerree, saw they had not the goods he wanted; that they told him they had not the articles he wanted, but they could get them from Parker, Levering or some other; and on this he gave a list of the goods he wanted and the prices he was willing to give, and Edwards dc Verree went to Parker and got the goods. It is not easy to say Donaldson did not employ Edwards to get the goods. I have cited an authority to show that if the vendor was not in possession of the goods, it was notice that he was acting for another, and the vendee could not receive those goods and when sued set-off an old claim against the agent. Judge Rogers, when this cause was here before, said: “ But when the purchaser at the time of the contract knew that the seller was not the owner of the goods, but a factor, the right of set-off against the factor does not exist, whether the suit be brought in the name of the principal or by the factor in his own name. Nay more, when before all the goods are delivered, and before any part of them is paid for, the purchaser is informed they belong to a third person, he cannot set-off a debt due from the factor.” 2 Watts & Serg. 21. Now here, from the testimony, and the only testimony, Donaldson was told and saw that Edwards & Yerree had not the goods, but said they would get them and a commission from the owner; this before he gave his bill for the articles. But after the goods were packed and marked and a bill of them given to the agent, charging Donaldson debtor to Parker, this was suppressed by Edwards & Verree and a new bill made and delivered as charging him as debtor to Edwards & Verree. Will this improper act of men he had employed to buy goods discharge him from paying the owner? The difficulty of a seller and buyer and no contract does not arise unless the jury can disregard the testimony of Edwards & Yerree totally as to all that occurred between them and Donaldson previous to their going to Parker. If anything sworn to by them is believed, Donaldson did employ them or at least agree that they should go out to buy goods for him. If he did so, and he got the goods, which is admitted, he ought to pay for them, though they after deceived or attempted to deceive him — or attempted by changing the bill of the goods to injure Parker and benefit their employer by enabling him to produce some evidence that he bought the goods from them and not from Parker. Something was said on the argument about the nature and duties of a broker as understood in London; and it seemed to be assumed that the law in the books referred to was applicable to such a person so designated there, and to no other: but it is immaterial by what name he is designated, whether factor, commission-merchant or broker, if he had not the possession of the goods wanted by a purchaser, but says he can get them and will make a commission from the seller. If the jury believe this is notice to the buyer the man he is talking with is not the owner, and the pur chaser gives a list of such articles as he wants, which are procured and given to the purchaser, such purchaser cannot set-off an account against the man he employed or intrusted, so as to defeat the principal who furnished the goods, when he sues the buyer. Judgment reversed, and a venire facias de novo awarded.

Opinion by Jacobs, J., The issue in this case is whether a summary judgment was properly entered in favor of the defendant Harry Hollander. Plaintiffs instituted an action in trespass to recover for personal injuries sustained by wife-plaintiff on July 31, 1966, in a fall on the sidewalk in front of the premises at 423 West Norris Street, Philadelphia. The fall allegedly resulted from “large holes, obstructions, depressions, irregularities or defects” in the sidewalk. Plaintiffs sued the City of Philadelphia and Harry Hollander, the owner of the premises. The complaint charged that both defendants had a duty “to keep and maintain said sidewalk in a reasonably safe condition for use by pedestrians.” Defendant Hollander answered alleging that he was a landlord out of possession, averring that “the defendant Hollander leased the entire property located at 423 West Norris Street to Pedro Cumba and Cruz Cumba, his wife, who were in full possession and control of the entire property at all times material to the plaintiff’s cause of action.” The City of Philadelphia’s answer also alleged that the sidewalk was owned, possessed, or controlled by the defendant Hollander, who it claimed was primarily and solely liable. The Cura-bas were joined as additional defendants by the City. After the pleadings were closed and interrogatories were served upon and answered by Hollander, Hollander moved for summary judgment, attaching a copy of an alleged lease between Garrison Realty Company, agent for Harry Hollander, and Pedro Cumba and Cruz Cumba, his wife. The lease recites that the Cura-bas were renting “All That Certain entire two story store and dwelling property numbered and known as 423 West Norris Street” for two years beginning Au gust 20, 1964 and ending August 19, 1966. This lease copy was affixed to the motion for summary judgment as an exhibit but no affidavit was attached or presented in support of the motion and exhibit. Plaintiffs filed an answer to the motion for summary judgment in which they alleged that “(a) there are genuine issues as to material facts regarding the lease marked Exhibit ‘A’ and occupancy, making a trial essential to resolve them; and (b) notwithstanding defendant’s allegations as to the lease and occupancy, he may still be found liable, as a landlord out of possession, for the damages pleaded by plaintiff.” Judge Beimel of the lower court granted defendant’s motion for summary judgment. We reverse. It is well established that we can sustain a summary judgment only “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. C. P. 1035(b); Michigan Bank v. Steensen, 211 Pa. Superior Ct. 405, 236 A. 2d 565 (1967). The record must be examined in the light most favorable to the nonmoving party. Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A. 2d 841 (1968). The court must accept as true all well-pleaded facts in the plaintiff’s pleadings, giving the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Id. Finally, a summary judgment should be granted only when the case is clear and free from doubt. Mallesky v. Stevens, 427 Pa. 352, 235 A. 2d 154 (1967). In his answer to the complaint defendant Hollander alleged that he had leased the entire property to the Cumbas and was thus an owner out of possession at the time of plaintiff’s alleged injuries and therefore under no duty to maintain the sidewalk at that time. This allegation was not in the form of new matter and plaintiffs were under no duty to reply. At this point, whether plaintiffs’ allegation in their complaint that the sidewalk was under the possession, management and control of Hollander was true, was a very material factual issue. Did attaching the lease with the Cumbas to the motion for summary judgment resolve this factual issue in favor of Hollander? We think not. Nowhere do the plaintiffs admit the validity of the lease and in answer to the motion they aver issues of material fact regarding the lease and occupancy. Furthermore, since the motion for summary judgment with the attached exhibit is not sworn to in any way, but is simply signed by the attorney, we question the power of the court to consider it in passing on the motion. Unsworn documents are neither referred to in Rule 1035 nor would it appear that they could be classified inferentially among the documents in which factual matters may be presented for purposes of summary judgment. See Wittlin v. Giacalone, 154 F. 2d 20 (D.C. Cir. 1946); Sardo v. McGrath, 196 F. 2d 20, 23 (D.C. Cir. 1952); United States v. Tuteur, 215 F. 2d 415, 417 (7th Cir. 1954); Steven v. Roscoe Turner Aero. Corp., 324 F. 2d 157, 161 (7th Cir. 1963); cf. Lawson v. American Mot. Ins. Corp., 217 F. 2d 724, 726 (5th Cir. 1954); United States v. Johns-Manville Corp., 259 F. Supp. 440, 457-58 (E.D. Pa. 1966); Shinaberger v. United Aircraft Corp., 262 F. Supp. 52, 56 n. 3 (D. Conn. 1966). However, we will not rest our decision on this ground alone. Defendant argues and the lower court noted that a landlord is generally not liable for bodily harm sustained on his property when he is entirely out of possession and control, citing Craig v. Ryan, 201 Pa. Superior Ct. 307, 191 A. 2d 711 (1963). This is certainly a correct statement of the general rule, as Judge Montgomery's opinion in the Craig case well documents. A long established exception to this rule, however, has been that if the defect existed at the time the lease was executed, the landlord remains responsible to an injured third party. See Reading v. Reiner, 167 Pa. 41, 31 A. 357 (1895); Kirchner v. Smith, 207 Pa. 431, 56 A. 947 (1904); McLaughlin v. Kelly, 230 Pa. 251, 79 A. 552 (1911); Ford v. Philadelphia, 148 Pa. Superior Ct. 195, 24 A. 2d 746 (1942); Gerber v. Jones, 151 Pa. Superior Ct. 489, 30 A. 2d 534 (1943); Kelly v. Horn, 173 Pa. Superior Ct. 603, 97 A. 2d 833 (1953). See also Wunder v. McLean, 134 Pa. 334, 19 A. 749 (1890); Harte v. Jones, 287 Pa. 37, 134 A. 467 (1926); Knickerbocker v. Scranton, 344 Pa. 317, 25 A. 2d 152 (1942). Other exceptions are suggested by §357 of.the Restatement 2d, Torts (1965), adopted as the law of this state in Reitmeyer v. Sprecher, 431 Pa. 284, 243 A. 2d 395 (1968), and the immediately following sections of the Restatement. On the record before us it cannot be found as a fact that the defects in the pavement appeared after the leasing. Only in the plaintiffs’ complaint is the matter touched upon. Examining their complaint in the .light most favorable to them and giving them the benefit of all reasonable inferences, the complaint can be read to allege that the defects existed “on the 31st day of July, 1966, and for a long time prior thereto.” This leaves a genuine issue of material fact and thé case lacks the clarity and freedom from doubt necessary to warrant summary judgment. Judgment reversed with a procedendo. Paragraph 10 of the Complaint alleged: “10. The said accident and the results thereof were caused by and through the joint negligence of defendants and each of them in that each: (a) failed to use due care required under the circumstances; (b) permitted the existence of the said large holes, obstructions, depressions, irregularities or defects; (c) failed to give warning or notice of the existence of the said large holes, obstructions, depressions, irregularities or defects; (d) disregarded the rights and safety of the plaintiff and other pedestrians lawfully intending to be upon the said sidewalk; and (e) failed to provide a safe and proper route of travel for the plaintiff and other pedestrians proceeding on foot in and along the said sidewalk.” Since the language of Buie 1035(b) (referring to “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any”) was taken verbatim from Federal Rule of Civil Procedure 56(e), interpretation of the scope of Rule 1035 can be appropriately aided by reference to federal cases. Schacter v. Albert, supra.

Opinion by Mr. Justice Benjamin R. Jones, This is an appeal from an order of the Court of Common Pleas of York County which affirmed a decision of the York Township Zoning Board of Adjustment (Board) refusing to grant to Dale D. Anstine and Vivian D. Anstine (appellants) a variance from the terms of the York Township Zoning Ordinance of 1960. The appellants purchased approximately two acres of land in York Township on December 19, 1959. At the time of purchase, the land was improved with a two-story block building, formerly used as a chicken house and hog pen. On February 2, 1960, York Township (Township) adopted a zoning ordinance, effective February 15, 1960, designating the zone in which appellants’ land was located as an “R-Residential” district. This ordinance prohibited the location of trailers within an “R-Residential” district except in an authorized trailer camp. On February 27,1960, the appellants placed on their land a mobile-home or trailer and used it as a dwelling house. They applied to the Board on October 24, 1961 for a variance to continue to use and occupy the trailer or mobile-home as a residence and to improve it by placing it on a concrete foundation and adding to its exterior a patio, awning and other decorative features. A hearing was held and testimony was taken. The variance was refused because, according to the Board, appellants had failed to show that the ordinance would work an unnecessary hardship upon them. Appellants then appealed the Board’s decision to the Court of Common Pleas of York County and that court, without taking testimony, sustained the refusal of the variance and the validity of the ordinance. From that order this appeal has been taken. The sole issue before this Court is whether this zoning ordinance operates in such an arbitrary, capricious, discriminatory or confiscatory manner so as to unconstitutionally deprive the appellants of the use of their property. Section 704.1 of the York Township zoning ordinance of 1960 states: “Insofar as the provisions of this ordinance are concerned, within an R-Residential District a trailer shall he considered as a particular type of dwelling use, and shall be located only within a permitted trailer camp. In all other districts, a trailer shall he considered as a single family detached dwelling, and it shall conform to all regulations applicable to a single family dwelling for the district in which it is located.” (Emphasis supplied) Section 301.1 of the ordinance sets forth the use regulations within an R-Residential district as: “A Building may be erected or,used, and a lot or land may be used or occupied for any of the following purposes, and no other: 1. Single Family Detached or Semi-Detached Dwelling.” The effect of such ordinance provisions is to permit the location of a trailer or mobile home on single lots anywhere within the Township, except in an “R-Residential” district where they may be located only in trailer camps. Trailer camps may be located any where, in the township, provided certain conditions are met. The burden of proving clearly and unmistakably the unconstitutionality of a legislative enactment is upon the person so asserting: Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A. 2d 606; Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A. 2d 587; Loomis v. Philadelphia School District Board of Education, 376 Pa. 428, 103 A. 769; Flynn v. Horst, 356 Pa. 20, 51 A.2d 54. Accompanying this burden is the rule that ". . . where the constitutionality of zoning ordinances has been attacked, we have presumed that the munici pal [or township] legislative body acted with purpose to serve the public welfare and that all intendments are in favor of their action." Bilbar Construction Co. v. Easttown Twp. Board of Adjustment, 393 Pa. 62, 71, 141 A. 2d 851; Liggett's Petition, 291 Pa. 109, 139 A. 619; Whitpain Township v. Bodine, 372 Pa. 509, 94 A.2d 737. The burden of proof in an attack on the constitutionality of a zoning ordinance, although heavy, can be maintained. In Archbishop O'Hara's Appeal, supra (p. 57), quoting from Lord Appeal, 368 Pa. 121, 81 A.2d 533 and White's Appeal, 287 Pa. 259, 134 A. 409, it was stated (pp. 57, 58): "`". . . all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals (or general welfare) of the people . . . . There is one matter that is quite certain, the power to thus regulate does not extend to an arbitrary, unnecessary or unreasonable intermeddling with the private ownership of property, even though such acts be labeled for the preservation of health, safety, and general welfare . . ."'" In Schmalz v. Buckingham Twp. Zoning Board of Adjustment, 389 Pa. 295, 132 A.2d 233, the Court held that it was the duty of a court, before which the reasonableness of a zoning ordinance has been questioned, to determine whether that ordinance constituted a valid exercise of the police power. While the courts are bound to accept the judgment of the legislative body concerning the necessity for zoning classifications, however, the courts may inquire as to whether or not a particular zoning classification bears a substantial relationship to the public health, safety, morals or general welfare. Bilbar Construction Co. v. Easttown Twp. Board of Adjustment, supra; Best v. Zoning Board of Adjustment, supra; Tidewater Oil Co. v. Poore, 395 Pa. 89, 149 A. 2d 636. Section 101 of the township ordinance provides, inter alia: “This ordinance is enacted for the purpose of promoting the health, safety, morals and the general welfare of the inhabitants of York Township . . . .” Included specifically among the objects of this ordinance are the elimination of conditions inimical to the community’s health and safety, the encouragément of the most appropriate use of land, the conservation of property values and aesthetic considerations. The burden was on appellants to show that the maintenance of their mobile home, improved as proposed, would not be- inimical to the “health, safety, morals and general welfare of the- inhabitants of York Township . . . .” The record shows that appellants’ mobile home is S' wide and 41' long and has, accordingly, 328 square feet of living space; a housing construction expert testified that the average conventional-dwelling house contains 720 square feet, but he classified appellants’ dwelling as “a small home, but not an extremely small one.” The interior height of their dwelling is T 2" and there is a structural steel frame with an exterior siding of aluminum; an expert witness compared the construction of the frame of appellants’ dwelling to that of a conventional home and declared them to be structurally similar. Likewise, the interior plywood covering on the walls and floor of appellants’ dwelling and the insulation between the exterior covering and the interior covering are basically similar to the building materials which would be used in a conventional dwelling house. The living space within the mobile home consists of a living room-dining room, a kitchen -with a double sink, hot and cold running water, a four-burner gas stove, a bathroom with a regular size bath tub, lavatory, commode and hot and cold running water. Appellants’ two children sleep in the 8' x 8' bedroom and appellants sleep on a roll-out bed in the adequately furnished living room. The mobile home- is equipped with city water facilities, electricity, telephone service, a septic tank located beneath the mobile home and a fuel oil heating unit and it presently rests on concrete blocks and is surrounded by two acres of land. Appellants have specifically requested the Township for permission to remove the wheels presently attached to the undercarriage of the mobile home and to place the structure on a concrete block foundation. Thus, the mobile home will be rendered immobile and will be permanently affixed to the block structure. A 12' x 15' cement patio with a 2' wall constructed on either side and an awning to cover the patio is planned. The record shows that this structure could be moved after these improvements are effected only with the same degree of difficulty and harm to the structure as would accompany the moving of a conventional dwelling house. Certain conclusions flow from this evidence. The question of what best serves the public interest is primarily a question for the decision of the appropriate legislative body in a given situation, but whether a zoning ordinance operates in an arbitrary, capricious, discriminatory or confiscatory manner as to the property in question calls for judicial determination: Bilbar Construction Co. v. Easttown Twp. Board of Adjustment, supra. In our opinion, a review of the record shows that the refusal to grant appellants permission to improve their mobile home is arbitrary and discriminatory. Only single family dwellings are allowed within the R-Residential District and, if appellants are permitted to go forward with their improvements, the resulting structure clearly would be a single family dwelling, albeit a small dwelling, within the definition of the ordinance. Their plans involve the removal of the mobile home’s undercarriage to which the wheels are attached and the bolting of the structure to a concrete block foundation and the proposed addition of a concrete patio covered by an aluminum awning clearly creates a fixed rather than a mobile structure. The record shows that the structural construction of this home differs from that of a conventional home only to the extent that it is of a smaller scale; The. degree of difficulty in physically moving the structure is the same.- Setting aside for the moment all' niceties of definition, appellants’ request envisions the maintenance of a permanent and immobile house within this residential area. In every other zoned district in York Township, a trailer or a mobile-home is to be considered a single family dwelling house merely by fiat of the ordinance's definition. It is arbitrary, therefore, to deny this status to a mobile home in an R-Residential area which in fact is no longer able to be drawn by a vehicle and to a mobile-home rendered structurally immobile. There is in this ordinance no restraint on the use of trailers or mobile-homes other than by way of definition and there is established no minimum square footage for all single family dwelling houses as has been held to be a valid zoning standard in this Commonwealth: Lower Merion Township v. Gallup, 158 Pa. Super. 572, 46 A.2d 35. On many occasions, a mobile home has been held, under the circumstances therein existing, to be a "dwelling" by the courts of this Commonwealth: Palumbo Appeal, 166 Pa. Super. 557, 72 A. 2d 789; Commonwealth v. McLaughlin, 168 Pa.Super. 442, 78 A. 2d 880; Commonwealth v. Helmuth, 73 Pa. D. & C. 370; Hunter v. Richter, 9 Pa. D. & C. 2d 58; Hickory Township v. Wooddell, 4 Mercer Co. L.J. 282. In the case at bar, we deem it most arbitrary to apply the classification of "trailer" to a structure which, when improved, will not be in fact a "trailer" as defined, expressly or impliedly, by the ordinance or by common sense. The Township was presumptively acting within -its delegated power when it classified mobile-homes differently than conventional homes. The record before us, however, does not show, directly or indirectly, any substantial reason for this differentiation in classification and the evidence shows clearly a condition free from health or safety hazards. The facilities in this home and its physical structure are clearly adequate and any dangers inherent in this dwelling would most likely be found in a conventional home of the same dimensions. If this is so, the zoning ordinance should apply to all dwellings of the same or similar size, irrespective of any differences in basic construction. The record before us does not show that the improvement of appellants’ dwelling will cause greater traffic congestion in York Township nor is there any showing that it will create a greater risk of fire danger than conventional dwellings. Nor does it reveal the contemplated performance of noxious activities on the property which would not be subject to restraint under the law of nuisance. The instant record, patently, does not show that the maintenance of this mobile home permanently affixed to the realty will be inimical in any manner to the health, safety, or morals of its occupants or to the possessors of adjoining property "in an “R-Residential” District: This Court may not speculate as to the Township’s reasons underlying this special classification but, in the absence of any evidence thereof, we are bound to hold that this classification .as it pertains to appellants’ requested improvement is arbitrary and discriminatory and unrelated to the police powers of the Township legislative body. ... Assuming that this zoning classification is unrelated to standards generally considered, such as- the public health, morals or safety, we must consider its relation to the “general welfare” of York Township. The only basis upon which the Township could justify the' exclusion of mobile homes from this área on' the ground of “general welfare” would bé that the presence of this mobile home would aesthetically injure the neighborhood or would lower the values of adjoining properties. However, on the posture of this record, neither element need receive our consideration. There is not a scintilla of evidence of an unfavorable aesthetic impact of a mobile home on this area while there is evidence that the location of this mobile home will enhance the value of the surrounding property. The Township argues that there is a presumption that the ordinance in question was enacted to preserve the beauty and property values of York Township. Thus, the Township would have us presume that the style or design of a mobile home per se detracts from the aesthetic characteristics of the community and, accordingly reduces neighboring property values and that a conventional dwelling house, no matter its unattractiveness, will not have the same effect. This is clear error. We are bound to look no further than the record before us. This record does not reveal whether appellants’ requested improvement will or will not enhance the aesthetic characteristics of the neighborhood and the only evidence relating to the concept of aesthetics is the testimony of a realtor to the effect that the improvement of appellants’ dwelling would hide an existing concrete block structure used as a hobby shop and to that extent aesthetically enhance the area. An expert testifying for appellants stated that the improved structure would increase the value of appellants’ property and that it “will tend to make it [the immediate area] more óf a residential area”. In effect, this testimony amounted to an expert’s opinion of the favorable impact of this property use on this immediate neighborhood. A party protesting the permit testified that he had heard that the value of adjoining properties had depreciated $2,000 since the placing of the mobile home on appellants’ property. This is not competent evidence that the improvement of such mobile home will adversely affect the property values of the entire com- infinity or the adjoining properties. See : Best v. Zoning Board of Adjustment, supra, p. 117. The absence of any evidence on this record relating to the preservation of aesthetic characteristics removes this element from our consideration as a proper exercise of the Township power to promote the general welfare. It has often been held that zoning ordinances must be enacted in accord with a comprehensive plan whereby the municipality may develop in an orderly manner (Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A. 2d 7) and that the provisions of an ordinance must be pertinent to the attainment of the objectives of the plan or be invalid (Whitpain Township v. Bodine, supra; Archbishop O'Hara's Appeal, supra; Menger v. Pass, 367 Pa. 432, 80 A. 2d 702; Swade v. Springfield Township Zoning Board of Adjustment, 392 Pa. 269, 140 A. 2d 597; Schmalz v. Buckingham Township Zoning Board of Adjustment, supra). A reading of the York Township ordinance of 1960 shows that the Township legislative body envisions that in the future the designated "R-Residential" district will remain agricultural with single family detached or semi-detached dwellings. In Schmalz v. Zoning Board of Adjustment, supra, at p. 302, it was stated: "We must determine the reasonableness of the regulation as it applies to conditions now existent." The record shows that the area presently surrounding appellants' property is a conglomeration of commercial, agricultural and residential properties. To the east and south of appellants' land is farm land upon which corn and wheat are grown. To the west are three properties: (1) land improved with a single family dwelling and truck garage upon which a baking business is conducted; (2) land upon which a dwelling is located together with a parking lot for trucks and farm equipment upon which ponies are raised and a landscaping business conducted; (3) land upon which a dwelling is located, two-story chicken coops housing 6,000 chickens, a stable for horses and ponies together with areas for pasturing ponies and sheep. The conclusion is inescapable that the township ordinance as it affects appellants' property and environs is attempting to develop an agricultural and residential area out of what is presently a commercial, agricultural and residential area. To argue that the improvement of appellants' mobile home will lower the character of the neighborhood by its nonconformance with adjoining properties is to argue against the physical facts revealed by this record. We are of the opinion that Section 704.1 of the York Township Zoning Ordinance of 1960 places an unreasonable, arbitrary and discriminatory restriction on appellants’ use of their property. The record does not show that this ordinance as it relates to this specific property is a proper exercise of the Township’s power to- regulate, through zoning, iii protection of public health, morals and safety or general welfare of the community. The order of the court below is reversed. The terms “trailers” or “mobile-homes” are used interchangeably in this opinion. The iustant ruling in no wise determines that aesthetics is or is not a factor in zoning.

Opinion by Mr. Justice Roberts, Appellees are state employees who filed complaints in the Court of Common Pleas of Dauphin County, sitting as the Commonwealth Court, seeking mandamus. The requested relief was for an order which would direct the members of the Civil Service Commission to grant hearings with respect to appellees’ contentions that their discharges from state employment were discriminatory and therefore in contravention of certain provisions of the Civil Service Act. Appellants-defendants are the three members of the Civil Service Commission. There is no dispute of fact in the case; the issue is one of statutory construction. Prior to August 27, 1963, appellees held regular (non-probationary) status under executive civil service in positions designated as professional or technical by the Executive Board of the Commonwealth. On that date, Act No. 520 became effective and appellees lost their regular status under executive civil service and acquired probationary status in the legislative (or classified) civil service system. In December 1963, appellees were separated from the classified service upon being notified that their work was “unsatisfactory”. The Civil Service Commission denied appel lees’ requests for hearings on the theory that probationary employees in appellees’ category lack any right of appeal, even if there is an allegation of discrimination. In plaintiffs’ mandamus actions the Commonwealth Court held that the Civil Service Act does permit appeals based on allegations of political discrimination, dismissed appellants’ preliminary objections to its jurisdiction, and granted appellees’ motions for summary judgments. The court ordered the Commission to hold public hearings in accordance with appellees’ requests. It is from these judgments that the present appeals have been taken. In arguing for the reversal of these judgments, appellants cite the language of §28(c) of the 1963 amendatory act, a section which concededly applies to appellees. The section provides that “any person serving such probationary period may, at any time within such period . . . upon written notification of unsatisfactory work ... be separated from classified service without the right of appeal.” Appellants would have us construe the phrase “without the right of appeal” so as to prohibit not only appeals based upon “unsatisfactory work”, but also appeals based upon allegations of discrimination. Appellees, on the other hand, urge that §28(c) does not negate the rights conferred by other sections of the Civil Service Act. They point to §951 (b) which provides that “any person who is aggrieved by an alleged violation of §905.1 of this act may appeal in writing to the commission within 20 calendar days of the al leged violation.” In turn, §905.1 provides: “No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention, or any other personnel action with respect to the classified service because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin, or other non-merit factors.” It is clear that the plain language of §§951 (b) and 905.1 is broad enough to confer upon appellees a right of appeal in the present case. This is especially apparent in light of §951 (a) which involves appeals to the Commission with respect to a different subject matter. The language of the latter section illustrates that where the Legislature intended to preclude appeals by persons who had not yet emerged from probationary status, it left no room for conjecture. Thus, only a “regular employe” (defined by §3(k) as “an employe who has been appointed to a position in the classified service in accordance with this act after completing his probationary period”) has standing to appeal matters within the scope of §951 (a). In contrast, §951 (b) contains no language which would preclude appeals by probationary employees. Even further, the subject matter of §951 (b) encompasses discrimination against “any person” with regard to “recruitment, examination, appointment, training, promotion, retention, or any other personnel action.” Surely, the legislative designation, “any person”, in the context and purpose of this enactment, is broad enough to include not only regular, but also probationary employees. From an examination of the history and provisions of the 1963 amendatory act, there also emerges a legislative purpose to treat appellees in the same manner as other probationary employees previously covered by the classified system. As we have noted, before passage of the Act, the Executive Board of the Commonwealth had directed various departments, boards, and commissions to enter into agreements with the Commission to administer the provisions of the Civil Service Act with respect to the employees of such governmental agencies, thus creating what has come to be known as executive civil service. The effect of such action was to bring within the coverage of this particular form of civil service many state employees, including appellees, who had previously enjoyed no protection from dismissal with or without cause. The 1963 amendatory act expanded the classified (legislative) service so as to include employees previously under executive civil service, while at the same time conferring upon them probationary status irrespective of any regular status previously held in the executive system. In the case of appellees, their status as probationary employees under the classified service is clearly established by two sections. Section 3(d) (13) which defines classified service as including “all positions now existing or hereafter created in any department or agency under the Governor’s jurisdiction which . . . were designated as professional or technical by the Executive Board of the Commonwealth on or before October 1, 1962 . . . .” Further, §28 (a) provides that “any person who [on August 27, 1963] held regular or probationary status in a position in the classified service, as defined in section 3(d) (13) . . . shall, except as hereinafter provided, serve the maximum probationary period authorized by section 603 as amended by this amendatory act . . . .” It is in the light of the general legislative purposes to treat those, including appellees, who were being incorporated into the classified system as probationary employees, and to permit appeals by any person aggrieved by violations of §905.1, that we must view appellant’s contention that §2.8(c) deprives appellees of the benefits of §951 (b). Nothing in the language of §28 (c) compels such a conclusion, and the subject matter of that section is concerned with separation for unsatisfactory work and is therefore completely unrelated to the subject matter of §951 (b) which provides for a hearing for any person alleging discrimination under §905.1. Furthermore, the language of §28(c) implements the legislative purpose to treat appellees and others being transferred into the legislative system in the same manner as other probationary employees in that the latter may also be separated by virtue of unsatisfactory work without the right of appeal. Moreover, construction of §28(c) so as to preclude appeals under §951 (b) in the present case would compel us to attribute to the Legislature an intention to deprive persons in appellees’ category of the opportunity to have heard not only contentions as to political discrimination, but also as to claimed discrimination because of race, religion, national origins or labor af filiation. In the absence of explicit language or of other convincing evidence of legislative purpose to the contrary, we may not conclude that the Legislature intended a result which would be contrary to the entire purpose of the merit system and which would negate its expressed disapproval of discriminatory considerations. The court below aptly and convincingly noted: “There is no suggestion within . . . the 1963 amendatory act . . . that the legislature intended former executive civil service employes who were brought within the aegis of the classified service as employes with probationary status to have any fewer rights than those enjoyed by probationary employes historically under the classified service.” Appellants contend that it is impossible to reconcile the rulings of the court below. The rulings are alleged to be contradictory in holding that although appellees may not appeal the “unsatisfactory work” determination of the appointing authority, nevertheless they are entitled to a hearing on the basis of alleged discrimination and to reinstatement if their dismissals are found to be based upon discriminatory factors. What the Act permits is for each appellee to challenge his dismissal by specifically reciting the basis underlying his claim of discrimination and thereafter factually substantiating that claim upon hearing. If the complainant cannot sustain his allegations of discrimination, then his dismissal must stand without any right of appeal as to the validity of the determination of unsatisfactory work performance. Furthermore, we must note that the suggested difficulty which appellants perceive in reconciling the provisions referred to would not be confined to appeals sought by persons in the category of appellees but would exist under the Civil Service Act with respect to all persons having probationary status. We believe that the court below correctly interpreted the statutory provisions involved and that appellees’ rights to mandamus are clear. Judgments affirmed. The original statute was the Act of August 5, 1941, P. L. 752, and that Act has been amended a number of times, most recently by the Act of August 27, 1963, P. L. 1257, 71 P.S. §741.1 et seq. (Supp. 1964). Section 212 of the Act of August 5, 1941, P. L. 752, amended by Act of May 21, 1943, P. L. 516, §1, 71 P.S. §741.212, makes it possible for the services of the Civil Service Commission to be made available to governmental groups not otherwise subject to the Civil Service Act. The Executive Board of the Commonwealth has at various times directed certain governmental departments, boards and commissions to enter into agreements with the Commission. The coverage thus provided came to be known as “executive civil service”. Act of August 27, 1963, P. L. 1257, 71 P.S. §741.1 et seq. (Supp. 1964) [hereafter, 1963 amendatory act], The 1963 amendatory act was designed to bring within the ambit of the classified (or legislative) civil service system employees who were previously covered only by the so-called executive system, a protection whieh could be withdrawn by executive action. But as a condition to this transfer, those who held “regular” (non-probationary) status in the executive system were required to assume probationary status in the classified (legislative) civil service system. 83 Dauph. 125 (1964). 1963 amendatory act, §28(c), 71 P.S. §741.1005(c) (Supp. 1964). Added by 1963 amendatory act, §27, 71 P.S. §741.951 (b) (Supp. 1964). Added by 1963 amendatory act, §25, 71 P.S. §741.905a (Supp. 1964). Added by 1963 amendatory act, §27, 71 P.S. §741.951 (a) (Supp. 1964). . 1963 amendatory act, §1, 71 P.S. §741.3(k) (Supp. 1964). The term is not specifically defined in tbe statute. Added by 1963 amendatory aet, §1, 71 P.S. §741.3(d) (13) (Supp. 1964). 1963 amendatory aet, §28(a), 71 P.S. §741.1005(a) (Supp. 1964). Section 603, 71 P.S. §741.603 (Supp. 1964), in part, provides: “The probationary period for each class of position shall be prescribed in the rules of the commission and shall in no ease be less than six months or more than eighteen months.” (Footnote ours.) Significantly, the legislative intention to treat appellees in the same manner as others who were already probationary employees in the classified service is confirmed by this reference to §603, 71 P.S. §741.603 (Supp. 1964), which deals broadly with all such employees under the Civil Service Act. 83 Dauphin Co. Rep. at 134.

Opinion, Mr. Justice Clark: The plaintiff, Jeremiah A. Hughes, was, at the time he received the injury complained of, on September 29, 1871, a brakeman in the employ of the Philadelphia & Reading Railroad Company, and in the performance of his duty as such employee. There was therefore, in the mere fact of the injury, no presumption of negligence on the part of the company, as in the case of a passenger; the burden of proving negligence rested upon the plaintiff. It was the duty of the company to exercise ordinary care in adopting, providing and maintaining safe cars, with suitable appliances and machinery, with which the plaintiff might transact the business of the company within the line of his duty; not the very best machinery which could be procured, or that which combined the latest device or improvement, as a precaution against danger, but such as was reasonably safe, and in common use. It was the duty of the company also to use ordinary and reasonable care in the employment of his fellow-servants or employees, and to dismiss any of these whom they might know, or in the exercise of ordinary diligence should have known, to be careless, or unfit for the places assigned them. On the other hand, the plaintiff will be understood to have assumed not only all the risks incident to his employment, but also those arising from the negligence of his fellow employees in the same circle of employment. Moreover, as we said in Rummell v. Dilworth, 111 Pa. 343: “If a person specially undertake to perform a peculiarly perilous work, by operating a machine obviously wanting in suitable appliances for safety, knowingly and voluntarily, he cannot after-wards complain, in case of injury in consequence thereof, that the machinery was of a dangerous kind, and that it was wanting in appliances reasonably necessary to render it safe. So, upon an analogous principle, if an employee, after having a full and fair opportunity to become acquainted with the risk of his situation, makes no complaint whatever to his employer as to the machinery which he knows to be wanting in appliances for safety, takes no precaution to guard against danger, but, accepting the risks, voluntarily continues in the performance of his duties, he cannot complain if he is subsequently injured by such exposure.” Now, it is conceded that the brakes upon all the Mine Hill cars were of the kind which caused the injury; that the difference in their construction from others in use was open and obvious; that Hughes had been a brakeman on these cars for three years and upwards, and that if the operation of this brake was peculiarly perilous, he knew, or by reason of his long experience ought to have known, the fact. He admits f that he made no complaint whatever, and that he continued in the company’s service; the inference is irresistible, therefore, that he accepted the risks incident to this particular employment. He was not bound to risk his safety in the service of the company, and if he knew the brakes to be wanting in any appliance which would be a precaution against danger, it was his duty to decline to operate them. Having undertaken the performance of duties he knew to be hazardous, he assumed the risks incident to their discharge. In this view of the case, the peculiar construction of the brakes was a matter of little importance; the main question of difficulty arises out of the fact that when Hughes stepped upon the brake, the iron pin, which passed through the fork at the lower end and formed the fulcrum of the lever which held the brake block in place, either broke or dropped out, and Hughes fell to the ground and under the wheels. This pin was ordinarily kept in place by a key, but as neither the pin nor the key was afterwards found, it is impossible to state from what cause the accident occurred, whether the pin was broken, or whether it fell out from some defect or displacement of the key. There is some evidence that this car, No. 7, had been rebuilt shortly before the occurrence. The negligence of the company in the rebudding of the car is not to be presumed. The presumption is that the pin was made of proper materials, and that presumption is greatly strengthened by the testimony of Daniel Grimm, the blacksmith, who says that it was made of good iron and was properly adjusted and secured when it left the shop. Upon a careful examination of the testimony, we fail to find the slightest proof that the iron in this pin was bad; and there was literally no evidence to justify the jury in coming to any such conclusion. We do not even know that the pin broke; it may have fallen out. The key may have been removed; the evidence shows that they are sometimes taken out and imperfectly replaced. The jury would not have been justified in determining that the pin was of bad iron upon mere conjecture. We think the court should not have referred this question to the jury; the presumptions and the proof were all to the effect that the iron was good, and the jury should have been so instructed. We are of opinion that the defendants’ fifth point should have been affirmed without qualification. The second specification of error raises the question, whether or not there was any evidence that the company failed to furnish and maintain suitable tools and appliances for the use of the plaintiff. There was no evidence, as we have said, aside from the peculiar construction of the brake, that the car was imperfectly constructed. But the point which was refused involves also the question of proper inspection and repair. It is undoubtedly the duty of railroad companies to exercise ordinary care in the maintenance of the machinery and tools which they put into the hands of their employees, and to institute proper reasonable regulations for the safety of their employees in this respect; but this rule of duty must be taken in a practicable and reasonable sense. The company does not insure the life of its employees; the servant assumes, as we have said, the ordinary risks of his employment, and if any defect in the tools or machinery placed in his hands becomes apparent hi their use, it is the duty of the servant to observe and report to his employers, for the servant has means of discovering defects, which the master may not possess. If, however, the company employ competent and skilful persons for the purpose of inspection, and afford them reasonable opportunities and facilities for the work under proper instructions, the company will not ordinarily be liable for the negligent performance of the work by their employees, to a fellow employee, unless the com-, pany knew, or by ordinary diligence ought to have known, of the defective manner in which the inspection was conducted. We are clearly of opinion, too, that a brakeman and a car inspector are in the same circle of appointment; they co-operate in the same business, and the former knows that the employment of the latter is one of the incidents of their common service. But whilst the performance of the duty of inspection must necessarily be committed in detail to tbe employees, tbe general regulation is in the hands of the company, and it is the duty of the company to provide suitable persons, in sufficient numbers, at proper places, with reasonable opportunities to accomplish the work. The evidence would seem to show that there were three points for the inspection of these cars within twenty miles; at Schuylkill Haven, where the empty cars were inspected on their way to the mines, on the Gordon Plane, and at Cressona, where the loaded ears were inspected as they came from the mines; besides other alleged inspections to which the cars were subjected at the coal chutes, and by Daniel Grimm, who, it is said, had these cars in his special charge. The inspections at these points were not minute or critical; they were limited to a hurried examination of the most exposed and important points; the cars were subjected to a thorough examination only when turned into the shop for repairs. Whether this provision of the company in view of the heavy grades along the road, and the number of cars to be inspected, was a reasonably adequate one, would, if the question were material, be for the determination of the jury. It is absurd, however, to suppose that in these inspections the company was required to remove the bolts, screws, pins, or other appliances belonging to the machinery of a car, en route, in order to detect any possible imperfections. A railroad or other employer is not required to exercise that exquisite and exhaustive care in the constant examination and overhauling of its machinery and works, which would be incompatible with the proper furtherance of business: Whart. on Neg., 213. But is there any evidence that the injury complained of was attributable .to a negligent inspection ? Was there any defect in this brake which any reasonable provision for inspection would have disclosed? Bearing in mind that the burden of proof rests upon the plaintiff, is there any evidence that the pin was defective ? It was properly constructed; it was of the size used in all the brakes; the proof as well as the presumption is that the iron was good, or was believed to be good. It was properly secured by a key, and had been in use for several months. It is conceded that the brake was in proper condition on the grade above Minersville, and the accident occurred, as we understand the ease, only three or four miles distant from that place, whilst the next place of inspection was at Cressona, a short distance below. But, if the iron was bad, was the defect such as might have been detected upon any reasonable inspection? Was it such a defect even as could have been observed if the pin had actually been withdrawn and examined ; or was the defect latent, such as could not have been observed? Did the pin break at all? If it did, was it the result of accident or negligence ? If the pin did not break, says the plaintiff, it fell out from displacement of the key. Is there any evidence that the key had fallen out or been removed? Was the jury to guess at the real facts of the case and to determine these questions of fact upon mere conjecture ? The plaintiff undertook to trace the injury to the negligence of the company, and until he can show some negligent act which was the proximate cause of his injury, he cannot recover. We know that when Hughes stepped on the brake with his whole weight it went down, and that he went with it. But whether the pin broke from any defect which a proper inspection would have disclosed, does not appear; that it broke at all is not shown; nor is there any evidence that the occurrence was owing to a dislocation of the key. It devolved upon the plaintiff to show negligence of the company, and that that negligence was the proximate cause of the injury. In this he has failed, and in the absence of proof on that point we cannot ascribe the accident to that cause. The judgment is reversed.

OPINION Justice SAYLOR. We allowed appeal to consider whether, as a component of a claim of ineffective assistance of an attorney for failing to submit a court-ordered statement of matters complained of on appeal, a post-conviction petitioner must demonstrate actual prejudice as a prerequisite to reinstatement of his direct appeal rights. In April of 1998, Appellant participated in a killing in the Upper Kensington neighborhood of Philadelphia. Following a bench trial in which he and a co-defendant were convicted of first-degree murder, aggravated assault, possessing an instrument of crime, and criminal conspiracy, Appellant was sentenced, inter alia, to life imprisonment. Appellant’s court-appointed counsel filed a timely notice of appeal, triggering an obligation on the part of the trial court to prepare an opinion, see Pa.R.A.P.1925(a), and the court correspondingly directed Appellant to file a statement of matters complained of on appeal, pursuant to Rule of Appellate Procedure 1925(b). See Pa.R.A.P.1925(b) (prescribing, inter alia, that “[t]he lower court ... may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order”). Appellant’s counsel, however, failed to file the statement as directed. The trial court subsequently issued its opinion without the benefit of the statement that it had required, undertaking to review the evidence and concluding that it was sufficient to support the verdict. See Commonwealth v. Halley, No. 9810-0186 (C.P.Phila. Nov.9,1999). Notwithstanding counsel’s failure to submit a Rule 1925(b) statement, he filed a brief on the merits in the Superior Court, asserting that the evidence was insufficient to support the verdict, and that the verdict was against the weight of the evidence. In an unpublished decision, however, the Superior Court held that it was precluded from considering Appellant’s arguments due to the absence of a Rule 1925(b) statement. See Commonwealth v. Halley, No. 9810-0186, slip op. at 1-2 (Pa.Super.Jul.24, 2000). In support of its decision, the panel quoted this Court’s decision in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), as follows: [F |rom this date forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived. Halley, No. 9810-0186, slip op. at 4 (quoting Lord, 553 Pa. at 420, 719 A.2d at 309) (emphasis in original). In a footnote, the panel also indicated that, had the issue not been waived, it would have agreed with the trial court’s disposition. See id. at 2 n. 5. Appellant did not seek allowance of appeal by this Court. Subsequently, and with the assistance of new counsel, Appellant pursued reinstatement of his direct appeal rights under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (the “PCRA”), on the theory that his prior attorney was ineffective for failing to file a Rule 1925 statement, thus resulting in the waiver of his claims on direct appeal. In terms of substantive claims for relief from his conviction and sentence, Appellant reasserted his sufficiency-of-the-evidence challenge (except with respect to his conviction for possessing an instrument of crime), and, in the alternative, proffered several other arguments in support of a request for a new trial. On the Commonwealth’s motion, however, the PCRA court dismissed Appellant’s post-conviction petition without a hearing, noting that “[Appellant] has had a direct appeal and is not entitled to another.” Commonwealth v. Halley, No. 9810-0186, slip op. at 2 (C.P.Phila.Jan.21, 2003). The court acknowledged that Appellant’s weight- and sufficiency-of-the-evidence claims were deemed waived on direct appeal, and that waived claims may be considered on post-conviction review as a component of allegations of deficient stewardship of counsel resulting in the waiver. Id. at 2-3 (citing 42 Pa.C.S. § 9543(a)(4)). Nevertheless, after reviewing the trial record and post-conviction submission, the court determined that Appellant’s claims were meritless. On appeal, Appellant refined his argument seeking reinstatement of his direct appeal rights to specifically assert that his attorney’s failure to protect his appellate rights amounted to an actual or constructive denial of counsel, and as such, that Appellant was entitled to a presumption of prejudice. In this regard, Appellant’s argument implicates this Court’s decision in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), which approved such a presumption in the context of an unjustified failure to file a requested direct appeal, reasoning as follows: [W]here there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well as the right to direct appeal under Article V, Section 9, and constitutes prejudice for the purposes of Section 9543(a)(2)(ii). Therefore, in such circumstances, and where the remaining requirements of the PCRA are established, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal. Lantzy, 558 Pa. at 226-27, 736 A.2d at 572 (footnote omitted). In a published opinion, the Superior Court rejected Appellant’s effort to extend Lantzy from the setting of an unjustified failure to file a direct appeal to the context of a failure to file a Rule 1925(b) statement. See Commonwealth v. Halley, 839 A.2d 392, 395 (Pa.Super.2003). In this regard, the court noted that an appeal was actually filed on Appellant’s behalf. While recognizing that the appeal did not result in substantive review of Appellant’s claims for relief due to the finding of waiver, the Superior Court expressed the concern that the circumstances under which a petitioner could claim an absence of an effective appeal were limitless. Moreover, it observed that this Court had identified only one other limited circumstance in which counsel’s inaction would result in a presumption of prejudice, namely, the failure to file a requested petition for allowance of appeal. See Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003). Thus, the court reviewed Appellant’s claims under the traditional, three-part test for ineffectiveness, see supra note 1, including the requirement to establish actual prejudice, finding that Appellant was not entitled to relief. See Halley, 839 A.2d at 396-98. We allowed appeal to consider Appellant’s argument that presumed prejudice should pertain. In this regard, Appellant’s present arguments track those that he asserted in the Superior Court. The Commonwealth, on the other hand, contends that the Superior Court should not have addressed Appellant’s position concerning presumed prejudice, because it was not raised before the PCRA court. Therefore, the Com monwealth views that position as waived. Alternatively, the Commonwealth argues that presumed prejudice is inappropriate in the present context. The Commonwealth posits that the Court should be guided by its prior decision in Commonwealth v. Johnson, 565 Pa. 51, 771 A.2d 751 (2001) (plurality), in which a plurality of Justices applied the three-pronged ineffectiveness test in spite of a contention that counsel was ineffective for failing to preserve certain claims in a 1925(b) statement. The Commonwealth acknowledges that, in Johnson, the appellant was not completely denied a direct appeal because other issues were preserved in the 1925(b) statement. Nevertheless, the Commonwealth argues that this represents a distinction without a difference. Further, the Commonwealth endorses the Superior Court’s rationale centered on the fact that Appellant was permitted to avail himself of the direct appeal procedure, albeit that waiver was ultimately invoked to foreclose merits review. At the outset, we reject the Commonwealth’s assertion of waiver relative to Appellant’s present position by virtue of his asserted failure to advance it in his post-conviction petition. Appellant’s petition contained the allegation that: The petitioner was prejudiced as a result of trial counsel’s failure to preserve issues for appellate review by complying with the trial court’s Order directing the filing of a Statement of Matters Complained of on Appeal since he was denied appellate review of this issue. Petition for Relief Under the Post Conviction Relief Act With Consolidated Memorandum of Law at ¶ 61. The claim that denial of merits review on direct appeal on account of counsel’s deficient stewardship constitutes prejudice is, for all intents and purposes, the functional equivalent of the presumed prejudice concept considered in Lantzy. Moreover, in advancing the claim that post-conviction relief is appropriate where the petitioner establishes that he has been denied appellate review as a result of his counsel’s actions, Appellant cited Commonwealth v. Hernandez, 755 A.2d 1 (Pa.Super.2000), aff'd in part, 572 Pa. 477, 817 A.2d 479 (2003), which discusses the concept of presumed prejudice and Lantzy at length. See id. at 5-9. Under the circumstances, although Appellant’s position before the common pleas court was wanting in terms of the development which has later occurred on appellate review, we find that it was within the Superior Court’s prerogative to treat the issue as preserved. On the merits, extension of Lantzy from the situation entailing the failure to file a requested direct appeal to the circumstance involving the failure to file a Rule 1925(b) statement represents but a modest and incremental step. Indeed, while certainly the holding of any decision is to be read against the facts, Lantzy’s reasoning expressly subsumed not only the unjustified failure to file a requested direct appeal, but also, the failure to perfect the appeal. See Lantzy, 558 Pa. at 225, 736 A.2d at 571 (indicating that “a failure to file or perfect such an appeal results in a denial so fundamental as to constitute prejudice per se ” (emphasis added)). Since Lord establishes that the submission of a court-ordered Rule 1925(b) statement is a prerequisite to appellate merits review, see Lord, 553 Pa. at 417-20, 719 A.2d at 307-09, the Rule 1925(b) statement (when directed) is elemental to an effective perfection of the appeal. See Black’s Law Dictionary 1173 (8th ed.2004) (defining the act of perfecting as “tak[ing] all [the] legal steps necessary to complete, secure, or record a claim, right, or interest”). Thus, Lantzy’s reasoning applies by its terms to counsel’s dereliction in this case, which left Appellant without an ability to challenge his conviction and sentence by means of the direct appeal. Accord Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S.Ct. 1029, 1039, 145 L.Ed.2d 985 (2000) (indicating that “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal”). We are also not persuaded by the Superior Court’s and the Commonwealth’s efforts to equate the present circumstances with situations in which a Rule 1925(b) statement is filed, but the statement is later alleged to have omitted meritorious issues. In this regard, it is well established that the decision whether to presume prejudice or to require an appellant to demonstrate actual prejudice “turns on the magnitude of the deprivation of the right to effective assistance of counsel.” Flores-Ortega, 528 U.S. at 482, 120 S.Ct. at 1037. As we observed in Lantzy, the failure to perfect a requested direct appeal is the functional equivalent of having no repre sentation at all. Id. at 225, 736 A.2d at 571 (citing Evitts, 469 U.S. at 394 n. 6, 105 S.Ct. at 835 n. 6 (1985)); see also Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (holding that the complete denial of counsel on direct appeal requires a finding of prejudice). The difference in degree between failures that completely foreclose appellate review, and those which may result in narrowing its ambit, justifies application of the presumption in the more extreme instance. Accord Hernandez, 755 A.2d at 9 n. 4 (“[A] PCRA petitioner is entitled to an appeal nunc pro tunc where prior counsel’s actions, in effect, entirely denied his right to a direct appeal, as opposed to a PCRA petitioner whose prior counsel’s ineffectiveness may have waived one or more, but not all, issues on direct appeal.”). Furthermore, the limiting principle arising from the recognition of such difference in degree addresses the Superior Court’s concern that the presumption should not extend to every circumstance in which a defendant may claim no effective appeal. We hold that the failure to file a Rule 1925(b) statement on behalf of a criminal defendant seeking to appeal his conviction and/or sentence, resulting in a waiver of all claims asserted on direct appeal, represents the sort of actual or constructive denial of assistance of counsel falling within the narrow category of circumstances in which prejudice is legally presumed. As indicated in Lantzy, the remedy for the deprivation of the fundamental right to appeal is its restoration. See Lantzy, 558 Pa. at 228, 736 A.2d at 572-73. The order of the Superior Court is reversed, and the case is remanded for reinstatement of Appellant’s entitlement to pursue a direct appeal. . The traditional requirements for relief pertaining to claims of ineffective assistance of counsel mandate that the petitioner establish actual prejudice (in terms of undermining confidence in the outcome of his trial), as well as the arguable merit of the underlying claim and an absence of some reasonable strategy on counsel’s part in terms of the act or omission resulting in the underlying claim not having been previously advanced or vindicated. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-77 (1987). . On consideration of an order denying post-conviction relief, the appellate review centers on an examination of whether the evidence of record supports the PCRA court's ruling and whether such ruling is free from legal error. See Commonwealth v. Carpenter, 555 Pa. 434, 445, 725 A.2d 154, 159-60 (1999). . This Court has allowed appeal in Commonwealth v. Schofield, 580 Pa. 4, 858 A.2d 1157 (2004), to reconsider Lord's strict waiver rule. Unless and until the Court modifies Lord’s holding, however, it remains controlling law. . See also Johnson v. Champion, 288 F.3d 1215, 1230 (10th Cir.2002) (explaining that "the negligent failure to perfect an appeal ‘amount[s] to a complete denial of assistance of counsel during a critical stage’ of the criminal proceedings” (citation omitted)); McHale v. United States, 175 F.3d 115, 119 (2d Cir.1999) (holding that where counsel has failed to file or perfect an appeal despite the defendant's request, "it is clear that the [defendant] need not demonstrate that, but for the ineffectiveness of counsel, such an appeal would have succeeded or even would have merit”); Jones v. Cowley, 28 F.3d 1067, 1073 (10th Cir.1994) (holding that prejudice should be presumed where counsel filed notice of appeal but failed to perfect the direct appeal); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir.1992) (appellate counsel's failure to perfect an appeal created "no doubt that the appellant here was deprived of his constitutional right to appeal because of the dereliction of counsel [and appellant] does not have to show that there are meritorious issues to be appealed”); Edwards v. United States, 246 F.Supp.2d 911, 915 (E.D.Tenn.2003) ("Prejudice is presumed in cases where counsel initially files an appeal but later fails to prosecute the appeal, causing it to be dismissed.”); Wallace v. State, 121 S.W.3d 652, 660 (Tenn.2003) (counsel's inaction resulting in a waiver of all issues on appeal was presumptively prejudicial); People v. Rivera, 342 Ill.App.3d 547, 277 Ill.Dec. 348, 795 N.E.2d 1016, 1019 (2003) ("A defendant whose lawyer fails to perfect an appeal does not have to show prejudice beyond the fact that he lost his right to appeal.”); Langston v. State, 341 Ark. 739, 19 S.W.3d 619, 621 (2000) ("There is a presumption of prejudice arising from the failure of counsel to perfect an appeal if counsel's deficient performance led to the forfeiture of the convicted defendant’s right to pursue a direct appeal.”); State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000) (counsel's failure to perfect appeal, after filing notice of appeal, constituted prejudice per se). Cf. Evitts v. Lucey, 469 U.S. 387, 399-400, 105 S.Ct. 830, 838, 83 L.Ed.2d 821 (1985) ("A system of appeal as of right is established precisely to assure that only those who are validly convicted have their freedom drastically curtailed. A State may not extinguish this right because another right of the appellant—the right to effective assistance of counsel—has been violated.”). We also observe that counsel's dereliction in the context of a failure to file a court-ordered Rule 1925(b) statement, in contrast with the failure to file a requested direct appeal, is contemptuous relative to the court's power. . We are cognizant that both the PCRA court and the Superior Court have conducted merits review of Appellant’s underlying claims and found no basis for relief. Although our decision here will thus result in duplicative review in Appellant's particular circumstance, the necessary review does not appear to be burdensome, and this case was not selected to determine whether an alternative procedure might serve as an adequate substitute to vindicate a criminal defendant's constitutionally guaranteed right to a direct appeal. See PA. Const, art. V, § 9.

Opinion, Mr. Justice Sterrett: This suit was brought against appellant to enforce payment of the cost of re-paving Ninth street from Race to Sergeant street, in the city of Philadelphia, with interest thereon. The city authorities, having determined that it was necessary to repave that portion of Ninth street, and claiming that appellant company, under its charter and contract obligations, was bound to do the work at its own expense, notified it to do so. The company denied its obligation, and refused to re-pave. The city then advertised for bids, awarded the contract to the lowest bidder, and the work was done at the cost of and was paid for by the city. There was no question as to the amount of the claim. The sole contention was in regard to appellant’s liability, and that depended on the questions of law and fact involved. They were determined in favor of the city, and a verdict in her favor for $1,026.50 was rendered. From the judgment entered on that verdict this appeal was taken. After the cause was at issue, but before it was called for trial, the defendant company presented a petition, signed and affirmed to by its president, setting forth: “ That this action is for the cost of re-paving certain streets of the city of Philadelphia with an alleged improved pavement, and not only involves a very large sum directly in controversy in this case, but will be a precedent, and possibly an adjudication and estoppel for similar claims in the near future against this company amounting to many hundreds of thousands of dollars; and, in addition thereto, will greatly affect similar litigation and claims against other railway companies in this city, amounting in the aggregate to millions of dollars. “And your petitioner further shows that the plaintiff is a municipality in this county and is coterminous with the county, and that public attention has been attracted, to an unusual extent, to the claim which is the subject-matter of the suit; that a large number of the inhabitants of this county have an inter est in the question involved adverse to petitioner; that there are issues of fact as well as of law to be tried; and that local prejudice exists, and a fair trial cannot be had in this county. “Wherefore your petitioner prays for a change of venue herein.” That application was refused, and the trial proceeded before the learned president of Common Pleas No. 1. The refusal to grant the application for a change of venue is the subject of complaint in the first and second specifications. In § 23 of article III., our constitution declares: “ The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law.” The act of March 30, 1875, passed to carry that provision into effect, provides: “ §1. That changes of venue shall be made in any civil cause in law or equity depending in any of the courts of this commonwealth in the cases following, to wit: 1. “Whenever the judge, who by law is required to try or hear the same, shall be personally interested in the event of such cause, or in the question to be determined thereby. 2. “ Whenever the title under which the parties, or either of them, claim in any such cause, shall have been derived from or through such judge, and he shall be liable thereunder, or whenever he shall hold under the same title with either of the parties in the said cause. 3. “Whenever any near relative of such judge shall be a party to any s,uch cause or interested in the event thereof. 4. “ Whenever the county in which such cause is pending, or any municipality therein, or the officials of any such county or municipality are parties thereto, and it shall appear by the oath of the party desiring such change of venue that local prejudice exists, and that a fair trial cannot be had in such county. 5. “ Whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein adverse to the applicant, and it shall appear by the oath of such applicant that he believes he cannot have a fair and impartial trial. “ § 2. The applicant for any such change of venue may apply to the court in term time, or to any law judge thereof in vacation, by petition setting forth the cause of the application, which shall be accompanied by his affidavit of the truth of the facts alleged therein, and that the said application is not made for the purpose of delay and praying a change of venue; and, after reasonable notice thereof having been given to the opposite party or his attorney, the said court or judge shall, if satisfied of the truth of the facts alleged, award a change of venue of the said cause to some county where the cause complained of does not exist.” The first three paragraphs above quoted are inapplicable to this case. The reasons assigned in the petition are not within the purview of either. They are solely within that of the fourth and fifth paragraphs, one of which provides for a change of venue when it shall appear “ that local prejudice exists and that a fair trial cannot be had,” and the other when “ it shall appear by the oath of such applicant that he believes he cannot have a fair and impartial trial.” To whom must these matters appear ? Certainly, not to any one save the court or judge who passes upon the application. It was never intended that the mere statement of facts coming within the purview of either of these two paragraphs, should of itself entitle the petitioner to a change of venue. The act requires more than the mere making of the affidavit. It means that the statements set forth shall be true ; that their truth shall appear to the court or judge who hears the application, and, further, that, by -reason thereof, a fair and impartial trial cannot be had. In the second section of the act, after stating to whom the application shall be made, what it shall set forth, etc., it is provided that “ the said court or judge shall, if satisfied of the truth of the facts alleged, award a change of venue,” etc. It is very evident from this that it is not enough that the applicant be convinced of the truth of what he alleges; tire court or judge must be satisfied of their truth. If all others concerned are fully satisfied of their truth, and the court or judge is not, the change of venue should not, and cannot, consistently with the letter as well as the spirit of the act, be made. Nobody can for a moment doubt that the learned president of the court below was not satisfied. If he had been, he would have granted the application. We are quite clear that there is nothing in the record that would justify us in sustaining either the first or second specification. The third, sixteenth, and seventeenth specifications of error -may be considered together. The first of these is to the admission in evidence of the agreement of the Girard College Passenger Railway, executed July 29, 1858. The others are to the answers of the court to defendant’s sixth point, which point is as follows : “ The city councils had no authority to make their approval to the laying of defendant’s railway conditioned upon their entering into a written obligation to observe and be subject to all the ordinances of the city, in relation to passenger railways, then in force or thereafter to be passed! The agreement thus compelled to be signed by the defendants did not bind them, so far as it exceeded the authority of the city to impose conditions.” The agreement referred to was rightly admitted in connection with the agreement of merger between that company and the Ridge Avenue & Manayunk Passenger Railway Company, which were consolidated in January, 1872, and thereafter known as the Ridge Avenue Passenger Railway Company, the appellant, the ordinance of July 7, 1857, referred to in the charter of said Girard College Passenger Railway Company, and other evidence. In refusing to affirm defendant’s sixth point, above quoted, the learned judge correctly said : “ The city had a right to impose that condition upon the corporation before it could enter upon the streets and lay its track upon them. The act of assembly made the consent of the city to the exercise of that power by the company, a prerequisite to the right to use the streets of the city for the purpose of constructing upon “them, the streets defined in the act, a city-passenger railway; and, if the city had a right to refuse or consent, it had a right to say upon what terms it would consent, and upon what terms it would refuse. Perhaps, if the question were raised by the city, with the view of preventing the exercise of this power under the act, that it had imposed impossible conditions on the railway company, that might be held to be an exercise of authority not warranted by law; but the condition which is here imposed, and which is the one to which this point is directed, I hold was not an impossible con dition nor an unreasonable condition, and therefore I decline to affirm this proposition.” The agreement, binding the company to “ observe and be subject to all ordinances of said city in reference to passenger railways, now in force or hereafter passed,” was the voluntary act of the company. It was executed and filed pursuant to the unanimous direction of the stockholders,„and has stood unchallenged from 1858 until this contention arose. But, as we shall see presently, that agreement has little if any effect on the liability of the company, so far as the matter involved in this contention is concerned. It is a mistake to suppose that, if that agreement can be repudiated, the company is at liberty to ignore the provisions of the ordinance of December 12, 1881, forbidding the paving, with cobble or rubble, except between tracks of railways, etc. The contention of the defendant as to the invalidity of the agreement, under consideration, is not sustained by anything that was decided in Pittsburgh’s App., 115 Pa. 4. As will appear by an examination of that case, its facts are wholly unlike those of the present case. Among other things, councils in that case undertook, as a condition of their assent, to deprive gas companies of the right of appeal expressly given them by the act under which they were incorporated. That was attempted by making councils themselves a court of last resort, and exacting a bond in large amount binding them to submit to that self-constituted tribunal. The animus of this and other conditions, clearly violative of the corporate rights of the companies and ultra vires, was so apparent that the companies affected thereby refused to submit. They declined to recognize any such usurpation of authority, and entered into no agreement. Referring to the unreasonable and unlawful character of the conditions imposed in that case, we held that councils had no right to couple their assent with any condition or restriction not imposed by the act, unless the gas company agreed to accept the same and be bound thereby; and even then the conditions or restrictions so accepted by the company must harmonize and in nowise conflict with the provisions of the act incorporating such companies. The case before us is very different. As we shall presently see, the terms of the agreement are not in conflict with the provisions of defendant company’s charter. They are neither unlawful nor unreasonable. A meeting of the stockholders was called for the purpose of considering the ordinance. They agreed to accept its provisions, and authorized their officers to execute the agreement. It was accordingly executed and filed. A question similar to that under consideration was ruled in Pittsb. etc. Ry. Co. v. Birmingham, 51 Pa. 41, and Pittsb. etc. Ry. v. Pittsburgh, 80 Pa. 72. The Pittsburgh & Birmingham Passenger Railway Company was authorized to construct and Operate a railway along Carson street, in the boroughs of Birmingham and South Pittsburgh, both of which were afterwards consolidated with the city of Pittsburgh. The eighth section of the company’s charter provided “ that the said railway company shall not be permitted to use or occupy any of the streets of the said city of Pittsburgh, or streets of said boroughs, for the purposes of their railway, until the consent of the councils of said city and boroughs is first thereto had by ordinance duly passed.” The consent of both boroughs was given upon certain terms expressed in ordinances passed by them respectively. That of Birmingham was given in the following words: “ Said railway company, in addition to other requirements of the charter, shall keep Carson street in perpetual good order and repair, from curb to curb, its whole length, from the time of the acceptance of this ordinance.” That of South Pittsburgh was as follows: “ And provided, also, that said railway company shall keep said Carson street in a good and sufficient state of repair, from curb to curb, to the satisfaction of the committee on streets, .... and also keep said Carson street in a reasonable sanitary condition.” The company having refused to remove from Carson street the dirt that accumulated by reason of its ordinary use as a thoroughfare, the court, in an action brought by the borough to recover the cost of cleaning the street, held that “the duties of defendants below arise, not only from the act of assembly, but also from their contract with the plaintiffs, the borough authorities, without whose consent they could not have used and occupied Carson street: ” Pittsb. etc. Ry. Co. v. Birmingham, 51 Pa. 42. Subsequently, after consolidation of the boroughs with the city of Pittsburgh, a mass of débris, stones, and gravel was thrown upon Carson street by an unusual rain-fall. The city was requested by tbe company to removg the obstruction, clean the street, etc., and, having refused to do so, it was done by the company, and suit was brought against the city to collect the cost thereof. This court held that there could be no recovery. Referring to the act of incorporation and ordinance giving consent of the borough, Mr. Justice Merctjr said: “ The manifest intention of the statute and of the ordinance was to transfer to the company the exclusive duty of keeping in repair all that portion of the street which lies between curbs. Hence, in the words of the former, the company was to ‘keep the street in perpetual good repair; ’ and, in those of the latter, ‘ in a good and sufficient state of repair.’ Neither contains any intimation that the municipality was to repair under any, contingency. But, to make it more clear that the company assumed the whole duty of keeping the street in repair, the ordinance required it to be so kept to the satisfaction of the committee on streets. This practically gave to the municipality the power of deciding on the goodness and the sufficiency of the repairs made by the company. Still further, the ordinance required the company to keep the street ‘ in a reasonable sanitary condition:’” Rittsb. etc. Ry. Co. v. Pittsburgh, 80 Pa. 74. By reference to second proviso to seventh section of the act of April 15, 1858, incorporating the Girard College Passenger Railway Company, authorizing it to occupy Ninth street, etc., it will be seen “ that the city councils may from time to time, by ordinance, establish such regulations in regard to said railway as may be required for the paving, re-paving, grading, eulverting, and the laying of gas and water pipes in and along said streets, and to prevent obstructions thereon.” We are unable to see that there is anything ultra vires in the ordinance granting consent, or that there is anything in the company’s agreement accepting same, and consenting to be bound thereby, that in any manner conflicts with the provisions of its charter. As heretofore stated, the defendant company was formed by merger of two passenger-railway companies, and assumed the name of Ridge Avenue Passenger Railway Company. By that merger, the duties and obligations of the respective companies devolved on the new one. The street for the re-paving of which this suit was brought, was occupied by the Girard College Passenger Railway Company, chartered by the act of April 15, 1858. By § 8 of that act the company was, in express terms, declared “subject to an ordinance of the city councils entitled ‘An ordinance to regulate passenger railways in the city of. Philadelphia,’ approved the seventh day of July, A. D. 1857.” That ordinance provided, inter alia, as follows : “ § 1.....That all passenger railroad companies within the city of Philadelphia shall be subject to the restrictions, limitations, terms, and conditions hereinafter provided; and any such company, before entering upon any road, street, avenue, or alley, within the limits of the said city, shall be understood and deemed to be subject thereto, upon the conditions hereinafter prescribed. “ § 2. That it shall be the duty of said companies, or any of them, to conform to the surveys, regulations, and gradients as they are now or may hereafter be established by law. They shall submit all proposed plans, courses, styles of rails, and the manner of laying the same to the board of surveys and regulations for their approval and sanction;.....to lay flagstones or crossings along the line of the paved streets upon which the rails are laid, at intervals not exceeding two hundred and fifty feet,” etc. “ § 3. That all railroad companies as aforesaid, shall be at the entire cost and expense of maintaining, paving, repairing and re-paving that may be necessary upon any road, street, avenue, or alley occupied by them. That for the convenience of the public, it shall also be the duty of the said companies to clear the streets or other public highways that they may occupy, of snow or any obstruction placed therein by such companies, when the same impedes the travel upon said highways,” etc. “ § 4. That it shall be the duty of any company as aforesaid, when requested to do so by the chief commissioner of highways, to remove any obstruction, mend or repair their road, pave or re-pave the highways, as hereinbefore provided; and should they refuse or neglect to do so for ten days from the date of such notice, then, and in such case, councils may forbid the running of any car or cars upon the said road until the same is fully complied with; and the city reserves the right in all such cases to repair or re-pave such streets, and the expense thereof shall be a judgment upon the road, stock, and effects of such company, recoverable as judgments are now recoverable by the city of Philadelphia.” The remaining five sections of the ordinance provide in detail for other matters which have no special bearing on this contention, except to show, what is already quite apparent, that the permission given to occupy streets, etc., is in subordination to the general authority and power of the municipal authorities over the streets, etc. The ordinance thus referred to in the act of assembly is, in effect, read into and made part of the company’s charter. It is as much a part of the law of its being as any part of the act of assembly itself; and, by the merger and consolidation aforesaid, it in fact became an integral part of defendant company’s charter. The third section declares, in plain and unequivocal language, that the company shall be at the entire cost and expense of maintaining, paving, repairing, and re-paving that may be necessary upon any road, street, lane, or alley occupied by it. Considered in connection with other provisions of the company’s charter, the words here employed are not susceptible of any other than their ordinary meaning. It has never been seriously doubted, nor can it be, that the duty to repair or to re-pave, when either is adjudged necessary, extends to the entire roadway from curb to curb. In Phila., etc. Ry. Co. v. Philadelphia, 2 W. N. 639, a similar question was mooted; and, in a very able opinion by the learned president of Common Pleas No. 4, it was held that the railway company was bound to keep in repair the entire roadway of the streets it occupied, not only the space between the rails, but the entire roadway from curb to curb. To the same effect are Thirteenth St. Ry. Co. v. Philadelphia, 13 W. N. 487; Campbell v. Railway Co., 139 Pa. 522, Ridge Ave. Ry. Co. v. Philadelphia, 124 Pa. 219; Pittsb. etc. Ry. Co. v. Birmingham, and Pittsb. etc. Ry. Co. v. Pittsburgh, supra. By whom is the necessity for repairing or re-paving, etc., to be determined ? Certainly, not by the company itself, but by the municipal authorities. As a general rule, it is their special province to determine when re-paving is needed, and how it shall be done, whether with same kind of material as before, or with a different and better material. It was never intended to transfer the duty of determining these matters, or either of them, from the municipal authorities to any one else. The proposition that, because cobblestone was the kind of pavement ordinarily in use when defendant company was chartered, it is in no event bound to re-pave with any other and more expensive kind of material, etc., is wholly untenable. It cannot be entertained for a moment. It was never contemplated that the railway company would continue to exist and perform its corporate functions in a cobblestone age. It was called into being with the view of progress. The duties specified in its charter were imposed with reference to the changes and improved methods of street paving which experience might sanction as superior to and more economical than old methods. In other words, the company is bound to keep pace with the progress of the age in which it continues to exercise its corporate functions. The city authorities have just as much right to require it to re-pave at its own expense with a new, better, and more expensive kind of pavement as they have to cause other streets to be re-paved, in like manner, at the public expense.’ Six points for charge were submitted by the plaintiff, all of which were rightly answered by the learned judge. His answers appear of record, and require no further comment, except to say that the fifth and sixth points were more favorable to the defendant company than any evidence in the case warranted. The first three presented questions of law, and, for reasons given in the answers thereto, they were properly affirmed. As requested in the fifth and sixth points, he instructed the jury : “ (1) If the jury believe that, in 1886, it was necessary to re-pave the pavement on Ninth street, above Race, and the company defendant failed to comply with notice to re-pave it with the kind of pavement suited to the traffic on the street, the city had a right to lay such a pavement at the cost of defendant. “ (2) If the jury believe that, granite-block pavement is, considering the first cost and the item of repairs, as cheap if not cheaper than cobblestone pavement, and is the kind of pavement suited to the neighborhood and traffic of Ninth and Race streets, and with which the city is, as fast as its finances will permit, re-surfacing its main streets, then the city had the right to re-pave and repair Ninth street north from Race street witb granite blocks, and the defendant company is liable for the just and proper cost thereof.” These instructions were more favorable to the defendant company than it was entitled to. The verdict, as has been stated, was in favor of the city. By necessary implication, the jury must have found, as the basis of their verdict, the facts of which the plaintiff’s fourth to sixth points, inclusive, are predicated. The facts thus established by the finding of the jury, in connection with the charter obligation and duty of the railway company, as correctly explained by the court, entitled the plaintiff to recover. The eight points for charge submitted by defendant were rightly refused, for reasons given by the learned judge in his answers. It follows that neither of the specifications of error is sustained. Judgment affirmed.

Opinion by Mb. Chief Justice Sterrett, On July 22, 1890, Jesse Lines died in the city of Easton, Pennsylvania, where he had resided for over thirty years prior thereto. While on a visit to New York, in May, 1887, he executed and delivered to the Union Trust Company, a corporation organized under the laws of New York and doing business in that state, a deed of trust of one hundred and eighteen mortgage bonds, of $1,000 each, issued by a Missouri railroad corporation, and two hundred and eighty-one shares capital stock of the Taylor Iron Works, a New Jersey corporation, doing business therein. These securities were then delivered and, on the books of the respective corporations, transferred to "“The Union Trust Company of New York, in trust for Jesse Lines and others.” According to the provisions of the deed, said trustee was to hold the securities, collect the interest and income thereof and pay the same to the said Jesse Lines during his natural life, and, upon his decease, to divide said bonds and stock and transfer one half thereof to certain of his nephews and nieces and the residue to his putative son, as specified in said trust. The trust deed contains a clause in which the said Jesse Lines, as first party thereto, reserves to himself “ the right and power, by an instrument in writing to be delivered to the second party, to alter, change, modify or revoke all disposition and direction as to transfer and dispositions made and to be made of said property after the decease of first party.” But it does not appear that the right thus reserved was ever exercised. The trustee collected and paid over to Mr. Lines the income of the trust securities during his life, and after his decease divided and distributed the corpus of the trust, consisting of said securities, etc., to the beneficiaries entitled thereto, according to the provisions of the deed. At the time said trust was created and thence until his de cease, Mr. Lines was a citizen of Pennsylvania, domiciled therein at the city of Easton. During same time he had a wife who survived him and died. But neither then nor at the time of his decease had he any child or children born in lawful wedlock, nor any descendant of any such child or children, nor father or mother. This proceeding was instituted by the register of wills of Northampton county for the purpose of enforcing payment of collateral inheritance tax, under the law of this state, on the bonds aiid stock of which Mr. Lines was the beneficial owner up to the time of his death, and which, upon that event, passed to said beneficiaries by virtue of said trust, which, as to them, was intended to and did take effect, in enjoyment, immediately after his decease, and not before. It was admitted that none of the beneficiaries under said deed resided in the state of New York at the date of its execution, nor at any time since, except Jesse T. Lines, who, for a short time subsequent to the death of Jesse Lines, resided in Brooklyn, New York; all said beneficiaries lived in Pennsylvania, except Mary E. Perkins, Harriet Hill and Eva E. Lines, who, at the time said trust was created and at the date of Jesse Lines’s death, lived in the state of Minnesota. There were no debts owing by the decedent to any person in the state of New York, and no ancillary administration in that state; nor was there any collateral inheritance or succession tax paid upon the estate of Jesse Lines, or any part thereof, in that state, nor any such return charged against the same or paid to authorities of said state upon any property mentioned in or distributed under said trust deed. The securities which were distributed to the beneficiaries were appraised at over $130,000. The appeal from valuation fixed by the register’s appraiser was heard and disposed of by the learned president of the 31st district, who, after fully stating all the material facts, including those outlined above, and exhaustively considering the questions of law arising thereon, held that the securities referred to were subject to collateral inheritance tax in the hands of said beneficiaries; and he accordingly dismissed the appeal and entered the decree from which this appeal was taken. In view of the undisputed facts, it is strange that any question should have been seriously raised, either as to the right of the commonwealth to the tax on the securities, or the liability of the beneficiaries to pay their respective proportions thereof. Mr. Lines was not only the beneficial owner of the securities prior to and at the time of his decease, but under the reserved power of modification, revocation, etc., he had absolute control of the disposition to be made of the securities upon his decease. At any time prior thereto, he could have modified or revoked the trust in favor of the beneficiaries named in the deed. It is true the legal title to the securities was in the Trust Company, but aside from mere compensation for its services, as custodian of the property, the company had no beneficial interest therein. In any proper sense of the term, the securities were the personal property of Mr. Lines. They were his to enjoy during his lifetime, and his to dispose of, in any manner he saw fit, at any time prior to his decease. He chose to leave the trust in favor of the beneficiaries unaltered and unrevoked, and, as he intended, it took effect, in enjoyment, immediately after his decease. Moreover, the securities were that kind of personal property, the situs of which follows the owner. As was said in Orcutt’s Appeal, 97 Pa. 179, the general rule is that the situs of personal property follows the owner, but for particular purposes some species of personalty may have a situs distinct from the legal one, but that in question is not within any of the recognized exceptions to the general rule. That was clearly shown by the learned judge who presided specially at the hearing in the court below, as may be seen by reference to his clear and convincing opinion. The manifest purpose of our collateral inheritance tax law is to subject property, limited by deed in the manner stated in the statute, to taxation, because it is still substantially the property of the grantor, and does not actually pass, nor is it intended to pass to the collateral beneficiaries until his death, and hence it is essentially similar in that respect to a devolution of property by testacy or intestacy upon the death of the owner. That is illustrated by several of our cases, among which are lieish v. Commonwealth, 106 Pa. 521; Seiberts’s Appeal, 110 Pa. 329; DuBois’s Appeal, 121 Pa. 386. In the former it was held that the right of the commonwealth to the tax was not defeated by a conveyance or transfer of title to the property during the lifetime of the owner, nor by possession taken under such conveyance, if the enjoyment of the' property conveyed is not intended to take effect until the death of the grantor. In DuBois’s Appeal, supra, speaking of the deed made by the grantor and possession taken by the grantee thereunder, etc., it is said: “ The naked legal title acquired by the grantee was the merest shadow. The grantor held a firm grasp on the entire substance, and he retained it as long as he lived. In view of all this, it is idle to contend that, in any proper or statutory sense of the word ‘ enjoyment,’ the conveyance in question took effect or was intended to take effect in enjoyment prior to the death of John DuBois.” It follows from what has been said that the conclusions reached by the court below on all the controlling questions in the case are correct, and the decree based upon the principles thus established should not be disturbed. The learned judge was clearly correct in saying, as recited in the second specification: “ It must be regarded that Jesse Lines, not the Trust Company, owned the stocks and bonds. Beyond a doubt, the situs of the property for the purpose of taxation, including the imposition of collateral inheritance tax, was in Pennsylvania.” There appears to be no error in either of the matters referred to in the remaining specifications. In view of what has been already said in the opinion of the court below and here, neither of them requires special consideration. Decree affirmed and appeal dismissed, with costs to be paid by appellants.

OPINION OF THE COURT FLAHERTY, Justice. This is an appeal from an order of the Superior Court which affirmed in part an order entered by the Philadelphia Court of Common Pleas in response to a complaint in trespass filed by the plaintiff-appellant Barton L. Post, Esq. Post v. Mendel, 336 Pa.Super. 467, 485 A.2d 1176 (1984). The complaint in trespass, as amended, lodged two counts against the defendant-appellee M. Mark Mendel, Esq. The first count sounded in libel and the second in slander. It is only with the first count, libel, that the instant appeal is concerned. In connection with that count the plaintiff sought compensatory damages in excess of $20,000, as well as an equal amount in punitive or exemplary damages. With regard to the assertion of a claim based on libel, there was an averment in the complaint that defendant had composed a letter, which was addressed to plaintiff and which disparaged plaintiffs integrity as a member of the legal profession, and that defendant had sent copies of the letter to 1.) the Honorable George T. Kelton, a judge in Bucks County before whom plaintiff and defendant were embroiled in litigation as opposing counsel, 2.) the Disciplinary Board of the Supreme Court of Pennsylvania, and 3.) William H. Simon, M.D., an alleged client of the plaintiff and a witness in the Bucks County litigation. The letter, which bore the letterhead “M. Mark Mendel, Ltd.,” read as follows: September 17, 1981 Barton L. Post, Esquire Post and Schell 12th Floor 210 West Washington Square Philadelphia, Pa. 19106 Re: Your Conduct During the Course of This Trial. Dear Mr. Post: I have allowed the heat of anger to pass and under calm reflection, I have re-assessed what you did during the course of the examination of Dr. Beller when you insinuated that the doctor had two different reports and that there were two different reports, attempted to convey to the jury by use of the reports that the doctor had done an unethical act by writing two different reports when, in fact, you knew that there were two different reports, one being a supplement to the other. One was requested at the insistence of your partner, Mr. Arthur Toensmeier, and while Dr. Beller was testifying, you objected to my straightening the matter out, refused to stipulate that the three letters, which are now Court exhibits (Nos. 1, 2 and 3) existed, and refused to stipulate, compounding your nefarious tactics in violation of the Canons in that those letters existed. Thus, your refusal to acknowledge what you had done was a patent, deceptive, nefarious act, calculated to deceive the Court and mislead the jury. There have been since that occurrence five trial days since you comported yourself in an unlawyerlike manner and have now compounded the matter by not only deceiving the Court, but allowing an expert to perjure himself with your assistance and aid. While Dr. Simon was on the stand, upon inquiry whether or not you represented him, you engaged and asked the Court to give him certain instructions or that you wished to confer with him. Dr. Simon elected, after the Court gave him an opportunity to indicate and candidly reveal your representation of him, a fact which would effect his prejudice and bias, to deny such representation when, in fact, you have represented him since March 5, 1981, in the matter of Mildred Wilson v. William H. Simon et ah, Court of Common Pleas of Philadelphia County, February Term 1981, No. 4306. You stood idly by while the jury and the Court were deceived. As an officer of the Court, that conduct is abhorrent and is a violation of four Canons — D.R. 1-101 —maintaining of integrity and competence of the profession; D.R. 7-106 — trial conduct; D.R. 9-101 — impropriety; D.R. 7-102, Sections 3, 4 and 5, wherein you concealed and knowingly failed to disclose that which you are required by law to reveal where you knowingly used perjured testimony or false evidence and where you knowingly in your presence allowed a false statement of law and fact, and remained silent. Under the circumstances, I hereby notice [sic] you that I intend to proceed with this matter to the Disciplinary Board irrespective of any outcome of this case. As an officer of the Court, I do not choose to practice with individuals who comport themselves in this manner and you are not fit to share a court room with any lawyer who at least has sufficient respect for the law to be at all times candid. You may not like my style, but I do not lie, sir — something that you, throughout this trial, have done. This serves notice on you. Since you have said that I “try by intimidation,” I assure you this is not intimidation; this is simply an obligation which I, as an officer of the Court, must fulfill so that piranhas like you are removed from the practice of the law. Respectfully, /s/ M. Mark Mendel M. Mark Mendel MMM/cb cc: Disciplinary Board of the Supreme Court Honorable George T. Kelton William H. Simon, M.D. In response to the complaint’s assertion of a claim based on libel, defendant filed preliminary objections in the nature of a demurrer asserting that “the alleged defamatory words [were] absolutely privileged in that they were disclosed in connection with a judicial proceeding.” The Court of Common Pleas agreed that the remarks contained in the letter were absolutely privileged, and, hence, it dismissed with prejudice the portion of the complaint setting forth a claim for libel. Superior Court affirmed the dismissal of that claim. The primary issue to be addressed in the instant appeal is whether the courts below properly determined that the matters set forth in the subject letter were protected by an absolute privilege, under the principle of judicial immunity. It has long been established that statements contained in pleadings, as well as statements made in the actual trial or argument of a case, are privileged. In Kemper v. Fort, 219 Pa. 85, 67 A. 991 (1907), this Court analyzed and reviewed at great length the authorities in this field, and, in a comprehensive fashion, set forth a history of the development of the privilege. That history, an excerpt from which follows, demonstrates that protection has from early times been afforded communications that play an integral role in pursuing the ordinary course of justice: In England, as far back as the time of Coke, anything said or written in legal proceedings was absolutely privileged. In Cutler and Dixon, Coke’s Reports, Part IV, p. 14, it was adjudged, “that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behavior; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursued the ordinary course of Justice in such case; and if actions should be permitted in such cases, those who have just cause of complaint, would not dare to complain for fear of infinite vexation.” And on the same page, in Buckley and Wood, “It was resolved per totam curiam, that for any matter contained in the bill that was examinable in the said court, no action lies, although the matter is merely false, because it was in course of justice.” In The King v. Skinner, Lofft, 55, on a motion to quash the indictment against the defendant, who, as one of his majesty’s justices of the peace, was charged with having said to a grand jury before him in the general sessions of the county, “You are a seditious, scandalous, corrupt and perjured jury,” Lord Mansfield remarked: “Neither party, witness, counsel, jury or judge, can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to a case, the court will take notice of them as a contempt, and examine on information. If anything of mala mens is found on such enquiry it will be punished suitably.” In comparatively recent times, in Revis v. Smith, 86 E.C.L. 127, it was held that no action will lie against a man for a statement made by him, whether by affidavit or viva voce, in the course of a judicial proceeding, even though it be alleged to have been made “falsely and maliciously, and without any reasonable or probable cause.” That case was followed by Henderson v. Broomhead, 4 H. & N. 569, and it was there said by Crompton, J.: “No action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies. Cresswell, J., pointed out, in Revis v. Smith, 18 C.B. 126 (E.C.L.R. vol. 86), that the inconvenience is much less than it would be if the rule were otherwise. The origin of the rule was the great mischief that would result if witnesses in courts of justice were not at liberty to speak freely, subject only to the animadversion of the court____ The rule is inflexible that no action will lie for words spoken or written in the course of giving evidence.” Another case that may be cited is Seaman v. Netherclift, L.R. 1 C.P.Div. 540, where it was said by Lord Coleridge, C.J.: “Now, a long course of authorities, of which perhaps the best known, as the most remarkable, is the case of Astley v. Younge (2 Burr. 807), has decided that no action of slander can be brought for any statement made by the parties either in the pleadings or during the conduct of the case____ But I conceive the law on this point to be now quite certain, although most men of any experience in the profession must have seen many instances in which judicial proceedings have been made by parties to them to serve the ends of private malignity. It is equally certain, however, nor has any question ever been raised, that the privilege of parties is confined to what they do or say in the conduct of the case.” 219 Pa. at 88-90, 67 A. at 992-93. The historical basis for the privilege was described at exhaustive length in Kemper, and, as the foregoing excerpt from that history demon strates, there has long been recognized a realm of protected communications in judicial proceedings. In this Commonwealth, protection for such communications is firmly established. As stated in Greenberg v. Aetna Insurance Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968), “When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them.” See also Kemper v. Fort, 219 Pa. 85, 93, 67 A. 991 (1907) (statements in pleadings privileged). The instant case differs from the bulk of those heretofore decided by this Court in that the alleged defamation did not in this instance occur in the pleadings or in the actual trial or argument of a case. Rather, the defamation took the form of an extra-judicial communication which was issued during the course of trial. In deciding whether the privilege extends to the type of extra-judicial communication which this case presents, it is necessary first to consider the policy underlying the existence of the privilege. In Greenberg v. Aetna Insurance Co., 427 Pa. at 515-516, 235 A.2d at 578, this Court noted that the privilege is an integral part of a public policy which permits all suitors, however bold and wicked, however virtuous and timid, to secure access to the courts of justice to present whatever claims, true or false, real or fictitious, they seek to adjudicate. To assure that such claims are justly resolved, it is essential that pertinent issues be aired in a manner that is unfettered by the threat of libel or slander suits being filed. As stated in Greenberg, 427 Pa. at 516, 235 A.2d at 578 (quoting Kemper v. Fort, 219 Pa. at 94, 67 A. at 994), “Justice can be administered only when parties are permitted to plead freely in the courts and to aver whatever ought to be known without fear of consequences, if a material and pertinent averment should not be sustained. Wrong may at times be done to a defamed party, but it is damnum absque injuria. The inconvenience of the individual must yield to a rule for the good of the general public.” The justifications for the privilege were further explained in Binder v. Triangle Publications, Inc., 442 Pa. 319, 323-324, 275 A.2d 53, 56 (1971), where this Court stated, The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client’s interests. Likewise, the privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings. Thus, the privilege exists because there is a realm of communication essential to the exploration of legal claims that would be hindered were there not the protection afforded by the privilege. The essential realm of protected communication is not, however, without bounds. Rather, the protected realm has traditionally been regarded as composed only of those communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought. Kemper, 219 Pa. at 93, 67 A. at 994-95; Greenberg, 427 Pa. at 515, 235 A.2d at 578; Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977), appeal dismissed, 487 Pa. 455, 409 A.2d 857 (1980) (although statements in briefs are privileged, counsel’s reiteration of the contents of his brief at a press conference held not privileged because the remarks were not made at a judicial proceeding). We do not regard the alleged defamatory letter in the instant case as having been issued in the regular course of judicial proceedings as a communication pertinent and material to the redress sought. Although the letter made reference to matters which occurred in an ongoing trial, the letter was not directly relevant to the court proceedings. Accordingly, we do not believe issuance of the letter was within the sphere of activities which judicial immunity was designed to protect. The privilege is not a license for extra-judicial defamation, and there is unnecessary potential for abuse if letters of the sort written in this case are published with impunity. Formal procedures are available to address the grievances which the writer of the letter perceived, without resort to extra-judicial defamation. The letter was not addressed to Judge Kelton, but rather a copy was merely sent to him. The letter did not state or argue any legal position, and it did not request any ruling or action by the court. Nor did the communication request that anything contained in it should even be considered by the court. The letter was clearly not a part of the judicial proceedings to which it made reference, and merely forwarding a copy of the letter to the court did not make it a part of those proceedings. Likewise, forwarding copies of the letter to plaintiffs alleged client, William H. Simon, M.D., and to the Disciplinary Board of the Supreme Court of Pennsylvania did not render the letter a part of the trial proceedings, and transmittal of those copies would not logically have been expected to affect the course of trial. Thus, the policy of promoting an unfettered airing of issues at trial is not infringed by our holding that the letter published in this case was outside the ambit of judicial immunity. It is argued that if, as we have held, the letter was not published as part of the course of the judicial proceedings to which the letter referred, then publication of the letter was privileged with respect to other proceedings, such other proceedings being those which might be brought in an action before the Disciplinary Board charging plaintiff with professional misconduct, or other proceedings which might be brought charging plaintiffs alleged client, William H. Simon, M.D., with perjury. Citing the Restatement (Second) of Torts § 586 (1977), defendant asserts that judicial immunity is applicable to communications which are preliminary to proposed judicial proceedings. The Restatement (Second) of Torts, § 586, states: An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. (Emphasis added). Whether a challenged communication is published prior to, or during, a judicial proceeding, it must bear a certain relationship to the proceeding so as to qualify it as privileged. That relationship is, in either case, the same. As discussed supra, in reference to communications made during judicial proceedings, it is necessary that a protected communication have been pertinent and material to the redress sought and that the communication have been issued in the regular course of the proceedings. Similarly, with respect to communications made prior to the institution of proceedings, the protected communication would need to have been pertinent and material and would need to have been issued in the regular course of preparing for contemplated proceedings. Evaluated by this standard, the instant letter does not qualify as privileged with respect to proceedings which might be brought against plaintiffs alleged client, William H. Simon, M.D., or against plaintiff himself. In any action based upon perjury which might be brought against plaintiff’s alleged client, it would not be pertinent, material, and in the regular course of procedure to send copies of the present letter to Judge Kelton and to the Disciplinary Board. Further, the characterizations, as distinguished from alleged facts, set forth in the letter describing plaintiff as an unprofessional attorney and a nefarious piranha and liar would not be relevant to a perjury proceeding against William H. Simon, M.D. Similarly, in any action based upon professional misconduct which might be brought against plaintiff in a proceeding before the Discipli nary Board, it would not be pertinent, material, and in the regular course of procedure to forward copies of a letter such as the present one to Judge Kelton and to William H. Simon, M.D. In short, defendant published the letter to persons who would have had no direct interest in either of the proceedings which might have ensued. Publication of the letter to such persons was, therefore, not privileged. Thus, the Court of Common Pleas, in sustaining defendant’s preliminary objections to the count sounding in libel, erroneously determined that judicial immunity precluded liability with respect to that count. In dismissing that count, the court did not afford plaintiff an opportunity to amend his complaint to allege certain additional facts pertaining to the libel action, apparently in the belief that amendment would be futile since judicial immunity was perceived as barring any such suit. It is established that leave to amend should not be withheld where there is some reasonable possibility that defects in a complaint can be cured through amendment. Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978). Accordingly, we reverse the order of the Superior Court insofar as it affirmed the dismissal of the libel action, and remand to the Court of Common Pleas for proceedings consistent with our decision. Order of the Superior Court reversed, and case remanded to the Court of Common Pleas. LARSEN, J., did not participate in the consideration or decision of this case. McDERMOTT, J., did not participate in the consideration or decision of this case. PAPADAKOS, J., filed a dissenting opinion.

OPINION Chief Justice CAPPY. In the present case, we consider whether the Superior Court correctly reversed the trial court’s decision to exclude expert scientific evidence. We also consider whether to retain the rule announced in Frye v. United States, 298 F. 1013 (D.C.Cir.1923), for determining whether such evidence is admissible. We conclude that Frye continues to provide the rule for decision in Pennsylvania. We also conclude that the Superior Court erred in reversing the trial court’s ruling. On April 5, 1995, Carl R. Grady (“Mr.Grady”) and his wife, Diana Grady (collectively, “Appellees”) commenced a lawsuit against the appellant, Frito-Lay, Inc. (“Frito-Lay”). In their complaint, Appellees alleged that Mr. Grady ate several Doritos brand Tortilla Chips (“Doritos”) that Frito-Lay designed, manufactured, and sold; that Mr. Grady felt as though chips had lodged in his throat; that Mr. Grady sought emergency hospital care; that medical procedures showed that Mr. Grady suffered an esophageal tear that resulted in serious physical injuries; and that the Doritos Mr. Grady had eaten caused the esophageal tear. Alleging further that Frito-Lay’s Doritos are unsafe and defective because they fracture into hard, sharp fragments that are capable of lacerating the esophagus when eaten, Appellees set forth claims in negligence, strict liability, and breach of warranty. When the pleadings closed, Frito-Lay filed Defendant’s Motion for Summary Judgment, asserting that Appellees failed to produce evidence sufficient to satisfy their burden of proving that the Doritos had a defect; that the Doritos were improperly designed and manufactured; and that the Doritos caused Mr. Grady’s esophagus to tear. Frito-Lay further alleged that expert testimony was necessary to prove each of these issues. In their response to Frito-Lay’s Motion for Summary Judgment, Appellees filed two expert reports. One of the reports (the “Beroes Report”) was prepared by Charles Beroes, Ph.D., P.E., an associate professor emeritus of chemical engineering at the University of Pittsburgh. In his report, Dr. Beroes stated that Doritos possessed “several hidden-hazardous physical-strength and physical-shape properties” and described the tests he had performed on several types of Doritos, including Doritos that came from the bag of chips that Mr. Grady had eaten, to quantify these propensities. (Beroes Report at 2). In one series of tests, Dr. Beroes measured the compressive strength of dry Doritos. In these tests, Dr. Beroes held a Dorito in his hand and pressed its triangular tip down on a platform gram balance that was covered with a pad until the chip snapped. He calculated the downward force needed to break each Dorito in grams, converted that force to pounds, and set forth “the average pressure that developed] under the chip tips” and “the average breaking force [he had] applied to the tips”. (Beroes Report at 5, 7, 9). Dr. Beroes summarized this series of tests as establishing that “[l]arge pressures result when a few pounds of force are applied to the triangular shaped chips. The chip points were able to endure high pressures before fracturing. The sharp triangular chips can readily pierce the esophagus when driven into the walls of the esophagus by peristaltic action.” (Beroes Report at 3). In a second series of tests, Dr. Beroes measured the time it took saliva to soften Doritos. These tests were conducted in the same manner as the dry chip test, except that Dr. Beroes used Doritos that he had wetted with saliva by holding them in his mouth for 15 seconds, 30 seconds, 45 seconds, and 60 seconds. According to Dr. Beroes, these tests showed that “the tips of the triangular chips did not soften sufficiently to prevent laceration of the esophagus after 60 seconds of exposure of saliva. Each triangular chip fractures into smaller triangular chips with sharp tips. These tips resemble spears. Enormous pressures occur on these needle sharp tips which can lacerate almost any tissues in the digestive tract.” (Be-roes Report at 10.) Based on his tests, Dr. Beroes concluded that the Doritos were dangerous and defective because they broke into smaller triangular chips that were too sharp, too thick, and too hard for safe passage in the esophagus. He also opined within a reasonable degree of scientific certainty that Frito-Lay failed to warn of the dangers of eating Doritos; that it failed to conduct the appropriate safety studies; that it failed to produce and sell Doritos with uniform compressive strength and hardness; that Doritos were not fit for safe consumption; that Doritos were negligently designed and manufactured; and that their uneven and dangerous characteristics caused Mr. Grady’s esophageal tear and resulting injuries. (Beroes Report at 21-23). By order dated December 10, 1998, the trial court denied Frito-Lay’s Motion for Summary Judgment. In January 1999, the parties filed their respective pretrial statements. Appellees identified Dr. Beroes as an expert witness. Thereafter, Frito-Lay filed a number of motions in limine. In three of these motions, Frito-Lay sought to exclude Dr. Beroes’ testimony. In a Motion to Preclude The Testimony Of Charles S. Beroes On The Issue Of Causation, Frito-Lay alleged that Dr. Beroes was not qualified by training or experience to testify as to the causal relationship between Mr. Grady’s consumption of Doritos and his esophageal tear. In a Motion to Preclude Plaintiffs’ Expert, Charles S. Beroes, From Testifying With Regard To The Ultimate Issues Of This Case, Frito-Lay alleged that Dr. Beroes’ opinions with regard to ultimate issues were inadmissible because they were based on conflicting and unreliable evidence. And in a Motion To Preclude The Testimony of Plaintiffs’ Expert, Charles S. Beroes, Frito-Lay alleged that Dr. Beroes’ testimony regarding Doritos’ physical characteristics was inadmissible because it did not meet the rule announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which required Dr. Beroes to show that the method he used to test the Doritos was generally accepted in the relevant scientific community. Frito-Lay’s latter two Motions incorporated, inter alia, the report of one of its experts, Martin R. Okos, a professor of biochemical and food processing at Purdue University. In his report, Dr. Okos questioned the validity of Dr. Beroes’ tests and the accuracy of his results. Appellees did not counter Frito-Lay’s assertion that Dr. Beroes’ testimony failed to meet Frye or Dr. Okos’ critical appraisal of Dr. Beroes’ tests with evidence from Dr. Beroes or any other source. On January 26, 1999, the trial court heard argument in chambers on all of the Motions in Limine that Frito-Lay had filed. The trial court granted the Motions that raised the admissibility of Dr. Beroes’ testimony, ruling that Dr. Beroes could not testify as to the tests he conducted on Doritos or give opinions about them. Appellees then proffered the evidence they would submit to prove their case in view of all of the trial court’s evidentiary rulings. In response, Frito-Lay moved for a compulsory non-suit. The trial court granted Frito-Lay’s motion, concluding that Appellees would not be able to establish the elements of their claims. Subsequently, Appellees filed a motion to remove the compulsory non-suit, which the trial court denied. Ultimately, judgment was entered in Frito-Lay’s favor. In a memorandum opinion that followed, the trial court explained its reasons for excluding Dr. Beroes’ testimony. The trial court stated: It was the finding of this member of the Court, after taking into account the claimed expertise of the Plaintiffs’ experts, and the methodology of Beroes, that Beroes’ methodology was not based upon scientific data, or utilizing a methodology that was generally accepted in the community of scientists who evaluate food safety. Indeed, it was the impression of this member of the Court that Beroes’ methodology smacked of a high school science fair project and did not bear any relationship to the reality of the mastication and consumption of foodstuffs. Beroes approached the characteristics of the Dorito chips as if it were a static evaluation of a material, rather than a consumable. Accordingly, this member of the Court determined that Beroes’ methodology was akin to “junk science,” did not meet the test of [Frye ] and its progeny, and that Beroes’ methodology and opinion would only mislead the jury. Beroes was otherwise unqualified to render an expert medical opinion as to whether the Doritos caused the husband-plaintiffs injury. The Defendant’s motion in limine as to Beroes’ opinion was, accordingly, granted. Grady v. Frito-Lay, 2000 WL 33436367 at *2 (Pa.Com.Pl. April 3, 2000). On appeal, the majority of the Superior Court en banc reversed the trial court’s order granting Frito-Lay’s Motions in limine, vacated the judgment of non-suit, and remanded for trial. Grady v. Frito-Lay, 789 A.2d 735 (Pa.Super.2001). As to Dr. Beroes, the Superior Court concluded that he was competent to testify on the physical characteristics of Doritos; that his testimony satisfied the Frye test; that his compression strength calculations used standard principles that experts in the field can and have examined; and that any flaws in Dr. Beroes’ testing design could be the subject of cross-examination at trial. The Superior Court stated: Nor do we find that the trial court properly precluded that part of the expert testimony of Dr. Beroes relating to the results of tests he had conducted on the Doritos chips, specifically, three series of compressive strength tests, and four sets of saliva tests conducted on whole chips. Rather, we are of the mind that Dr. Beroes was competent to testify as to the physical characteristics of the chips as revealed by the standard tests he had conducted upon the products of appellee. The Frye test makes the admission of expert testimony dependent “upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” * * * * * * The process of consuming food involves both mechanical and chemical processes. The mechanical processes involve chewing and swallowing while the breaking down of the food involves chemical processes. Thus, an engineer such as Dr. Beroes is qualified to provide [an] expert opinion describing the composition and characteristics of the food product and the mechanics of the processes involved in chewing and swallowing. The series of tests conducted by Dr. Beroes did not involve any novel or new scientific principles, but rather crush strength and compression' strength calculations which, as noted by appellants, are possibly “as old as the pyramids.” While appellee has provided valid criticisms of aspects of Dr. Beroes’ tests, those criticisms do not attack the basic scientific principles involved in the tests conducted, but rather challenge such things as the use of a whole chip rather than the fragments yielded by chewing. * * * * sis sii. The tests, which employed standard calculations, can and have been readily examined and critically evaluated by experts in the field, including those retained by appellee. Such measurements are not “junk science”, and any flaws in the design of the tests or compilation of the data can be readily critiqued by appellee. Id. at 742-43 (footnote and citations omitted). This appeal followed, limited to whether the Superior Court correctly applied the law in reversing the trial court’s decision to exclude Dr. Beroes’ expert testimony on certain physical characteristics of Doritos. We begin our discussion with the Rule 702 of the Pennsylvania Rules of Evidence. Rule 702 controls the admissibility of expert testimony on scientific knowledge, and states: Rule 702. Testimony by experts If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. Pa.R.E. 702. The Frye test, first announced in Frye v. United States, 293 F. at 1013, and adopted in Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (Pa.1977), is part of Rule 702. Under Frye, novel scientific evidence is admissible if the methodology that underlies the evidence has general acceptance in the relevant scientific community. See Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117, 1119 (1998). For a time, the Frye rule guided a number of courts in deciding whether scientific evidence is admissible. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), however, the United States Supreme Court rejected Frye. The Court determined that Frye’s “general acceptance” rule had been superceded by adoption of the Federal Rules of Evidence, arid reasoned that it was no longer consistent with the federal law’s liberal thrust. Id. at 588, 113 S.Ct. 2786. Accordingly, the Court announced a different test for the federal courts to use when deciding whether to admit scientific evidence. Under Daubert, the trial judge evaluates whether the evidence will assist the trier of fact, and whether the evidence is reliable and scientifically valid. Id. at 592, 113 S.Ct. 2786. Moreover, Frye’s criteria of general acceptance is not required, but is only one factor, among several, that the court may assess in determining whether to admit the scientific testimony. Id. at 594, 113 S.Ct. 2786. After Daubert was decided, a number of state courts adopted the Daubert standard. We, however, have continued to follow Frye. In granting allocatur to review the Superi- or Court’s present decision, we determined that it provided us with the opportunity to assess our continued adherence to Frye. Accordingly, we directed the parties to address the effect of the Frye and Daubert cases on the issue we are deciding. In their respective briefs, both Appellees and Frito-Lay indicated a preference for Frye and neither of them urged us to move to Daubert. After careful consideration, we conclude that the Frye rule will continue to be applied in Pennsylvania. In our view, Frye’s “general acceptance” test is a proven and workable rule, which when faithfully followed, fairly serves its purpose of assisting the courts in determining when scientific evidence is reliable and should be admitted. One of the primary reasons we embraced the Frye test in Topa was its assurance that judges would be guided by scientists when assessing the reliability of a scientific method. See Topa, 369 A.2d at 1281 (quoting United States v. Addison, 498 F.2d 741, 744 (D.C.Cir.1974)). Given the ever-increasing complexity of scientific advances, this assurance is at least as compelling today as it was in 1977, when we decided that case. We believe now, as we did then, that requiring judges to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific theory and technique when ruling on the admissibility of scientific proof, as the Frye rule requires, is the better way of insuring that only reliable expert scientific evidence is admitted at trial. We also believe that the Frye test, which is premised on a rule — that of “general acceptance” — is more likely to yield uniform, objective, and predictable results among the courts, than is the application of the Daubert standard, which calls for a balancing of several factors. Moreover, the decisions of individual judges, whose backgrounds in science may vary widely, will be similarly guided by the consensus that exists in the scientific community on such matters. Thus, as we are persuaded of the wisdom and efficacy of Frye’s “general acceptance” rule, we hold that it continues to control in Pennsylvania. We now turn to the importance of Frye’s proper application, and make the following points. First, consistent with our traditional adherence to the general evidentiary tenet that the proponent of a proposition bears the burden of proving it, see In re Johnson, 509 Pa. 347, 502 A.2d 142, 146 (1985), and the principle that is evident in this type of case, see, e.g., Topa 369 A.2d at 1277 and Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992), cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993), we emphasize that the proponent of expert scientific evidence bears the burden of establishing all of the elements for its admission under Pa. R.E. 702, which includes showing that the Frye rule is satisfied. Second, in applying the Frye rule, we have required and continue to require that the proponent of the evidence prove that the methodology an expert used is generally accepted by scientists in the relevant field as a method for arriving at the conclusion the expert will testify to at trial. See, e.g., Blasioli, 713 A.2d at 1119. This does not mean, however, that the proponent must prove that the scientific community has also generally accepted the expert’s conclusion. We have never required and do not require such a showing. This, in our view, is the sensible approach, for it imposes appropriate restrictions on the admission of scientific evidence, without stifling creativity and innovative thought. Third, under Pa.R.E. 702, the Frye requirement is one of several criteria. By its terms, the Rule also mandates, inter alia, that scientific testimony be given by “a witness who is qualified as an expert by knowledge, skill, experience, training or education----” Pa.R.E. 702. Whether a witness is qualified to render opinions and whether his testimony passes the Frye test are two distinct inquiries that must be raised and developed separately by the parties, and ruled upon separately by the trial courts. See Commonwealth v. Arroyo, 555 Pa. 125, 723 A.2d 162, 170 (1999). Fourth and finally, as to the standard of appellate review that applies to the Frye issue, we have stated that the admission of expert scientific testimony is an evidentiary matter for the trial court’s discretion and should not be disturbed on appeal unless the trial court abuses its discretion. See Commonwealth v. Zook, 615 A.2d at 11. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Paden v. Baker Concrete Constr., Inc., 540 Pa. 409, 658 A.2d 341, 343 (1995). It now remains to apply these principles to the present case. As a preliminary matter, Frito-Lay takes issue with the Superior Court’s application of the standard of review. Frito-Lay argues that the Superior Court did not determine whether the trial court abused its discretion in excluding Dr. Beroes’ testimony under Frye. Rather, the Superior Court essentially ignored the trial court’s ruling and substituted its judgment for that of the trial court. We agree. As abuse of discretion is the standard of review in this matter, it was the Superior Court’s function to determine whether the trial court’s decision to exclude Dr. Beroes’ testimony under Frye constituted unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. See id. Nowhere in its opinion, however, did the Superior Court undertake this function. Instead, it looked directly at Dr. Beroes’ testimony, decided what it thought of it, and reversed the trial court because it assessed the testimony differently. Thus, we conclude that the Superior Court erred. At this point in these proceedings, we believe that the interests of judicial economy will be best served if we apply the proper standard of review to the trial court’s ruling, rather than remanding this case to the Superior Court to do so. See Danville Area School Dist. v. Danville Area Educ. Ass’n, PSEA/NEA 562 Pa. 238, 754 A.2d 1255, 1262 (2000). Therefore, we will consider whether the trial court abused its discretion when it decided to exclude Dr. Beroes’ testimony because it did not satisfy Frye. In reaching its decision, the trial court viewed Dr. Beroes’ testimony, and hence his tests, as aimed at evaluating certain physical characteristics of Doritos while in the process of being chewed and swallowed. Based on this perspective, the trial court concluded that Dr. Beroes’ testimony was inadmissible because it was not shown that the means he used to evaluate those characteristics was generally accepted by scientists who evaluate food safety. See supra 1042. Appellees argue that the trial court’s determination cannot stand because the.trial court failed to understand that Dr. Beroes measured the crush strength of Doritos by applying the standard calculations that any scientist would use to test the crush strength of a material. Frito-Lay asserts that Appellees’ exclusive focus on the allegedly standard nature of the calculations Dr. Beroes used in his tests is beside the point, insofar as it fails to account for the fact that Dr. Beroes’ conclusions went to the hardness and shape of Doritos as they are eaten, not their physical condition in a vacuum. We agree with Frito-Lay that Appellees’ argument regarding Dr. Beroes’ methodology misses the mark, in light of the conclusion about Doritos that Dr. Beroes was going to present to the jury at trial. That conclusion was not, as Appellees’ position implies, the average downward force that it takes to break various types of Doritos. Rather, it was that Doritos remain too hard and too sharp when being chewed and swallowed for safe eating. While Dr. Beroes’ calculations may in fact represent a standard method that scientists use to reach a conclusion about the downward force needed to break Doritos, they are not also necessarily a generally accepted method that scientists in the relevant field (or fields) use for reaching a conclusion as to whether Doritos remain too hard and too sharp as they are chewed and swallowed to be eaten safely. It was, therefore, incumbent upon Appellees to prove that scientists in the relevant field (or fields) generally accept Dr. Beroes’ methodology as a means for arriving at such a conclusion. Appellees, however, filed no evidence whatsoever in this regard. Thus, Appellees failed to satisfy their burden of proving that Dr. Beroes’ evidence met the Frye rule. Accordingly, we conclude that the trial court did not abuse its discretion in deciding that Dr. Beroes’ testimony was inadmissible, and hold that the Superior Court erred in reversing the trial court’s ruling. In summary, we reaffirm our adherence to the Frye rule; clarify that the rule applies to an expert’s methods, not his conclusions; emphasize that the proponent of the expert scientific evidence bears the burden of proof on the Frye issue; and reiterate that the standard of appellate review on the Frye issue is the abuse of discretion standard. For all the foregoing reasons, we reverse that part of the Superior Court’s order that reversed the trial court’s order granting Frito-Lay’s Motions in limine as to Dr. Beroes’ testimony on the physical characteristics of Doritos, and remand this case to the trial court for proceedings consistent with this opinion. Justice EAKIN did not participate in the consideration or decision of this case. Justice CASTILLE files a concurring opinion. Justice NEWMAN files a concurring opinion. Justice SAYLOR files a concurring opinion. Justice LAMB files a concurring opinion. . Appellees also filed an expert’s report prepared by Augusto N. Delerme, M.D., F.A.C.S. in response to Frito-Lay’s Motion for Summary Judgment. In his report, Dr. Delerme opined that the Doritos that Mr. Grady ate lacerated his esophagus on their passage to his stomach, and that the laceration caused Mr. Grady's injuries. . Frito-Lay also filed a Motion in limine To Preclude The Testimony Of Plaintiff's Expert, Augusto N. Delerme, M.D., F.A.C.S. Frito-Lay alleged that Dr. Delerme, who specialized in otolaryngology, was not qualified to render an opinion on an esophageal tear and that Dr. Delerme’s opinion was inadmissible because it was based on Dr. Beroes' inadmissible opinion. The trial court granted the Motion. See Grady v. Frito-Lay, 2000 WL 33436367 at *3 (Pa.Com.Pl. April 3, 2000). The Superior Court reversed the trial court’s order. Grady v. Frito-Lay, 789 A.2d 735, 740-42 (Pa.Super.2001). Frito-Lay sought our review of the Superior Court's order in this regard. We did not grant review. . The procedure that the trial courts are to follow when a party files a motion to exclude expert testimony is presently set forth in Pa.R.C.P. 207.1. This Rule was adopted on January 22, 2001, and was effective as of July 1, 2001. Therefore, Rule 207.1 is not relevant to our discussion. . We observe that under the Pennsylvania Rules of Civil Procedure in effect at the time, the court was authorized to enter a compulsory non-suit at trial upon the oral motion of the defendant. See Pa.R.Civ.P. 230.1. Before trial, the court was authorized to grant a party's motion for summary judgment if an adverse party who bore the burden of proof at trial had failed to produce evidence of facts essential to his cause of action. See Pa.R.Civ. P. 1035.2(2). No issue was raised in this case as to the procedure that the trial court followed. . At the same time, however, the Superior Court held that the trial court’s ruling as to ''[t]hat portion of the expert testimony of Dr. Beroe’s [sic] relating to the cause of Mr. Grady's esophageal tear was properly excluded as a chemical engineer is not competent or qualified to provide medical causation testimony.” Grady v. Frito-Lay, Inc., 789 A.2d at 742 n. 9 (citation omitted). This part of the Superior Court's decision and order is not before us. . President Judge Del Sole filed a Concurring Statement that Judge Ford Elliot and Judge Orie Melvin joined. Judge Del Sole joined the majority opinion and stated that that when a pre-trial motion challeng ing an expert is filed, the movant must establish that the expert is not qualified to testify. Id. at 744. Judge Joyce filed a Concurring and Dissenting Statement. Judge Joyce joined that part of the majority opinion that permitted Dr. Delerme’s testimony and joined that part of then Judge Eakin's (now Justice Eakin’s) dissent that would have affirmed the trial court's decision to exclude Dr. Beroes' testimony. Id. Then Judge (now Justice) Eakin filed a Dissenting Opinion that Judge Stevens joined. He believed that Appellees failed to show that Dr. Beroes’ testimony met the Frye test, and that the trial court properly exercised its discretion in finding that Dr. Delerme was not qualified to testify about the esophagus. Therefore, he would have affirmed the trial court’s order in its entirety. Id. at 744-47. . When we adopted the Pennsylvania Rules of Evidence in 1998, we did not alter our prior decision in Commonwealth v. Topa, 369 A.2d at 1277, to use the Frye rule for determining the admissibility at trial of scientifically-adduced expert evidence. See 1998 Comment, Pa.R.E. 702. . The Frye test comes from the following passage in the Frye opinion: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014 (emphasis added). . See generally Jane Campbell Moriarty, 1 psychological and scientific evidence in criminal trials § 10:26 and the cases discussed therein. . Id. at § 10.42 and the cases discussed therein. . Frito-Lay asserted that the Frye test is more consistent with Pennsylvania practice, more objective and easier to apply, than is the Daubert standard. (Appellant’s Brief at 24-27). Appellees asserted that Pa.R.E. 702, which codifies the Frye rule, is effective. (Appellees' Brief at 17-21). The Product Liability Council, Inc. in its Brief of Amicus Curiae In Support of Appellant also voiced its support for the Frye rule. . Our reasons for adhering to the Frye rule are among the reasons that other courts have given for their respective views that the rule is sensible and effective. See e.g., People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, 1244-45 (1976); Stokes v. State, 548 So.2d 188, 193-94 (Fla. 1989); State v. Copeland, 130 Wash.2d 244, 922 P.2d 1304, 1312-1315 (1996); Goeb v. Tharaldson, 615 N.W.2d 800, 812-814 (Minn.2000). . To the extent that any decisions are to the contrary, they are wrongly decided. See, e.g., McKenzie v. Westinghouse Electric Co., 674 A.2d 1167 (Pa.Cmwlth. 1996). . We make this observation because we are unable to discern from the record and the lower courts’ respective opinions whether the trial court or the Superior Court made a decision on whether Dr. Beroes was qualified under Pa.R.E. 702 to testify as an expert on Doritos' physical properties in these circumstances. Each court made statements that suggested that it was ruling upon Dr. Beroes’ qualifications in this regard, but those statements were inextricably intertwined with analysis of the Frye question. In light of our disposition of the Frye issue in this appeal, we need not address this matter. . We observe that in its opinion, the trial court did not only conclude that Appellees failed to show that Dr. Beroes’ evidence satisfied the Frye rule. The trial court also affirmatively concluded that Dr. Beroes’ methodology is "junk science” and essentially, not generally accepted by scientists in the relevant field. The record does not support this conclusion. Frito-Lay did not prove that Dr. Beroes' method is not generally accepted by scientists in the relevant field, nor was it required to do so. As we point out, it was Appellees' burden to prove that Frye was satisfied, not Frito-Lay’s burden to prove otherwise.

Opinion, Mr. Justice Clark: This is an appeal by the Philadelphia Finance Company, surety upon the guardianship bond of Henry W. Scott, guardian of William W. Law, from the adjudication by the Orphans’ Court of Philadelphia county, upon the account of said guardian. On January 29,1890, Scott received $3,839.12 of the money of his ward, and immediately deposited the same in the Bank of America. The accountant had kept his personal account, as a depositor, in the same institution for several years, and had been advised by an officer of the finance company, which latter company was surety on his bond as guardian, that the Bank of America was entirely solvent and safe. The deposit was in a separate account, in the name of the guardian as such. No certificate was issued; the whole transaction was evidenced only by an entry of credit upon the books of the bank in the usual form. The accountant was in search of an investment, and the deposit was to remain only until he could find one. The bank agreed to allow him three per cent interest, but he was to give two weeks’ notice before withdrawing it. The bank failed on the thirtieth day of April following. At the time of the deposit the bank was in good repute, and there is no allegation of bad faith, or want of due care or diligence. The only question for our consideration is whether or not, under such circumstances, the trustee is responsible for the amount of the deposit. As a general rule, the measure of care and diligence required ' of a trustee is such as would be pursued by a man of ordinary prudence and skill, in the management of his own estate: Fahnestock’s Appeal, 104 Pa. 46. It is equally well settled, however, that a trustee who invests the funds belonging to a trust on personal security does so at his own risk. This is so well settled that a citation of authorities is unnecessary. Trustees are not bound to transact personally such business connected with the trust as, according to general usage, prudent persons, acting for themselves, would ordinarily transact through mercantile agents. Upon this principle it has been held that a trustee investing trust funds is justified in employing a broker to procure securities authorized by the trust, and in paying the purchase money to a broker, if he follows the usual and regular course of business adopted by ordinarily prudent men in making such investments. So, also, executors, trustees, or guardians will not be liable if, in the ordinary discharge of their duty, they deposit the assets temporarily in a bank, although the bank may fail. But the trustee must be careful to make the deposits in the name of the trust-estate, and not to his personal credit, and not to mix the trust funds with his own; otherwise, he will be liable: Commonwealth v. McAlister, 28 Pa. 486; Rees v. Berrington, 2 White & T. L. C. 986, 987. “ If the subject of the trust be money, it may be deposited for temporary purposes in some responsible banking house, but in such a manner that the cestui que trust may follow the fund into the hands of the bankers; and it is no objection that the bank allows interest on the deposits..... If the trustee put the money to his own credit, and not to the separate account of the trust-estate, or if he allow the drafts of another person to be honored, who draws upon the account and misapplies the money, the trustee will be personally liable for the consequences : ” Lewin on Trusts, 417. Banks of deposit are a recognized necessity in the commercial world. A trustee who would continuously keep for any considerable length of time a large sum of money about his person or in his house, rather than deposit it for safe-keeping in a solvent and reputable bank or trust company, where all the precautions may be exercised for its safety, might justly be regarded as derelict in duty. No one would be accredited with the exercise of common prudence who would keep his own money in this way; and a trustee, as we have said, is held generally for such care and diligence as an ordinarily prudent man would exercise in the conduct and management of his own business. “ A trustee will not be liable for the failure of a bank in which trust funds have been deposited, if he has suffered them to remain there only for a reasonable time; but if he allows them to lie there by way of investment, he will be liable to make good the loss. But he must be careful to make tbe deposit in tbe name of tbe trust-estate, and not to his own credit, and not to mix the. trust funds with his own; otherwise, he will be liable: ” Bispham’s Eq., 139; Perry on Trusts, § 443. Of course, there is no duty to convert securities if, by the terms of the trust instrument, there is sufficient indication that the cestui que trust was intended to enjoy the interest, income, or dividends of the specific securities: Perry on Trusts, 450 ; Hill on Trustees, 582; Bispham’s Eq., 139. Was this transaction with the Bank of America a deposit of the money, or was it a loan or investment of it ? A deposit is where a sum of money is left with a banker for safe-keeping, subject to order, and payable, not in the specific money deposited, but in an equal sum. It may or may not bear interest, according to the agreement. Whilst the relation between the depositor and his banker is that of debtor or creditor simply, the transaction cannot in any proper sense be regarded as a loan, unless the money is left, not for safe-keeping but for a fixed period at interest, in which case the transaction assumes all the characteristics of a loan. The Orphans’ Court decided this case upon the rulings of this court in Frankenfield’s App., 11 W. N. 373, and Baer’s App., 127 Pa. 360; but we think these cases are readily distinguishable from the case at bar. In Frankenfield’s Appeal, supra, there was a loan by the trustee of two thousand dollars of trust funds to the Franklin Savings Bank for three months, with interest at six per cent; thirty days’ notice to be given of the trustee’s intention to withdraw the deposit. The bank was in good repute, and there was no evidence of bad faith or want of care on the part of the trustee. Our Brother Green, in the opinion filed, said: “ If it had been an ordinary deposit, subject to the check of the depositor from the day it was made, the appellant would probably not have been liable; but it was not a deposit, it was a loan upon merely personal security for a fixed period, at interest; and during that period the money, because of the loan, was entirely beyond the trustee’s control. The twenty-fifth section of the act of June 12, 1836, expressly provides that such investments must be made under the direction of the Court of Common Pleas, and only exempts the trustee from liability when he pursues this course in good faith.” In Baer’s Appeal, supra, the banker’s certificate of deposit was substantially in the same form as in Frankenfield’s Appeal, supra, .excepting that there was no stipulation for notice of the withdrawal of the deposit. The transaction possessed all the qualities of a loan of money for a year at four per cent interest. It is of no consequence that the borrower is a bank, for a bank may borrow money. Parties engaged in the banking business, whether as individuals or as members of a partnership or of a corporation, may take a loan of money for a fixed period of time at interest, with like effect as persons engaged in other pursuits. The transaction may be termed a time deposit, but it is none the less a loan, and subjects the lender to that degree of responsibility. In the present case, the money was placed in the bank, not as an investment for any fixed period, but merely for safekeeping, and at a small rate of interest until a suitable investment could be found. This was the express understanding of both parties at the time. The transaction was entered upon the books of the bank as a deposit merely. It was treated as a temporary, provisional, or precautionary arrangement. No person would speak of this as an investment; an investment carries with it a greater or less degree of permanency, which does not characterize this transaction. It is true that two weeks’ notice was to be given of the withdrawal of the deposit, but this was a reasonable provision and not inconsistent with a bank deposit. Almost all savings institutions stipulate for notice of withdrawal with their depositors, and such a stipulation is for the benefit not only of the bank, but also of its depositors ; the reasonableness of the time is a question in each case to be determined by the court. It is said the trustee thereby loses control of the money; but that is not the true test. The depositor always, in a certain sense, loses control of the money when he places it in bank; for the bank may refuse payment of his checks, and, as he then has no claim upon the specific money, he stands upon the footing of a creditor merely. It is true, a trustee, as a general rule, is not allowed to part with the control of trust money: Salway v. Salway, 2 Russ. & M. 215 ; but he may do so by way of precaution against loss, by a deposit in a solvent and reputable bank. A deposit, as we have said, is a temporary disposition of money for safekeeping ; and it is upon this ground alone that the trustee is justified in depositing trust funds in bank, and it is upon tbe same ground that a deposit is distinguishable from an investment. We are of opinion, for the reasons stated, that the trustee was not properly chargeable with this loss; The decree of the Orphans’ Court is reversed, and the record remitted in order that the account may be restated and a decree entered in accordance with this opinion; the appellee to pay the costs of this appeal.

SPAETH, Judge: This is a child custody case. John and James LaRue were born on January 2, 1971. They lived with their mother, Joanne, until July 12, 1971, when she signed an entrustment agreement placing them in the custody of the Allegheny County Child Welfare Services. On November 10, 1971, CWS placed the twins with Dove and Allie Harp. On January 17, 1975, Joanne LaRue revoked her entrustment agreement and notified CWS that she wanted the twins returned to her care. CWS responded by filing a petition under the Juvenile Act, Act of Dec. 6, 1972, P.L. 1464, No. 333, 11 Pa.C.S. § 50-101 et seq. (Supp.1976), alleging that the twins were “deprived” within the meaning of the Act. Following a hearing on March 5, 1975, the lower court ordered that CWS retain custody and continue placement of the twins with the Harps; the court continued the case for six months to afford it an opportunity to review its order. This appeal followed. I The fundamental principle, from which all other principles in custody cases derive, is that a child should grow up as part of its natural family. The role of the State is to do everything possible to ensure that the family will be strong ?md wholesome. Thus, the Juvenile Act, 11 Pa.C.S. § 50-101 (b) provides: (b) This act shall be interpreted and construed as to effectuate the following purposes: (1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this act; (2) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation; (3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety; (4) To provide means through which the provisions of this act are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced. The primacy that this statement of purposes assigns to the family reflects the emphasis we place on the individual. In our view, government does not exist for its own sake but to create and maintain a social order in which the abilities of every individual may be realized to their fullest extent. In such an order the family is one of the most important institutions. Within its shelter, more than anywhere else, we may find the love and security we all need. Thus the courts have repeatedly acted to protect the family. In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1922), the issue was the validity of a state statute forbidding the teaching of a foreign language to any child who had not successfully finished the eighth grade. In holding the statute invalid, the Court said that parents have a right “within the liberty of the [Fourteenth] Amendment,” id. at 400, 43 S.Ct. at 627, to have their children instructed in a foreign language. Liberty, said Mr. Justice McReynolds, denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Id. at 399, 43 S.Ct. at 626. In Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1924), the Court held invalid a state statute that required public school education of children aged eight to sixteen. The statute, said the Court, unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. .• . . The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Id. at 534-35, 45 S.Ct. at 573. In Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), the Court referred to marriage and procreation as among “the basic civil rights of man.” In Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), it said that the care of children is within “the private realm of family life which the state cannot enter.” In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court held that an anticontraceptive statute violated the right of marital privacy, and in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), that a statute prohibiting interracial marriage was a denial of due process. In Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 727, 35 L.Ed.2d 147 (1973), the Court held a woman’s “right of privacy . . . broad enough to encompass [her] decision whether or not to terminate her pregnancy.” In Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974), it held that a regulation requiring a pregnant teacher to take early leave was invalid as “acting to penalize [her] for deciding to bear a child.” None of this is to say that the State does not have any right to intrude upon the family. The conception of Roman law that the father is the sovereign of his family is gone — assuming we ever shared it. See generally E. Bodenheimer, Jurisprudence 18-19 (1974). Parents may not dispose of their children at will. The right to have and to raise children is coupled with a “high duty”. Pierce v. Society of Sisters, supra 268 U.S. at 535, 45 S.Ct. 571. Too often this duty is ignored. Instead of a shelter where love and security may be found, the family becomes a Hell. No one who has seen what parents sometimes do to children will think this language too strong. The Battered Child (R. Heller and C. Kempe eds. 1968); see also, V. Fontana, Somewhere a Child is Crying (1973); PLI, Effective Utilization of Psychiatric Evidence, ch. 5 (Criminal Law and Urban Problems 1970). Thus arises one of the most difficult problems in the law. On the one hand, the State has an interest in requiring parents to respect the duty they owe their children. Roe v. Wade, supra. On the other hand, in requiring that respect, the State must be cautious not to intrude upon the family to the point of weakening it as one of our most important institutions. The way to resolve this problem is to impose restraints upon the State, not to prevent its officials from reacting to a child’s plight, but to prevent them from overreacting. No doubt one official will be sensitive and wise, but another will be a self-righteous prig; and that is the one we must guard against, for backed by the State, his power may overwhelm any parent. Of such restraints upon the State, the most important is the principle that a child may not be taken from its parents except upon proof of “clear necessity.” In re: Adoption of R. I., 468 Pa. 287, 361 A.2d 294 (filed July 6, 1976); Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974); Rinker Appeal, 180 Pa.Super. 143, 117 A.2d 780 (1955). In-the present case, the lower court ignored this principle. Instead, it decided the case as it would the usual custody case, where the question is whether the mother or father should have the child. That is to say, the court awarded the twins to the foster parents, and denied custody to their mother, because it found that that was in the twins’ “best interest.” Lower court slip opinion at 13. This was error. “Best interest” is a much less exacting standard than “clear necessity.” “Best interest” is a general welfare standard. Thus, in deciding in the usual custody case whether the mother or father should have the child, the court will typically consider such matters as the size and location of the mother’s home as compared with the father’s, the mother’s character as compared with the father’s, the availability of educational and religious facilities, and the mother’s financial resources as compared with the father’s. To hold that the present case should be decided in this manner would destroy the primacy we have assigned the family, as seen both in the cases and the Juvenile Act. Accept “best interest” as the standard by which to decide whether a child may be taken from the family, and social workers and judges of strong religious convictions will disapprove of a family when the child does not attend Sunday School; other social workers and judges, because of a family’s social habits (the mother smokes marihuana; she lives with a man not her husband; the marriage is interracial); others, because of a family’s economic status (the family is on welfare; it lives in a trailer; the husband is constantly changing jobs). Should this be thought an overstatement, consider such cases as Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976), and Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). And see Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). This does not mean that in a given case the family in question might not merit disapproval; it might. However, that should not entitle a court to take away its child: It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity. . The welfare of many children might be served by taking them from their homes and placing them in what the officials consider a better home. But the Juvenile Court Law [now the Juvenile Act] was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy. Rinker Appeal, supra, 180 Pa.Super. at 148, 117 A.2d at 783. It is to prevent such actions that our courts have insisted that a child may be taken from its parents only upon proof of “clear necessity,” and not upon proof of what may be in the child’s “best interest”. II The requirements that must be met before a child maybe taken from its parents, are clearly set forth in the Juvenile Act. A The proceeding to take a child from its family may commence in a variety of ways, as for example by a petition by a social welfare agency to have the child declared deprived, or by a petition for habeas corpus brought by the natural parents, or upon petition by the foster parents. See Stapleton v. Dauphin County Child Care Service, supra. Whatever the form of proceeding, however, the issue that the hearing judge must determine is whether the child is a “deprived” child within the meaning of the Juvenile Act. In making this determination, the hearing judge is controlled by the provision of the Juvenile Act that a “deprived” child is one who: (i) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals; or (ii) has been placed for care or adoption in violation of law; or (iii) has been abandoned by his parents, guardian, or other custodian; or (iv) is without a parent, guardian, or legal custodian; or (v) while subject to compulsory school attendance is habitually and without justification truant from school. 11 Pa.C.S. § 50-102(4). The burden of proof should be on the party asking that the child be taken from its parents, and before the hearing judge may find the child deprived, the evidence must be “clear and convincing.” 11 Pa.C.S. § 50-320(c). Evidence should be received from all interested parties, and the child should be represented by counsel, for its interests may be distinct from any other party’s, Stapleton v. Dauphin County Child Care Service, supra. The judge should receive, and if necessary should seek out, evidence from objective, disinterested witnesses. Cf. Gunter v. Gunter, supra. His inquiry should be comprehensive and searching, and his conclusion as to whether the child is deprived should be supported by specific findings of fact and a full discussion of the evidence. Cf. Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973). B Let us suppose the hearing judge decides that a child who has been entrusted to foster parents is deprived. He should then determine what “disposition [is] best suited to the protection and physical, mental, and moral welfare of the child.” 11 Pa.C.S. § 50-321. In making this determination, the judge should be guided by the legislative statement of purposes in the Juvenile Act. He should try “to provide for the care, protection, and wholesome mental and physical development” of the child, and at the same time he should try “ [t] o preserve the unity of the family whenever possible.” 11 Pa.C.S. § 50-101. In a given case it may be that the attainment of these objectives will involve making a choice. Thus it may appear that to provide for the wholesome development of the child, the child should be taken from its family. If the hearing judge is led by the evidence to consider such a choice, he must act within the limits imposed both by the legislature, “separating the child from parents only when necessary,” 11 Pa.C.S. § 50-101 (b) (3), and by the cases, only on proof of “clear necessity,” In re: Adoption of R. I., supra; Stapleton v. Dauphin County Child Care Service, supra; Rinker Appeal, supra. In the present case it would not be surprising if on remand the hearing judge would find the twins deprived, and would be led by the evidence to believe that he must decide whether to take them from their mother. It is at this juncture that the factual history of the entrustment agreement might be particularly pertinent. Both the possibility and the desirability of trying to “preserve the unity of the family” may be critically affected by the influence on the child, and also on its parents, of the passage of time. See the discussion in Gunter v. Gunter, supra. Many factors must be taken into account. Among them should be: the age and mental development of the child; the extent to which a relationship with its parents has been preserved, and the nature of that relationship; the extent to which a relationship with the child’s foster parents has been established, and the degree to which that relationship has become like that of a natural family. In this regard, the hearing judge may have to appraise the significance of the entrustment agreement. Judge HOFFMAN correctly suggests that in the present case CWS appears to have exploited the entrustment agreement to separate rather than to preserve the family. (Indeed, it is just such conduct that led to the expression of distrust, in Part I of this opinion of officials who, acting in what they perceive to be a child’s “best interest,” would take a child from its parents.) The judge should learn why the parents signed the entrustment agreement, and whether they understood what the consequences might be. The judge should also learn the manner in which the agreement has been administered. Questions such as these should be asked: Was there resort to the agreement because of pressing need, or because of the parents’ disinterest in raising their child? While the child was entrusted to another, what efforts were made — by all concerned — to encourage and help the parents to resume, or to start, raising their child? Such inquiry will enable the hearing judge to learn how much vitality the. natural family retains; that determined, he may come to a surer decision on whether he should require the attempt to raise the child within the family, or entrust its care to someone else. One cannot pretend that it will be easy to determine how much vitality the family retains. It may be done, however, if the hearing judge will always bear in mind the reason our law requires him to try to preserve the family. It is not to preserve a mere social form, or a convention from the past, but to provide our children a place of shelter and love, so that they may grow in freedom and strength. The measure of a family’s vitality is its ability to perform this function. Some of the questions a hearing judge should ask have already been suggested. Stated more generally, his inquiry should be to determine the source of the difficulties of the family whose child is before him. Do the family’s difficulties come from within? Do the parents understand their “high duty” to their children? Can they be helped to understand? If they understand, do they have the personal resources to act upon their understanding? Or do the family’s difficulties come from without ? Has the family been overwhelmed by sickness ? By economic problems? What are the chances of helping the family overcome such difficulties? By adopting such an approach, the hearing judge may reasonably expect some degree of success in his difficult task. In one case, the judge may find that the natural family retains enough vitality to require the attempt to preserve it, in another, that as the child’s personal history has evolved, it neither has nor can expect to have a natural family able to afford it the security and love it needs. C Let us next suppose the hearing judge finds that a child who has been entrusted to foster parents is not de prived. Then what should the judge do? In approaching this question, it will be convenient first to examine the lower court’s answer, as disclosed by its opinion. 1 The lower court said that it was unable to decide whether the twins were deprived since a finding of deprivation is a “present finding” and cannot relate to the past or [be] projected to the future. The children are in a good home, doing well, and under no construction of the term deprived can this court find them deprived. Slip opinion of lower court at 7. This was error. The question before the lower court was not whether the child was “in a good home, doing well,” but whether the child was a “deprived child” within one of the definitions of the Juvenile Act. As has been discussed, a fundamental purpose of the Act is “[t]o preserve the unity of the family whenever possible.” 11 Pa.C.S. § 50-101 (b). The definitions of a “deprived child” are consistent with this purpose. Thus a child may be “in a good home, doing well,” but if that home is not the home of the child’s parents, the possibility may nevertheless arise that the child is “deprived.” [1.0] For example: if the child “has been abandoned by his parents,” 11 Pa.C.S. § 50-102(4) (iii), or “has been placed for care or adoption in violation of law,” 11 Pa.C.S. § 50-102(4) (ii), the fact that the child is in a good home, doing well, will not preclude, or even be relevant to, deciding whether the child is “deprived.” To consider the case at hand: Here, the question before the lower court was whether the twins were “deprived” in that they “[were] without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [their] physical, mental, or emotional health, or morals.” 11 Pa.C.S. § 50-102(4) (i). This question was not made inapplicable, or unanswerable, simply by virtue of the fact that pursuant to an entrustment agreement the twins were in a good home, doing well. In order to decide whether a child is one who “is without proper parental care or control,” the hearing judge must decide not only whether at this moment there is proper parental care or control. If that were all the judge had to decide, no child living with foster parents could ever be deprived; the reasoning would be that since the child was under the care of foster parents, it was “without” the care of its own parents. However, such a construction of the Juvenile Act would not only be strained but inconsistent with, and destructive of, the Act’s fundamental purpose of preserving the unity of the family. The question, “Is [the child] without proper parental care or control?”, includes two questions: “Is the child at this moment without proper parental care or control?”; and, if so, “Is such care or control immediately available?” This is simply another illustration of the frequently encountered fact that to ask whether something is so may imply asking whether it may be made so. Consider the following two cases. First: The hearing judge finds that if he returns the child to the parents, the child will be beaten and starved. The judge may go on to find that the child “is without proper parental care,” and therefore “deprived.” In re: Dale Henry DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976). In this regard, the lower court’s belief that it could not look to the future was mistaken; it may have to look to the future. Second: The child’s parents were hospitalized because of an automobile accident. While they were hospitalized, their child was, pursuant to an entrustment agreement, placed with foster parents. The parents now seek the return of their child. The hearing judge finds that if he returns the child to the parents, the child will be loved and nour ished. The judge may go on to find that although the child is without proper parental care, because it is with the foster, not natural, parents, nevertheless, proper parental care is immediately availoMe. The judge must then go on to find that the child is not “deprived.” For the judge to say that the child is “deprived” would be to say to the parents, “I know that if I give you your child, you will give it proper care; however, I’m not going to give you your child.” This would be an exercise of judicial power, not reason. To state the proposition in abstract terms: The court may take Action A (refuse return of child), provided that Condition Z (no proper parental care) exists. This means that A is justified only if Z exists as a fact independent of the court. The court may not justify A by itself creating Z. 2 The foregoing having been said, it is now possible to answer the question, what should the hearing judge do, if he finds that a child who has been entrusted to foster parents is not deprived ? If the hearing judge finds that a child who has been entrusted to foster parents is not deprived, there can be no doubt as to what the judge must do: he must return the child to the parents. This conclusion is compelled by the statutory scheme of the Juvenile Act. As discussed in Parts I and II-A of this opinion, under the Act and also under the cases — a child may be separated from the parents only when both of two conditions are satisfied: there is “clear and convincing” evidence that the child is “deprived;” and there is proof of “clear necessity” for separating the child from the parents. Ill Accordingly, the record is remanded with instructions that a new hearing be conducted consistent with this opinion. In addition, two further constraints are imposed: First, the hearing must be before another judge, who will come to the case fresh. And second, the hearing must proceed with utmost dispatch. If time heals, it also wounds. Final order must follow remand by no more than 90 days. CERCONE, J., files a concurring opinion. HOFFMAN, J., files a dissenting opinion. PRICE, J., files a dissenting opinion in which VAN der VOORT, J., joins. . Judge Hoffman says that “the Juvenile Act did not contemplate the use of entrustment agreements . . ..” Dissenting opinion in support of remand 244 Pa.Super. at 1287; also, 244 Pa.Super. at 1285. This seems very much like the lower court’s statement that if a child is in a “good [foster] home, doing well” no finding of deprivation can be made. However, in the opinion of a majority of this court, the Juvenile Act did contemplate the use of entrustment agreements. As just discussed at some length in the course of examining the opinion of the lower court, the Act’s definition of a “deprived child” includes both the case of a child with the parents and the case of a child who has been entrusted to foster parents. Since the Act is complete, it is not necessary “to fashion procedures and standards” not authorized by, and inconsistent with, the Act. Dissenting opinion in support of remand 244 Pa.Super. at 1287, 1288 n. 12. . Judge Hoffman states that “[i]f the court determines that the child will not be deprived, then the court must determine whether there are, nevertheless, compelling reasons for continuing custody of the child with the foster parents.” Dissenting opinion in support of remand 244 Pa.Super. at 1281. However, there is no reason that the foster parents’ custody should be emphasized instead of the unity of the family, i. e., the natural parents’ custody. Nor is it apparent how “compelling reasons” differs from “clear necessity”.

Opinion by Mb. Justice Gbeen, We dismiss the first and second assignments of error, because we think that the cause of complaint is one that is common to all the plaintiffs, the right under which all claim is precisely the same as to each, the complaint of all is against the same defendant for the doing of acts which affected all alike and in the same manner, the defence set up is common to all the plaintiffs, and the testimony, proofs and decree are alike as to all the plaintiffs. It is not necessary to cite authorities to show that when all these matters concur a bill filed l?y several such plaintiffs against a common defendant is not multifarious. On the merits of the ease it is not contested that all the powers which the passenger railway company possessed were conferred upon the Traction Co. by the agreement between the two companies made December 27, 1888. It must also be conceded that the Traction Co. had full power, under the act of 1887, “ to lease the property and franchises of passenger railway companies which they may desire to operate, and to operate said railways,” and also “ to enter upon any street upon which a passenger railway now 'is, or may hereafter be constructed, with the consent of said passenger railway company, and make, construct, maintain and operate thereon such motors, cables, electrical or other appliances, and the necessary and convenient apparatus and mechanical fixtures, as will provide for the traction of the cars of such passenger railway, and to enter into contracts with passenger railway companies to construct and operate motors, cables or other appliances necessary for the traction of their cars.” Under the ample powers and rights conferred by the act of 1887 it cannot be doubted that the defendant company had full power and authority to enter into the contract in question with the Central Passenger Railway Co. The authority of the Traction Co., however, to do the acts complained of in this case is denied upon two grounds. One is that the power of the Traction Co. is limited by the act of 1887 to laying tracks upon streets where tracks had already been laid, and therefore no entry for that purpose could be made upon any street in which the tracks of the railway company had never been laid. It is replied to this objection that the railway company had the undoubted right to lay tracks on High street, under their charter and the city ordinances giving consent. The master so found, and there is no question that his finding on that subject is correct. The first section of the charter authorized the construction of a railway along certain streets named, “ and with such branch or branches as the said company may at any time adopt.” At a meeting of the directors of the railway company, held December 24, 1888, a resolution was passed, adopting certain branches to the main line, among which was one through High street in both directions. By an ordinance of the city councils, passed February 6, 1889, authority was given to the railway company to enter upon the several streets named, including High street, and to construct, maintain and operate its passenger railways thereon. By another ordinance of the same date the Central Traction Company was authorized to enter, with the consent of the Central Passenger Railway Company, upon any street upon which their railway now is, or may hereafter be, constructed, for the purpose of constructing, maintaining and operating in and upon any or all of said streets and avenues, such motors, cables, electrical or other appliances, and such necessary and convenient apparatus and mechanical fixtures as will provide for the traction of cars. We know of no reason to question the legal efiicacy of any of these proceedings. The adoption of a branch through High street was made by the board of directors of the railway company at a meeting regularly held. The ordinances of the city councils were duly enacted by the proper authorities. Everything done was in strict conformity with all legal requirements, and, in our opinion, sufficed to clothe with authority of law all the acts of the several parties done in conformity with those requirements. On'December 27, 1888, a formal contract was entered into between the two companies, by which the railway company agreed that the Traction Company might enter upon any and all. highways on which the tracks of the railway Company “ now are or hereafter may be constructed, and may there construct, maintain and operate during the term of this contract, such motors, cables, electrical or other appliances, and such necessaiy and convenient apparatus and mechanical fixtures, as will provide for the traction of cars on the track of said Passenger Railway Company.” The contract was to continue during the term of ninety-nine years, and contained other provisions as to details, and required the Traction Company to pay an annual sum of $26,250, in consideration for the rights and privileges granted by the contract. If this contract was within the power of the contracting parties to make, we cannot perceive the slightest reason for questioning the good faith, or the right of either of the parties to consent to its terms and become bound by them. It is not a matter of the smallest possible consequence whether either or both of the parties found it to their pecuniary advantage to enter into and to execute this engagement. The learned court below found that “ the new route probably accommodates more people than the old one did, and the company has given rapid, frequent and comfortable transportation to the public, in place of the slow, infrequent and uncomfortable passage of the old passenger railway.” This being so, the public is a gainer by the transactions of the two companies, and their interests ought not to be sacrificed, except for plain and sufficient reasons. The learned master was of opinion that because the railway company had not in point of fact laid a track or tracks upon High street, before the tracks were laid there by the Traction Co., the power to lay them did not exist under the agreement and ordinances, because the act of 1887, under which the defendant company was organized, only gave authority to lay tracks upon any street upon which “ a passenger railway now is or may hereafter be constructed.” The result of the reasoning of the master would simply be that if the railway company had first laid tracks on High street, the Traction Co. could lawfully make the contract in question, and enter upon the street, tear up the tracks previously laid by the railway company* and thereupon proceed to lay the cable tracks. It can hardly be that the question of statutory authority can be made to depend upon such a consideration as that. If it did, it would only be necessary for the Traction Co. to take up its tracks, for the railway company thereupon to lay its tracks, and then for the Traction Co. to take them up and relay its own again. But, in our opinion, there is no occasion to resort to such a subterfuge. The plain meaning of the act is, that if, at the time of its passage, a railway track had already been laid, or if, thereafter, a railway track might legally be laid, by a passenger railway company, the Traction Co. could contract with the railway-company to construct motors, cables, etc., by means of which to run the cars. It would be absurd to say that, if the railway company was legally authorized to lay a horse-car track, but had not yet laid it, and desired to lay a cable track, it could not do so without first laying a horse-ear track, and then contracting with a cable company to have the latter lay a cable track. If the cable track could lawfully be laid at all, and if the horse-car company had a legal right to lay a horse-car track, and also a legal right to have a cable track laid, instead of a horse-car track, it certainly cannot be that the prior laying and destruction of a horse-car track is a condition precedent to the right to lay a cable track. The act of 1887 does not require any such strained and unreasonable construction. It is only necessary to read the word “ may ” before the word “ hereafter,” in the first section, in its ordinary sense, to understand the propriety of this reading. The master and the learned court below read the word “may” as if it were the word “shall,” and inferred that the word was imperative, and implied that the railway track must have been actually laid in advance of the right to contract for a cable track; whereas, the word “ may ” does not necessarily import anything more than that a railway track may be laid; that is that there is a right to lay it. There is no doubt that the railway company had the right to lay a track on High street, at the time of the contract, and was not restricted as to the kind of track it should lay. Its power did not depend upon the act of 1887, and it is not possible to understand why the Traction Co., with a power to contract for the' laying of a cable track, where a horse-car track was already laid, could not contract to lay a cable track where a horse-car track may be laid. Its right to do so comes within the letter of the act, and it is very plain that the act intended by the words, “ or may hereafter be constructed,” to enlarge th6 scope of the powers of the traction companies, so as to embrace future development, as well as that which already existed. To hold, as the master and the court below held, would be to rule that the general powers of the traction companies were restrained by these words, “ may hereafter be constructed; ” whereas, they were plainly intended to enlarge them. This idea is confirmed by the concluding words of the first clause of the section, viz., “ and to enter into contracts with passenger railway companies to construct and operate motors, cables or other appliances necessary for the traction of their cars.” These words are general, and confer upon the motor companies the general power to contract with all passenger railway companies for the construction and operation of motors, cables and other appliances. No limitation is here placed upon the power to contract to do, practically, the same things which the previous clause of the section provided for. The geiierality of the construction we have indicated, for the first part of the section, is also strengthened by the eighth clause, of the powers specifically conferred by the concluding clause of the same section, to wit: “ To lease the property and franchises of passenger railway companies, which they may desire to operate, and to operate said railways.” Here, also, the power conferred is without any restriction, and embraces all passenger railway companies. The power to lease and operate the property and franchises of passenger railway companies necessarily includes all the franchises, rights and privileges of the company leased, and among these is, necessarily, such light to occupy streets and lay tracks as the leased company is possessed of. We are, therefore, of the opinion, that the right of the Traction Co., defendant, to enter into the contract in question in the present case, was fully conferred by the act of 1887, and cannot be restrained, as to the laying of tracks, to the laying of tracks only upon such streets as the railway company had already laid tracks upon prior to the making of the contract. The learned court below went further than the master, and held that the railway company had no power to make such a contract as it did, because the contract was a virtual surrender of all the property and franchises of the company to another corporation, which could only be done under express statutory authority, and such authority, the court held, did not exist as to the Central Passenger Railway Co. To this the defendant company replies, that the necessary statutory authority to make the contract in question does exist, and is conferred by the act of Feb. 17, 1870, P. L. 81. The learned court below admits that under our decisions in the case of the Hestonville R. R. Co. v. City, 89 Pa. 210, and Millvale Borough v. Evergreen Pass. Railway Co., 131 Pa. 1, the act of 1870 will apply to the Central Passenger Railway Co., but holds that under the rules of interpretation laid down in Gyger v. Philadelphia Railway Co., 136 Pa. 96, the act of 1870 was not intended to, and does not apply to passenger railway companies. We do not agree that there is any inconsistency in these several decisions. They, all of them, and especially the last one cited, hold that the terms “ railway ” and “ railroad ” are synonymous, and have no distinct and independent meaning in themselves, and that when either of the words is used in a statutory or constitutional provision, and the context is without indication that a particular kind of road is intended, the provision will be held applicable to every species of road embraced in.the general sense of the word used. In the Gyger case we held that there was very clear indication in the context of § 4, article XVII of the constitution, that passenger railways were not intended to be included in the provisions of that section, and for that reason only we held that street railway companies were not included within the prohibition of the section. The considerations which led us to that conclusion are fully presented in the opinion, and they are in entire harmony with everything that was said and decided in .the other two cases cited. In the present case those considerations are not applicable, and we are entirely clear, upon the reasoning in all three of the cases, that the act of 1870 does include passenger railroad companies as well as steam railroad companies. The language is very general, and embraces all railroads without distinction. The court below was of opinion that, because it included railroads in other states, it could not have been intended to include passenger railroads in this state. We do not see the force of that inference. The power to contract for railroads in other states is especially given, because it would be necessary to give it by express mention, they being extraterritorial. But surely, if without that enlargement of the subject-matter, the language of the act would embrace passenger- railroads, the extension of the power to embrace railroads out of the state cannot operate to cut off or exclude passenger railroads within the state by mere implication. The words which extend the contracting power to roads out of the state are words of enlargement of power, not of restriction upon powers already granted by the act, and we cannot give them such meaning by mere intendment. Another objection is made to the application of the act of 1870, because no continuous connection is made between the road of the passenger company, and any road of the Traction Co., and under the proviso of the act such connection is necessary before the act can operate. This raises a question not of construction of the act, but whether companies seeking to make use of it have brought themselves within its terms. As the Traction Co. has no road of its own, there is much plausibility in this contention, but yet the question still remains whether the plaintiffs are in a position to sustain their bill on this ground. If they have no interest arising from a remediable injury, it is difficult to understand how they can invoke the aid of the law to correct an excessive exercise of power by making the lease or contract in question. If they have done that they are responsible to the commonwealth, but not to a private citizen, who has sustained no special injury for which he is entitled to redress. It has been many times held, and by many different courts, that the use of a public street for purposes of street railroads is hot the imposition of an additional servitude, and does not entitle the abutting landowners along the street to compensation for such use. In the case of Lock-hart v. The Craig Street Ry. Co., 139 Pa. 419, we affirmed the lower court in the following ruling: “ It cannot be doubted at this day that the legislature of Pennsylvania has the power to authorize the incorporation of companies, with power to build and operate railways with horses over the streets of cities, with the authority and consent of the authorities of said cities, as provided by § 9, article xvn of the constitution. And it is too late to say that such use and occupation of the streets impose such an additional burden, or servitude thereon, as renders it necessary to provide for compensation therefor to the owners of abutting property. ... So far as the street use proper is concerned there is no substantial difference between the tracks of such a street railway and one operated by electricity. . . . And it may be now taken as settled that the owner’s rights as to abutting property are subject to the paramount right of the public, and the rights of the public are not limited to a mere right of way, but extend to all beneficial legitimate street uses, such as the public may from time to'time require. . . . Recognizing the right of the legislature and city authorities to authorize the building of railways upon the streets of a city without compensation to property owners, because it is a means of public transportation and accommodation, the necessary and proper apparatus for moving them must be allowed to follow as an incident, unless there is something illegal in its construction or use.” In Halsey v. Railway Co., 20 Atlantic Rep. 859, (court of chancery, New Jersey, 1890,) it was held that land taken for a street is taken for all time, and compensation is made once for all, and by the taking the public acquire the right to use it for travel, not onty by such means as were in use when the land was acquired, but by such other means as new wants and the improvements of the age may render necessary; and that the question, whether a new method of using the street for public travel results in the imposition of an additional burden on the land or not, must be determined by the use which the new method makes of the street, and not by the motive power which it employs in such use, It was also held that the erection of poles in the centre of the street and on the sidewalk in front of the plaintiff’s property, with connecting wires, for the purpose of applying electricity as a motive power to propel street ears, was not imposing an additional servitude upon the street, and that the owner had no cause of action. In Williams v. Ry. Co., 41 Fed. Rep. 556, the court said: “ The operation of a street railroad by mechanical powei', when authorized by law, on a public street, is not an additional servitude or burden on land already dedicated or condemned to the use of a public street, and is, therefore, not a taking of private property, but is a modern and improved use of the street as a public highway, and affords to the abutting property holder, though he may own the fee of the street, no legal ground of complaint.” In the case of Briggs v. Railway Co., 79 Maine, 363, the court said: “We do not think the construction and operation of a street railroad in a street is a new and different use of the land from its use as a highway. The modes of using a highway, strictly as a highway, are almost innumerable, and they vary and widen with the progress of the community. . . . The laying down of rails in the street and running street cars over them for the accommodation of' persons desiring to travel on the street is only a later mode of using the land as a way, using it for the very purpose for which it was originally taken. It may be a change in the mode, but it is not a change in the use. . . . We do not think the motor is the criterion. . . . This defendant company is using the land as a street. Its railroad is a .street, railroad. Its cars are used by those who wish to pass from place to place on the street. A change in the mode is not a change in the use.” All of this is strictly applicable to the facts of the present case. High street was a public street of the city before the defendant’s tracks were laid, and it is so still. Whether the motive power of the cars be horses, electricity or a submerged cable, makes no difference in the use, and no one of these modes of use confers any right of action upon the abutting owner. In Taggart v. Newport Street Ry. Co., 7 Ry. & Corp. L. J. 385, it was also held that a street railway operated by electricity imposed no new servitude upon the property owner, although poles and wires were erected in the street in connection with the railway. Laying a street-ear track so close to the sidewalk that vehicles cannot stand, gives no ground for action: Kellinger v. Railway Co., 50 N. Y. 206. It. is claimed for the plaintiffs that their right of free access to their property along High street is interfered with, because vehicles cannot stand between the railway tracks and the curbing without interfering with the cars. But the right of the property owner in this respect is not at all changed. He has the same right, after the tracks are laid and the cars running, that he had before. It is a right which must be exercised in reason, whether there are car tracks on the street or not. In no circumstances does it confer the privilege of obstruction by unreasonable exercise. But the reasonable exercise of the right gives no right to the street-car companies to arrest it. If, at any time, the owner has occasion for the presence of vehicles in front of his propert}1- on the street, to take away or deliver persons or goods, he may exercise that right for such reasonable time as is necessary for his purposes; and if, in such exercise of the right, the passage of street cars is impeded, the street cars must wait. Such stoppage of cars is a matter of hourly occurrence in all large towns and cities where streetcar tracks are laid upon narrow streets, and it was proved on the hearing before the master that not only in Pittsburgh and Allegheny, but in Philadelphia, there are numerous instances of this kind. It was also proved that, in actual fact, there had been no trouble of this kind on High street since the cars were running, but the important question is as to the existence of the right of the owner, and not as to its abuse, by either the street-car company or the owner. For such abuse by the company, on the one hand, or the owner on the other, each is responsible, and each has adequate remedy. These principles are sustained by abundant authority, and they are the teachings of common sense. The same is true respecting the right of access to the pipes and mains lying under the surface of the street. Some of them were lowered slightly by the defendant company to make room for the conduit for their cables, and the connections were restored by the company. The right of future access to those pipes and mains by the owner remains precisely the same as it was before. A slight difference in the depth to which the owner must go, upon the very rare occasions when he may desire to make repairs, or new connections, is so very trivial that it must be regarded as damnum absque injuria. If for any reason, such as change of grade, by the municipal authorities, or to get below the frost, the pipes and mains require to be lowered, it certainly has never been supposed that the owners would have a right to recover damages against the municipality or other authority on account of such lowering of the pipes and mains. We do not at all agree with the learned court below, that the occupation of the street by the tracks and motors of the defendant has diminished the value of the plaintiffs’ properties from one third to one half. The testimony to that effect was chiefly the interested testimony of'the plaintiffs themselves, and was matter of opinion only, fortified by no actual facts. It was admitted by two of them that there was no change in the rental value of their properties, and that is as fair an actual test of market value as can ordinarily be shown._ Other testimony was to the effect that there was no decrease of value in the properties, and this opinion was supported by instances of property sales in other localities where similar conditions existed. This subject, however, is not controlling, and is only alluded to because it was made the subject of a distinct finding by the learned court below, which we think was not justified by the testimony. Upon the whole case, and a review of all the testimony, we are of opinion that the Traction Co. had ample authority, under the act of 1887, to make the contract with the Passenger Railway Co., and that whether the latter company exceeded its lawful authority by becoming a party to the contract is a question of the excessive exercise of power by a corporation, for which it is amenable to the commonwealth, but not to a private suitor, unless he has sustained a private injury, for which he has legal redress. We hold that these plaintiffs have not sustained such injury, and, therefore, have no standing to maintain their bill. We think, however, that in view of all the circumstances, the cosfs should not be imposed upon the plaintiffs, but should be borne by the defendant. The decree of the court below is reversed, and the bill of the plaintiffs and all proceedings thereunder are dismissed and set aside, but all the costs of the case shall be paid by the defendant.

Opinion by Mr. Chief Justice Paxson, This was an action of ejectment in the court below. The plaintiffs showed title to the locus in quo by certain deeds, and by proceedings to condemn it for railroad purposes. The defendants contended that if the plaintiffs did actually condemn the strip of ground in question, they could not recover in ejectment for the reason that it did not acquire a#fee in the ground, but only an easement, and that ejectment will not lie for a mere right of way. The vice of this argument consists in treating the plaintiffs’ right as a mere easement or right of way. It is a great deal more than a right of way. It has the actual possession of the property, and that possession is exclusive, at all times and for all purposes, except where a way crosses it. Philadelphia & Reading Railway Company v. Hummel, 44 Pa. 375; Junction Railroad Company v. The City of Philadelphia, 88 Pa. 424. The estate acquired by a railroad company by a condemnation of land is often spoken of as an easement, but the term is used in a loose wajr for the purpose of distinguishing it from a fee. In the recent case of Pennsylvania Schuylkill Valley Railroad Company v. Reading Paper Mills, 30 W. N. C. 148, it was said by our Brother Mitchell: “Such title is sometimes called an easement, but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations, and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. There was no such easement at common law, and it may well be doubted if it is not a misnomer to extend to this newly invented interest in land the name of easement, perhaps appropriate enough to the railroad’s ordinary right of way for its tracks. It would seem to be rather a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroad purposes. But, whatever it may be called, it is, in substance, an interest in the land special and exclusive in its nature, and which may be the subject of special injury by the obstruction of access to the abutting street, and, therefore, within the rule which governs the application of equitable relief. The right of exclusive possession includes the right of ingress and egress from the street, and, in this respect, the injury is exactly the same as to a tenant for life or for years, whose right to relief would be unquestionable, and is entirely different from the general right of the public to pass along the street.” The appellants contend, however, that there was evidence from which the jury might have found that they had acquired title to the property in dispute by adverse possession. Without discussing the evidence in detail it is sufficient to say that it fell short of making out a case upon this point for submission to the jury. The proof consisted of detached occupations of portions of the property by different people. None of the parties in possession held under the paper title, under which the appellants claimed. The evidence did not show that any of the people in possession were tenants of those holding the paper title, nor was any attempt made to connect the one with the other, or to show they were contiguous in point of time. At most, the evidence amounted merely to a series of independent trespasses. In view of the evidence upon this point, we need not discuss the question, how far the title to railroad property may be acquired by adverse possession. By the appellants’ second point the court below was asked to instruct the jury as follows: “ That there being no evidence in the case of any necessity for the use of the property in question, or of any interference by its present use with the operations of the railroad company, the railroad company cannot recover in an action of ejectment.” This point was properly-refused. When a railroad company condemns land it is of necessity the judge of how much is required for its use. If this question were submitted to a jury in every case the right of eminent domain would be of little practical value. The company had a right, when it condemned the property, to regard and make provision for its future, as well as its present needs. This is settled law. It is sufficient to refer to Pittsburgh Junction Railway Company’s Appeal, 122 Pa. 530. If it condemns for future use land which it does not need at the time, the nonuser of a portion for present purposes cannot be held to be an abandonment. We are of opinion that under the evidence in the case the court below was justified in directing a verdict in favor of the plaintiffs. Judgment affirmed.

Opinion by Mr. Justice Cohen, This appeal is from the grant of a preliminary injunction restraining the defendant from practicing medicine or maintaining a medical office within a radius of 15 miles from the City of Pottsville, Pennsylvania. Plaintiff is a specialist in obstetrics and gynecology practicing in Pottsville. In the spring of 1957 he offered the defendant, who was then completing his residency in this specialty at a Pittsburgh hospital, a position in his office as an associate with the possibility that they would become partners. Defendant accepted this offer and on July 5, 1957, entered into a written agreement of employment whereby he was to perform for the plaintiff such functions and duties as the plaintiff should prescribe and for which he was to receive a salary for the first year and an increasing percentage of plaintiff’s net income for the next four years. Both parties were given the right to terminate the agreement, and in the event of such termination the defendant agreed that he would not engage in the practice of medicine in the City of Pottsville or within 15 miles thereof for a period of three years from the date of termination. Within three months after the inauguration of their association defendant severed his relations with the plaintiff and thereupon opened his own office in Potts-ville for the practice of obstetrics and gynecology. Three months thereafter, on January 20, 1958, plaintiff filed a complaint in equity to enjoin Dixon from engaging in the practice of medicine within the proscribed area; and until the determination of the action on its merits, he prayed for the issuance of a preliminary injunction. After a hearing the chancellor granted the preliminary injunction, and this appeal followed. The limits of our review of the action of a chancellor in issuing a preliminary injunction are established in Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-344, 123 A. 2d 626 (1956), where we stated: “Our uniform rule is that, on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we 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. ...” Basically a preliminary injunction requires the party against whom it is granted to maintain his status until the matters in dispute shall be determined. It also seeks to compel a wrongdoer to give up the status he appropriated before an action could have been instituted against him. Since a preliminary injunction is somewhat like a judgment and execution before trial, it will only issue where there is an urgent necessity to avoid injury which cannot be compensated for by damages and should never be awarded except when the rights of the plaintiff are clear. Also, it should in no event ever be is sued unless greater injury will be done by refusing it than in granting it. Using tbe above standards, we are of the opinion that here the preliminary injunction was improvidently granted. At the hearing before the chancellor, plaintiff introduced those portions of his complaint which were admitted by the defendant to establish the existence of the restrictive covenant contained in the employment-contract and the breach thereof by the defendant. He then rested his case. Defendant’s motion for the dismissal of the rule for a preliminary injunction was overruled. Defendant then attempted to elicit from the plaintiff, whom defendant called as on cross-examination, whether any damage had been suffered by the plaintiff as a result of defendant’s competitive practice ; whether plaintiff’s professional income or practice had been adversely affected thereby; whether the defendant obtained any confidential patient information during his brief association with the plaintiff, and if so, whether he had attempted to utilize such data, or whether defendant had either acquired or solicited any of plaintiff’s patients. To each of these lines of questioning counsel for plaintiff interposed objections which the chancellor sustained. Similarly, under the chancellor’s rulings defendant himself was not permitted to testify whether he had acquired confidential information with respect to the plaintiff’s records, patients or medical practice; whether he had utilized any such information; or whether he had accepted or would accept any of plaintiff’s patients. There is, consequently, no basis on the present state of the record of this case for the finding of such urgent necessity for the prevention of irreparable harm to the plaintiff as would justify the peremptory relief awarded. Panther Valley Television Co. v. Summit Hill Borough, 372 Pa. 524, 526, 94 A. 2d 735 (1953). On the other hand, it appears that defendant had established an office and openly engaged in the practice of medicine for three months before plaintiff attempted to restrain such conduct. Rather than preserve the status quo the injunctive relief granted would destroy it. In this connection we note that not only would defendant be deprived of his practice but also that it appears that he and his family would suffer the greater injury if the relief granted were allowed to stand since he testified that he is without financial resources to establish another practice outside of the proscribed area of competition. As these are the very circumstances and considerations which will determine whether the restrictive covenant may be enforced by the plaintiff, Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A. 2d 838 (1957), plaintiff has failed to establish his clear right to the injunctive relief awarded. We do not now decide whether, after a hearing on the merits of his action, plaintiff can establish his right to such relief in accordance with the required legal principles. That question is not now before us. It is sufficient on the present appeal to note that the record is bare of any evidence of the requirements necessary to the granting of a preliminary injunction against a former employe. The decree of the court is reversed, the injunction dissolved, and the rule discharged. Costs to abide the event.

The opinion of the Court was delivered by Gibson, C. J. The tax book was an official document; and, according' to Hubley v. Keyser, 2 Penns. Rep. 297, it was both competent and sufficient to show the land had been assessed. The receipt of the treasurer, too, was competent evidence, according to White v. Willard, 1 Watts 42, that a surplus bond was executed and delivered; which is enough for the title of the purchaser who is not responsible for the neglect of the purchases in omitting to have it filed. The question, then, is whether a purchaser of unseated land, takes it clear of incumbrances; and on principle it is a plain one. The land itself, and not the owner of it, is debtor for the public charge; and it is therefore immaterial, at the moment of sale, what may be the state of the ownership or how many derivative interests may have been carved out of it. With these the public has no concern: they are sold with the land just as a remainder would be sold wdth the particular estate. It is in vain to say that no more than the owner’s equity of redemption is sold. Why not as well say that the mortgagee’s estate is sold; and that it is the equity of redemption that is reserved ? The question is not answered by saying that the mortgagor is the actual owner in regard to every one but the mortgagee, and that a mortgage creates not an estate but a charge; for to say the owner may charge his land to the extent of its value in the hands of a purchaser, is to say he may exempt it from taxation altogether. Thus incumbered, it could not be sold. Necessity requires that the public duty should be held paramount to all others; and if a judicial sale shall clear the title of incumbrances, there is a more urgent reason that a treasurer’s sale shall have the same effect. The objection that the land was assessed in JKerent townships and sold to different purchasers, cannot bei^pi the plaintiff; for the fact would show no more than an outstanding title in a third person, which would equally bar his recovery. Judgment affirmed. '

The opinion of the Court was delivered by Kennedy, J. The first error is an exception to the admission in evidence of a certified copy of a letter of attorney, from Jackson Hannay, the plaintiff in error, who was the defendant below, to Oliver Parker, which had been recorded in the recorder’s office of Warren comity. The copy, offered, was certified under the hand and seal of the recorder; but objected to,'because it was not offered for the purpose of establishing any matter relative to land or real estate, and, therefore, not made evidence by the recording acts. It may be that this objection was good at the stage of the trial, when the evidence was first offered, but we think, if it were, that it was removed by the subsequent evidence given in the course of the trial, which rendered the copy admissible evidence upon other grounds independent of the recording acts. That there was such an original was testified, as appears by the charge of the court to the jury, by one of the subscribing witnesses to it, and that he was told at the time, by Hannay himself, the plaintiff in error, that he had appointed Oliver Parker his attorney or agent, to attend to his mills and carry on the lumbering business, in Warren county. It was also testified by the recorder, that the original was truly copied into the record book of his office, and that the certified copy was a true copy of the record so made; and that the original, after being recorded, was returned to Parker, who took it away, and before the trial had left the country, so that neither he nor it was to be had. Besides, in addition to all this, it was also testified that Parker had attended to the mills of the plaintiff in error, in Warren county, and managed the same in connection with the lumbering business, in the manner authorized, apparently, by the copy of the letter of attorney given in evidence. It having then been made to appear from all the evidence, adduced to the court below, that it was not in the power of the party offering the certified copy to produce the original, which doubtless would have been the best evidence of its contents, we cannot say, that in connection with all the other evidence, it was not admissible or that the defendant in error was not entitled to the benefit of it; on the contrary, we think he gave evidence sufficient before the close of the trial, to give him a right to claim the benefit of it, and that no injury, therefore, was done to the plaintiff in error, supposing it to have been admitted prematurely in the first instance. The second error is also an exception to the admission of evidence, that is, to certain parts of the deposition of Robert Arthurs, which are underscored; and in which the witness states,.that Oliver Parker told him, in the fall of 1832, that he was an agent for the plaintiff in error, in carrying on the lumbering business for him, of which he informed the defendant in error the next day or so, supposing it might be of some advantage to him; and that, in the spring of 1833, witness again met with Parker, after hearing that he (Parker) had been at Jamestown the day before, for the purpose of procuring money, when he asked him what luck he had, to which Parker replied, that he had obtained 200 dollars of Judge Foot. It does appear to us, that the court erred in receiving this evidence. And although the counsel for the plaintiff below, in offering the first part of it, disclaimed doing it for the purpose of proving the agency of Parker, and said it was offered merely to show that Parker carried on the lumbering business for Hannay, the plaintiff in error, and that the' witness communicated the same immediately thereafter to the defendant in error, yet this does not seem to remove the objection to its admissibility; for the witness saw and stated nothing except what Parker told him. But what Parker said to him, seeing it was not said under circumstances which might have induced the plaintiff to endorse the note, was neither evidence of agency nor of his employment in the lumbering business, under the authority of Hannay, as against the latter, and consequently ought not to affect his rights. This, however, is not all; for it seems to be obnoxious to the same objection which exists against the latter part of the evidence embraced within the exception. This latter part is nothing but an account of what Parker said he had done the day before. He did not even say to the witness, that he did it or procured the 200 dollars for Hannay or as his agent; but if he had, still it would not have rendered such declarations evidence against Hannay. In order to determine whether the declarations or representations of an agent are admissible as evidence against his principal, it may be proper, first, to state the grounds upon which they have been deemed to be so. The statements of an agent, generally, though made of the business of his principal, are not to be taken as equivalent to the admissions of the principal, for then the latter would be bound by them, whether true or false, which would render the situation of every principal truly perilous. Every man has a right to make such representations of what he has done as he pleases, and to bind himself to abide by them, whether true or otherwise; and they of course maybe given in evidence against him afterwards, when relevant to the issue trying; not, however, because the facts therein stated are true, but because he has the right to pledge himself in the same manner as if they were true; and if true, justice naturally requires that he should be bound by them, or if not, it is no more than the infliction of a just penalty for his disregard of truth. But it would not be reasonable to hold him responsible upon the same principle, for the declarations of his agent; nor upon any principle, except that of truth and the protection of those against loss or injury, that might otherwise arise from their having confided in the representations of the agent, made by him at the time of entering into the agreement, or of transacting the business, under the authority of his principal. According to Mr Phillips, in his Treatise on Evidence, vol. i. page 77, it is only the statements or representations of the agent, made in effecting an agreement or doing an act within the scope of his authority, that are. evidence against his principal, and considered equivalent to his own acknowledgments; because, as he says, they may be explanatory of the agreement, or determine the quality of the act, which they accompany, and, therefore, must be binding on the principal, as the act or agreement itself. For instance, what an agent says at the time of a sale, which he is employed to make, is evidence as part of the transaction of selling. But the principal is not bound by a representation of the agent at another time. This seems to be a fair exposition of the rule, as laid down by Chief Justice Gibbs, in Langhorn v. Allnutt, 4 Taunt. 511, where he says, “ When it is proved that A is agent of B, whatever A does, or says, or writes, in making of, a contract as agent of B, is admissible in evidence, because it is part of the contract which he makes for B, and which, therefore, binds him; but it is not admissible as the agent’s account of what passes.” To which Mr Phillips, after reciting it, page 78, adds, “ such declarations are admitted in evidence, not for the purpose of establishing the truth of the fact stated, but as representations, by which the principal is as much bound as if he made them himself, and which are equally binding, whether the fact stated, be true or false.” Now, in the present case, it is manifest the representations of Parker to Arthur were only his account of what he was doing, without the witness’s seeing him do any thing at all, and of what had passed or been done by him the day before, and, therefore, not admissible. But supposing the facts stated by Parker to be true; were they relevant to the issue; for unless they were, they ought to have been rejected for this reason also. The plaintiff below, could only entitle himself to recover in this action from the defendant, by showing that he had either endorsed the note, which he afterwards paid as endorser, upon the credit of the defendant below, or that the money raised upon his endorsement, was applied to the use of the defendant. Now the note on its face appearing to have been drawn by Parker on his own account, his representations to Arthur, admitting them to be true, did not in the least tend to prove either of those facts, upon which the plaintiff’s right to recover turned, and were, therefore, inadmissible. For this last reason also, we think, that the court erred in admitting that part of Eliel T. Foot’s evidence, which was objected to, and .forms the ground of the third error. The part objected to, is that, in which the witness states, that “ at the request of Parker, the maker of the note, it was discounted at the Chautauque Bank, to enable him to run lumber to market, and that he pledged his honour, that 150 or 170 dollars should be used in running his (that is, Parker’s own) lumber down the river, and the balance in starting or preparing lumber to run to market.” Suppose here, that Parker intended to do as he stated to the witness, it would seem, that it was his own lumber, and not the defendant’s that he designed to send to market by means of the money: and if so, could make nothing in favour of the claim of the plaintiff below, and therefore, the defendant might have waived his objection to it. But it would seem, as if this evidence was regarded by the counsel of the plaintiff below, and by the. court too, as tending to support the claim of the plaintiff: then take it to be what the plaintiff’s counsel seemed to think it was, that Mr Foot had testified, that Parker told him, at the time of getting the note discounted, that he wanted the money for the purpose of sending the defendant’s lumber to market, and pledged himself .to use it accordingly, still it would not have been evidence against the defendant below, because it could not have been considered as going to prove that the plaintiff, who was not present, and heard nothing of it, had either endorsed the note on the credit of the defendant, or that the money so obtained, was even intended, much less actually applied to the use of the defendant in any way whatever. Besides, it is too plain to be mistaken, that the statement of Parker to Mr Foot, was not made with a view to pledge the credit of the defendant, whose name was not mentioned, nor he himself alluded to at the time, but done merely to make Mr Foot believe, that the money was wanted for the purpose of conveying lumber to market, supposing that the bank was disposed to give this object a preference in granting accommodations. The fourth error is not sustained. According to the rule which has been established and recognized by this court in several cases, the notes taken by Mr Pearson of A. Holley’s testimony given on the trial of a prior action, brought for the same cause between the parties here, were rightly admitted to be read in evidence to the jury. Among the remaining errors assigned, consisting of exceptions to the opinion of the court in answering points submitted by the counsel on both sides, and to matters of instruction contained in the charge to the jury, it is only necessary to notice one or two points, in which the court appear to have erred. The court submitted it as a question of fact to the jury, to be decided by them, whether the plaintiff below had not endorsed the note upon the credit of the defendant; and if so, they ought to find for the plaintiff. In this, we are of opinion there was error; because no evidence was given to the jury on the trial, going to show, that the plaintiff endorsed the note upon the credit of the defendant. On the contrary, the evidence all went to prove that he must have endorsed it on the credit of Parker, and at his instance: for, besides the fact of the note being drawn by Parker, as would seem from the face of it, for his own benefit, and on his account, it appeared from the evidence, that the plaintiff had made contracts, and had had dealings with Parker to a considerable amount on his own individual account; and upon no occasion, did it appear, that he had transacted business with him as the agent of the defendant. It was also shown, that both the plaintiff and Parker resided at the time, in Warren coimty of this state; and that the defendant resided in the state of New York, at a distance from the plaintiff and Parker; and had not been in the county of Warren, or at the mills, from the time the letter of attorney was given, until after Parker left the country; in short, it thus appeared, that he was rather a stranger in that section of the country, and out of the view of the parties concerned in raising the money. It is also, equally clear, that no evidence was given, from which the jury could fairly infer that the money obtained upon the endorsement of the plaintiff was applied in any way to the use, or for the benefit of the defendant. And to this effect, the court ought to have instructed the jury; and further, that in the absence of evidence, as it appeared, tending to prove that the plaintiff had either endorsed the note upon the credit of the defendant, or that the money obtained thereon, had been appropriated to the use of the latter, their verdict ought to be in his favour. Judgment reversed, and a venire de novo awarded.

The opinion of the court was delivered by Rogers, J. It is a general rule, that no estate or interest in land shall pass but by deed, or some instrument in writing, signed by the parties; and it is immaterial whether the interest be legal or equitable, as an equitable interest is an interest in land which comes within the words and spirit of the statute of frauds. And what is this but a resale of the premises by Goueher to Martin by parol, unaccompanied by any act which, according to th.e decisions of the court, takes it out of the operation of the statute. Martin sold the property to Goueher by an article of agreement dated the 25th of June 1835, in which, in consideration of the payment of 2340 dollars, to be paid in the manner therein stipulated, he agrees to give Goueher peaceable possession on the 1st of April next thereafter, and a deed of conveyance for the premises after the consideration has been fully paid. Goueher took possession and paid at least two of the instalments. Martin was the owner of the legal and Goucher of the equitable title, with the right to demand a conveyance of the legal title, upon payment of the purchase-money, when due. The case is, therefore, clearly within the operation of the act, and no contract by parol will pass the interest Goucher has acquired in the land. It appears that Goucher and Radcliff were in treaty for the sale of the land, but not being able to agree, Martin asked Goucher whether he was willing to let him have the farm on the same terms; to which Goucher having assented, the witness considered the place as belonging to Martin. A few days afterwards, viz the 18th of December, Martin inquired of Radcliff what he was to give for the property, and upon his replying that he was to give 20 dollars an acre, he declared he would have nothing further to do with it; that he would give no such price for it; that all he wanted was his money; that Radcliff might deal with Goucher for it, and that the 1000 dollars judgment on the docket must be paid in specie, and the balance he would take in any kind of current paper, paid between then and the 1st of April. He said they should meet on the 23d of December, and the parties, having met according to appointment, Goucher and Radcliff attempted to make a bargain for the property; but upon Martin declaring that all the money which Goucher owed him must be paid on the 25th, in such paper as would pass at the Brownsville Bank at par, all further negotiation was broken off by Radcliff, who declared he would have nothing further to do with the purchase. This appears in the testimony of Radcliff, who was the plaintiff’s witness, and shows that, although there was a parol contract for the purchase of the land, yet that the contract was rescinded by Martin; that this was acquiesced in by Goucher, and that all parties, at the subsequent meeting, acted on the idea that it was rescinded. . The declaration of Goucher to other witnesses, that he believed he had sold to Martin, is properly referable to the parol contract as proved by Radcliff, and afterwards rescinded. Throwing out of view this part of the testimony, it is difficult to perceive the semblance of proof of any subsisting contract of sale between Goucher and Martin. If any such contract was made, it must have been after the period to which I have referred, viz. sometime about the 27th of December 1837. On that day Martin and Goucher were together, went to Union Town together, and on the same day Martin entered satisfaction on the judgment against Goucher, he remaining at the door of the prothonotary’s office, holding the horses of himself and Martin, and Martin taking a memorandum of the amount of the debt and interest due on the judgment and costs. Now, although all this is evidence, as being part of the res gesta, and especially connected with the fact, that a few days before Goucher had no funds with which to pay the judgment, yet we are still left to conjecture, to a remote, uncertain and doubtful inference, that the satisfaction was connected with an agreement for sale of the land; and as to the terms of the agreement, the amount of the purchase-money to be paid, the time when the possession was to be delivered, there is no proof or semblance of proof whatever. But to take a case out of the statute, upon the ground of a parol contract, it is indispensable that the contract should be established by clear and unequivocal proof, and that it should be definite and clear in all its terms. If the terms are uncertain or ambiguous, or are not proved by clear and satisfactory proof, a specific performance will not be decreed. A court of equity will not, nor should a jury in this state be permitted to act upon conjecture, or uncertain and inconclusive inferences. The very object of the statute is to prevent the divesture of a title to real estate, equitable or legal, by the introduction of loose and indeterminate proof of a contract which the law requires should be made in the most solemn form. It is impossible to say what was the precise contract, if any, or what was the nature and extent of its limitations, its terms and conditions. Now is there any necessity that we should relax the strict proof ordinarily required, because of such a part performance of the contract as would render it against equity, not to decree a specific performance? Payment of part or of the whole of the purchase-money is not such a part performance of a contract as takes the case out of the statute. Nor can the entry of satisfaction on a judgment, even if done in part payment for a tract of land, have any greater effect. The remedy for the party injured is to have the entry of satisfaction vacated by an application to the court of common pleas of the proper county. The remedy is just as efficient as thp party has who has paid part or the whole of his purchase-money. In either case he may be injured by the refusal of the party in good faith to perform his contract, but this consideration will not induce the court to interfere with the statute. In the one case the money may be repaid, and in that way a full indemnity given, and in the other the ' entry of satisfaction may be stricken out, and then the parties are .just as they were before the contract. It does not put the party, in either case, necessarily in such a situation as that it is a fraud upon him, unless the agreement be performed. In Haslett v. Haslett, 6 Watts 464, it is held, that an exclusive possession is an indispensable ingredient in a case for a specific performance of a parol contract for the sale of lands. He must prove that he has taken possession in consequence, and in pursuance, of the contract. In order to make the acts such as a court of equity will decree part perform- ' anee of a contract within the statute, it is essential that it should clearly appear to be done, solely with the view to the contract being performed. For, if they be acts which might have been done with other views, they will not take the case out of the statute. 1 Johns. Chan. Rep. 149, 283; 1 Fonb. Eq. 8, note. The mere possession of the land contracted for, will not be deemed a part performance, if it be obtained wrongfully by the party, or if it ' be wholly independent of the contract. Thus, if a vendee enter into the possession not under the contract, but in violation of it as a trespasser, the case is not taken out of the statute. And is not the plaintiff placed in this category? For it is difficult to believe that the timber which was cut by order of Martin was a taking of possession, in pursuance of the alleged contract. It would seem to have been a trespass without the knowledge of Goucher, for as soon as he was informed of it, so far from approving of it, he threatened to make Martin pay for it. It is, to say the least of it, not such proof of part performance as the law requires. The plaintiff has the legal title, and at law, has the right to the possession. But a court of chancery would enjoin him from proceeding at law, on the production of an equitable title, founded on an article of agreement, possession taken in pursuance thereof, and payment of part of the purchase-money. Nor would they refuse relief upon the allegation of a parol contract of repurchase, unless there was clear and determinate proof as to its terms and conditions; for where there is no evidence of part performance, courts of equity are as much bound by the statute, as courts of common law, and are not at liberty to disregard its provisions. That they interfere with cases embraced by the statute is true: but this is done, not with the arbitrary notion that they can dispense with it, but under certain precise and definite rules, accurately defined, by which it is supposed that equities, subservient to the object of the statute, and collateral and independent of it, may be administered. Whether this branch of equity jurisprudence has produced all the good effects intended, it is unnecessary now to inquire, but this is certain, that the doctrine, for which the plaintiff contends, would, in effect, repeal the .statute!, so far as concerns vendors and vendees, where the vendee retains the legal title. If at any time, however distant, the vendor could set up a parol contract of repurchase, it would introduce the very mischief which the statute was intended to prevent. The object was to prevent the fraudulently setting up of pretended agreements, and then supporting them by perjury. There is also a manifest policy in reducing such contracts to writing, as otherwise, from the imperfection of memory, and the honest mistakes of witnesses, it must often happen, either that the contract is incapable of full proof, or is unintentionally varied from its precise original terms. And these observations apply as well to equitable, as to legal estates, and particularly in Pennsylvania, where we have no adequate means of compelling the conveyance of a legal title, and where, for this reason, equitable titles serve most, if not all, the purposes of legal titles. A written agreement may be waived and discharged by parol. But in Burthouse v. Crossly, 2 Eq. Cas. Ab. 26, the Chancellor said, “ That he would not say a contract in writing could not be waived by parol, yet he should expect, in such a case, very clear proof; and the proof in that case he thought insufficient to discharge a contract in writing; and observed that the statute of frauds and perjuries requires that all contracts and agreements concerning lands, should be in writing. Now, an agreement to waive a contract of purchase, is as much an agreement concerning land as the original contract.” In Gera v. Salisbury, 1 Ver. 240, the single point was, whether an agreement made since the statute of frauds and perjuries, might be discharged by parol? And Lord Keeper held it might, and therefore dismissed the bill which was brought to have the agreement executed in specie. In both the cases cited, it was a mere agreement to convey without any act done, and even then, notwithstanding the case in 1 Ves. was cited, the Chancellor doubted, (inasmuch as it was a contract concerning land,) whether it could be waived by parol. But where the contract is in part executed, and the party becomes seised of an estate in the land, I hold it to be a very clear proposition, that he can not be deprived of his estate, on the pretext that the agreement had been waived by a parol contract. And even if this should be held to be the law, a Chancellor would require the most clear and satisfactory proof of the contract, and of all its terms and limitations. But here the point does not arise, for there is no proof whatever, of any waiver of the original bargain, but the case is presented on the fact of a contract of sale, and a repurchase of the land on different terms and conditions, from the original agreement. At law, it is a principle established in the Countess of Rutland’s case, 5 Co. 26, b, that every contract or agreement ought to be dissolved by matter of as high a nature as the first deed, nihil tain conveniens est naturali sequitaie, unumquodque dissolvi eo ligamine quo ligalum est. But in equity an agreement may be discharged by parol. And perhaps this is universally true, as to an agreement concerning personal estate, but the principle does not apply (except, perhaps, in certain cases) to contracts of bargain and sale of interests in real estate. Judgment reversed, and a venire de novo awarded.

OPINION OF THE COURT PAPADAKOS, Justice. This is an appeal from an Order of the Superior Court which reversed an Order of the Court of Common Pleas of Delaware County, Orphans’ Court Division, terminating pa rental rights of the Appellee-Father, James P., with respect to his son, James J. A Petition for the Involuntary Termination of Parental Rights was filed by the Appellant herein, Children and Youth Services of Delaware County (C.Y.S.) and, following a hearing before the Honorable Francis J. Catania, President Judge, on May 18, 1981, Appellee’s parental rights were terminated pursuant to Sections 2511(a)(2) and 2511(a)(5) of the Adoption Act of 1980. In a separate proceeding in the Trial Division, Appellee filed a petition requesting visitation with James pending appeal of the termination case. This petition was denied on September 28, 1981. Appellee subsequently appealed both orders and a Superior Court panel affirmed (Cavanaugh, J. dissenting). Appellee’s Petition for Reargument was granted. The Superior Court en banc reversed (Cirillo, J. dissenting) the order of the Orphans’ Court. C.Y.S. petitioned this Court for appeal and we granted allocatur. For the reasons set forth herein, we reverse. The issues in this appeal are (1) whether the order and judgment of the Orphans’ Court of Delaware County terminating the parental rights of Appellee under Sections 2511(a)(2) and 2511(a)(5) of the Adoption Act of 1980 were supported by clear and convincing evidence; and (2) whether a parent suffering from a mental or physical impairment should be held to the same standard of proof in involuntary termination cases as a parent who is not so impaired. Our scope of review, as well as the burden of proof in involuntary termination cases, has been clearly defined and reiterated in several recent decisions by this Court. In Matter of Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984), we stated: In cases where there has been an involuntary termination of parental rights by the Orphans’ Court, the scope of appellate review is limited to the determination of whether the decree of termination is supported by competent evidence. In re Adoption of B.D.S., 494 Pa. 171, 177, 431 A.2d 203, 206 (1981). If the decree is adequately supported by competent evidence, and the chancellor’s findings are not predicated upon capricious disbelief of competent and credible evidence, the adjudication of the Orphans’ Court terminating parental rights will not be disturbed on appeal. See In re Adoption of M.M., 492 Pa. 457, 460, 424 A.2d 1280, 1282 (1981). It is established that, in a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by “clear and convincing” evidence the existence of grounds for doing so. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 166, 465 A.2d 642, 642-643 (1983). Id., 506 Pa. at 46, 483 A.2d at 1356. Further, unless the Orphans’ Court abused its discretion or committed an error of law, its findings are entitled to the same weight given a jury verdict. In re: Adoption of J.S.M., Jr., 492 Pa. 313, 316, 424 A.2d 878, 879 (1981). The trial court, as trier of fact, is the sole judge of credibility of witnesses. In re Green, 486 Pa. 613, 619, 406 A.2d 1370, 1373 (1979); Adoption of S.H., 476 Pa. 608, 611, 383 A.2d 529, 530 (1978). Conflicts in testimony are to be resolved by the trier of fact and we may not disturb a decree of Orphans’ Court based upon findings supported by the record unless Orphans’ Court applies an incorrect legal standard. Id., 476 Pa. at 611, 383 A.2d at 530. The circumstances surrounding this case are set forth as follows. On December 19, 1979, James J. was born out of wedlock to Marie J. and allegedly fathered by Appellee. On December 31, 1979, protective custody was awarded to Appellant when Marie was involuntarily committed to Haverford State Hospital. Marie’s parental rights were terminated on December 15, 1980, on grounds of incapacity to perform parental duties pursuant to 23 Pa.C.S. § 2511(a)(2). The child is still within Appellant’s protective custody and it is their desire to place James, now six years old, for adoption if, and when, Appellee’s parental rights are terminated. To that end, Appellant filed a Petition to Terminate the Parental Rights of Appellee on January 23, 1981, pursuant to Sections 2511(a)(2) and 2511(a)(5) of the Adoption Act of 1980. Appellee’s parental rights were terminated following the determination by Judge Catania that Appellee had demonstrated repeatedly an incapacity to perform parental duties for his child, that the child had been removed from the care of the parent for a period in excess of six (6) months, and that the conditions leading to the removal continue to exist and cannot be remedied. Thus, the statutory criteria of Section 2511(a), which would result in termination, had been met. In La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963), we articulated what is required in order to meet the clear and convincing burden of proof: 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 á clear conviction, without hesitancy, of the truth of the precise facts in issue____ It is not necessary that the evidence be uncon tradicted ... provided it “carries conviction to the mind” or carries “a clear conviction of its truth” ... (Citations omitted.) Id., 411 Pa. at 640, 192 A.2d at 413. Our review of the evidence presented in the Orphans’ Court reveals that the Decree of Termination was supported by clear and convincing evidence. It is undisputed that when the petition for termination of parental rights was filed, James J. was in the custody of C.Y.S. and had been in such custody since birth. During that period, Appellee never assumed any parental responsibility nor has he, at any time, offered or given support for the child. In April of 1980, he questioned his paternity, wondering whether the mother’s statements, that she had been artificially inseminated by the Duponts or Jimmy Carter, were true, and said he wanted to take a fertility test to determine if he was the father. Appellee said, on cross-examination, that he did not remember saying this; however, he did admit that he had a blood test taken to determine if he was the father of James J. Mr. Peter Spengeman, the social worker assigned to this case, testified that during the first year of James J.’s life, Appellee did have several visits with the child, but would do so only in the company of, and at the insistanee of, Marie J., the natural mother. During these visits, Appellee would hold James briefly on his knee, at the urging of Mr. Spengeman, and would never embrace the child or call him by name. Appellee would tease the child and make no effort to comfort him despite the child’s crying. Appellee, himself, never requested a visit with James until after he received notice of these termination proceedings and, although the frequency of Appellee’s visits has increased since then, they remain devoid of any appropriate interaction between him and the child. Mr. Spengeman also testified that throughout 1980, he attempted to provide planning meetings and to counsel Appellee; however, Appellee failed to attend meetings, was uncooperative and hostile, and denied Mr. Spengeman admittance to his home on three occasions. During this time, when Mr. Spengeman did communicate with Appellee, he consistently indicated that he had no plans for taking care of James, that he knew nothing about caring for a child, and that he would not want to burden his mother with that responsibility. Appellee stated that he thought about getting married to a girlfriend, but did not want to burden her either. Appellee repeatedly stated that he could not care for the child and showed no motivation to accept any services from Appellant to remedy the situation. The record also reveals that Appellee has been admitted to Haverford State Hospital three times since 1979, the diagnosis being chronic schizophrenia with mood disturbance. Dr. Herman Boerner testified that, at the time of the hearing, Appellee had been under his care for approximately two years, that he had prescribed medication which was necessary to keep his condition under control, and that Appellee’s disorder was of moderate to mild severity. Dr. Boerner further stated that the medication was administered in conjunction with very superficial supportive psychotherapy at six-week intervals, and that Appellee had, since the previous fall (1980), maintained himself on the medication, and kept his appointments for the most part, missing only a few times. However, on cross-examination of Dr. Boerner, the following exchange took place with regard to the progress of Appellee: BY MR. MATTEL Q. You say he has been, I will use the term good, since the fall of 1980. Hasn’t it been more like maybe the winter of 1981 (sic) that he has been on this medicine and been doing good? A. I don’t remember, but he has been out of the hospital, which is good. Q. Didn’t you have a conversation, and tell me if I am wrong, with Peter Spengeman in the fall of 1980, at which time you told Mr. Spengeman that he never takes his medicine, he doesn’t want to meet with me, meaning yourself, what can you do with people like that, he doesn’t want to cooperate, he doesn’t feel he needs his medicine. Did that conversation take place in the fall of 1980? A. It may have. Q. And another conversation in January of 1981 when you told Mr. Spengeman that he was taking his medicine, he was meeting with you? A. Yes. Q. Doesn’t this gentleman have a history of not taking his medicine and not cooperating? A. That is true. Q. So right now he is having a good period, is that not correct? A. Yes. Q. And has he not had good periods in the past? A. Not this good in terms of professionally and maintaining himself for a period of time. Q. Being as familiar as you are with his record, has he ever been diagnosed as a manic-depressive? A. Yes. Q. Is that still apparent? A. No. Q. Is that something that disappears? A. No. The diagnosis is sometimes pretty difficult to establish in terms of whether this is a schizo-affective or a manic-depressive illness. It changes, and diagnoses are based mainly on symptoms anyway. Sometimes one part of the illness is more apparent than another. Q. But he has been diagnosed as a manic-depressive? A. Yes. Q. And would you equate that with what you indicated as a mood disorder? A. That is a mood disorder, right. Q. Does he still have the mood disorder? A. Presumably. Q. Now you say he is functioning, he is maintaining a job. What job does he have, Doctor? A. His work as a musician. He says he has an agent and bookings and plays at nightspots. Q. And you have discussed this with him? A. Yes. Q. And you say you see him once every six weeks? A. True. Q. And so do you feel that that is helping him, he has an interest now, he is working? A. Yes. Q. Doctor, he has testified here today, you were sequestered, and he has indicated that he has had as many as six such jobs over the past year. Were you aware of that? A. Oh yes. Q. Do you feel that that is a sufficient amount to generate interests for him, six in one year? A. Yes, because it is the nature of the job. One, it is not an engagement for a period of time. Q. When was his last show or entertainment, Doctor? A. I wouldn’t know. It has been a while since I have seen him. Q. Well, six weeks ago presumably you saw him, if you saw him every six weeks? A. I am not familiar with the last time I saw him, I can’t give you the date. Q. When you saw him the last time, Doctor, whenever that was, how many weeks had it been since he worked then? A. He had worked the week before I think, or two weeks before that. Q. A week or two weeks before that, so assume maybe eight weeks ago today? A. Yes. Q. Where did he work then, Doctor? A. A spot in Ardmore. Q. Did you ever check up to determine whether he actually worked at these places? A. No. Q. You say he is looking for a part-time job. He told you that what, eight weeks ago? A. This is part of the testimony today. ... Q. So he never told you that in consultation? A. I can’t recall the specific words, or I don’t remember. (N.T. 5/18/81, pp. 110-114). Dr. Boerner also stated on cross-examination that if Appellee did not take his medication there would be “the possibility of recrudescence of a more active illness.” In response to cross-examination by Mr. Smith, counsel for the child, Dr. Boerner stated that he could not recall whether Appellee discussed his intentions with regard to his son, nor could he recall that Appellee even brought up the topic of his son at any time during 1980. Appellee testified that he wished to establish and maintain a relationship with his son, and to plan for the future and care for the child in a proper environment. Appellee explained his sporadic visits with the child as a reluctance on his part to usurp the rights of the natural mother and that he had no way of taking care of the child on his own. He further stated that he liked holding the child and that, although he was a bit awkward, he tried to do his best. Appellee expressed a desire to regain visits with the child and to work toward achieving custody. He felt that his prognosis for the future was good; things looked better for him, both professionally and emotionally. Appellee said that he had “contacted a course given by the Red Cross” which covers parental duties and the care of a young child. Appellee stated that he had cooperated with C.Y.S. and that he had requested visits with the child prior to the termination of Marie’s parental rights. He admitted that prior to this termination, he only came to visit with Marie and that he told the social worker that he did not want the child, but that Marie should have him. Finally, Appellee stated that he has gotten more comfortable with the child in the last few visits, and when the child cried, Appellee picked him up. When asked why he never referred to the child by name, Appellee stated that he did not recall not saying his name, but that he has quite a bit of interaction with the child. On this record, Judge Catania found that the grounds for terminating Appellee’s parental rights under Section 2511(a) were proven by clear and convincing evidence. Although he did not specify whether his determination was based on § 2511(a)(2) or § 2511(a)(5), we think it is clear from the record that both sections were considered and that there was competent evidence to sustain a termination under either section. Under Section 2511(a)(2), it must be established that there has been repeated and continued incapacity, abuse, neglect or refusal which has caused the child to be without essential parental care, control or subsistence, and that the causes of this incapacity, abuse, neglect or refusal cannot or will not be remedied. Although the testimony was conflicting on many points, it was the task of the Orphans’ Court to resolve the conflicting testimony presented by the witnesses. Judge Catania found the testimony of Mr. Spengeman more credible than that of Appellee. He also found that Dr. Boerner was unclear as to when Appellee’s progress began and, under cross-examination, his knowledge of Appellee was severely discredited. This was consistent with his role as trier of fact and there was no abuse of discretion. Section 2511(a)(5) of the Adoption Act provides that when a child has been placed under the care of a Children’s Services Agency for a term in excess of six months, parental rights may be terminated if the conditions which led to the removal cannot or will not be remedied by the parent within a reasonable time. In the instant case, the record clearly shows that the child was in the custody of C.Y.S. virtually from birth, approximately seventeen (17) months at the time of the hearing. Appellee has never had custody of, nor provided support for, his child. He never requested a visitation with the child on his own initiative during the first year of the child’s life. In fact, he did not request visitation until after he received notice of the termination proceeding. Appellee was uncooperative and hostile to all efforts made by C.Y.S. to assist him in establishing a relationship with his child and planning for the child’s future. Appellee failed to keep appointments, refused to permit the social worker into his home, and shouted obscenities and hung up on the social worker on two occasions. His visits with the child were devoid of any appropriate interaction, and were characterized by very minimal physical contact, teasing on the part of Appellee, and crying by the child. We believe that this evidence is sufficient to satisfy the criteria of § 2511(a)(5) by clear and convincing evidence. The fact that Appellee has now expressed an interest in working toward gaining custody of the child does not satisfy the affirmative duty which is required of Appellee. “When a child has been placed in foster care, a parent has an affirmative duty to work towards the return of the child.” In re: William L., 477 Pa. 322, 333, 383 A.2d 1228, 1233 (1978). We think this “affirmative duty,” at minimum, requires a showing by the parent of a willingness to cooperate with the agency to obtain the rehabilitative services necessary for the performance of parental duties and responsibilities. The agency must, of course, put forth a good faith effort in making services available to the parent and, once it has done so on a continuing basis, it has discharged this obligation. The record clearly shows that C.Y.S. made efforts to counsel Appellee and to assist him in planning for the child’s future. These efforts were met with open hostility by Appellee and repeated assertions by him that he could not take care of the child and had no desire to do so. As aptly stated by Judge Catania, “[TJhe parent cannot sit back, especially in factual situations like the ones presently before the Court involving the mental incapacity of the parent, and expect the agency to effect a ‘cure’ for the individual and then when such ‘a cure’ is not forthcoming, blame the agency for the failure.” (Slip opinion at p. 15). The official comment to § 2511(a)(5) of the Adoption Act of 1980, states: “The Court must consider the services offered by or available from the agency and the efforts made by the parent to effect a lasting adjustment of the conditions which led to the child’s removal from the home.” The record shows that Appellee has not made any effort to remedy the situation, or to improve his ability to perform parental duties. Appellee testified that “he contacted a course given by the Red Cross which covers parenting.” This was apparently done after termination proceedings began, and no evidence was offered that Appellee had actually taken the course or that he ever intended to take it. We have previously held that a renewal of interest after the six-month statutory period has passed will not revive parental rights toward the child. Adoption of McCray, 460 Pa. 210, 217, 331 A.2d 652, 656 (1975). We think this is a case of too little effort, too late. Appellee has taken no positive concrete step in removing his inability to care for the child other than to seek visitation. “Parental rights may not be preserved ... by merely waiting for some ... convenient time for the performance of parental duties and responsibilities (while others adequately provide the child with [his] immediate and continuing physical and emotional needs).” McCray, supra, 460 Pa. at 217-18, 331 A.2d at 657. We think the hearing court acted in the best interest of the child in granting the termination order, and to hold otherwise would place the child in limbo with no indication that Appellee will ever be willing or able to assume and carry out his duties as a parent. It is the policy of this Commonwealth to preserve and protect the family wherever possible against unwarranted intrusions by the State, In re: William L., 477 Pa. 322, 335, 347, 383 A.2d 1228, 1234, 1240 (1978), and it is our desire to insure that the parental rights of a parent not be involun tarily terminated on the sole basis of physical or mental impairment without regard to its effect on the child. To that end, we requested as part of this appeal that the parties brief and argue the issue, not previously addressed by this Court, whether involuntary termination of parental rights cases involving a parent who is suffering from a mental or physical impairment requires application of a different standard of proof than cases involving a parent who is not so impaired. Prior to the United States Supreme Court decision in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the law of this Commonwealth was that the standard of proof required in all involuntary termination of parental rights cases was by a preponderance of the evidence. In re: Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981); In re: Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981); In re: Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878 (1981); In the Interest of T.S.L., 487 Pa. 245, 409 A.2d 332 (1979); In the Matter of the Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978); In re: Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975). In Santosky, supra, the Court declared that due process requires that, in cases of this type, the state must establish the relevant conditions for termination of parental rights by at least “clear and convincing” evidence; however, determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts. Id., at 769-770, 102 S.Ct. at 1402. The Court mandated the use of an “intermediate standard of proof because the individual interests at stake were both ‘particularly important’ and ‘more substantial than mere loss of money.' ” Id., at 756, 102 S.Ct. at 1396, (quoting Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). We subsequently adopted the “clear and convincing” standard in In re: T.R., 502 Pa. 165, 465 A.2d 642 (1983), wherein we stated: “ ... we are ... persuaded by the reasoning of Santosky, and thus adopt it as a matter of state law applicable to all termination proceedings.” (Emphasis added). 502 Pa. at 166, 465 A.2d at 643. A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties. In re: William, L., 477 Pa. at 345, 383 A.2d at 1239. In determining whether parental rights should be terminated, the court must recognize the essential needs of the child as well as the rights of the parent. Id., 477 Pa. at 337, 383 A.2d at 1235. When ... a parent is incapable of meeting the child’s essential needs, ... the state may constitutionally intervene to protect the “physical or mental well-being” of the child. In these circumstances, the interest of the parent in keeping the child conflicts with the interest of the child in its essential physical and emotional needs and the Legislature has constitutionally mandated that the interests of the weaker party, the child, should prevail. This legislative determination must be accorded great deference for “when an issue involves policy choices as sensitive as those implicated by [the involuntary termination of parental rights], the appropriate forum for their resolution in a democracy is the Legislature.” (Citation omitted.) Id., All Pa. at 339, 383 A.2d at 1236. The United States Supreme Court, in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), discussed the function of a standard of proof. That Court stated: The function of a standard of proof, as that concept is embodied in the Due Process clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” ... The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision. Id., at 423, 99 S.Ct. at 1808. Addington held that in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital, a “clear and convincing” standard of proof is required by the Fourteenth Amendment. The Addington Court concluded that application of a “beyond a reasonable doubt” standard is inappropriate in civil commitment proceedings because of its hesitation to apply that unique standard “too broadly or casually in noncriminal cases,” id., at 428, and because the psychiatric evidence ordinarily adduced at commitment proceedings is rarely susceptible to proof beyond a reasonable doubt. Id., at 429-430, 432-433. The Santosky Court relied on Addington in rejecting the beyond a reasonable doubt standard in párental rights termination cases. While noting that in the Indian Child Welfare Act of 1978, Congress requires “evidence beyond a reasonable doubt” for termination of Indian parental rights, the Court concluded that “Congress did not consider, however, the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all state initiated parental rights termination hearings.” Id., at 769, 102 5. Ct. at 1403. For example, “[l]ike civil commitment hearings, termination proceedings often require the factfinder to evaluate medical and psychiatric testimony, and to decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress.” Id., at 769, 102 S.Ct. at 1403. We agree with the reasoning of the Santosky decision that a reasonable doubt standard would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption. Id., at 769, 102 S.Ct. at 1403. This is as true in cases of mentally or physically impaired parents as it is in cases where the parents do not suffer from such disability. We find no merit to the argument that unless we apply the more rigorous standard, mentally or physically impaired parents’ rights may be terminated solely on the basis of the impairment without regard to fault on the part of the parent, and with no evidence of any voluntary act or omission by the parent which was harmful to the child’s interest. The statutory basis for terminating involuntarily the rights of a parent with a mental or physical impairment is Section 311(2) of the Adoption Act of 1970, 23 Pa.C.S. § 2511(a)(2). The statute makes it clear that grounds for termination can consist of lack of capacity and not just affirmative misconduct. Judicial inquiry is to be centered on the best interest of the child, rather than the fault of the parent. But this is only after the parent’s incapacity is proven by clear and convincing evidence. Absent sufficient evidence to satisfy the statutory requirements for involuntary termination, the question of best interest of the child never arises. Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975). We think that the “clear and convincing” evidence standard is sufficient on balance to preserve the rights of impaired parents, while making due allowance for the State’s legitimate concerns. Moreover, to adopt a reasonable doubt standard in mental/physical incapacity cases, which by their very nature are rarely susceptible to proof of such a degree, would, in many cases, thwart the intent and purpose of the Legislature by ignoring the interests of the child, with the result that many permanently neglected children would be “consigned indefinitely to the limbo of foster care or the impersonal care of institutions.” In re: William L., 477 Pa. at 349, 388 A.2d at 1241. Only two states, New Hampshire and Louisiana, have barred parental rights terminations unless the key allegations have been proved beyond a reasonable doubt. We think the State’s parens patria interest in preserving and promoting the welfare of the child and its goal to provide it with a permanent home is sufficient to preclude imposition of the higher burden of proof. In summary, upon our review of the briefs and arguments submitted, our case law, and the standards prevailing in other jurisdictions, we are satisfied that the same legal standard and burden of proof should be applied for the involuntary termination of parental rights of a parent with a mental and/or physical impairment as is applied to any other parent. We wish to emphasize, however, that the focus in such cases is the effect which an impairment has on the person’s ability to provide parental care, not the mere fact of impairment or the fact that the impairment may make the parent less desirable than another parent. The purpose is to protect the welfare of the child. So long as the parent makes a sincere effort and takes advantage of the services offered to improve his condition and ability to fulfill parental obligations, and the child’s essential physical and emotional needs are met, there should not be a termination of parental rights. The fact that a parent suffers from a physical or mental disability is not, and never was, the only relevant factor in determining whether his or her parental rights should be terminated, or whether there should be a different legal standard applied. What is important is the demonstrated willingness and ability of the parent to perform, at a minimal level, his or her parental duties. A parent’s performance “must be measured in light of what would be expected of an individual in circumstances in which the parent under examination finds himself.” Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981); Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978). Clearly, the facts and circumstances of each case must be considered on a case by case basis. So long as the procedural and substantive due process rights of an impaired parent are given full protection, the fact that a parent suffers from a physical or mental impairment does not require any alteration of the standard to be applied in an involuntary termination of parental rights case. We reverse the Order of Superior Court and remand for consideration of the issues not disposed of in its prior review. . In re: Adoption of James J., 332 Pa.Superior Ct. 486, 481 A.2d 892 (1984). . Act of October 15, 1980, P.L. 934, No. 163, § 1, as amended, 23 Pa.C.S. § 2101, et seq., effective January 1, 1981. . This issue was not answered or discussed by the Superior Court, as it was raised by this Court in our Order of June 21, 1985, granting the Petition for Allowance of Appeal. . 23 Pa.C.S. § 2511(a)(2) provides: The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. . 23 Pa.C.S. § 2511(a)(5) provides: The child had been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child. . PUB.L. 95-608, § 102(f), 92 Stat. 3072, 25 U.S.C. § 1912(f) (1976 ed., Supp. IV). . The 1970 comment following 23 Pa.C.S. § 2511 notes that: Clause (2), suggested by Section 19(c) of the Revised Uniform Juvenile Court Act (1969), differs from "abandonment” in that it centers judicial inquiry upon the welfare of the child rather than the fault of the parent. . See, State v. Robert H., 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978); La.Rev.Stat.Ann. § 13:1603A (West.Supp.1982).

The opinion of the court was delivered by Kennedy, J. It is proper to observe, that the contest In this case is between the executors and legatees, and not with the creditors of the testator. And although Lord Thürlow, in Saddler v. Hobbs, 2 Bro. Ch. Rep. 117, seemed to think it an odd distinction that a creditor should have a right to charge an executor when legatees should not, and Mr. Toller, in his treatise on the Law of Executors and Administrators, 484, has said, that it appeared to rest on no authority, its existence is recognised in 2 Fonb. 83-84, and acted upon in several cases. In Gibbs v. Herring, Pre. Ch. 49, the distinction is taken, and the decision of the case professes to be founded upon it. The court say, “ the executrix shall not make it good to the plaintiffs who were to have a share of the estate by the custom of the province of York, but against a creditor she should.” In Churchhill v. Lady Hobson. 1 P. Wms., 243, the distinction is expressly taken by Lord Chancellor Harcourt, and given by him as the reason and ground of his decision in that case. Lord Northington in Westley v. Clark, 1 Eden. 357, S. C. in note 1 P. Wms., 83, if he does not sustain the distinction, decided that two executors who joined a third in giving a receipt for money received by him alone, should not be liable to the legatees for it, which is directly contrary to what Lord Thurlow considered was the rule as to executors. And in Bacon v. Bacon, 5 Ves. 331, an executor who lived in town gave twelve hundred pounds to his co-executor to pay a list of debts made out and represented by the co-executor to be owing by the testator in the country, where he resided at the time of his death, was discharged from a loss of more than four hundred pounds of the money, arising from the misapplication and insolvency of the co-executor. It appeared there, that the co-executor lived in the country, where he said the debts were owing, and where in fact debts of considerable amount were known to exist by the executor giving the money ; that the co-executor had been the confidential agent and attorney of the testator in his lifetime for many years, and had been entrusted with the receipt and payment of large sums of money by him. And as a direct and binding authority upon this court, we have the decision of it made as early as 1788, in the case of Brown’s Appeal, 1 Dall. 311, where one executor, who had received money belonging to the estate of the testator, and paid it over to his co-executor, who became insolvent, was held not to be answerable to legatees, although, as the court say, he would have been chargeable to creditors, if there had been any. In the case of Gibbs v. Herring, it appeared that the testator in his lifetime had entrusted J. S. with several sums of money, to dispose of at interest for him, and died while part of it was still in his hands undisposed of. The executrix, however, instead of taking the money out of the hands of J. S., directed him to put it out at interest, which he accordingly did, on security that proved deficient, and yet she was held not- liable for the loss of it to the legatees. The resemblance of this case to the one under consideration is, as it appears to me, very striking. The confidence of the testator in the goodness of his security for the debt due upon the bond, with the accruing interest, shown in the one case by his refusing to receive the principal, saying he “ did not wish it paid during his life, the interest was all that he required,” is fully equivalent to the confidence of the testator evinced in the other case, in the integrity and responsibility of J. S., by entrusting and leaving his money in his hands to be put to interest on such security as he might think good. Beside, executors have always been permitted to exercise their discretion upon such subjects ; for Lord-keeper Harcouiit in Brown v. Litton, 1 P. Wms. 141, lays it down, that where an executor puts out money, though without the indemnity of a decree, upon a real security which there was no reason then to suspect, but afterwards such security proves bad, he is not accountable for the loss. Lord Redesdale, who was disposed to hold a pretty tight rein upon executors, was unwilling to lay down the rule positively that there was no case where the strictness of the law would charge a man as executor as to creditors, in which a court of equity would not charge him also as to legatees. “ Legatees,” he said, “ were bound by the terms of the will; creditors were not so : and therefore in many cases executors would be discharged as against legatees, though not as against creditors.” 2 Schoales & Lef. 239. An opinion seems to have prevailed at one time, and perhaps, with some at almost all times, that it was an inflexible rule to charge executors jointly with all moneys for which they had given joint receipts, upon the ground, that it was unnecessary for them to join in such receipts unless they intended that they should be charged jointly, that is, to be responsible for each other; but that in the case of trustees, the one who actually received the money was alone to be charged, although all had joined in giving the receipt, because it was necessary that all should unite in the execution of the trust where it was joint. Lord Eldon thought this a very intelligible rule, but admits that it had been broken down by decisions, in which the rule that every case was to be determined upon its own circumstances, was adopted; whether it was wise to do so, he however, thought might be reasonably doubted. 16 Ves. 479. Here we have the admission of an advocate of this first rule, as he seemed to think it was, tjiat its inflexibility no longqc exists, but has yielded to another rule, that every case must be decided upon its own peculiar circumstances. Indeed it may perhaps be somewhat doubtful which of these rules was first established, for Gibbs v. Herring, in which the latter is adopted and applied, is one of the earliest reported cases that we have on this subject. The former is undoubtedly, as Lord Eldo.v observes, a very intelligible rule, and one too that would probably in most cases be of easy application, but the reasonableness of it may be very questionable. I confess that I am unable to persuade myself that the reason assigned for making executors responsible for moneys which they never received, merely because they joined with a co-executor who had received it, in signing a receipt, is in any way sufficient, or that it is true in point of fact. 1 do not believe that in doing so, they ever think of making themselves answerable for the money where it has been received by their co-executor. On the contrary I believe that it is done, either because they conceive it to be their duty to do so, as in the case of joint trustees, or do it from a desire to satisfy the payer of the money, who may not think he has got a good acquittance or discharge from his obligation unless signed b^ all the executors. I do not mean to say, that any one who is a lawyer could ever have thought so, hut then it must be recollected that every one who has to pay money to executors is not a lawyer, nor is every executor himself one ; and it must also be observed that it is not very easy to discriminate between the office of an executor and the office of an administrator, and yet there was a time when lawyers, and judges too, thought it necessary that co administrators should join in all acts to be done by them in their official character, as in giving a release, &c. because as it was said, administration was in the nature of an office, and “ if an office were granted to two, they must join in executing the acts of the office.” Hudson v. Hudson, 1 Atk. 461. Of this however, the author of the Touchstone made a quere. Shep. Touch. 484-5 ; and since that, the distinction has been repudiated. Jacomb v. Harwood, 2 Ves. 267-8, and Willard v. Fenn, there cited by the Master of the Rolls. But then, as long as this distinction prevailed between executors and administrators, there was precisely the same reason for applying the same rule to administrators that was always and uniformly held to be applicable to trustees, in giving receipts for money. Since we find then, that at different times different opinions have been entertained, even by those learned in law, as to the necessity of all the personal representatives of a deceased person joining in a release, receipt, or other act, in the course of their administration, would it not be very unreasonable to make executors, who may be quite unlearned in the quiddities of the law on this point, responsible for moneys received by a co-executor, merely because they had unnecessarily joined with him in giving a receipt for it? It is at most but a mere supererogatory, or perhaps, more properly, nugatory act, that can produce no possible injury to any one, and therefore ought not to be made the basis of a claim. The understanding and intention of the parties to the transaction, ought to be looked to, and, if innocent, ought to make the law of the case. And when a party requires a receipt to be signed by all the executors or all the administrators, when he has paid the money only to one of them, why should he not have it, if they are willing to give it, without their incurring the risk of paying a penalty for doing so 1 I repeat again, that I cannot believe that such receipt is ever signed by those who did not participate in the receipt of the money with a view to guaranty either the honesty or solvency of the receiver. They receive no consideration, and have no motive whatever for doing so. And after the money has been so received, what good can it do to those interested in the estate, for the other executors to refuse signing the receipt ? None whatever; while, on the other hand, their signing the receipt can work no possible injury to either creditors, legatees or distributees, and certainly puts nothing into the pockets of. the non-receiving executors or administrators. Would it not then be most unconscionable to make them accountable for money which they never received, and from which they never derived any benefit whatever ; and in respect to which they had done nothing to prejudice the right of any one, or in the slightest degree to hinder or delay his claim ? But, if it be said, that it is not ori the ground of intention that they are to be made liable by joining in the receipt, but because they have done an unnecessary act, one which the law did not require them to do, because the receipt of the one who was the receiver was a sufficient discharge in law, the insufficiency, if not the absurdity, of such a proposition has been already made manifest. It would not only be inequitable and unjust, but repugnant to the whole tenor of the common law, to make a man liable to pay money who had never either expressly or impliedly undertaken to do so; who had violated no law, and done no act that could injure the right of any one or yield the least possible advantage to himself. From this view of the subject I am induced to believe that there is no good reason for making executors or administrators liable more than trustees for moneys which they have never actually received, merely because they have joined in a receipt with the co-executor or co-administrator who did receive it. The receipt when proved, must always be considered prima facie evidence against each of the signers that he received the money ; and if he wishes to avoid the consequent liability, it will lie upon him to prove who did receive it, and that it was not received by him. The distinction which has been taken in some cases, and mentioned in others, for executors being liable to creditors and not to legatees, for losses in the estate, is not without reason, or at least the appearanee of it. The creditors of the testator have claims upon his estate, which he cannot defeat or set aside; nor can he give any latitude of discretion whatever to his executors that will prejudice his creditors, in applying his estate to the payment of them. The law lays down the rule here by which the executors respectively are to govern themselves. But after his debts are paid out of the estate, the testator can dispose of the residue as he pleases, and prescribe the course that the executors shall pursue in the administration of it. Tn short his will, so far as it can be discovered, may be considered their guide and protection : and hence, as long as the executors shall manage this part of the estate in accordance with the ideas and notions which the testator himself entertained of it, and have done nothing but what there is reason to believe he would have approved, could he have been consulted, it would seem to be unreasonable to make them responsible for losses attending it. This principle has been adopted in several of, the cases already referred to, and is directly applicable to the one before us. It is evident that the testator in his lifetime considered the bond of George and John Shelmire perfectly good; and I think 1 may say exclusively so, upon the sole responsibility of John: for in 1813, three years after this bond had been given, and after it had become payable, there was a meeting of George’s creditors, about receiving payment of their debts, as it is said, which would seem to indicate the doubtful circumstances of George at that time, vet the testator declined receiving the amount of his bond, stating that be did not want it in his lifetime. He was content with receiving the interest upon it, which was paid to him annually until his death in 1816. By his will he, among other things, directed that two of his executors, John and Samuel M'Nair, two of his sons, should put out to interest for the use of their sister Rebecca, twenty-six hundred and sixty-seven dollars of his estate “ on land security, or otherwise render it safe and productive, and pay the proceeds thereof, from time to time (as they in their wisdom should judge most for her benefit,”) to her during her natural life. The interest upon the Shelmire bond, was paid to the executors for the year 1817, and perhaps 1818. George S. Shelmire removed from this state to that of New York, in March, 1817, in less than a year after the death of the testator, when he was considered insolvent. In April, 1818, John Shelmire, the other obligor, died, leaving a large estate, but it turned out afterwards upon a suit brought to recover the amount, against his executors, who refused to pay the bond, that it was adjudged to be joint and not several, and therefore the executors of Samuel M'Nair were held not entitled to recover upon it against the estate of John, as George survived him. Among gentlemen of the bar, there was a diversity of opinion whether the bond, taken in connexion with its condition, and judging from the face of the whole, was not several. It does not appear that the testator in his lifetime, or his executors after his decease, ever had the least idea that it was any other than a bond in common form, such as would be binding upon both, or either, and that the death of one could not relieve his estate from the payment of it. Resting secure under this conception of the nature of the bond, the great wealth of John Shelmire, one of the obligors, afforded the most perfect assurance of the payment of its amount being “ rendered safe and productive” according to the words of the will-Indeed it is not pretended that the bond of any other man in the country could have made it more so. Is it likely then that the testator, had he continued to live during the life of John Shehnire, wanting only the interest on the bond, and receiving that as called for, would have pressed, or even asked for the payment of the principal 1 He was content to let it rest in this way during his life, considering it perfectly “safe and productive:” and it does not appear that there was any change in the circumstances of the obligors, after the death of the testator, as long as John Shelmire continued to live. It may therefore be reasonably inferred, that had he lived until the death of John Shehnire, he would have done as his executors have. Taking therefore the conduct of the testator himself, together with the directions contained in his will, as the rule for the executors to go by, I think it would be too severe to make them answerable for the loss of the amount of the Shelmire bond. The circumstance of one of the legatees having offered to take this bond, which has been so much relied on to make the executors responsible for the loss of it, is perhaps quite as much in their favour as against them. For if it was offered to be taken as so much cash, as has been suggested, in discharge of the legacy pro tanto, it goes to show that such legatee thought it indisputably good, and furnishes strong evidence to sustain the integrity and purity of intention of the executors, and that all were deceived in the opinion which they entertained of the bond, and the nature of it, as to its binding efficacy ; and likewise tends to render it probable, that John, one of the executors who is said to have objected to parting with the bond in that way, might have thought that it would perhaps answer to form a part of the fund which they, according to the directions of the will, were to establish for the benefit of their sister Rebecca, as it was then yielding interest on its amount daily, and seemed to be thought by all concerned in the estate, safely secured. When it was, that Craven, one of the legatees, offered to take the Shelmire bond as part of the estate of the testator, does not precisely appear, but it is said to have been about a year after the death of the testator, and certainly before the death of John Shelmire. In what way or upon what terms and conditions this bond was offered to be taken, does not distinctly appear. The conversation about it, seems to have taken place at a meeting of the executors and legatees, held for the purpose of making some arrangements for the distribution of the estate according to the directions of the will; but whether any distribution was then made, or when it was made, is not shown. It is most likely that no final and positive distribution was then made, for from some of the testimony it would seem probable that the executors interposed an objection at some time, which may have been then, that no refunding bonds were offered. It does however appear that a bond which was held by the testator at the time of his death and came to the hands of his executors, upon a certain James Allison Was taken by or.e of the legatees, but not being able to make it answer his purpose, it was returned, and the legatee finally not charged with it, which shows that this bond though taken, was only taken conditionally. In short, the testimony in respect to all this matter is very vague and unsatisfactory, and in my opinion not sufficient to warrant a decision that there ever was any final distribution and appropriation of the amount of the Shehnire bond to the fund of twenty-six hundred and sixty-seven dollars, which was to be set apart for Rebecca’s use during her life, and I therefore think, that the loss of it ought not to fall upon (he trustees of Rebecca, nor yet upon Rebecca herself, and those who after her death are to succeed to this fund. And although some of the legatees might have been willing at one time to have taken the Shelmire bond as cash, there is no reason to believe that it was because the executors did not require payment of it from the obligors. None of them ever complained of the executors that they Were neglecting their duty in this respect. Indeed, it would rather seem that the legatees were not solicitous about collecting the moneys due to the estate if well secured; and that the executors were not willing to give indulgence, in some cases at least, without the consent of the legatees: for all this appears to have been the case with respect to the debt due upon the bond against the estate of James Allison, which was outstanding at the time the executors stated their account; and the delay in the collection of it is stated and admitted to have taken place with the assent and approbation of the legatees. When we look at all these things, and take them into our consideration, it is difficult to resist the conviction,, that the course pursued by the executors until after the death of John Shelmire, created no dissatisfaction with any of the legatees and those concerned in interest in the estate; but on the contrary, was adopted, in part at least, by the former because it met the approbation of the latter. The executors were not to blame for refusing to take the judgment bond and mortgage proposed to be given by George S. Shelmire, for the bond which had been given by himself and his father John Shelmire, for it has not been shewn that he had any title for the land that he offered to give a mortgage on; nor that it was of any value: as to his judgment bond, that would have been worthless, unless it were shewn that he had property of some value. But the testimony rather goes to prove that he was insolvent before he left this state, and at the time of leaving it in 1817, and that finally he was compelled to seek relief from the insolvent laws of New York stale. Beside, it must be recollected too, that at the time this offer was made by George, the executors believed that the estate of John Shelmire was liable for the payment of the bond, so that to have acceded to the proposal of George, would have been to give up what they considered a good security for the debt, for one that they knew nothing about, which would have been certainly culpable. I think it reasonable that the executors should be allowed for the costs and expenses incurred in prosecuting the several suits upon the Shelmire bond, for they in truth appear to have acted with good faith through the whole of this business, and it would be wrong, under all the particular circumstances of this case, that they should be made to bear the losses attending it. The decree of the Circuit Court is affirmed. Ross, J. I am clearly of opinion, the executors rendered themselves liable by their gross neglect in not securing the money due from Shelmire when it was perfectly within their power to have done so. Their refusal to give the bond to one of the legatees, who was desirous of taking it in payment of her legacy, and insisting on keeping it themselves, was not justified by any circumstance which has appeared in evidence. By such refusal the executors rendered themselves responsible for the payment thereof. No case has been cited which bears the slightest resmblance to the one under consideration. The case of a principal neglecting or refusing to receive his debt, when in his power to do so, and who thereby exonerates the surety, is on principle more analagous to the circumstances of this case, than any which have been adverted to. The ignorance of the executors of the law on the facts, which it was their bounden duty to know and ascertain, and which they might have known by exercising due diligence and prudence, in the performance of their duties as executors, ought not, in my opinion, to avail them. If it will exonerate them, few executors can hereafter be made liable. There are indeed but few among them who are capable of fulfilling the duties entrusted to them, and if men will undertake the management of trusts, which they are intirely incompetent to perform, and afterwards neglect to seek correct information from those who are able to give it, justice, reason, and the soundest principles of equity require, that any loss which thereby ensues, should fall upon those, in consequence of whose neglect or mismanagement, such loss has occurred. This is very briefly the ground upon which I dissent from the opinion of the majority of the court. Decree of the Circuit Court affirmed.

Opinion by Judge Mencer, This is an appeal filed by Dr. James Shira from an order of the Unemployment Compensation Board of Review (Board) awarding compensation to Sheila R. Mellott. Mrs. Mellott had been employed by Dr. Shira as a dental technician for approximately three and one-half years. This employment was terminated on June 11, 1971, at which time she was in her sixth month of pregnancy. Mrs. Mellott, on November 7, 1971, more than thirty days after the birth of her child, applied for unemployment compensation benefits and was found to be eligible by the Bureau of Employment Security. Dr. Shira appealed this determination. An Unemployment Compensation referee was assigned the case and after a hearing, the referee concluded that Mrs. Mellott was not eligible for benefits because at the time of her application she was not able to work and available for work as required by Section 401(d) of the Unemployment Compensation Act, Act of December 5, 1936, P. L. (1937) 2897, as amended, 43 P.S. §801 (d). Mrs. Mellott appealed to the Board, and on November 20, 1972, the decision and order of the Board reversed the referee and awarded her benefits. This appeal followed and we affirm. Dr. Shira argues, inter alia, that the Board erred in its findings of fact. Our scope of review in unemployment cases is confined to questions of law and, absent fraud, a determination as to whether the Board’s findings are supported by the evidence. Questions of credibility and the weight to be given evidence are for the Board. Furthermore, the party victorious below is to be given the benefit of any inferences which can reasonably and logically be drawn from the evidence. See James v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 489, 296 A. 2d 288 (1972) . The sole issue before this Court in regard to the Board’s findings is whether they are supported by the evidence. The findings which Dr. Shira contests are the following: “3. Claimant was willing and able to continue her employment even though she was in her sixth month of pregnancy.” and “4. Claimant is able and available for work as certified to by her physician.” Both these findings are supported by substantial evidence in the record and are therefore binding upon this Court. Kanouse v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 188, 305 A. 2d 782 (1973) . Dr. Shira also argues that the Board erred in concluding that Mrs. Mellott was genuinely and realistically attached to the labor force, and therefore “able to work and available for work” as required by Section 401(d) of the Act, 43 P.S. §801 (d). A claimant, to be available for. work, must actually be currently attached to the labor force. See Hunt v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 577, 302 A. 2d 866 (1973). Under Section 401(d) it is sufficient if a claimant is able to do some kind of work and there is a reasonable opportunity for one to obtain work in the vicinity of his habitation. Quiggle Unemployment Compensation Case, 172 Pa. Superior Ct. 430, 94 A. 2d 367 (1953). We find that Mrs. Mellott was able to work and available for work under this test. It is true that Mrs. Mellott testified that she had not really called anyone concerning a job; however, she testified that she had asked other dental assistants if they knew of any openings, and that this was the usual procedure for securing jobs of this type. In addition, Mrs. Mellott’s filing of her claim for benefits was tantamount to registering for work. This registration, coupled with her doctor’s certification of availability for work, established a prima facie presumption of availability which was not rebutted by Dr. Shira. See Pulver Unemployment Compensation Case, 207 Pa. Superior Ct. 112, 215 A. 2d 269 (1965). Therefore, the Board was correct in concluding that Mrs. Mellott satisfied the availability requirement of Section 401(d). Finally, Dr. Shira urges this Court to deny compensation to Mrs. Mellott by a finding, contrary to both the referee and the Board, that her pregnancy was wilful misconduct under Section 402(e), Act of December 5, 1936, 43 P.S. §802(e). This we cannot do. Although Section 402(e) of the Act does not define the term “wilful misconduct,” the courts have established a workable definition. . In Harmer Unemployment Compensation Case, 206 Pa. Superior Ct. 270, 272, 213 A. 2d 221, 223 (1965), wilful misconduct was defined as: “[A]n act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” We hold that an employe’s pregnancy cannot be construed as wilful misconduct as this term has been defined by the courts. Sections 401 (d) and 402(f) of the Act, in specifically regulating when employes discharged or laid off because of pregnancy can collect benefits, make it clear that the Legislature intended that such employes were entitled to compensation, and were not to be totally excluded as a consequence of pregnancy. For the above reasons the order of the Board must be affirmed. Order affirmed.

Adjudication by Judge Mencer, This equity action was initiated by several individual citizens of the City of Wilkes-Barre and a group of students attending Wilkes College in Wilkes-Barre. The named defendants include the Secretary of the Pennsylvania Department of Transportation, the Commonwealth of Pennsylvania Department of Transportation, the City of Wilkes-Barre, and the Mayor and Councilman of the City of Wilkes-Barre. The complaint filed seeks to enjoin the widening of portions of North and South River Streets in Wilkes-Barre. Under the proposed plans, River Street would he widened to a forty-two-foot four-lane artery for a distance of approximately two-thirds of a mile. As a consequence, there would be an encroachment up to twelve feet at certain points and the taking of approximately one-half acre from lands known as the River Common (Common). Some large trees would be removed and a pedestrian walk would be eliminated. The Common is presently comprised of about twenty-two acres and is essentially a park area. The original “town plot” of Wilkes-Barre was laid out in 1770 by settlers of the Susquehanna Company who migrated to the Wyoming Valley from the Connecticut Colony. An area along the Susquehanna River was left open and became known as the River Common. During the past two centuries this land has been used for various public events, and historical monuments have been erected on the Common. In 1779 it was the site of encampment of the Clinton-Sullivan Expedition against warring elements of the Iroquois Nation. In 1806 the Borough of Wilkes-Barre was incorporated and in 1807 the Pennsylvania Legislature dedicated the Common lands between South Street and Union Street for use as a public common. In 1846 the Legislature dedicated the land from Union Street northward to North Street as a public common. The Luzerne County Courthouse is located at the north end of the Common. Kings and Wilkes Colleges are located on the east side of River Street, and students from those institutions use the park area of the Common. The defendants filed answers, and an evidentiary hearing was held for four days in December 1972. At the completion of this hearing, certain of the defendants made a motion to dismiss. The parties have presented briefs and offered oral argument before this Court en banc. Upon consideration of the evidence, we make the following Findings of Fact 1. The plaintiffs in this action in equity are Marion Woodward Payne, Sara Wolfe Bell, Lea M. Csala, Frances Phelps Waller, Rachael W. Gutman, Anthony J. Mussari, Barbara B. Albert, Magdalene Dysleski, Stella M. Moat, Elizabeth C. Miner, George Loveland, Esquire, Carolyn H. Reif, Judith L. Reishtein, Anthony J. Walaitis and Stella Walaitis, his wife, all of whom are residents and taxpayers in the City of Wilkes-Barre, Luzerne County, Pennsylvania, and its environs, and the Wilkes College Students’ Committee for a Clean Environment, an unincorporated association of Wilkes College students comprising a school sanctioned club at Wilkes College in the City of Wilkes-Barre, Luzerne County, Pennsylvania. 2. The defendants are Jacob G. Kassab, individually and as Secretary of the Pennsylvania Department of Transportation, the Commonwealth of Pennsylvania Department of Transportation, the City of Wilkes-Barre, and John B. McGlynn, Mayor, Marjorie Bart, Robert P. Brader, John V. Morris, Kenneth Remensnyder, Con Salwoski, and Joseph A. Williams, Coun oilmen of the City of Wilkes-Barre, Luzerne County, Pennsylvania. 3. The action is in the nature of a class action and was brought to enjoin the widening of portions of North and South River Streets in the City of Wilkes-Barre, insofar as the widening project proposed by the defendants encroaches upon lands known as the River Common of the City of Wilkes-Barre. 4. The Pennsylvania Department of Transportation, also called PennDOT, under the Act of May C, 1970, P. L. 356, §§11-18, as amended, 71 P.S. §§511-521, has certain powers and duties, including those formerly vested in the Pennsylvania Department of Highways, that encompass the planning and developing of transportation programs and the building, rebuilding, maintenance, widening and construction of State designated highways and rights of way. 5. The City of Wilkes-Barre is a third class city of the Commonwealth of Pennsylvania duly incorporated pursuant to the Act of May 4, 1871, P. L. 539, of the Pennsylvania Legislature, and operating in accordance with the Third Class City Code, Act of June 23, 1931, P. L. 932, 53 P.S. §35101 et seq., and under the provisions as well of the Optional Third Class City Charter Law, Act of July 15, 1957, P. L. 901, 53 P.S. §41101 et seq., all as amended. 6. Dating from about the year 1770, when the original town of Wilkes-Barre was plotted out by settlers of the Susquehanna Company from Connecticut Colony, there has existed a tract of land bordering the Susquehanna River at Wilkes-Barre, consisting originally of approximately thirty-five acres and dedicated and used as a public common. 7. In 1799, while Wilkes-Barre was still a township, the Legislature of the Commonwealth of Pennsylvania, in order to resolve conflicting claims between Pennsylvania and Connecticut settlers and to legalize titles to lands in the area involved, which included the then township of Wilkes-Barre, passed an act entitled “An Act for offering compensation to the Pennsylvania claimants of certain lands within the Seventeen Townships in the county of Luzerne, and for other purposes therein mentioned.” Act of April 4, 1799, recorded in Law Book Yol. YI, 394, 3 Sm.L. 362. 8. On January 2, 1804, commissioners appointed under the Compensation Act of April 4, 1799, and its supplements, made and returned a survey and issued a certificate to the “township committee,” at that time comprised of Matthias Hollenback, Lord Butler, and Jesse Fell, for two tracts of land in the township of Wilkes-Barre, “one thereof being a square in the town plot thereof and called the Centre Square and the other being the public common on the river bank,” and the latter embracing the entire river front from North Street to South Street; which two tracts contained about “thirty-nine acres and forty-one perches, with the usual allowance of six percentum for roads.” 9. By the Act of March 17, 1806, recorded in Law Book Yol X, 326, 4 Sm.L. 321, the Borough of Wilkes-Barre was incorporated by the Legislature of the Commonwealth. 10. By Section III, Act of April 9, 1807, recorded in Law Book Yol. XT, 47, 4 Sm.L. 411 (a supplement to the Act of April 4, 1799), the Pennsylvania Legislature dedicated that portion of the Elver Common along the river front between South and Union Streets for use as a public common in the following manner: “And be it further enacted by the authority aforesaid, That all that certain tract of land fronting the town-lots in the borough of Wilkes-Barre, on the bank of the Susquehanna, extending from the land of Jebez Fish, up the said river, one hundred and ninety-two rods, in a line parallel with the front line of the town-lots, be, and the same hereby is granted and set apart as a public common, and to remain as such for ever.” 11. By the Act of March 28, 1840, P. L. 196, §6, the Pennsylvania Legislature provided: '’That all that certain tract of land, fronting the town lots in the borough of Wilkes-Barre, on the bank of the Susquehanna River, extending from the north side of Union street, up the said river, about sixty three rods to the north side of North street, be and the same hereby is granted and set apart as a public common, and to be under the control and jurisdiction of the town council of said borough.” 12. By Articles of Agreement made February 8, 1869, and recorded in Luzerne County Deed Book 141 at page 276, and by Indenture made May 16, 1870, and recorded in Luzerne County Deed Book 3.41 at page 278, the Trustees of the Properties of the Borough and Township of Wilkes-Barre, successors to the former Township Committee, did convey the two tracts of land, being the Public Square and the River Common, to the Burgess and Town Council of the Borough of Wilkes-Barre. 13. By patent issued from the Land Department of the Commonwealth of Pennsylvania on January 10, 1870, and recorded in Luzerne County Deed Book 170 at page 240, and upon the payment of the sum of $207.-39, the two tracts of land, namely the Public Square and Public Common (River Common), were granted to the Burgess and Town Council of the Borough of Wilkes-Barre. 14. The Borough of Wilkes-Barre became an incorporated city of the Commonwealth of Pennsylvania pursuant to the Act of May 4,1871, P. L. 539. 15. Prior to 1971, the Commonwealth of Pennsylvania, Department of Highways and/or PennDOT, commenced studies and planning for the widening of Legislative Route Spur 5, which encompasses North and South River Streets in the City of Wilkes-Barre between North and South Streets in that municipality, and on April 20, 1971, a public hearing was conducted with reference to the project at which only two proposals for widening were made to the public — one which would not encroach upon River Common lands on the westerly side of the street, and one which would encroach upon the River Common lands as well as lands of property owners on the easterly side of the street. 16. The proposal recommended by PennDOT would widen North and South River Streets to a four-lane traffic artery, forty-two feet in width, for a distance of approximately two-thirds of a mile, tailing lands from both the easterly and westerly (River Common) sides of the street. 17. River Street is a multilane roadway which passes through the River Common along its eastern side as well as beyond the limits of the park in both a northerly and southerly direction. It varies from three to four lanes along the length of the Common. At South Street, River Street is forty-six feet six inches wide, tapering to forty-tAvo feet in Avidth five hundred feet north of South Street. It is at this point that the proposed project will commence. The existing street continues to gradually narroAV doAvn to thirty-two feet at Market Street. North of Market, River Street is thirty feet wide until it gradually widens to thirty-eight feet six inches at North Street. This allows for four lanes of traffic between South Street and Northampton Street and three lanes of traffic for the remainder of the distance. 18. River Street is bordered by tree-lined sidewalks on both sides, and a tree laAArn is betAA^een these sideAvallcs and River Street. The trees in both of these tree lawns are in variable conditions. Surveys were made in June of 1970 and again in December of 1972. These surveys showed the trees directly affected by the project: Condition of Trees Year Total Trees Good Fair Poor Dead 1970 23 10 5 4 4 1972 20 10 5 3 2 The trees affected were of the following varieties, by the 1970 survey: Good Tree Fair Poor Dead 4 Elm 3 1 3 4 Norway Maple Silver Maple Horse Chestnut 2 2 Basswood 1 As indicated, the 1972 survey showed three trees had been cut; of these two were dead elms and one was the basswood listed in poor condition in 1970. 19. The River Common is twenty-one and seven-tenths acres in size and contains numerous walkways and grass lawns abutted by many trees and plants. The limits of the Common are from North Street to South Street and from the Susquehanna River to the property line on the east side of River Street. Within its boundaries are several historical markers aud monuments. 20. On the west side of River Street, the side of the River Common, the following significant structures and features may be found: On the corner of North Street and River Street is the front of the Luzerne County Courthouse, with a cement sidewalk and steps leading to the Courthouse. The cement sidewalk continues in a southerly direction to the tracks of the Wyoming Valley Railroad Company. An earthen driveway to the rear of the Courthouse is immediately adjacent to the tracks. Three large trees and the ends of several paths leading into the Common lie just south of the tracks. The sidewalk becomes a cinder walkway for the rest of the length of the project. A low stone wall divides the area of the cinder walk from the rest of the Common for most of the remaining length of the project. At Market Street, the stone wall terminates and the cinder walk broadens and merges with the sidewalk of the Market Street bridge. Granite railing borders the sidewalk area in the vicinity of this intersection. These facilities are paralleled on the south side of the bridge, where the stone wall begins again. A one-story building with flood protection equipment lies just south of the bridge. The stone wall terminates just south of Northampton Street and there is no divider for the remainder of the Common. 21. On the west side of River Street, there is a concrete sidewalk throughout. North Street, Jackson Street, the railroad tracks, West Union Street, Market Street, Northampton Street, and South Street intersect with River Street. Between North Street and Jackson Street, Luzerne County maintains a parking lot. Kings College lies south of Jackson Street. Various properties, with well established front lawns continue to a point just north of Market Street. At that point, there is a medium-sized hotel (the Hotel Sterling). A gasoline station is on the south side of the intersection. For the remaining length of the project, most of the buildings are residential type structures, many owned by Wilkes College. A Baptist Church lies just south of the Market Street intersection. 22. River Street is now and will continue to be the major access route to the bridges across the Susquehanna River between Wilkes-Barre and the Borough of Kingston. 23. River Street is now and will continue to be an essential link in the transportation system of Wilkes-Barre and Luzerne County. 24. The River Street project has been established as having a high priority by the Lackawanna-Luzerne County Transportation Study which is the official pro jeeted transportation study of the area. This study considered all aspects of growth and development in the area and then proposed a transportation system sufficient to meet projected needs. The study has been developed through the cooperation of state and local officials, as well as other local participants. It is the result of extensive analysis by professional planners at state and local levels. 25. The Wilkes-Barre City Council, after consideration and reconsideration, approved the project, but, as indicated by a resolution of July 6, 1971, said approval was conditioned upon acceptance by PennDOT of certain recommendations which included, inter alia, repairing all telephone poles and wires with underground wires and total reconstruction of River Street. 26. On November 5, 1971, notice was filed that PennDOT had given approval to the Legislative Route 5 Spur (River Street) widening project; and on November 12, 1971, a “finding” was filed that stated in effect that there would be some adverse effect on the River Common park lands but that there was no feasible alternative. 27. In recent times the River Common has been used as an open space and park area; festivals and civil programs are held there; and students from local colleges use the area for study, classes, and recreation. 28. The historical development of the park indicates that the River Common is an area of local historical significance. 29. Two proposals for straightening and realigning River Street were evolved; one would balance the taking on both sides of River Street, and the other would take a small amount on the east side of River Street and primarily take from the west side of River Street. The former was “Scheme II,” while the latter was labeled “Scheme I” at the public hearing of April 20, 1971. 30. Scheme I was adopted for straightening and realigning River Street. 31. The Commonwealth is removing twenty-three trees of variable quality but replacing them with twenty-eight trees of a quality and size reasonably compatible with transplanting. 32. The cinder walkway and tree lawn between this walkway and the pavement will remain of substantially the same character as that which presently obtains. 33. The parapet and railing along the Market Street bridge will be rebuilt with original material in those areas where the change in the curve requires the moving of the parapets. 34. The stone wall between the Common and the walkway will have to be moved at some locations, but will be rebuilt with existing material. In addition, the wall sustained some damage as a result of the June 1972 flood, and the Department has agreed to make the necessary repairs in conjunction with the project. 35. Granite curbing will be used along the edges of paving to improve the appearance of River Street. 36. Two short stone pillars near the railroad tracks with historical markers will be affected by the construction and will be moved slightly further into the Common. The original material will be retained. There is no historical significance to the specific location of these pillars. 37. The Department of Transportation did consult with the Departments of Environmental Resources, Community Affairs, and Health, the State Planning-Board, and the Fish Commission, regarding the location, design, construction or reconstruction of the River Street project, and their suggestions and criticisms were considered. 38. In addition to a required public hearing, held April 20, 1971, officials of the Department of Trans- portion met with individual citizens and groups of citizens on numerous occasions to explain and answer questions on the project. 89. The transcript of the public hearing was analyzed and commented upon by the District Office subsequent to the public hearing. This analysis, as well as the transcript itself, was before the Secretary of Transportation when the Secretary reached his decision to approve construction of the River Street project. 40. The Secretary of Transportation issued his finding, which was published in the Pennsylvania Bulletin and local newspapers, that no feasible and prudent alternative existed and that the project as planned incorporated appropriate environmental safeguards. 41. Since the area was of local historical significance, the Pennsylvania Historical and Museum Commission was consulted. The Department was notified that, after the investigation, the Commission was satisfied with the project. 42. The Department of Transportation did cooperate with other authorities and agencies in the development of the River Street project. The Commonwealth has coordinated this project with the Luzerne County Planning Commission, the Lackawanna-Luzerne Transportation Study, the Wilkes-Barre Redevelopment Authority, the County of Luzerne, and the City of Wilkes-Barre (through the Planning Commission, the Recreation Department, the City Engineer, the City Planner, and the City Council). Numerous changes, suggestions, and even the initial request for the project, were derived from one or more of the foregoing agencies. 43. The nature of River Street will remain substantially the same, and the project will not significantly alter the River Common. 44. The City of Wilkes-Barre has approved the present project. Discussion The River Common is an area of local historical significance and is within the purview of Section 13 of the Act of May 6,1970, P. L. 356 (Act 120), as amended, 71 P.S. §512, and Article I, Section 27 of the Pennsylvania Constitution. Two important questions confront us in this case. I The Effect of Article I, Section 27 of the Pennsylvania Constitution on the River Street Project Article I, Section 27 of the Pennsylvania Constitution states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” In Commonwealth v. National Gettysburg Battlefield Tower, Inc., 8 Pa. Commonwealth Ct. 231, 302 A. 2d 886 (1973), aff'd 454 Pa. 193, 311 A. 2d 588 (1973), we held the provisions of this section to be self-executing. Here, plaintiffs urge us to read Article I, Section 27 in absolute terms. Since, admittedly, an historical area will be affected by a widening of River Street, they assert their rights under this section of the Pennsylvania Constitution are violated and the highway project in question must be enjoined. This Court’s awareness of the ramifications of such an absolute interpretation caused us to point out in Gettysburg that “[i]t is difficult to conceive of any human activity that does not in some degree impair the natural, scenic and esthetic values of any environment. If the standard of injury to historic values is to be that expressed by the Commonwealth’s witnesses as an ‘intrusion’ or ‘distraction,’ it becomes difficult to imagine any activity in the vicinity of Gettysburg which would not unconstitutionally harm its historic values.” Id. at 249, 302 A. 2d at 895. Likewise, it becomes difficult to imagine any activity in the vicinity of Kiver Street that would not offend the interpretation of Article I, Section 27 which plaintiffs urge upon us. We hold that Section 27 was intended to allow the normal development of property in the Commonwealth, while at the same time constitutionally affixing a public trust concept to the management of public natural resources of Pennsylvania. The result of our holding is a controlled development of resources rather than no development. We must recognize, as a corollary of such a conclusion, that decision makers will be faced with the constant and difficult task of weighing conflicting environmental and social concerns in arriving at a course of action that will be expedient as well as reflective of the high priority which constitutionally has been placed on the conservation of our natural, scenic, esthetic and historical resources. Judicial review of the endless decisions that will result from such a balancing of environmental and social concerns must be realistic and not merely legalistic. The court’s role must be to test the decision under review by a threefold standard: (1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion? Applying this standard here, we reach the conclusion that the defendants’ motion to dismiss plaintiffs’ complaint should be granted. Our examination of the record discloses that there has been complete compliance with Act 120, the applicable statute. Act 120 prohibits building or expanding any transportation facility involving a public park or an historical site unless there is no feasible and prudent alternative to the use of such land and such facility is planned and constructed to minimize the harm to the park or historical site. The Secretary of Transportation, based on an adequate record, made specific determinations that the River Street project met these criteria. Act 120 also requires that certain agencies having special expertise in the environmental field be consulted in the planning and construction of transportation facilities. The record discloses that such was done on this project. A comprehensive public hearing and publication of findings regarding the project, called for by Act 120, were -accomplished. Likewise, the River Street project is part of a comprehensive plan and local officials were consulted in the development of the plans, as required by the Act. Finally, the record shows that the Commonwealth gave consideration to the effects of the River Street project on the twenty-three items enumerated in Section 13(b) of Act 120, as amended, 71 P.S. .§512(b). We note that the Commonwealth did follow, as required by Act 120, the hearing procedures required by the Federal Government for Federal-aid transportation programs. However, there is no requirement that the Commonwealth do more than adhere to the Federal procedural requirements applicable to the conduct of hearings. We must on this record conclude that the Commonwealth did comply with the requirements of Act 120 which is the statute applicable here. Next, the record establishes the reasonable effort that will be expended to reduce the adverse environmental consequences of the project to a minimum. The replacement of trees, the relandscaping of affected areas, the use of special materials, such as granite curbing, the reuse where possible of existing materials, the preservation of the Courthouse steps, the relocation of historical markers, and the protection of the Common during construction are record examples of such effort which we deem reasonable under the circumstances of this case. Finally, the record discloses that an important, favorable, and major change will occur in the movement of traffic in the area of the Common with only a physical taking of between two percent and three percent of the land making up the Common. Further, this land taking will be an extension or widening of the existing roadway and not a new intrusion at a location critical to the enjoyment and use of the Common. We hold that the environmental harm and adverse effect of the River Street project on public natural resources are clearly outweighed by the public benefits to be derived from the project. More significantly, we find that the River Street project is not constitutionally impermissible under the provisions of Article I, Section 27 of the Pennsylvania Constitution. II Have Past Legislative Dedications oe the River Common Prevented Present Straightening and Widening of River Street Since the Common extends in an easterly direction to the property line on the east side of River Street, it follows that River Street has been and is now part of the Common. We are satisfied that a reasonable and minimal widening and improvement of River Street is allowable because such a project is not inconsistent with the original grant that encompassed River Street. In Commonwealth v. Connellsville Borough, 201 Pa. 154, 160, 50 A. 825, 826 (1902), the rule was stated that “[t]he adaptation and use of the ground for one or more public purposes, and its regulation accordingly, are within the discretion of the public authorities so long as they do not transgress the terms or limitations of the original grant.” In Bernstein v. Pittsburgh, 366 Pa. 200, 77 A. 2d 452 (1951), this rule was followed, and a city was permitted to lease a public outdoor auditorium, in a public park to an opera company. In Shields v. Philadelphia, 405 Pa. 600, 176 A. 2d 697 (1962), part of a public park was converted into a Little League baseball field, and this was held not to be an undue departure from the original grant for a public park. In the instant case, the -widening of River Street does not alter the character and nature of the Common. The road project does not violate the original grant, since the Common’s present features will be retained. We do not have here a taking of public property for private purpose but merely a diversion of a minimal quantum of public land from one public purpose to another public purpose. We do not fiud the dedication statutes to have been violated relative to the River Street project. Therefore, we do not consider whether or not Act 120 or the Act of June 1, 1945, P. L. 1242, 36 P.S. §670-101 et seq., granting the Common-wealth broad powers in regard to maintaining and improving streets, implicitly repealed the restrictive covenants of the dedication statutes. See Interstate Cemetery Company Appeal, 422 Pa. 594, 222 A. 2d 906 (1966). Plaintiffs’ contention that the approval of the City Council of Wilkes-Barre is not valid since it was a conditional approval is without merit. The City Planner and the City Engineer of Wilkes-Barre testified at the hearing and expressed satisfaction with the cooperation the Commonwealth has given the City, and their testimony clearly indicated the City’s approval of the project. From the evidence we have specifically found as a fact that the City of Wilkes-Barre has approved the project. One further matter requires only brief attention. The record does not support the plaintiff’s assertion that the Pennsylvania Historical and Museum Commission was not consulted. The correspondence between this Commission and the Department of Transportation which was admitted into evidence establishes just the contrary of plaintiffs’ contention in this regard. Any remaining question as to this matter was removed by the testimony of Edward F. LaFond, Jr., Keeper of the Pennsylvania Register of Historic Sites and Land marks, whose testimony was conclusive as to the Commonwealth’s position on this point, although he was called as a witness for the plaintiffs. Accordingly, we make the following Conclusions of Law 1. The River Common area of the City of Wilkes-Barre is an area with natural, scenic, historic and esthetic values within the contemplation of Article I, Section 27 of the Pennsylvania Constitution. 2. Article I, Section 27 of the Pennsylvania Constitution is a self-executing provision in accordance with doctrines of public trust and represents a proper exercise of state powers within the scope of the Ninth Amendment to the United States Constitution. 3. The plaintiffs in this action have standing as part of the public and as owners of property fronting the Common to object to the appropriation of part of the Common for highway purposes. 4-, The defendant, the Commonwealth of Pennsylvania Department of Transportation, has complied with all relevant provisions of the Act of May 6, 1970, P. L. 358, §13, as amended, 71 P.S. §512, in respect to the River Street project in Wilkes-Barre, Pennsylvania. 5. The defendants, Pennsylvania Department of Transportation and City of Wilkes-Barre, are not precluded from utilizing or taking any portion of the River Common for the purposes of highway or road construction or widening by Article I, Section 27 of the Pennsylvania Constitution. 6. The expansion or widening of a legislative route spur for general and commercial traffic is a proper use of common lands within the meaning of the term “public common” and a use not prohibited by the State Legislature in its acts of dedication of the River Common area of the City of Wilkes-Barre. 7. The defendant, the Commonwealth of Pennsylvania Department of Transportation, has complied with the Act of March 4, 1970, P. L. 117, §1, 71 P.S. §716 (j), in that it has properly consulted the Pennsylvania Historical and Museum Commission on the design and location of the River Street widening project. 8. The City of Wilkes-Barre, Pennsylvania, has given sufficient and necessary legal approval in connection with the River Street project. 9. The proposed reconstruction and widening project will not result in an improper and unlawful diversion of use of the Wilkes-Barre River Common lands contrary to acts of the Pennsylvania Legislature and the Pennsylvania Constitution. 10. Plaintiffs’ equity suit should be dismissed. Decree Nisi And Now, November 21, 1978, motion of defendants, the Commonwealth of Pennsylvania Department of Transportation and the City of Wilkes-Barre, to dismiss plaintiffs’ complaint is hereby granted, and plaintiffs’ complaint is hereby dismissed, at the cost of the plaintiffs. The Protlxonotary shall enter this Decree Nisi and notify the parties, or their counsel, forthwith. If no exceptions hereto are filed within twenty (20) days after the notice of filing hereof, this Decree Nisi shall be entered by the Prothonotary as a final decree. The authority of the City of Wilkes-Barre to grant to the County of Luzerne the right to build a courthouse on the north portion of the public common was the source of prolonged and bitter legal controversy. See Bennett v. Norton, 171 Pa. 221, 32 A. 1112 (1895) ; Mahon v. Norton, 175 Pa. 279, 34 A. 660 (1896) ; Mahon v. Luzerne County, 197 Pa. 1, 46 A. 894 (1900) ; and Gumpert v. Hay, 202 Pa. 340, 51 A. 968 (1902). In the Supreme Court’s affirmance, by a 5-2 decision, four Justices expressed their views on the question of whether the provisions of Article I, Section 27 of the Pennsylvania Constitution are self-executing, and they were equally divided on this point. The three other Justices of the Court did not express opinions on this question but supported the affirmance on other considerations. Section 13(b) reads: “Upon the submission of the preliminary plan or design to the ' Department of Transportation for any transportation route or program requiring the acquisition of new or additional right-of-way, the Department of Transportation except in cases involving complaint proceedings under the jurisdiction of the Public Utility Commission shall have the power and its duty shall be to follow the hearing procedures now or hereafter required by the Federal Government for Federal-aid transportation programs pursuant to Titles 23 and 49 of the United States Code as amended and the regulations and procedures thereunder even though the transportation route or program does not contemplate the use of or actually employ Federal funds. At the hearings required by this subsection the Department of Transportation shall consider the following effects of the transportation route or program: “(1) Residential and neighborhood character and location; “(2) Conservation including air, erosion, sedimentation, wildlife and general ecology of the area; “(3) Noise, and air and water pollution; “(4) Multiple use of space; “(5) Replacement housing; “(6) Displacement of families and businesses; “(7) Recreation and parks; “(8) Aesthetics; “ (9) Public health and safety; “ (10) Fast, safe and efficient transportation; “ (11) Civil defense; “ (12) Economic activity; “ (13) Employment ; “ (14) Fire protection ; “ (15) Public utilities; “ (16) Religious institutions; “(17) Conduct and financing of government including the effect on the local tax base and social service costs; “ (18) Natural and historic landmarks; “ (19) Property values; “(20) Education, including the disruption of school district operations; “(21) Engineering, right-of-way and construction costs of the project and related facilities; “(22) Maintenance and operating costs of the project and related facilities; “(23) Operation and use of existing transportation routes and programs during construction and after completion. “At tiie bearings required by tbis section, tbe public officials named in clause (15) of subsection (a) of tbis section shall make a report indicating tbe environmental effects of tbe proposed transportation route or program. Tbe Department of Transportation shall not construct or reconstruct any portion of tbe transportation route or program unless the Secretary of Transportation makes a written finding published in tbe Pennsylvania Bulletin that: “(1) No adverse environmental effect is likely to result from such transportation route or program; or “(2) There exists no feasible and prudent alternative to such effect and aU reasonable steps have been taken to minimize such effect. For tbe purpose of this subsection environmental effect shall refer to the effects enumerated in this subsection.”

OPINION NEWMAN, Justice. Appellants Weldon R. Evans (Evans), FORC Company, and Lend-Lease, Inc. request this Court to examine whether the Court of Common Pleas of Allegheny County (trial court) abused its discretion in granting a new trial based on its determination that the verdict was against the weight of the evidence. This personal injury suit arose from an accident in which Evans’ tractor-trailer backed into Appellee Anthony Martin (Martin). The parties presented conflicting testimony relating directly to the issue of Evans’ negligence, and the jury concluded that Evans was not negligent. Because the verdict rested on a credibility determination, we hold that the trial court usurped the jury’s responsibility by disregarding its finding that Evans was not negligent. Accordingly, we reverse and reinstate the jury’s verdict. FORC Company employed Evans as a truck driver. On May 24, 1989, Evans was driving a tractor-trailer that was forty-five feet long, eight , feet wide and thirteen feet, six inches tall. He was proceeding southbound on Interstate 79 when he pulled into the Canonsburg rest stop. Along the left-hand side of the parking lot, there were parallel parking spots for trucks. Evans pulled his truck into what he believed to be the last parallel parking spot in that row. Notes of Testimony (N.T.), May 6, 1994, at 261. Because it was the last spot, he had to angle the cab of the truck to the trailer to maneuver the truck into the space. Id. at 262. Evans left the truck running, and went to the restrooms. When he returned, he looked in back of the truck before he got into the cab and noticed that no one was parked behind him. N.T. at 264-65. He recorded the stop in his logbook, which took approximately two minutes, then he prepared to back up. N.T. at 265-66. Evans testified that he put the truck into reverse and released both the emergency brake for the cab and the emergency brake for the tractor. When released, the emergency brakes emit a hissing sound that lasts for about two seconds. N.T. at 270-71. He activated his four-way flashers, which are similar to an automobile’s hazard lights. Then he looked through the side-view mirrors, but because of the angle of the truck and the length of the trailer, he could not see directly behind him. He reversed the truck “[s]lower than you could walk” until he felt a nudge and saw someone waving at him to stop. N.T. at 272-73. He stopped the truck and through his right-hand rear view mirror he saw someone fall just to the right, rear of his truck. When he got out of his truck to investigate, Evans saw Martin lying on the ground. Id. Martin and Rochester Steverson (Steverson) were driving southbound on Interstate 79 on May 24, 1989, when they, too, stopped at the Canonsburg rest area. Their truck was an Isuzu box truck that was about twenty feet long and ten feet wide. N.T., May 5, 1994, at 70. The driver of the truck parked approximately seven to ten feet directly behind Evans’ tractor-trailer. Martin was either walking or standing between the Isuzu truck and Evans’ tractor-trailer when the tractor-trailer began to back into him. He claimed that he tried to get out of the way but was unable to do so. He became pinned between the two vehicles. Once he realized what was happening, Steverson put the Isuzu truck into reverse to free Martin, who fell to the ground. Martin suffered injuries to Ms right arm and back. As result, Martin brought a negligence action agamst Evans, his employer FORC Company, Lend-Lease, Inc., and National Rental Systems. A jury trial took place from May 5, 1994 to May 11, 1994. The parties presented conflicting testimony concerning the circumstances surrounding the accident. The trial court instructed the jury on negligence, contributory negligence, and comparative negligence. The court presented the following interrogatories to the jury for its consideration: Question la Do you find that defendant Weldon R. Evans was negligent? Yes_ No__ If you answered “Yes” to Question la, go on to Question lb. If you answered “No” to Question la, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. Question lb Was the defendant’s negligence a substantial factor in bringing about the plaintiffs harm? Yes_ No__ If you answered ‘Tes” to Question lb, go on to Question 2a. If you answered “No” to Question lb, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. Question 2a Do you find that plaintiff Anthony Martin was eontributorily negligent? Yes_ No__ If you answered ‘Tes” to Question 2a, go on to Question 2b. If you answered “No” to Question 2a, go on to Question 4. Question 2b Was plaintiffs contributory negligence a substantial factor in bringing about his harm? Yes_ No_ If you answered “Yes” to Question 2b, go on to Question 8. If you answered “No” to Question 2b, go on to Question 4. Reproduced Record at 5 (Questions 3 and 4 addressed damages). The jury answered “No” to Question la, therefore, did not answer the remaining questions. The trial court molded the jury’s answer into a verdict in favor of Appellants. Martin moved for a new trial. The trial court granted the motion on the grounds that the jury’s verdict “shocked the Court’s sense of justice.” Slip Op. at 8. The court reasoned that because Evans sat in his truck for “a couple [of] minutes” before backing up, he was aware that there were blind spots in his mirrors such that he was unable to see directly behind his vehicle, and it was a busy rest area and likely that a pedestrian or vehicle could stand or park directly behind him, the jury’s verdict that Evans was not negligent was unacceptable. Slip Op. at 7-8. Evans appealed to the Superior Court, which concluded in a Memorandum Opinion that the trial court properly granted a new trial, and thus affirmed. This Court granted Evans’ Petition for Allowance of Appeal to determine whether the trial court abused its discretion in granting a new trial where the parties presented conflicting testimony that required a credibility determination. We now reverse. A new trial is warranted when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice. Randt v. Abex Corp., 448 Pa.Super. 224, 231, 671 A.2d 228, 232 (1996). The decision to grant a new trial lies within the discretion of the trial court. Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 625 A.2d 1181 (1993). However, “a new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion.... ” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). Where a trial court orders a new trial because it determines that the weight of the evidence does not support the jury’s finding, our scope of review encompasses the entire record to decide whether the trial court has clearly and palpably abused its discretion. Morrison v. Dept. of Public Welfare (Woodville State Hospital), 538 Pa. 122, 646 A.2d 565 (1994). To establish a cause of action in negligence, the plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage. Reilly v. Tiergarten Inc., 430 Pa.Super. 10, 14, 633 A.2d 208, 210 (1993), alloc. denied, 538 Pa. 673, 649 A.2d 675 (1994). Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances. Lanni v. Pennsylvania R. Co., 371 Pa. 106, 88 A.2d 887 (1952). See also Pa. SSJI (Civ) 3.01. The mere occurrence of an accident does not establish negligent conduct. Butler v. City of Pittsburgh, 113 Pa.Cmwlth. 406, 410, 537 A.2d 112, 114, alloc. denied, 519 Pa. 655, 546 A.2d 60 (1988). Rather, the plaintiff has the burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). The trial court instructed the jury with regard to the definition of negligence as follows: The legal term, negligence, otherwise known as carelessness, is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. Now, I told you in defining negligence that part of that definition was absence of ordinary care. I want to define ordinary care for you. Ordinary care is the care a reasonably careful person would use under the circumstances presented in this case. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by law must be in keeping with the degree of danger involved. ... N.T., May 11, 1994, at 417-18. Thus, the trial court called upon the jury to evaluate the testimony and decide whether Evans exercised ordinary care under the circumstances. The evidence presented to the jury on the issue of whether Evans was negligent in the operation of his vehicle was contradictory in several respects, including: (1) whether Evans took the necessary precautions prior to moving his tractor-trailer in reverse, specifically, whether he activated his four-way flashers and released the emergency brakes which emit a loud hissing sound; (2) whether Martin or Steverson was driving the Isuzu truck; (3) whether Martin was parked in a legal parking space; and (4) Martin’s position when the incident occurred. Evans testified that when he pulled into the Canonsburg rest area, he parked in what he believed to be the last legal parking space in that particular row. N.T., May 6, 1994, at 261. As proof of this, he stated that he had to park at an angle to fit his tractor-trailer into the lines. N.T. at 262. When he returned from the restrooms, he claimed that no one was parked behind him. N.T. 264-65. He knew that he only had to back up a couple of feet to be able to pull out of the space. After he made a recording in his logbook, he put in the clutch, put the truck into low reverse, activated his four-way flashers, and checked his mirrors. N.T. at 265-72. Evans further stated that although he could not see directly behind him at that moment, he kept his eye on the right mirror because he knew he would be able to see out of that side first. N.T. at 272. According to Evans, he moved his tractor-trailer backwards “[s]lower than you could walk.” N.T. at 273. When he felt a nudge and saw someone waving at him to stop in his rear view mirror, he stopped instantly. N.T. at 272. Martin testified that he was driving the Isuzu truck southbound on Interstate 79 on May 24, 1989, despite the fact that he did not have a valid driver’s license at that time. N.T., May 5, 1994, at 99. He claimed that he saw his brother Neil Martin, who waved to him to pull off at the next rest area. N.T. at 70. He stated that he pulled into the last parking space and parked approximately ten feet behind the tractor-trailer and turned off the ignition. N.T. at 72. Then, after about a minute and a half, he exited the truck and walked between the front of his vehicle and the tractor-trailer. N.T. at 73. He proceeded about two-thirds of the width of the tractor-trailer when he realized that the tractor-trailer was moving towards him. N.T. at 74. He testified that he did not hear the truck’s engine or the release of the emergency brakes, nor did he see any flashing lights from the back of the tractor-trailer. Id. After the tractor-trailer pushed him up against the Isuzu truck, he claimed that Steverson jumped into the truck, started it, and put it in reverse, at which point Martin fell to the ground. Neil Martin corroborated this version of the events. Steverson, on the other hand, claimed that he, not Martin, had been driving the truck. N.T., May 6, 1994, at 229. Steverson testified that he parked the truck approximately ten feet behind the tractor-trailer and turned off the ignition. N.T. at 230. According to Steverson, Martin got out of the passenger’s seat, and walked in front of the Isuzu truck and leaned against it while talking to his brother, Neil, for a couple of minutes. N.T. at 231. When Steverson realized that the tractor-trailer was moving towards them and that Martin was caught between the two, he started the truck and put it in reverse. N.T. at 234. State Police Trooper Dennis Spirk, who arrived at the scene of the accident to investigate, testified that he interviewed Evans, Steverson and Anthony Martin concerning how the accident occurred. When questioned by Trooper Spirk, Evans stated that when he returned from the restrooms he walked around the back of his truck before he got into the cab, N.T., May 6, 1994, at 305, and that from the cab he did not see anything behind him. N.T. at 300. Trooper Spirk stated that Steverson indicated that he was the driver of the smaller truck. N.T. at 298. In response to questioning, Anthony Martin told Trooper Spirk that he was standing between the two trucks, with his back to the tractor-trailer and facing the truck he had just exited, when the tractor-trailer backed up and hit him. N.T. at 299. Credibility determinations are within the sole province of the jury. “A jury is entitled to believe all, part or none of the evidence presented.... A jury can believe any part of a witness’ testimony that they choose, and may disregard any portion of the testimony that they disbelieve.” Randt, at 234, 671 A.2d at 233 (citation omitted). Consequently, because of the conflicting versions of the events surrounding the accident, it was the jury’s duty to make a credibility determination and to decide whether Evans exercised ordinary care under the circumstances. The jury obviously chose to believe Evans and Steverson, and found that Evans was not negligent. However, the trial court concluded that “[ujnder all of the facts and circumstances of this case, even when viewed most favorably to the verdict winner, this Court cannot accept the jury’s conclusion that Evans was not negligent.” In support of its conclusion, the trial court cited evidence supporting the fact that Evans made no effort during the two minutes after he entered his cab and prior to putting his truck in motion, to determine if there was anyone or anything behind his vehicle. This, coupled with the facts that the rest area was busy and there were “blind spots” in the mirrors, caused the trial court to reach its conclusion. However, the evidence equally supports a finding that Evans exercised ordinary care under the circumstances. Evans testified that he parked in what he believed to be the last legal parking space in the row. In fact, he stated that he had to park his tractor-trailer with the cab at an angle to the trailer because it was the last spot and there was barely enough room for his vehicle. When he returned to his truck, no one was parked behind him. Before backing up, he activated his four-way flashers and released his emergency brakes, which he knew made a loud hissing sound. Then, he proceeded to move the truck backwards “slower than you could walk.” N.T. at 273. Therefore, if the jury were to believe Evans’ account of the events, he took the necessary precautions required by the circumstances and proceeded with care. A resolution of whether Evans was negligent relied upon a credibility determination and the jury’s assessment of what constituted ordinary care under the circumstances. Because this assessment was solely within the province of the jury, Randt, the trial court was not at liberty to reassess the evidence and make its own credibility determinations simply because it would have reached a different conclusion. Thompson. Accordingly, we hold that the trial court abused its discretion by disregarding the jury’s credibility determination and substituting its own. The verdict was not so contrary to the evidence so as to shock one’s sense of justice. We reverse and reinstate the jury’s verdict. . By agreement of the parties, National Rental Systems was dismissed from the suit prior to trial. . Martin apparently never filed a copy of his Brief in Support of the Motion for a New Trial with the prothonotary, therefore it is not part of the record. However, we can glean from Appellants’ Brief in Opposition to the Motion for a New Trial and the trial court’s response that Martin’s Motion was based on his contention that the verdict was against the weight of the evidence.

Opinion by Rhodes, P. J., This is an appeal from the order of the Court of Common Pleas of Dauphin County sustaining the appeal of Johnny Bratton, a professional boxer, from an adjudication of the Pennsylvania State Athletic Commission in suspending indefinitely his privileges as a professional boxer and forfeiting $3,000 of his purse. The commission’s determinations were based on. its. so- called findings that Bratton, in a match on February 24, 1954, did not “fight in the manner in which he has shown he could in the past, and was not putting forth liis best efforts . . .” ■ " On appeal by Bratton taken under the provision of the Administrative Agency Law of June 4, 1945, P. L. 1388, as amended, 71 PS §1710.1 .et seq., he excepted to-the findings and decision of the commission, and gave as the reasons therefor- that the findings were -not supported by evidence; that the findings and decision were not made in -'accordance with the procedures and standards set forth in the Act of April 28, 1933, P. L. 98, as amended, 4 PS §§1-23; and that he was not afforded the safeguards provided by the Administrative Agency Law. The Court of Common Pleas of Dauphin County held that no adequate findings were set forth in the adjudication; that the adjudication was not supported by substantial evidence; and that on the record as certified the commission failed to comply with the mandatory provisions of the Administrative Agency Law or with the requisites of due process as to notice and a proper hearing. ; - The court, on July 6, 1954, entered an order setting aside the orders of the commission suspending Bratton' and forfeiting a part of his purse, and directed the f3,000 so forfeited to be returned to Bratton, by the. proper authorities. On the same day the commission, by the Attorney General of the Commonwealth, presented a petition to the Court of Common Pleas of Dauphin County setting forth that it considered the administrative proceeding against Bratton a matter of public importance, and asking the court tó remand the case so that the commission could proceed further in accordance with .law. That court on July 14, ■ 1954,- refused ,-to modify., its previous order oi; ..to grant the-.petition.- of the .commission 'for-remand. ---.The commission has brought the present appeal in the Superior Court. Counsel for Bratton have filed a motion to quash the appeal. Unquestionably, on the basis of the certified record, there was a failure on the part of the commission to comply with the procedural requirements of the Administrative Agency' Law; and ■ substantial evidence may not have been presented at the tearing to support the adjudication in question. The'entire record of the proceedings, as certified to the Court of Common Pleas of Dauphin County by the commission, is set forth in the footnote. The Administrative Agency Law sets forth certain basic and elemental procedural requirements applicable to adjudications by the administrative agency or commission. Sections 31 to 34, inclusive, of the Law, 71 PS §§1710.31-1710.34, apply here, and provide as follows: •' “Section 31. — Hearing and Record. No adjudication shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be steno-graphically recorded and a full and complete record shall be kept of the proceedings. “Section 32. Evidence; Cross-examination. — Agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonable probative value may be received. Reasonable examination and cross-examination shall be permitted. ■ “Section 33. Briefs; Oral Argument. — All parties shall be afforded opportunity to submit briefs prior to adjudication. Oral argument upon substantial issues may be heard by the agency. “Section 34. Adjudications;. Service. — All adjudications shall be in writing, shall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, or by mail. If service is made by mail the date of mailing shall be the date of service.” . It does not appear that Bratton was advised of the charges against him or that notice of the hearing was given to him. However, he.and his manager appeared at the hearing before the commission on February 25, 1954, and both testified. But the testimony was not stenographically recorded, and the record does not indicate .whether the witnesses were sworn or whether opportunity was given for reasonable examination and cross-examination of. parties and witnesses. The record of the proceeding, is incomplete, and the adjudication contained no definite findings of fact other than the import of the testimony. Furthermore, the record does not disclose that the party affected was given notice of .the meeting of the commission held on March 10, 195.4, at which the supplemental order was made forfeiting $.3,000 of Bratton’s purse. “ ‘The essential elements of due process of law are notice, and an opportunity to be heard and to defend in an orderly proceeding adapted to th¿ nature of the case . . .’ ” State Board of Medical Education and Licensure v. Williams, 172 Pa. Superior Ct. 448, 452, 94 A. 2d 61, 63. We think it may be said also “that adjudicatory action cannot be validly taken by any tribunal, whether judicial or administrative, except upon a hearing wherein each party shall have opportunity to know of the claims of his opponent, to hear the evidence introduced against Mm, to cross-examine witnesses, to introduce evidence in Ms own behalf, and to make argument.” Philadelphia Co. v. Securities and Exchange Commission (D.C. Cir.), 175 F. 2d 808, 817; Ib. 337 U. S. 901, 69 S. Ct. 1047, 93 L. Ed. 1715. But see, 28 Temple Law Quarterly, 1954, No. 2, pp. 212, 216. However, the commission, as appellant, contends that the court below, having set aside its adjudication, was bound to remand the case to the commission for further proceedings; that in failing to do so the court abused its discretion and usurped administrative power, rendering ineffective the purpose for which the administrative body was established. Section 44 of the Administrative Agency Law, 71 PS §1710.44, dealing with the disposition by the court of an appeal from an administrative adjudication, provides: “The court to which the appeal is taken shall hear the appeal without a jury on the record certified by the agency. After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of sections thirty-one to thirty-five inclusive of this act have been violated in the proceeding before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may set aside or modify it, in whole, or in part, or may remand the proceeding to the agency for further disposition in accordance with the order of the court.” Under the circumstances, it was clearly an abuse of the discretionary power of the court where it set aside the administrative proceeding for noncompliance with the Administrative Agency Law and as lacking in due process and did not remand to the administrative body for further action and disposition. Although the judiciary, through the application of fundamental law, may act as a check upon excesses of administrative power, a court in reviewing the adjudication of such an agency should not act in a manner that fails to give full effect to the remedial intent of the law. See Act of June 14, 1923, P. L. 710, as last amended by the Act of May 18, 1945, P. L. 634, 4 PS §1 et seq. “Courts no less than administrative bodies are agencies of government. Both are instruments for realizing public purposes.” ScrippsHoward Radio, Inc. v. Federal Communications Commission, 316 U. S. 4, 15, 62 S. Ct. 875, 86 L. Ed. 1229, 1237. The failure to remand in the present case resulted in an untenable judicial interference with the administrative function. The distinction between judicial review of administrative discretion and substituting judicial discretion for administrative discretion is by now well recognized. Hotchkiss Liquor License Case, 169 Pa. Superior Ct. 506, 511, 83 A. 2d 398; Booker Hotel Corporation Liquor License Case, 175 Pa. Superior Ct. 89, 93, 103 A. 2d 486. Where the administrative body has made invalid or inadequate findings or has not afforded a fair hearing, the court granting judicial review can and should remand the case to the administrative body “for further proceedings to the end that valid and essential findings may be made [citing cases].” Ford Motor Co. v. National Labor Relations Board, 305 U. S. 364, 373, 59 S. Ct. 301, 83 L. Ed. 221, 230. In the Ford case the Supreme Court of the United States was passing upon the propriety of the action of the Circuit Court of Appeals remanding a cause to the National Labor Relations Board for the purpose of setting aside the board’s findings and order and for the reconsideration of the entire case by the board. The Supreme Court further stated (page 374 of 305 U. S., page 230 of 83 L. Ed.) : “The 'remand’ does not encroach upon administrative functions. It means simply that the case is returned to the administrative body in order that it may take further action in accordance with the applicable law. . . . Such a remand does not dismiss or terminate the administrative proceeding.... If further evidence is necessary . . . that evidence may be taken. . . . Whatever findings or order may subsequently be made will be subject to challenge if not adequately supported or the Board has failed to act in accordance with the statutory requirements.” If after judicial review administrative proceedings remain indefinite and unconcluded, remand for further administrative action is necessary for the fulfillment of the administrative process. Federal Power Commission v. Idaho Power Company, 344 U. S. 17, 73 S. Ct. 85, 97 L. Ed. 15, 20; Federal Trade Commission v. Carter Products, Inc., 346 U. S. 327, 74 S. Ct. 2, 98 L. Ed. 4; Secretary of Agriculture v. United States, 347 U. S. 645, 74 S. Ct. 826, 98 L. Ed. 1015. See, also, to the same effect, Pennsylvania Labor Relations Board v. Frank, 362 Pa. 537, 546, 67 A. 2d 78; Katzin v. Mc-Shain, 371 Pa. 251, 253, 89 A. 2d 519. Cf. Pennsylvania State Board of Medical Education and Licensure v. Schireson, 360 Pa. 129, 61 A. 2d 343. Likewise, in workmen’s compensation cases or unemployment compensation cases, where judicial review discloses material errors in the administrative proceeding and the reviewing court cannot enter a conclusive order, the matter usually must be returned to the administrative board for further proceedings. Lavely Unemployment Compensation Case, 163 Pa. Superior Ct. 66, 67, 70, 60 A. 2d 352; Walsh v. Penn Anthracite Mining Co., 147 Pa. Superior Ct. 328, 334, 24 A. 2d 51. Similarly, where trial errors render the trial of a civil or a criminal case improper or in violation of fundamental rules of law, the reviewing court ordinarily cannot terminate the proceeding and render a conclusive judgment but must remand for a new trial. Appellee’s motion to quash the appeal must be overruled. The administrative body is a formal party to the proceedings, and, where the court sets aside its adjudication and refuses its petition for remand, the appeal is not moot or from an interlocutory order so far as the administrative body is concerned. Cf. Ford Motor Co. v. National Labor Relations Board, supra, 305 U. S. 364, 59 S. Ct. 301, 83 L. Ed. 221. The order of the court below is vacated, and the record is remanded to said court with direction to return it to the commission for further hearing, consideration, and disposition in accordance with the applicable law. February 25, 1954 The Pennsylvania State Athletic Commission held a meeting on the above date in the Philadelphia Offices. The meeting was called to order at 9:00 a.m. Present were Commissioner George J. Jones, Jr., Commissioner John D. Holahan, Secretary H. LaBarre Potts, Deputy Attorney Benjamin Abramson, Chief Deputy Dave Brodsky, Dr. Simpkins, Dr. Bartone, Johnny Bratton, Herman Walkman, manager of Johnny Bratton, Herman Taylor and Joe Sweeney, referee. Testimony was taken in the matter of the Brat-ton-Saxton boxing match held at the Arena last night. Dr. Simpkins testified that he examined Bratton immediately about the bout and he saw no reason whatsoever why Bratton could not have put up a good fight. Dr. Bartone also examined Bratton before and immediately after the bout and found him to be in perfect condition and there were no complaints before and no excuses after the bout. Joe Sweeney, the referee, testified that he had told Bratton on several occasions to fight and that he personally felt that Brat-ton was not doing his best. Bratton testified that Saxton kept pushing him back against the ropes and that Bratton could not get out to fight and he also testified that he was in perfect condition. Herman Taylor, the promoter and Herman Wallman, the manager of Bratton testified that it was a very, very bad fight. Bratton has received a check of his television rights from the television compány for $4,000 — his percentage of the receipts from the sale of tickets would have been $4,700.50 additional. Bratton was suspended indefinitely and his purse of $4,770.50 is held for the disposition of the Commission on March 10th. Attest: H. IiaBarre Potts, H. LaBarre Potts, Secretary March 10, 1954 The Commission has this day unanimously decided that due to the fact that Bratton did not, in the opinion of the Commission, fight in the manner in which he has shown he could in the past, and was not putting forth his best efforts — for that reason, the Commission has forfeited $3,000 of his purse. Furthermore we want this to be a warning to all boxers coming into the State of Pennsylvania, that they must put forth their best efforts or run the risk of having their purses forfeited and being suspended. Pennsylvania State Athletic Commission Frank Wiener, Frank Wiener, Chairman “If a board or commission bas failed to make an essential finding and tbe record on review is insufficient to provide tbe basis for a final determination, tbe proper procedure for tbe court is to remand tbe case for further proceedings before the board.” 42 Am. Jur., Public Administrative Law, §248, pp. 689, 691. Hershberger v. Hershberger, 345 Pa. 439, 442, 29 A. 2d 95. Com. v. Tracey, 130 Pa. Superior Ct. 15, 20, 196 A. 549. Cf. Com. v. Miller, 173 Pa. Superior Ct. 168, 170, 96 A. 2d 153.

WICKERSHAM, Judge: This is an action in assumpsit that was tried before Judge Caram J. Abood sitting without a jury, who returned, on May 16, 1979, a verdict against all Defendants in the amount of $27,075.53 with interest from January 1, 1978. Plaintiff-appellee, Penstan Supply, Inc., had sold plumbing supplies to defendants-appellants in 1977 for use by said defendants in plumbing work in the Johnstown area following the July 1977 flood. Following the non-jury verdict exceptions were filed, briefed and argued pursuant to the provisions of Pa.R.C.P. No. 1038. On October 10, 1979 the Cambria County Court en banc filed an order dismissing the exceptions filed on behalf of the defendants, Construction Concepts and Henry M. Whitehead. An appeal was then taken to this court without final judgment having been entered. The appeal will be quashed. Before we may consider appellant’s contentions, we must determine whether the appeal from the lower court’s order is properly before us. Although the appellee does not raise this issue, appealability of an order goes to the appellate court’s jurisdiction and may be raised sua sponte. Williams v. Williams, 253 Pa.Super. 444, 385 A.2d 422 (1978); Polascik v. Baldwin, 245 Pa.Super. 1, 369 A.2d 263 (1976); 42 Pa.C.S.A. § 704(b)(2). An order dismissing exceptions following a trial without jury is in the same category as an order refusing a new trial. It is interlocutory and unappealable. The appeal should not be filed and may not be entertained until a final judgment is entered. Pa.R.C.P. 1038(e) clearly states that final judgment shall be entered. Pa.R.C.P. 1039 provides: Rule 1039. Entry of Judgment upon Praecipe of a Party In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall enter judgment upon praecipe of a party in the following instances: (1) Upon a verdict of a jury, if no timely post trial motion is filed. (2) When a court grants or denies relief, but does not itself enter judgment or order the prothonotary to do so. Note: See Rule 237 requiring notice of filing of praecipe for judgment. For illustrative Rules of Civil Procedure specifically authorizing entry of judgment by the prothonotary on praecipe of a party, see Rules 1037, 1047, 1128, 1265(a), 1272(d), (e), 1276(a), 1277, 1511, 1519(a), 1659, 3031(a) and 3146. For rules authorizing the prothonotary to enter judgment on praecipe of a party where no exceptions are filed to the decision of the court in a non-jury trial or in an equity action, see Rules 1038(e) and 1519. Added, effective April 19, 1971; amended March 28, 1973, effective July 1, 1973. The appeal is quashed. . Rule 1038. Trial without Jury (a) Except as otherwise provided in this rule, the trial of an action in assumpsit, by a judge sitting without a jury, shall be conducted as nearly as may be as a trial by jury is conducted and the parties shall have like rights and privileges, including the right to suffer or move for nonsuit. (b) The decision of the trial judge may consist only of general findings as to all parties but shall dispose of all claims for relief. The trial judge may, if he wishes, include as part of the decision specific findings of fact and conclusions of law with appropriate discussion. (c) The decision may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing. The trial judge shall render his decision within seven (7) days after the conclusion of the trial except in protracted cases or cases of extraordinary complexity. (d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a nonsuit may be filed. Note: The time for filing post-trial motions after jury and equity trials is also ten (10) days. See Business of the Court Rule 227.1 and Equity Rules 1512 and 1518. (e) The prothonotary shall, on praecipe, enter final judgment on the decision if no exceptions have been filed within the ten (10) day period or if a waiver in writing of the right to file exceptions signed by all parties has been filed. Except as provided by Rule VII of the Special Rules, Court of Common Pleas, First Judicial District, Philadelphia County, promulgated July 31, 1963, exceptions shall be heard by the court en banc, which shall sustain or dismiss them in whole or in part, affirm, modify or reverse the decision, direct the entry of judgment in favor of any party, or order a new trial as to all or any of the issues or parties. The prothonotary shall immediately give written notice by ordinary mail to each party who has appeared in the action or to his attorney of record of the entry of the final judgment or of any other order of the court. Note: See Rules 1012 and 1025 as to requirement of addresses within the Commonwealth on appearances and pleadings. . The remaining defendants had never entered appearance nor defended the action. . “We have repeatedly advised the profession that an order refusing a new trial is interlocutory and is unappealable. Cf. Bartkewick v. Billinger, 430 Pa. 207, 241 A.2d 916 (1968), and cases cited therein. The appeal should not be filed and may not be entertained until a final judgment is entered.” Slagter v. Mix, 441 Pa. 272, 272 A.2d 885 (1971). Pa.R.A.P. 301(c) provides: Orders not appealable. A direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket, or a direction that a verdict of a jury be recorded or entered, or an order denying a motion for a new trial, does not constitute an appealable order. Any such order shall be reduced to judgment and docketed before an appeal is taken.

The opinion of the Court was delivered by Lewis, J. — It is the duty of a father to maintain, protect, and educate his offspring. His power over them is derived from that duty. The latter could not be performed without the existence of the former. The authority of a guardian bears a near resemblance to that of a father, and is plainly derived out of it; the guardian being only a temporary parent. He usually performs the office of both tutor and curator of the Roman law; the former of which had charge of the maintenance and education of the minor, and the latter the care of his fortune. From the existence of the parent’s authority, and the just obligations the child is under to him for his care and protection, he is apt to forget that his only compensation is its affection, obedience, and services. He has no right to the estate which it may have received from the bounty of others. To place its property or money in his hands has been found unfavorable to the interests and happiness of both. It throws obstacles in the way of enforcing the rights of the minor, not likely to be encountered in a contest with a stranger. For these reasons it is deemed improper to appoint the father the guardian of his child’s estate. Rut his duty and power to protect its interests remain; and where he is in full life, and within the jurisdiction of the Court, he ought to have notice of the proceedings, and is entitled to be heard. The case before us is an illustration of the necessity of this. For want of such notice, the Court was misled, and an appointment procured of one whose interests are likely to conflict with those of the minor, and who is clearly ineligible on that account. The appointment of a guardian is a final decision upon the right to the care and control of the person of the minor, or to the possession and management of its estate, or to both, as the case may be. It is not an interlocutory order, 'but a “ definitive decree,” from which an appeal lies to this Court. It is conceded that the Orphans’ Court may exercise its discretion in the selection of suitable persons, so long as it takes care not to violate the positive rules of law. Where these are violated, the error may be corrected here. The Act of Assembly declares that “ no executor or administrator shall be appointed guardian of a minor having an interest in the estate under the care of such executor or administrator.” The will of Michael Hoover shows that Christian Titzel was appointed his executor, and. that the minors are devisees of a portion of the real estate. It establishes the fact that the estate of Michael Hoover was “placed under the care” of Titzel as much as estates are usually placed under the care of executors, and quite as much as they are ever placed under the care of administrators; and it also establishes the additional fact that the minors are “ interested in that estate.” It is not required that the particular tract of land devised to the minors should be placed under the care of the executor in order to disqualify him. This is seldom done, and never in the case of administrators. If any portion of the land be devised to a minor, he thereby becomes interested in the estate of the decedent, and it is necessary for the protection of that interest that he should have a guardian to keep an eye upon the executors, to see that they are faithful in the collection of the assets, in the application of the personal estate to the payment of debts, and in their general management of the estate under their care. If this be not properly attended to, the real estate of the minor might be unjustly swept away from him by a sale for the payment of debts which ought to have been satisfied out of the personal estate, or which never had any just foundation, or have in fact been paid. We do not regard the statement on the paper-book of the appellee, relative to the settlement of the executor’s accounts, and the voluntary distribution of the assets, as forming a part of the record. These facts do not appear to have been presented to the Court below. If they had been, the case would stand no better. A settlement of the accounts of the executor, when the minor had no guardian to see that they were properly settled, and the distribution of the assets without a refunding bond, is neither a discharge of the executor, nor a justification of his appointment as guardian. On the contrary, the reason is the more urgent for the appointment of one whose interest will not be identical with that of the executor, and who may examine the proceedings and ascertain whether the minor’s estate is properly secured from the debts of the testator. • John Hoover, the uncle of the minors, had no authority to present the petition as their next friend, without alleging any necessity for his interference instead of the father. If the father, on being applied to, had refused to take the necessary measures to protect their interests, the uncle might have made the application. It is ordered and decreed that the decree of the Orphans’ Court of Cumberland county, appointing Christian Titzel guardian of the estates of John Senseman and Jeremiah A. Senseman, be reversed, and that the petition of John Hoover be dismissed, at his costs.

Mr. Justice Paxson delivered the opinion of the court, May 2d 1881. This was an action brought by the widow and minor children of George Schertle, deceased, to recover damages for injuries resulting in his death. The declaration alleges that said injuries were, occasioned by the negligence of the Philadelphia & Reading Railroad Company, defendants below. The jury having found the negligence, the cause has been removed to this court, and several errors have been assigned to the rulings of the court below. As the seventh and last assignment, if well taken, renders a discussion of the others unnecessary, we will consider it here. By the defendant’s ninth point, the court was called upon to pass upon the sufficiency of the evidence, the point being, “ that under all the evidence in this case, the plaintiffs cannot recover.” The learned judge declined to so instruct the jury, upon the ground that it would withdraw the case from their consideration. This was the object of the point. It was not error to refuse it if there was sufficient evidence of the negligence of the defendant company to submit to the jury. • On the other hand, it is equally clear that if there was no evidence, or at most a scintilla, it was the duty of the court to withdraw the case from the jury and give a binding instruction to find for the defendant. The authorities upon this point are numerous ; it is sufficient to refer to a few of the later ones: Howard Express Co. v. Wile, 14 P. F. Smith 201; Hoag v. The Railroad Co., 4 Norris 293; Penna. Railroad Co. v. Fries, 6 Id. 234; and Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185. I have looked in vain through this record for any evidence of negligence on the part of the defendant company. There is not even a scintilla. The deceased was; at the time of the accident, and had been for years prior thereto, a brakeman in the employ of the company. On the night of the injury, which unfortunately resulted in his death, he was engaged in coupling and uncoupling the cars of a freight train. While so engaged, in some manner unexplained to the jury, he fell under the wheels of the tank or tender of the locomotive, which passed over one of his legs, producing the injury complained of. As to how he fell, or the cause of his falling, there is not a word of evidence. The theory of the plaintiffs was that his fall was occasioned either by reason of the roughtfess or inequalities of the track, or in an attempt to get on the tank ; the allegation being that the step was defective, and that he missed his footing because of such defect. It appears from the evidence that the track at the particular point where the accident' occurred, was in the course of being repaired; that it had been raised a few inches, and that the space between the ties had not been ballasted or filled in ; that as regards the step, it was not defective in its construction, but, as plaintiffs alleged, was not in the position it should have been to insure the greatest amount of safety. Yet, even as to this point, the plaintiffs’ own evidence was evenly balanced, while it was not denied that the deceased had used the step for a year without complaint to the company, and that if he had made objection to it, the rule or practice of the company required it to be changed to suit the crew operating the engine, of which the deceased was one. Had there been evidence to show that the deceased came to his death by reason of the condition of the track or of the step, it would, notwithstanding, have been too weak and inconclusive to establish negligence on the part of the defendant company and to base a verdict for damages upon. There certainly was no duty to ballast the track for the safety of its employés, and except perhaps at a crossing, no such duty to the public. Besides the inequalities were occasioned by necessary repairs to the track, of which repairs, the deceased, as an employé of the company, must be presumed to have had knowledge. There was not, however, as before stated, a particle of proof that either the track or the step had anything to do with his death. Eor aught that appeared, he may have fallen in a fit, or for some cause wholly disconnected with either. The case was submitted to the jury without evidence, and the verdict has no better foundation than a guess, or at most mere possibilities. This will not do. The practical effect of the judgment below is to take the property of the defendants and give it to the plaintiffs. This is not allowable, even in the case of a corporation. Judgment reversed.

OPINION OF THE COURT FLAHERTY, Justice. This appeal presents the issue whether, in imposing sentence for a second drug trafficking offense, the enhancement provisions of 18 Pa.C.S. § 7508 require enhancement due to a prior offense which had not resulted in a conviction before the second offense was committed. Appellant raises three issues, each less compelling than the last. The history of the drug trafficking offenses of appellant, Tyrone Williams, as to commission of the crimes, conviction, and sentencing, is as follows. The first offense was committed on November 2, 1988. He committed the second offense on May 21, 1991. He was convicted (by guilty plea) of both offenses on October 11, 1991. He was sentenced for both offenses on November 26,1991. .As to the second offense, the Commonwealth sought application of the provision of 18 Pa. C.S. § 7508(a)(3)(i) which requires imposition of a mandatory minimum sentence “if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and $10,000.... ” The sentencing judge held that the enhanced sentence was not mandated because the conviction for the first offense (October 11,1991) did not occur until after commission of the second offense (May 21, 1991) and accordingly imposed a sentence of two years imprisonment and a $5000 fine. On appeal by the Commonwealth, the Superior Court en banc reversed and remanded for reimposition of sentence, mandating application of the enhancement provision of 18 Pa.C.S. § 7508, 431 Pa.Super. 167, 636 A.2d 183. We allowed the appeal to determine whether this recidivist sentencing provision controls the situation where the second offense was committed prior to conviction for the first 537 Pa. 661, 644 A.2d 1199. Appellant argues primarily that the purposes, policy, and philosophy underlying the recidivist sentence enhancement statutes cannot be applied unless the second offense is committed after conviction for the first, citing Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993); Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970); Commonwealth ex rel. Turpack v. Ashe, 339 Pa. 403, 15 A.2d 359 (1940); Commonwealth v. McDermott, 224 Pa. 363, 73 A. 427 (1909); Commonwealth v. Kane, 430 Pa.Super. 203, 633 A.2d 1210 (1993); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc), aff'd 533 Pa. 322, 623 A.2d 814 (1993); Commonwealth v. Tobin, 411 Pa.Super. 460, 601 A.2d 1258 (1992), aff'd, 533 Pa. 322, 623 A.2d 814 (1993). The theme of these cases is that the “point of sentence enhancement is to punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline.” Dickerson, 533 Pa. at 299, 621 A.2d at 992. The Dickerson court quoted from Commonwealth v. Sutton, 125 Pa.Super. 407, 413, 189 A. 556, 558 (1937): It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone, except the incorrigible one, who after being reproved, ‘still hardeneth his neck.’ If the heavier penalty prescribed for the second violation ... is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost. Id. This view, often referred to as the “recidivist philosophy,” is a valid policy. It was applied in Dickerson, supra at 533 Pa. 299, 621 A.2d 992, a case interpreting a different recidivist sentencing statute, to aid in resolving an ambiguity in the statute. All of the cases cited by appellant utilized the “recidivist philosophy” to construe recidivist sentence enhancement statutes which were ambiguous as to whether a prior conviction must have preceded commission of the second offense or whether the prior conviction merely must have preceded sentencing for the later offense. In other words, the philosophy is a valid tool in interpreting ambiguous statutory language. The “recidivist philosophy,” however, is not a constitutional principle or mandate, and the legislature is therefore free to reject or replace it when enacting recidivist sentencing legislation. If the legislature enacts a statute which clearly expresses a different application, the “recidivist philosophy” possesses no authority which would override clearly contrary statutory language. The legislation in question contains no ambiguity at all. It says that “if at the time of sentencing the defendant has been convicted of another drug trafficking offense,” he must receive an enhanced sentence. Appellant asks that we interpret the word “sentencing” in the statute to mean “committing the offense for which the defendant is being sentenced,” so that the statute would read, “if, at the time of committing the offense for which the defendant is being sentenced, the defendant has been convicted of another drug trafficking offense,” he must receive an enhanced sentence. Appellant’s request is beyond our power. Where there is no ambiguity, there is no room for interpretation. 1 Pa.C.S. § 1921(b); Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702 (1992); Commonwealth v. Corporan, 531 Pa. 348, 613 A.2d 530 (1992). The language of 18 Pa.C.S. § 7508(a)(3)(i) could not be clearer; there is no ambiguity, and thus no room for interpretation. There is no basis for us to impose a philosophy of recidivist sentencing to rewrite a statute which clearly rejects such philosophy. 1 Pa.C.S. § 1921(b). Appellant raises two additional issues, neither of which has any merit. The first is based on the anomaly that on December 19,1990, the sentencing statute was amended. The effective date of the amendment fell between appellant’s two offenses. At the time of appellant’s first offense, the statute provided at 18 Pa.C.S. § 7508(a)(3)(i): “Upon the first conviction ...: one year in prison and a fine of Five Thousand ($5,000.00) Dollars ... and, upon the conviction for another offense subject to sentencing under this section: three years in prison and Ten Thousand ($10,000.00) Dollars.... ” This section, without the clearly contrary language contained in the amended version discussed above, has been interpreted to require conviction of the prior offense before the commission of the second offense in order for the enhanced sentence to attach. Commonwealth v. Kane, supra at 480 Pa.Super. 203, 633 A.2d 1210; Commonwealth v. Tobin, supra at 411 Pa.Super. 460, 601 A.2d 1258; Commonwealth v. Beatty, supra at 411 Pa.Super. 450, 601 A.2d 1253. Thus, if appellant had •committed his second offense prior to the amendment of the statute (and prior to conviction for the first offense), his sentence would not have been subject to enhancement. The gist of appellant’s argument is not entirely clear, though it appears to be based on the fact that if he had altered the order of pleading' guilty to the two offenses and been sentenced for the second offense first, there would have been no enhancement of the sentence for the second offense, there being no prior conviction; then he could have pleaded guilty to the first offense and would not have received an enhanced sentence because the conviction for the second offense would not have occurred prior to the commission of the first offense. He argues that an enhanced sentence for the second offense, as the Superior Court has ordered, based on the amended version of the statute, constitutes an ex post facto application of the amended statute. Whatever the merits of this argument, we need not address it, for the hypothetical chronology of events posited by appellant did not take place and we are limited to the application of the statute to the facts of this case. Finally, appellant argues that the Superior Court’s interpretation and application of the amended sentence enhancement statute penalizes him for pleading guilty pursuant to Pa. R.Crim.P. 1402, and that this interpretation will virtually eliminate accelerated pleas under Rule 1402 in drug cases. Whether or not this is the case, it has no bearing on the clear meaning of the amended version of 18 Pa.C.S. § 7508(a)(3)®, which we are bound to apply as the legislature enacted it. Accordingly, we hold that the sentence enhancing statute, 18 Pa.C.S. § 7508(a)(3)®, must be applied to enhance appellant’s sentence for the offense committed on May 21, 1991, as appellant, at the time of sentencing, November 26, 1991, had been convicted, by guilty plea on October 11, 1991, of another drug trafficking offense committed on November 2, 1988. Order of the Superior Court affirmed and case remanded to the Court of Common Pleas of Philadelphia County for resentencing in accordance with this opinion. MONTEMURO, J., is sitting by designation. . There are other purposes of sentencing in addition to individual deterrence and rehabilitation. See generally W. Gaylin, Partial Justice: A Study of Bias in Sentencing (1974). Chapter II, "The Sentencing Process," at 15-27, outlines five broad purposes of the penal system: protection of society, general deterrence (example to others), individual deterrence, rehabilitation, and retribution (punishment, vengeance, desserts). The “recidivist philosophy” urged by appellant is particularly relevant to the concepts of individual deterrence and rehabilitation. The "recidivist philosophy,” however, is totally meaningless insofar as other valid purposes of sentencing are concerned, such as protection of society and general deterrence. The legislature is perfectly free to enact a sentencing scheme which rejects the “recidivist philosophy” and focuses on other goals of the penal system.

JOHNSON, Judge: This appeal presents an issue of first impression under the Pennsylvania No-fault Motor Vehicle Insurance Act. We must decide whether Section 203 of the Act, when read in conjunction with Section 106 of the Act, permits an insured to recover under the statute for hospital expenses which have been paid previously, on behalf of the insured, by a private Blue Cross plan for collateral coverage. Subsumed under this general issue is the need to determine whether interest must be assessed on the delayed payment of no-fault benefits if found to be due, and whether the facts of this case support the award of attorney’s fees. The trial court received the case upon a stipulation of facts and oral cross-motions for summary judgment. On April 23, 1982, the court filed its opinion and entered its order awarding basic loss benefits to Patricia L. Steppling (Claimant), together with 18% interest as provided in Section 106(a)(2) of the Act, and attorney’s fees. From the entry of judgment on the award, Pennsylvania Manufacturers’ Association Insurance Company (PMA) brings this appeal. We hold that so-called “double recovery” is allowed, that the award of interest and attorney’s fees was proper and, accordingly, we affirm. I. The stipulated facts disclose that Claimant was an insured residing in the household of a named insured of PMA. On or about February 21, 1977, she was involved in an automobile accident in Erie County, sustaining injuries which resulted in her hospitalization in three separate medical facilities. Her total hospital expenses were $40,919.87. On April 4, 1977, PMA issued a check to the first facility in which claimant had been hospitalized to pay for the expenses of Claimant’s treatment. The hospital returned the check and advised PMA the bill had already been paid by Blue Cross. Subsequently, PMA attempted to promptly pay the charges incurred by Claimant at the second medical facility, and again was notified by that facility that Blue Cross had already paid the hospital charges in full. The trial court found that PMA also attempted to pay the third facility, with the same result. The original complaint had been filed on behalf of Claimant on October 25, 1978, alleging the accident, the injury, coverage with PMA, repeated demands for payment, and refusal by PMA to pay either the hospital expenses or work loss benefits. On October 17, 1980, Claimant received $15,000 for work loss benefits upon PMA’s Petition for Court Approval of Partial Settlement and entry of order thereon. At the time of filing the Stipulation in the trial court on February 26, 1982, it was agreed that the amount of hospital expenses were reasonable, fair and medically necessary, and that reasonable attorney’s fees owed by Claimant, based on actual time expended, were in the sum of $8,323.95. II. Before us, PMA argues that its obligation to pay basic loss benefits can be discharged by paying directly to the service providers. It relies solely on that portion of Section 106 of the No-fault Act which provides, in pertinent part: An obligation for basic loss benefits for an item of allowable expense may be discharged by the obligor by reimbursing the victim or by making direct payment to the supplier or provider of products, services, or accommodations within the time mandated by this paragraph. 40 P.S. § 1009.106(a)(2). PMA would ask us to hold that since the Claimant had not, herself, paid the hospitals, the obligor could not reimburse her, inasmuch as a dictionary definition of “reimbursement” contemplates the payment back to a person of money spent. The insurer would alternatively ask us to accept its assertion that it has made direct payment to the suppliers of service. We need not linger long on any analysis of PMA’s contentions, since the simple fact remains that it neither sought to effect reimbursement of the victim nor has it actually made any direct payment to any of the hospitals. Under the Act, no-fault benefits are payable monthly as loss accrues. 40 P.S. § 1009.106(a)(1). While we agree that an insurer’s obligation may be discharged either by reimbursement to the victim or by direct payment to the service provider, where neither has occurred, Section 106 of the Act affords no protection to PMA and the obligation remains intact. PMA does not even contend that it attempted to make reimbursement to the victim. And the formality of attempting to make direct payment to the hospitals, where tender is refused, falls short of the statutory requirement of actual payment. III. Although we have no difficulty in rejecting PMA’s contentions, the question remains whether a claimant may recover twice for the same economic losses within the clear meaning and intent of the No-fault Act. We are mindful that our supreme court has only recently held that an insured is precluded from recovering damages for economic detriment under the uninsured motorist coverage required in all liability policies by the Act of August 14, 1963, P.L. 909 where that insured has already recovered the same economic losses under the basic loss provisions of a no-fault policy. Tucci v. State Farm Insurance Co., 503 Pa. 447, 469 A.2d 1025 (1983), rev’g Saunders v. State Farm Ins. Co., 294 Pa.Super. 424, 440 A.2d 538 (1982) and companion cases. In rejecting a “double recovery” in Tucci, our supreme court examined the correlation between the purposes of the No-fault Act and the Uninsured Motorist Act. It determined that a coherent and comprehensive system of compensating and restoring motor vehicle accident victims required that the two acts be construed together as one statute, if possible, and concluded that our legislature intended that the earlier legislation “become a rational part of the new comprehensive system.” Id., 503 Pa. at 454, 469 A.2d at 1028. It thus determined that duplicate recovery would not be allowed beyond the actual special damages an insured may suffer, where the issue of double recovery arises under two complimentary statutes. However, the principle set forth in Tucci is not controlling on the instant facts. We are not here faced with two legislative enactments which must be construed together, but with a single statute and a private program of insurance. The legislature has provided for situations involving collateral benefits arising under private insurance programs, but only in a limited fashion. The statutory provision pertinent to our analysis is Section 203 of the No-fault Act, which deals with privately provided benefits, typically under some group coverage relating to the insured’s employment. Sections 203(b) and (c) provide as follows: § 203. Collate' al benefits (b) The owner or operator of a motor vehicle may elect to provide for security in whole or in part for the payment of basic loss benefits through a program, group, contract or other arrangement that would pay to or on behalf of the victim or members of his family residing with him or the survivor of a deceased victim, allowable expense, loss of income, work loss, replacement services loss and survivors loss. In all such instances, each contract of insurance issued by an insurer shall be construed to contain a provision that all basic loss benefits provided therein shall be in excess of any valid and collectible benefits otherwise provided through such program, group, contract or other arrangement as designated at the election of the owner or operator which shall be primary. (c) An insurer providing basic loss benefits and tort liability in accordance with the provisions of subsection (b) above shall reduce the cost of such contract insurance to reflect the anticipated reduction in basic loss benefits payable by the insurer by reason of the election of the owner or operator to provide substitute security. 40 P.S. § 1009.203(b) and (c). These subsections provide that an owner or operator of a motor vehicle may elect to provide security for basic loss benefits through a group or individual program, thus making the automobile insurance policy excess coverage to the private plan for basic loss benefits. When this election is made by the insured, the insurer must then reduce the premium of the insurance contract to reflect the insurer’s reduced exposure through payment of basic loss benefits. There are specific requirements to be met in pursuing this option, as set forth in 31 Pa.Code § 66.53(c). Without enunciating those requisites, suffice it to say that none of them are present here. In this case, the insured made no election and received a policy of insurance which included basic loss benefits. The insured received no reduction in his premium payments, and PMA does not contend otherwise. Because the election designating Blue Cross as the primary insurer and PMA as excess with respect to professional medical treatment and care was not made, we find no bar in Section 203 to the within claimant’s right to recover under the PMA policy. This conclusion is consistent with the analysis of private collateral benefits found in the treatise on the No-fault Act published by the Pennsylvania Trial Lawyers Association. D. Shrager, ed., The Pennsylvania No-fault Motor Vehicle Insurance Act (1979). In that work, the editor states, at page 148: The “benefits other than no-fault benefits” referred to in Section 203(a) clearly envisions medical and hospitalization plans paid for in whole or in part by the victim’s employer. The section does not prevent the victim from realizing a double recovery. It simply requires that any savings which result from an offset provision in any medical or hospitalization plan must be passed on to the individual employee, (emphasis in original). In passing, we note that Section 206 of the Act provides that benefits received from social security (with certain narrow exceptions), workmen’s compensation, state-required temporary, nonoccupational disability insurance, and all other benefits (except life insurance proceeds) from any government are to be subtracted from no-fault loss. This net loss provision of the Act, nevertheless, has been held not to include sick pay, Erie Insurance Exchange v. Sheppard, 39 Pa.Commw. 30, 394 A.2d 1075 (1978) or, exhaustible disability pay, Tankle v. Prudential Property and Cas. Ins., 306 Pa.Super. 57, 452 A.2d 1 (1982). Where our legislature has expressly provided for net loss calculations with regard to some categories of benefits (Section 206) and where at the same time it has provided for partial substitution for loss benefits under no-fault through other private programs of insurance (Section 203), we are reluctant to conclude that it intended to place Blue Cross benefits into a net loss category without expressly so providing. Our conclusion that “double recovery” is allowed in the instant case is strengthened by a recent decision filed in the Third Circuit Court of Appeals. Killeen v. Travelers Ins. Co., 721 F.2d 87 (1983). In that case, the court had to determine if the Assigned Claims Plan provisions of the No-fault Act, 40 P.S. § 1009.108, permitted an accident victim to recover under the Act for hospital and medical expenses previously paid by a Blue Cross/Blue Shield insurance plan. The Blue Cross/Blue Shield policy premium was paid by the claimant’s father in fulfillment of his support obligations under an Ohio divorce decree. The Court of Appeals, in an Opinion of the Court filed by the distinguished Judge Ruggero J. Aldisert, accepted the “instruction” from this court reiterated in Crawford v. Allstate Insurance Co., 305 Pa.Super. 167, 171, 451 A.2d 474, 476 (1982) that if a court is to err in ascertaining the legislative intent behind the No-fault Act in close or doubtful cases, it should err in favor of extending coverage. Judge Aldisert went on to observe, by way of dicta: If an individual, injured in an automobile accident is covered by a no-fault automobile insurance policy and, in addition, by a general health and accident policy, he or she may be entitled to reimbursement under each such policy for hospital and medical expenses incurred as a result of a motor vehicle accident. What amounts to a double recovery is allowed because the insured has paid two premiums and is entitled to the benefits purchased under each policy. Where, however, the injured individual is not covered by a privately purchased no-fault automobile insurance policy, but is covered only under a general health and accident policy, the reimbursements available through the Assigned Claims Plan will not, unless a statutory exemption applies, allow a double recovery for incurred hospital and medical expenses. 721 F.2d at 89. (footnote omitted). The section under review by the Court of Appeals was Section 108(a)(3) of the No-fault Act which provides: (3) If an individual receives basic loss benefits through the assigned claims plan for any reason other than because of the financial inability of an obligor to fulfill its obligation, all benefits or advantages that such individual receives or is entitled to receive as a result of such injury, other than life insurance benefits or benefits by way of succession at death or in discharge of familial obligations of support, shall be subtracted from loss in calculating net loss. 40 P.S. § 1009.108(a)(3) (emphasis supplied). The Court held that the payments made by Blue Cross/Blue Shield in discharge of the hospital and medical expenses were “benefits” intended to be excluded, as in discharge of a familial obligation of support, under Section 108(a)(3) of the Act. It therefore concluded that the claimant was entitled to double recovery. Our own supreme court has had occasion to anticipate the narrow issue presently before us. In Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), the court considered the possibility of double or overlapping recovery in the case which established that survivors of deceased victims could recover both survivor’s loss and work loss benefits under the Act. Although not critical to the decision before it, the court, speaking through now-Chief Justice Nix, observed: Even assuming such potential for double recovery, this fact, in and of itself, does not necessarily evidence a legislative intention to deny “work loss” benefits to survivors. As appellee Pontius points out in his brief, the legislature has allowed double recovery of other benefits under the Act. For example section 203 of the Act concerning Collateral Benefits permits victims to recover their medical expenses from Blue Cross and Blue Shield and then recover the same expenses a second time from the no-fanlt carrier. It is apparent that the “vice” of double recovery was not foremost in the minds of the legislators when the No-fault Act was enacted. Consequently, the mere possibility of a double recovery by granting “work loss” benefits to survivors of deceased victims, does not seem contrary to either the express or implied intention of the legislature. 491 Pa. at 459, 421 A.2d at 635-36. Finally, where the statute does not expressly prohibit a double recovery, we are inclined to give recognition to the collateral source rule which has long been a part of the law of this Commonwealth. To paraphrase that rule from tort law, the fact that a claimant under the No-fault Act has received compensation from a source other than the no-fault insurer is without relevancy in a suit brought by the claimant against the insurer to recover basic loss benefits for which the full premium has been paid. Cf. Moidel v. Peoples Natural Gas Company, 397 Pa. 212, 222, 154 A.2d 399, 403 (1959); Denardo v. Carneval, 297 Pa.Super. 484, 494-95, 444 A.2d 135, 140-41 (1982). We have no difficulty, therefore, in affirming the award of basic loss benefits. IV. In its Summary of Argument, PMA sets forth this theory to avoid the payment of statutory interest: Since the obligation of the insured was discharged by the direct payment to the provider of services or accommodations said payments could not be overdue and thus could not bear interest. Brief for Appellant, p. 8. It cites to J.C. Penney Casualty Ins. Co. v. Liberty Mutual Ins. Co., 12 D & C 3d 340 (1979) as sole support for its assertion that timely payment by Blue Cross absolves PMA from any liability for interest. This argument is wholly unpersuasive. Section 106(a)(2) of the No-fault Act states: (2) No-fault benefits are overdue if not paid within thirty days after the receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained, unless the obligor designates, upon receipt of an initial claim for no-fault benefits, periods not to exceed thirty-one days each for accumulating all such claims received within each such period, in which case such benefits are overdue if not paid within fifteen days after the close of each such period____ Overdue payments bear interest at the rate of eighteen per cent (18%) per annum. The J.C. Penney case was an action for restitution between two insurers under the No-fault Act, where one insurer paid the benefits due under the Act to avoid the penalty provisions here at issue. That insurer then sought restitution from the insurer subsequently found to be liable for payment of benefits. In denying interest at 18% to the plaintiff insurer, the court in J.C. Penney correctly ruled that the Act only addresses the overdue situation between an obligor and a claimant. The case is totally inapposite on this appeal. Having determined that the within claimant is entitled to recover basic loss benefits, the provision for payment of interest on any payments found to be overdue is clearly applicable. The 18% interest amount is owed regardless of the good faith of the obligor or the reasonableness of the delay. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981); Baker v. Aetna Cas. & Sur. Co., 309 Pa.Super. 81, 95-96, 454 A.2d 1092, 1099-1100 (1982). V. We turn now to the issue of whether the facts of this case support the award of attorney’s fees. Section 107 of the Act provides, in part: (3) If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor'has denied the claim or any significant part there of without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended. 40 P.S. § 1009.107(3). We have previously stated that absence of judicial precedent may not invariably provide an insurance carrier with “reasonable foundation” for denying a claim under the Act, but where a non-frivolous issue is one of first impression, that fact is entitled to substantial weight in determining whether an obligor’s denial of a claim is “without reasonable foundation.” Hayes v. Erie Ins. Exchange, 261 Pa.Super. 171, 176, 395 A.2d 1370, 1373 (1978). In its brief filed with the trial court on February 19, 1982, PMA placed its principal reliance, in contesting its obligation, upon Commissioner of Insurance Bulletin No. 16, issued October 17, 1975 and titled “Non-Duplication of Benefits Provided by No-fault Benefits in Auto Policies.” Its argument in its brief was to the effect that Bulletin No. 16 “effectively made the group hospital insurance plans, such as Blue Cross, obligors within the context of the No-fault Act,” Brief at p. 3, and therefore PMA was conclusively discharged from payment of benefits. Our review of that Bulletin, a copy of which was attached to the Brief, convinces us that the text of the Bulletin can only be read as providing an optional system of reduced benefits to be offered by health and accident insurance companies. It cannot be read as imposing obligor status upon such companies under the Act. The brief filed by PMA on May 28, 1982, in support of its exceptions to the court’s order from which this appeal is brought, understandably abandoned that argument, and sought to contend that Section 106 of the No-fault Act supplied a complete answer to claimant’s position. That argument has been maintained on this appeal, and has been rejected in Section II of this opinion. We note that PMA has submitted no case law or citations to any authorities with respect to the principle issue of double recovery in its Brief for Appellant to this court and in Appellant’s Reply Brief, only cites to two cases referred to in the claimant’s brief in Appellant’s Reply Brief. Appellant’s argument that it has paid the hospitals and therefore should be released from its obligation to the claimant does not square with the stipulated facts. Without being referred to any law which would support such an argument, and knowing of none, we conclude that this attempted argument is frivolous. Likewise, PMA’s protestation that it is unable to “reimburse” the claimant here involved because she is not the person who “spent the money” in discharging the hospital debts constitutes, in our view, a frivolous argument. We note also that the issue of double recovery, as claimant points out in her brief, is neither novel nor complex. Long before this matter was submitted to the trial court upon stipulated facts (February 26, 1982), our supreme court had alluded to the right to secure double recovery following a Blue Cross payment. Allstate Ins. Co. v. Heffner, supra. Here, the work loss benefit was not paid by PMA until October 1980, three years and eight months after the accident and two years after complaint was filed, even though nothing appears in the record of this case to suggest the work loss claim was ever seriously contested on any ground. The fact that payment was in fact directly tendered to the service providers by PMA within a short time after each hospitalization supports the trial court’s finding that PMA had all the facts in its possession necessary to make a determination. Additionally, the fact that this particular issue of double recovery following Blue Cross payment did not reach our court until May 1982, some seven years after the Act became effective, lends some support to claimant’s charge that other insurance carriers have routinely honored such claims based on their reading and understanding of the Act. Our scope of review on this issue is whether the trial court abused its discretion in determining that the obligor had denied any significant part of the insured’s claim without reasonable foundation, thereby justifying the award of attorney’s fees. Given the substantial delay in settling the claim for work loss benefits, which represented a significant part of the claim, and the essentially frivolous nature of the arguments presented to this court on the principal issue, we cannot say that the trial court abused its discretion in awarding attorney’s fees. VI. The order from which this appeal is taken provided: ORDER AND NOW, to-wit, this 23rd day of April, 1982, the Court finds as follows: 1. For the plaintiff in the amount of $40,919.87. 2. The amount of $35,624.77 is to bear interest at the rate of 18% per annum from the time said payment was overdue until the time of payment to the claimant, plaintiff. 3. The amount of $5,295.10 is to bear interest at the rate of 18% per annum from April 19, 1982 until the time of payment to the claimant, plaintiff. 4. Reasonable attorneys fees are awarded to the plaintiff in the amount of $8,223.95. 5. Costs of suit to be taxed to the defendant. We affirm paragraphs 1, 3, 4 and 5 of the order, as filed. Because paragraph 2 of the order is silent as to the actual date or dates after which the payments of $12,073.77 and 23,551.00 were overdue, we vacate that portion of the order only. The earliest due date for payment of these benefits is thirty days after receipt of the claims by PMA. 40 P.S. § 1009.106(a)(2). Upon remand, the trial court shall conduct such hearing as may be necessary to (a) determine the due dates of the work loss benefits related to hospital treatment provided at St. Vincent’s Health Center and St. Francis General Hospital, (b) award judgment for interest due thereafter and (c) determine the reasonable fees due Claimant’s attorneys as a result of appellant’s continuing denial of the claim and the prolongation of this action through appeal. Motley v. State Farm Mut. Aut. Ins. Co., 303 Pa.Super. 120, 449 A.2d 607 (1982), aff'd 502 Pa. 335, 466 A.2d 609 (1983); Baker v. Aetna Cas. & Sur. Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982). Order affirmed in part and vacated in part. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished. . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (Purdon Supp.1983); since repealed, Act of February 12, 1984, P.L. -, No. 11, (Senate Bill 942, P.N. 1646, Section 8(A)), effective October 1, 1984. . 40 P.S. § 1009.203. . Id., § 1009.106. . The Stipulation of Facts filed February 26, 1982 only refers to the hospitalization at St. Vincent's Health Center, Erie, Pennsylvania from February 21, 1977 to March 22, 1977 ($12,073.77) and at St. Francis General Hospital, Pittsburgh, Pennsylvania from March 22, 1977 to July 6, 1977 ($23,551.00). The Honorable Richard L. Nygaard, in his Opinion filed April 23, 1982, includes in his findings of fact that Appellee was hospitalized at Broad Street Hospital and Medical Center, Philadelphia, Pennsylvania, dates not specified, ($5,295.10). Appellant PMA, has not contested this finding on appeal, and we accept the trial court’s finding of fact. . See footnote 4 supra. . At time of filing the complaint, the hospital expenses were alleged to be only $35,624.77, arising from the first two hospitalizations. . 40 P.S. § 2000. . Act of August 14, 1963, the Uninsured Motorist Act. . 40 P.S. § 1009.203. . 40 P.S. § 1009.206. . Notice of Appeal was filed in our court May 28, 1982.

OPINION OF THE COURT STOUT, Justice. This direct appeal arises from the conviction and death sentence of Kevin Hughes (Appellant) for murder of the first degree, rape, involuntary deviate sexual intercourse, and arson endangering persons. Appellant, who was sixteen years, eleven months, and twenty-four days old at the time of the crimes, was arrested on January 12, 1980, for the March 1, 1979 killing of nine-year-old Rochelle Graham. After pre-trial motions were denied on February 13, 1981, Appellant was tried by a jury before the Honorable Robert Latrone of the Court of Common Pleas of Philadelphia County, who also sat as the Suppression Court. On March 23, 1981, the jury convicted Appellant, and, at the sentencing proceeding, determined that Appellant should be sentenced to death on the murder conviction. Counsel argued post-trial motions, which the Trial Court denied on October 27, 1983. The Trial Court sentenced Appellant to death on the conviction for murder of the first degree, and to two concurrent sentences of ten to twenty years for rape and involuntary deviate sexual intercourse to run consecutively to the death penalty. This direct appeal followed. Appellant challenges the verdicts below on numerous grounds. An analysis of Appellant’s contentions, as well as an independent review of the sufficiency of the evidence in this death sentence case, as required by Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied sub nom., Pennsylvania v. Zettlemoyer, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), compels us to affirm Appellant’s murder conviction and to uphold the sentence of death. SUFFICIENCY OF THE EVIDENCE The test for the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. See Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). The evidence, adduced at trial discloses the following. On March 1, 1979, at about 10:30 a.m., authorities responded to a fire alarm at an abandoned building at 1617 Olive Street in Philadelphia. Detective Boyle of the Philadelphia Police Department testified that upon entering the third floor bedroom, he observed the body of Rochelle Graham laying on the floor. Her body was on its back in a spread-eagle fashion. The body was badly burned, with a partially burned pillow between its legs. There was a strong odor of burnt flesh in the room. N.T. at 99. The letters “PEA” were burned into the ceiling. Id. at 104-05. The Commonwealth then called Captain William Shirar, Assistant Fire Marshal of the City of Philadelphia. He testified that the fire was of incendiary origin, and that it had been set to the combustibles on top of the victim. Id. at 327, 332. Dr. Robert L. Catherman, Deputy Medical Examiner for Philadelphia, testified that he conducted an external examination of the body at 4:10 p.m. on March 1, 1979. He discovered bloody and pink fluid and mucus at the nose area and in the mouth, and general thermal burns of the body. Id. at 944-45. The body also showed bruising and superficial surface tearing of the soft tissues in the region of the vaginal opening. In addition, the body had fecal matter protruding from the anus, and there were bruises and tearing of the superficial areas at the anal opening that extended three inches into the anal canal. An internal examination showed soft tissue bruising in the neck with no indication of smoke inhalation. Id. at 945, 948. Dr. Cather-man concluded that the injuries were consistent with attempted penetration of the vagina and actual penile penetration of the rectum. He further concluded that Ms. Graham died from manual strangulation, and that the manner of death was homicide. Id. at 952-54. The Graham homicide went unsolved for approximately ten months. Marie Oquendo, who was thirteen years old at the time of trial, then testified that around noon on January 5, 1980, Kevin Hughes grabbed her from behind, pushed her into a vacant house, and took her to a second floor bedroom. There, Hughes ordered her to undress and forced her to perform oral sex. He stomped on her face, then grabbed her from behind, and tried to choke her. She passed out and awoke in a closet a few minutes later. N.T. at 1079-89. Detective John Chidester of the Central Detective Division of the Philadelphia Police Department, testified to the events on January 10-12, 1980. He stated that, accompanied by Homicide Detectives Frank O’Brien arid Andrew English, he visited the home of Marie Oquendo. There he conducted a photo array, which included a picture of Appellant. Ms. Oquendo identified Appellant as her assailant. The same day, Detective Chidester obtained an arrest warrant against Appellant for rape, attempted murder, and other charges stemming from the Oquendo incident. The next day, January 11, 1980, at 6:53 a.m., he executed this warrant by taking Appellant into custody from the third floor bedroom of his residence. While there, police personnel observed the name “PEANUT” burned into the ceiling of Appellant’s bedroom. Since Appellant was a juvenile, Detective Chidester requested that Mary Hawthorne, Appellant’s grandmother, accompany Appellant and police personnel to police headquarters. She refused to go, but requested that thirty-three-year-old Edward Hawthorne and twenty-year-old Morris Hawthorne, her sons and Appellant’s uncles, join Appellant at police headquarters. From 7:30 a.m. to 8:00 a.m., before the uncles’ arrival at police headquarters, Detective Ligato interviewed Appellant in order to obtain background information pertaining to his age, residence, date of birth, education, and other matters unrelated to the criminal charges resulting from the Oquendo incident for which he had been arrested. Subsequently, Morris and Edward Hawthorne arrived. From 8:50 a.m. to 9:00 a.m., both uncles conferred with Appellant concerning the Oquendo charges. At that time, Appellant and his uncles were advised of Appellant’s Miranda rights. From 9:10 a.m. to 9:55 a.m., Appellant gave a confession in the presence of his two uncles wherein he fully admitted the sexual assault and related crimes inflicted on Marie Oquendo. After Detective Ligato had completed a contemporaneous written memorandum of Appellant’s oral confession, Edward Hawthorne read it in full to Appellant and Morris Hawthorne. At about 10:00 a.m., Detectives O’Brien and English, noting the similarities between the Oquendo and Graham incidents, stated that they would like to question Appellant about the Graham homicide. After he and his uncles were advised of his Miranda rights, Appellant furnished the detectives with an oral exculpatory statement. At about 11:00 a.m., the detectives requested that Appellant take a lie detector test because they doubted the veracity of the exculpatory statement. Appellant and his uncles agreed to the test. While in the polygraph room, Detective O’Brien again advised Appellant, in the presence of his uncle, Edward Hawthorne, of his Miranda rights. At the conclusion of the test,. the polygraphist advised the detective that Appellant had failed. Detective O’Brien then advised Appellant and his uncle of the results. From 12:25 p.m. to 12:35 p.m., all of the parties in the interview room prodded Appellant to tell the truth. Both uncles told him that “[i]f you did it Kevin, tell them.” N.T. Suppression Hearing at 445. Detective O’Brien stated, “[i]f you did it, how many more little kids are you going to hurt?” Id. From 12:35 p.m. to 12:45 p.m., Appellant orally admitted that he had sexually assaulted and killed Rochelle Graham on March 1, 1979. These admissions subsequently were transcribed, and Edward Hawthorne read the transcription aloud to Appellant. This reading was tape recorded. At 1:00 p.m., the police transported Appellant to the Youth Study Center. The actual time at which he arrived at the Center does not appear in the record. In the late evening of January 11, 1980, Detective English, armed with the confession, obtained an arrest warrant for Appellant for the murder of Rochelle Graham. At or about 9:30 a.m. the next day, January 12, 1980, Detective English visited Appellant’s residence for the purpose of informing Morris and Edward Hawthorne that Appellant actually was to be arrested for the Graham homicide. Morris Hawthorne, but not Edward Hawthorne, was present at the residence. Detective English transported Morris Hawthorne to the Police Administration Building. At 2:15 p.m., the police picked up Appellant from the Youth Study Center and transported him to police headquarters, where they arrived at 2:25 p.m. After the police read Appellant and his uncle his Miranda warnings, Appellant and his uncle sub mitted to police interrogation concerning the Graham incident. Between 2:45 p.m. and 5:05 p.m., Appellant again confessed that he had sexually assaulted and killed Rochelle Graham. From 5:05 p.m. to 5:45 p.m., and again from 6:10 p.m. to 6:40 p.m., Morris Hawthorne read the entire contents of Appellant’s confession to him. The second reading was interrupted at 6:35 p.m. when Edward Hawthorne arrived at the interview room and questioned the veracity of Appellant’s confession and the authority of Morris Hawthorne to have assisted Appellant in making it. At 7:49 p.m. on January 12, 1980, Appellant was arraigned. We believe that this evidence was sufficient to support the first degree murder conviction. 18 Pa.Cons.Stat. Ann. § 2502(a) (Purdon 1983). Appellant’s confession, as well as the similarities between this crime and the Oquendo rape, see infra, sufficiently established his identity as the perpetrator of the crime. Moreover, the nature of the attack, manual strangulation, as well as the attempt to destroy the body by fire, evince an intentional, premeditated killing. Commonwealth v. Dollman, 518 Pa. 86, 541 A.2d 319 (1988). COMPETENCY TO STAND TRIAL In challenging his convictions, Appellant first argues that the Trial Court erred in finding him competent to stand trial. The facts pertinent to the competency issue are as follows. On October 21, 1980, a competency hearing was held before the Honorable Berel Caesar. Dr. William Levy testified for the Commonwealth that it was his opinion that Appellant was competent to stand trial. Dr. Levy stated that he and his staff had conducted a joint examination of Appellant a few weeks before the hearing. Based on almost daily contact, extensive psychiatric evaluations, and his behavior, Dr. Levy opined that Appellant had the mental capacity and ability to comprehend the charges against him and to cooperate with counsel in his defense. The doctor further opined that Appellant was able to understand the roles that the judge, the defense attorney, the prosecutor, the jury, and the witnesses play in a criminal trial. N.T. Competency Hearing at 9-18. Judge Caesar ruled that Appellant was competent to stand trial. On the day of the suppression hearing, Appellant again raised the competency issue. Judge Latrone ordered that Dr. Edwin P. Camiel, a psychiatrist employed by the City of Philadelphia, examine Appellant. Dr. Camiel testified that in his opinion Appellant was competent to stand trial. Judge Latrone then ordered a private psychiatrist to examine Appellant. Dr. Robert Blumberg examined him, and concluded that he was incompetent to stand trial. Due to these conflicting opinions, Judge Latrone ordered another competency examination. Dr. Richard Saul, a psychiatrist employed by the City of Philadelphia, examined Appellant and concluded that he was competent to stand trial. Judge Latrone also questioned Appellant in detail about his name, age, date of birth, recognition of both his lawyer and the assistant district attorney, their adverse positions at trial, and the charges against him. He was satisfied that Appellant “knows where he is, why he is here, and when he is here.” N.T. Suppression Hearing at 26. The Judge then ruled that Appellant was competent to stand trial. This Court, in Commonwealth ex rel. Huberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967), articulated the test for determining whether one is competent to stand trial: [T]he test to be applied in determining the legal sufficiency of [a defendant’s] mental capacity to stand trial ... is ... his ability to comprehend his position as one accused of murder and to cooperate with his counsel in making a rational defense. See Commonwealth v. Moon, [383 Pa. 18, 117 A.2d 96 (1955)] and Commonwealth ex rel. Hilberry v. Maroney, [417 Pa. 534, 207 A.2d 794 (1965) ]. Or stated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding, and have a rational as well as a factual understanding of the proceedings against him. See Dusky v. United States, 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824] (1960). Otherwise the proceedings would lack due process: Bishop v. United States, 350 U.S. 961 [76 S.Ct. 440, 100 L.Ed. 835] (1956). Id., 424 Pa. at 495, 227 A.2d at 160. See 50 Pa.Stat.Ann. § 7402(a) (Purdon Supp.1988). See also Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, cert. denied sub nom., Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Davis, 459 Pa. 575, 330 A.2d 847 (1975). The defendant has the burden to establish his lack of competence by clear and convincing evidence. 50 Pa.Stat.Ann. § 7403(a) (Purdon Supp.1988); Commonwealth v. Banks, supra, 513 Pa. at 341, 521 A.2d at 12. Moreover, the determination of competency rests in the sound discretion of the trial court. Id. Appellant argues that Judge Caesar abused his discretion by finding him competent. He first argues that Dr. Levy, at the time of his evaluation, did not possess earlier reports that had concluded that Appellant was incompetent. These reports, however, were prepared six months before the competency hearing, and are not dispositive of the competency issue immediately before and during the trial. See Commonwealth v. Garnett, 336 Pa.Super. 313, 485 A.2d 821 (1984); Commonwealth v. Knight, 276 Pa.Super. 348, 419 A.2d 492 (1980); Commonwealth v. Hunt, 259 Pa.Super. 1, 393 A.2d 686 (1978). Appellant next asserts that this Court should believe the testimony of Dr. Blumberg that he was incompetent. Essentially, Appellant asks us to overstep our role as a reviewing court, which we decline to do. The Trial Court explained its rejection of this testimony, stating, “this court assigned no weight and credibility to Dr. Blumberg’s expert opinion as to competence since it was based on contradictory factual conclusions and possibly biased motives." Trial Ct. slip op. at 17. Where the record reveals that the Commonwealth’s witnesses were familiar with Appellant’s condition, and where they had sufficient information upon which to base their opinions, the Trial Court does not err in choosing to accept their opinions rather than those of the defendant’s experts. Commonwealth v. Banks, supra (no error where expert, testimony conflicts if finding of competency adequately supported by record). See also Commonwealth v. Powell, 293 Pa.Super. 463, 439 A.2d 203 (1981); Commonwealth v. Knight, supra. The testimony of the two medical experts and the testimony of the Appellant constituted sufficient evidence of Appellant’s competency. Appellant next argues that he was incompetent to stand trial because he was taking the medications thorazine and elanil as a treatment for his mental disorder. The record revealed that he was taking a conservative amount of these medications. N.T. Competency Hearing at 23-24. Moreover, the fact that one is taking medication is, by itself, insufficient to establish incompetence. See Commonwealth v. Long, 310 Pa.Super. 339, 456 A.2d 641 (1983) (taking medication did not render defendant incompetent to plead guilty); Commonwealth v. Scott, 271 Pa.Super. 545, 414 A.2d 388 (1979) (same). Although the drugs were prescribed as an anti-depressant, nowhere in the record is there any evidence that his medication diminished, rather than sustained, his level of competence. See Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979) (taking medication supported finding of competence). Finally, Appellant argues that he necessarily was incompetent since Dr. Saul diagnosed him as a schizophrenic. Dr. Levy, however, diagnosed him as a schizoid personality, which he described as meaning not a major mental illness, i.e., a psychosis. In any event, a mental or physical disorder must interfere with one’s ability to understand the proceedings or to assist counsel before it is sufficient to constitute incompetency. Commonwealth v. Martinez, 498 Pa. 387, 446 A.2d 899 (1982); Commonwealth v. Epps, 270 Pa.Super. 295, 411 A.2d 534 (1979). There was sufficient evidence in the record to support the conclusion that Appellant’s mental disorder did not impair his competence to stand trial. Therefore, the Trial Court did not abuse its discretion. PROBABLE CAUSE TO ARREST Appellant argues that the Trial Court erred in not granting his motion to suppress identification evidence, since, according to Appellant, the police did not have probable cause to arrest him for the January 5, 1980, rape of Marie Oquendo. This Court, in Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979), stated the standard of judicial review for determining the correctness of a suppression court’s factual findings and legal conclusions: “Our responsibility on review is ‘to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from findings.’ Commonwealth v. Goodwin, [460 Pa. 516, 521, 333 A.2d 892, 895 (1975)]; see Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974). In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Culombe v. Connecticut, [367 U.S. 568, 604, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961)]; Commonwealth v. Goodwin, supra, 460 Pa. at 521, 333 A.2d at 895; Commonwealth ex rel. Butler v. Bundle, supra, [429 Pa. 141, 149-50, 239 A.2d 426, 430 (1968) ]” Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). In Commonwealth v. Willis, 483 Pa. 21, 394 A.2d 519 (1978), this court further defined the standard: “First, the standard of review, [Kichline standard] which we are asked to apply is that which is used ‘[w]here there are no explicit findings, or in the case of lacunae among the findings,’ Commonwealth v. Sparrow, 471 Pa. 490, 498 n. 5, 370 A.2d 712, 716 n. 5 (1977)____ We are bound to accept such explicit findings of fact unless they are wholly lacking in support in the evidence. Commonwealth v. Sparrow, supra, 471 Pa. at 498 n. 5, 370 A.2d at 716 n. 5 (Footnote omitted.)” Commonwealth v. Starks, 484 Pa. at 403-04, 399 A.2d at 355. See also Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984); Commonwealth v. Granger, 364 Pa.Super. 453, 528 A.2d 244 (1987). Appellant notes that Detective Joseph Talone testified that he received a telephone call from Dennis Ortiz, the owner of the store from which Marie Oquendo had left just prior to being raped. Ortiz informed the detective that he had heard a rumor that Appellant was the perpetrator. N.T. Suppression Hearing at 269-70. Detective Talone further testified that he neither asked Ortiz how he knew this information nor checked the source of the rumor for reliability. Id. at 270-71. In addition, he testified that he did not know Ortiz prior to this incident. Id. at 271. Citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), Appellant argues that this putative “informer” was insufficiently reliable to support a finding of probable cause. In challenging the sufficiency of the probable cause, Appellant misconstrues the relevant inquiry by focusing on the source of the information that led the police to secure his photograph. Of course, unsubstantiated rumors alone cannot be the basis for probable cause. Spinelli, supra. Such was not the case here. Once Ms. Oquendo, who knew Appellant from the neighborhood, N.T. at 1079, identified him as her attacker from the photo array, probable cause existed for his arrest. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988). Therefore, the fact that the police initially acted on an unsubstantiated rumor became irrelevant once adequate probable cause arose. Appellant further challenges his identification as the rapist of Marie Oquendo on the grounds that the pre-trial photographic identification procedure was unduly suggestive. A pictorial identification is unduly suggestive when it gives rise to a substantial likelihood of irreparable misidentification. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976); Commonwealth v. Wojtczak, 342 Pa.Super. 306, 492 A.2d 1133 (1985). The Commonwealth has the burden of proving that the photographic identification procedure was not suggestive. See Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). Detective Chidester testified that he took twelve photographs of young, black males, including one of Appellant, to Marie Oquendo’s home. N.T. Suppression Hearing at 122-23. He testified that he placed the photographs on the kitchen table in four rows of three and that Ms. Oquendo placed her hand on Appellant’s photograph and said that he was the one who hurt her. Id. at 125. Appellant argues that since the detective and Ms. Oquendo differed in their testimony as to the manner in which the police conducted the identification procedure, the identification was tainted. Specifically, Ms. Oquendo testified that the detective handed her the photographs in a stack, like a deck of cards, and she fingered through them one at a time. Id. at 2.437. She further testified that after looking through them once she did not recognize her attacker and that the police prompted her to go through the stack again. Id. Such inconsistencies in testimony, however, do not provide the basis for suppression. The Suppression Court had the prerogative to believe none, all, or part of the testimony, and this fact-finding function included the duty of determining the weight and credibility of such testimony. See Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975). The Suppression Court specifically found that Ms. Oquendo never manually possessed the photos during the pictorial array, but that Detective Chidester displayed all twelve photos on the kitchen table without engaging in suggestive conduct that tainted the array. Findings of Fact and Conclusions of Law at 32-33. Since this conclusion is adequately supported in the record, Appellant’s argument must fail. ADMISSIBILITY OF CONFESSIONS Appellant argues that his confession to the murder of Rochelle Graham was involuntary and should have been suppressed. Appellant contends that conduct of his uncles and the police vitiated his free will. Specifically, during the questioning, both uncles told Appellant, “if you did it Kevin, tell them.” N.T. Suppression Hearing at 445. Detective O’Brien asked Appellant, “How many more little kids are you going to hurt?” Id. Officer Ligato told Appellant, “I know you did it, Kevin, and tell the truth.” Id. at 2.284. Most importantly, Appellant notes that despite the fact that the results of the polygraph examination were inconclusive, Detective O’Brien testified that Appellant and both uncles were told that Appellant had failed the test. Combined with the fact that he had had only a few hours of sleep, and nothing to eat during the hours of interrogation, Appellant argues that his confession was involuntary. This Court, in Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976), articulated the standard for determining the voluntariness of custodial statements: Although there is no single litmus-paper test for determining the voluntariness of a confession, it must be established that the decision to speak was a product of a free and unconstrained choice of its maker____ All at- tending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of delay between arrest and arraignment; the conditions of detainment; the attitudes of police toward defendant; the defendant’s physical and psychological state; and all other conditions present which may serve to drain one’s power of resistence to suggestion or to undermine one’s self-determination. Id., 468 Pa. at 279, 361 A.2d at 289-90 (citations omitted). The record reveals, and the Suppression Court specifically found, that the polygraphist told Detective O’Brien that Appellant had failed the test, without specifically stating to him that the results had been inconclusive. Therefore, the police did not engage in subterfuge by informing Appellant that he had failed the test. N.T. Suppression Hearing at 2.200; Findings of Fact and Conclusions of Law at 51. Similarly, the record does not reveal that Appellant requested food or drink during the questioning. Moreover, the Suppression Court specifically found that Appellant was awake and responsive. Findings of Fact and Conclusions of Law at 22-23. Hunger and fatigue must be so acute as to render one’s confession involuntary and one’s waiver unknowing and unintelligent. See Commonwealth v. Kichline, supra. Such was not the case here. Accordingly, we believe that Appellant’s confession was voluntary. In addition to challenging the voluntariness of his confessions, Appellant argues that he could not and did not effectively waive his Miranda rights, and that therefore the Court should have suppressed his confession. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Commonwealth has the burden to establish a knowing and voluntary waiver of Miranda rights. Commonwealth v. Barry, 500 Pa. 109, 454 A.2d 985 (1982); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972). To do so, it must establish that the warnings were given, and that the accused manifested an understanding of the warnings. Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977); Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976). Appellant initially argues that he lacked the mental capacity to make a knowing, intelligent, and voluntary waiver of his constitutional rights. He argues that he was seventeen years old, with an I.Q. of approximately eighty-one, and that he had a reading and writing ability equivalent to a second grader. Moreover, asserts Appellant, there was abundant testimony in the record that he was mentally ill, and that he lacked almost any ability to comprehend. The record, however, reveals that the Appellant had waived his Miranda rights some years earlier in admitting the rape of another girl. Prior experience with Miranda warnings suggests that the current waiver was knowing and voluntary. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Granger, supra. Moreover, he admitted that he could read and write, and had advanced to the eleventh grade. In any event, at no time did Appellant himself read the warnings and statements. Each time, the police or his uncles read them to him. If the police give Miranda warnings orally, as here, an illiterate accused can still validly waive his rights. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973). Similarly, Appellant’s low I.Q. does not establish his inability to comprehend his rights. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986) (plurality opinion) (low I.Q. does not invalidate confession); Commonwealth v. Hernandez, supra (sixteen-year-old Hispanic defendant with I.Q. of fifty-seven capable of understanding constitutional rights). Moreover, we have consistently refused to adhere to a per se rule of incapacity to waive constitutional rights based on mental disease or deficiency. See Commonwealth v. Bracey, 501 Pa. 356, 461 A.2d 775 (1983). Accordingly, we believe that there is ample support in the record for the conclusion that Appellant possessed the requisite mental capacity to waive his Miranda rights. Appellant next contends that the police failed to follow the juvenile consultation rule enunciated in Commonwealth v. McCutchen 463 Pa. 90, 343 A.2d 669 (1975), cert. denied sub nom., Pennsylvania v. McCutchen, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976), and that therefore the Court should have suppressed his confession. McCutchen held that the police must give a juvenile defendant the opportunity to consult with an interested adult before the defendant could be deemed to have effectively waived his rights. In Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978), we articulated three requirements for a juvenile to waive his fifth and sixth amendment rights: (I) the juvenile must be given the opportunity to consult with an adult; (2) the adult must be one who is genuinely interested in the welfare of the accused juvenile; (3) the interested adult must be informed and aware of those Fifth and Sixth Amendment rights guaranteed to the juvenile. Id., 482 Pa. at 560, 394 A.2d at 464. Appellant makes three arguments. First, he argues that he gave an inculpatory statement to Officer Ligato on January 11, 1980, before his uncles arrived at the police station. Second, he argues that neither uncle genuinely was interested in his welfare. Finally, he argues that neither uncle was informed of his rights, nor understood the effect of waiver. [II] Appellant’s contentions are unsupported by the record. Officer Ligato testified that from 7:30 a.m. to 8:00 a.m. on January 11, 1980, he took background information from Appellant, such as his name, age, address, religion, father, mother, school, etc. N.T. Suppression Hearing at 307. Although both uncles testified that the police had obtained a confession as to the Oquendo incident before they arrived, Id. at 670, 696, the Suppression Court had the prerogative to disregard that testimony. Commonwealth v. Tucker, supra. The Suppression Court specifically found that Officer Ligato did not question Appellant about the Oquendo incident during this period. Findings of Fact and Conclusions of Law at 7, 39. This conclusion is supported in the record. In addition, although the detective did not precede this preliminary questioning with Miranda warnings, he did not conduct the questioning with the intent to extract incriminating statements, and therefore was not required to give the warnings. See Commonwealth v. Davis, 460 Pa. 37, 331 A.2d 406 (1975); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Therefore, the fact that Appellant’s uncles had not yet arrived and were not present for this questioning does not violate the rule in McCutchen. Similarly, Appellant’s contentions that his uncles were not interested in his welfare or aware of his rights also must fail. Appellant points only to the fact that, after he took the polygraph examination, his uncles prodded him to tell the truth. This fact, alone, is insufficient to show disinterest under McCutchen. Cf. Commonwealth v. Thomas, 486 Pa. 568, 571, 406 A.2d 1037, 1038 (1979) (“rule intends that overbearance may be avoided by consultation with individuals such as a lawyer, adult relative, or friend, who can provide a juvenile with the protection which his own maturity could not” (emphasis added)); Commonwealth v. Smith, supra (disinterested and uninformed father insufficient); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975) (mother who was uninformed of child’s Miranda rights and prodded child to tell the truth insufficient). At the time of Appellant’s arrest at his home on January 11, 1980, his grandmother, who was his legal guardian, requested that her sons accompany him. Both uncles stayed with Appellant during questioning, except that only one uncle was present during the polygraph test. In addition, the Suppression Court specifically found that at all times the police warned Appellant and his uncles of his fifth and sixth amendment rights, and that the three were awake, alert, responsive, and not under the effect of alcohol or drugs.' Findings of Fact and Conclusions of Law at 22-23, 40-41. These facts support a finding of the uncles’ genuine interest in Appellant’s welfare. Appellant further argues that his confession on January 11, 1980, should have been suppressed due to the delay between it and the last reading of his Miranda rights. In Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986), the Superior Court reiterated the relevant factors, which are: (1) the time lapse between the last Miranda warnings and the appellant’s statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the appellant’s statement was ma.de; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the appellant’s statement; and (5) whether the statement elicited during the complained-of interrogation differed significantly from other statements which had been preceded by Miranda warnings. Id., 355 Pa.Superior Ct. at 432, 513 A.2d at 998. See also Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971). The record reveals that Appellant’s admissions, made between 12:35 and 12:45 p.m. on January 11, 1980, were not immediately preceded by Miranda warnings. Detective O’Brien warned Appellant twice, first in the interview room at 10:00 a.m. and then again in the polygraph room at 11:18 a.m. N.T. Suppression Hearing at 422, 447. Thus, Appellant confessed within two and one-half hours of the initial warnings and within one and one-half hours of the subsequent warnings. In addition, the confession and the initial Miranda warnings were made and given in the same interview room, while the second Miranda warnings occurred in another room in the same building. Changing to rooms in the same building is a minimal disruption. Commonwealth v. Upchurch, supra. Moreover, Detective O’Brien gave the initial warnings, and he conducted the questioning at the time of the statement. N.T. Suppression Hearing at 447. Although when first warned Appellant made an exculpatory statement, his subsequent inculpatory statement was made in the context of a number of the above factors that establish that no re-warnings were needed. See Commonwealth v. Benjamin, 346 Pa.Super. 116, 499 A.2d 337 (1985); Commonwealth v. Brown, 341 Pa.Super. 138, 491 A.2d 189 (1985). Accordingly, we reject Appellant’s argument that his confession should be suppressed for this reason. In further challenging the admissibility of his statements, Appellant argues that the delay in taking him to the Youth Study Center on January 11, 1980, following his arrest for the rape of Ms. Oquendo, and the delay in arraignmént on January 12, 1980, following his arrest for killing Rochelle Graham, require suppression of his statements. Rule 122 of the Pennsylvania Rules of Criminal Procedure states: When a defendant has been arrested in a court case, with a warrant, within the judicial district where the warrant of arrest was issued, the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay. Pa.R.Crim.P. 122 (emphasis added). Similarly, the “without unnecessary delay” language is found in Rule 130, which applies when the police have made an arrest without a warrant. Rule 1(a) of the Pennsylvania Rules of Criminal Procedure defines the scope of these rules. The rule states: “These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.” Pa.R.Crim.P. 1(a) (emphasis added). In In re Geiger, 454 Pa. 51, 309 A.2d 559 (1973), and Commonwealth v. Bey, 249 Pa.Super. 185, 375 A.2d 1304 (1977), in interpreting the Juvenile Court Law, 11 Pa.Stat.Ann. §§ 243 to 270-5 (Purdon 1965) (repealed), and the Juvenile Act of 1972, 1972 Pa.Laws 333,11 Pa.Stat.Ann. §§ 50-101 to 50-332 (Purdon Supp.1976) (repealed), it was held that the act of the police in arresting a juvenile is not by itself the initiation of a “juvenile proceeding,” and that therefore the provisions of the Rules of Criminal Procedure would apply, specifically, the predecessor to Rule 130. In 1976, the legislature passed the Juvenile Act, 42 Pa.Cons. StatAnn. §§ 6301-6365 (Purdon 1982). At that time, the Act made no provision as to whether the arrest of a juvenile would initiate its protections. Accordingly, we must analyze Appellant’s claim of delay under Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny, which define the “without unnecessary delay” language of Rules 122 and 130. In Futch, we stated the general rule that evidence obtained during unnecessary delay between arrest and arraignment would be inadmissible at trial, except for evidence that has no relationship to the delay. In Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1976), we articulated a three-part test to determine if evidence obtained during a prearraignment delay would be suppressed. “The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must reasonably be related to the delay.” Id., 455 Pa. at 572, 319 A.2d at 420. Subsequently, in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), we held that if the police do not arraign the accused within six hours of arrest, any statement obtained after arrest but before arraignment would not be admissible at trial. The Davenport rule has been refined in Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987) (plurality opinion). In concluding that the Davenport rule was unworkable, we stated: Our experience with the per se application of the [.Davenport] rule has proven to the contrary. The rule has been applied on a mechanical basis to violations which bear no relationship to the statement obtained and has shielded the guilty for no reason relevant to the individual circumstances of their case. Id., 514 Pa. at 405-06, 525 A.2d at 1182 (citations omitted). This Court further stated: the focus should be upon when the statement was obtained, i.e., within or beyond the six hour period. If the statement is obtained within the six hour period, absent coercion or other illegality, it is not obtained in violation of the rights of an accused and should be admissible. In keeping with the underlying objectives of the rule, only statements obtained after the six hour period has run should be suppressed on the basis of Davenport. Id., 514 Pa. at 406, 525 A.2d at 1182-83. We held that this new rule should be applied retroactively to all cases pending on direct review. Id., 514 Pa. at 408, 525 A.2d at 1183. Briefly reiterated, the events surrounding Appellant’s confession on January 11, 1980, are as follows. After arresting him at his home at 6:53 a.m., the police took Appellant to the Police Administration Building, where he confessed to the Oquendo rape between 9:10 and 9:55 a.m., denied his participation in the Graham homicide between 10:15 and 11:10 a.m., and then confessed to the Graham homicide between 12:35 and 12:45 p.m. Detective O’Brien committed these oral admissions to writing between 12:45 and 12:58 p.m. A tape recording was further made of the contents of this written memorandum between 12:58 and 1:00 p.m. Since Appellant gave his initial oral admissions to the police between 12:35 and 12:45 p.m., within six hours of the time of his arrest at 6:53 a.m., they properly were admitted under the Davenport-Duncan rule. Moreover, since the subsequent written memorandum was merely a recital of Appellant’s confession, not obtained in violation of Davenport-Duncan, it was not error to admit this statement at trial. See Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974). See also Commonwealth v. Pritchett, 320 Pa.Super. 359, 365-66, 467 A.2d 364, 367-68 (1983) (citing pre-Davenport cases). With respect to the second confession, at 2:15 p.m. on January 12, 1980, the police arrested Appellant at the Youth Study Center for the homicide of Rochelle Graham, and transported him to police headquarters, where they arrived at 2:25 p.m. From 2:45 to 5:05 p.m., Appellant confessed to the killing of Rochelle Graham. At 6:35 p.m., the police taped his inculpatory statement. Since both the statement and the taping occurred within six hours of arrest, this statement properly was admitted at trial. Commonwealth v. Duncan, supra. PRE-TRIAL PUBLICITY Appellant argues that extensive pre-trial publicity violated his right to a fair trial, and that the Trial Court erred in denying his motion for a change in venue. See Pa.R. Crim.P. 312. Appellant contends that the publicity was so pervasive and inflammatory, both at the time of the incident and at the time of the trial, that “inherently prejudicial” pre-trial publicity occurred, and that therefore he did not receive a fair trial. The test for a change in venue due to pre-trial publicity was articulated in Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985): The grant or denial of a change of venue is a matter within the sound discretion of the trial judge, who is in the best position to assess the community atmosphere and judge the necessity for a venue change. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978). The trial court’s denial of the motion will be reversed only where there is an abuse of discretion. In Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498, 501-03 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984) (quoting Commonwealth v. Casper, 481 Pa. 143, 150-151, 392 A.2d 287, 291 (1978), we summarized the law in this area by reference to Commonwealth v. Casper as follows: [A]n application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion, (citations omitted) In reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant’s] guilt or innocence as a result of the pre-trial publicity. We have, however, recognized that occasions may arise where the pre-trial publicity is so pervasive and inflammatory that a defendant’s normal burden of demonstrating actual juror prejudice is obviated. Pre-trial prejudice is presumed if: (1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused’s prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting officer reports. The publicity must be so extensive, sustained and pervasive without sufficient time between publication and trial for the prejudice to dissipate, that the community must be deemed to have been saturated with it. Id., 508 Pa. at 220-21, 495 A.2d at 187-88. On January 28, 1981, the Trial Court conducted a hearing on the motion for a change of venue. Appellant introduced three different news articles appearing on the same date in three different newspapers. On January 19, 1980, the Philadelphia Daily News printed on the fourth page an article entitled “RAPE SLAY SUSPECT FINGERED IN 3RD ATTACK.” The Philadelphia Inquirer ran a similar story. In addition, The Philadelphia Tribune published a story with a headline that read, “SIX YEAR OLD GIRL ACCUSER: GRAHAM’S ALLEGED KILLER IS SÚSPECT IN ANOTHER RAPE.” Each article referred to “Peanut” Hughes as the defendant who allegedly murdered and raped Rochelle Graham. These articles made reference to Appellant’s confessions, police reports, and an unrelated rape. Nevertheless, a trial court does not abuse its discretion by denying a motion to change venue where a sufficient amount of time has elapsed between the presumptively prejudicial pre-trial publicity and the time of trial so that the prejudice has dissipated and the community is no longer saturated with the publicity. Commonwealth v. Pursell, supra (three day period of saturation followed by six month period with no publicity sufficient to dispel saturation); Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981) (five and one-half months sufficient); Commonwealth v. Atkinson, 364 Pa.Super. 384, 528 A.2d 210 (1987) (five month period sufficient). Instantly, the articles were published on one day, January 19, 1980, and the hearing was conducted on January 28, 1981, more than one year later. No other articles were published in the interim. This one year period was sufficient to dissipate any possible prejudice and to lessen any saturation of the community with the Graham incident. Appellant further argues that publicity that occurred around the first day of trial likely prejudiced the non-sequestered jury. Specifically, he notes that the Philadelphia Journal published, on February 27, 1981, an article with a headline that read, “D.A., ‘PEA TO FRY FOR KILLING TOT.’ ” The Philadelphia Bulletin also published an article concerning the trial. Moreover, a local television station ran a news story that reported Appellant’s involvement in prior and subsequent rapes. The same station also called this case “the most brutal rape case ever in the history of Philadelphia.” Lastly, Appellant notes that three of the jurors and several spectators wore green ribbons on their coats before the trial began to symbolize the sexual assault and disappearance of young black children in Atlanta. Appellant argues that the jurors’ use of these ribbons indicates that they had a deep-seated sympathy for the children, and that the ribbons, combined with the publicity, created an air of sensationalism that denied him a fair trial. Anticipating a rash of news coverage at the start of the trial, Judge Latrone specifically instructed the jury not to listen to radio newscasts, not to watch TV, and not to read the newspapers. Moreover, on the second day of trial, the Court and counsel questioned all fourteen members of the jury about whether they had read or heard anything in the news media, or from third persons, that would affect their ability to render an impartial verdict. N.T. at 148-75. Most jurors stated that they had heard nothing. Juror number four stated that juror number twelve told her that she had heard about the case on the news. The Trial Court stated, “[u]pon examining the demeanor of juror 12 in the witness box and analyzing the testimony of both juror 4 and juror 12, this Court determined that juror 12 had not heard anything on television which would prevent her from being a fair and impartial juror.” Trial Ct. slip. op. at 29. Moreover, defense counsel conceded that a mistrial was not necessary. N.T. at 175-76. The Trial Court then immediately sequestered the jury for the remainder of the trial. We believe that the Trial Court’s instructions to avoid media contact, the results of the voir dire, and the subsequent sequestration of the jury afforded Appellant sufficient protection to guarantee him a fair trial. Concerning the green ribbons, on the first day of trial, after seven days of empanelling the jury, and before it was sworn, defense counsel informed the judge that several spectators and three members of the jury were wearing green ribbons to symbolize the plight of black children in Atlanta. At the request of counsel, the Trial Court ordered all spectators to remove the ribbons, and questioned the jurors about whether their wearing the ribbons evidenced a bias against Appellant. Each juror agreed to remove the ribbon, and the Court determined that none of the three had formulated an opinion that prevented him or her from giving the Appellant a fair trial. Moreover, the record revealed that defense counsel briefly questioned one of the three jurors, and did not question the other two. In addition, counsel did not make a motion for a mistrial, thereby evincing his satisfaction with the jury’s impartiality. In light of the voir dire of the jurors, the fact that defense counsel was satisfied, and the fact that the wearing of the ribbons occurred only briefly before the jury was sworn and discontinued immediately, we believe that Appellant was not denied a fair trial. Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680, cert. denied sub nom., Martinolich v. Pennsylvania, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974). Cf. Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (no error where innocuous contact between judge and jury before jury was sworn), cert. denied sub nom., Richardson v. Pennsylvania, 436 U.S. 910, 98 S.Ct. 2248, 56 L.Ed.2d 410 (1978). EVIDENCE OF OTHER CRIMES Appellant argues that the Trial Court committed reversible error by permitting Marie Oquendo to testify that Appellant raped her on January 5, 1980, for the purpose of establishing his identity as well as establishing a common scheme, plan, or design for the rape and murder of Rochelle Graham. . This Court, in Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981), stated the law as follows: It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind____ The general rule, however, allows evidence of other crimes to be introduced to prove ... (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. Id., 493 Pa. at 175, 425 A.2d at 720 (citations omitted). See also Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); C. McCormick, Evidence § 190, at 559-60 (3d ed. 1984) (discussion of admissibility of “signature” crimes). A comparison of the two crimes, gleaned from Ms. Oquendo’s testimony and Appellant’s confessions, yields the following similarities: (1) both crimes involved young females (Graham was nine; Oquendo was twelve); (2) both victims were non-Caucasian (Graham was Negro; Oquendo was Puerto Rican); (3) both crimes occurred during the daytime; (4) both crimes took place within a four-block radius; (5) both crimes took place within a five-minute walk from Appellant’s home; (6) both crimes involved circumstances in which the victim was lured or strong-armed off the street; (7) both victims were taken to upstairs bedrooms of vacant buildings; (8) in both crimes the assailant ordered the victims to undress; (9) both crimes involved rape, other sex acts (Graham was anally; Oquendo was orally), and manual strangulation; and (10) both crimes involved circumstances in which the accused and the victims previously were acquainted. In Commonwealth v. Patterson, 484 Pa. 374, 399 A.2d 123 (1979), we held inadmissible evidence of another rape, where the victims were of different ages and sexual attractiveness, the weapons used were not identical, one rape occurred in a garage while the other occurred in an apartment, and nothing distinctive separated the two crimes from other street crimes. Id., 484 Pa. at 380, 399 A.2d at 127. Unlike in Patterson, an analysis of the aforementioned similarities leads us to conclude that there was a logical connection between the two crimes, and that therefore the Trial Court did not err in permitting evidence of the Oquendo rape. The similarities are not confined to insignificant details that would likely be common elements regardless of who had committed the crimes, see Commonwealth v. Bryant, 515 Pa. 473, 530 A.2d 83 (1987), but rather truly represent Appellant’s signature. The time lapse of ten months between the sexual attacks does not render the second attack inadmissible. Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981); Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976). Both girls were young, hence sexually immature. Commonwealth v. Patterson, supra. Both rapes occurred within a tight geographic region, and during the daytime. Commonwealth v. Morris, supra. Both rapes were strikingly sim ilar in the implementation of the assault, namely, taking a young girl into an upstairs bedroom of a vacant building. See Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502 (1980). In both cases, the victims were choked. See also Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984) (mere fact that one crime resulted in wounding rather than death would not vitiate admissibility under exception). Moreover, there was further evidence that established a link between the perpetrators of the two crimes and Appellant. Specifically, the Graham crime scene had the letters “PEA” burned into the ceiling, and the police discovered the letters “PEANUT” burned into Appellant’s bedroom ceiling when they arrested him on January 11, 1980. Moreover, Ms. Oquendo knew Appellant as “Peanut” in the community. The chance that two different people, both nicknamed Peanut, committed the crimes is small. Accordingly, we believe that the Trial Court did not abuse its discretion by allowing evidence of the Oquendo rape. DEATH-QUALIFIED JURY Appellant lastly contends that his conviction must be overturned because he was tried before a death-qualified jury. He argues that a juror who is willing to impose the death penalty is more prosecution-oriented than one who is not so willing. Thus, according to Appellant, this selection of a predisposed jury denied him due process. Appellant further argues that, since those defendants that were tried before enactment of the death penalty statute in 1978 were tried before juries not death-qualified, he has been denied equal protection of the law. The United States Supreme Court has held that it is permissible to disqualify one from the venire whose views on the death penalty would interfere with their ability to be fair and impartial. Lockhart v. McCree, 476 U.S. 162, 165, 106 S-Ct. 1758, 1760, 90 L.Ed.2d 137 (1986). In Lockhart, the Court rejected the claim that the death qualification procedure resulted in a conviction-prone jury. Id. at 165, 106 S.Ct. at 1760. See Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied sub nom., Colson v. Pennsylvania, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). Thus, Appellant’s contention that his jury was more prone to conviction than a jury deciding a case prior to 1978 is without merit. The judgment of sentence is affirmed. Mr. Justice McDERMOTT, J., files a concurring opinion in which LARSEN and PAPADAKOS, JJ., join. . 42 Pa.Cons.Stat.Ann. § 9711(h) (Purdon 1982) provides: (h) Review of death sentence— (1) A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules. (2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence. (3) The Supreme Court shall affirm the sentence of death unless it determines 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 an aggravating circumstance [elsewhere specified]; 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. . 18 Pa.Cons.Stat.Ann. § 2502(a) (Purdon 1983) (first degree murder); Id. § 3121 (rape); Id. § 3123 (involuntary deviate sexual intercourse); Id. § 3301(a) (arson endangering persons). . 42 Pa.Cons.Stat.Ann. § 9711(a)(1) (Purdon 1982) provides: (a) Procedure in jury trials— (1) After a verdict of murder of the first degree is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment. . The Court suspended sentence for arson endangering persons. . The probable cause for the arrest warrant states: On 1-5-79 on the highway Corthinian & Parrish sts one Maria OQUENDO His female 12 yrs 763 N. Corthinian St was dragged off the highway into a vacant house by a negro male who beat her, raped her, tried to kill her and robbed her. She stated she has seen this negro male visiting other people in her apt bid the last few years and can positively identify him. She does not know his name. On 1-10-80 the victim was shown a group of 12 photos by the assigned and she picked out a photo of KEVIN HUGHES and stated he positivly the man who attacked her and the same one she had seen previotisly in her apt bldg visiting others. Exhibit C-3. . In concluding that the police had probable cause to arrest Appellant on January 11, 1980, we believe that Appellant’s derivative argument, namely, that his arrest on January 12, 1980 for the killing of Rochelle Graham was tainted due to the illegal prior arrest, must fail. Moreover, the police, in light of the similarities between the two crimes and Appellant’s confession to the Graham incident on January 11, 1980, had sufficient probable cause to arrest him for that crime. . Having concluded that the police conduct did not taint Ms. Oquendo’s pre-trial identification of Appellant, we need not address Appellant’s argument that she lacked an independent basis for her in-court identification. . Even if the detective had known in advance that the results of the test were inconclusive when he informed Appellant that he had failed the test, we do not believe that Appellant’s confession would thus be involuntary. Several cases in this Commonwealth have discussed the issue of police subterfuge in general, and more specifically as it relates to the admissibility of statements after a lie detector test. In Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974), we stated the general rule that an appellate court must determine whether the police subterfuge precluded the accused from making a knowing and intelligent waiver. Moreover, an alleged fabrication renders a confession inadmissible if it is likely to cause an untrustworthy confession. Id., 457 Pa. at 434-35, 322 A.2d at 126. There, we held that intentional misrepresentations as to statements made by a codefendant were insufficient to make a confession involuntary. See also Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (same). In Commonwealth v. Starr, 486 Pa. 530, 406 A.2d 1017 (1979), cert. denied sub nom., Pennsylvania v. Starr, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 782 (1980), this Court found that an accused’s waiver of his Miranda rights and subsequent confession were involuntary, where the police told the accused that the fact that he had failed a lie detector test would be shown to the district attorney and the judge, who would know that he was lying. Similarly, in Commonwealth v. Watts, 319 Pa.Super. 179, 465 A.2d 1288 (1983), aff’d, 507 Pa. 193, 489 A.2d 747 (1985), the Superior Court held that it was impermissible for the police to stipulate with the accused that any negative test results would be introduced at trial. Starr and Watts are distinguishible from the instant case, where the record reveals that the police at no time misled Appellant as to the admissibility of his polygraph examination. Rather, Appellant alleges that the police informed him that he had "failed" the test, when in fact they knew that the results were "inconclusive.” Although "we emphasize that we do not condone deliberate misrepresentation of facts supplied to an accused at a time when he must elect to waive a Constitutional right,” Commonwealth v. Jones, 457 Pa. at 435, 322 A.2d at 126-27, even if the facts were as Appellant claims, this type of information "would [not] so distort the factual situation confronting him as to render his waiver unknowing and unintelligent." Id. . For cases occurring after April 17, 1984, juvenile confessions are governed by a totality of the circumstances test. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). A review of this record reveals that even under this test, Appellant knowingly and intelligently waived his Miranda rights. . Appellant argues that, at age twenty, Morris Hawthorne per se lacked the maturity to provide meaningful adult consultation as required by McCutchen. We disagree. The McCutchen rule allowed anyone over eighteen to make a valid waiver of Miranda rights on his own and without adult assistance. Accordingly, if a person is sufficiently competent to waive his own Miranda rights, he must be competent enough to accord a juvenile that assistance required to waive the juvenile’s rights. Therefore, we must reject Appellant’s argument that only Edward Hawthorne, and not Morris Hawthorne, had the ability to assist him in waiving his Miranda rights. . In February of 1980, after the arrest of Appellant, the legislature amended section 6321 by inserting section (a)(2.1), which states that taking a child into custody activates the provisions of the Juvenile Act. See 1980 Pa.Laws 12, 42 Pa.Cons.Stat.Ann. § 6321(a)(2.1) (Purdon 1982). Moreover, section 6324(2) states that a juvenile is taken into custody pursuant to the laws of arrest. Accordingly, subsequent cases are governed by the provisions of the Juvenile Act that relate to delay. Section 6326 states: A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall: ... (3) bring the child before the court or deliver him to a detention or shelter care facility____ Id. § 6326 (emphasis added). Moreover, section 6338 of the Act states that “[a]n extrajudicial statement, if obtained in the course of a violation of this chapter ... shall not be used against him.” Id. § 6338. This Court has never defined the words "with all reasonable speed." We are not, however, without guidance. Every case that has addressed the issue has either directly or by analogy applied the "without unnecessary delay” language of Criminal Rules 122, 130, and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and its progeny. See, e.g., In re Parks, 370 Pa.Super. 350, 355, 536 A.2d 440, 442 (1988); In re Schimer, 264 Pa.Super. 185, 188 n. 2, 190 n. 4, 399 A.2d 728, 730 n. 2, 730 n. 4 (1979); In re White, 264 Pa.Super. 190, 191-92, 399 A.2d 731, 731 (1979); In re Anderson, 227 Pa.Super. 439, 443, 313 A.2d 260, 261 (1973). Moreover, we see no reason to apply a different rule to juveniles. Therefore, we construe "with all reasonable speed” in the Juvenile Act to directly comport with Criminal Rules 122, 130, and Futch and its progeny. . The following exchange took place between the Court and juror twelve: Q. From the time you left here yesterday at that designated time until the time you reported in this morning, did you personally listen to, watch, read, or see anything concerning this case in the news media — radio, television, or the newspapers? A. Yes. Q. What was the circumstance? A. I had turned my TV off as soon as I heard it. I didn’t listen to none of it. My husband had it on too loud. I could hear it upstairs in my bedroom. Q. Did you hear any of it? A. No, I didn’t. Q. Did you discuss that with any of the other jurors in the jurors’ room, that you heard something about it? A. No. Q. Better yet, did any third person — family, friend, stranger, relative, or fellow juror — make reference to you that they had heard anything about the case, whether it was from the time you left until the time you came in this morning? A. No. Q. You are absolutely sure — how did you get it cut off so quickly? A. I just hollered down to my husband to turn the TV off, that’s all. I just didn’t want to hear it. Q. And in all truth, you did not hear anything? A. No, I didn’t. N.T. at 169-70. . The following individual exchanges occurred between the Court and the respective jurors outside the hearing of any other jury member: Q. [Y]ou are so emotionally affected by the inhumane treatment of Black youths in Atlanta that you want to explicitly exhibit your feelings for them and your protest against the impropriety of that which is taking place; is that right? JUROR NO. 2: Well, Your Honor, it’s not Black children or white children. Q. All right. Children. JUROR NO. 2: Yes. Well, I think it's something that needs to be remembered. Let’s put it that way. Q. All right. Having expressed that sentiment, do you feel that your intensity of feeling, that you would outwardly exhibit what your emotions are by wearing the ribbon, would prevent you from being a fair and impartial juror in this case because, as we all well know, this case involves a fatal infliction of harm on a female child, whatever the race might be? JUROR NO. 2: No. sir, it wouldn’t have any effect on my judgment. Let’s put it that way. Q. You are not that stirred up about the principle, which all of us will accept as a correct principle — I’m not arguing with the principle— JUROR NO. 2: I know. Q. —that any one who has inflicted acts of violence or acts of fatal violence upon the youths of America has done something wrong, should be punished, and we should sympathize with the families of the victims; is that correct? JUROR NO. 2: Well, as I said, for the family members and for those children to be remembered. Q. Do you think that, having exhibited a ribbon to show that you are involved in that, in effect, protest against the violence on a matter of national level would prevent you from being a fair and impartial juror in this case? JUROR NO. 2: No, sir. Q. Notwithstanding the exhibition of the ribbon, you could follow my instructions that you well and truly try the issues joined in this case and determine guilt or innocence only on the basis of the evidence and in an unemotional fashion, unconcerned with, let’s call it, national philosophic trends or the emotional impact of the publicity that is currently pervading the American society on the question of violence and fatal infliction of violence to children? JUROR NO. 2: Yes, sir. Q. The fact that you were wearing the ribbon and that you are emotionally, through outward exhibition of the ribbon, showing how you feel about violence to youths, does that indicate how you feel about the facts of this case? Because, this case involves a little child. JUROR NO. 4: No. I wore it as a symbol-just like for the hostages. I just put it on, you know. Q. So, if I were to instruct you that you were to decide the case on the facts as determined from the evidence produced in this courtroom, would you be able to do that? JUROR NO. 4: I will. Q. Now, would you be able to decide the case on the basis of the evidence, in a fair and impartial fashion, without worrying about or being concerned about Atlanta, national TV, or vindicating any philosophic principles of fatal violence to youths is inhumane? JUROR NO. 4: I will. Q. Do you think it is proper to wear a button that shows that you are sympathizing with the concept of — that it is wrong to injure and abuse children in the United States, where the victim in this case is a youth, also? Doesn’t it show that you may be so emotionally involved in that principle that you perhaps won’t be able to think fairly in the case? JUROR NO. 13: No. Q. Are you sure? JUROR NO. 13: I’m positive about that. Q. But this case must not be decided on what is happening in Atlanta, it must not be decided on the press promotion of public opinion and protest against violence to youths. It has to be decided on what evidence is presented in this courtroom. JUROR NO. 13: Right. Q. If I instruct you that you are to decide this case, Kevin Hughes' case, on the evidence presented here, unemotionally, without any reference to what is going on in Atlanta, what you are hearing on the radio, television, and no matter what the overall ocean of publicity and public opinion is respecting the wrongness of violence to youths, would you be able to do it? JUROR NO. 13: Yes. N.T. at 14-25. . As is the practice of this Court, we have examined the sentence of death in order to determine if it is disproportionate or excessive to the penalty imposed in similar cases. See Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988). Having considered the circumstances of the crime and the character of the Appellant, we conclude the sentence is not excessive or disproportionate. The jury determined there were no mitigating circumstances but found one aggravating circumstance, namely, killing while in the perpetration of a felony. N.T. 3-23 and 3-24-81 at 2118. The statute requires a verdict of death in such circumstances. 42 Pa.Cons.Stat.Ann. § 9711(c)(l)(iv) (Purdon 1982). The study maintained by the Administrative Office of the Pennsylvania Courts indicates the sentence is neither disproportionate nor excessive in comparison with similar cases.

The opinion of the court was delivered December 15,1853, by Lewis, J. — The great principle of the trial by jury is, that the court shall determine the law and the jury the facts.' Even in criminal eases, where the jury have a right to determine the law and the facts, “they are to do so under the direction of the court,” and with a single exception, the court have an undoubted right to grant a new trial where the verdict is against evidence or law. The only exception to the rule is, that where a defendant is acquitted in a criminal case, he shall not be put in jeopardy a second time for. the same offence. This principle, from the necessity of guarding the liberties of the people against the power of the government, has been so applied as to deprive the court of the power to grant a new trial in a criminal case where the verdict is in favor of the defendant. In all other cases, the supervision of the court, in directing the admission or rejection of evidence, in giving instructions to the jury on matters of law, and in setting aside the verdict where it' is contrary to the law or evidence, is an essential element in the trial by jury. These were the rights which belonged to that mode of trial, at the time when the Constitution of 1790 was adopted, and these rights are preserved in the provision in that instrument, that “ the trial by jury shall be as heretofore, and the right thereof remain inviolate.” It is no more in the power of the legislature to alter the essential nature of this trial, than it is to abolish it altogether. It is not only “to remain inviolate,” but “it is' to be as heretofore.” It follows that the Act of 8th December, 1804, authorizing the jury in cases of acquittal to “ determine by their verdict whether the county or the prosecutor, or the defendant or defendants, should pay the costs of prosecution,” cannot take away the common law supervision of the courts, which belongs to the trial by jury. The determination is to be made by “their verdict,” and the use of that term shows that the decision was intended by the legislature, to be subject to the rules of law which govern verdicts in general. A decision of a jury, contrary to the direction of the court, and not subject to its revision, is not a verdict. ' The jury have the power to name the prosecutor; but if they name one against whom there is not a particle of evidence; one who -was not the prosecutor, and who had no notice whatever of the proceedings, the injustice would be so monstrous, that it seems impossible to doubt, in regard to the power and the duty of the court to grant redress. So, if the jury should name as prosecutor, the justice who issued the warrant, the constable who executed it, or the District Attorney, who sent up the indictment, and prosecuted it, without any other evidence against them, except proof of the performance of their official duties, the demand for a prompt and efficient remedy would be equally imperative. No man can suppose for a moment, that the legislature intended to place it in the power of the jury to impose severe penalties upon public officers for the faithful performance of their duties. If a man, upon full proof of the defendant’s guilt of a most dangerous forgery of civil process, by means of which a judgment was unlawfully obtained, institutes a prosecution, and the only witness acquainted with the facts dies before the trial, and thereby the criminal escapes, it would be against law and evidence to order the prosecutor to pay the costs. We do not say that these are the facts of the case before us. It is not our duty to inquire into the facts which induced the court to decide that there was “nothing in the •testimony to show that the prosecutor behaved improperly,” and for that reason to set aside the verdict “ so far as costs are concerned.” It is sufficient for us to say that the court had a supervision over so much of the verdict as related to the costs, notwithstanding the acquittal. The preamble to the Act of 1804, shows that it was not intended to authorize the jury to punish innocent prosecutors, acting upon well founded grounds of belief, in preferring charges of a character which ought to be investigated. It was enacted expressly to prevent “restless and turbulent people” from “harassing the peaceable part of the community with trifling, unfounded or malicious prosecutions.” Where the prosecution is not “trifling,” but one of a grave character; where it is not “unfounded,” but founded upon probable cause existing at the time it was commenced, but afterwards fails by the death of material witnesses, and where there is no evidence of malice in the prosecution, it is the duty of the court to set aside the verdict against the prosecutor for the costs. In short, this is the duty of the court in all cases where “ there is nothing in the testimony to show that the prosecutor behaved improperly.” The court had a discretionary power over the subject, and it is clear that matters within the discretion of the court below, are not the subjects of review here. It is no - answer to this argument, to say that the defendant will be deprived of his rights under the statute, if the action of the court below be sustained ; for he had no rights vested before sentence pronounced, and he has ample remedy, by action, against the prosecutor, if the prosecution was without probable cause. Nor is it a sufficient reason for imposing the costs upon an innocent person, that the witnesses for the prosecution may be without remedy for their fees. It is “better that ninety-nine guilty escape, than' that one innocent man should suffer;” it is surely better that each person should contribute the money, trouble, and expense which falls upon him in promoting the justice of the country, than that all the charges should be imposed unjustly upon one. The supposed hardship might be remedied, by a suitable construction of the law; but if not, it is no greater than has frequently happened under the same statute before; 4 S. & R. 541; 3 Penn. R. 365; 1 W. & S. 259; 7 W. 485; Bright. Sup. 1849, p. 188. These hardships cannot outweigh the principles of public policy, which require that prosecutions, founded upon probable cause, for of-fences which endanger the rights of the people, ought not to be discouraged, by intimidating officers or citizens, nor can they, weigh a feather in opposition to the maxim, “ Fiat justitia ruat coslum." It is thought by some that the decision of the jury ought to be conclusive, right or wrong, whether made upon sufficient-' evidence and due notice, or without either, upon the ground that their decision is as likely to be correct as that to be pronounced by the court. We have no disposition to claim for' the court what does not properly belong to it, or to disparage the great merits of the jury. But it is surely not unreasonable to suppose that those who have devoted their lives to the study and the practice of the law, and who have been selected by the sovereign authority of the nation, for their wisdom, integrity and experience, are less liable to err than men drawn by lot, without especial reference to their qualifications, who may be, and generally are, unacquainted with the law, and whose necessary attention to other avocations prevents them from gaining any great experiénce in the business of administering justice. It would be as reasonable to expect judges to be good farmers, mechanics or physicians, as to expect persons of these pursuits to be learned and experienced jurists. The argument which excludes the supervision of the court in this case, would exclude it in all others. But the question is not an open one. It has been settled by the common law and by the Constitution. So that if we even concede to the jury a higher degree of integrity as men, and superior learning and experience as jurists, this does not authorize the courts to change the established rules of law, or to disregard the constitutional duties imposed upon them. While we should be careful to avoid the usurpation of powers not conferred, nothing can justify us in refusing to discharge the duties of a trust indisputably reposed by the people for their own protection. Judgment affirmed.

Mr. Justice Gordon delivered the opinion of the Court, The first five assignments of error cannot be sustained. They are in fact but five exceptions to a single ruling of the Court, or what might properly have been embraced in one ruling. The offer, with its variations, was to prove a custom among iron mills, of the character of that owned by the defendants, making the ton 2240 pounds; but the Court held that the custom, if proved, was not good, because opposed to the statute which fixes the legal ton at 2000 pounds, and that the former could not be imposed upon the plaintiff except by proof of a special contract, or of such knowledge by him of the rules of the establishment as would raise the presumption that he was working under them, hence the proposed evidence was rejected. It requires no argument to establish the correctness of this ruling, hence we attempt none. The seventh assignment must be sustained. The orders given by tlie defendants and received by the plaintiff constituted a proper set-off. The first, second, third and fourth sections of the Act of June 29th, 1881, are utterly unconstitutional and void, inasmuch as by them an attempt has been made by the legislature to do what, in this country, cannot be done ; that is, prevent persons who are mi juris from making their own contracts. The Act is an infringement alike of the right of the employer and the employ'd ; more than this, it is an insulting attempt to put the laborer under a legislative tutelage, which is not only degrad-i ing to his manhood, but subversive of his rights as a citizen of! the United States. ■ j He may sell his labor for what he thinks best, whether ' money or goods, just as his employer may sell bis iron or coal, and any and every law that proposes to prevent him from so doing is an infringement of his constitutional privileges, and consequently vicious and void. The judgment of the Court below is reversed, and a venire ordered.

Mr. Justice Gordon delivered the opinion of the court, April 19th, 1886. It is certainly a correct rule of law, as held in Clendenon v. Pancoast, 75 P. S. R., 213, that a real estate broker’s commissions are earned whenever he has procured a buyer who will comply with the'conditions fixed by his principal for the property proposed to be sold. But it is to be understood that, this rule depends not only on the fact that the broker is to be regai’ded as the agent of the seller, but that, as such agent, he acts with the utmost good faith towards his principal, and if he does not so act he is entitled to nothing. In the case in hand, however, were we to consult the evidence alone, giving no attention to the allegations of the plaintiff, we might be compelled to regard him rather as the agent of the vendee than of the vendor. George Patterson, the defendants’ testator, had a property to sell, for which he agreed to take one hundred and forty thousand dollars; thirty thousand dollars in hand, and the balance to be secured by bonds and mortgage. Under these conditions the matter was placed -in the hands of the plaintiff as Patterson’s broker. He found a purchaser, and that purchaser was W. W. Harding, a perfectly responsible person, but through fear of competition, should his name appear in the transaction, the negotiation, so far as Patterson was concerned, was conducted in the name of Thomas Natt, Harding’s clerk. The latter was to be the ostensible buyer, Harding to advance the hand rnonej', and take an assignment of the deed after it had been executed by Patterson. The plaintiff himself testifies; “ I had nothing to do with Mr. Natt until the agreement was produced. Then Mr. Harding said Mr. Natt would represent him, for special reasons, in signing.” Now, it is hard to conceive why the name of Harding, the real vendee, should have been concealed from Patterson, unless the intention was to subserve the purposes of the former. It is urged, that whether the sale was made in the name of. a real or fictitious purchaser, it could make no difference to the seller; in either case he would get his hand money, and though admittedly the bonds, in the latter event, would be worthless, yet as the property itself was sufficiently valuable to secure the payment of the mortgage, the bonds were of no consequence. This argument, if such it may be called, is met by the pertinent inquiry; by what authority did the agent in this matter assume to judge for his principal? It does not require the discernment of a very acute casuist to perceive that it was Pratt’s duty to submit this whole matter to Patterson and allow him to determine whether he would prefer as a purchaser the responsible or irresponsible party; whether he would, accept the bonds and mortgage of Natt rather than those of Harding. Good faith forbade the concealment of an arrangement intended for the advantage of the buyer rather than that of the seller. But passing this; when we come to that part of the transaction, in which, at the instance of Harding, the plaintiff carried to Patterson a bid "of. one hundred and thirty-five thousand dollars for the property, when, in fact, he, -the plaintiff, and Harding had, as between themselves closed the sale at one hundred and forty thousand dollars, we can no longer regard Pratt as the agent of Patterson. The learned and ingenious counsel for the plaintiff has endeavored to excuse and palliate the conduct of his client, but excuses and palliations cannot alter plain and obvious facts, or modify fixed rules of law. This conduct can only be excused on the ground of ignorance, and ignorance which caused him unwittingly, perhaps, to seem willing to tamper with the interests of his principal, in favor of the person with whom, as a professed agent of that principal, he was dealing. But not the less, had Patterson, on the discovery of this.fact, the right to dissolve, as he did, the relation between himself and Pratt, and treat the whole transaction as fraudulent and void. The judgment is affirmed.

Opinion by Rhodes, P. J., Appellant was indicted and tried on the charge of aggravated assault and battery in the Court of Quarter Sessions of Mercer County. He was convicted of assault and battery. A motion for a new trial was re fused, and defendant was sentenced to pay the costs of prosecution and a fine of $200, and to undergo imprisonment in the Mercer County Jail for a period of not less than thirty days and not more than ninety days. A supersedeas was granted by the court below. The bill of indictment charged aggravated assault and battery upon one Arthur I-Iicks on December 19, 1955, by the defendant, Walter Phillips. It was permissible for the jury to convict defendant of assault and battery (Act of June 24, 1939, P. L. 872, §708, 18 PS §4708) under this indictment. Com. v. Bergdoll, 55 Pa. Superior Ct. 186. The sufficiency of the evidence to sustain the conviction of defendant is not questioned. Defendant contends that certain trial errors require a new trial. It appears that the prosecution of defendant arose out of an incident occurring on December 19, 1955, near the plant of the Westinghouse Electric Corporation at Sharon. A strike was then in progress. On that evening, about 8 p.m., Arthur Hicks, after completing his work for the day at the plant, was entering a bus which was waiting at a point across the street from the plant entrance. As Hicks boarded the bus, with his back to the door, he was struck on the back of the neck and head, his arms were pinned to his side, and he was dragged backward to the sidewalk. While this was taking place he was beaten and kicked. After getting back on his feet, while his arms were still pinned to his side, he heard the defendant shout, “Drag him off and get the driver and we’ll have the bus.” While Hicks was unable to defend himself, defendant struck him in the face and broke his glasses. Defendant also hit Hicks across the nose which caused lacerations and contusions. Hicks was pulled back into the bus by two of the occupants; the bus then proceeded. Defendant has presented five questions on this appeal; they relate to alleged trial errors. One was not raised in the court below; two pertain to remarks of the trial judge, another to the ruling of the trial judge on the relevancy of certain evidence, the last to certain alleged after-discovered evidence. In the cross-examination of Hicks, defense counsel asked a series of questions concerning the different shifts he had worked prior to the incident. Defense counsel asked: “Q. That’s what I am trying to find out, did you always work the midnight shift? A. Well, no.” The district attorney objected on the ground it was irrelevant, and the trial judge stated: “The objection is sustained. Do you take the position, Mr. Marks [defense counsel], that if a person is working irregularly he would be beat up but if he is working regularly he can’t be beat up.” To this, defense counsel answered: “No, I don’t think he ought to be beat up any time.” The trial judge concluded: “Well, then, let’s get to the assault and battery case.” Whether the question was proper cross-examination on the issue of credibility is not raised. Defendant complains only that the remark of the trial judge was improper and prejudicial. The role of a trial judge should be one of impartiality; as such he should refrain from any conduct or comment which indicates favor or condemnation. Com, v. Myma, 278 Pa. 505, 508, 123 A. 486. An unjudicial. remark or ill chosen language, provoked or unprovoked, should be avoided. Com. v. Stallone, 281 Pa. 41, 43, 126 A. 56; DiBona v. Philadelphia Transportation Company, 356 Pa. 204, 216, 51 A. 2d 768. When a trial judge rules upon an objection he may properly explain the basis for his ruling. The opinion of the court below states that this remark was a casual one, and that it was made to illustrate and explain the ruling on the objection. Assuming that it may indicate something more than a mere explanation of the ruling, whether it necessitates a new trial is another matter. Every unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Com. v. Hales, 384 Pa. 153, 154, 119 A. 2d 520; Com. v. Stallone, supra, 281 Pa. 41, 44, 126 A. 56; Com. v. Savor, 180 Pa. Superior Ct. 469, 119 A. 2d 849, affirmed in 386 Pa. 523, 126 A. 2d 444; Com. v. Meyers, 290 Pa. 573, 581, 139 A. 374. For instance, the trial judge may not belittle or ridicule a party or his counsel or his case. Bloom v. Hopman, 173 Pa. Superior Ct. 292, 295, 98 A. 2d 414; Com. v. Stallone, supra, 281 Pa. 41, 43, 126 A. 56. It must be determined from all the circumstances whether a remark has a prejudicial effect; there is no fixed rule applicable to every case. An accepted guide in determining prejudicial effect is that, if the remark may be said with fair assurance to have had but a slight effect upon the jury, if any at all, and one is not left in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair trial. Com. v. Blose, 160 Pa. Superior Ct. 165, 170, 50 A. 2d 742; Com. v. Savor, supra, 180 Pa. Superior Ct. 469, 473, 119 A. 2d 849; Kotteakos v. United States, 328 U. S. 750, 764, 765, 66 S. Ct. 1239, 90 L. Ed. 1557, 1566. We are convinced that this remark •had no more than a minimal effect, if any, upon the outcome of the case. It was not of sufficient substance to characterize it as belittling or.to conclude that it had any adverse influence upon the jury. We feel that it should not have been said, but it does not constitute reversible error especially where the verdict was fully justified. It was applicably said in Com. v. Linkowski, 363 Pa. 420, 424, 70 A. 2d 278, 280: “Mere error in the abstract is not sufficient to warrant a retrial, and where the conclusion is inescapable that the error did not influence the jury against the accused, or deprive him of his legal right to a fair trial, a new trial will not be granted.” That the jury gave independent thought and careful consideration to the case is indicated by the fact that they returned a verdict of guilty of simple assault and battery although the defendant was charged with and tried for aggravated assault and battery. The second judicial utterance of which defendant complained occurred in the course of the summation to the jury by defense counsel. The record does not contain the statement which counsel made in his closing address, but apparently it did include a reference to. the betrayal of Christ by Judas as a historical precedent for Hicks’ returning to work during a strike. The district attorney objected, whereupon the following colloquy took place: “The Court: We have tried diligently to avoid the type of bias which you are trying to arouse. We ask you in all fairness to confine your discussion •to the issues in the case. Mr. Marks: Except that I do believe the picture is here. The Court: When you are trying to arouse the jurors’ minds, even on the very Eve of Easter by referring to Judas betraying our Lord, it is improper; when you refer to union against non-union. The question here is aggravated assault and battery and we submit that is the only interest that we can try in this case.” Defense counsel moved that the remarks of the trial judge be put upon the record, and for the withdrawal of a juror. The former motion was granted; the latter was refused. The trial judge then said: “That motion is overruled and refused. Now, please confine your remarks to the legitimate function of an attorney in arguing a criminal case. Thank you.” There is no doubt that, in the course of argument to the jury, counsel may use illustrations from history or literature or any other stock of common knowledge if such illustrations are appropriate to the case. Com. v. Brown, 309 Pa. 515, 522, 164 A. 726. The reference to Judas had no proper place in this trial; it was in furtherance of defense attempts to create an issue of union against non-union and to inject an irrelevant matter. The only purpose of the reference to Judas, under the circumstances, was to arouse prejudice and passion against Hicks. This was highly improper and the remark of the trial judge was invited by the argument of counsel. See Com. v. Grosso, 169 Pa. Superior Ct. 606, 611, 84 A. 2d 239. A trial judge is not required to remain mute when counsel speaks of irrelevant and prejudicial matters. See Com. v. Kauffman, 155 Pa. Superior Ct. 347, 354, 38 A. 2d 425. Counsel may properly be admonished on such occasions without nullifying the en tire trial as long as the trial judge does not display-partiality or prejudice by his conduct, manner of speech, or choice of language. See Com. v. Stallone, supra, 281 Pa. 41, 43, 44, 126 A. 56; DiBona v. Philadelphia Transportation Company, supra, 356 Pa. 204, 216, 51 A. 2d 768. The trial judge in this instance exercised restraint in requesting counsel to devote himself to the issue in the case. “The trial judge may, and should, confine arguments within the limitations of legitimate advocacy.” Com. v. Holley, 358 Pa. 296, 301, 56 A. 2d 546, 549. No prejudice or partiality was indicated or resulted. There was merely a correction of counsel by the trial judge, and it was warranted by the circumstances. The trial judge spoke in a manner in conformity with the proper decorum of the courtroom. Defendant next contends that the trial judge erred in excluding certain evidence offered in defense. Defendant called one Andrew P. Chaleo as a witness for the purpose of testifying that on December 9, 1955, ten days prior to the assault and battery, a superintendent of the Westinghouse plant had instructed a group of workers to carry steel bars and other weapons for the protection of themselves and their property; that he told the workers the company did not want to break the union, but that it did want to put the union officials in jail and break the strike, and that it was going to do this by catching them breaking the injunction. This testimony was offered for the ostensible purpose of showing that Hicks was the aggressor in the altercation with defendant. The district attorney objected to the offer, and the objection was properly sustained. The proffered testimony was clearly irrelevant to the charge of aggravated assault and battery. As to whether Hicks was the aggressor, it would be improper to admit testimony of this nature without further evidence that he accepted the suggestion or that he acted in pursuance thereof. To show that Hicks was the aggressor, evidence of what occurred at the time of the assault and battery would be relevant. But some nebulous statement made previously to him and others does not in itself tend to establish what Hicks actually did on the occasion of the assault and battery. Whatever the desires of the company superintendent may have been, there was nothing in the offer except conjecture and suspicion to connect them with the conduct of Hicks. The fact that the assault and battery grew out of the strike does not make it any the less a crime and consequently a matter of concern to the public as a whole. The merits of the strike and the related incidents were not involved in this trial. Any attempt to inject the labor dispute into it was inexcusable. Finally, defendant argues that he should be granted a new trial because of after-discovered evidence. At the trial the defense was that, when defendant approached the bus, someone squirted liquid into his eyes and he was thus incapacitated during the attack upon Hicks. Apparently the liquid came from a squirt gun and was innocuous. Defendant related this incident, and he was corroborated in this respect by four witnesses. Even Hicks mentioned an incident concerning a gun. It appears that three months after the trial defendant obtained an affidavit from one Harold L. Marstellar. The Marstellar affidavit indicated that a John Anderson had exhibited to Marstellar, on several occasions, a squirt gun which Anderson supposedly admitted using to squirt the liquid into the eyes of de fendant on this occasion. Anderson, when approached, refused to make any affidavit. Defendant believes that these subsequent developments are such after-discovered evidence as to warrant a new trial. “A new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted: Commonwealth v. Moskovitz, 142 Pa. Superior Ct. 325, 326, 16 A. 2d 317.” Com. v. Hanes, 162 Pa. Superior Ct. 206, 209, 57 A. 2d 165, 166. The purported after-discovered evidence fails to meet the second and fourth requirements. Moreover, the jury had ample evidence before it, including the testimony of the witness Hicks, concerning the possession by someone of a gun or squirt gun. To grant a new trial on the strength of this affidavit would merely give another jury an opportunity to pass upon the same question and the same evidence. It is hornbook law that Marstellar could not testify to what Anderson may have told him. And Anderson apparently would not so testify since he refused to make an affidavit in support of the allegation. At most the Marstellar testimony could be used only to attack the credibility of Anderson if the latter should deny the incident at a new trial. The proposed Marstellar testimony is not even “evidence.” Com. ex rel. Riccio v. Dilworth, 179 Pa. Superior Ct. 64, 69, 115 A. 2d 865. If Anderson would testify that he squirted liquid into defendant’s face, it would be merely cumulative and, considered with the other evidence produced at the trial, would not require a different verdict if a new trial should be directed. A primary function of an appellate court is to determine whether a defendant has had a fair trial. A defendant should not benefit in arriving at that determination by any attempt in his behalf to confuse or obscure the issue. It was not without difficulty that the trial judge kept the single issue before the jury without having it unduly clouded by extraneous and irrelevant excursions into company and union relationship. We find no such error in the trial of this defendant that requires a reversal of the conviction for assault and battery. The judgment of sentence is affirmed, and the record is remitted to the court below; and it is ordered that defendant appear in the court below at such time as he may there be called, and that he be by that court committed until he has complied with the sentence, or any part thereof which had not been performed at the time the appeal was made a supersedeas. Act of June 24, 1939, P. L. 872, §709, 18 PS §4709. Tlie defendant contends that the trial judge erred in allowing the district attorney to cross-examine a defense witness along certain lines. This matter, although objected to at the trial, was not raised in the motion for new trial in the court below. It will not be reviewed. com. v. Pittman, 179 Pa. Superior Ct. 645, 647, 118 A. 2d 214; Sherwood v. Elgart, 383 Pa. 110, 115, 117 A. 2d 899. It would have been well if the words of counsel, as the trial judge heard and understood them, had been placed on the record also. See Com. v. Drischler, 175 Pa. Superior Ct. 74, 77, 103 A. 2d 467. “Mr. Marks: Will that be included in my motion? “Tbe Court: Please put everything on the record that the Court has said.” A remark by a trial judge must be considered in connection with its context in determining whether it constituted prejudicial and reversible error. Com. v. Cannon, 386 Pa. 62, 69, 123 A. 2d 675.

Opinion by Ervin, J., This is an appeal by George C. C. Stout from an order of suspensión of his license to operate a motor vehicle. The Secretary of Revenue suspended the license for a period of five months, after hearing, in accordance with §618(e) of The Vehicle Code of 1959, P. L. 58, 75 PS §618(e), which is as follows: “The secretary is hereby authorized after a hearing before the secretary or his representative, or upon failure of the said person to appear at such hearing, to suspend the operator’s license or learner’s permit of any person licensed in this Commonwealth, upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in this Commonwealth, would be grounds for the suspension or revocation of the license of an operator.” An appeal was taken by the appellant to the Court of Common Pleas No. 5 of Philadelphia County and, after hearing, that court dismissed the appeal and sustained the order of suspension as entered by the Secretary of Revenue. Counsel for appellant first argues that the notice of conviction was improperly admitted into evidence by the court below. This contention is made because the magistrate’s report contained no signature of a New Jersey official. The document was a printed form which contained the following: “New Jersey Division oe Motor Vehicles Magistrate’s Report—Disposition oe Traeeic Violation”. It contains information which indicates that George Stout of 1617 Filbert Street, Philadelphia, Pennsylvania, was arrested by State Policeman G. W. Dix on October 16, 1960 at 10:17 a.m. on U. S. Route 322 in the Township of Hamilton, for operating a motor vehicle at 62 miles per hour in a 50 miles per hour zone. It further gives the date of birth of George Stout as 11-92 and his driver license number as 4770461, Pa. It further indicates that he was driving a passenger type vehicle and that the Pennsylvania registration number was 756FH. It gives the summons number of A318112 and indicates that there was a plea of guilty on December 9, 1960 and a fine of $11.00 paid. It gives the name of the court as Hamilton Township and the name of the judge as Milton J. Schusler, and the post office address is Mays Landing, New Jersey, Atlantic County. The document was not signed by any New Jersey state officer except that the name of the judge was typewritten thereon. It is true that in the case of Com. v. Gross, 193 Pa. Superior Ct. 46, 49, 163 A. 2d 682, it was said by Judge Woodside: “It is not necessary that each of the forms be signed. It is sufficient that the letter which refers to the other documents contains the signature of the New Jersey official.” In Witsch Motor Vehicle Operator License Case, 194 Pa. Superior Ct. 384, 387, 168 A. 2d 772, Judge Woodside, speaking for our Court, said: “At the hearing, the Commonwealth introduced into evidence, as an exhibit, the notice of conviction which it had received. This exhibit consisted of two printed forms, one an arrest report by a policeman and the other a conviction report by a magistrate. These documents indicate that John Frederick Witsch, of 1209 Wake-field Road, Doylestown, Pennsylvania, was arrested for speeding at 65 miles per hour in a 45 mile per hour speed limit zone at 4:55 A.M. on December 10, 1959, at a specific location in the State of Delaware, and that he pleaded guilty before Magistrate Frank J. Corello, Jr. and was fined $35, which he paid along with $4.50 costs. The one document was designated by its printed form as a Traffic Arrest Report, Delaware Memorial Bridge Police. The other document indicates that it is a report designed to be made to tbe Motor Vehicle Commission, Dover, Delaware, by tbe court (in this case a magistrate), and is identifiable as tbe disposition of tbe particular arrest by tbe corresponding number with tbe arrest report, tbe name and address of tbe person arrested, tbe arresting officer and tbe trial date. These two papers are stamped on tbe back ‘Received Dec. 15,1959, Driv. Imp. Div.’ “Tbe two documents constitute sufficient ‘notice of tbe conviction of [tbe appellee] in another state of an offense therein, which, if committed in this Commonwealth, would be grounds for suspension.’ It is an official notice in that it is tbe report of tbe magistrate who imposed tbe fine and tbe policeman who made tbe arrest.” In tbe Witsch case Judge Woodside also pointed out that tbe legislature required only a notice of conviction from the other state. We now add that there was no requirement that this notice be in any particular form nor that it be certified or signed by any officer of tbe other state. Tbe court below found that “On December 9, 1960, the Pennsylvania Department of Revenue received a report of conviction of tbe appellant for speeding from Ned J. Parsekian, Acting Director of tbe New Jersey Department of Motor Vehicles, which report was not signed by any New Jersey official.” This finding was based upon a certificate of tbe Secretary of Revenue and under tbe seal of that department, stating that the report was received from Ned J. Parsekian, Acting Director, Department of Motor Vehicles, Trenton, New Jersey. Section 1224 of Tbe Vehicle Code, 75 PS §1224, provides as follows: “Any certified copies, or certified pbotostatic copies, of any records, books, papers, documents, and rulings of tbe secretary, when certified under tbe seal of tbe department by its duly authorized agent, shall be acceptable as evidence in the courts of this Commonwealth with the same force and effect as the originals, in all cases where such original records, books, papers, documents, and rulings would be admitted in evidence.” This evidence was sufficient to justify the finding of the court below that a notice of conviction had been received from the New Jersey Division of Motor Vehicles. Counsel for appellant also argues that the Secretary of Revenue had no authority to promulgate a schedule of penalties to be imposed upon violators of The Vehicle Code. It is true that in Witsch Motor Vehicle Operator License Case, supra, at page 386, Judge Wood-side said: “Evidence of the circumstances of the violation is admissible before the secretary to aid him in determining the length of the suspension.” The portion of the schedule of penalties applicable to speed is as follows: It is argued that the secretary failed to exercise any discretion in relation to the facts and circumstances of this particular violation. It will be noticed that the above regulation does not apply the same penalty for all speeding violations. On the contrary, it takes into consideration the various speeds in excess of the legal limit and also the number of violations for prior offenses within a three-year period. It seems to us that a wide discretion is exercised by the secretary under the above schedule, which covers a great number of circumstances related to the various violations set forth therein. From a justice standpoint it is much better to have uniformity than a great variety of penalties applicable to cases involving the same set of circumstances. Such a schedule will prevent favoritism and will cause all violators to be treated alike. This will promote respect for law enforcement. It must be noted that the legislature did not specifically provide any periods of suspension but permitted the secretary to exercise his discretion. We believe that he has exercised a wise discretion in promulgating the schedule of penalties above referred to. In Anen Motor Vehicle Operator License Case, 194 Pa. Superior Ct. 379, 169 A. 2d 600, we said: “A schedule of the periods of suspensions was adopted by the Secretary and filed in the office of the Department of State according to the provisions of §21 of the Administrative Agency Law of June 4, 1945, P. L. 1388, 71 P.S. §1710-21.” We are not impressed by the argument that the schedule is not a regulation. Under the Administrative Agency Law, 71 PS §1710.2(e), it is provided: “(e) 'Regulation’ means any rule, regulation or order in the nature of a rule or regulation, of general application and future effect, promulgated by an agency under statutory authority in the administration of any statute administered by or relating to the agency, or prescribing the practice or procedure before such agency.” Agency, under the definitions of the Administra tive Agency Law, includes a department, such as the Department of Revenue. Counsel for appellant also argues that there was no “conviction” in New Jersey of an offense which, if committed in Pennsylvania, would have been grounds for suspension of appellant’s operator’s license. He contends that because he did not appear at a hearing in that state, there was no conviction. He admitted, however, in Ms testimony that he turned in his arrest ticket and paid a fine to the Clerk of the Court, his check having been drawn to the order of Milton J. Schusler, Mun. Magistrate. On cross-examination he admitted that he did this rather than to go to the trouble and expense of a hearing. In Com. v. Halteman, 192 Pa. Superior Ct. 379, 162 A. 2d 251, we held that where the appellant admitted he paid a fine, that constituted an admission of conviction. The payment of the fine and costs is tantamount to an admission of conviction: Hall Motor Vehicle Operator License Case, 196 Pa. Superior Ct. 346, 175 A. 2d 534. It has been held in numerous states that a forfeiture of bail is equivalent to a conviction: Fox v. Scheidt (N.C.), 84 S.E. 2d 259; Lamb v. Butler (Va.), 95 S.E. 2d 239; Lamb v. Smith (Va.), 195 Va. 1053, 81 S.E. 2d 768; Application of Fink, 205 N.Y.S. 2d 256. The payment of the fine and costs amounted to a waiver of a hearing and a plea of guilty. The record in this case reveals that the appellant had numerous arrests and convictions for speeding and traffic violations between February 1, 1958 and the time of his hearing. The penalty imposed in the present case was a lenient one. Order affirmed.

The opinion of the court was delivered, by Sharswood, J. — There are two principles applicable to all partnerships or associations for a common purpose of trade or business, which appear to be well settled on reason and authority. The first is, that any man or number of men, who are the. owners of any kind of property, real of personal, may form a partnership or association with others, and sell that property to the association at any price which may be agreed upon between them, no matter what it may have originally cost, provided there be no fraudulent misrepresentation made by the vendors to their associates. They are not bound to, disclose the profit which they may realize by the transaction. They were in no sense agents or trustees in the original purchase, and it follows, that there is no confidential relation between the parties, which affects them with any trust. It is like any other case of vendor and vendee'. They deal at arms length. Their partners are in no better position than strangers. They must exercise their own judgment as to the value of what they buy. As it is succinctly and well stated in Foss v. Harbottle, 2 Hare 489, “ A party may have a clear right to say, I begin the transaction at this time. I have purchased land, no matter how or from whom, or at what price. I am willing to sell it at a certain price for a given purpose.” This principle was recognised and applied by this court in the recent case of McElhenny’s Administrators v. The Hubert Oil Co., decided May 11th 1869 (11 P. E. Smith 188). “It nowhere appears,” said the present Chief Justice, “that McElhenny, the purchaser from Hubert, the original owner, did it as the agent of Messrs. Baird, Boyd & Co. and others, though he bought it to sell again, no doubt; he had a perfect right, therefore, to deal with them at arms’ length, as it seems he did.” And again: “If the property was not purchased by McElhenny for the use, and as agent for the company, hut for his own use, he might sell it at a profit, most assuredly. No subsequent purchasers from his vendees would have any right to call upon him to account for the profits made on his sale.” In that case, McElhenny, being the owner of property which had cost him only $4000, sold it to Baird, Boyd & Co., and others, who associated with him to form an oil company for $12,000, and it was decided that the company could not call him in equity, to account for the profit he had made. The second principle is, that where persons form such an association, or begin or start the project of one, from that time they do stand in a confidential relation to each other, and to all others who may subsequently become members or subscribers, and it is not competent for any of them to purchase property for the purposes of such a company, and then sell it at an advance without a full disclosure of the facts. They must account to the company for the profit, because it legitimately is theirs. It is a familiar principle of the law of partnership, one partner cannot buy and sell to the partnership at a profit; nor if a partnership is in contemplation merely, can he purchase with a view to a future sale, without accounting for the profit. Within the scope of the partnership business, each associate is the general agent of the others, and he cannot divest himself of that character without their knowledge and consent. This is the principle of Hichens v. Congrove, 4 Russ. 562, Fawcett v. Whitehouse, 1 Russ. & M. 132, and the other cases which have been relied on by the appellants. It was recognised in McElhenny’s Admin’rs. v. The Hubert Oil Co., just cited; and also in Simons v. The Vulcan Oil Co., decided by this court, May 11th, 1869 (11 P. F. Smith 202). Both of these cases were complicated with evidence of actual misrepresentations as to the original cost of the property to the vendors. f In the opinion of the court in the last case, delivered by Thompson, C. J., it is said: “ If the defendants in fact, acted as the agents of the company in acquiring the property, they could not charge a profit as against their principal. Nor was their position any better if they assumed so to act without precedent authority, if their doings were accepted as the acts of agents by the association or company. If, in order to get up a company, they represented themselves as having acted for the association to be formed, and proposed to sell at the same prices they paid, and their purchases were taken on these representations, and stockholders invested in a reliance upon them, it would be a fraud on the company, and all those interested, to allow them to retain the large profits paid them by the company in ignorance of the true sums actually advanced.” The defendants in that case were subscribers with others, to the stock of a projected oil company, and after the plan had been formed, secured to themselves by contract, the refusal of the property which they afterwards sold to the company at a greatly advanced price. The question now presented is, under which of these two principles is the present case to be classified. That will depend upon the facts, which, though the testimony is somewhat voluminous, may be briefly stated. Densmore, Roudebush and Canfield, three of the defendants, were the owners of certain lands, leases and rights, in Venango county, in the oil region. They had acquired them, so far as appears, with no idea of disposing of them, or of forming a company, but had spent over $100,000 in improving and developing them while they were owners. In March, 1864, they came to Philadelphia to ascertain whether they could be sold to advantage. They called upon Mr. Lawrence, another of the defendants, and consulted him as to the best mode of effecting this object. They stated that they were willing to accept $202,000, provided that sum could be procured clear of all expenses. That seemed impossible, unless by naming a price so much beyond that sum as would cover all such probable expenses and contingencies. The only mode by which so large an amount could be realized, was by the organization of a stock company, and to do that effectively persons must be employed as agents to sell or solicit subscription to the stock; and they must be gentlemen of character and influence, well acquainted with the subject, who could bring the land to the notice of those desirous of engaging in such an enterprise. The amount to be raised was large; the result uncertain. Several agents must be employed, and their compensation must be at a liberal rate. It was arranged that the price should be fixed at $250,000; that the stock should be 50,000 shares at $10 a share, and $5 to be paid in cash. Mr. Densmore and his associates agreed to take $122,500 in money, and the balance in stock, and that from this stock they would compensate the agents for their services. Mr. Densmore, who was examined as a witness on behalf of the appellants, testified: “ The $122,500 was the proceeds of the sale of 24,500 shares. That added to the 16,000 shares we were to get, amounted to 40,500 shares. The arrangement as I understood it was, that Messrs. Lawrence, Hugel, Wat son, and perhaps parties unknown to me, were to receive the balance of the stock for their services in forming the company, and disposing of the stock.” The gentlemen named were accordingly engaged for this purpose. They procéeded and did sell the 24,500 shares in order to make the cash payment. There was no subscription paper. Mr. Lawrence and his associates did not subscribe for any stock. They did not appear, and were not held out as subscribers to those who made purchases from them. It is true, ¡that after the company was organized, the stock which they were to receive from Densmore, Roudebush and Canfield, as a compensation for their services, was issued to them directly — not to the vendors, and by them transferred. But this was done by a special order, as is satisfactorily explained in the testimony of S. B. Schneider: “I heard Mr. Densmore request Mr. Lawrence to have the Densmore stock, which he (Mr. Lawrence), Watson, IIugel and Whitney, were entitled to, issued direct to themselves, as he might not be here when the certificates would be ready.” It has not been, and cannot be controverted, that the stock which they received was part of that, which under the original terms of sale, Densmore, Roudebush and Canfield, were to have in payment of the purchase-money. Now it can hardly be questioned, and indeed, apart from their alleged liability as confederates with the other defendants, it has not been questioned, that Densmore, Roudebush and Canfield, fall within the first principle hereinbefore stated. They had, for a considerable time, been the owners of the property, had acquired it with no reference to the formation of this or any other company, and had improved and developed it by a very large outlay of their own capital. They had a clear and undoubted right to put their own price upon it in the formation of a company, in which they were to be partners or associates. They did put upon it the price of $250,000, which it is admitted at the rates at which such property was then selling in the market, was a fair and reasonable, nay, even a low price. “ From my knowledge of mining properties in the oil region at the time,” said N. B. Browne, Esq., in his testimony, “ and especially of the leasehold and other interests conveyed to this company, I regarded their interests at the price named, $250,000, as cheaper than any that were offered in this market. Their actual productive value was very great; the leases were on what was regarded as the best territory on Oil Creek.” Had Messrs. Densmore, Roudebush and Canfield, employed no agents, but sold all the stock themselves, the transaction as to them could not have been impeached. They certainly stood in no confidential relation to the subscribers or purchasers of the stock in the future, when they acquired the property. This is necessary, as we have seen. A company or partnership must have been then formed or forming, or át least the project must have been started, in order that a.ny confidential relation should arise. How then is their position varied by the fact that they employed agents and agreed to compensate these agents by a transfer of a certain part of the stock they were to receive ? It is not easy to see. The whole $250,000, money and stock, when received, was their own absolute property: they could give or transfer it to whomsoever they pleased. If, as we have seen, they stood in no confidential relation to the company, no trust could attach to the price or any part of it in their hands. We may .discuss, therefore, the-case of Messrs. Densmore, Roudebush and Canfield, as clearly within the first principle to which we have before adverted. But what confidential relation did the other defendants sustain to the purchasers of the stock or to the company ? It is a clear and unquestionable fact in the cause that they did not subscribe for a single share. Their contract was with Densmore, Roudebush and Canfield, to receive from them a part of their stock. Without an order from them, Mr. Lawrence and the others could not have compelled the company to issue any of it to them. If Densmore, Roudebush and Canfield, had received all the certificates to which they were entitled, and then réfused to transfer, the only remedy of Messrs. Lawrence and others, would have been against them to recover damages for violation of their contract. It is clearly proved that the paper among the exhibits headed “ Subscription List to the Densmore Oil Company,” was made out by Mr. Lawrence after the organization as a list of those to whom certificates of stock were to be issued. The names of Lawrence, Whitney, Watson, and Hugel, appeared on that list, but clearly only as appointees or assignees of Densmore, Roudebush, and Canfield. The same appointment or order might have been given by them to mere strangers. It is strenuously contended, however, that if these defendants did not stand in a confidential relation to the purchasers of stock, then there was nobody who stood in that relation. But is there anything extraordinary in that ? Nine-tenths of the transactions and contracts of life are at arms’ length. If a man buys stock in the market of a broker, there is nobody who stands in any fiduciary relation to him. He acts on his own judgment He is bound to pay the broker the price agreed, and the broker is bound when paid to deliver him the stock. This was the only relation in which Lawrence, Whitney, Hugel and Watson stood to those who bought stock from them, and who according to all the testimony in the cause, so understood it. They supposed, as they state, that these gentlemen were to receive compensation for their services. What it was to be they did not inquire, because it was none of their business. A strong effort, however, has been made, to show that these defendants, Lawrence, Whitney, Watson and Hugel, were purchasers from Densmore, Roudebush and Canfield, of an interest in the property, and sold it at an advance. But of this there is not a spark of evidence. It can hardly be pretended that Dens-more, Roudebush and Canfield, could have held them liable on a contract to purchase any interest in the land, or that the agents could in any event have sued them for not conveying to them such interest. If this was so, how can it be contended that they were vendors of any part of the property to the company ? Densmore, Roudebush and Canfield were first and last the only vendors. They executed the deed, and very properly receipted for the whole of the purchase-money, for they were entitled to the whole of it. Nor is the fact that Lawrence, Whitney, Watson and Hugel, joined with Densmore, Roudebush and Canfield, as original corporators, and signed the articles for the organization of the company, under the Act of July 18th, 1863 (Pamph L. 1864, p. 1102), a fact of any signifieancy. That act does not require that the corporators should be subscribers to stock. They need have no interest whatever in the company to be formed. They are mere instruments of the law for purposes of preliminary organization. The moment that is accomplished, the amount required as capital paid in, the necessary certificate signed, and the charter granted, they are funeti officio. The corporation is thenceforth composed of the stockholders. It is supposed that the cases of McElhenny’s Administrators v. The Hubert Oil Co., and Simons v. The Vulcan Oil Co., before referred to, ought to rule this cause. But an examination of the opinions in those cases will show that the facts upon which they were decided, were entirely different from those which appear on this record. The defendants there were subscribers to the stock; they became purchasers of the property after the project of a company was started, and moreover, falsely represented that they had purchased it at the same price at which they sold. These facts, which were the grounds upon which those determinations were based, aré not, as we have seen, the facts of this case. It is not pretended that any false representation was made by any of these defendants in the sale of the stock. Some other points have been raised, which are, however, sufficiently disposed of in the opinion below. Decree affirmed and appeal dismissed at the costs of the appellants.

Keller, P. J., Opinion by This petition for a writ of habeas corpus questions the constitutionality of the Act of June 25, 1937, P. L. 2093, entitled “An act defining the method of computing the aggregate minimum and maximum limits of consecutive sentences imposed upon persons convicted of crime”, the body of which is contained in the margin. We deemed it of sufficient importance to require an oral argument and requested the Attorney General to send a representative of the Department of Justice to present his views at the argument. Argument was restricted to the following matters: (1) The constitutionality of the Act of June 25, 1937, supra. (2) The effect, if any, of the Act on Section 3 of the Criminal Code of 1860, P. L. 382, and the corresponding provision (section 309) of the Criminal Code of 1939, P. L. 872, making prison breach or escape a misdemeanor and fixing the penalty. The facts, which are not in dispute, may be stated as follows: On August 23, 1938 tlie relator was sentenced in the Court of Quarter Sessions of Washington County (May Sessions 1938, Nos. 175 and 177) to serve two valid consecutive sentences of imprisonment in the Western State Penitentiary, to be computed from the date of his commitment'to prison, May 6, 1938, as follows: The first, for not less than one and one-half years nor more than three years; the second, for not less than one year nor more than three years, to begin at the expiration of the first sentence. He was forthwith committed to the Western Penitentiary, where in intended compliance with the provisions of the Act of 1937, supra, the sentences were recorded as one sentence of not less than two and one-half years nor more than six years. On October 21, 1938 he was transferred to the Rockview branch of the Western Penitentiary, and on December 8, 1938 escaped therefrom. He was recaptured six days later. On December 15, 1938 he pleaded guilty in the Court of Quarter Sessions of Centre County (February Sessions 1939, No. 6) to the charge of prison escape and was sentenced to the Western Penitentiary for a term of not less than two and one-half years nor more than six years, to begin at the expiration of the sentences in Washington County. Unless affected by the Act of 1937, this sentence was more than was authorized by law for prison escape, for the original sentence which relator was serving when he escaped was from one and one-half years to three years, and that should have been the measure of his sentence for the escape: Com. ex rel. McGinnis v. Ashe, 330 Pa. 289, 199 A. 185. (1) It is clear that the purpose of the Act of 1937 was to furnish the legislative authority for the computing together, for purposes of parole, of consecutive sentences of imprisonment, which it was pointed out in Com. ex rel. Lynch v. Ashe, 320 Pa. 341, 344, 182 A. 229, was necessary before such a course could be applied by the prison authorities in relation to the parole of prisoners. It is within the province of the legislature to pronounce what acts, in addition to those recognized at common law, are crimes, and to fix the punishment for all crimes, whether statutory or common law. The legislature has the right to classify crimes, and designate the procedure at trial or after sentence; it may fix the maximum penalty and likewise can, if it sees fit, name the minimum. The necessity or wisdom of its action is a question for its determination, and in so doing it does not violate Art. V, sec. 1 of the Constitution vesting the judicial power in the courts: Com. v. Sweeney, 281 Pa. 550, 559, 127 A. 226; Com. ex rel. Bates v. McKenty, 52 Superior Ct. 332, 338-339; Com. v. Kalck, 239 Pa. 533, 537, 538, 87 A. 61. Nor are our statutes authorizing the parole of prisoners at the expiration of their minimum sentences, violative of the constitutional provision conferring on the Governor the power to grant pardons and commute sentences, only upon the recommendation of the Board of Pardons (Art. IV, sec. 9); Com. v. Sweeney, supra; Com. ex rel. Bates v. McKenty, supra; Com. v. Kalck, supra. The prison authorities can only recommend to the Governor that the sentences be commuted, (sec. 9 of Act of June 19, 1911, P. L. 1055); and the Act of 1937 in nowise affects this. It must be remembered that the maximum sentence imposed is the legal and valid sentence, if within the limit prescribed by the legislature, and the minimum sentence is “merely an administrative notice by the court to the executive department, calling attention to the legislative policy that when a man’s so-called minimum sentence is about to expire, the question of grace and mercy ought to be considered and the propriety of granting a qualified [release] be determined”: Com. v. Kalck, supra, pp. 541, 542. See also 24 C. J. S. p. 204, sec. 1622; Ex parte Parker, 17 S. W. 658, 106 Mo. 551. Our present system of paroling prisoners is based on the Act of June 19, 1911, P. L. 1055. As amended by Act of June 29, 1923, P. L. 975, it has been held constitutional by the Supreme Court in Com. v. Sweeney, 281 Pa. 550, 127 A. 226. As enacted, the Parole Act of June 19, 1911, supra, made no special provision as to the course to be pursued in the paroling of prisoners committed under consecutive sentences imposed at the same time, and the custom was adopted by the prison authorities of adding the minimum sentences together and the maximum sentences together and considering them, for parole purposes, as one lumped minimum and maximum sentence. This was declared unlawful by the Supreme Court in Com. ex rel. Lynch v. Ashe, supra, which held that in order to take advantage of the parole provisions of the Act of 1911, the prisoner must apply for a constructive parole at the expiration of the minimum term of the first sentence, otherwise he would continue serving the balance of his maximum term; but, on the other hand, if he applied for parole at the end of the minimum term of his first sentence and it was allowed, he would then enter upon the minimum term of his second sentence, and while serving it would also be serving the maximum term of his first sentence, thus reducing to that extent the combined maximum terms of his consecutive sentences. For example if a prisoner was sentenced to two consecutive terms of five to ten years each, he could apply for a parole at the end of five years and if allowed he then entered on the minimum term of his second sentence, and at the same time would have the “double status” of serving the balance of the maximum term of his first sentence; and if paroled at the end of the minimum term of his second sentence, he would then he entitled to an absolute discharge, if guilty of no violation of his parole, at the end of five years more, thus reducing his maximum sentences of twenty years to fifteen years: Com. ex rel. Lynch v. Ashe, supra, p. 346; Com. ex rel. Considine v. Ashe, 134 Pa. Superior Ct. 29, 31, 4 A. 2d 229. But the effect of this judicial construction of the operation of the parole provisions of the Act of 1911 was not such that the legislature could not by subsequent enactment change it for the future, so as to provide for the service of the full maximum terms imposed by the consecutive sentences if the convict committed a crime while released on parole. The Act of June 25,1937 is not retroactive. By its own terms it is limited to consecutive sentences imposed “after the effective date of this act”. And as we read the act it applies only to two or more consecutive sentences imposed at the same time by one court. The Act reads “imposed hy any court”, not, “by any courts”. It matters not whether it is acting as a court of quarter sessions or of oyer and terminer, it applies to any court which imposes “two or more sentences to run consecutively ...... upon any person convicted of crime therein”. A subsequent single sentence imposed by another court for prison escape, or for crime committed while the convict is on parole, does not fall within its terms, viz., “whenever, after the effective date of this act, two or more sentences to run consecutively are imposed by any court of this Commonwealth upon any person convicted of crime therein”, that is, convicted in the court that imposed the consecutive sentences. If the prisoner behaves himself well in prison, the Act of June 25, 1937 is advantageous to him, for it permits his parole at the end of the sum of his minimum sentences, without the necessity for prior application for parole. On the other hand, it preserves, pending his parole, the maximum terms of the sentences imposed upon him, so that if he commits a crime while out on such parole, he may be. returned to the penitentiary to serve “the remainder of the term (without commutation) which such convict would have been compelled to serve but for the commutation authorizing said parole” (Sec. 10 of the Act of June 19, 1911, supra). But tills is only in accordance with the original sentences imposed on him, which contemplated that he should serve the maximum terms of his sentences unless his conduct in the penitentiary justified his parole and his conduct on parole was not marred by crime, and does not amount to an increase of those sentences. Mr. Justice Maxey, speaking for the Supreme Court in Com. ex rel. McGinnis v. Ashe, 330 Pa. 289, 290, 199 A. 185, as to the necessity of obtaining authority from the legislature before the prison authorities could lump two or more consecutive sentences for parole purposes, said “Such authority was obtained in 1937, see the Act of June 25, 1937, P. L. 2093, but this Act being subsequent to the prisoner’s escape does not affect the present proceedings.” All of the constitutional objections raised by the learned counsel for the relator are answered by the cases referred to above, Com. v. Sweeney, 281 Pa. 550, 127 A. 226; Com. v. Kalck, 239 Pa. 533; and Com. ex rel. Bates v. McKenty, 52 Pa. Superior Ct. 332. (2) As to the second question for argument, we agree with counsel for relator and the Deputy Attorney General representing the Commonwealth, that the Act of June 25, 1937, P. L. 2093, has no effect on section 3 of the Criminal Code of 1860 or its corresponding section (309) of the Criminal Code of 1939. It is the duty of the prison or penitentiary authorities to enter the sentences on their records just as they are imposed; but for parole and similar purposes, they can compute the aggregate of the sentences so imposed and also enter on their records the total of the minimum and maximum terms of the consecutive sentences so imposed. It follows that, when the relator escaped from the Rockview branch of the Western Penitentiary, as he was serving the first sentence imposed on him in Washington County, his sentence in Centre County for that escape could not exceed one and one-half years to three years (Com. ex rel. McGinnis v. Ashe, supra), to begin at the expiration of his second consecutive sentence: Com. ex rel. Lewis v. Ashe, 335 Pa. 575, 576, 7 A. 2d 296. It will accordingly be reduced from two and one-half to six years, as imposed, to one and one-half to three years, to begin at the expiration of the second consecutive sentence imposed in Washington County. See, in this connection, Warcise v. Eastern State Penitentiary, 137 Pa. Superior Ct. 394, 9 A. 2d 165. Rule discharged in other respects. It is so ordered. — “Section 1. Be it enacted, &c., That whenever, after the effective date of this act, two or more sentences to run consecutively are imposed by any court of this Commonwealth upon any person convicted of crime therein, there shall be deemed to be imposed upon such person a sentence the minimum of which shall he the total of the minimum limits of the several sentences so imposed, and the maximum of which shall he the total of the maximum limits of such sentences. Section 2. This act shall become effective immediately upon its final enactment.” — Prior to the Criminal Code of 1860, P. L. 382, laws were passed fixing the penalty for rape and other felonies, without defining them, on the basis of their well-established definitions under the statutes and common law of England. See Com. ex rel. Case v. Smith, 134 Pa. Superior Ct. 183, 189-190, 3 A. 2d 1007. — See Acts of May 11, 1901, P. L. 166; May 10, 1909, P. L. 495; June 19, 1911, P. L. 1055.

Opinion by Mb. Justice Elkin The learned counsel for the appellant has specified thirty assignments of error to the rulings of the court below in the admission of testimony, charge to the jury and answers to points. No useful purpose would be served by a consideration of the separate assignments of error. For the purpose of review we will only consider two questions. First, had Lament, acting as the agent of the appellant, authority to make the alleged contract set up by the defendant in the court below; second, was the defendant entitled to recover damages for the loss of profits and the maintenance of the plaint in idleness arising from the failure of the plaintiff company to keep the machines sold by it to defendant, continuously employed in accordance with the terms of the alleged agreement. At the time the contract was entered into Lament was the manager of the Philadelphia district of the manufacturing department of the plaintiff company. With the exception of the general agent, lie was the highest officer of the company in Pennsylvania. The territory over which he exercised supervision as agent was extensive, embracing eastern Pennsylvania and New Jersey. The business under his management was large, and its conduct necessarily involved the exercise of wide discretion. According to the testimony of plaintiff, Lament had the right to sell sewing machines for cash, on time, or on lease, and on at least two occasions prior to the making of the alleged contract had sold the defendant machines oh credit. It was conceded that his authority was not limited by any writing. Under these circumstances, the court below properly submitted the question of the scope of his agency to the jury to determine whether he had the right to enter into the kind of a contract set up by the defendant. The learned trial judge directed the attention of the jury to the testimony relating to the scope and character of the agency of Lament in transacting the business of the plaintiff company. There was no error in such submission. The fact of agency and the scope of the power of an agent are questions for the court where the authority is created by ah instrument in writing, but where such authority is to be implied from the conduct of the parties, or where the agency is to be established by witnesses, the fact and scope of the agency are for the jury: 1 Am. & Eng. Ency. of Law (2d ed.,) p. 968. The jury were left to determine the authority conferred upon the agent as a question of fact, and there was ample evidence to support a conclusion that his powers were general. We must, therefore, treat the case as if this fact were established. The learned counsel for appellant earnestly contends that the court erred in admitting in evidence the declarations of Lament as proof of his general authority. It is true that agency cannot be established by the declarations of the agent, but this court has decided as late as Stewart v. Climax Road Machine Company, 200 Pa. 611, th.at it .is not reversible error to admit such declarations in evidence if they are followed with independent proof of such agency. When the agency of Lament was established his declarations were material in the case for the reason that they constituted part of the alleged contract and were the inducement which led the defendant to purchase the machines. In this view of the case the plaintiff company was as much bound by these inducing causes of the contract as if made by itself. “ The declarations or admissions of an agent in such cases are admissible, not for the purpose of establishing the truth of the facts stated, but as representations by which the principal is as much bound as if he made them himself, and which are equally binding whether the fact be true or false: Phillips on Evidence, 73; Hannay v. Stewart, 6 Watts, 487 ; and where a principal is bound for the acts or declarations of his agent, it is generally for the reason that said acts or declarations have led up, or been the inducement to, or explain, or qualify, or form part of some contract, or have caused some act to be done upon the faith thereof: ” B. & O. Relief Association v. Post, 122 Pa. 579. This principle clearly covers the theory of the case relied upon by the defendant. The contention of the appellee depends upon the representations of the agent made at the time the contract was entered into and as the inducing cause thereof, and therefore, under the authorities cited the declarations of the agent were admissible, not for the purpose of establishing the scope and character of his agency, but as showing the inducing cause of the contract relied upon by the defendant, and binding upon the plaintiff company. The plaintiff in the present action is seeking to enforce the contract made by its agent, and even if as a matter of fact that agent exceeded his authority, yet if the plaintiff company seeks to take the benefit of the bargain so.made, it must adopt the contract as its agent made it: Keough v. Leslie, 92 Pa. 424; Caley v. Railroad Company, 80 Pa. 363. This principle is very well stated in Bristow v. Whitmore, 9 H. L. Cases, 391, wherein Lord Kingsdown said: “ The principal cannot approbate and reprobate the contract. He cannot at the same time take the benefit which it confers and repudiate the obligations which it imposes.” A very large number of the assignments of error raise the question as to what is a proper measure of damages in the case at bar. If the contract wras as the defendant contends, that the plaintiff company undertook to keep the machines purchased by him continuously employed until the price for the same should be paid, such contract was predicated on the assumption that profits would be made to an extent sufficient to pay the plaintiff the price of said machines, and when it was broken by the plaintiff it needs neither extended argument nor the citation of authorities to show that the measure of damages would be the profit which the defendant might have made, together with the expense of maintaining the plant in idleness caused by the neglect or refusal of the plaintiff to furnish work continuously according to the terms of the contract. The evidence shows that the defendant was prepared to perform his part of the contract. He maintained his plant, kept his foreman and forewoman, and paid their salaries. The question of expense and profits as a measure of damages was left to the jury under full and complete instructions by the court below. In this there was no error: Hydro-Carbon Fuel Company v. Plumb, 182 Pa. 463; Nixon v. Myers, 141 Pa. 477. The credibility of the witnesses, the fact and scope of the agency, what contract if any was made, and the measure of damages were all submitted to the jury in a fair, impartial and adequate charge by the learned trial judge. Assignments of error overruled and judgment affirmed.