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The opinion of the court was delivered by Lewis, C. J. The land in controversy was formerly owned by Robert Hemphill, who conveyed it to William Blair and Rebecca, his wife, their heirs and assigns, as tenants in common, and not as joint tenants. William Blair died in 1830. The defendants claim under a conveyance from his widow, made in 1844. The plaintiff claims under the heirs of the deceased husband. A conveyance to husband and wife creates neither a tenancy in common nor a joint tenancy. The estate of joint tenants is a unit made up of divisible parts; that of husband and wife is also a unit; but it is made up of indivisible parts. In the first case there are several holders of different moieties or portions, and upon the death of either, the survivor takes a new estate. He acquires by survivorship the moiety of his deceased co-tenant. In the last case, although there are two natural persons, they are but one person in law, and upon the death of either, the survivor takes no new estate. It is a mere change in the properties of the legal person holding, and not an alteration in the estate holden. The loss of an adjunct merely reduces the legal personage holding the estate to an individuality identical with the natural person. The whole estate continues in the survivor the same as it would continue in a corporation after the death of one of the corpora-tors r 1 Dana 244; 7 Yerger 319. This has been the settled law for centuries. The distinction may seem a nice one, but it is founded upon the nature of marriage and the rights and incapacities which it establishes: Co. Lit. 6; 1 Thom. Coke 853; 2 Bl. Com. 182; 5 T. R. 652; 2 Vern. 233; Skin. 182; 19 Wend. 175; 3 Rand. 134; 5 John. Ch. R. 437; 7 Yerger 319; 1 Barr 176; 6 W. & Ser. 319. But it is argued for the plaintiff that this is merely a rule of construction for the purpose of ascertaining the meaning of the words usually found in conveyances to husband and wife, and that where a deed expressly conveys an estate to them, to hold as tenants in common, they may receive it, and hold it accordingly. Mr. Preston, in his work on “Estates,” vol. 1, p. 132, has probably originated this idea. He says that “ where lands are granted to husband and wife, as tenants in common, thereby treating them without any respect to their social union, they will hold by moieties as other distinct individual persons would do.” He cites no authority to sustain this position, unless his reference to 1 Inst. was intended for that purpose. But that citation is far from sustaining any such doctrine. It is there said that if a lease be made to A. for life, to a husband in tail, and to a wife for years, each has a third part, in respect- to the severalties of their estates.” We do not see how it could be otherwise. The wife, under her lease for years, acquired no interest in the husband’s estate in tail, and could have no claim to hold it as survivor in case of the death of the husband; and the husband, by virtue of a conveyance to himself in tail, certainly acquired no interest in his wife’s term. The interest which each would acquire in the estate of the other would not be through the grant to the party acquiring it, but would be such as the law of marriage carves out of the estate granted to his or her companion. It is therefore plain that there can be no holding by entirety in such a case, where there is a grant of a separate estate distinct in its nature, to each. Mr. Preston himself, in his “Abstracts,” vol. 2, p. 41, qualifies his position very considerably. He there tells us that “ a husband and wife may, by express words (at least so the law is understood), be made tenants in common by a gift to them during coverture.” For this he cites no authority whatever. An examination of the authorities will fully show that he was entirely mistaken in the reason on which the rule is founded, as well as in regard to the existence of the alleged exception to it. This we think has been satisfactorily shown by the Assistant Vice-Chancellor, in the case of Dias & Burn v. Glover, 1 Hoffman’s Ch. Rep. 71. If the doctrine to which we refer is not a mere rule for ascertaining the meaning of words, but a rule of law founded on the rights and incapacities of the matrimonial union, it must be obvious that the intention of the parties to the conveyance is entirely immaterial. If husband and wife cannot take a conveyance by moieties, if they are absolutely incapable of receiving such a grant, it is clear that no words in the conveyance to them, however clearly expressed, can give them that capacity. How stands the argument on this question ? Tenants in common may sell their respective shares. They are compellable to make partition. They are liable to reciprocal actions of waste and of account; and, if one turns the other out of possession, an action of ejectment will lie against him. These incidents cannot exist in an estate held by husband and wife. No action of partition, or waste, or account, or ejectment, can be maintained by one against the other. The husband could not sell his moiety free from the dower of his wife. The wife could not sell hers at all without the consent of the husband. It is evident, therefore, that the estate, during the lives of the grantees, or during the continuance of the marriage bond, would have none of the chief incidents of a tenancy in common. The existence of a tenancy in common, which cannot be so held or enjoyed during the lives of the holders, and which has none of the incidents of such an estate, is a legal impossibility. If they cannot hold in common during their lives, of course they cannot so hold after one of the parties, is dead. But there is a charm in the equity of equality; and this inclines the mind at first blush to hold that the grantees are entitled to take in equal parts — that is, by moieties. Let us pause to look at the equitable manner in which such a doctrine would operate, where the grantees were husband and wife. The husband may dispose of his moiety so that the wife can never enjoy any part of it, during his life, and at his death she could only receive one-third of it for life. Even this she would be deprived of, if her husband had creditors who chose to interfere with her. He may also enter upon her moiety and take the whole profits during his life, or he may sell it to a strajiger, or his creditors may take it in execution, and the wife may thus be deprived of it entirely as long as her husband lives! This is the equity of equality which would exist between husband and wife if they were capable of holding as tenants in common! Her chance of enjoying anything under the grant would depend upon the miserable advantage to be derived from the death of her husband. Even then she would get no part of her husband’s moiety except her dower. Not so, if the estate be regarded as an entirety. In that case she is compensated for the control which her husband exercises during his life, by the enjoyment of the whole estate in fe'e simple, if she survive him. There is, therefore, more equity in holding the estate to be an entirety than in regarding it as held in moieties. Coke tells us that “ there can be no moieties between” husband and wife: Co. Lit. 187 b; Thomas’ Coke 855; 2 Yeates 462. Littleton says that the reason is that they are one person in law: Id. Blackstone tells us that for that reason “ they cannot take the estate by moieties; but both are seised of the entirety:” 2 Bl. Com. 182; 2 Cruise Dig. 492. If they are “ one person in law” —if “ there be no moieties between them” — if “ they cannot take by moieties,” but both “must be seised of the entirety” — the in tention to create a tenancy in common is immaterial, for the rule is that the very same words which create such an estate between other parties, create an entirety in husband and wife. The case of Green v. King was determined, not on any supposed intention of the parties to the conveyance, but on the sole ground of the absolute incapacity of the husband and wife, who are regarded as one person in law, to take, during coverture, separate estates: 2 Bl. Rep. 1211. The case of Rogers v. Benson was decided upon the same ground: 5 John. Ch. Rep. 437. Jackson v. Stevens was determined on the same principle of incapacity to take by moieties: 16 John. Rep. 115. Sutliff v. Forgey is an authority to the same point: 1 Cowen 95. Barber v. Harris was also determined on the ground of the incapacity of husband and wife to take either as joint tenants or tenants in common: 15 Wend. 617. In Saul v. Campbell authorities were cited by the court in affirmance of the same doctrine: 7 Yerger 319. In Den v. Harding the same ground was taken: 5 Halsted 43. In Rogers v. Grider the same principle is affirmed: 1 Dana 242. Other cases to the same effect might be cited. This doctrine prevails, it is believed, in every state of the Union, where the common law furnishes the rule of division. Chancellor Kent did but reiterate the reason of the rule when he declared it to be founded, not on any supposed intention of the parties to the conveyance, but on the “ unity of husband and wife,” and announced, as the necessary result of that unity, that “ they cannot take by moieties 2 Kent’s Com. 132; 4 Kent’s Com. 362. In Hart v. Johnson the conveyance was to husband and wife, and another person, “as tenants in common and not as joint tenants.” One of the judges of the District Court of Philadelphia, in a learned and able dissenting opinion, demonstrated, beyond all doubt, that these words, according to every reasonable rule of construction, applied to all the grantees named in the deed, to the wife as well as to the husband, and to the husband as well as to the other grantees: 3 Penn. Law Journ. 348. But the words were nevertheless held imperative as between husband and wife. They were not allowed to create an estate different in its nature from that established by law: 6 W. & Ser. 319. No substantial reason can be assigned in support of this decision but that upon which the whole doctrine in question is founded — the absolute incapacity of husband and wife to take as tenants in common. An attempt has been made to impair the force of this authority by the suggestion that the tenancy in common by which the husband and wife held one moiety of the land, and the other grantee held the other moiety, fully carried out the intention of the grantor; but this, as already shown, was clearly not the case. The intention of the parties was controlled, so far as regards the grant to the husband and wife. But what answer can be given to the ease of Dias & Burn v. Glover, 1 Hoffman’s Ch. Rep. 71 ? In that case the conveyance was to husband and wife alone, to hold expressly' “ as tenants in common, and in equality of estate, and not as joint tenants.” The express grant to them to hold as tenants in common was entirely borne down by the rule of law. There was no third grantee in that ease. The words were not •permitted to have any operation whatever in creating a tenancy in common. They were rendered nugatory by the incapacity of husband and wife to take as tenants 'in common, and the case was decided on the principle which governs all grants to husband and wife. Like the rule in Shelly’s Case, it operates irrespective of the intention of the parties. But where an estate is conveyed to a man and a woman who are not married, and who afterwards intermarry; as they took originally by moieties, they will continue to hold by moieties after marriage: 2 Cruise’s Dig. 494; Plowden’s Queries 180, 183; 2 Plowden’s Rep. 483. Their subsequent marriage may entitle the woman to dower in the man’s moiety, and the man to curtesy in the woman’s estate, but it cannot have the extraordinary effect of converting into entirety two estates which were several in their creation. In such a case the interest which each acquires in the land of the other is not by virtue of the original grant, but is a consequence of the matrimonial relation subsequently contracted. The principles applicable to such eases have no place where the husband and wife, during coverture, are parties to the conveyance. This opinion is of course confined to the ease before us, which is that of a conveyance to husband and wife, before the Act of 1848, relative to married women. The judgment of the Common Pleas is to be affirmed. Judgment affirmed.

The opinion of the court was delivered by Thompson, J. 1. The first assignment of error is not sustained. The sub-letting to Fisher & Taylor of section No. 48, by the plaintiffs, had taken place a month and a half before the contract between the plaintiffs and defendant was executed, doubtless, under some previous arrangement that the plaintiffs were to have the contract for building sections No. 47 and 48. An estimate had been paid on the work done by the sub-contractors, and they were in active operation on the work at the time. They continued on afterwards, without objection by the defendant or the company, and finished the work on the section, were paid for it, and received the retained per cent, from the defendant. No steps were taken to forfeit the contract. Under these circumstances, the court very properly left the question of knowledge, assent, and acquiescence, on part of defendant, to the jury, which they found to exist. It seems to us, there was abundance of evidence to justify the proceeding. Forfeiture is not a favourite of the law. Acquiescence in acts inconsistent with it, will readily dispense with a right to claim it. 2. The second assignment is also groundless. The defendant had bound the plaintiffs to commence work within two weeks, and to finish by the 1st of October 1855, and covenanted to furnish the right of way. The plaintiffs charged that he failed to do this, so far as section 47, and a portion of 48, were concerned. If this were so, the defendant was answerable on his covenant for a failure to furnish it in a reasonable time after request. The plaintiffs could look to no other source for indemnity. This was the instruction of the court, and there was no error in it. 8. The third assignment raises the important question in the case, and is whether the plaintiffs can sustain their action, not having previously obtained the decision of the engineer as stipulated for in the contract ? It cannot now be doubted, but that if the ground of “ dispute” involved in this suit comes within the prospective submission agreed upon in the contract, by the parties, that it cannot be investigated here. Such provisions for settling controversies which might arise between companies and their contractors, as also between individuals, have been fully sustained by this court: Fenlon v. Monongahela Navigation Co., 4 W. & S. 405; Faunce v. Burke & Garder, 4 Harris 469; and Snodgrass v. Gavit, 4 Casey 224. Is the matter in controversy in this case embraced by and within the jurisdiction conferred by the agreement on the engineer ? It is as follows : “ To prevent all disputes, it is hereby mutually agreed that the said engineer shall, in all eases, determine the amount and quantity of the several kinds of work which are to be paid for under the contract, and the. amount of compensation, at the rates herein provided for; and also that the said engineer shall in all cases decide every question which can or may arise, relative to the execution of this contract, on the part of said contractors; and his decision shall be final and conclusive, and without appeal.” The intention of the parties, to 'this prospective submission, is very clearly apparent, and is certainly not to.be enlarged beyond the plain terms used. The engineer was only to determine upon such matters as the parties submitted to his final adjudication, and they stipulate that, “ to prevent all disputes,” he shall determine the amount and quantity of work and the compensation to be paid for it, at the rates provided for. This is the first clause of the submission. The words “ all disputes” are clearly controlled and limited to the distinctly enumerated grounds of anticipated dispute, in the same sentence, which are so defined that these general words have no force or meaning unless they relate to anticipated disputes arising out of the work to be done, and the compensation to be paid. The parties anticipated disputes from no other source, or if they did, they chose to rely for a settlement of them upon the established tribunals of the county. It is a well settled principle, unless there be a manifest intention* to the contrary, that “ general expressions in a contract are controlled by the special provisions therein:” Story on Cont. § 641. “ If there be a recital of a particular claim, followed by general words of release the general words will be qualified and restricted by the particular recital Id. § 643. Platt on Cov. 379. This is common sense, for why particularize, if the matter is to be controlled by a general provision ? There is certainly no doubt about what was the intention of the parties thus far. The last clause of this stipulation, we think, is equally clearly limited to disputes arising out of the performance of the work by the contractors. It is quite clear also from the contract itself that the words “execution of the contract on part of the contractors,” meant the plaintiffs. They are repeatedly so designated in it, and in fact, it is usual in all works of this kind so to denominate the party undertaking the work, and nobody so engaged understands the term in any other way. Certainly these parties did not. The engineer was, therefore, to decide every question that could arise relative to the execution of the contract on part of the contractors. He was to be the umpire in settling disputes arising out of the kind, manner, and time of performance by the plaintiffs, and nothing else. This clause was to cover disputes, other than enumerated in the first clause, but like it the decision was only tó be as to performance. The engineer had no jurisdiction, if there was no execution by the plaintiffs of the contract. The plaintiffs in this case do not sue to recover for work done, in performance of their contract, but to recover damages from the defendant for preventing or refusing to permit them to perform it. There is no dispute about the amount of work done, or the price or the manner of executing the contract, but solely to recover damage for the loss of the contract; and nothing else is claimed in the narr. or was claimed on the trial. The defendant would not have been bound by any decision of the engineer made on the point involved here. To have done so, would have been outside of the submission. He was to determine in regard to work done, and had nothing to do with a dispute between the parties arising from a claim for damages for not being permitted to do work. “ The terms of a contract,” said Ch. J. Gibson, in Harris v. Liggett, 1 W. & S. 301, “ are private laws which the parties prescribe for themselves, to fix the measure of their responsibilities; and they agree to be bound by these and no others. Rut a judge would bind them differently, did he enforce between them duties of imperfect obligation, and support an implication of terms to which they did not accede.” The right of trial by jury will not be taken away by implication merely, in any case. It must appear in all cases that the parties have agreed to dispense with it. We do not in any wise intend to infringe on the principle of the decision in Fenlon v. Monongahela Nav. Co. The stipulation in that case differs widely from the case in hand. The suit there was to recover for work done, as well as for damages for suspend ing it, and it was ruled on the following clause in the contract that the engineer had exclusive jurisdiction of the matter : “ It is also mutually agreed between the parties,” says the contract, “ to these presents, that in any dispute which may arise between the contractor and the company, the decision of the engineer shall be obligatory and conclusive, without recourse or appeal.” Very different from the stipulations used in our case, and in which if they had existed, the engineer would undoubtedly have had jurisdiction. We fully accede to the decision in that case. So, in the case of Fox v. The Hempfield R. R. Co., tried in the Circuit Court of the United States before Mr. Justice Grier. The stipulation was, “ that the decision of the chief engineer for the time being shall be final and conclusive, in any dispute which may arise between the parties to this agreement, relative to, or touching the same, and each and every of said parties do hereby waive any right of action, suit or suits or other remedy in law or otherwise, by virtue of said covenant; so that the decision of the engineer shall be final and conclusive on the rights and claims of the said parties.” No more unrestricted submission could well have been framed; and the decision that the jurisdiction of the cause of action belonged to the engineer was undoubtedly in accordance with the eases on this point. We think the learned judge was certainly right in his ruling in the case. The fourth assignment of error was not pressed. Judgment affirmed. Judge Woodward and Judge Strong were not present at the argument, and took no part in the decision.

The opinion of the court was delivered by Sharswood, J. There are two kinds of injunctions in courts of equity. The one is preliminary or interlocutory; the other final or perpetual. The object of the first in general is simply preventive — to maintain things in the condition in which they are at the time until the rights and equities of the parties can be considered and determined after a full examination and hearing. A preliminary injunction is never awarded, except when the rights or equity of the plaintiff are clear, at least supposing the facts of which he gives primfi facie evidence to be ultimately established. All injunctions are generally processes of mere restraint; yet final injunctions may certainly go beyond this and command acts to be done or undone. They are then termed mandatory. They are often necessary to do complete justice. But -the authorities, both in England and this country, are very clear that an inter loeutory or preliminary injunction cannot be mandatory^ In Gale v. Abbott, 8 Jurist, N. S. 987, Vice-Chancellor Kindersley said: “ It was useless to come for what was called a mandatory injunction on an interlocutory application. Such an application was one of the rarest cases that occurred, for the court would not compel a man to do so serious a thing'as to undo what he bad done, except at the bearing.” So in Child v. Douglass, Kay 578, Vice-Chancellor Sir W. Pag.e Wood, now Lord Chancellor Hatherley, noticed, the same distinction: “ The plaintiff has a right to an injunction to restrain the building of the wall until further order; but I can make no order on an interlocutory application as to that part of the motion which relates to pulling down what has already been built.” It was said by Chancellor Bland, in Murdoch’s Case, 2 Bland 469: “ To restrain a defendant from making any abusive use of the property in question, or from disposing of it past recall, amounts to no more than the imposition of a temporary limitation upon the free exercise of his right, even if it should eventually appear to be entirely and rightfully hiswhich is quite as far as any court can go in the first instance, and as preparatory to a fair beneficial bearing and final adjudication. It was held accordingly in The Washington University v. Green, 1 Md. Ch. 97, that an injunction, unless issued after the final decree, when it becomes a judicial process, can only be used for the purpose of prevention and protection, and not for the purpose of commanding the defendant to undo anything which he had previously done. To the same effect are The New York Printing and Dyeing Establishment v. Fitch, 1 Paige 97; Bosley v. The Susquehanna Canal, 3 Bland 65; Attorney-General v. New Jersey Railroad Company, 2 H. W. Green’s Ch. R. 136; Attorney-General v. City of Patterson, 1 Stockton 624. This distinction between a preliminary and final injunction is fully recognised in our own decisions. Mr. Justice Strong states it in his opinion at Nisi Prius, in The Lehigh Coal and Navigation Co. v. The Lehigh Valley Railroad Co., January 1855, No. 59, April 5th 1855, in which he says : “A preliminary injunction ought never to be granted except in a clear case, and then only to prevent a substantial injury. Its purpose is to keep things in their existing condition until the case can be finally heard. As it is the strong arm of the law, it must be used only when necessity requires it. And a preliminary injunction can never be necessary when the thing sought to be restrained has been already done; for its province is not to undo but to prevent and preserve.” The same learned judge, delivering the opinion of the whole court in Farmers’ Railroad Co. v. Reno, &c., Co., 3 P. F. Smith 224, said: “ The sole object of such an order is to preserve the subject of the controversy in the condition in which it is. when the order is made. It cannot be used to take property out of the possession of one party and put it into the possession of the other; that can be accomplished only by a final decree.” To the same point is Mammoth Vein Coal Company’s Appeal, 4 P. F. Smith 188, in which the present Chief Justice said: “ It ought not to be forgotten that a preliminary injunction is a restrictive or prohibitory process, designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the courts be determined.” It is true that a mandatory order appears to have been made by Mr. Justice Lowrie, on a motion for a preliminary injunction before him in Allegheny county, in The Baptist Congregation v. Scannel, 3 Grant 48. It is enough to say of that case now, that the question does not appear to have been mooted or argued; at all events it is not adverted to in the opinion. ^There are some few instances in England in which a mandatory order has been made on an interlocutory application; but they have been very extreme cases, and ought not to be followed as precedents^ Thus in The Attorney-General v. The Metropolitan Board, 1 Hem. & Mil. 321, where the flue of a chimney had been stopped up by a plate put over it, so as to fill the house with smoke, the order was made so as to compel the defendant to remove it. In Hepburn v. Lardner, 2 Id. 345, damp jute was stored and dried on premises adjoining the plaintiff’s premises, at the imminent risk of combustion. These- and perhaps a few other cases of similar character rest on the authority of Lane v. Newdigate, 10 Ves. 193, in which Lord Eldon, in what he considered a clear and hard case, evidently felt that he was treading on dangerous ground, and therefore resorted to indirection to accomplish his purpose. The plaintiff was the assignee of a lease of mill property granted by the defendant, with covenants for the supply of water from canals and reservoirs on defendant’s premises. The allegation was that he had suffered the canal and reservoir to be out of repair, and especially had removed a certain stop-gate. Lord Eldon expressed a difficulty whether it was according to the practice of the court to decree or order repairs to be done, but afterwards said: “ So as to restoring the stop-gate the same difficulty occurs. The question is, whether the court Can specifically order that to be restored. I think I can direct it in terms which will have that effect. The injunction I shall order will create the necessity of restoring the stop-gate, and attention will be had to the manner in which he is to use these locks; and he will find it difficult, I apprehend, to avoid completely repairing these works.” That is acknowledging that he could not, according to the prin ciples and practice of the court, order the defendant in direct terms to restore the stop-gate and repair the works: the injunction should be so drawn that, although on its face restrictive only, it will, in order to comply with it, compel him to do these very things. This is not a precedent which ought to be followed in this or any other court. A tribunal that finds itself unable directly to decree a thing, ought never to attempt to accomplish it by indirection. Injunction as a measure of mere temporary restraint is a mighty power to be wielded by one man. It would extend far beyond all safe and reasonable bounds to permit it to go farther. The reason of the distinction in this respect between an interlocutory and final injunction is very obvious. The former may be granted on an ex parte application; even when it is upon notice it is upon ex parte affidavits. The mode in which the testimony was taken in this case by an examiner was very unusual; but it cannot change the character of the application. The proceedings, in the nature of things, must be summary. Besides, the effects of an interlocutory injunction may often be the same as a final decree, as, indeed, in this very instance. The decree appealed from in this case was clearly mandatory. It followed closely Lane v. Newdigate, if it did not go beyond it. It commanded the defendants to allot, allow or continue to the ■plaintiffs such use of a wharf or wharves as are required by them, which shall be equal in quantity and convenience to the wharf accommodations furnished to any other person; and that defendants refrain from allowing any other person to use any part of the wharves while they omit to furnish the plaintiffs with similar wharf facilities in a due proportion. We must take this decree, in connection with the undisputed fact that before, the bill was filed the defendants had allotted all their wharves to others; and it is very plain that they could not obey this decree without revoking this allotment and making a new one. It is very true that it did not appear that any possession had been taken under the allotment at the time the bill was filed. It was upon paper merely. But that ought not to weigh in this case, because the several allottees under the allotment thus made were not made parties to the suit and have not been heard. Had they taken possession under their allotments it is not very easy to see how they could have been proceeded against for a- contempt. Their equities may be as strong as the plaintiffs’’. Beginners and small dealers have their rights as well as old and large ones. What contracts or arrangements for their business upon the faith of the allotment to them they had made we do not know. They were at least entitled to be heard. Apart, however, from these considerations, we do not think that the facts disclosed by the depositions show so clear an equity in the plaintiffs as would have entitled them to a restrictive injunction had they filed their bill before the allotment was made. It is not necessary to go further than this to prove that the preliminary injunction ought not to have been awarded. It is very doubtful whether the defendants, under their charter, are bound to provide any wharf accommodations for the coal-dealers at Port Richmond, and equally doubtful whether, having done so to a limited extent, not sufficient to supply the entire business, they are subject to any trust to use or dispose of that property in any particular way. But concede both these points, what then ? As trustees there is a discretion reposed in them in the use of the property with which a chancellor cannot interfere. It is agreed that they have not room enough for all. They must select some and reject others. Can a chancellor inquire into their motives, and not approving of them, assume the selection himself? The case of Dummer v. The Corporation of Chippenham, 14 Ves. 245, upon which the plaintiffs principally rely, does not support their assertion. There the trustees of a charity school threatened to remove the master because he had voted contrary to their wishes in the election of a member of Parliament. The question was: Had the Chancellor jurisdiction to inquire into the matter and enjoin against such removal ? It was upon demurrer to the bill. Had the master held his appointment for a term certain, which had expired or was about to expire, and the prayer had been to enjoin his reappointment, it would have had some analogy to this case. Can any-one suppose that such a jurisdiction would have been assumed ? It is not a matter which is open to dispute upon the depositions that the allotment of wharves by the defendants was annual — that the allotment made to the plaintiff’s in 1869 had expired, and that there was no agreement to renew it. Changes appear to have been frequently made, although, as was natural, the allotments were generally renewed. It is agreed that the company might have put up these privileges every year and sold them to the highest bidder, as is somewhere done with the pews or seats in churches. They preferred to distribute them without premium or rent, in order that they might retain a more absolute control over the property. It may well be, however, notwithstanding this, that an allottee turned out by the defendants, capriciously or from improper motives, during the year for which the allotment was made, might, on equitable grounds, he restored to the privilege for the rest of the year, or by an interlocutory injunction his removal, if threatened, prevented. But what right or equity has such an occupier superior to others, to hold over for another year ? That would be to assure him a perpetual lease. If such a perpetual lease had been granted to one coal-dealer exclusively in all the wharves, it might well be argued that Sandford v. Railroad Company, 12 Harris 378, would go far to sustain the position that such a grant was extra vires. That case has no bearing upon this. Transportation by a common carrier is necessarily open to the public upon equal and reasonable terms. An exclusive right granted to one is inconsistent with the rights of all others. This was not transportation, but ' wharfage, the nature of which requires exclusive possession temporarily. The railroad company as trustees for the public have a necessary discretion in the management of such interests, and the motives of their proceedings cannot be reviewed by the courts. It would be a dangerous and alarming power to be exercised by a chancellor over corporations or other trustees, to direct the appointment to offices, or awarding of contracts, whenever it appeared that it was about to be used from political or other improper motives. This would be in effect to deprive the directors of corporations of their management, and to substitute the chancellor as supreme director or manager. Eor this reason we think the decree in this case ought not to stand. Decree reversed and record remitted.

The opinion of the Court was delivered by Kennedy, J. The first error is an exception to the opinion of the court below, admitting the alias and pluries writs of venditioni exponas therein mentioned, with the returns thereon respectively made by the sheriff, to be read in evidence, without producing the record of the judgment and previous process, which was requisite in order to show that the same were legally issued. Though it was wrong to admit the writs in evidence here excepted to, without first showing by the record called for that they were regularly issued, yet the error was cured afterwards in the course of the trial by the production and reading of the record in evidence to the court and jury. The second error assigned is also an exception to the opinion of the court, admitting verbal evidence to be given of the contents of a written notice, alleged to have been given to the defendant below, that the property sold to him by the sheriff would be resold unless he paid the purchase money. No duplicate of this notice had been made, but the person who was employed by the sheriff to deliver it to the defendant was produced to prove the service and the contents of it. The proof thus offered as to the contents was objected to because it was secondary only, and therefore not admissible without showing first that a notice had been given to the defendant below, or his attorney, to produce, on the trial of the cause, the notice itself, which was the best evidence of its contents. No doubt every written instrument furnishes, when produced, the best evidence of its contents; and hence the general rule on this subject requires that the party who wishes to prove its contents must either produce it, or show that it is not in his power to do so; and if he cannot-produce it, because it is in the possession of the adverse party, he must show that he has given his adversary reasonable notice beforehand to produce it on the trial, otherwise he will not be permitted to give secondary evidence of its contents. But if the instrument, the contents of which are offered to be proven, be itself a mere notice, it forms an exception to the rule; for it is very evident that the application of the rule to such a case would put it out of the power of the party wishing to prove the contents of the notice to do so, as long as his adversary declined producing it on the trial; as the rule, if applied, would require the contents of a second notice given to produce the first, to be. proven by the production of the second in the same manner as the first, and so as to the contents of every subsequent notice, thus rendering the thing interminable. See Greenleaf’s Evidence 597; 1 Archb. Pract. 168; 2 Camp. N. P. Rep. 599; 3 B. & B. 288. The third error is also an exception to the opinion of the court admitting the written conditions of the sale made by the sheriff, the plaintiff below, at which the defendant became the purchaser, to be read in evidence to the jury. The objection to their being read was, as alleged, that it did not appear that they were made known to the defendant, or that he had a knowledge of them in any way, either previously to. or at the time of the sale. This objection, however, does not seem to be well founded in point of fact; for evidence was given showing, first, that the conditions were read aloud by the agent of the sheriff at the opening of the sale; secondly, evidence tending to show, though not very strongly, that the defendant was present before and during the time of the sale; and, thirdly, direct evidence that he signed a written acknowledgment that he had become the purchaser of the pro perty at it for the sum of $7050. This was certainly proof sufficient to warrant the reading of the written as well as the printed conditions of sale in evidence. But it being distinctly proved that the conditions offered in evidence were the same that were read and promulgated as such at the time of the sale, it is fair to presume, without more, that the defendant thereupon acquired a knowledge of them; and positive proof, therefore, of the fact of his having obtained such knowledge, was not necessary to be made, in order to enable the plaintiff below to read them in evidence. The fourth error is, that the defendant below received no notice that a second sale of the property was to take place, nor of the time and place thereof. But the record shows that evidence was given to the court and jury, showing that he was required and notified by the sheriff, the plaintiff below, to pay the purchase money according to the 'terms of the sale, or otherwise the property would be resold at his risk. This notice, if any of the sort was requisite, was sufficient to put him on the look-out, so as to guard against the consequences of a resale, which could only be done by his paying the purchase money without delay. It was certainly not the duty of the sheriff to notify the defendant below of the time and place at which the resale would be made; it was sufficient, if not more than he was bound to do, to let the defendant know that unless he paid' the purchase money after it became payable according to his undertaking, a resale would be made at his risk; and this, as appears by the evidence, was done. The fifth error is an exception to the instruction given by the court to the jury, that a suit brought for the purpose of the present might be maintained by the sheriff in his own name. We are decidedly of opinion that the court was right on this point. It is in accordance with the opinion of this court as expressed in Adams v. Adams, (4 Watts 160), where it was not only held that such action might be maintained by the sheriff who made the sale, but that it could not be maintained by any other person. It is very important that sales made by sheriffs of property taken in execution by them, should be regulated by such principles as will tend to obtain prices therefor equal, if possible, to its full value, and at the same time to avoid all unnecessary delay in satisfying the executions. Every day’s experience, however, shows that the price obtained for property by a sheriff on a resale made by him, because the first or any prior purchaser has failed to pay the amount or price bidden by him for it, falls, not unfrequently, greatly short of the price bidden at the first or prior sale. But if the difference of price cannot be recovered by the sheriff from the first or prior purchaser, resales ought never to take place where the first sale has been fairly made for something like or near a fair price, and the purchaser is able to pay; because it is not profaable that the resale can be effected without occasioning a loss, at least to the defendant in the execution, and perhaps to his creditors also. But if a resale is never to be made, when the sale is fair and the purchaser is able to pay, great and unreasonable delay may and indeed will frequently attend the recovery of the price bidden by the purchaser, which can only be obtained from him, when he refuses to pay, by means of an action commenced and prosecuted according to the ordinary forms of law. Besides, as resales seldom fail to depreciate the property, if it were to be held that the first or prior purchaser could not be made liable to pay' the difference between the price bidden by him and that obtained on the second or subsequent sale, it might and probably would tempt some one of the persons wishing to become owners of the property, to become the highest bidder at the first sale, with the intention of declining to pay the price so bidden, unless compelled by suit to do so, hoping thereby to force a resale, at which he would have the probable chance of getting the property at a reduced price; or, if bidden up on the purchaser at the first sale to the same or a higher price at the second sale, at which he again becomes the highest bidder, he may still refuse to pay, in hopes of forcing the property to a third sale, with a view of getting it ultimately for a much less price. No one can doubt that such conduct would be very unfair and highly reprehensible, and ought, therefore, not to be countenanced or sanctioned; neither ought any principle to be sanctioned that would, in practice, have a natural tendency to induce any, under an insatiable thirst for gain, though it produced the ruin of others, to pursue such a course at sheriffs’ sales, where the delay in obtaining the money directed to be levied by the execution might induce the plaintiffs therein to have a second, third, or more sales to be made, if necessary, until the price bidden by the last purchaser shall be prompt!3? paid without suit, which may save him from ruin by putting him in possession of the amount of his demand, but reduce the debtor to poverty and want by a sale of his property for less than the half, or even the.fourth part of its real value. Hence it would seem to be expedient, at least, for the benefit of creditors, frequently, that resales should be made, when the price bidden at the sale is not paid, as it ought to be; and at the same time equally expedient, as also most just, in order to protect the interest of the defendant in the execution, as well as his other creditors, that the first or any prior purchaser should be held responsible to the sheriff for the difference between the price bidden by him and any less price for which the property shall be ultimately sold. That the sheriff may maintain an action to recover the whole amount of the purchase money in his own name, when he seeks to perfect and carry the sale into effect, is not denied, but admitted ; and why 1 because the contract for the sale of the estate is made with him by the purchaser, and with him alone; and therefore it is that he or his representatives can alone maintain an action for the breach of such contract. This being the case, then, why should he not have a like right, for a like reason, to hold a prior purchaser responsible to him for any loss that shall have arisen from a second or subsequent sale occasioned by his neglect or refusal to pay the purchase money bidden by him at the first or prior sale 1 The sheriff may very properly be considered as invested with a trust by law to sell the estate, which he has full power and is bound to perform, for the benefit not only of the creditors of the owner, but likewise for the owner himself; and in order to execute this trust for the benefit of all concerned, it is not only proper but necessary that he should have a like right to maintain such an action as the present, as if he were the legal owner of the estate. The sixth error is, that the court left the fact of notice to the decision of the jury, without any evidence having been given in relation to it. This matter has been already sufficiently answered and disposed of in the discussion of the third error, and therefore requires nothing further to be said in regard to it. The seventh and last error is an exception to the amount of damages recovered, which is alleged to be excessive. No such question as this appears to have been raised or made in the court below, neither does it appear that the court below gave the jury any direction in regard to it; so that there could be no exception to the charge of the court in this respect. Consequently, this court cannot take cognizance of it. If the fact were so, that the damages assessed by the jury were excessive, the only x'emedy for relief within the x-each of the defendant below was an application to the court, before judgment rendered on the verdict, for a new trial. But if we were to judge of the amount of the damages from all that appears in the case, it would seem that the jury in assessing the same allowed merely the difference, with perhaps some interest thereon, between the first and second sales. And seeing that no l-eason whatever has been given why the defendant below did not comply with his contract for the purchase, it is clear, therefore, that by his failure to do so he has caused a loss, equal to this difference, to the owner of the estate, and upon every principle of justice ought to make it good. Judgment affirmed.

Tirghman C. J. It is contended for the defendant, that the evidence was proper, either by way of set-off, or under the plea of non assumpsit, as a defence against the action* As a set-off, I do not think it was evidence. Our act of assembly authorising a sét-off, is expressed in more extensive terms than the British statute ; but it has been settled, that it. does not comprehend matters of a tortious nature. This was decided in the case of Kachlein v. Ralston and others, 1 Yeatest 571, reported under the name of Kachlin v. Mulhallon, 2 Dall. 237. But whether the evidence was admissible under the plea of non assumpsit, is a question of considerable difficulty. The Courts have been struck with the inconvenience of perplexing the jury with matters of a different nature. Hence some Judges have been of opinion, that when the evidence is of such a nature, that the defendant may support an action on it against the plaintiff, it is best to put him to his action, and not suffer him to give the evidence by way of defence. Others, perceiving the impolicy of multiplying suits, and the hardship of not suffering the- defendant to avail himself of matters arising out of the very transaction on which the plaintiff founds his suit, have been for receiving the evidence. I am not permitted to cite the adjudications in the British courts since the American revolution, or it would be easy to shew, that the Judges have differed in opinion, and the question is at the present moment unsettled. As it was likewise unsettled at the time of the revolution, we are at liberty to decide it now according to the reason of the thing, aided by the sentiments expressed from time to time by our own Judges. By the plea of non assumpsit, the defendant puts the plaintiff on proving his whole case, and entitles himself to give in evidence any thing which shews, that at the time the action was commenced, the plaintiff had no right to recover. Conformably to this principle, it is said in Peake’s Law of Ev'zd. 248, that “ if the plaintiff’s demand be compounded of skill and materials, and he has greatly misconducted himself, as where an apothecary, giving medicines on his own judgment, and not under the directions of a physician, appears to have been grossly negligent or ignorant, this fact furnishes a defence on the general issue.” It is evident, that upon the same principles, if a physician sues me for his services, I may give evidence, that he has treated me unskilfully, or if a carpenter brings suit for work done for me, I may shew, that it was badly done. So, whatever be the nature of the services for which the plaintiff demands compensation, I may shew that those services were ill-performed'; for by such evidence, I do no more than meet the plaintiff on his own allegation; I prove, that he did badly, what he ought to have done well. The principle being set- , tied, we have only to apply it to the present case. The plaintiff claimed compensation for services as a house-keeper. It is the duty of a house-keeper to take care of the household goods. The defendant offered to prove, that the plaintiff did not take care of his goods, and to shew the particular manner in which she violated her trust, viz. that she sent sundry articles to her daughter’s house, and suffered her to make use of them. How is neglect of duty to be shewn, but by shewing the particular acts of negligence or malfeasance ? It appears to me, that the evidence was proper, because it went to the gist of the action. But several cases were cited by the plaintiff to shew, that in this Court, similar evidence had been rejected. I will consider those cases. The first was Kachlein v. Ralston, £s?c. mentioned before. The plaintiff brought debt on a bond given by the defendant for the consideration of a mill and land, which he had bought of the plaintiff, and in the contract of sale the plaintiff had reserved the right of erecting a dam on the adjoining land, and swelling the water, provided, that no injury was done to the mill sold to the defendant. The defendant offered to prove, that the plaintiff had erected a dam, which injured his mill. The Court overruled the evidence. The reason is plain; that evidence was no denial of the action, which was debt on a bond; but it was a fact of a nature quite distinct from the debt, and which, if evidence at all, could only be admitted as a set-off. As a set-off, the Court did not think proper to admit it, being of opinion, that it was not within the act of assembly. They left the defendant, therefore, to his action for the tort. The next case relied on by the defendant is Dunlop’s lessee v. Speer, 3 Binn. 169. Dunlop had a judgment against Speer, which he assigned to certain persons in trust, to receive the payment of 1600/. lent by John Sheller to Speer. There were articles of agreement between Sheller and Speer, by which Sheller covenanted to serve Speer, in the capacity of founder at his iron works. Sheller issued an execution in the name of Dunlop, on the assigned judgment, on which Speer moved the Court to stay the execution, and let him into a trial, in order to make a set-off against the judgment, for damages which he claimed under the articles of agreement, in consequence of Shelter's having neglected his duty as founder, and seduced his servants from his service. The Court rejected the evidence; and the main reason was, that it appeared by the articles of agreement, that it was not intended to blend these two transactions ; on the contrary, it was understood, that the assignment of the judgment should stand simply, as a security for the 1600/. lent by Shelter to Speer. Here too, it is plain, that the evidence offered by Speer, if admissible at all, was only so by way of set-off, so that it does not touch the present case, where the evidence was not to maintain a set-off, but to contradict the plaintiff’s statement of his cause of action. But the case of Steigleman v. Jeffries, 1 Serg. & Rawle, 477, shews the strong inclination of this Court to let in evidence, arising out of the same transaction on which the plaintiff founds his action. It was an action of debt on a bond given for the price of some mill-stones purchased by the defendant of the plaintiff, and the defendant was permitted to give in evidence, a warranty of the stones, made by the plaintiff at the time of sale, and a breach of that warranty. The same inclination to let in evidence, appears in the case of Cooke v. Rhine, 1 Bay's Rep. (South. Carolina,) 16. In an action for work, labour, and services done and performed by the plaintiff for the defendant, evidence was admitted on the part of the defendant, that the work was not done within the time agreed on. As to the objection of the plaintiff being taken by surprise, it is no greater surprise, than when under the same plea, the defendant gives in evidence, a release, infancy, or coverture. Neither do I think there is much force in the other objection, that the matter of the evidence is not a liquidated debt or demand. If it is of sufficient magnitude to bar the plaintiff’s action, there will be no need of going into calculations. But if not sufficient for that purpose, it is as easy for the jury in this action to ascertain the amount to be deducted from the plaintiff’s demand, as for the jury in an action to be brought by the defendant against the plaintiff to ascertain the amount of his damage. My opinion is, that the evidence rejected by the Court of Common Pleas, ought to have been admitted, and therefore, the judgment should be reversed, and a venire facias ele novo awarded. Gibson J. If it had been at all necessary to give notice of special matter, it is clear, that the mere circumstance of the party to be affected, having been in fact apprised of the nature of the defence intended to be urged, would not be sufficient to render the evidence admissible. Nothing, but the kind of notice prescribed by the rule of Court can be so; and the rule directs, that it shall be in writing. But it is extremely clear, that in this case, neither pleading nor notice was necessary. The evidence was strictly admissible under the plea of non assumpsit, .for it went to the consideration, which is the gist of the action. The plaintiff claimed for wages due her for having, during a certain period, performed the duty of house-keeper of the defendant. Is it not competent for him to shew she was guilty of malfeasance as such? that she did not demean herself in the execution of her trust in a faithful manner ? and that instead of taking proper care of his house, and the property iti it committed to her charge, she had wantonly wasted his goods or clandestinely given them away ? Assumpsit is an equitable action, and the party claiming performance of the promise, must shew, that every thing is fair and honest on his part. In this case, the consideration of the promise was the performance of a trust;—Shall not the plaintiff be at liberty to. shew that the trust, instead of being performed, was violated? Although, I agree, an action might be maintained by the defendant against the plaintiff for embezzling his property, yet, there is nothing in the evidence that looks like defalcation or special matter, not arising out of, but unconnected with, the plaintiff’s demand. The case of Dale v. Sollet, 4 Burr. 2133, is much stronger in that respect than the present. There the defendant, a ship-broker, had been the plaintiff^ agent in suing for a sum of money. He recovered 2000/. which he paid over, all but 40/. which he retained for his trouble. To an action for money had and received he pleaded the general issue, and offered to prove, that what he' retained was a reasonable allowance. It was objected the evidence was not admissible, without a plea set-off, or at least notice. Lord Mansfield, in delivering the opinion of the Court, said, the plaintiff could recover only what he was in equity and conscience entitled to, which could be no more than what remained, after deducting all just allowances out of the very sum demanded; and that it was not in the nature of a cross demand or mutual debt. Now the 40/. must have been received to the plaintiff’s use, in the first instance, and afterwards, appropriated by the defendant to. the extinguishment of the débt accruing for the trouble he had been put to in transacting the business, and had less to do with the consideration of the assumpsit than the evidence has in the present case. It will be observed, I do not think this evidence admissible as a set-off, but because it was not such. If it were ground of set-off there would be an end of the question; for in that case it should have been pleaded, or at least, notice should have been given. It is on this ground, the counsel for the defendant in error, endeavour to shew the propriety of the decision of the Court below;—and it is for this reason, also, I think the case of Kachlin v. Mulhallon, 2 Dall. 237, is inapplicable. There it was decided, that unliquidated damages could not be set-off, and that the evidence was not admissible, because there zvas a good consideration for the bond, though the defendants had been injured by the subsequent conduct of the plaintiffs. But if the 'matter had affected the consideration of the contract, there is no doubt but by the equitable practice of Pennsylvania, it might have been given in evidence under the plea of payment. I grant that a mere tort, unconnected with the plaintiff’s conduct as house-keeper, could not have any effect on her claim in that character. But the evidence rejected, went to shew, that during the time she was in the defendant’s service, she gave away various articles belonging to him, without his knowledge, and had them carried away from his house to her daughter in Harrisburg, to be used by the latter as her own. This was a breach, on her part, of the contract implied by the law, that she would behave herself in the execution of her office or trust with integrity and fidelity. 3 Com. 162. It, therefore, appears unjust, that he should be compelled to treat her in the first instance as a person having faithfully executed her trust, and be turned round to an action against her for a breach of her part of the agreement. This unnecessary circuity ought to be avoided., The merits of the defence can be tried in this form, with as much convenience to the parties as in a separate suit, and the judgment, if pleaded with proper averments, would be a bar to another action for the same cause ; and no more danger of surprise can arise from admitting this evidence under the plea of non assumpsit, than happens from evidence of coverture, infancy, accord and satisfaction, and a variety of other matters clearly admissible under that plea. The case of Dunlop v. Speer, 3 Binn. 169, at first view appears not to accord with this doctrine. But that was the case of a man who had the re-payment of money secured to him by the assignment of a judgment. He had also a covenant in an article of agreement for the re-payment of the same money. The Court refused to stay proceedings on the judgment, to give the defendant an opportunity of recovering damages on one of the plaintiff’s covenants in the same article, the breach of which was alleged to be misfeasance in his office of founder in the defendant’s iron-works. That was a quite different case. The defendant, at most, was not in a better situation than if the plaintiff had sued on the covenant to re-pay the money, and it is very clear, that to a declaration in covenant, the defendant cannot plead or give in evidence the breach of another covenant by the plaintiff. The damages expected to be recovered for the misfeasance were a distinct matter, unconnected with the payment of the judgment. I am aware of a distinction attempted in some of the English decisions since the American revolution, between those cases where the defendant has receiced some benefit from the imperfect or negligent performance of the contract on the part of the plaintiff, and those where he has received none. That distinction, does not seem to be founded in reason; and those decisions not being authority here, I am not disposed to adopt it. But even if those cases could have any weight on the ground of authority, the law on the subject is by no means settled by them. I cannot find any case in the books directly in point, anterior to the period that British precedents ceased to be authority or quotable in the courts of this state. I, therefore, consider the point open to be decided on principle ; and am of opinion, the evidence should have gone to the jury. It will be perceived I have considered this case, as if the form of action were assumpsit, instead of debt. The act of assembly changing the form of action was not intended,. I apprehend, to vary the rules of evidence. Duncan J. The action is debt under the act of assembly, founded on a verbal promise for work and labour by the defefidant in error, for the plaintiff in error, as house-keeper, and for goods sold and delivered. The pleas non assumpsit and payment with leave, &c. and non assumpsit infra annos. The defendant below, either under the general issue, or 'under the plea of payment, with leave, &c. offered to prove that while the plaintiff was in his service for which she demands these wages and payment for the goods sold, she without his knowledge gave various articles belonging to him, and had them sent and carried away from his house to her daughter in Harrisburg, to be used by her as her own. This testimony was rejected by the Court, and to this there is an exception. I am disposed to consider the case as if notice had been given agreeably to the rules of Court, or as if the specification had been waved; it being the same testimony which was given before arbitrators, and on a trial which had proceeded some length when a juror was withdrawn. This was something more than a mere verbal notice. A communication which might be the subject of altercation, what it really was, and on which each party might put his own interpretation; a loose communication making little impression on the mind would not be a compliance with the rule; but two solemn hearings, in the presence of the party and her counsel, would appear to me to be substantial notice. What the witnesses there swore, in case of their death, might be proved by the notes of the counsel, arbitrators, or judges, verified by oath. A rule of Court intended to prevent fraud and surprise on one party, should never be converted into an instrument of fraud and surprise on the other. But if there had been a formal,, notice, was the testimony admissible ? It is contended by the plaintiff in error, that under the plea of non assumpsit every thing may be given in evidence which will destroy the plaintiff’s cause of action, as infancy, coverture, release, payment. The reason of this is, either that it disaffirms the contract, or shews performance, or that it ought not to be performed on account of some equity in the defendant. But the evidence offered does neither; it was a matter totally distinct and collateral. Any fraud, failure of consideration in that in which the contract was founded, may be given in evidence in Pennsylvania, as in debt a bond under the plea of payment, &c. The rule of Court makes special provision for this; but fraud in another transaction could not. This was the decision in Jefferies v. Steigleman, decid ed in this Court. The consideration of the note was a quantity of blocks for burr mill-stones ; the evidence offered was a fraudulent misrepresentation of their quality; the case fell within the very words of the rule of Court. If the evidence offered had relation to the contract, to the performance of the work and labour, as if it had stated negligence by the plaintiff in the duties of her station, another question would have been offered to the consideration of the Court.’ If it had been offered to prove, that she took the goods and sold them, then the price for which they were sold might, in an action for money had and received, waving the tort, have been recovered, or a set-off made to that amount; so if it had been stated, that they were taken away without the knowledge of the defendant, the value might have been defalked, or considered as a payment,—that the plaintiff received them on account of her services ; but here the charge is purloining and embezzlement of his goods ; it has some marks of larceny in the manner in which the taking and carrying away are stated; at any rate it was tort; trover or trespass the remedy; a tortious taking, and a wrongful conversion ; the cause of action neither arises ex contractu nor quasi ex contractu, but clearly ex delicto; not from non-feasance but malfeasance. Bull.N. P. 181. A set-off cannot be pleaded to. any action on a tort Whether in trespass or case or replevin, where the avowry is for rent. The attempt to remove the' difficulty by considering the opposite demand as originating in the same transaction, and therefore evidence on the plea of payment, does not remove the difficulty; the right must be reciprocal. An action of trespass or trover and no other Could Heck bring against the woman for these articles. Could she have resisted or diminished the amount of damages, by proof that he was indebted to her for servants wages ? The answer must be in the negative; this would form a decisive objection to its admission in this case. The cases in trover are decisive ; the retainer is confined to liens; where the plaintiff has a lien he may retain in trover as well as in any other action. In Green and another v. Farmer and another, 4 Burr. 2214, the rule is correctly laid down, that no provision of the statute of set-off extends to goods or other specific things wrongfully detained, and therefore neither courts of law nor equity can make the plaintiff, who sues for such goods, pay first what is uue to the defendant, except-so far as the goods can be considered as a pledge; and then the right of the plaintiff is only to reclaim. On this is founded the whole doctrine of liens, that Courts of late years lean so much to; but to support the lien there must be an express contract or implied from the usage of trade or the manner of dealing between the parties in a particular case. The general question, says Lord Mansfield, is, whether the plaintiff in this action shall be obliged to do justice to the defendants by paying what is due to them before they are entitled to demand the goods from them, and to recover their value in case of refusal. Natural equity says, the cross demands, should compensate each other, by deducting the lesser from the greater, and that the difference only, is the sum which can be justly due ; but positive law, for the sake of forms of proceeding and convenience of trial, has said, that each must sue and recover separately in separate actions. In Kachlin v. Mulhallon, 2 Dali. 238, payment to debt on bond with leave, &c.; defendants offered to give in evidence the consideration of the bond, and that it was for a tract of land and mills, which the plaintiff sold to the defendant, reserving a right to swell and raise the water so as not to injure the mills; this was rejected. The clear inference from this decision is, that unliquidated damages aris.ing from a covenant connected with a contract, the performance of which is claimed by the action, cannot be given in evidence, either as an equitable defence or by way of set-off,, where such damages sound in tort, and though the remedy of party might be on the covenant. In the valuable reports of the late Mr. Justice Yeates, 1 Yeates, 571, the case is more fully reported; the Court say that the consequence of admitting such evidence would be the blending of the most discordant subjects, matters arising ex contractu and ex delicto. So in Switzer v. Garber, 2 Dall. 239, (in the notes,) the vendor had interrupted the vendee in the enjoyment of a tract of land which he sold; the vendee was not allowed to give this interruption in evidence, in an action brought for the recovery of the purchase money, either as an equitable defence or set-off. But I consider the decision in Dunlop’s lessee v. Speer, 3 Binn. 169, as directly settling this question. On an application to the Court to grant equitable relief on a judgment in ejectment against A, to secure the payment of a sum of money due on articles of agreement which were assigned to secure the money to B, and which A covenanted to re-pay on a certain day, the Court refused to stay execution on this judgment, to give A time to obtain a verdict in consequence of tortious acts by B, in breach of his covenants in the same articles, though it seems they would if A’s claim was for money paid, or any other account susceptible of liquidation. The matter desired to be set-off arose on the same articles in which the party claiming the money, had covenanted to serve Speer in the capacity of a founder at his iron-works ; and the deduction claimed was, because he broke his covenant to serve Speer faithfully as a founder, by decoying away the servants of Speer employed in his iron-works. The Chief Justice observes, that the claims set up by the defendants are acts of non-feasance and misfeasance, such as neglect of duty, and decoying away the servants of the defendant employed in his iron-works, which are incapable of liquidation; if it was money or any other matter capable of liquidation there would be a strong ground to grant the motion. Justice Yeates observes, in such a case as this the failure of B to perform his covenants, such as refusing to fulfil the duties of founder, might be given in evidence under the defalcation act, to diminish his claim; but I do not consider, that debts arising ex delicto for torts, such as bad management, as a founder, or the act of enticing away the workmen, can. It was not a dealing on bond, bill, bargain, promise, account, or the like ; it was a matter of unliquidated damages arising from malfeasance. All dealings between the parties are not subjects of set-off. Could the defendant here have given in evidence a promise of marriage by the plaintiff, and have asked the jury to ascertain the damages on a breach of this promise of marriage, and to strike the balance? Here the action of the defendant must have been tort,—the plea not guilty. But the party is not without his remedy; there is no necessity to introduce this innovation and confusion of all forms of action; of distracting the attention of a jury by a variety of unconnected and discordant matter; Heck had an adequate remedy for the injury ; a substantive and distinct cause of action. I cannot distinguish the demand of wages by a house-keeper from the wages of any other servant; nor can I consider it as any defence by the master, to say you took away and purloined my goods, without my knowledge and against my consent; whether the taking and carrying away would amount to a larceny, or afford an action of trespass ot trover for the wrongful and tortious act. Winchester v. Hackley, 2 Crunch, 343. In an action for money paid and advanced; plea non assumpsit and payment. In the account rendered by the plaintiff, he had credited the defendant for the proceeds of certain flour sold by him as defendant’s factor; but had afterwards charged the defendant-several sums on account of the alleged insolvency of some of the purchasers of the flour. The defendant to repel this evidence, offered to prove that the sums so charged to the defendant, were lost by the mismanagement and misconduct of the plaintiff, in having made sales to persons known to him to be unworthy of credit; but the Circuit Court for the district of Virginia, refused to permit such proof to be made, being of opinion, that such misconduct was properly to be examined into in a suit for that purpose. In an action by the assignee of a bankrupt, as supercargo of a ship, the defendant cannot set-off a claim against the bankrupt for not keeping the vessel insured according to his undertaking, beingunliquidated damages. Brown v. Cumming, 2 Caines, 33. Now all these cases respected the act of the party in the transaction on which the assumpsit was founded. I am therefore of opinion, the testimony was properly rejected; but differing from the majority of the Court, the judgment must be reversed. Judgment reversed, and a venire facias de novo awarded.

Per Curiam. If the proceeding were imperfect when the act under which it was begun expired, what has been done since is simply void, and needs no reversal. It has, however, not been thought to be directly examinable here. The books show no instance of it, and we are satisfied the present attempt cannot be sustained. Writ of certiorari quashed.

Opinion by Mr. Justice Frazer, Defendant appeals from the judgment of the Superior Court affirming the Court of Quarter Sessions of Philadelphia County entered on a verdict of guilty on an indictment charging defendant with a misdemeanor in violating the Act of June 17, 1915, P. L. 1012, “Regulating the business of loaning money in sums of three hundred ($300) dollars or less” and prescribing penalties for its violation. The principal contention is that the statute is unconstitutional as special legislation, though appellant also questions the sufficiency of the title and whether the act is an improper delegation of legislative power to> the banking commissioner. In view of the decision of this court in Commonwealth v. Young, 248 Pa. 458, relied upon by defendant, in which we held an act, in many respects similar to the one under discussion, approved June 5, 1913, P. L. 429, to be unconstitutional as class legislation, a comparison of the provisions of that act with the present one is important for the purpose of ascertaining whether there is in fact such distinction between the two as to warrant a different conclusion in the present case — bearing in mind the rule that every presumption is in favor of the validity of the exercise of legislative power, and that the act must be upheld unless its provisions plainly violate a constitutional mandate: Sharpless et al. v. Mayor, Etc., 21 Pa. 147, 164; Commonwealth v. Butler, 99 Pa. 535, 540; Commonwealth v. Grossman, 248 Pa. 11, 14. The Act of 1913 referred to provided for the licensing of money lenders under the supervision of the Court of Quarter Sessions, the relevant provisions for the purpose of this discussion being found in section two, which reads as follows: “Any person, copartnership, association, or corporation who shall obtain a license, in accordance with the provisions of section one of this act, shall be entitled to loan money at his, their, or its place of business, for which said license is issued, and to charge the borrowers thereof, for its use or loan, interest not to exceed the rate of six per centum per annum, and a brokerage fee of not more than one-tenth of the amount actually loaned. No charge, in addition to the said interest and brokerage fee shall be exacted, charged, or collected, excepting an examination fee of not more than one dollar on all loans not exceeding fifty dollars in amount.” The Act of 1915, on the other hand, substitutes the discretion of the banking commissioner for the discretion of the Court of Quarter Sessions, and, after regulating- the procedure on application for a license and specifying the necessary qualifications of the applicant, provides further in section two that: “Any person, persons, copartnership, association, or corporation who shall obtain a license, in accordance with the provisions of section one of this act, shall be entitled to loan money in sums of three hundred ($300) dollars or less, either with or without security, to individuals pressed for lack of funds to meet immediate necessities, at his, their, or its place of business, for which said license is issued, and to charge the borrowers thereof, for its use or loan, interest as follows: Upon loans not exceeding one hundred ($100) dollars in amount, not more than three (3) per centum per month; upon loans exceeding one hundred ($100) dollars in amount, and not exceeding three hundred ($300) dollars, not more than two (2) per centum per month; and, in addition, in any case in which the loan is. made for a period of not less than four (4) months, on sums not exceeding fifty ($50) dollars in amount, an examination fee of not more than one ($1) dollar; on sums exceeding fifty ($50) dollars, an examination fee of not more than two ($2) dollars, may be charged, for examining the security offered or the credit and responsibility of the borrower. No charge of any kind, in addition to interest, shall be made on a loan of less than fifteen ($15) dollars. No charge, in addition to the said interest and examination fee, shall be exacted, charged, or collected.” The distinction between the classifications under the two acts, if any, must rest upon the construction of the provisions above quoted. In the Act of 1913 there is no limit to the amount of the loans, nor is there a clearly defined class of borrowers. Under that act a person procuring a license was privileged to charge interest at the rate of six per cent, and a brokerage and examination fee not in excess of that provided for in the act, regardless of circumstances or amount of the loan. The statute being general in its scope and no reason appearing on its face for classifying persons complying with its provisions, this court concluded it violated Article III, Section 7, of the Constitution of Pennsylvania, forbidding the passage of any local or special law fixing the rate of interest. That this was the basis of the decision in Commonwealth v. Young, supra, appears from the following language in the opinion (page 461) : “The general scheme of the act is, to create into a class persons absolutely undistinguishable from the entire body of citizenship by anything suggesting a differentiation with respect to rights, privileges, immunities, or peculiarities, whether arising out of personal or business relations, and then to invest such class with a privilege denied to all not within the class, namely, the right to collect on money loaned a rate of interest in excess of that to which all others are confined. So much is beyond all question.” On the other hand, the Act of 1915 confines the class of loans to those not exceeding three hundred dollars and defines the class of borrowers as “individuals pressed by lack of funds to meet immediate necessities.” It thus appears all persons are eliminated from taking the benefit of the act except those who desire to make loans not exceeding three hundred dollars in amount. Commonwealth v. Young did not decide the legislature might not pass a law regulating the business of loaning money in small sums. On the contrary, the opinion recognizes this right if a proper basis of classification can be found as appears from the following language (page 461-3): “Whether such persons stand in need of further facilities of this character, or whether it is practicable by legislative action to afford the relief needed, are questions wholly aside. This one fact stands out with a distinctiveness that makes it unmistakable and indisputable— the necessary and only effect of this act must be, not to benefit such as are necessitous, but to advantage a class of persons who, however they may have qualified by showing that none in the class have been convicted of certain crimes and misdemeanors, are yet willing to pay for the privilege of exacting from those made dependent by their necessities, a rate of interest more than six times the rate borrowers with larger means can be compelled to pay.......In what we have said our purpose has been simply to show that the one certain effect of the act is to create a distinct class out of persons having in common, as between themselves, no peculiarities whether of person or business, or anything else, distinguishing them from any other class, and investing the class thus artificially created with special and exclusive privilege with respect to interest charges on money loaned. From our study of the act we see no escape from the conclusions above expressed.” It remains only to consider whether or not the basis of classification adopted in the Act of 1915 is a proper one. In Ayars’ App., 122 Pa. 266, it was held classification to be valid must be based upon (page 281) “a necessity springing from manifest peculiarities, clearly distin guishing those [members] of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others.” Classification is a legislative question subject to judicial revision only so far as to see it is founded on real and not merely artificial distinctions, and, if the distinctions are genuine, the court cannot declare the classification void, though they may not consider the basis to be sound. The test is not wisdom, but good faith, in the classification: Seabolt v. Commissioners, 187 Pa. 318; Commonwealth v. Grossman, 248 Pa. 11. In construing a statute the presumption is that it is a valid exercise of legislative power and the burden is upon one who attacks its validity to show a clear violation of the constitutional provision. “The legislature is the sole judge of the wisdom and expediency of a statute, as well as of the necessity for its enactment, and whether the legislation be wise, expedient or necessary is without importance to the court in determining its constitutionality. In other words, the assembly has a free hand to legislate on every subject in such manner as it deems proper unless there is a constitutional prohibition clearly expressed or necessarily implied”: Commonwealth v. Grossman, supra. Applying the foregoing principles to the present case the fundamental question is whether a necessity exists demanding legislation for the class of money lenders in sums of three hundred dollars or less to those of limited means who would otherwise be unable to procure needed funds, and whether classification adopted to meet such necessity is based on a real and not merely an artificial distinction. The subject-matter of the act has been before the public and under investigation and discussion for a number of years, not only in this jurisdiction but in other states as well, and has resulted in the adopting of somewhat similar legislation in probably half the states of the union. The attempt in recent years to eradicate the evils of the so-called “money loan sharks” by proceedings instituted in Philadelphia and Pittsburgh is a matter of general public knowledge and those who have given the matter close investigation and thought concede that a prohibition of the business does not accomplish the desired result, and that the only practical method of dealing with the subject is by proper regulation. Our legislature, in a preamble to the Act of 19.15, omitted from the pamphlet laws but shown in the certified copy of the act from the office of the secretary of the Commonwealth, recognizes the situation and the impracticability of prohibiting the business of loaning money in small amounts and the need of regulation and supervision by law, and also the fact that such loans are necessarily attended with greater risk than is ordinarily incident to lending money by banks, pawn brokers and others who loan only on approved collateral. The fact that loans of this nature rarely exceed the sum of three hundred dollars is ad: mitted, and the adoption of the amount named as a limitation affords a proper criterion for a classification in so far as the peculiar nature and character of the business is concerned. The matter of fixing the maximum amount to be charged for the use of money rests primarily in the discretion of the legislature and is within the police power of the State: Griffith v. Connecticut, 218 U. S. 563. Statutes passed at various times by our State. legislature recognize certain businesses to be in a separate class and authorize as to them a departure from the regular rate of interest fixed by the general law. For example, building and loan associations are permitted to charge a premium on loans in excess of the legal rate. There exists in the present case both a necessity and a valid basis for classification of the business of loaning money in small amounts, with or without security, and the distinction between the present law and the Act of 1913, which was declared unconstitutional in Commonwealth v. Young, supra, furnishes adequate support for the conclusion of the court below that the present act cannot be condemned on the ground of improper classification. Appellant also contends the title of the act is insufficient to give notice of the provision for criminal punishment of one who loans money without procuring a license. The title is “An act regulating the business of loaning money in sums of three hundred ($300) dollars or less......; fixing the rates of interest and charges therefor; requiring the licensing of .lenders; and prescribing penalties ‘for the violation of this act.” All the Constitution requires is that the title of an act shall fairly give notice of its subject-matter, to reasonably direct the inquirer to the contents: Allegheny County Home’s Case, 77 Pa. 77; Bridgewater Boro. v. Big Beaver Bridge Co., 210 Pa. 105. Certainly the use of the word “penalties” should put the inquirer upon notice that a violation of the statute’s provisions would be followed by either civil or criminal punishment, or both. Neither is there merit in the argument that the act is an improper delegation of legislative discretion to the banking commissioner by whom the licenses are to be issued. As was stated by the Superior Court the appeal is not from an act of the banking commissioner, or from his refusal to act, as it is conceded defendant did not apply for a license or otherwise attempt to> bring himself within the provisions of the statute. The mere fact of the commissioner being given power to grant a license to applicants, in his discretion, if satisfied the character and general fitness of the applicant is such as to warrant the conclusion that the business will be honestly conducted, is not a grant of legislative discretion, as the legislature has fully described the conditions under which he is to act. There are various statutes on our books in which discretion is given to a public official or board to determine the qualifications of applicants for license to carry on a particular kind of business, among which we may refer to the Act of March 19, 1.909, P. L. 46, relating to the qualification of osteopathic physicians, the Acts of June 19, 1911, P. L. 1067, and May 15, 1915, P. L. 534, creating a state board of censors of moving pictures, the latter were upheld in Buffalo Branch Mutual Film Corporation v. Breitinger, 250 Pa. 225, and Franklin Film Manufacturing Co., 253 Pa. 422, and the Act of July 22, 1913, P. L. 928, creating a Livestock Sanitary Board, upheld in Commonwealth v. Falk, 59 Pa. Superior Ct. 217. In Engel v. O’Malley, 219 U. S. 128, the New York Private Bankers’ Act vesting the granting of licenses in the state controller was sustained. The case of O’Neil et al. v. American Fire Insurance Co., 166 Pa. 72, relied upon by defendant, is not controlling here; in that case, as we pointed out in Jermyn v. Scranton, 186 Pa. 595, 602, there was an attempt to delegate to a single individual the power to prescribe a compulsory form of contract between private parties, leaving to the official the full power to prescribe the form and enforce its use. The judgment is affirmed.

Opinion by Mr. Justice Drew, Elizabeth B. Smith entered the employ of the School District of Philadelphia as an elementary school teacher on June 1, 1903, and has continued in that position to this day, without ever having had a written contract for such employment. On her petition the Court of Common Pleas of Philadelphia County issued a writ of alternative mandamus to compel the School District to exe cute a written contract with her for an annual compensation of $2,400, to which amount she alleged she was entitled by the terms of the Teachers’ Tenure Act of April 6, 1937, P. L. 213, amending the Act of May 18, 1911, P. L. 309, known as the School Code. The School District filed an answer thereto, averring, among other things, that it had tendered her a written contract in accordance with the Tenure Act in the sum of $2,200, which it alleged was the proper annual compensation under the terms of her employment, and that she should be compelled to accept that contract if she desires to continue her employment with the School District. Upon the petition and answer, together with a stipulation later entered into by the parties as to certain facts relative to the employment and salary of appellee, the by-laws and rules of the School District, and the salary changes made by the latter, the-lower court entered judgment as prayed for and directed that a peremptory writ of mandamus issue. The School District then took this appeal. The first question for our determination is whether or not there existed any contractual relationship between the School District and appellee on April 6, 1937, the effective date of the Tenure Act. Unless a valid and enforceable contract did exist at that time, the appellee, of course, could have no legal basis for refusing to accept the contract tendered her. We have no doubt that such a contract did exist. The School District appointed appellee as a teacher; she accepted and served under that appointment for more than a third of a century, and continues so to do at the present time. There is no merit in the contention of the School District that prior to the enactment of the Tenure Act it had no power to contract as to salaries of its teachers. In Teachers’ Tenure Act Cases, 329 Pa. 213, 226, this Court said: “It is useless to say that the school teachers do not have contracts of employment. They have contracts, expressly so denominated by the legislature. They are so in substance and form. Actions in assumpsit by school teachers for the enforcement of contractual rights have been recognized : Costello v. School Dist., 241 Pa. 179; see Potts v. Penn Township School Dist., 127 Pa. Superior Ct. 173. In this respect the teachers differ from other governmental employees who hold their position solely by tenure of appointment, without express contractual rights.” It is thus apparent that at the time the Tenure Act became effective, appellee was performing her duties as a teacher under a valid contract, and was, therefore, entitled to receive a new written contract as provided by that Act. The main question then for consideration is in what amount should that contract be drawn. Appellee contends, and the lower court held, that at the effective date of the Tenure Act her contract was for $2,400 per year and consequently the School District was required to offer her a new contract in that amount. With this we do not agree. Section 1210 of the School Code, providing for minimum salaries for all teachers, was amended by the Act of July 10, 1919, P. L. 910; Act of April 28, 1921, P. L. 328; Act of May 23, 1923, P. L. 328, and Act of March 12, 1929, P. L. 18. The amendment of 1921, as subsequently amended, contains what is generally known as the Edmonds Salary Schedule. Under this legislation, the minimum salary which appellants were required to pay appellee for the year 1937 was $2,200. In the amendment of 1919, as amended in 1921, the legislature, after setting up the statutory minimum, provided: “Nothing in this act contained shall be construed ... to prevent the adoption of any salary schedule in conformity with the provisions of this act.” (Italics ours.) Pursuant to this grant of authority, the School District adopted in 1921 a salary schedule, which was amended in 1926 and readopted in 1928 as Buie VIII of the By-laws and Buies of the School District. By Section 1 of this Buie, it was provided, inter alia: “This schedule shall take effect as of May 1, 1926, provided that the salary of any employe who shall con tinue to hold his or her present position shall not he reduced in consequence of the adoption of this schedule except by direction of the Board.” (Italics ours.) By this provision, the School District reserved the right, as authorized by the Edmonds Salary Schedule, at any time in the future to reduce the salary of any teacher, as long as such reduction did not set the salary below the minimum provided by the Edmonds Salary Schedule. That this was the understanding of the parties is evidenced by the fact that prior to the Tenure Act the School District, on several occasions, exercised its right to make salary reductions and payments of the salary so reduced were accepted by all of appellants’ employees, including appellee, without complaint. These by-laws and rules, as well as all provisions of the School Code, became a part of the contract between appellants and appellee. A school district is an agency of the Commonwealth and as such a quasi-corporation for the sole purpose of administering the system of public education: Wilson v. Philadelphia School District, 328 Pa. 225, 231. It is, therefore, subject to the familiar principle that by-laws and rules of corporate bodies intended to effect and induce action by third persons are binding upon the corporate body when accepted and relied upon by such persons: Morris v. Board of Education of City of New York, 104 N. Y. S. 979; Fletcher, Cyclopedia, Corporations (Rev. Ed.), Vol. 8, Section 4197; see Costello v. School District, supra. Appellee’s argument that the schedule set up by the by-laws and rules could not be changed is thus without merit, since both the School Code, as amended, and the by-laws and rules themselves permitted such reduction. On November 20, 1936, the School District adopted a resolution fixing appellee’s salary for 1937 at |2,300, which action the School Board had the legal right to do. Under the authority of Teachers’ Tenure Act Cases, supra, (Malone v. Hayden, page 235; Ditty v. Weiss, page 237), which held that the new contract must carry over the existing salary, appellee was, therefore, entitled to a contract for $2,300 per year, if, under the circumstances of the instant case, the further reduction to $2,200 would he in conflict with the provisions of the Tenure Act. The fact that by the terms, of the old contract the School District had the right to make demotions in salary would not alone permit a further reduction, since once the Act became effective this right could not be exercised if it were in violation of the Act. Section 3 of the Act provides, inter alia: “. . . there shall be no demotion of any professional employe, either in salary or in type of position, without the consent of the said employe, or if such consent is not received, then such demotion shall be subject to the right to a hearing before the board of school directors. ...” The contract offered to appellee in the sum of $2,200 was not one in violation of the above section, since the reduction made did not affect appellee alone. The entire salary schedule of the School District was reduced, and in no case did the modifications place the salaries below the minimum set by the Edmonds Salary Schedule. Because of the perilous financial situation of the School District, these reductions were of absolute necessity. Under existing financial and economic conditions, it was impossible to continue the higher salary rates, and had no modified salary schedule been adopted by the School District, it would have been necessary to close many schools and in various other ways curtail the educational program. The recent decision of this Court, in Ehret v. School District of the Borough of Kulpmont, 333 Pa. 518, clearly shows that a general reduction of salaries may be made where a school district cannot continue to pay existing salaries without disrupting its entire financial scheme and where to do so would threaten its ability to properly carry out its functions. In that case, Mr. Chief Justice Kephart, speaking for the Court, said: “As we have stated before, the purpose of the Tenure Act was to maintain an adequate and competent teaching staff, free from political and personal arbitrary interference, whereby capable and competent teachers might feel secure and more efficiently perform their duty of instruction, but it was not the intention of the legislature to confer any special privileges or immunities upon professional employees to retain permanently their position and pay regardless of a place to work and pupils to be taught; nor was it the intention of the legislature to have the Tenure Act interfere with the control of school policy and the courses of study selected by the administrative bodies; nor was it the intention of the legislature to disrupt a school district’s financial scheme, which must be operated upon a budget limited by the Code, that cannot be exceeded except in the manner provided by the legislature.” (Italics ours.) The Tenure Act is but an amendment to the School Code, and should be construed in conjunction with the other provisions of the Code to effectuate its purpose as a whole. By the provisions of the Code, a school district must operate on a strictly limited budget and changes can be made only in the manner provided by the legislature (School Code, Section 532, as amended); Furthermore, if the School District were required to maintain forever its salary schedule, it must in some manner be accorded the right to secure the necessary funds. But its ability to levy taxes is strictly limited by statute (School Code, Section 521, as amended), and by the provisions of our Constitution: Wilson v. Phila. School Dist., supra. It is obvious that the legislature did not intend that Sec. 3 of the Tenure Act should be construed to “freeze” salaries above the statutory minimum schedules where to do so would bind the school district to contracts for which it could not legally secure the required revenue. In order to protect teachers in their tenure of position, sections 2 and 6 of the Tenure Act provide that contracts should be of permanent duration, unless terminated in accordance with the provisions of the Act. To prevent a school district from attempting to avoid the tenure of office thus guaranteed by reducing the salary of particular teachers to such a low amount that they would be forced to resign, the legislature provided in section 3 that demotions in position or salary could be made only by complying with the provisions of that section. The word “demotion” as used therein means a reduction of particular teachers in salary or in type of position as compared with other teachers having the same status. But where there is a general adjustment of the salaries of all teachers with no consequent individual discrimination, the relative grade or rank of any particular teacher remains the same, and there has been no “demotion” of any particular teacher within the meaning of the word as there used. Section 3 of the Tenure Act requires that where there is a “demotion in salary” there shall be a hearing in the same manner as provided in case of dismissal. Section 2 sets forth the procedure to be followed in conducting such hearings. It is tliere provided that charges shall be filed against the teacher and that at the hearing evidence shall be presented relative to those charges. The purpose of the hearing under this section is to protect the teachers from arbitrary discrimination by being subjected to unfounded or inadequate charges. In the pres ent case, however, it is evident that there are no charges which can be filed against the teacher, and it is therefore apparent that it was not the legislative purpose to include this type of reduction as a “demotion in salary” within the meaning of section 3 so as to require a hearing. The legislature did not intend to thus restrict the power of the School District to make a general adjustment of all salaries to the statutory minimum where the financial condition of the district required that such action be taken. In the instant case, there was no discrimination and the reduction was not made for the purpose of evading the provisions giving the teachers permanent tenure of office. There was no “demotion in salary” within the meaning of the Tenure Act. For the foregoing reasons, the School District was entitled to make the salary reductions effected by the resolution of January 11,1938. Therefore, appellants should be directed to enter into a contract with appellee, in the manner and form prescribed by the Tenure Act, in the sum of $2,200. The record is remitted to the court below for the purpose of entering a judgment in conformity herewith. Judgment, as modified, affirmed; costs to be paid by appellants. In 1937 the School District had a deficit of $1,141,000; for the year 1938 the operating deficit amounted to $7,964,968, making a total shortage for the two years of $9,105,968, which shortage was met by issuing bonds in the amount of $8,350,000, secured by a pledge of all delinquent taxes owed to the School District. For the year 1939, by permitting a reduction of teachers’ salaries to the Edmonds statutory minimum, the School District’s expenses are estimated at $32,753,061, and the total revenues are estimated at $27,863,725; making an estimated deficit for the year 1939 of $4,889,336. If the School District is required to pay salaries at its original schedule, from the effective date of the Tenure Act, without permitting any reduction, this estimated deficit would be increased by the sum of $2,700,000, thus making a total probable deficit for the year 1939 of $7,589,336.

OPINION LARSEN, Justice. This appeal involves two actions to quiet title brought by appellants, Charles and Dolores Teslovich, to establish title to a 29-acre parcel of land purchased from the Fayette County Tax Claim Bureau in 1971. As the actions involve identical questions of law and fact, they were consolidated for trial and appeal. Rosetta A. Shroyer, the appellee, and her now deceased husband, Garfield Shroyer, resided together on a 15-acre tract of land at Mill Run in Fayette County. The Shroyers owned this parcel and the 29-acre tract of land adjoining it as tenants by the entireties. In 1968, as a result of marital difficulties, Mrs. Shroyer left the home she shared with her husband and took up a separate residence. The taxes on the two parcels of land became delinquent and, in June of 1970, Mrs. Shroyer went to the Fayette County Tax Claim Bureau to begin payment on the delinquency and notify the Bureau of her change of address to Melcroft, Pennsylvania. Several months later, Mrs. Shroyer moved to Indianhead, Pennsylvania, leaving her forwarding address with the Melcroft Post Office. She subsequently sent a money order to the Fayette County Tax Claim Bureau with instructions to apply the proceeds to the delinquency. The Bureau, apparently through oversight, applied the money only to the deficiency on the 15-acre parcel and, since the payment made by Mrs. Shroyer exceeded this deficiency, the Bureau sent her an overpayment refund along with the receipt for the monies that had been applied to the deficiency. Approximately two months later, the Fayette County Tax Claim Bureau mailed a notice of their intention to sell the 29-acre parcel for delinquent taxes to “Garfield and Rosetta Shroyer, Melcroft, Pennsylvania” by registered mail, personal addressee only return receipt requested. The Melcroft postal authorities forwarded this notice to Garfield Shroyer, the first named addressee on the envelope, at the Mill Run address. Mr. Shroyer, who could neither read nor write, received the notice on June 18, 1971 and placed his mark (an “X”) on the return receipt. Mr. Shroyer had not communicated with his wife since their separation in 1968, and he did not forward the notice to her or, assuming he learned its contents and import, in any way inform her of the same. The tax sale was held on October 14, 1971 and, as a result thereof, the Fayette County Tax Claim Bureau deeded the 29-acre tract to appellants, Charles and Dolores Teslovich, in February of 1972. Approximately two years later, the appellants commenced the instant actions to quiet title. Mrs. Shroyer received notice of these actions and, for the first time, learned of the tax sale that had taken place in 1971. She answered- the appellants’ complaints alleging that the Tax Claim Bureau had not given her proper notice of the tax sale and that it was therefore invalid. The Common Pleas Court of Fayette County held that the notice was sufficient and entered an order quieting title and barring Mrs. Shroyer from asserting any claim or interest in the real estate. After her exceptions to this order were dismissed by the court en banc, Mrs. Shroyer appealed to the Commonwealth Court. The Commonwealth Court, 37 Pa.Cmwlth. 449, 391 A.2d 11, reversed the order of the Fayette County Common Pleas Court and set the tax sale aside. Appellants then filed a petition for allowance of appeal which was granted by this Court. Section 602 of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, art. VI, § 602, as amended, 72 P.S. § 5860.602, provides in pertinent part: “. . . notice of the sale shall also be given by the bureau, at least ten (10) days before the date of the sale, by United States registered mail[ ], personal addressee only return receipt requested, postage prepaid, to each owner as defined by this act . . . ” (emphasis supplied) The question presented by the instant appeal is whether one jointly-addressed notice to tenants by the entireties satisfies these statutory requirements. Appellant urges that the proper interpretation of the critical phrase, “to each owner”, is that set forth in Auritt v. Wheatcroft, 2 Pa.Cmwlth. 408, 278 A.2d 172 (1971), and its progeny. In that line of cases, the Commonwealth Court held that one notice addressed to both husband and wife who are living together and holding property as tenants by the entireties “conforms to both the spirit and the letter of the law.” Id., 2 Pa.Cmwlth. at 413, 278 A.2d at 175. We disagree. The Statutory Construction Act of 1972, Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. §§ 1501-1991 (Supp. 1978-79), sets forth rules of construction which, as a general rule, are to be observed in construing the provisions of statutes finally enacted on or after September 1, 1937. See 1 Pa.C.S.A. §§ 1502(a) and 1901. Initially, these rules provide that non-technical words and phrases are to be construed “according to their common and approved usage.” 1 Pa.C.S.A. § 1903(a). “Each” is a nontechnical word which Webster’s Dictionary (unabridged 2nd ed. 1976) defines as “every one of two or more considered or treated distinctly from the rest.” The statutory requirement of “notice ... to each owner” must thus be construed to mean that every owner will be considered and treated as distinct from the others and, consequently, that tenants by the entireties are entitled to separate and individual notice. Auritt v. Wheatcroft, supra (Judge Manderino, now Justice Manderino, dissenting). The rules also provide that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). In Ross Appeal, 366 Pa. 100, 107, 76 A.2d 749, 753 (1950), this Court stated: “The strict provisions of the Real Estate Tax Sale Law were never meant to punish taxpayers who omitted through oversight or error (from which the best of us are never exempt) to pay their taxes. Tax acts were rather meant to protect the local government against wilful, persistent long standing delinquents for whom we hold no brief, and to whom the appellate court decisions have consistently given short shrift.” The instant case amply demonstrates the frustration of legislative purpose which can occur when the notice provisions of section 602 of the Real Estate Tax Sale Law are construed to permit a single notice to tenants by the entire-ties. Mrs. Shroyer is not, nor is she alleged to be, a “wilful, persistent, long standing delinquent”. She went to the Fayette County Tax Claim Bureau of her own initiative, notified them of her whereabouts, and began making payments on the tax delinquency that had accumulated since the separation from her husband; she continued to mail payments to that Bureau until the Bureau erred and sent her a refund which indicated that she no longer had a tax delinquency; and she asserted her property rights at the first available opportunity after learning of the actions taken by the Bureau and the reasons therefor. To interpret section 602 of the Real Estate Tax Sale Law to permit a single notice to tenants by the entireties is to countenance the taking of a citizen’s property under circumstances such as those presented here. Such a taking is completely unrelated to the protection of local government and amounts to no more than a trap for unwary taxpayers. As a consequence, we find that section 602 of the Real Estate Tax Sale Law requires separate and individual notice to each named owner of property; regardless of whether that owner holds in common, in joint, or by the entireties. “The notice provisions of the tax sale statute must be strictly complied with in order to guard against the deprivation of property without due process of law. [citations omitted].” Chester County Tax Claim Bureau Appeal, 208 Pa.Super. 384, 387, 222 A.2d 602, 604 (1966). As the notice required by the act was not given in the instant case, the tax sale is invalid and must be set aside. Ross Appeal, 366 Pa. 100, 76 A.2d 749 (1950). We recognize that this construction of section 602 may cast clouds upon titles which were obtained at tax sales conducted in accordance with the Auritt v. Wheatcroft line of cases, and which were heretofore believed to be clear titles. In order to obviate this problem, today’s construction will be given prospective effect only. All future notices must, therefore conform to this opinion. We also realize that immediate compliance with today’s decision may place an undue burden on tax claim bureaus. We therefore suspend the effect of today’s decision (except as applied to the instant case) for a period of 30 days, said 30-day period to commence upon the filing of this opinion. The order of the Commonwealth Court setting aside the tax sale is affirmed. ROBERTS, J., filed a concurring and dissenting opinion. NIX, J., filed a concurring and dissenting opinion. MANDERINO, J., filed a concurring and dissenting opinion. . This statute was amended by the Act of September 27, 1973, P.L. 268, No. 74, § 6, and “certified mail” was substituted for “registered mail.” That amendment is not, however, applicable to the instant case. . The Commonwealth Court found the Auritt v. Wheatcroñ line of cases inapplicable to the instant matter because appellee and her husband were not “living together.” Appellants argue that this is of no consequence. They assert that Auritt v. Wheatcroñ. permits a single jointly-addressed notice to tenants by the entireties and that when the tenants are not living together, the notice is only insufficient as to the tenant to whom the notice is not sent. Appellants conclude that the appellee may not complain as the notice was mailed to her last known address, and denominate the forwarding of the notice to appellee’s husband a mail miscarriage which should be borne by the delinquent taxpayer. See Hess v. Westerwick, 366 Pa. 90, 76 A.2d 745 (1950). Since we find that Auritt v. Wheatcroñ incorrectly interpreted the notice required by section 602 of the Real Estate Tax Sale Law for tenants by the entireties, whether living together or not, it is unnecessary to deal with these contentions.

Tilghman C. J. This cause was tried before judge TeateS "at nisi prius in December 1808; and on the trial a point was reserved, on which it is now brought before the court. The action was brought to recover damages for breach of a written agreement, by which the defendant engaged to purchase a tract of land the property of the plaintiff. The agreement was signed by the defendant and by Jacob S. Otto, who was alleged by the plaintiff to be his agent. It was objected by the defendant, that supposing Otto to be the agent, it was necessary that his authority from the plaintiff should have been in writing. The point reserved by the judge was “ whether under “ the circumstances of this case, J. S. Otto should not have “ been authorized in tur it trig, to make the contract on which “ the suit was brought to recover damages.” The facts in the cause were to be decided by the jury, taking it for granted that the authority need not be in writing. The act of assembly “ for prevention of frauds and perju- “ ries,” on which this point arises, provides that “ all leases, “ estates, interests of freehold or term of years, or any uncer- “ tain interest of, in, or out of, any messuages, manors, lands, tenements or hereditaments, made or created by livery and “ seisin only, or by parol, and not put in writing, and signed “ by the parties so making or creating the same, or their agents “ thereunto lawfully authorized by writing, shall have the force “ and effect of leases or estates at will only, and shall not either “ in law or equity be deemed or taken to have any other or “ greater force or effect, except leases not exceeding the term “ of three years from the making thereof.” It is evident that this provision extends only to the estate intended to be passed. No estate in lands shall be conveyed by One person to another, unless the agent is authorized by writing. But it is one thing to convey an estate, and another and very different thing to make an agreement that you will convey it. It might be good policy to establish certain solemnities, without which the title of land could not be transferred; because the peace and happiness of society are promoted by the clearness and facility with which the titles of real estate may be ascertained, and by preventing those frauds and perjuries which would inevitably take place, if after a great length of time it was permitted to establish a title by parol evidence only. Whereas, an action for damages for not performing a contract, is of much less moment. The jury may give such damages as, under the circumstances of each case, appear reasonable, and these damages will often be very small; and there is less danger of perjury, because those actions are limited, so that they must be commenced in six years. I should think the case sufficiently clear, if it was taken upon the act of assembly, without any other consideration; but it is still clearer, when we turn to the English statute of frauds and perjuries, 29 C. 2. c, 3. It is plain that our legislature had that statute before them, when they framed the act in question; because that part of our law which I have recited, is copied very nearly verbatim from the English law. But there is a total omission of the fourth section of the English statute, which enacts, that no action shall be brought to recover damages upon any “ contract or sale of “ lands, tenements, or hereditaments, or any interest in or con- “ cerning the same, unless the agreement on which it is brought, “ or some memorandum or note thereof, shall be in writing, 4‘ and signed by the party to be charged therewith, or some “ other person thereunto by him lawfully authorised.” It is impossible that this omission should have been accidental. It must have been intended to leave the common law unaltered, as to the redress which it affords for breach of a parol contract, by recovery of damages,. Agreeable to this construction is the .sentiment expressed by this court, in the case of Bell v. Andrews, 4 Dall, 152.; although the point now in contest is different from that which was then before them. The same construction has been given in several cases at nisi prius, in which damages have been recovered on parol contracts for sale of lands. But the defendant’s counsel have contended that if the opinion of the court on the reserved point is against them, they ought to have a new trial; because they proved to the jury that Otto had no authority to make the sale at the time the writing was signed, nor at the time when the first payment was to have been made by the defendant. In the first place it must be remarked, that no motion for a new trial was made, and the four days for making it are out, so that no motion can now be received. It has been urged, that still, if the court perceive by the judge’s report of this case, that manifest injustice has been done to the defendant, they will take the matter up themselves, and order a new trial. AlHhat I shall say at present is, that it must be an exceedingly clear error indeed that should induce. • "me to interfere, after the four days have expired without a motion for a new trial. Nor will I commit myself by saying, whether or not I should think myself justified in doing so, in any case of a civil nature. It is enough that in the present case, I am by no means satisfied that any injustice has been done to the defendant. There is no proof that, as his counsel contend, he tendered the money due for the first payment, and that Otto refused to receive it because the plaintiff had not ratified the contract; nor even that he had the money ready to’ tender. The testimony of the witness, on whom he relies to prove that Otto said he had no authority to make the sale, is not free from considerable inconsistency. It was established beyond doubt, that as soon as the plaintiff was informed of the contract, which was not more than ten days from its making, he gave his assent to it; that possession was offered to the defendant on the thirtieth of November, the day appointed for that purpose; and that at the time fixed for making the last payment, the plaintiff tendered the defendant a deed of conveyance in fee simple. Thus every act of the plaintiff tended to a faithful performance of his part of the agreement; while the defendant’s whole conduct evinced an intention to fly off. And what has great weight with me, judge Yeates, before whom the cause was tried, and who had a better view of the evidence than we now have, is well satisfied that injustice has not been done by the verdict. My opinion therefore is, that a new trial should not be granted.

Tilghman C. J. The defendant’s counsel object to this indictment as being too general and not expressing any offence with sufficient certainty. [Here the Chief Justice stated the indictment]. The case of the King v. Higginson, 2 Burr. 1232, is very much like this. The only difference is, that instead of drinking, tippling, &c., Higginson is charged with procuring persons to come to his house, and permitting them to remain there, “ fighting of cocks, boxing, “playing at cudgels, and misbehaving themselves to the “ great damage and common nuisance, &c.” The same objection was made to that indictment, yet it was held good. Besides, it is of great weight that this form of indictment is of ancient date in this state, and there have been many convictions under it. I am therefore of opinion that it is sufficient. There is another exception to be considered, relating to certain evidence admitted on the trial. Sarah Bond, a witness for the commonwealth, having proved several facts, tending to shew, that Stewart kept a disorderly house, was permitted to testify, “ that the house was a matter of general “ complaint by the neighbours, as disturbing them.” It seems that the gentlemen who prosecute for the commonwealth have been in the habit of asking questions of this kind. But the practice has not been acquiesced in, and is now brought before this court for decision. It is agreed on all hands, that this is not one of those cases in which hearsay evidence can be admitted. But it is contended, that the complaint of the neighbourhood is a matter of fact, and therefore, when the witness proves the complaint, she only proves a fact zvithin her ozvn knozvledge. I am not satisfied with this ingenious distinction, which gets round and avoids an important rule of evidence. In the same way all hearsay evidence may be introduced, for it is always a fact, that the witness hears the other person speak, and it is a fact that the words spoken by that person were heard by the witness. But what is the consequence of receiving testimony of this kind? The jury are influenced by declarations not made upon oath, and the adverse party is deprived of the benefit of cross-examining the person making those declarations. Let us analyse Mrs. Bond^s testimony. “ The house was a matter of gene- “ ral complaint that is, the neighbours said, that they heard noises in that house which disturbed them. But we have only their words for that, and perhaps they would have spoken differently upon oath. It was important to the defendant to be permitted to ask what those noises were, and when they were heard, that he might have an opportunity of contradicting the evidence, or explaining the nature of the noise. It was important too, to know who those neighbours were, that their character might be inquired into. And why should they not be produced and examined on oath ? They were close at hand. It appears to me, that the evidence amounted to no more than the general reputation of a disorderly house, and certainly this is not one of the cases in which general reputation is evidence. I am of opinion, therefore, that a new trial should be granted. Yeates J. The principle on which the keeping of a disorderly tippling house is punishable by a criminal prosecution, is, that it disturbs the peace and quiet of the neighbourhood, and thereby becomes a common nuisance. In the course of this trial, Sarah Bond,, who lived across the street, opposite to the defendant’s house, swore to specific disorderly acts committed therein, and that persons of bad repute, old and young, male and female, black and white, frequented it both by night and day. She heard fighting no less than nine or ten times within the period of four or five months, the cry of murder issued from the house, and many persons were collected there. She herself was often disturbed by these noises. On the part of the prosecution, she was asked, whether the neighbours did not generally complain of these disturbances, and the defendant’s counsel objected thereto. I had no hesitation in permitting the question to be asked, considering these complaints as independent facts, the effects springing from the causes specially detailed by the witness. No hearsay evidence, of any particular disorders committed in the house, was admitted, but the effects and consequences of these disorders on the feelings of others, according with the feelings of the witness, were deemed by me to be proper and legal testimony. Expressions of general uneasiness at the moment, are distinct from hearsay evidence, for “ out of “the abundance of the heart the mouth speaketh.” I do not view these general complaints in the light of reputation of the gross irregularities permitted by the defendant in his house. These disorders were established by the oaths of eight several witnesses. It has been urged in arrest of judgment, that no particular facts are stated in the indictment, from which a nuisance may be inferred, and that the offence is not stated with sufficient certainty. The indictment charges : — [Judge Ye ates here stated the indictment]. Although a man has the exclusive right of governing his own house as he thinks proper, which ,X hope never to see invaded, yet he must do it in subservience to the laws and the rights of others. Sic uti suo, ut alienum non laidas, is an incomestible principle. The entertaining persons of both sexes, of evil name and fame, and of dishonest conversation, at unseasonable hours, and suffering them to remain tippling and misbehaving themselves, necessarily eventuates in riots and disorders, injurious to the peace and quiet of the neighbours, and all others passing the street. It produces the same ill-effects as the making of unusual noises in the night with a speaking trumpet, which is held indictable in Rex v. Smith, Stra. 704. So of fighting, boxing, and playing at cudgels, according to the precedent in Rex v. Higginson, 2 Burr. 1232. It is moreover, ascertained to my entire satisfaction, that the form of this indictment precisely agrees with that which has been adopted in Pennsylvania both before and since the American revolution. An argument drawn from common experience, has much weight in settling that an indictment against a common barrator, or a common scold, is good without setting out the particulars. 2 Hawk. c. 25. sec. 59. I will only add, that the grounds on which common stages for rope dancers and common gaming houses have been held to be nuisances, are equally applicable to disorderly tippling houses. They are great temptations to idleness, and are apt to draw together a great number of dis orderly persons, which cannot but be very inconvenient to the neighbourhood. I am of opinion, the commonwealth is entitled to judgment. Brackenrxdge J. concurred with the Chief Justice in toto. A new trial granted»

Opinion by Me. Justice O’Brien, Philadelphia Newspapers, Inc., which owns and publishes The Philadelphia Inquirer, John McMullan, Executive Editor of The Inquirer, and James Steele, a reporter employed by The Inquirer, all of whom will be collectively referred to as “the Inquirer” in this opinion, filed a complaint in equity against Helene Wohlgemuth, Secretary of Welfare of the Commonwealth, Clarence Jenkins, Executive Director of the Philadelphia County Board of Public Assistance, and the Commonwealth of Pennsylvania, all of whom will be collectively referred to as “the Commonwealth”. The complaint sought to enjoin the Commonwealth from withholding from the Inquirer the records containing the names, addresses and amounts of public assistance of certain welfare recipients in Philadelphia, and to enjoin the Commonwealth from denying the Inquirer the right to inspect, examine, extract and photocopy the records of welfare recipients in Philadelphia. Thereafter, one Jane Doe, a welfare recipient, individually and on behalf of all others similarly situated, .sought leave to intervene as a defendant. The Commonwealth Court held a hearing and took evidence on an application for a preliminary injunction. That count allowed the intervention of Jane Doe on the condition that she file an affidavit disclosing her identity and with the further stipulation that the affidavit of identity be impounded so that the name of the intervenor would not be revealed to other than authorized personnel of the court. The court also granted a preliminary injunction enjoining the Commonwealth temporarily “from withholding from [the Inquirer] a list to be prepared by the [Commonwealth] containing the names, addresses, and amounts of public assistance paid recipients in two percent (2%) of the cases in the City-County of Philadelphia, said list to be prepared by computer at the expense of the [the Inquirer], . . The temporary in junction decree further required the Inquirer to supply the court with the names and addresses of not more than ten fulltime employees of the Inquirer, who would be the only persons to have access to the list required to be furnished, or to any of the names, addresses and amounts contained in the list. Those ten persons were the only ones permitted by the decree to investigate to determine if abuses of the public assistance program were involved in the payments shown by the list. The decree further forbade the ten employees of the Inquirer to represent themselves as employees of the Commonwealth or otherwise misrepresent their identity or purpose. In addition, the temporary injunction decree permitted the Inquirer to publish an article or articles reporting the results of its investigation, but specifically forbade the publication of any names, addresses or amounts revealed as the result of the investigation without prior approval of the court. The Commonwealth and the intervenor appealed from the grant of the preliminary injunction, and the Inquirer appealed from the order allowing intervention, as well as the restrictions contained in the preliminary injunction as to the scope of the required Commonwealth disclosure and the restrictions on publication. We granted supersedeas on the Commonwealth’s application in order that the status quo might be maintained pending disposition of the instant appeals. The litigation at bar had its genesis in an apparently general feeling of dissatisfaction in both official and unofficial quarters with the operation of the public welfare system of the Commonwealth. The Inquirer, as well as other media of public information in Philadelphia and elsewhere in the Commonwealth, were interested, and properly so, in the various procedures being undertaken by the Welfare Department and investigations by committees of the General Assembly into the operations of the Welfare Department as they dealt with the payment of public assistance grants to Pennsylvania residents. The Inquirer determined to make a survey of public assistance payments in Philadelphia in order to determine whether fraud existed or whether other misapplications of public funds were occurring within the system. It, therefore, requested that the Commonwealth make available to it the lists of the names and addresses of all public assistance recipients in Philadelphia and the amounts received by each. It was upon the Commonwealth’s refusal to malic such information available to the Inquirer, and, in fact, the Commonwealth’s refusal to permit inspection of its records by the Inquirer, that this litigation was commenced. The Inquirer argues that it is entitled to the lists of names and addresses and of amounts of public assistance paid to welfare recipients under the Pennsylvania “right-to-know” act, act of June 21, 1957, P. L. 390, §1, 65 P.S. §66.1 et seq. Section 1 of the act, 65 P.S. §66.1(2), defines public records which may be inspected and copied by members of the public as a matter of right, and that definition is clearly broad enoTigh to encompass the records sought here. The definition, however, contains a proviso which excludes from its terms “any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties or any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person’s reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or Sítate or municipal authorities of Federal funds, excepting therefrom, however, the record of any conviction of any criminal act.” The Commonwealth contends that the right-to-know act does not require the disclosure of the information sought by the Inquirer. It argues that the disclosure of the names of welfare recipients would operate to impair the reputations of such recipients, and that the records, therefore, fall within the exclusionary provision of the right-to-know act. Moreover, the Commonwealth argues that since certain categories of public assistance, such as aid to families with dependent children, federal-state aid to the blind, aid to the permanently, and totally disabled, and old-age assistance, are to a certain extent funded by the federal government, the Commonwealth is bound by the applicable provisions of federal law, which restrict the use or distribution of information concerning applicants and recipients to purposes directly connected to the category of aid involved in the federal funding. The Commonwealth contends that it is obligated under federal regulation to protect the confidentiality of public assistance recipients, and that to violate such confidentiality would be to jeopardize continued federal funding of such programs. The Commonwealth argues that the possibility of the loss of such federal funds also places these records beyond the reach of the right-to-know act. The Inquirer further contends that it is entitled to these records under the provisions of the Public Welfare Code. Section 425 of the Public Welfare Code, 62 P.S. §425, provides: “Upon request by any adult resident of the Commonwealth, any county board shall furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made, but such information shall not be used for commercial or political purposes.” The Commonwealth argues, in essence, that Section 404 of the Public Welfare Code, 62 P.S. §404, which was enacted subsequent to the right-to-know law, limits the requirements contained in §425 set out above by granting to the Department of Welfare the right to adopt regulations “to restrict the use of information furnished to other agencies or persons to purposes connected with the administration of public assistance.” The department has consistently taken the position that the names of recipients and applicants are confidential, and regulations requiring confidentiality have been promulgated by the department in its Public Assistance Manual. Section 4143.3 of its regulations forbids access to the records except by individuals who have an official connection with the Department, or who are employees of the Auditor General’s office, the Treasury Department or other state or federal agencies officially charged with the administrative supervision, review, evaluation or audit of those records. The Inquirer further contends that it is entitled to this information under basic principles of the common law. Needless to say, the Commonwealth contends that there is no common law right to such information. The intervenors argue that disclosure of the information sought by the Inquirer would be an improper invasion of their rights of privacy and would be harmful to their reputations and standings in the community. The Inquirer contends that the intervenors have no legally enforceable interest in the outcome of the action, and that the individual intervenor has not established that she is properly representative of a class. We conclude that the individual intervenor has indeed established that she is properly representative of a class of welfare recipients and that she and those similarly situated have a legally enforceable interest in the outcome of this action based upon their interest in the prevention of invasions of their privacy. The testimony offered by tbe Inquirer at tbe hearing below indicates that it intends to have its investigators contact welfare recipients disclosed by the list in order to effectuate its investigation of the welfare system. Such intended contacts, coupled with the disclosure of an individual’s status as a welfare recipient gives him an interest in the outcome which he has a right to protect by participation in the litigation. Moreover, we are constrained to say that the Inquirer is in no way prejudiced by this intervention. If the Inquirer is entitled by law to the information which it seeks, it will gain access to that information irrespective of the intervention. If it is not so entitled, the presence or absence of the intervenors in this litigation will have no effect. The order of the court below allowing the intervention will, therefore, be affirmed. The Inquirer further complains that .the limitation of the preliminary injunction to two percent of the welfare recipients is improper and that it is entitled to all of the records. It also contends strongly that that portion of the preliminary injunction which places prior restraints on its rights of publication is constitutionally invalid, being in violation of the First Amendment to the United States Constitution. The view which we take of this case makes it unnecessary that we decide these questions at this time, although we take note of the action of the United States 'Supreme Court in New York Times Co. v. United States, 403 U.S. 713 (1971), 39 L.W. 4879, with respect to prior restraints on the publication of information in the hands of newspapers. It has long been the law of this Commonwealth that appellate courts will not inquire into the merits of disputes on appeal from the grant or refusal of a preliminary injunction, and that we will look no further than a determination of whether reasonable grounds appear for the granting of the preliminary injunction. Even with that narrow standard of review in mind, however, we conclude that the entry of a preliminary injunction in this case was inappropriate and must be vacated. The threshold question which we must answer is whether the Inquirer’s need for relief is so immediate or whether it has demonstrated such irreparable harm as to require the granting of a preliminary injunction. We conclude that no such showing has been made. In fact, if irreparable harm occurs, it most likely occurs from the grant of the preliminary injunction rather than its refusal. This is certainly the case as to the two percent sampling whose names, addresses and amounts of assistance will be disclosed prior to a final determination of the equity action, perhaps needlessly and unlawfully. The court below took note of this possibility in its discussion of the clarity of the Inquirer’s right to relief when it said: “We would agree with [the Commonwealth] as to the insufficiency of the clarity of the right with regard to a temporary injunction if the order were to include the right to publish names. No opinion is expressed here on the right to publish names, addresses and amounts, even if ‘newsworthy’, until further argument is heard either on a subsequent request under the temporary injunction or on the disposition of the case on its merits.” Upon final determination of the equity suit, if the Inquirer should be found to be entitled to the information sought, it may receive it then and will have suffered no irreparable harm in the delay that we can fathom. We recognize that in New York Times, supra, there are overtones of irreparable harm to a newspaper in the prevention of publication by it for any period of time of information which it has in its hands. Such is not the case here. The Inquirer is not in possession of information which it is prevented from publishing. The Inquirer is seeking information, and the very subject of this litigation is to determine whether it is entitled to that information as a matter of right, by statute or otherwise. A preliminary injunction of any kind should not be granted unless both the right of the plaintiff is clear and immediate and irreparable injury would result were the preliminary injunction not granted. Bliss excavating Co. v. Luzerne Co., 418 Pa. 446, 211 A. 2d 532 (1965); Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 207 A. 2d 768 (1965). Gillette Company v. Master, 408 Pa. 202, 182 A. 2d 734 (1962), Schwab v. Pottstown Borough, 407 Pa. 531, 180 A. 2d 921 (1962). As indicated above, we are far from convinced that the refusal of a preliminary injunction would result in immediate and irreparable harm to the Inquirer. Moreover, the legal situation is such that the Inquirer’s right to the information sought is far from clear. The legal issues raised are complex, and anything but free from doubt. The combination of the lack of clarity of the Inquirer’s rights and the absence of immediate and irreparable harm militates strongly against the issuance of a preliminary injunction. In addition, where an adverse effect upon the public will result from the issuance of a preliminary injunction, it should not be granted. Berkowitz v. Wilbar, 82 Dauphin 357 (1964), affirmed 416 Pa. 369, 206 A. 2d 280 (1965). In that case, the court refused to enjoin the dismissal of a state employee on the ground that the importance of not interfering with the administrative function of the state government outweighed the necessity for a preliminary injunction. Here; we are loath to permit interference with the administrative function of the Department of Welfare by way of a preliminary injunction, except in a clear cáse: We find no such clarity in the case at bar. ..... In addition, the preliminary injunction granted here is to a certain extent mandatory in that it requires the Commonwealth to prepare a list containing certain information. Mandatory preliminary injunctions should be granted even more sparingly than those which are merely prohibitory. A preliminary injunction is generally simply preventive, maintaining the status quo until the rights of the parties are determined after a full examination and hearing. In Audenreid v. Phila. & Reading Railroad Co., 68 Pa. 370 (1871), we said that an interlocutory or preliminary injunction could not be mandatory. That rule, however, is not entirely without exception, but where exceptions are allowed, the rights of the plaintiff must be clear, or the defendant must change the status of the parties while the result is pending. Fredericks v. Huber, 180 Pa. 572, 37 A. 90 (1897), Cooke v. Boynton, 135 Pa. 102, 19 A. 944 (1890). We do not find in this case the exceptional circumstances which compel the granting of a preliminary injunction mandatory in nature. In Phila. Rec. Co. v. C.-M. News, Inc., 305 Pa. 372, 377, 378, 157 A. 796 (1931), we said, with reference to a mandatory preliminary injunction: “This a court never grants except to prevent irreparable injury where the rights of the parties are entirely clear [citing cases], which they are not in the instant case.” We do not decide the merits of this controversy and express no views thereon. We conclude only that the pleadings and the record before the court below, by way of stipulations and testimony, do not disclose a case which requires the extraordinary relief imposed in the preliminary injunction issued. We shall, therefore, vacate the preliminary injunction and remand the matter to the court below so that it may proceed to a full hearing and final adjudication of the suit. The decree of the Commonwealth Court permitting the intervention of Jane Doe individually and on behalf of all others similarly situated is affirmed. The decree of the Commonwealth Court granting a preliminary injunction is vacated and the case is re manded to the Commonwealth Court for further proceedings consistent herewith. Each party to pay own costs. Mr. Justice Jones, Mr. Justice Roberts, and Mr. Justice Barbieri concur in the result.

OPINION OF THE COURT PAPADAKOS, Justice. I. INTRODUCTION We are presently required to review the conviction of murder of the first degree and the death sentence of Alan Lee Pursell (Appellant) pursuant to 42 Pa.C.S. § 9711(h). Appellant was arrested on July 28, 1981, and charged with criminal homicide for the death of a thirteen-year-old boy, Christopher Brine, whose body was found in a wooded section of Lawrence Park Township, Erie County, Pennsylvania. The corpse was nude, battered, and bloody. Appellant was tried to a jury with the Honorable Jess S. Jiuliante of the Erie County Court of Common Pleas presiding and, on January 26, 1982, the jury returned its verdict of murder of the first degree. Immediately thereafter, a separate sentencing proceeding was conducted, following which the same jury determined that Appellant be sentenced to death. Post-verdict motions were argued before a court en banc which denied same, triggering this automatic appeal. Appellant first argues that insufficient evidence exists to support a conviction of murder of the first degree. Our independent review of the entire record, giving all reasonable inferences to the Commonwealth, discloses sufficient evidence to support the conviction of murder of the first degree based upon the facts we have gleaned from the record. On July 24, 1981, in a secluded wooded area of Lawrence Park Township, James Feeney found the victim’s nude body, its face drenched with blood. A twenty-five foot tree branch lay across the throat which was wrapped in shirt material. After viewing the corpse, the County Coroner estimated that the victim had been dead for twelve to fifteen hours, placing the time of death between midnight and three o’clock, a.m., on July 24, 1981. An autopsy revealed that prior to death, the victim had sustained fifteen blows to the head with a jagged, blunt object, and had suffered various bruises, a broken nose, internal hemorrhaging in the neck, swollen eyes, and a crushed windpipe. The crushed windpipe was determined to be the cause of death. After the victim’s death, his body was subjected to burns on parts of the torso, and trauma to the chest and scrotum, part of which was crushed. A blood-covered jagged rock was found near the body. The blood was similar to the victim’s; the lacerations and punctures on the victim’s head were caused by this rock. The nearest rocks were two hundred feet from the body and were similar to the rock used to strike the victim. A pair of glasses found near the body was identified as those made and sold to Appellant by his optometrist, Dr. Perry. On July 25, 1981, the day following the death, Appellant returned to Dr. Perry and ordered another, identical pair of glasses. Blood found on Appellant’s shoes was consistent with that of the victim’s. Blood was also found on other items of clothing worn by Appellant on July 24, 1981. This blood could not be accurately examined because the clothes had been washed. Appellant’s mother testified that Appellant came home on July 23, 1981, at 10:30 p.m. She recalled that he was covered with blood and asked her to say that he had come home early. Mrs. Pursell also testified that she was extremely upset when she heard about the murder on the evening news (July 24, 1981) — so much so that she required medication to calm down — and that Appellant was aware of her reaction upon hearing of the victim’s death. Finally, on July 27, 1981, while listening to a newscast reporting developments in this case, Appellant turned to his girlfriend, with whom he was watching the seven o’clock newscast, and asked whether she thought a person could be traced through his glasses. No mention had been made in any report that glasses had been found at the scene. Taking all of these circumstances together, a jury could conclude beyond a reasonable doubt that young Christopher Brine’s death was a homicide. From the nature of the injuries, a jury could further infer that the homicide was intentional and malicious. Since the victim was assaulted with a rock carried two hundred feet from its natural resting place, the jury could conclude that the killing was premeditated. Finally, the jury could conclude that Appellant committed the crime since his glasses were found at the scene and since the blood found on his shoes matched that of the victim’s. Accordingly, we are satisfied that sufficient evidence exists in this record to support the jury’s verdict of murder of the first degree, and dismiss Appellant’s sufficiency challenge. II. VENUE CHANGE Appellant argues that the trial court erred in refusing to grant his motion for a change of venue on the ground of prejudicial pre-trial publicity. Appellant contends that the publicity was so pervasive, widespread, inflammatory, and inculpatory from the date of the crime until his trial, that “inherently prejudicial” pre-trial publicity can be presumed. We disagree. 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. Id. 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. Appellant argues before us that sensational reporting occurred [over a three-day period (July 28, 29 and 30, 1981) by the newspapers, radio and television] of the crime in which he was alleged to have been involved. While the texts of those articles are not part of the record, Appellant argues that one newspaper article published Appellant’s prior criminal record on its front page; that another mentioned that Appellant had a prior criminal record; and that radio and television reports during July 28-30, 1981, mentioned that Appellant had a prior criminal record. Such pre-trial publicity, which reveals an accused’s prior unrelated criminal conduct, may establish prejudice if the publicity continues up to the time of trial. Romeri, id. Such is not the case before us, since even if we accept Appellant's analysis of the articles, the record clearly shows that any sensational articles or references to Appellant’s prior record were published only for a three-day period in July of 1981. Thereafter, sporadic articles appeared which merely traced the procedural posture of the case until January, 1982, when the trial began. This six-month “cooling off period” was sufficient to dissipate the prejudice, if any, engendered by the July, 1981, publicity. Additional articles published during the voir dire phase were factual in nature and in no way show that prejudicial material was widely disseminated at the time of trial. Finally, we have carefully reviewed the nine hundred pages of extensive voir dire examination wherein one hundred and one prospective jurors were questioned. Sixty-six of these prospective jurors were asked if they had heard about this case and to explain in detail what, if anything, they could remember about the case. Eight knew nothing about the case and of those, two were chosen to serve on the jury. The other fourteen jurors selected (four alternates included) were selected from among the remaining fifty-eight prospective jurors. Fifty-seven of these prospective jurors testified that they had heard about the case in July of 1981, that they had not formed any opinion as to the guilt or innocence of Appellant, that they would be able to reach a verdict based solely on the evidence presented in court, and that the information they had learned outside of the courtroom would not affect their decision in any way. When specifically asked about knowledge of Appellant’s prior criminal conduct, one venireman was not sure (notes of Voir Questioning, Vol. 1, p. 42) and was striken for cause. A second venireman had heard that Appellant had prior offenses, but knew of no details (Vol. 1, p. 191) and was striken for cause. A third had heard in the courtroom halls that Appellant was involved with child molesting (Vol. IV, pp. 222-223) and was similarly stricken for cause. A fourth venireman, chosen as a juror, had heard that Appellant was a neighborhood troublemaker (Vol. Ill, p. 134) but did not know of any prior criminal conduct and had not learned anything from media reports of the newspaper article which mentioned any prior offenses. The other,, sixty-two (62) veniremen had no knowledge of Appellant’s prior criminal conduct nor recollection of the media reports about that conduct. Considering the almost unanimous lack of knowledge of Appellant’s prior criminal conduct by the veniremen, we cannot presume that the few media accounts mentioning that conduct was prejudicial at all. The reporting was not extensive, sustained, or pervasive and, in view of the veniremen’s answers, it is obvious that the community was not saturated with knowledge of Appellant’s prior offenses. Clearly, the six-month cooling off period had had its effect and any possible prejudice had been dissipated. Accordingly, the trial court did not abuse its discretion in denying Appellant’s motion for a venue change. III. INEFFECTIVENESS CLAIMS Appellant further argues that his trial counsel was ineffective in four instances during the trial and that his sentence therefore must be vacated and a new trial granted. The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness, is of arguable merit, for counsel cannot be considered to be ineffective for failure to assert a meritless claim. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). First, Appellant points to three comments made by the District Attorney during his closing argument in the sentencing hearing which he argues were so prejudicial to him that his trial counsel must be found ineffective for failing to object. Early in his summation, the District Attorney explained to the jury: The Commonwealth alleges that under the law that the circumstances of the killing make it a torture/murder and therefore if you so find beyond a reasonable doubt, such as an aggravating circumstance, and it outweighs the mitigating circumstances the defense counsel has presented to you, you will not be asked to make an emotional decision. You will not be asked to decide based on some pictures. You will be told that under your duty as jurors under the laws of this Commonwealth and as representatives of the people of this community you must — you must — impose the death penalty. You have takén a sworn oath now to follow those laws and impose them and you represent the people of this community in this community. January 26, 1982, pp. 138-139. Appellant argues that the jury was misled into believing that it had no choice but to impose the death penalty as representative of the community, and that the prosecutor’s insistence that the death penalty be imposed was an improper expression of his opinion, forbidden by us in Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978). Appellant also objects to the end of the District Attorney’s summation where he concludes: There are aggravating circumstances sufficient here for us as a community under the law to require that we must now impose the death penalty. Ladies and gentlemen, defense counsel says you must weigh the aggravating against the mitigating, and he is correct, but it is not a question of number. The Commonwealth must prove beyond a reasonable doubt that this crime was especially heinous and atrocious and that the defendant’s mind was one manifesting exceptional depravity and that the defendant during the course of this killing had the intent to cause great pain or great suffering. It is the Commonwealth’s position that the evidence clearly shows that could be so and that the aggravating circumstance is of such a gravity and such a nature that standing next to it the fact that this defendant had no significant prior criminal record — he does have two thefts that were entered into evidence; that this defendant is a young man— those things standing next to him clearly — clearly cannot outweigh what this defendant has done to thirteen-year-old Christopher Brine. Ladies and gentlemen, under these circumstances, it is your duty — your sworn duty— to represent the people of this Commonwealth and to impose the death penalty on the defendant, Alan Lee Pursell. Were it not so, had these circumstances not existed, you would not be required to do so, but now you find these circumstances to be true and that they have been shown to you and this death is one which qualifies as a torture/murder under the law because of the way it occurred, you must — you must — return a verdict against the defendant of death because of the way Christopher Brine died and because of the laws of this Commonwealth. January 26, 1982, pp. 144-145. Here, Appellant argues that the prosecutor’s use of the first person plural (“we” must now impose the death penalty) confused the jury and represents an unwarranted invasion of the jury’s function of determining the sentence. Appellant also finds objectionable the prosecutor’s additional reference to the jury’s role as representative of the people, and his final insistence that the jury had no choice but to impose death. These arguments are meritless. It is well-settled that comments by a district attorney do not constitute reversible error unless “the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984); Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). Viewed in this context, the subject comments could not have so prejudiced the jury as to have interfered with its rendering of a true sentence. Those comments which referred to the jury’s role as representative of the community only served to remind the jury of the effect of its sentence on the community, a consideration which any jury would consider irrespective of a prosecutor’s advocacy of its cause. Tabron. These comments, when read in context, did not mislead or corner the jury into thinking that it had no choice but to determine that the- defendant be sentenced to death, as Appellant suggests, because each comment was prefaced by an accurate caution that if the jury found an aggravating circumstance beyond a reasonable doubt which outweighed any mitigating circumstances, then under the laws of this Commonwealth, the jury was obligated to determine that the death penalty be imposed, 42 Pa.C.S. § 9711(c)(l)(iv). In that context, the prosecutor was well within the bounds of reasonableness and legitimacy in arguing that the jury would have to impose a sentence of death. Furthermore, the District Attorney’s conclusion that the jury would be required to return a death penalty in accord with the sentencing guidelines, is not an expression of the prosecutor’s personal opinion regarding the defendant’s guilt, credibility, or trial strategy and, therefore, Pfaff is inapplicable. Finally, our close reading of the District Attorney’s closing indicates that he addressed the jury in the first person plural (we, us) on fifteen occasions. This tends to support Appellant’s contention that the prosecutor was confusing the jury by inferring he was also a part of its deliberative process in determining a sentence. However, the prosecutor also addressed the jury in the second person (you, your) forty-four times, minimizing any effect the first person usage may have had on the jury. Reading the closing as a whole, it is clear to us that the jury was being addressed as the exclusive finder of life or death, and that the prosecutor was not attempting to interfere with the jury’s function. In short, we do not find the prosecutor’s comments inflammatory or prejudicial, fixing bias or hostility against Appellant which would prevent the jury from objectively weighing the evidence and returning a true sentence. There was no ineffectiveness in not objecting to this closing. Since Appellant’s contended examples of ineffectiveness are without arguable merit, we need not consider what counsel’s reasons may have been for failure to pursue those meritless claims. Appellant secondly points to his trial counsel’s failure to move for a mistrial when the court tipstaff died, and cites this as an example of ineffective representation. We disagree. The request for a mistrial is proper only when an event prejudicial to a defendant occurs at trial. Pa.Rule of Criminal Procedure 1118(b). The death of the court tip-staff did not occur in the courtroom and in no way prevented the trial from continuing. Accordingly, Appellant’s valued right to have his trial completed by a particular tribunal was not jeopardized. Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). Additionally, Appellant points to nothing in the record to show that the tipstaff’s death had any lasting effect on the jury or that the death prejudiced the jury against Appellant. Since we find no merit in pursuing such a tactic, we conclude that trial counsel was not ineffective in failing to move for a mistrial when the tipstaff died. Next, Appellant argues ineffective assistance for the failure of his trial counsel to cross-examine adequately the Commonwealth’s criminalist, who established that the blood found on Appellant’s shoes was consistent with that of the victim. Appellant asserts that trial counsel should have questioned the witness’s methods in matching the victim’s blood with the blood removed from Appellant’s shoe to determine whether a mistake occurred in the matching process. This contention is meritless. The criminalist testified that he conducted two types of tests on samples of Appellant’s blood and blood found on Appellant’s undershirt, boots, trousers, belt, and shoes, as well as on samples of blood found near the victim’s body, on the rock used to lacerate the victim’s head, and on the log used to asphyxiate the victim. All items were tested to identify blood type and the presence of three iso-enzymes (PGM, AK, EAP). The results of these tests established that the samples of blood found on the rock and log, the blood found near the victim, and the blood found on Appellant’s shoes matched that of the victim’s. Appellant’s blood was also found to be similar to the victim’s except that Appellant’s PGM count is 2-2, whereas, the victim’s PGM count was 2-1. On cross-examination, counsel extensively questioned the witness about the process used to absorb the blood samples from the shoes, about the method used in testing the specimens, and about the enzyme typing process. We conclude that trial counsel’s cross-examination was adequate under the circumstances, and dismiss Appellant’s arguments to the contrary. Finally, Appellant alleges the ineffective assistance of counsel for withdrawing his motion for a mistrial after a prosecution witness testified that Appellant had been in jail before. Our review of the record indicates that after Officer Krake blurted out the reference to Appellant’s prior jailing, defense counsel immediately requested a mistrial, whereupon an in-chambers, on-the-record discussion was conducted. Defense counsel agreed to withdraw his motion in exchange for the prosecution’s agreement not to present a witness whose testimony would have been inculpatory. After a colloquy with Appellant, where he indicated that it was his decision to withdraw the motion for mistrial, the Court permitted the withdrawal of the motion and cautioned the jury to disregard completely the statement of Officer Krake. While pursuing the mistrial motion would have been of arguable merit, under the circumstances, we find no ineffectiveness in the strategy employed because it had a reasonable basis designed to effectuate Appellant’s interests. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). The Commonwealth’s agreement not to introduce inculpatory evidence against Appellant in exchange for continuing with the trial certainly can be considered to have advanced and promoted Appellant’s interest because this evidence was the only admission defendant had made to anyone concerning his involvement in Christopher Brine’s death, and was in direct contradiction to the testimony he would give at trial and to statements he had given to the police. Since we can conclude that the course chosen had a reasonable basis designed to effectuate Appellant’s interests, counsel’s assistance is deemed constitutionally effective. Dunbar. Moreover, we have often indicated that in criminal cases, the possible prejudicial effect of a witness’s reference to the prior criminal conduct of a defendant may, under certain circumstances, be removed by an immediate cautionary instruction to the jury. Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981); Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978). The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977). In this case, the Commonwealth did not deliberately introduce the remark; nor did it exploit the reference. Further, the Court adequately cautioned the jury to disregard the remark as soon as the mistrial motion was withdrawn. Accordingly, any prejudice that resulted from the remark was insufficient to require a mistrial and, under the circumstances, counsel’s decision to withdraw the motion was not ineffectiveness. IV. TRIAL COURT ERRORS We now turn to Appellant’s arguments that the trial court erred in not granting a mistrial when a Commonwealth witness, Officer Krake, volunteered irrelevant and prejudicial testimony. On direct examination, Officer Krake testified he interrogated Appellant after his arrest. During that interrogation, the glasses found near the victim’s body were placed in front of Appellant and Officer Krake testified to what occurred as follows: Well, if I recall right, he was sitting with his hands crossed because I was watching for physical reactions at that point. His hands were crossed in this fashion, more toward across the area of his stomach, and I noted at that time that his breathing increased, that his hands were moving at a faster rate than they had been prior, after which Trooper Conley said to him, “I can see how it happened. That boy looked good to you. You took that boy. You raped that boy.” January 21, 1982, p. 118. Trial counsel objected to this testimony, but the trial judge overruled the objection and instructed the jury as follows: At this point I will now stop and I will now tell the jury and caution them that any remarks like this by Trooper Erby Conley must be considered in the light of the circumstances in which they were made because it was questioning and that you must understand that at this time there is no evidence whatsoever of sexual molesta tion that has been brought out, sexual molesting that has been brought out or anything of that sort, and brought out and put forth by the Commonwealth, and therefore, you are to disregard that particular inference it may give you. January 21, 1982, p. 120. There is no doubt that sometimes inadmissible testimony is so dramatic, so emotionally inflammatory, that a jury cannot forget it, even if the Court spends a lengthy period instructing it to do so, but we do not believe that this is such a case. It does not appear that this statement was intentionally elicited by the Commonwealth and once the statement was made, the trial court gave a prompt and decisive instruction to the jury to disregard any inference that Appellant was guilty of sexual molestation and to consider the statement only in the light of the police interrogation. The Commonwealth did not exploit the reference and the matter was not brought to light again. Under all the circumstances, the trial court’s instruction to the jury to disregard the remark was proper, and the prejudice that resulted, if any, was insufficient to require a mistrial. See, Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981); Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977); Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977); Commonwealth v. Brown, 444 Pa. 318, 282 A.2d 364 (1971). Appellant next contends that the trial court erred when it refused to allow Dr. Rozwadowski to testify whether, in his opinion, Christopher Brine’s death occurred by torture. We disagree. The expert called by the defense was the coroner. He had testified for the prosecution during the guilt phase of the trial. The defense sought to have him testify as to the manner of death in order to rebut the prosecution’s arguments that torture occurred. The trial court refused to allow a defense question on the ultimate issue of whether the death was committed by torture. However, the witness was allowed to testify as to the other matters within his expertise that the jury could properly consider: MR. CONNELLY (District Attorney): Okay, what are you going to ask him specifically? THE COURT: That’s exactly what I wanted to know next. MR. SKIBA (Defense Counsel): Okay, first, I am going to go into the aspects of whether or not he can say he was conscious at the time — at any time. I expect him to state that he may or may not have been — may or may not have been conscious. He may have been unconscious with the first blow. MR. CONNELLY: That’s what he testified during the trial. MR. SKIBA: Or the second, That indicates — if he was unconscious — that he would not have suffered any pain. I think the crucial nature of that evidence is obvious. I will state that there was no systematic — from what he could see — no systematic pain or intent to cause pain and— MR. CONNELLY: He can’t testify about the intent of the defendant. MR. SKIBA: From what he can see, the type of random actions that were used to inflict the injuries here he would be able to state that those did not indicate to him a systematic intent to cause pain. Now, Judge, that is the— THE COURT: You have a right to cross examine him on this, too. I am going to allow it in. MR. SKIBA: Thank you, your Honor. MR. CONNELLY: No opinion as to torture, I take it? THE COURT: Pardon me? MR. CONNELLY: No opinion as to whether or not the victim was tortured. THE COURT: That’s correct. No opinion as to whether or not he was tortured. You cannot. N.T. at 118-119 (January 26, 1982). The trial judge here allowed testimony about the mechanism of death and the amount of pain the victim felt. In this respect, he was plainly correct. Such expert testimony on the issue of torture will often be appropriate and material without infringing on the jury’s role as the final arbiter of whether torture took place. Finally, Appellant argues that the trial judge erred in denying his requests for instructions to the jury concerning circumstantial evidence, reasonable doubt, and the defendant’s presence on the scene, citing Commonwealth v. Libonati, 346 Pa. 504, 31 A.2d 95 (1943); Commonwealth v. Giovanetti, 341 Pa. 345, 19 A.2d 119 (1941); Commonwealth v. New, 354 Pa. 188, 47 A.2d 450 (1946). The guiding principle on reviewing an allegedly erroneous jury instruction is that the charge is to be read in its entirety. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The relevant portions of the court’s charge on circumstantial evidence, reasonable doubt, and the defendant’s presence on the scene, were as follows: Ordinarily it is not possible to prove specific intent by direct evidence unless, for example, there is evidence that the defendant made a statement concerning his state of mind. However, specific intent like any other matter may be proven by circumstantial evidence; that is, by inferences that reasonably may be drawn from all the facts and circumstances including the defendant’s acts and conduct, which have been shown by the evidence in this case. Thus, you may conclude that the defendant specifically intended to kill Christopher Brine based on circumstantial evidence alone but only if the circumstantial evidence is strong enough to convince you that the Commonwealth has established a specific intent beyond a reasonable doubt. January 26, 1982, p. 76. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance to his own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reason able doubt must be a real doubt. It may not be an imagined one nor may it be a doubt manufactured to avoid carrying out an unpleasant duty. So, to summarize, you may not find the defendant guilty based on a mere suspicion of guilt. The Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt. January 26, 1982, p. 81. Now, I would like to cover alibi. People many times use the term “alibi” in the sparsity of the sense. In this case, the defense of alibi was used by the defendant. Obviously the defendant cannot be guilty unless he was at the scene of the alleged crime. The defendant has offered evidence to show that he was not present at the crime but rather on the evening that it was supposed to occur that he was around the trailer park, and his mother backed him up on this. You should consider this evidence along with all the other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond a reasonable doubt that a crime was committed and that the defendant himself committed or took part in committing the crime. The defendant’s evidence that he was not present either by itself or together with other evidence may be sufficient to raise a reasonable doubt of his guilt in your minds. If you have a reasonable doubt of the defendant’s guilt, you must find him not guilty. Now, with respect to direct and circumstantial evidence, the evidence in this case is circumstantial primarily but it is also of two different types. On the one hand there is direct evidence; that is, evidence which is testimony by a witness from his own personal knowledge such as something that he saw or heard himself ... The other type is circumstantial evidence which is testimony about facts which point to the existence of other facts which are in question. An example of this: The glasses, the blood on the shoe, any other blood. Whether or not circumstantial evidence is proof of the other facts in question depends in part on the application of common sense and human experience. You should recognize that it is sometimes necessary to rely upon circumstantial evidence in criminal cases; particularly as in this case where the crime was committed in secret. In deciding whether or not to accept circumstantial evidence as proof of the facts in question, you must be satisfied first that the testimony of the witness involved is truthful and accurate; and second, that the existence of the facts that the witness testified to leads to the conclusion that the facts in question also happened. Circumstantial evidence alone may be sufficient to prove the defendant’s guilt. If there are several pieces of circumstantial evidence, it is not necessary that each piece standing separately convince you of the defendant’s guilt beyond a reasonable doubt. Instead, before you find — you may find — the defendant guilty, all the pieces of circumstantial evidence when considered together must reasonably and naturally lead to the conclusion that the defendant is guilty and must convince you of the defendant’s guilt beyond a reasonable doubt. In other words, you may find the defendant guilty based on circumstantial evidence alone but only if the total amount and quality of that evidence convinces you of the defendant’s guilt beyond a reasonable doubt. Along with that, as I have told you, one of the elements of this crime is that the defendant intended to kill Christopher Brine. Ordinarily it is not possible to prove intent by direct evidence unless, for example, there is evidence that the defendant made a statement concerning his state of mind, which we do not have in this case. However, intent like any other matter may be proved by circumstantial evidence; that is, in inferences that reasonably may be drawn from all the facts and circumstances including the defendant’s acts and conduct which have been shown by the evidence in this case. Thus, you may conclude that the defendant, Alan Pursell, intended to kill or new (sic) based on circumstantial evidence he intended to kill Christopher Brine but only if the circumstantial evidence is strong enough to convince you that the Com monwealth has established its intent beyond a reasonable doubt. January 26, 1982, pp. 88-91. When read in its entirety, the court’s instructions were correct and it was not error for the court to refuse to charge the jury with the exact language requested by counsel. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977). We have read the cases cited by Appellant and find that the court’s charge fully and adequately explained reasonable doubt, circumstantial evidence, and the defendant’s presence, albeit in different language than requested, but with language conveying substantially the same meaning, enabling the jury to understand the law on those issues. V. CHALLENGES TO 42 PA.C.S. § 9711(d)(8) Appellant also raises certain challenges concerning the sufficiency of the “torture” charge given the jury before sentencing. Specifically, Appellant argues that Section 9711(d)(8) of the Sentencing Code, 42 Pa.C.S. § 9711(d)(8) is unconstitutionally vague, that the trial court’s charge on torture given to the jury was insufficient, and that insufficient evidence of torture existed in this record for the matter to be submitted to the jury. Before beginning our analysis of Appellant’s vagueness challenge, we bear in mind the presumption that our Legislature acts constitutionally, Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981), and that a heavy burden rests on those who would attack the judgment of the representatives of the people. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Any challenge to our sentencing code must be evaluated in light of the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Furman imposed on the States the responsibility of drafting sentencing codes which would guide and channel the sentencing authority’s discretion by resorting to the examination of specific factors that argue in favor or against the imposition of the death penalty. Total arbitrariness and capriciousness is thus eliminated in the imposition of a sentence of death. We have already determined that the crime of murder of the first degree, coupled with specific aggravating circumstances, is a heinous enough act to warrant imposition of the death penalty under carefully drafted sentencing procedures. Zettlemoyer. We have also upheld various phrases used in our statute’s enumeration of aggravating and mitigating circumstances against a challenge of vagueness, finding those phrases to be specific enough to satisfy the requirements of Furman. In Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984), we dismissed vagueness challenges to such mitigating circumstances as “no significant history of prior criminal convictions” (42 Pa.C.S.A. § 9711(e)(1), “extreme mental or emotional disturbance” (42 Pa.C.S.A. § 9711(e)(2), “age of defendant” (42 Pa.C.S.A. § 9711(e)(4), “participation in the homicidal act was relatively minor” (42 Pa.C.S.A. § 9711(e)(7), “capacity of the defendant ... to conform his conduct to the requirements of law....” 42 Pa.C.S.A. § 9711(e)(3). Additionally, in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), we upheld the constitutionality of 42 Pa.C.S.A. § 9711(e) “age of defendant.” Similarly, the aggravating circumstance that “the offense was committed by means of torture” (42 Pa.C.S.A. § 9711(d)(8)) is not vague. The legislature’s inclusion of the means of torture as an aggravating circumstance to be weighed by a jury considering whether the death penalty should be imposed is a sufficiently specific factor because we feel that the meaning of such a term is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. (See, State v. Dixon, Fla., 283 So.2d 1 (1973)). Accordingly, the jury is channelled from a totally arbitrary and capricious imposition of the death penalty. It is our interpretation that torture is understood as the infliction of a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious, or cruel manifesting exceptional depravity. The legislature did not intend to limit the “means” of torture to those used in the middle ages and recognized by horror movie goers as the rack, boiling in oil, and splitting of body between two snapping sapling trees. There is nothing in the statute or legislative history to suggest such a constrained interpretation. When the means of torture are employed, we can believe, without a reasonable doubt, that the user of such means intended to torture his or her victim to death. What is intended to be included are those murders of the first degree where the actual commission of the offense included such concurrent acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily painful to the victim. (See Dixon, where the Supreme Court of Florida construed its death penalty statute’s aggravating circumstance on “especially heinous, atrocious, or cruel” as “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”) In comparing our interpretation of “torture” with that given to the jury by the trial court, we hold that it was correct and enabled the jury to understand the law on this issue. Therefore, we hold meritless Appellant’s contention that the charge was insufficient. Appellant also argues that the evidence submitted to the jury on “torture” was insufficient as a matter of law and that the question of torture should not have been submitted to the jury. The crux of Appellant’s argument is that insufficient evidence was presented to the jury on intent to cause pain and that no jury from this record could conclude that Appellant intended to injure his victim in such a way as to qualify this offense as one committed by means of torture. Our review of this record, giving all reasonable inferences to the Commonwealth, discloses sufficient evidence to support a finding of torture, and the intent to subject Christopher Brine to heinous, atrocious, or cruel suffering can reasonably be inferred from the circumstances of this case. The number of blows, the manual strangulation, the asphyxiation with a twenty-five (25) foot tree branch, the screams heard by a witness, and the continued traumatization of the body after death by more blows and burning are acts sufficient for a jury to weigh and require no more line drawing than is commonly required of a factfinder in other lawsuits. Accordingly, we conclude that sufficient evidence exists in this record to support a finding that Christopher Brine met his death by means of torture. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Finally, pursuant to our statutory obligation to review death cases to determine whether the imposed sentence of death is “excessive or disproportionate to the penalty imposed in similar cases,” (42 Pa.C.S. § 9711(h)(3)(iii)), we have conducted an evaluation of all convictions of murder of the first degree prosecuted under the Act of September 13, 1978, P.L. 756, No. 141, 42 Pa.C.S. § 9711, aided by the comprehensive study prepared at our Order by the Adminis trative Office of Pennsylvania Courts (AOPC). (See, Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984)). That review reveals no excess or disproportionality in the sentence imposed in this case compared to the sentence imposed in other first degree murder cases where the evidence could support an aggravating circumstance such that the murder “was committed by means of torture.” 42 Pa.C.S. § 9711(d)(8). For the foregoing reasons, we sustain the conviction of murder of the first degree and affirm the sentence of death. NIX, C.J., and ZAPPALA, J., file dissenting opinions. . 42 Pa.C.S. § 9711(h) provides: SENTENCING (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 specified in subsection (d); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of defendant. . Pa.R.Crim.P. 312(a) provides: (a) All motions for change of venue or for change of venire shall be made to the court in which the case is currently pending. Venue or venire may be changed by that court when it is determined after hearing that a fair and impartial trial cannot otherwise be had in the county where the case is currently pending. . The characterization of continued and pervasive prejudicial pretrial publicity expressed in the Dissent of Chief Justice Nix appears nowhere in the record presented to us for review. It appears only in Appellant's brief at pages 15 and 16. Such factual allegations, de hors the record, cannot be considered by a reviewing court and the practice of asserting facts in an appellate brief, which allegations do not appear in the record, has recently again been condemned by us in Gerald J. Reilly, et al. v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985). . The remaining forty-five prospective jurors were excused before they could be questioned on their knowledge of the facts in this case, because they had expressed inability to impose the death sentence under any circumstance. . Ineffectiveness of trial counsel during the sentencing hearing cannot be a basis for granting a new trial. The verdict of guilt still stands although the verdict of sentence of death might be changed to that of life imprisonment. . 42 Pa.C.S. § 9711(c)(l)(iv) provides: Instructions to jury.— (1) Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters: (iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstances or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases. . Pa.R. of Criminal Procedure 1118(b) provides: (b) When an event prejudicial to the defendant occurs during the trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity. . The tipstaff died in a local hotel in the presence of most of the jury on January 19, 1982, before any testimony had been received. . These iso-enzymes are present in varying amounts in all samples of human blood. . Christopher Brine’s blood was Type A with a PGM at 2-1 an AK at 1-1 and an EAP at BA. . January 21, 1982, N.T., p. 121: Officer Krake: Now the only question that was asked of him is the name of his attorney. Mr. Connelly: All right. Court: Well, was it given? Officer Krake: Yes. He said Gary Skiba. "He got me out of jail before.” . 42 Pa.C.S. § 9711(d)(8) provides: (d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following: (8) The offense was committed by means of torture. . The Court defined torture to the jury as follows: “One of them is the model Penal Code in which they say that the offense or murder committed by means of torture is designed for the defendant who causes a considerable amount of pain and that the language used for this particularly aggravating circumstance is the murder was especially heinous, atrocious, or cruel manifesting exceptional depravity. Also, another place that I felt may be appropriate in trying to define for you torture was in the American Law Reports. These reports stated that since murder is an intentional act, that many courts have determined, regarding murder by torture, a specific intention that the torture murderer has in committing the homicide. It has been held that this is an intention to inflict pain, suffering or both pain and suffering.” January 26, 1982, pp. 145-149. . Section 9711(h)(3)(iii) provides: (3) The Supreme Court shall affirm the sentence of death unless it determines that: (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. . The Prothonotary of the Western District is directed to transmit the full and complete record of the trial, sentencing hearing, imposition of sentence and review by this Court to the Governor. 42 Pa.C.S. § 971 1(i).

The opinion of the court was delivered by Kennedy, J. This case has grown out of the will of John Knight, dated the fifth day of January, 1761. That part of the will out of which the question to be decided arises, is in the following words. “ I give to my son Charles Knight my messuage and plantation situate in Abington, in the county of Philadelphia, the "which I had from my father, with the buildings and appertinances thereunto belonging, with the rents issues to.him during his natural life; and if he shall leave lawful issue, then to them, their heirs and assigns forever. But for want of such lawful issue, then it shall return to my son John Knight; and if he should leave no lawful issue after his decease, then to my next lawful heir, and to their heirs and assigns forever.” At tbe date of the will the testator had another child, a daughter, named Rachel. Charles, the son, at this time had no issue ; nor had he any subsequently until after the death of the testator. The decision of the contest here depends upon the solution of the question, What estate did Charles take under the above devise?' The case of Carter v. M‘Michael, in 10 Serg. & Rawle, 429, is not unlike the present. The application of the principles laid down by this court in that case, will go far towards deciding the question in this; The testator in that case gave to his son Edward two tracts of land, to hold to him and his assigns, for and during the term of his natural life, he making no waste or destruction of the timber thereupon, and paying thereout to the testator’s daughter Agness the sum of twenty pounds in gold or silver money, within the space of two years after his wife’s decease : and from and immediately after the decease of his son Edward, he devised one of the said tracts to his sons Joseph and Daniel, their heirs and assigns forever, as tenants in common; and the other to the heirs male of the body of his said son Edward, lawfully to be begotten, and the heirs and assigns of such heirs or heir male, forever; and for want of such heirs male, then to his said two sons Joseph and Daniel, their heirs and assigns forever, as tenants in common. The opinion of the court in this case was delivered by the late Chief Justice Tilghman, deciding that Edward, the devisee, thereby took an estate tail. Yet it is manifest from the words of the will, that the testator did not intend that he should have more than an estate for life; for he not only declares most expressly, that it shall he for and during the term, of his natural life, but further prohibits him from committing waste or destruction of the timber thereupon; thus depriving him of all privileges other than those of a mere tenant for life But in order to carry into effect the general intent of the testator, the court felt itself bound to disregard and overrule this particular design of the testator as respected Edward personally. In the case now to be decided, the testator has employed no terms, which would seem to indicate a desire on his part to deprive Charles, the devisee, of the common and ordinary privileges of a tenant in fee tail. It is given to him with, the buildings and appurtenances thereunto belonging, with all the rents and issues thereof, to be used without any express restriction whatsoever. The words “ during his natural life,” it is true, are superadded, but it will be seen that these words have no effect, where they are opposed to the general intent of the testator, as in the case already cited. In that case the general intent of the testator was, that the male issue of Edujard should take, to the exclusion of all others, and that the estate should not go over so long as there were any of such issue in being. This intent, however, was incompatible with a mere life estate in Edward, and consistently with the rules of law, could not be effectuated without giving to him an estate tail male under the will, which was accordingly done by the decision of the court. So in the case before the court, it is manifest, that the general intent of John Knight, the tes tator, was, that immediately upon the decease of his son Charles, the estate devised to him, should go to the heirs generally of the body of Charles, and not to John, or any other, until after an indefinite failure of the issue of Charles. But upon such failure, whensoever it might happen, it is also equally manifest, that the testator intended, that it should pass to his son John, or his issue; and in the event of bis, and his issue, both being or becoming extinct, it was to go over. Now to hold that Charles, took but a life estate, as contended for. by the counsel for the defendant in error, and that his children have a remainder in fee, must necessarily defeat the remainder over to John and his issue ; because it is not only too remote to take effect consistently with the rules of law, but in short it leaves no remainder for them. The fee simple was all the testator had to give, and if that be now absolutely vested in the children of Charles, it is all and the most the testator ever had. But can this be permitted in accordance with the intention of the testator? Not well, indeed, unless we suppose, that the testator had a greater regard for the issue of Charles, who were not yet in being, and of whom, of course, he could know nothing, than he possessed for Charles himself, who was his first son, who had shared his most anxious cares as well as parental caresses for many years, and was about to be made the first object of his bounty : it seems incredible to say the least of it. Besides, to say that the testator intended to give Charles merely an estate for life with a remainder over in fee to his children living at his death, or as they came into life, would be declaring, that he had less regard for Charles, than he appears to have had for his son John, which is contrary to the whole tenor of the will. There is no reason for believing that the testator ever intended to give to Charles a less estate in the devise of this property to him, than he has limited over in remainder to his next son John upon the failure of issue on the. part of Charles. That the estate given over in remainder to John, is not a life estate, but an estate tail general by implication, it is believed, cannot, and will not be denied: and so far as personal feeling and attachment could have had an influence upon the testator, there is no reason to believe that he intended less for Charles. But admitting that there was some reason existing with the testator for his giving to John a greater estate, than he gave to Charles, is it not then reasonable, that he should also have felt • the more anxious to make John as secure as possible in the enjoyment of it, upon the happening of the event, on which it was.to go over to him ? So that viewed in either light, we would be led to say that Charles took an estate tail. Against this it has been contended, that by the very terms of the devise itself, an estate for life only is given to Charles. To this an answer has already been given ; which is, that in the construction of wills, to effect the general and main intent of the testator, where he has in limiting the duration of an estate devised, used the words “ for his life,” “ during his life,” or “ during his life and no longer,” they are set aside and disregarded. In addition to the case already quoted, the cases of Morris v. Le Gay, 2 Burr. 1102. Atk. 249. Coulson v. Coulson, 2 Stra. 1125. 2 Atk. 246. King v. Burchell, Amb. 379. 4 Term. Rep. 296. (note.) 3 Term. Rep. 145. (note a.) Dodson v. Grew, 2 Wils. 322, are referred to. In the next place it is urged, that by the will, in the terms used for the devise in question, the property is given upon Charles death, to his “ issue,” and that the word “ issue,” is a word of purchase, and not of limitation. In legal construction it is certainly so considered, and never otherwise in the case of deeds. But in wills it may be taken either as a word of purchase, or of limitation, as will best answer and promote the intention of the testator. Hoge v. Hoge, 1 Serg. & Rawle, 155. Per Yeates, J. See also the cases referred to above. Again, it is said, that the words of inheritance, which are engrafted on the limitation to the issue oí Charles, take this case out of the rule in Shelly’s Case; and the cases of Cheek v. Day, Moor, 593. Archer’s Case, 1 Rep. 66, and White v. Collins, Comyn Rep. 28, are relied on. In these cases, it is true, that the first taker of the estate was held to have only an estate for life, because the limitation over, after giving to A. as in Archer’s Case, for life, was to the next heir male of A. (in the singular number,) and to the heirs male of the body of such next heir male. The words “ heir male,” being in the singular number, and words of inheritance superadded, became designatio persona, the root oí a new inheritance, — the stock of a new descent. Luddington v. Kime, 1 Salk. 224. Ld. Raym. 203, is also cited and relied on. There the devise was to B. for life without impeachment of loaste, and in case he should have any issue male, then to such issue male, and his heirs for ever. Here, again, the words of inheritance are engrafted upon the word “issue,” in the singular number, as is demonstrated by the use of the pronoun “ his,” referring to “ issue.” Further it appears to have been the intention of the testator to make B. a tenant for life, otherwise it would have been unnecessary to have introduced words to protect him from the consequences of committing waste. Again, the limitation is to the issue male, and not to the issue generally of B., which would have been sufficient, it is conceived, to have constituted B. a tenant in tail. This last distinction is also a sufficient answer to the case of Beckhouse v. Wells, which has also been referred to by the counsel of the defendants in error. The general rule laid down upon this point, as extracted from the cases by Mr. Fearne, in his treatise on Contingent Remainders, 181, is, if the words be “ heirs” or “ heirs of the body, &c.” and “ issue of the body” may be added to supply what is intended here by the “ Spc.” in the plural; in that case even words of limitation engrafted on them, if not inconsistent with the nature of the descent, pointed out by the first words, will not convert them into words of purchase. In the case of Dodson v. Grew, already mentioned, 2 Wils. 322, the word “ issue” was the term employed by the testator. He devised “ to A. for life, remainder to the issue male of his body lawfully to be begotten, and the heirs male of the body of such issue male, and for want of such issue male, over,” and held that A. took an estate tail. In another case which has not been referred to, the devise was “ to A. for life, and after his decease to the issue of his body, and the heirs of such issue for ever ; and for want of such issue to B.” The court seemed to think that A. took an estate tail. Webb v. Puckey, cited in the 3d. American Edit, of 8th Lond. Edit. of Fearne on Cont. Rem. 203, (note). It would be difficult to point out any substantial difference between this last case and the one before the court. The Court being unanimously of opinion, that Charles took an estate tail under the devise of the premises in question to him, and that the defendants in error are barred bjr the common recovery suffered by him, consider it, therefore, unnecessary to give any opinion upon the other questions raised in this case. The Judgment of the Court below is reversed, and Judgment entered upon the special verdict for the plaiutiff in error, who is the defendant below.

OPINION NIX, Chief Justice. The subject of this appeal is an order of a common pleas court reversing an award by a labor arbitrator and sustaining the discharge of two county employees. When the trial court’s order was affirmed by the Commonwealth Court, the involved employees and their labor union successfully petitioned us for further review pursuant to section 724(a) of the Judicial Code, 42 Pa.C.S. § 724(a). The employee-appellants, Darrell Musser and Steven Brachbill, worked as guards at the county prison of Centre County. In late August of 1984, Officers Musser and Brachbill were dismissed from their positions, as a result of acts committed by them against a prison inmate, one Robert Riggleman. Based on the factually supported findings of the labor arbitrator referred to above, the acts in question may be described as follows: In the evening of August 10,1984, Officer Musser tricked Riggleman into going to a certain area in one of the prison dormitories. Upon Riggleman’s arrival, Officers Musser and Brachbill seized him, wrestled him to his knees and put a pillowcase over his head. Assisting the two guards in this action was another inmate, named Nicholas. The pillowcase was full of shaving cream, and the three assailants proceeded to rub it repeatedly over Riggleman's head and face. When the cream got into Riggleman’s mouth and nose, he began to have difficulty breathing. After a few moments the pillowcase was removed, at which point someone snapped Riggleman’s picture. Riggleman emerged from the episode cursing and yelling at the three men; he then went to a lavatory to wash his face and head. Officer Musser, not yet done with the affair, put another handful of shaving cream on Riggleman’s head. The next day, August 11, Riggleman was again set upon by the trio of Musser, Brachbill and Nicholas. Brachbill and inmate Nicholas held Riggleman while Musser went to obtain a tube of Ben-Gay ointment from the medical supply room. When Musser returned, Brachbill and Nicholas pulled down Riggleman’s trousers; and Musser applied the ointment to the captive’s penis and testicles. Matters did not stop with the Ben-Gay incident. A short time later, after Riggleman had gone to shower and change his clothes, he was confronted anew by Brachbill, Nicholas and a guard named Goodrow. The two guards and Nicholas handcuffed Riggleman to a gate, with his hands being wrapped around one of its bars. They also shackled his ankles. One of the three captors then produced a paper bag, inscribed upon it a homosexual allusion, and put it over Riggleman’s head. With Riggleman thus displayed, one of the captors photographed him. Shortly thereafter, a Lieutenant Bodge came upon the scene and ordered that Riggleman be freed from the handcuffs and shackles. That instruction was complied with — at least temporarily. Evidently, the command given by Lieutenant Bodge did not have a lasting effect on either Goodrow or Nicholas. Later that same day, August 11, 1984, Goodrow and Nicholas again joined forces to re-acquaint Riggleman with the handcuffs and the shackles. This time they held Riggleman down between two desks and shackled each of his ankles to a desk leg. They also cuffed his hands and secured the handcuffs to a candy machine by means of a belt. Officer Musser came upon the scene and joined in by sitting on Riggleman’s stomach. Next, Officers Musser and Goodrow used a felt-tip pen to mark his body. The two guards drew circles around Riggleman’s nipples, marked his face, put stripes on his penis, and wrote the names of two known homosexuals on his buttocks. Following that event, Riggleman was freed from the desks, but was kept in the handcuffs and shackles for an additional period of time. Brachbill, Musser, and Nicholas continued with their sport the next day, August 12. About seven o’clock that evening, Brachbill and Nicholas grabbed Robert Riggleman and pinned him to the floor. While Riggleman was thus restrained, Musser approached carrying a spouted, plastic bottle filled with water. Musser then proceeded to inject the bottle’s spout into Riggleman’s anus, and by that means emptied the water into his body. Upon the completion of that mission the three perpetrators ran from the scene. The final series of events occurred during the evening of August 13, 1984. Musser and Brachbill accosted Riggleman and put him to the choice of having his head shaved or his testicles shaved. After the inmate had weighed the options given, Musser and Brachbill escorted him to a chair where they then proceeded to cut all the hair from his head and to shave it. Riggleman’s term of incarceration at the Centre County Prison expired on August 14, 1984. During a pre-release interview with a counselor, Riggleman revealed, upon inquiry, that the appearance of his head was the work of guards Musser and Brachbill. The counselor reported the head-shaving incident to the prison authorities, who then had the Deputy Warden look into the guards’ behavior. The investigation brought to light the various acts committed by the guards against Riggleman during his last four days at the prison. Riggleman was at first reluctant to lodge a complaint or press charges; in his view the incidents were merely “horseplay” between friends. However, at the urging of the Deputy Warden, he changed his mind and decided to cooperate with the prison authorities in taking disciplinary action against Musser and Brachbill. Soon thereafter, the prison Warden submitted a report to the Centre County Prison Board, recommending that Officers Musser and Brachbill be discharged for physical abuse of inmate Riggleman and shackling him in violation of state regulations. On August 30, 1984, the Prison Board accepted the Warden’s recommendation and notified the two guards of their dismissal. The guards at the Centre County Prison were represented by District 1199P National Union of Hospital and Health Care Employees, AFL-CIO (“Union”). The Union, challenging the discharge of Musser and Brachbill, filed a written grievance pursuant to the Collective Bargaining Agreement (“Agreement”) in force between Centre County and the Union. The parties met in conference, as required by the Agreement; but the Prison Board affirmed its decision to terminate the two guards, citing the employee discipline provisions of the Agreement. Article IV of the Agreement sets forth the general proposition that all matters “of inherent managerial policy” are reserved exclusively to the County unless they have been expressly contracted away by some specific provision of the Agreement. This same Article also states: “The County shall have the right to discipline employees, including the right to suspend, lay off, demote and/or discharge employees for just cause.” (Emphasis added.) However, the County’s right to discipline or discharge employees is addressed more specifically by another part of the Agreement, Article XX. Article XX, in the parts here pertinent, reads as follows: DISCIPLINE Section 1: The sole right to discipline and discharge employees for just cause is retained by the County. The County will follow principles of correcting discipline with respect to minor offenses; that is, a written warning for first offense; disciplinary layoff for second offense; and discharge for the third offense. If an employee believes he or she has been disciplined without just cause, he may file a grievance within five (5) days of date of discipline. The first written warning may be withdrawn within one year, unless during such year the employee receives another warning. Section 2: The following are grounds for immediate dismissal, which are not subject to arbitration, except insofar as Section 4 of this Article XX is applicable: a) Drinking of alcoholic beverages or using drugs during working hours, or reporting for work under the influence of alcohol or drugs. b) Commission of physical violence to employees. c) Stealing of money, material or equipment. d) Carrying an unauthorized concealed weapon when reporting or during working hours. e) Sleeping on the job or during working hours. f) Conviction of a crime. Section j: Should a grievance over discharge or discipline go to arbitration for determination, the sole question to be decided by such arbitrator shall be a question of fact as to whether or not such employee was discharged for just cause. If an arbitrator finds an employee was discharged without just cause or laid-off contrary to the terms of this Agreement, the arbitrator may award back pay less (a) any amount received from any unemployment or other compensation sources received during the period; (b) a deduction for federal, state, or local taxes and other items normally deducted shall be withheld. There shall be no payment for any period of delay caused by the action of the discharged employee or Union. (Emphasis added.) The Union, contending that the dismissals in question were not based on “just cause,” notified the Prison Board of its intent to take the matter to arbitration under the terms of the Agreement. In the proceedings before the arbitrator, there was no dispute as to whether Musser and Brachbill committed the deeds which formed the basis for their dismissal. The County’s evidence in that regard was uncontradicted. The sole point of controversy was whether the conduct of the two guards provided “just cause” for their discharge; The County, in support of its position, brought out that Musser and Brachbill, like all guards at the prison, had been given instruction as to state regulations governing the treatment of inmates and the use of physical restraints, such as handcuffs, and shackles. Thus, according to the County, the two grievants were aware, or should have been aware, that their treatment of Riggleman violated state law. The employer also asserted that the conduct in question, besides being blatantly unprofessional, could have exposed the County to civil liability. The first contention advanced by the Union was that the only infractions which warranted immediate discharge under the Agreement were those specified in section 2 of Article XX, and that the offenses charged against Musser and Brachbill did not come within any of the ones listed in that class. That argument was rejected by the arbitrator on the basis of his conclusion that the provision referred to did not delimit the employer’s power of immediate dismissal. The Union next contended that the sanction of discharge was too severe for the behavior involved, and that nothing more than a suspension was justified. The arbitrator found that the grievants’ conduct toward Riggleman was a clear violation of professional standards, and that their acts, in several respects, probably violated state regulations governing the treatment of prison inmates. The arbitrator also determined that the conduct of the grievants was cause for disciplinary action of some type. He decided, however, that the penalty of dismissal was inappropriate. In concluding that a lesser sanction was called for, the arbitrator accepted two of the Union’s assertions: (1) that the conduct in question was merely “horseplay” between friends; and, (2) that “horseplay” between guards and inmates had been long tolerated at the prison without ever before causing the discharge of a guard. Based on the two findings last mentioned, the arbitrator decided that the Prison Board’s termination of Musser and Brachbill was discriminatory and, for that reason, could not be found to rest upon “just cause.” The arbitrator then proceeded to enter an award reducing each of the dismissals to a four-week period of suspension. His award also stated that he was to retain jurisdiction to resolve the question of back pay. In response to the arbitration award, the County and the Prison Board joined in a petition to the Court of Common Pleas of Centre County, requesting the court to sustain the discharges or, in the alternative, vacate the award. Their petition, labeled as one to “modify, correct or vacate an arbitration award,” sought relief pursuant to section 7302(d)(2) of the Uniform Arbitration Act (“Uniform Act”), 42 Pa.C.S. § 7302(d)(2). That statutory provision states as follows: Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict. (Emphasis added.) By virtue of section 7302(d)(l)(ii), the above-quoted provision applies to labor arbitration awards against political subdivisions. In seeking relief under section 7302(d)(2), the County and the Prison Board asserted that the arbitrator’s award, with regard to the issue of “just cause” for discharge, was contrary to law, was violative of the terms of the Collective Bargaining Agreement, and was such as would have required the court to enter a different judgment had the award been a jury verdict. The court of common pleas held that section 7302(d)(2) of the Uniform Act defined its scope of review in the matter. That section, as its language clearly indicates, is a mandate to the courts concerning their review of arbitration awards covered by the section. The provision directs that a reviewing court shall modify or correct an award if the award is contrary to law and is such that, had it been a jury verdict, it would not have survived a motion for judgment, non obstante verdicto. The common pleas court in the instant case, having so framed its scope of review, proceeded to conclude that the arbitrator’s award was against public policy and thus invalid. In concluding that the award could not stand, the trial court relied on our decision in Philadelphia Housing Authority v. Union of Security Officers # 1, 500 Pa. 213, 455 A.2d 625 (1983). The Philadelphia Housing Authority case, like the present one, concerned an award by a labor arbitrator reversing the discharge of a governmental employee. The employee there involved, a security guard at a public housing project, had been dismissed for defrauding an elderly tenant. Although the arbitrator found, as the employer had alleged, that the security guard had committed the fraud and had lied about his conduct, an award was entered reinstating the guard to his former position. That decision was based on the arbitrator’s determination that the guard’s fraud resulted from an abuse of friendship, not abuse of his official status. This Court declared the award to be invalid. We held that, given the infraction proved, the terms of the collective bargaining agreement did not empower the arbitrator to reverse the discharge. We characterized as “manifestly unreasonable” the arbitrator’s implicit conclusion that the employer had bargained away, under the agreement, its absolute responsibility to ensure the integrity of its security guards by the power of dismissal. Philadelphia Housing Authority, 500 Pa. at 216, 455 A.2d at 627. The trial court in the instant matter, finding present the same considerations that shaped our decision in Philadelphia Housing Authority, entered an order correcting the arbitration award so as to sustain the discharge of Musser and Brachbill. The two grievants and the Union followed with an appeal to the Commonwealth Court. The Commonwealth Court affirmed the decision of the common pleas court, although, in doing so, it differed from the lower court in articulating the standard of judicial review applicable to the award sub judice. 101 Pa.Cmwlth. 193, 515 A.2d 1027. According to Commonwealth Court, the governing standard of review is the “essence” test set forth by this Court in Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977). Under the “essence” test, which we shall more fully detail at a later point herein, an arbitrator’s award is to be respected by the courts if it represents a reasonable interpretation of the labor agreement between the parties. Id. The Commonwealth Court, in applying the “essence” test in the present case, determined that the arbitrator’s award exceeded the authority conferred upon him by the labor Agreement between the County and the Union. The court stated that, once the arbitrator found that the two grievants had committed the misconduct here involved, the question of appropriate discipline was a matter reserved by the Agreement to the employer. In that regard, the Commonwealth Court held that our decision in Philadelphia Housing Authority, supra, was controlling. Based on those reasons, the intermediate appellate court decided that the arbitration award was properly reversed. The grievants and the Union, maintaining that a proper adherence to the standard of judicial review compels affirmance of the arbitrator's award, petitioned this Court for an allowance of appeal. Because of the importance of the considerations involved, and the apparent need for further explication of the law bearing upon this controversy, we granted the petition. We begin by pointing out that the Commonwealth Court correctly identified the applicable standard of judicial review. By our decision in Community College of Beaver County, supra, we held that, with respect to public-employee arbitration awards subject to the Arbitration Act of 1927, judicial review was to focus on the question of whether the award represented a reasonable interpretation of the collective bargaining agreement. That standard, later to become known as the “essence” test, was derived by this Court from federal decisions under section 301 of the federal Labor Management Relations Act, 29 U.S.C. § 185. The most notable of those federal cases was the decision of the United States Supreme Court in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), whose language and reasoning we expressly adopted in Community College for purposes of defining the standard of judicial review under this state’s 1927 arbitration statute. In the Enterprise Wheel and Car case, the Supreme Court put forth the general idea that judicial intervention in labor arbitration awards was to be very limited, stating that, “[t]he refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements.” 363 U.S. at 596, 80 S.Ct. at 1360. In connection with that view, the Supreme Court added that, “[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” Id. According to the reasoning in Enterprise Wheel and Car, the arbitrator’s interpretation of the collective bargaining agreement is one of the things for which the parties bargained; “and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” 363 U.S. at 599, 80 S.Ct. at 1362. Although Enterprise Wheel and Car was, in large part, a pronouncement for judicial deference to arbitration awards under labor agreements, the Supreme Court added the following important and well known caveat: [A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. 363 U.S. at 597, 80 S.Ct. at 1361 (emphasis added). The above quotation provided the conceptual core of the “essence” standard adopted by this Court in Community College of Beaver County, supra. As a further formulation of the standard, we stated in effect that an award is to be respected by the judiciary if the award “ ‘can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention____’” Community College of Beaver County, 473 Pa. at 594, 375 A.2d at 1275 (quoting Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir.1969)). See Lewisburg Area Education Ass’n. v. Board of School Directors, Lewisburg Area School District, 474 Pa. 102, 376 A.2d 993 (1977). In adopting the “essence” standard, or test, we concluded that it was consistent with the provisions for judicial review contained in the Arbitration Act of 1927, and, in particular, with the standard of review previously put forth in International Brotherhood of Firemen and Oilers, AFL-CIO Local 1201 v. School District of Philadelphia, 465 Pa. 356, 350 A.2d 804 (1976). In that decision, which addressed the provisions in the 1927 act for modifying or correcting an srbitration award, we had held that the arbitrator’s interpretation of the labor agreement was to be upheld if it was a reasonable one. Id., 465 Pa. at 366, 350 A.2d at 809. Although the Arbitration Act of 1927 was superseded in 1980, subsequent to the Community College case, the statute’s provisions relative to judicial review of arbitral awards were retained in the superseding legislation, the present Uniform Arbitration Act. For example, section 7302(d)(2) of the Uniform Act, under which the instant appellees sought relief from the award here in question, is substantially a reenactment of section 11(d) of the 1927 statute (formerly 5 P.S. § 171(d)). Pennsylvania State Education Ass’n. v. Appalachia Intermediate Unit 08, 505 Pa. 1, 476 A.2d 360 (1984). It is thus clear that the “essence” test remains the standard of judicial review for arbitration awards which, like the one at bar, are subject to section 7302(d)(2) of the Uniform Act and are challenged under that provision. Id. In the case instantly before us, the appellants contend that the courts below, in reversing the arbitration award, exceeded the limits of proper judicial review and thus exceeded their judicial authority. This argument starts with the appellants’ premise that the Collective Bargaining Agreement between the County and the Union empowered the arbitrator to alter the employer’s disciplinary decision in this matter. Having made that assumption, the appellants next emphasize the arbitrator’s finding that the grievants’ misconduct was “horseplay” and his further finding that “horseplay” between guards and inmates had long been tolerated by the prison authorities. Those two findings, the appellants argue, established a circumstance which, under the Agreement, empowered the arbitrator to lighten the discipline to be imposed. In sum, they argue that the award was a rational derivative of the Agreement and as such should not be disturbed by the courts. As for our decision in Philadelphia Housing Authority v. Union of Security Officers #1, supra, the appellants assert that it is significantly distinguishable frim the present case. Given the nature and scope of judicial review under the “essence” test, we must begin our resolution of this appeal by focusing on the Collective Bargaining Agreement itself. As noted previously in this opinion, Article IV of the Agreement expressly reserves to the County “the right to discipline employees, including the right to suspend, lay off, demote and/or discharge employees for just cause.” (Emphasis added.) This reservation of power is reiterated in Article XX, which more specifically addresses the subject of employee discipline. The very first sentence in section 1 of Article XX states: “The sole right to discipline and discharge employees for just cause is retained by the County." (Emphasis added.) That clause is tempered by a provision concerning “minor offenses”; for offenses of that type the employer agreed to follow a scheme of graduated discipline, starting with a written warning for the first offense, progressing to a “disciplinary layoff” for the second, and ending in discharge for the third. Section 1 of Article XX also confers upon an employee the right to grieve any discipline imposed upon him, should he dispute the existence of “just cause.” Section 4 of that same Article sets forth the powers of an arbitrator regarding employee discipline. Where the matter grieved is a discharge, section 4 provides that “the sole question to be decided by [the] arbitrator shall be a question of fact as to whether or not such employee was discharged for just cause.” (Emphasis added.) The plain language of the Agreement’s disciplinary provisions points to a conclusion that employee discipline, as a general matter, was to remain within the exclusive power of management. Articles IV and XX of the Agreement clearly set forth that understanding. Indeed, the arbitrator recognized as much in his discussion. Besides the express limitation that any disciplinary action must rest on a factual basis constituting “just cause,” the only other contractual limitation on the employer’s power to discipline relates to a class of employee misconduct denominated “minor offenses,” for which the employer has bound itself to follow a scheme of graduated, or progressive, sanctions. The arbitrator’s power regarding disciplinary decisions is carefully circumscribed by section 4 of Article XX: he is restricted to deciding whether or not the requisite factual predicate exists for the imposition of discipline, and whether the disciplinary measure selected by the employer is in accordance with the terms of the Agreement. Under the power arrangement embodied in the Agreement, once the arbitrator determines that “just cause” existed for the employer to discipline a worker, the sanction selected by the employer is beyond modification by the arbitrator, unless it is a penalty which violates the provision relating to “minor offenses.” Unless the latter provision applies, the Agreement does not empower the arbitrator to determine what is the appropriate discipline. Since the arbitrator in this case decided that grievants Musser and Brachbill were deserving of suspension, the unavoidable implication is that he determined that their conduct presented “just cause” for discipline of some type. Furthermore, by concluding that suspension was the appropriate first sanction, it is obvious that the arbitrator did not deem the grievants’ conduct as coming within the provision for “minor offenses.” Consequently, since it is clear that there existed “just cause” for the employer to impose discipline of some type, and since the provision for graduated punishment did not apply, the nature of the discipline to be imposed remained the exclusive province of the employer. When the arbitrator took it upon himself to modify the employer’s decision of dismissal, the arbitrator stepped beyond the bounds of power conferred upon him by the Collective Bargaining Agreement. It is worth noting that, according to the arbitrator, the Prison Board could reasonably have decided upon dismissal based on the information it had. As a ground for overruling the Board’s decision, the arbitrator “inferred” that the Board was not aware of the history of “horseplay” at the prison. However, even if the arbitrator was correct in that surmise, it does not provide a consideration which would limit the employer’s contractual power to impose discipline for conduct constituting “just cause.” The county prison of Centre County is not a private enterprise whose managers may totally bargain away their powers. The prison is a governmental institution whose administrators are charged with governmental functions and duties, many of which are codified in statute and regulation. Under the mandate of section 1 of the Act of May 16, 1921, P.L. 579 as amended,, the Prison Board of Centre County is exclusively vested with the governance and management of the county prison, and with the safekeeping of inmates. If the Board is to carry out its duty relating to the safe-keeping of prisoners, the Board must have the unfettered power to discharge an employee who is found to have subjected an inmate to physical abuse. Clearly, the grievants' acts of handcuffing and shackling prisoner Riggleman in violation of state regulations, and the act of forcibly subjecting him to an enema, come within the category of physical abuse. We can ascertain nothing in the Collective Bargaining Agreement to suggest that the arbitrator had the power to overrule the employer’s disciplinary decision regarding such conduct. Thus, the courts below were correct in applying to this case the reasoning of our decision in Philadelphia Housing Authority v. Union of Security Officers # 1, supra. The fact that the outrageous conduct here involved was perpetrated for the fun and frolic of the guards is hardly a basis for exempting it from the employer’s full disciplinary power. Equally uncompelling is the arbitrator’s finding that “horseplay” was historically common at the prison. The two guards here involved did not have a prescriptive right to violate the law as they did. For the reasons set forth herein, we conclude that the arbitration award sub judice was not rationally derived from the Collective Bargaining Agreement, and thus was properly set aside. Accordingly, the order of the Commonwealth Court is affirmed. LARSEN, J., files a concurring opinion in which PAPADAKOS, J., joins. ZAPPALA, J., concurs in the result. . Administrative regulations found at 37 Pa.Code § 95.241 set forth specifically limited circumstances under which a prison inmate may be subjected to physical force and instruments of restraint, all related to the need to protect persons or property, or to prevent escape. . Act of April 25, 1927, P.L. 381, as amended, 5 P.S. § 161 et seq. . As is well known, Enterprise Wheel and Car was one of three related cases decided the same day and now referred to as the "Steelworkers Trilogy.” The other two cases were United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) and United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). . Another provision in the Agreement, section 3(a) of Article XXII, states in material part that: The arbitrator shall have no power or authority to add to, subtract from, or modify the provisions of this Agreement in arriving at a decision of the issue or issues presented and shall confine his decision solely to a determination of the facts and application and interpretation of this Agreement____ . 61 P.S. § 408. . Although the decision in Philadelphia Housing Authority came after our adoption of the “essence” test but does not mention it, the considerations underlying the decision are a necessary part of the “essence” standard in cases where governmental functions are implicated.

Opinion by Mr. Justice Eagen, Following trial before a judge without a jury in Philadelphia County, Ishmael Berrios was convicted of carrying a concealed deadly weapon in violation of the Uniform Firearms Act. After post-trial motions were denied, a prison sentence was imposed. On appeal, the Superior Court affirmed the judgment without opinion. We granted allocatur and now reverse. Berrios and a companion, while walking on a street in Philadelphia, were stopped by two policemen without a warrant and “frisked.” A .38 revolver was found concealed in Berrios’ belt, and testimony of the policemen concerning Berrios’ possession of the gun and the gun itself were introduced as evidence against him at trial, over objection. We conclude that the frisking of Berrios’ clothing and the seizure of the gun violated his rights under the Fourth Amendment, and that evidentiary use thereof, was therefore constitutionally impermissible. A policeman may legally stop a person and question him. But he may not without a warrant restrain that person from walking away and “search” his clothing, unless he has “probable cause” to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped and searched that the policeman may reasonably conclude that criminal activity may be afoot, and that the person with whom he is dealing may be armed and dangerous. Terry v. Ohio, infra n. 3; Commonwealth v. Hicks, 434 Pa. 153, 253 A. 2d 276 (1969). The Commonwealth does not contend that the-policemen involved had probable cause to arrest Berrios, but urges that the stopping and searching was justified under the second alternative enunciated before. We are not so persuaded. A search on this ground is justified only when “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger”: Terry v. Ohio, supra at 27, 88 S. Ct. at 1883. In other words, the sole justification for such a search is the protection of the police officer or others nearby. Moreover, the arresting officer must be able “to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903 (1968). Good faith on the part of the officer, in itself, is not enough: Terry v. Ohio, supra n. 3. The facts disclosed by this record do not meet the foregoing mandated standards. The pertinent trial evidence was as follows: At 9:21 a.m. on March 2, 1968, the police officers involved received information over the radio of their police automobile that a shooting had occurred at 2424 North Sydenham Street, Philadelphia; that three males, two Negroes in dark clothing, and one Puerto Rican in light clothing, believed to be involved, were observed leaving the scene and walking east on Ontario Street; that the officers proceeded in their automobile to cruise the area searching for the three men; that about twenty minutes later, they saw a Negro in dark clothing and a Puerto Rican in light clothing walking together in an easterly direction on Ontario Street about three blocks from the scene of the reported shooting; that the officers stopped the men (one of whom was Berrios), “frisked” them, discovered the gun on Berrios’ person and seized it. At the time of the stopping and the search, Berrios and his companion were merely walking on the street and acting in a normal manner. There was nothing about tbeir persons or in their conduct which would indicate that they were armed or dangerous. The policemen had no reason to connect them with the reported shooting, except that they were walking near the area; that one was a Negro and the other was a Puerto Rican, who wore clothing of the general color reportedly being worn by those involved. The policemen had no information of the physical make-up or characteristics of the men they were seeking, and hence, did not know if Berrios and his companion were of the same description. If the policemen were constitutionally justified in searching Berrios under these circumstances, then every Puerto Rican wearing light clothing and walking with a Negro in this area could likewise be validly searched. This, we cannot accept. The order of the Superior Court and the judgment of the trial court are reversed, and a new trial is ordered. The Act of June 24, 1939, P. L. 872, §628, as amended, 18 P.S. §4628. Whether the accosted person need answer the questions and if he does whether or not his answers may bo used as evidence against him involves legal questions which need not be discussed or answered here. The “frisking” of Berrios’ clothing and person was clearly a search within the purview of the Fourth Amendment: Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

The opinion of the Court was delivered by Gibson, C. J. Smith and Irvine dissolved their partnership in February 1832; Smith taking the stock on hand, and becoming the liquidating partner. In the following May, Smith and Houser settled the account between the partnership and the latter, consisting of three promissory notes drawn by the firm on the one hand, and a book account of goods sold by it on the other; and Smith gave a promissory note in the name of the firm for the balance. This suit is brought for the debt thus consolidated, and the plaintiff has counted, not only on the note given to secure it, but also on each of the notes included in the settlement. All these notes were demandable six years before the institution of the suit; and did the case rest here, the action would be barred by the statute. But it came out in the course of the evidence, that Smith had paid f300 on the note for the consolidated debt within the six years; and the question is, whether that was such an acknowledgment of the partnership debt as will raise a promise by the firm. It may be affirmed that a partnership, though dissolved for future operations, remains in force for closing the concern; and that the liquidating partner retains his former power to bind the firm in things within the scope of the business committed to him. The proper limitation to the exercise of it is, that it be restrained to acts necessary to be done for the beneficial transaction of it. Such is the ruling principle in the case of Davis Sf Desauque, (5 Whart. 530), in which it was held that a liquidating partner may renew a note drawn by the firm, and even borrow money on its credit to pay its debts, in order to prevent a sacrifice of its effects. And this is entirely consistent with Levy v. Cadet, (17 Serg. & Rawle 126), in which a partner who had suffered judgment to go against himself after the firm had made a general assignment, was not allowed to revive the debt by confessing its existence during a trial with the other partner who had pleaded to issue. The reason of the distinction between the two cases is obvious. The theory of the law on this head, as held by the courts of Pennsylvania, is not that the old promise is revived, but that the subsequent confession of the debt is evidence of a new one; and he who has no authority to act for another, cannot bind him by acknowledging that he is indebted, or by expressly promising for him that he shall pay. Now by the dissolution of a partnership, the power which each had to bind the others is at an end, except for the purpose already indicated — to finish what remains to be done in order to close its concerns. In Levy v. Cadet, therefore, the one partner was not allowed to bind the other by creating a promise for him, because the partnership was ended by the declared insolvency of the firm, and the winding up of its business had been transferred to trustees. His confession of the debt was not the consequence of an act done in the liquidation of it, for his authority over it had expired for that and every other purpose. But what was the authority of Smith in this instance ? It was to settle the partnership debts, and pay them out of the effects in his hands. Having that authority, payment by him singly must be attended with the consequences of payment by both. Though made by one, it was, in contemplation of law, the act of both; and it is consequently evidence of a promise by both. The subsequent payment was made on the foot of the note given by Smith after the dissolution; and hence the jury were directed that as this security, though given for what was once a partnership debt, was, in contemplation of law, his separate note, his acknowledgment of it as a debt exclusively his own, would not be evidence of a promise to charge his partner. But it was not exclusively his own, and there lies the fallacy. To say nothing of the governing principle in the case of Davis & Desauque, already quoted to show that he had authority to renew the partnership notes, he had indisputable power to settle its accounts; and as it has been often ruled that a promissory note may be given in evidence to support a count for an insimul computassent, it would be strange if an action might not be maintained on it as an instrument when drawn by a liquidating partner in the name of the firm. It is immaterial, therefore, whether the giving of the last note cancelled the preceding ones. The giving of a note for an antecedent debt, is not payment of it unless it was received with that intent; but whatever the intent in this instance, the payment in part in discharge of the partnership debt, by whatever instrument secured, was evidence of a promise by the firm, which, having been made within the six years that preceded the commencement of the suit, was not within the statute. Judgment reversed, and venire de novo awarded.

Opinion by Mr. Chief Justice Kephart, The Attorney General petitioned this Court to open the decree in and rehear the case of Kelley v. Earle, et al, 320 Pa. 449, wherein an injunction was granted. The first hearing was on original jurisdiction to restrain the General State Authority, a corporation organized under the provisions of the Act of June 28, 1935, P. L. 452, from entering into a proposed agreement. of lease with the State under that Act and from generally carrying into effect the provisions of the Act. When the injunction was granted, the bills were retained in this court. Petitioner, to sustain the application for rehearing, has filed as part of the record a stipulation embodying new and additional facts so that the questions raised may be “re-examined in the light of these additional facts and circumstances.” The facts on which the original petition was based are detailed at length in the former opinion and need not be repeated in detail. They may be summarized briefly. The Act of 1935, P. L. 452, creates a corporation known as the General State Authority, designated as a “public corporation” and “governmental instrumentality” ; it is composed of the Governor, State Treasurer, and other State officers. The express purpose of its creation is for the construction of permanent public works and improvements, such as sewers, water works, public buildings, airports, highways, etc., while the incidental purpose is to benefit the people of this Commonwealth by alleviating unemployment. To finance these projects it is vested with the power to borrow money and make necessary contracts, subject to the limitation that it can not pledge the credit of the State. It may acquire real and personal property by purchase, eminent domain or lease from the State Department of Property and Supplies, and may lease the completed projects to the State, or any agency or department thereof, with the approval of the Governor. The agreements and leases set forth were the typical documents which were to carry into effect the provisions of the Act. The Commonwealth was to convey land to the Authority for a nominal consideration; the Authority was to construct a complete water works system to be rented to the State Department of Welfare for a term not exceeding 30 years at varying annual rentals. At the expiration of the term and upon payment of the stipulated rental title to the ground and project was to be conveyed to the Commonwealth free and clear of encumbrances. When the case was first heard, the constitutionality of the Act was considered solely with reference to the stipulated facts before us. The main objection came from the alleged violation of Section 4 of Article IX óf the Constitution, which reads: “No debts shall be created by or on behalf of the State, except to supply casual deficiencies ...” The complainants contended that the obligation of the Commonwealth in the agreement of lease created a debt, which could not be met from current revenues, and was therefore an invasion of the constitutional limitation; further, that the agreement in effect was the purchase of a capital asset by installments, the aggregate of which exceeded the revenues on hand; that it was a continuing obligation beyond the present biennium and therefore an illegal undertaking in violation of this Article. To emphasize that the transaction was a debt, it was urged that the State grants its land to the Authority [its creature] without cost, that the Authority creates a bond issue against it, and that the holders of the bonds on default may take the land. Such compulsion to subject the lands to payment of the bonds could only accompany a debt. The same arguments are again set forth to the amended record. The new facts contained in the petition for rehearing and reargument are so vital and important that we may, without hesitation, state that a new cause of action is presented. These so modify the original record that the objections heretofore made, no longer have factual grounds to support them. The additional facts contained in the amended record, which have a material bearing on the question of the constitutionality of the proposed lease will now be stated. A stipulation has been filed exempting the land of the State or the Authority from execution. For this purpose a protective clause will be inserted in the loan agreement, lease and deed of trust. It appears that the Commonwealth is compelled to pay from 10 to 50% more under its present leasing system than it would be required to pay under the proposed new leases and in no case will the annual rent in the latter exceed 5% of the capital cost of the projects. The total of the projects for which applications have been filed, amounts to $60,000,000, of which the Federal Authority will furnish, without reimbursement, 45%. The facts show that the Commonwealth has ample resources to pay the annual obligations of rent which will be called for if the whole of the $60,000,000 is used for the purposes mentioned in the Act. If all the projects are approved the total annual rent therefor will be $1,980,000 or $3,960,000 for each biennium. There are not only sufficient revenues available for such purposes, but the Legislature will be asked to appropriate said sum as an ordinary and current expense of Government, and hence preferred over other expenditures exclusive of debt service and sinking fund requirements. Many of the improvements include needed' additions to State medical, surgical and mental hospitals, penal and correctional institutions which are already inadequate to meet the demands laid upon them and are grossly overcrowded, with a waiting list running into thousands. Each of these institutions receives income from the several counties of the Commonwealth, and these counties have paid to the institutions for the patients sent there by them, a total amount, as will be seen by the table2 on next page, of $7,289,030.42 for the period from June 1, 1935, to November 30, 1936. This income will be increased by the new additions and all will be available for the uses of the institutions to be benefited, including the charges to be paid under the agreements. In the particular project in question, the Selinsgrove State Colony for Epileptics, the receipts from the institution for the same period were $25,107.88. The construction of the sorely needed projects would result in a great saving to the State, especially in respect to rentals now paid annually, and would decrease substantially the otherwise necessary appropriations for unemployment relief during the current biennium. The new leases will be “straight” leases to the Commonwealth and at the end of the 30 year period, the title and ownership of the project and ground will be in the General State Authority. There is no provision for reconveyance to the State. It is in the light of these new facts and circumstances that this court will now consider the case. As a preliminary question our authority to reopen the case was determined in Ladner v. Siegel, 298 Pa. 487, where it was contended that a court of equity had no power to open and modify a decree after the term in which it was rendered, except by a bill of review. We held that there were no term times in equity, and common law rules as to term time do not apply. The facts of the instant case bring it squarely within the rules expressed on page 497 of Ladner v. Siegel, supra. We there held that no vested right could arise from an injunction which “due process” protected from future change, since an injunction does no more than protect property rights under the then existing facts and law and is necessarily subject to modification because of changes in either or both. In considering the question of constitutionality, due regard must be had to the Commonwealth’s position, the projects to be undertaken, the character of the contract and the parties with whom it is made. To enforce a harsh, literal interpretation of the Constitution when considering the legality of the leases of the projects herein mentioned, which are essential to the life of the State and the comfort, health or security of its people, a construction opposed to all business concepts, would violate all rules of interpretation and cause loss of the respect necessary to the life of that document. While it is the duty of the courts to uphold the Constitution, it is likewise their duty not to declare an act unconstitutional unless it is imperatively necessary to do so. We must reach the solution not through a forced, strained, or unnatural construction, but one in keeping with the end to be obtained in the light of necessary government expenses and with the constitutional interdiction before us. Happily the ground has been broken for us. Many of the projects with which these contracts and leases are concerned are self-liquidating projects sustainable under the case of Tranter v. Allegheny County Authority, 316 Pa. 65. When the annual rent is compared with the revenues received by these institutions, which are the real basis of liability for rent if a default occurs, there is no question but that they are self-liquidating. A self-liquidating project may be defined as one wherein the revenues received are sufficient to pay the bonded debt and interest charges over a period of time. The source of the receipt is not important. Here we have a facility leased to the State which operates and maintains it and pays certain rental therefor. The State in turn receives from the several counties of the Commonwealth per diem compensation for all indigent patients who are sent to the institution from the counties. In very many instances the State receives compensation on a per diem basis direct from the patients or their relatives or the estates of both. The source of the counties’ revenue is immaterial; it does not come from the State. The enlargement of existing facilities by new projects will cause an increase in the number of patients or inmates and bring forward additional revenue from the sources mentioned. The table submitted as part of the record shows conclusively that the present and future revenues of the State are and will be sufficient to take care of the liquidating charges and leave a balance over; that these are always available under paragraph (f) of the stipulated facts quoted above. In Tranter v. Allegheny County Authority, supra, we stated at page 85: “We are here dealing with the construction of a purely public self-liquidating project. The denial of power to incur liability on the credit of the [State] ... is notice to the prospective purchasers of the bonds that their security and their only source of payment will be in the revenues [rents] derived from users of the improved . . . facilities . . . The bondholders cannot call upon the public treasuries to contribute; no [State] . . . property can be taken for the debt, because the bondholders have agreed to look to a special fund for payment to be raised in the manner provided.” We could well rest the present case on this conclusion, but as there are a number of projects enumerated in the Act, the constitutionality of these endeavors must be considered in the light of the objections to the leáse. It was conceded at the argument that contracts or leases to meet recurrent needs the obligation of which is to be met by the Commonwealth from current revenues extending beyond the biennium are not within the constitutional limitation. This court, through Mr. Jus tice Drew, so expressed itself in the former decision on this case: Kelley v. Earle, supra, at page 457. See also Scranton Elec. Co. v. Old Forge Boro., 309 Pa. 73; Wade v. Oakmont Boro., 165 Pa. 479; Metropolitan Elec. Co. v. City of Reading, 175 Pa. 107. As far as municipalities are concerned if such obligations are met from current revenues from year to year, they cannot be considered debts in the constitutional sense, even though the aggregate or sum total of all payments should exceed the constitutional limitation. See Wade v. Oakmont Boro., supra. The same rule applies to the State. The amended record shows revenues on hand sufficient to meet rent charges during the biennium, and other similar demands will be taken care of in appropriations by the legislature. The effect of the above decisions is unquestionably controlling in the matter before us. The court has held that these contracts extending over a long period of time were not to be considered in their aggregate so as to violate the constitutional inhibition. The provision of the Constitution referring to the creation of a debt by the State is no stronger than the provision referring to the creation of a debt by municipalities. Having decided that this type of a contract was not a “debt” within the meaning of one section of the Constitution, for the same reason it should not be held a “debt” within the meaning of the other section which relates to the State. The Commonwealth is at present renting a number of structures throughout the State, paying at times high rental therefor. Many of these leases are for long terms and must be so, otherwise they could not be secured. Their validity has been sustained by our cases. The leased properties are essential to the conduct of governmental business and the comfort, health and security of our people. When the case was first here the difference between such leases and the one then under consideration was that at the end of a definite period, upon compliance with the contract, the property leased was to be deeded to the Commonwealth. This the court held was a sale not a lease. We now have a very different situation. The instrument before us is a straight lease for a recurring necessity. The land leased is not deeded to the Commonwealth; it is still held by the Authority, an independent public corporation. In the statement submitted as part of the record it appears that the rentals under the present plan will be anywhere from 10% to 50% less than those which the State is now required to pay for the same facilities. While the constitutional interdiction lays a heavy hand on waste and improvident expenditures, that very condition, an arbitrarily hopeless one, would be created through an interpretation such as we are now asked to place on it. The framers certainly did not intend this to happen, nor did they intend to deprive the State of “the benefit that may accrue from favorable contracts for a term of years for supplying what must certainly be had, and must otherwise be provided for annually at, perhaps, additional expense and inconvenience. Any expense that recurs with regularity and certainty and is necessary for [its] existence ... or for the health, comfort and perhaps convenience of the inhabitants may well be called an ordinary expense”: Brown v. City of Corry, 175 Pa. 528. What condition is more recurring than the perennial obligation of this Commonwealth to care for helpless, indigent, epileptic, feeble-minded, blind, tubercular and other patients or inmates that overflow the institutions named in the Act? Wherein are the objects to be attained by the Act by the building program a new burden? These conditions are with us always and recur with an oppressive regularity. The Commonwealth has wast resources beyond those of a municipality, which is financially restricted and limited by the laws of its creation. Obviously the State, the sovereign power, should not be held to a more rigorous rule in' its expenditures than is applied to one of its creatures, a municipality, which may make con tracts extending over a period of years for recurrent needs without violating the Constitution: Scranton Elec. Co. v. Old Forge, supra. The words “debt and indebtedness [as used in the Constitution] . . . are not used in any technical way, but in the broad general meaning of all contractual obligations to pay in the future for consideration received in the present”: Keller v. Scranton, 200 Pa. 130. Here a capital asset, as it has been termed, is not received in the present, though payments on the lease are to be made from time to time. What the State is undertaking is not the outright purchase of an improvement, but a lease of an improvement on the payment of a moderate annual rental. The State pays as it goes and receives consideration for each payment as it falls due. There is no purchasing here on the credit of the future; for each payment made there is a present benefit to the State. No title under the leases or agreements passes to the Commonwealth ; it remains with the Authority. Under the contract between the Authority and the Federal government the revenue of the Authority from the property leased (the rent) is pledged for its debt as is any fund available for any purpose in connection with the operation and maintenance of the particular institution. If there is a default in the payments on the bonds, the trustee for the bondholders may assume control, operate the property and collect the revenues from the improvements for the liquidation of the debt. When it is paid, the power of the trustee is at an end. This was true also in Tranter v. Allegheny County Authority, supra, where the court, through Mr. Justice Linn, concludes: “This difference between a pledge of property and a pledge of income has been said to distinguish a transaction which created a debt within the constitutional limitation from one creating a debt not within it.” But it is urged that the Commonwealth assumes the burden of operation, maintenance and repair. Similar objections were made in Tranter v. Allegheny County Authority, supra, and rejected. Tbe reasons there given are adequate. See also California Toll Bridge Authority v. Kelly, 218 Cal. 7. As noted previously it appears from the supplemental record that there are sufficient current revenues available and the legislature will appropriate therefrom adequate funds to take care of these expenses. In fact, as to this particular institution the public, through the counties, has been providing for its maintenance, operation and repair for many, many years. This, however, does not impose a continuing or other liability on the State. To further evidence the fact that there is no general obligation on the State, the Attorney General has filed a stipulation wherein the Federal Emergency Public Works Administration expressly agrees that the bonds to be issued will confer no right on the holders of the bonds or the trustee to proceed or claim against the lands of the Commonwealth or the lands of the Authority. This very important qualification was not present in the former hearing and, if any further proof is necessary to emphasize the fact that the obligation under the lease and the lease itself is not a debt within the meaning of the Constitution, this addition not only strongly fortifies but supplies it. It is urged, however, that default in the payment of rent will work a forfeiture of the lease. As stated, this is true, but the forfeiture does not impose any greater obligation on the State than is provided in the bonds or the deed of trust on which they are conditioned. Therein the power of the trustee is limited to taking charge of the institution and operating it. It may readily be seen that this provision, as in Tranter v. Allegheny County Authority, supra, is not sufficient to avoid the instrument on constitutional grounds. It is urged that the transaction is in effect a purchase of capital assets by installments. To sustain this conclusion, of necessity we must hold the agreement a sale; we have held the agreement is a lease and nothing more. If this were ah outright purchase of property to be paid for in the future it would undoubtedly be within the constitutional objection, but it is not a purchase nor does it have the attributes of a purchase. The title to the property is in the lessor Authority, it may be subjected to defined uses and purposes by the trustee under the deed of trust; the Commonwealth, under the lease, cannot intermeddle with it if a default in the payment of rent exists. The fact that the. proposed plan might be termed an evasion of the Constitution, would not condemn it unless such evasion was illegal. “It is never an illegal evasion to accomplish a desired result, lawful in itself, by discovering a legal way to do it”: Tranter v. Allegheny County Authority, supra, at p. 84. The bonds of the Authority are to be paid out of its revenues. The credit of the State is not pledged or bargained away. Much stress has been laid on the various cases that have heretofore been decided. But these cases are and were distinguished in Tranter v. Allegheny County Authority, supra, and need not be further discussed in this opinion. There is one outstanding factor which the additional facts present to us — the immunity of State property and the inability of creditors to compel payments beyond the sums available for current revenues— which differentiates this contract from the contracts involved in McKinnon v. Mertz, 225 Pa. 85; Lesser v. Warren Boro., 237 Pa. 501; Brown v. City of Corry, supra. The credit of the Commonwealth as such is not behind these bonds. Many additional challenges have been made to the constitutionality of the Authority Act. It is contended that it creates a special corporation in violation of Article III, Section 7, which reads that no law shall be passed “creating corporations or amending, reviving or extending the charters thereof.” By the Act the designated members of the State Authority “are . . . created a body corporate and politic constituting a public corporation and governmental instrumentality.” It is empowered to sue and be sued, to adopt a corporate seal, hold property, make by-laws, appoint agents and have many other powers necessary for the carrying out of the purposes for its creation. The purpose of the constitutional provision was to remedy the abuse arising out of special charters and singular privileges which were granted by the legislature when incorporation was a matter controlled by special act. It was not intended, however, to limit the State in the creation of special corporations for governmental purposes. While our research discloses no case squarely interpreting this Section as applying solely to private corporations, in the cases of Commonwealth, to use, v. Philadelphia, 193 Pa. 236, and Commonwealth v. Emmers, 221 Pa. 298, 313, this court intimated that the section is to be so restricted. An illustration of a public corporation created by the legislature as a governmental instrumentality is contained in Tranter v. Allegheny County Authority, supra, where the body is nominated as the County Authority. Obviously, from the very nature and purpose of these corporate bodies, created to assist the State in its essential operations, a distinction must be drawn from the larger class of private or quasi public corporations to which, and to which alone, the constitutional provision was clearly meant to apply. See also Moers v. Reading, 21 Pa. 188; Board of Health v. Diamond Mills Paper Co., 51 Atl. 1019, 1020. It is also contended that there is an unconstitutional delegation of legislative power, but nothing is shown to sustain this contention. The State Authority cannot make laws, nor can it levy or collect taxes, and it is specifically denied the power to create any indebtedness in the name of the State. Its broad functions are to arrange for the construction of designated types of public improvements, for their financing and for the retirement of the obligations thus incurred. These duties can hardly be termed purely legislative and to rest exclu sively in the legislature. See Gima v. Hudson Coal Co., 310 Pa. 480, 485; see also Lower Col. River Authority v. McCraw, 83 S. W. (2d) 629, 636; Matter of Suffolk Co. v. Water Power & Control Com., 269 N. Y. 158. There are many other governmental instrumentalities which have similar powers. It is urged the title to the Act violates in three particulars Section 3 of Article III of the Constitution, known as the Single Title Provision. It is stated that the Act contains two separate subjects which are, first, the creation of the Authority and, second, the conferring of power upon the Department of Property and Supplies to convey without consideration, property to the Authority. We have had this Article and Section before us so often that it is scarcely necessaiy to discuss the subject at length: see Booth & Flinn, Ltd., v. Miller, 237 Pa. 297. See also Reber's Petition, 235 Pa. 622; McGuire v. Philadelphia (No. 2), 245 Pa. 307; Kelley v. Mayberry Township, 154 Pa. 440; Clearfield County v. Cameron Township Poor D., 135 Pa. 86; Mallinger v. Pittsburgh, 316 Pa. 257; Commonwealth v. Miller, 313 Pa. 140. In Commonwealth v. Liveright, 308 Pa. 35, it was said: “Unless a substantive matter entirely disconnected with the named legislation, is included within the bill, the act will not be declared in violation of the Constitution as offending Section 3 of Article III.” It is certainly germane to the creation of this public corporation for the purpose of constructing, improving and operating projects to provide in the same Act the manner in which it shall acquire the property whereby this is to be accomplished: Commonwealth v. Snyder, 279 Pa. 234, construing the title to the Administrative Code of 1923, provides ample authority for our present conclusion. It is further objected that the purpose of the Act is not expressed with sufficient clarity in the title because of the indefinite meaning of the word “projects.” Defi nitions from standard dictionaries are cited to show the variety and breadth of meaning which attaches to the word. The same objection might be made to any word in the title, which, torn from the context, would be found to have varying shades and degrees of meaning and utterly dissimilar connotations in its different senses of usage. The words of our language are extremely versatile. However, as the word “projects” appears in the title of the Act, its intended meaning is perfectly clear to any reader. During the past five years it has been a recognized designation for public works and improvements. The fact that dictionary definitions do not include its current and popular meaning is not decisive of its clarity, for it is well known that lexicographers are slow to recognize acquisitions to the national vocabulary. The words used in the title are to be given their common sense meaning (Reber’s Petition, supra), and if this is done there can be ho genuine confusion as to its purpose. The most seriously urged objection to this title is that it fails to give notice of the fact that it imposes a financial burden upon the Commonwealth, and therefore upon the taxpayers, by providing for the payment of rentals by the State to the Authority at sums fixed by the latter, until its bonds issued upon the projects are retired. This argument is extremely specious. The title to the Act provides that the Authority shall have the power to lease its projects. It is true that it does not state to whom the projects shall be leased, but that is not necessary. Under the Act, Section 4(d), the Authority is empowered “to lease as lessor to the Commonwealth of Pennsylvania and any city, county, or other political subdivision, or any agency, department, or public body of the Commonwealth, any project at any time constructed by the Authority. ...” This is a power conferred upon the Authority, not a positive duty imposed upon the Commonwealth or the subdivisions thereof. There is nothing in the Act that imposes any lia bility on the State with respect to the bonds. In fact, the Act provides otherwise: the Authority shall not have the power to pledge the credit of any of the lessee political bodies; its debts are not to be the debts of these bodies. In Rebels Petition, supra, the Act creating the county boards of viewers was attacked upon similar grounds. Cases cited in support of this constitutional objection relate to Acts which contained express provisions imposing financial obligations upon the Commonwealth or its subdivisions, which provisions were not referred to in the titles. In Article III, Section 7, of the Constitution is found a prohibition against “granting to any corporation, association or individual any special or exclusive privilege or immunity. ...” This section of our Constitution was held in Commonwealth v. Emmers, supra, not to apply to municipal corporations or agencies of the State. Cf: Philadelphia v. Fox, 64 Pa. 169. Does it violate Section 17 of Article I of the Constitution, which provides: “No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.” It is the third clause of this section that is invoked. We have not passed upon the meaning of this constitutional provision. What is meant by “special privileges and immunities” is doubtful. In State v. West Missouri Power Co., 313 Mo. 283, it was held the conferring of a franchise in perpetuity upon a public utility corporation was not a special privilege within its meaning unless the franchise conferred was exclusive. To the same effect is City of Plattsmouth v. Nebraska Telephone Co., 80 Neb. 460, which is cited in Old Colony Tr. Co. v. Omaha, 230 U. S. 100. It is not necessary, however, to determine in this case whether the legislature is bestowing upon this Authority any “special privileges or immunities” within the meaning of Article I, Section 17, or whether this section would apply to a governmental instrumentality such as the Authority, for an examination of the Act of 1935, Section 14, discloses that whatever rights are conferred are not irrevocable within the meaning of the Constitution. In that section the legislature agrees with the United States or any Federal agency which contributes to the projects of the Authority that it “will not alter nor limit the rights and powers of the Authority in any manner which would be inconsistent with the due performance of any agreement between the Authority and such federal agency, and the Authority shall continue to have and may exercise all powers herein granted so long as the same shall be necessary or desirable for the carrying out of the purposes of the Act, and the purposes of the United States in the construction or improvement or enlargement of any project or such portion thereof.” It is unnecessary to further discuss this feature as its effect is the same as that provided in Article I, Section 10 of the Federal Constitution. With regard to the objections raised under Sections 1, 2 and 3 of Article IX, it may be generally stated that notwithstanding constitutional prohibitions against exemption of property from taxation except such as is named in the Constitution, the legislature may, nevertheless, exempt from taxation the bonds of governmental instrumentalities. Accordingly, these bonds have been held not to be such property as is contemplated by the constitutional prohibition: In re Assessment of First Nat. Bank of Chickasha, 58 Okla. 508, 160 P. 469; Penick v. Foster, 129 Ga. 217, 58 S. E. 773, 12 L. R. A. (N. S.) 1159; Lower Col. River Authority v. McCraw, supra; Bates v. State Bridge Commission, 109 W. Va. 186. Having decided that the General State Authority Act and the undertakings in pursuance of it are constitutional, it follows that the bill of complaint must be dismissed. Bill dismissed; costs to be paid by the Commonwealth. “Section 24: In ease a receiver for the Authority or the Project is appointed under the terms of this Agreement or of the Indenture provided for in this Agreement, or under the terms of Act No. 190, the power of such receiver shall be limited to the operation and maintenance of the Project or of the facilities of the Authority and he shall have no power to sell, assign, mortgage or otherwise dispose of any assets, of whatever kind or character, be longing to the Authority, nor any land upon which the project is erected which belongs to and was made available by the Commonwealth.” BUREAU OF INSTITUTIONAL COLLECTIONS DEPARTMENT OF REVENUE Collections Received by the Bureau of Institutions from Counties and Poor Districts from June 1, 1935, to November 30, 1936, Inclusive. Par. (f) "... the Authority shall receive payment of the rentals therein specified for the full term of the Lease, such payments to constitute a first charge on any funds which may be made available for any purposes in connection with the maintenance or operation of the State Colony for Epileptics, to which institution this Project constitutes an addition.” Par. (f). “. . . the Authority shall receive payment of the rentals therein specified for the full term of the Lease, such payments to constitute a first charge on any funds which may be made available for any purposes in connection with the maintenance or operation of the State Colony for Epileptics, to which institution this Project constitutes an addition.”

The opinion of the Court was delivered by Kennedy, J. Among the many errors assigned, there are two, and only two, either of which, we think, is fatal to the judgment of the court below ; they are the seventh, and fourteenth or last; the other errors cannot be sustained, and will be passed without further notice, with the exception of two or three of them. First, As to the second error, which is a bill of exception to the opin* ion of the court in refusing to permit the plaintiff in error, who was the defendant below, to prove by John Stockslayer, that David Witherow and Peter Epley were both present at the sale of the land in question the first time, when it was struck dowrn to Solomon M’Linn. That it was sold as the property of Samuel Witherow, and that there was no notice or intimation by any one that the property did not belong to him. In order to judge of the relevancy and bearing of the proof offered here to be made, it is proper to take into con* sideration, that in the course of the trial it had been previously shown, and indeed admitted by both parties, that David and Samuel Withe-row were originally joint owners of the land in question, by purchase from Christian Routkong; that as such, both had taken, and were in the actual possession thereof for some time, when, as it appeared from the evidence, David Witherow quit the possession and gave it up exclusively to Samuel Witherow, who apparently continued to exercise acts of ownership over the land as the sole owner thereof, and to receive and enjoy the whole of the rents, issues and profits of the same, without having accounted to David at any time for them, or any portion thereof, from the period the latter surrendered the entire possession to the former down to the time of the sheriff’s sale at which the plaintiff in error became the purchaser of the land; also that some evidence was given, tending to prove that the giving of the exclusive possession by David to Samuel, was in pursuance of an agreement made between them, whereby David sold his interest in the land to Samuel, and then moved away and purchased other land for himself exclusively. Now, under these circumstances and this state of the evidence, we are of opinion that what was offered to be proved by Stockslayer, tended still further to show and to corroborate the fact of David’s having parted with his interest in the land .to Samuel; otherwise, being present and seeing the whole of it about being sold as the property of Samuel alone, he would in justice to those bidding at the sale, as well as to himself, have given notice of his right to it. We therefore think this evidence ought to have been •received; and that the court erred in rejecting it. We come now to consider the fourteenth error, which is an exception to the opinion of the court, as expressed in the latter part of their answer to the second point submitted by the counsel of the plaintiff below, for their direction thereon to the jury. It relates to the notice and the sufficiency of it; said to h&ve been given at the instance of David Withérow, of his claioi to the land, when it was selling last by the sheriff, as the property of his brother, Samuel Witherow. That part of the answér excepted to is in these words: “ if the notice given by the crier was, that the sale was of Samuel Witherow’s interest only, it would be sufficient. If no such notice was given, the plaintiff can not recover here, and the verdict must be for the defendant. If such notice was given at the plaintiff’s request, he may recover. Notice is either actual or constructive; but there is no difference between actual and constructive notice in its consequences. Amb. 626 ; Sugd. Vend., ch. 17, sect. 1, page 731. Actual notice, which is what David Witherow, being present at the sale, ought to have given in this case, requires no definition ; for it is universally understood and cannot be misapprehended by any one, and must be given by the party interested in the property and in the course of the treaty for the purchase. Vague reports from persons not interested in the property will not affect the purchaser’s conscience; nor will he be bound by notice in a previous transaction which he may have forgotten. Sugd. Vend., ch. 17, sect. 1, pp. 731, 732; Wildgoose v. Weyland, Goulds. 147, pl. 67; Cornwallis’s Case, Toth. 254; East Greenstead’s Case, Duke 64 ; Kerns v. Swope, 2 Watts 78. A mere assertion, that some other person claims a title, has not only been held to be insufficient to affect a purchaser with notice, but it has been doubted, whether a general claim will do so, of which the purchaser does not appear to have had a previous knowledge. Kerns v. Swope, 2 Watts 78; Tolland v. Stainbridge, 3 Ves. 478. This court, however, ruled, in the case of Barnes v. Mylington, 3 Penns. Rep. 67, that actual notice given by the party, or his agent, of his claim generally to the land at the time of sale, without specifying the nature of his title, or in what way he claimed it or an interest in it, was sufficient to put the purchaser upon inquiry, and to have enabled him, if he desired it, to have ascertained the nature of the claim, and how it was derived from the party making it, who would have been bound to have answered fully at his peril. It is well settled, that whatever is sufficient to put the purchaser upon an inquiry, which would necessarily have led him to a discovery or knowledge of the adverse claim or interest to or in the land, is sufficient to affect him with notice thereof. Though in regard to what is sufficient to put the party on such inquiry, it may, occasionally, be a matter, about which a diversity of opinion may be entertained ; yet in the present case, it is hardly possible to conceive how there can be any but one and the same opinion. The most favourable testimony for the defendant in error, showing that any thing was said or published at the time of the sheriff’s sale, which was calculated to put Epley, the purchaser, on his guard and to lead hint to a knowledge of the claim of the defendant in error in the land, is, that “ the crier very loudly, distinctly and emphatically requested all present to take nor tice, that it was only the interest of Samuel Witherow he was then selling. This he repeated several times.” Now as the sale was making under the authority of judicial process, it is very clear that, the process being against Samuel Witherow, and not David, the interest of the first was all that could be sold ; so that all that was said by the crier was no more thiin what the law implied and every one was bound to know. But David Witherow was present himself at the sale, and, it seems, it was at his instance, though not known then to the bidders, that the crier gave the notice mentioned ; and why he did not, if he thought he had a good claim to the land and intended to assert it, either himself in person, or by the crier or some other agent, explicitly make it known, it is difficult, consistently with principles of fair dealing, to conceive, instead of concealing it as he did, and leaving those wishing to buy the land to find it out as they could, and when it might be too late to provide against it. It is perfectly obvious,- from all that was said by the crier, that no one present could ever have conjectured or even dreamed that David Witherow had any claim to the land. But being present and seeing that the whole of the land was levied on and about to be sold as the estate of Samuel Witherow, it was certainly his duty to have spoken then, if he meant thereafter to assert his claim, otherwise he ought and will be stopped from doing so. Qui tacet consentiré videtur, qui potest et debet vetare jubet. See the East India Company v. Vincent, 2 Atk. 83; Hanning v. Ferrers, 1 Eq. Ca. Abr. 356, pl. 10; Gilb. Eq. Ca. 85; Raw v. Potts, Pre. in Ch. 35; Hunsden v. Cheney, 2 Vern. 150; the case cited in Styles v. Cooper, 3 Mk. 692; Jackson v. Cator, 5 Ves. 688 ; Dunn v. Spencer, 7 Ves. 731 ; Cholmondely v. Clinton, 2 Meriv. 362; Covert v. Irwin, 3 Serg. & Rawle 283; Buchanan v. Moore, 13 Serg. & Rawle 306; Nass v. Vanswearingham, 10 Serg. & Rawle 144; Higginbothom v. Barnet, 5 Johns. Ch. Rep. 184; Teasdale v. Teasdale, Sel. Ca. in Ch. 59; Pearson v. Morgan, 2 Bro. Ch. Ca. 384; Pilling v. Armitage, 12 Ves. 78; Dowling v. Mill, 1 Madd. Rep. 541; Taylor v. Cole, 4 Mund. 351; 1 Wash. Rep. 317; Livingston v. Byrne, 11 Johns. 565 ; Green v. Price, 1 Mund. 449; Owen v. Bartholomew, 9 Pick. 520; where this doctrine is established and recognized to the fullest extent. But here, it is said, David Witherow had put his deed of conveyance or title on record, before the sale to the plaintiff in error, where he, as well as every body else, could inspect and was bound to take notice of it. But as this deed had been in being for many years before, and withheld from record until shortly before the sale to the plaintiff in error, and not until after the prior sale, which was set aside, at which David Witherow also attended without making his claim known, as the plaintiff in error offered to show, it is most probable, if not certain, that he must have believed that the most, if not all, of those present were wholly ignorant of his claim ; and being there himself without making it known to them, it is scarcely possible that it could have entered into their minds to conceive that he had a claim to the land which he would thereafter bring forward. Under these circumstances, it was quite as necessary, in order to avoid the imputation of fraud, that h¿ should have given express and direct notice of his claim to the land, if he meant thereafter to insist upon it, as if his deed had still been in his desk unrecorded. It does not appear that any person, who was a bidder at the sale, had the least notion of his claim ; and it is impossible to believe that he was pot fully aware of this being the case with them at the time; and yet he forbears to make it known, stands by, seeing and hearing them bid for the land as if it belonged entirely to his brother Samuel. Would it not then be fraudulent in him now, after having conducted himself thus, to take from the purchaser an undivided moiety of his purchase 1 It is plain that to peimit him to do so would be, to permit him to act against good conscience, and to practise a most gross and palpable fraud. We therefore think that the court erred in not instructing the jury, that the plaintiff below, if he meant to hold on to his claim to the land, should have given express and direct notice of it to the bidders at the sheriff’s sale; but not having done so, even according to his own evidence, he could not recover. Having thus disposed of the only errors assigned which are considered well founded, it may not be improper to notice the third and fourth errors, which relate to the “memorandum” as it is called, made by Alexander Russell, Esq., and the admission of it in evidence by the court. It appears to us, that the court were right in permitting it to be read in evidence to the jury, because there was some evidence given which tended to prove that it was the agreement of David and Samuel Witherow, reduced to writing by Rus-' sell in their presence as such. And although it was competent for the defendant below to repel this evidence, by showing that the memorandum was not made with a view of committing to writing the agreement of the parties, but was made by Russell as a memorandum for his own private, use ; yet it was a question of fact, contested by the parlies, which could only be'determined by the jury, and therefore it became the duty of the court to submit it to them with all the evidence given in relation to it. The only remaining matter, deemed worthy of a passing notice, is contained in the thirteenth error; which is an exception to the opinion of the court in rejecting the releases offered to be read in evidence by the counsel for the plaintiff in error. The court decided correctly in rejecting them, as they could not be made to subserve the purpose for which they were offered, that is, to show that by their effect, in law at least, the consideration money which Samuel Witherow was to have paid to or for David, on account of getting his interest in the land, had been satisfied so as to give Samuel or his assignees the full benefit of it in the same manner as if it had actually been paid by Samuel, by vesting in him, or the plaintiff in error as. his assignee, all David’s original right to and in the land. This, however, cannot be, because it appears on the face of the release that David executed it in consideration of his still being per, mitted to hold his interest in the land, which Samuel, by accepting the release, may be said to have assented to. It therefore amounted to nothing as regarded the rights of others ; and can neither advance nor prejudice them, Judgment reversed, and venire de novo awarded.

The opinion of the court was delivered by Knox, J. The only question raised upon this record is whether a municipal corporation may be made a garnishee upon an execution attachment under the Act of 16th June, 1836. This question received an affirmative answer in the court below. But the answer was erroneous. It was long since settled, that an attachment would not lie against a sheriff or prothonotary who holds money collected on an execution or paid on a judgment. And where an attempt was made to attach money due to a school teacher, in the hands of the treasurer of the school directors, Mr. Justice Sergeant, in denying the validity of the attachment, said, “ If a precedent of this kind were set, there seems no reason why the state or county treasurers, or other fiscal officers of the Commonwealth, or of municipal bodies may not be subject to the levying of attachments, which has never been attempted, nor supposed to come within the attachment law:” Buckley v. Eckel et al., 3 Barr 368. An execution attachment is often substantially but the com mencement of the suit; and it always imposes upon the garnishee duties and obligations of a somewhat difficult character to perform. He must appear to the writ and answer the interrogatories propounded. He may not pay the money to the original creditor after notice of the attachment, nor can he safely pay it to the attaching creditor pending the litigation. If the debt has been assigned with notice to the garnishee before the attachment, he must either notify the assignee of the attachment, or plead the assignment in bar of the attachment; and if he is summoned by foreign attachment, he cannot even after judgment safely pay the debt to the attaching creditor, until bail to return has been duly given. The performance of public duties is sufficiently difficult on the part of fiscal officers, without further complicating them by requiring such officers to become parties to questions and rights litigated in our courts of justice. That the Act of 16th June, 1836, was not intended to extend to municipal corporations, is clear from the fact, that when a judgment is obtained against a garnishee for a debt owing by him to the defendant in the attachment, a common law execution is the remedy provided to enforce payment of the judgment: whereas a mandatory writ under the Act of 15th April, 1834, alone can issue against a municipal corporation. Accordingly, when it was provided by the Act of 20th March, 1845, P. L. 189, “ that so much of the Act of Assembly, passed 16th June, 1836, entitled ‘ An act relating to executions,’ as provides for the levy and recovery of stock, deposits, and debts due to defendants by process of attachment, and scire facias, is hereby extended to all cases of attachments to be issued on judgments against corporations,” municipal corporations were expressly excluded from the operation of the act. It was said upon the argument, that an attachment against a municipal corporation had been sustained in Heibner v. Chave et al., 5 Barr 115. True, this was an attachment against the borough of Norristown;- but no question was raised as to the liability of the borough to be summoned as garnishee. Two points were made in the Common Pleas: 1st. That the execution attachment could not issue without a revival of the judgment; and 2d. That the debt due to the defendant was for labor, and therefore not attachable. The first point was decided in favor of the attaching creditor, and the second against him. In the Supreme Court the judgment was reversed because the debt was held not to fall within the saving provision of the Act of 15th April, 1845, which prohibits the attachment of wages due to a laborer. Had the defendant or the garnishee raised the question now presented, it would doubtless have been decided against the attaching creditor. The judgment of the Court of Common Pleas is reversed, the attachment set aside, and judgment in favor of the city of Erie, garnishee, &c., for costs.

OPINION NIX, Chief Justice. The appellant, John A. Nelson, was convicted by a jury of murder in the first degree and of possession of an instrument of crime. Following further deliberation, the jury decided that imposition of the death sentence was appropriate, having found the aggravating circumstance of torture. After denying the appellant’s post-trial motions, the trial court formally imposed the judgment of sentence of death for the murder; and also sentenced him to a term of imprisonment of from one to two years for the companion crime. There followed this direct appeal to this Court pursuant to section 722(4) of the Judicial Code, 42 Pa.C.S. § 722(4). In the early evening of February 14,1983, John A. Nelson was released from a hospital after having spent about three days there for problems of alcoholism. Later that same night he killed his wife, Sara Nelson, while subjecting her to a sequence of brutal assaults in the basement of a certain business establishment. He struck her on the head with the claw end of a hammer; then stabbed her repeatedly in the chest with a chisel; and finally, strangled her by wrapping an electric cord around her neck. At trial the Commonwealth’s medical testimony established the cause of death as being by strangulation. The record evidence discloses that about 7:00 P.M. on the night in question, prior to the killing, appellant Nelson had gone to a local bar and engaged in conversation with one David Fuller, an ex-policeman. In that conversation, according to Fuller’s testimony at trial, the appellant remarked that he was angry with his wife and inquired as to the penalty for murder. Fuller further testified that the appellant did not appear to be intoxicated during this conversation. John Nelson left the bar and went to his wife’s residence where he was admitted by his stepdaughter, Ms. Dina. In the opinion of Ms. Dina, the appellant was not under the influence of alcohol when he arrived. Sara Nelson was home and did meet with her husband. About 8:00 P.M., Mrs. Nelson agreed to drive her husband to a certain beauty parlor. It was in the basement of the beauty parlor that he subjected her to the brutal, fatal attack that ended her life. Thereafter, he removed Mrs. Nelson’s car to another location; and then telephoned his stepdaughter, representing that he was again looking for his wife. A short time later, however, he told at least three friends or acquaintances that he had killed his wife. Around 11:00 P.M. the same night the appellant called the local police and confessed to having killed his wife. After being placed in police custody, and after receiving the required Miranda warnings, he twice more stated to the police that he had killed his wife. Prior to trial the appellant filed a motion seeking to suppress his statements to the police, but that motion was denied. During trial appellant sought to convince the jury that he was so intoxicated on the night of the killing that his actions were not deliberate and premeditated and that he did not possess a specific intent to take his wife’s life. In this context, he attempted to establish that he was so afflicted by the curse of chronic, severe alcoholism that his mind had become impaired to the point of being incapable of committing a premeditated homicide or of forming a specific design to kill. The only evidence adduced by the defense in support of this theory of diminished mental capacity was testimony provided by appellant himself and testimony supplied by his sisters, stressing that his hospitalization prior to the killing had been for the treatment of alcoholism. The defense did not offer expert medical testimony to establish the extent to which his alleged alcoholism had impaired his mental faculties. Defense counsel argued to the jury that the homicide could not rise any higher than murder in the third degree based upon the assertion of mental incapacity due to alcoholism. The appellant also argued in the alternative that he killed his wife while in a heat of passion brought on by a marital dispute during which she struck him with a hammer. The jury’s verdict in this case makes it clear that they rejected the appellant’s allegations of diminished mental capacity or conduct while in a heat of passion, and that they believed the evidence established an intentional malicious killing. In deciding that imposition of the death penalty was appropriate, the jury expressly accepted the prosecution’s theory that the homicide was committed by means of torture and found that there were no outweighing mitigating circumstances. Before this Court, the appellant raises numerous challenges; some are directed at the guilt stage of his trial but most are concerned with the sentencing phase of the proceedings. Our review of this case must start with the question of whether the record evidence was sufficient to sustain the verdict of first-degree murder returned by the jury. Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983); Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982). Section 2502(a) of the Crimes Code, 18 Pa.C.S. § 2502(a), states that “[a] criminal homicide constitutes murder of the first degree when it is committed by an intentional killing ” (emphasis added). The phrase “intentional killing” is defined as a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). This Court has held that a “willful, deliberate and premeditated killing” is one where the actor has a specific intent to bring about the death of the victim. Commonwealth v. Meredith, 490 Pa. 303, 309, 416 A.2d 481, 484 (1980); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947). The test by which we must determine the sufficiency of the evidence is whether, accepting as true all of the Commonwealth’s evidence and all reasonable inferences arising therefrom upon which, if believed, the fact-finder could reasonably have based its verdict, such evidence and inferences are sufficient in law to establish the elements of the crime in question beyond a reasonable doubt. Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978), cert. denied 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979); Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971). Under the testimony presented at trial, the Commonwealth’s evidence was unusually impressive in establishing the specific intent to kill. The element of specific intent is one that may be proven from the circumstances surrounding the event. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). As we noted in Commonwealth v. Meredith, supra: Where one does not verbalize the reasons for his actions, we are forced to look to the act itself to glean the intentions of the actor. Where the intention of the actor is obvious from the act itself, the finder of fact is justified in assigning the intention that is suggested by the conduct. If a deadly force is knowingly applied by the actor to the person of another, the intent to take life is as evident as if the actor stated the intent to kill at the time the force was applied. (Emphasis added.) 490 Pa. at 811, 416 A.2d at 485. Here, appellant admitted causing the death of his wife to individuals even before his arrest on these charges. Thereafter, during custodial interrogation, he again confirmed the fact that he brought about the termination of his wife’s life. Thus the fact that he was the cause of the death is amply supported by the testimony presented. The circumstances surrounding the event reflect with equal clarity his intent at the time to bring about the death of his spouse. Having first assaulted his wife with a hammer and then a chisel, and being unsuccessful in extinguishing her life, appellant then left the basement, went upstairs and secured an electric cord and returned to the basement where he effectively used the cord to accomplish his purpose. From this sequence of events, the jury was certainly justified in concluding that the assault was designed to terminate the life of the unfortunate victim. See, e.g., Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). We are satisfied that the evidence produced by the Commonwealth provided ample basis for the jury’s determination that the killing was willful, deliberate and premeditated. Notwithstanding the legal sufficiency of the Commonwealth’s evidence to sustain the jury’s verdict of first-degree murder, the appellant asserts that the verdict was against the weight of the evidence. In support of that proposition he argues that, given his evidence concerning the effect of his alcoholism on his mental capacity, the jury should have found that his mind was so impaired that it could not form a specific intent to kill. It is true that in Pennsylvania diminished mental capacity may be a defense to a charge requiring a specific intent. Commonwealth v. Zettlemoyer, supra; Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Brantner, 486 Pa. 518, 406 A.2d 1011 (1979); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). However, the appellant’s reliance upon that theory in this case is without merit. Even assuming, arguendo, that the appellant’s evidence concerning his. chronic alcoholism and its effect, consisting solely of testimony from him and his sisters, could have justified a finding of diminished mental capacity, the jury was not compelled to accept this testimony or to make such a finding. It is a fundamental rule of law that a jury may believe any, all or none of a party’s evidence. E.g., Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). Even had the appellant presented expert medical testimony to establish that his mental capacity had been diminished by chronic alcoholism and that the infirmity affected his actions at the time of the killing, the jury would not have been obliged to accept such testimony. Commonwealth v. Walzack, supra. As a further argument that the verdict was against the weight of the evidence, the appellant asserts that the testimony indicated he killed his wife in a “heat of passion” brought on by a marital dispute, and that with such evidence the jury could have returned a verdict of voluntary manslaughter. It is true that extended provocation brought about by stress, anger and hostility caused by marital problems can provide grounds for a verdict of voluntary manslaughter instead of murder. Commonwealth v. Shaver, 501 Pa. 167, 460 A.2d 742 (1983). However, in the instant case the “heat of passion” defense rested upon the jury’s acceptance of appellant’s trial version of the events. The weight and credibility of that testimony was for the trier of fact to determine. Id.; Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). And, as previously noted, it was within the province of the fact-finder to believe all, some or none of the appellant’s testimony. Commonwealth v. Stoyko, supra; Commonwealth v. Shaver, supra. The appellant’s arguments concerning the weight of the evidence were, of course, first raised before the trial court in his post-trial motions, and were rejected by the trial judge. The trial judge was able to observe the demeanor of the witnesses as they offered their evidence and was satisfied that the jury's verdict was justified. A jury’s resolution of the facts should not be disturbed unless the failure to do so would be tantamount to a miscarriage of justice. See, e.g., Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961); Lupi v. Keenan, 396 Pa. 6, 151 A.2d 447 (1959); Frank v. W.S. hosier & Co., Inc., 361 Pa. 272, 64 A.2d 829 (1949). Such would be the case where the quality and/or quantity of the evidence clearly does not support the verdict reached. See Commonwealth v. Vogel, 458 Pa. 200, 321 A.2d 633 (1974). Clearly such a situation is not presented in this appeal. The appellant next raises as a ground for a new trial the fact that the trial judge, at the beginning of the defense’s case during the guilt stage of the proceedings, refused to grant the motion of defense counsel for a recess prior to calling the appellant to the witness stand. The motion was made about 4:00 P.M. on a Monday, in the midst of trial, and sought to have the proceedings adjourned until the following morning, purportedly to give defense counsel additional time to determine whether or not his client would testify. We note that defense counsel had assumed the representation of his client long in advance of trial; we also note that counsel had advised his client relating to his right to testify on his own behalf, and further stated that he had advised his client that, in counsel’s judgment, he should, in this case, testify. Moreover, counsel and his client had the entire weekend prior to the Monday in question to further consider whether the client would testify. In denying the motion for the 4:00 P.M. adjournment, the trial judge took the position that the time had come for the defense to make its final decision as to whether the appellant was going to testify. When the appellant took the witness stand after the adverse ruling, he was questioned on direct examination solely about matters of his personal background and events prior to the killing. That part of his testimony was concluded about 4:35 P.M., at which point court was adjourned for the day. Thus the effect of the refusal to grant the requested adjournment merely forced the defense to make the decision it had been considering for an extended period prior to that moment. Contending here that the denial of the recess was a violation of his right to confer with counsel as guaranteed by the Sixth Amendment of the Federal Constitution, the appellant relies on the decision of the United States Supreme Court in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). That case, however, does not support the appellant’s contention. Geders upheld the right of a criminal defendant to confer with his counsel during a recess which had been called by the trial judge; the case does not address the question of the defendant’s right to have a recess called. It is within the sound discretion of the trial judge to control the course of trial. Commonwealth v. Dress, 354 Pa. 411, 47 A.2d 197 (1946). There was no question in the instant case that the defense had ample opportunity to explore their options and that they were not forced to make a hasty decision. Moreover, the appellant has not suggested how the denial of the recess prejudiced him. It is therefore apparent that this assignment of error is totally without merit. It also follows that the appellant’s related contention, that trial counsel was ineffective in not including the recess denial as a ground in his post-trial motions, must fail as well. Counsel is not ineffective for failing to assert a baseless claim. Commonwealth v. Williams, 500 Pa. 226, 455 A.2d 632 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). The appellant next complains that his trial attorney was ineffective in failing to comply with Pa.R.Crim.P. 305(C)(1)(b), which requires the defense to give the Commonwealth pre-trial notice of an intention to offer at trial a claim of mental infirmity. This argument must also be rejected as a ground for a new trial. Despite the apparent failure of defense counsel to comply with the above procedural requirement, the trial court permitted the defense to claim diminished mental capacity, to present evidence in support of the claim, and to argue the matter to the jury for their consideration. Therefore, we cannot ascertain how, if at all, the appellant was actually prejudiced by the procedural omission; his brief to this Court provides us with no help in that regard. Before a defendant on direct appeal is entitled to further inquiry under a theory of ineffective assistance of trial counsel, it must appear that counsel’s omission or improper commission was, in some way, prejudicial to the interests of the defendant. Commonwealth v. Ford, 491 Pa. 586, 421 A.2d 1040 (1980); Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978). Still maintaining that he was not effectively represented during the guilt stage, the appellant further avers that trial counsel failed to seek pre-trial discovery from the Commonwealth. In support of this argument the appellant’s brief simply states that: “it is alleged and believed that the Commonwealth was in possession of substantial medical evidence which would relate to the defendant’s mental or physical condition.” (Emphasis added.) Upon the record before us in this appeal there is no way of knowing whether trial counsel did or did not attempt to secure such pre-trial discovery; nor is there any way of knowing from the appellant’s brief what, if any, medical evidence the Commonwealth may have had in its possession. In providing this Court with nothing more than a bare allegation or statement of belief to support the argument, the appellant would have us consider a claim in the abstract. That we will not do. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). The appellant also complains that his defense counsel made no attempt, during the guilt phase of the trial, to present any expert medical testimony concerning the impact of his alcoholism on his mental capacity. However, the appellant makes no assertion here that there was a medical witness who would have offered testimony favorable to his defense of diminished mental capacity. Consequently, this assertion of ineffective assistance of counsel is also without merit. Commonwealth v. Floyd, supra. As a final challenge to the effectiveness of counsel’s assistance during the guilt stage, the appellant contends that counsel’s closing argument fell short of required standards. Our review of counsel’s efforts in that regard discloses no such failure. Having concluded that the Commonwealth’s evidence in this case was legally sufficient to sustain the jury’s verdict of first-degree murder, and having rejected the arguments upon which the appellant relied for the grant of a new trial, we turn now to the appellant’s assertions regarding the sentencing phase of the proceedings against him. In urging us to vacate the sentence of death, the appellant first directs our attention to the torture element of the case. He asserts that section 9711(d)(8) of the Sentencing Code, 42 Pa.C.S. § 9711(d)(8), which makes torture an aggravating circumstance upon which a sentence of death can be based, is unconstitutionally vague. He further asserts that the trial judge’s charge to the jury concerning torture was prejudicially inadequate; and that the Commonwealth’s evidence was not legally sufficient to prove that the killing of Mrs. Nelson was accompanied by torture. The appellant also complains that his trial counsel was ineffective in not demurring to the Commonwealth’s proof of torture as an aggravating circumstance, and for not objecting to the trial judge’s charge relating to torture. Ordinarily the failure of trial counsel to timely raise these objections would constitute a waiver and therefore preclude a consideration of these issues on the merits. E.g., Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). It would then be incumbent upon appellant to show that those omissions constituted ineffective assistance of counsel. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Gay, 489 Pa. 17, 413 A.2d 675 (1980). However, in capital cases we have relaxed the traditional waiver concepts because of the uniqueness of the penalty involved, and permit an assessment of the alleged error on its merits. See, e.g., Commonwealth v. Pirela, 510 Pa. 43, 507 A.2d 23 (1986); Commonwealth v. Pursell, supra; Commonwealth v. Stoyko, supra; Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984); Commonwealth v. Zettlemoyer, supra; Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978). Moreover, in this instance such an inquiry is facilitated since the issues raised do not depend upon facts which are not part of the record. Section 9711(d) of the Sentencing Code enumerates ten categories of circumstances which are characterized as aggravating and hence warrant imposition of the death penalty for first-degree murder. In this case the Commonwealth relied solely on subsection 8 for the aggravating circumstance to justify the penalty of death. That subsection provides that the death penalty may be appropriate where “[t]he offense was committed by means of torture.” The record of the sentencing proceeding reflects that the court's entire instruction relating to this aggravating circumstance was as follows: Now, the Crimes Code [sic] defines aggravating circumstances. For purposes of this particular case only the following matters, if proven, can constitute aggravating circumstances, and in this case there is only one item in which the Commonwealth is contending under the Crimes Code [sic], that there is an aggravating circumstance, and that is that the offense was committed by means of torture. T.T. Vol. V, pp. 198-199. Appellant notes that the word “torture”, as used in subsection 8, is given no definition by the Sentencing Code and that the trial court made no effort to further define that term for the jury in this case. He argues that this was an insufficient instruction that constituted a denial of due process. A well recognized aspect of the void-for-vagueness concept is the requirement that standards be sufficiently precise to guide the court and jury. Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980) (opinion of Stewart, J., announcing judgment of the Court, joined in by Blackmun, Powell, and Stevens, JJ.); Proffitt v. Florida, 428 U.S. 242, 255-56, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976) (opinion of Powell, J., announcing judgment of the Court, joined in by Stewart and Stevens, JJ.); Gregg v. Georgia, 428 U.S. 153, 192-94, 96 S.Ct. 2909, 2934-35, 49 L.Ed.2d 859 (1976) (opinion of Stewart, J., announcing judgment of the Court, joined in by Powell and Stevens, JJ.). In this instance the question is whether by merely utilizing the word “torture”, the General Assembly has made sufficiently clear the requisite degree of culpability for the imposition of the death penalty under this particular aggravating circumstance. The test to be applied is whether the prohibited conduct is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. See generally Note, The Void-for-Vagueness Problem in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). The word torture is defined in Webster’s Third New International Dictionary (unabridged) as “the infliction of intense pain (as from burning, crushing, wounding) to punish or coerce someone; torment or agony ..., anguish of body or mind; excruciating agony....” As noted by this Court in Commonwealth v. Pursell, supra, 508 Pa. at 238, 495 A.2d at 196, the general “meaning of such a term [torture] is a matter of common knowledge,....” The word torture is generally understood as “the infliction of a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious, or cruel manifesting exceptional depravity.” Id., 508 Pa. at 239, 495 A.2d at 196. Thus we agree with the Commonwealth that the word “torture”, even with its ductile quality, does not present a vagueness question of constitutional proportions. Commonwealth v. Pursell, supra. Thus we reject the contention that subsection 8 is unconstitutionally vague because of its use of the word “torture” without further elaboration of that term. However, this conclusion does not end our inquiry into the instant complaints. It is the responsibility of the courts to “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’” Godfrey v. Georgia, supra, 446 U.S. at 428, 100 S.Ct. at 1764-65. The sentencing phase under section 9711 is only applicable after there has been a finding of murder in the first degree. The aggravating circumstance provides an additional element to the intentional killing which justifies the ultimate sentence. Thus subsection 8 of section 9711 must of necessity require more than a mere intent to kill. Implicit in subsection 8 is the requirement of an intent to cause pain and suffering in addition to the intent to kill. There must be an indication that the killer is not satisfied with the killing alone. The critical distinction between Commonwealth v. Pursell, supra, and the case at bar is that in Pursell the trial judge gave the jury a charge which contained a sufficiently guiding definition of the word “torture.” That charge conveyed to the jurors the idea that the “torture murderer”, besides having an intent to kill, has an additional specific intent — “ ‘an intention to inflict pain, suffering or both pain and suffering.’ ” 508 Pa. at 239 n. 13, 495 A.2d at 197 n. 13 (quoting charge of trial judge). The central element in our decision in Pursell is that we upheld the charge given by the trial judge regarding the meaning of “torture.” Although we recognize the definitional problem that confronted the trial court in the instant case, we must also observe that the trial judge in Pursell was faced with the same problem and yet succeeded in providing a charge which satisfied due process requirements. Having concluded that the jury charge given during the sentencing phase of the instant case was prejudicially deficient, we must also conclude that trial counsel was ineffective in his assistance when he failed to make a timely objection to that charge. For the reasons set forth herein, we are constrained to vacate the death sentence imposed upon the appellant, and remand the case to the court below for the imposition of a life sentence. LARSEN, J., files a concurring and dissenting opinion. McDERMOTT, J., files a concurring and dissenting opinion in which PAPADAKOS, J., joins. PAPADAKOS, J., files a concurring and dissenting opinion in which McDERMOTT, J., joins. . These admissions were made to Ms. Lottie Boyles, George Shoemaker and David Zanni. . In this appeal the appellant does not challenge the suppression ruling relating to the incriminating statements made to the police. . Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth. Commonwealth v. Brantner, 486 Pa. 518, 522 n. 2, 406 A.2d 1011, 1013 n. 2 (1979); Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). It is a rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the "cold record." Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Farquharson, supra; Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). However, where the penalty of death is imposed we will consider such a complaint. . Frequently, in the context of complaints of ineffectiveness of counsel, an evidentiary hearing is required to establish the factual predicate upon which the legal issues will depend. Here, it is a pure question of law which eliminates a necessity for remand for a further hearing. . As a result of an amendment by Act 1986-87, signed July 7, 1986, section 9711(d) was increased by two additional aggravating circumstances. However, as noted in the text of this opinion, there were only ten enumerated categories at the time of trial. . Arbitrary and capricious sentencing can only be avoided where the issues are clearly identified and the controlling law explained. E.g., Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). The function of elucidating the relevant legal principles belongs to the trial judge, and the failure to perform this function deprives the defendant of a fair trial. Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977). . The law has long recognized the distinction between the intent to inflict pain and the intent to kill. In those cases where death resulted from the infliction of torture, legislatures deemed it appropriate to equate it with the specific intent to kill. E.g., State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978); People v. Steger, 16 Cal.3d 539, 128 Cal.Rptr, 161, 546 P.2d 665 (1976); Townsend v. People, 107 Colo. 258, 111 P.2d 236 (1941); State v. McKenzie, 186 Mont. 481, 608 P.2d 428 (1980); State v. Bentford, 39 N.M. 293, 46 P.2d 658 (1935). Here, where the infliction of torture is being utilized as an aggravating circumstance after a finding of a specific intent to kill, the additional element of the intent to inflict torture provides the heinousness necessary to warrant the extreme penalty. . As noted previously, the appellant has raised numerous objections with respect to the sentencing phase of his trial. In view of our disposition of this appeal it is unnecessary to address his remaining arguments.

Opinion by Mr. Justice Simpson, Plaintiff, who had been the treasurer of defendant, a township of the first class, sued to recover from it “a sum equal to one per centum of all other moneys [than township taxes] received or collected by him for the township,” claiming he was entitled thereto under the express provision of section 271 of the General Township Act of July 14, 1917, P. L. 840, 869. Defendant entered an appearance, and filed a petition under the Act of March 5, 1925, P. L. 23, alleging that no recovery could be had until and unless the claim had been submitted to and allowed by the township auditors, or by the court on appeal from their report; that plaintiff’s claim had not been allowed by either tribunal, and hence the action should “be abated and all proceedings thereunder dismissed for want of jurisdiction of the cause of action.” An answer was filed, the petition was dismissed, inter alia, because the Act of 1925 was inapplicable, and defendant appeals. The only point we need consider is the fundamental one to which reference has been made, since we are clear that it was properly decided, and hence the appeal must be quashed. The Act of 1925 applies only to cases where it is alleged the court has no “jurisdiction over the defendant or of the cause of action for which suit is brought.” Whether or not a plaintiff has averred sufficient facts in his statement of claim to entitle him to recover, is not a matter open for consideration under the statute. His failure so to do would not raise a question of jurisdiction of the cause of action, as those words are used in the statute, since they relate 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. For this reason we held in Wilson v. Garland, 287 Pa. 291, 293, and in Wettengill v. Robinson, 288 Pa. 362, that “the purpose of the statute is to afford a speedy means of securing a final determination of jurisdictional matters in limine, before inquiry into the merits of the case”; in Lackawanna Co. v. James, 296 Pa. 225, 227, that “it was not intended to furnish a short cut to a determination of the issues of law or fact, raised by the pleadings, however certain their ultimate determination may appear to be”; and in Rutherford Water Co. v. Harrisburg, 297 Pa. 33, that it “cannot be invoked to challenge preliminarily the right of a plaintiff to proceed in equity instead of at law, [which question] must be raised under the Act of June 7, 1907, P. L. 440.” Viewed from this standpoint, the determination of the present appeal is plain. We held in Shaffer’s Est., 228 Pa. 36, 40, that “The phrase ‘cause of action,’ as used in the statutes fixing the jurisdiction of the courts according to where the cause of action arises, means that which creates the necessity for bringing the action.” To the same effect are Noonan v. Pardee, 200 Pa. 474, 484; Rochester Boro. v. Kennedy, 229 Pa. 251, 273; and Rutherford Water Co. v. Harrisburg, supra. The same rule applies in construing all statutes regarding the jurisdiction of the courts, unless express words or necessary implication compel an opposite conclusion. Here there is no such language. Hence, we hold that “that which creates the necessity for bringing the action” is defendant’s refusal to pay the commissions on money collected, to which plaintiff alleges he is entitled under the foregoing section of the General Township Act. Whether or not there are statutory or contractual conditions, compliance with which are essential to his recovery, and whether or not he is obliged to aver that he has complied with them, if there are any, are matters of substance, not of jurisdiction, the cause of action still is defendant’s refusal to pay the commissions, and the court below has full jurisdiction to determine whether or not, for any reason, that refusal was justified. Defendant’s argument, founded on its quotation from 1 Freeman on Judgments (5th ed.), section 337, that “Any attempt by such a court [that is, a court of equity] to hear and determine a case not within either its inherent or statutory powers would result in a void decree rendered without jurisdiction of.the subject-matter,” begs the question, for the point here is whether or not the decision of the point involved is within the “inherent or ¡statutory powers” of the court below, as we have held it is. Far more apt, though unapplied, is the logical deduction from its admission “that the conclusiveness of auditors’ reports is a matter of defense and no more than a plea in bar,” for its allegation that there was no such report and that one was required is also “no more than a plea in bar.” If defendant desires to have these questions decided preliminarily it must raise them in the way provided by section 20 of the Practice Act of 1915, P. L. 483, 486. The appeal is quashed.

The judgment of the Supreme Court was entered, June 26th 1877, Per Curiam. — The decree in this case is to be affirmed for the reasons given by the learned judge in the court below. Decree affirmed, with costs to be paid by the appellants, and the appeal is dismissed.

OPINION OF THE COURT FLAHERTY, Chief Justice. On September 30, 1994 Dominic Fajohn was sentenced by the Butler County Court of Common Pleas to fourteen and a half months to twenty-nine months for crimes committed at Nos. 192-94 and 194-94. While incarcerated on this sentence, on April 10,1995, Fajohn was sentenced at No. 1351-94,1262-94,1373-94,1379-94 and 136-95 pursuant to a negotiated plea agreement. The sentence was eighteen months to three years. Fajohn asserts that at his request, the court granted him 190 days credit for the period October 3, 1994 until April 10, 1995 on one of the three sentences, the sentence imposed at 1351-94. The Department of Corrections declined to apply credit for the 190 days on the grounds that it was prevented from doing so by Pa.R.Crim.P. 1406(c), which provides: When at the time sentence is imposed, the defendant is imprisoned under a sentence imposed for any other offense or offenses, the instant sentence which the judge is imposing shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences. Thus, the Department of Corrections took the position that it is precluded from applying credit for the period October 3, 1994 until April 10, 1995, for Fajohn was imprisoned for other offenses when the April 10 sentence was imposed. Fajohn brought an action in the Commonwealth Court in mandamus to compel the department of corrections to apply the 190 day credit. Commonwealth Court sustained the Commonwealth’s preliminary objections in the nature of a demurrer, and Fajohn filed this direct appeal. In Doxsey v. Commonwealth, 674 A.2d 1173, (Pa.Cmwlth.1996), the petitioner also brought an action in mandamus seeking to have his pre-sentence confinement credited toward his sentence. Commonwealth Court sustained the Commonwealth’s demurrer, relying on Pa.R.Crim.P. 1406(c): It is clear that under this rule a sentencing judge cannot direct that a sentence commence on a date prior to the date of sentencing when the defendant is serving time on an unrelated charge____ Respondent relies on this rule in refusing to honor the sentencing judge’s order. The question we must decide is whether, when a sentencing judge issues a clearly illegal order, mandamus will lie against the Department of Corrections to compel it to honor that order. We hold that it will not. Because rule 1406(c) makes it clear that the judge was precluded from ordering and, consequently, that respondent is precluded from applying, credit for the period of imprisonment for a second or subsequent conviction if the individual is already in prison under a sentence imposed for other offenses, mandamus will not lie against respondent to compel it to abide by the sentencing order. This is not to say that petitioner has no remedy. In a situation where, because a sentence is illegal, a prisoner does not receive the benefit of his plea bargain, the proper avenue would appear to be to seek relief in the sentencing court. While the court cannot declare the vehicle for ob- taming such relief, what is clear is that the remedy is not one in mandamus against the Department of Corrections to compel it to honor an illegal order. 674 A.2d at 1175. In this case as in Doxsey, mandamus is not available to compel the relief petitioner seeks. Rather, the proper avenue for petitioner’s request is an application for re-sentencing in which Fajohn alleges that he has not received the benefit of his plea bargain, coupled with a request that the sentencing court reduce his sentence to the extent of 190 days so that he may receive the benefit of the plea bargain. Order of the Commonwealth Court is affirmed. . Because Pa.R.Crim.P. 1410 allows the trial court to correct its orders before an appeal is taken or upon remand by an appellate court, and because 42 Pa.C.S. § 5505 limits that power to 30 days after the entry of the order, Fajohn’s access to the trial court appears to be foreclosed. His appropriate course of action at this point would be to file a motion for modification of sentence nunc pro tunc in the court of common pleas, asserting that the sentence as recorded did not reflect the bargain or the intent of the court, a fact which did not become apparent until beyond the thirty day appeal period.

OPINION CAPPY, Justice. The sole issue presented in this appeal is whether the police officers demonstrated the requisite cause to stop appellant and recover the contraband discarded by him pursuant to Article 1, Section 8 of the Pennsylvania Constitution. For the reasons which follow, we agree with the lower courts and hold that the police officers demonstrated reasonable suspicion sufficient to permit a stop and thus, could lawfully recover the contraband abandoned by appellant. As the issue before us stems from the ruling of the suppression court our standard of review is limited. When reviewing rulings of a suppression court, we must determine whether the record supports that court’s factual findings. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). As long as the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id. The facts, as determined at the suppression hearing, established the following. On August 4, 1995, Officers Christopher Juba and Donald Heffner of the Harrisburg Police Bureau were patrolling the 1300 block of Market Street in the City of Harrisburg between 8 p.m. and 1 a.m. The officers testified that while travelling east on Market, in an unmarked car, they noticed three individuals on the corner. The individuals were engaged in conversation. The officers passed the group at a very slow rate, and they observed appellant take his left hand out of his front pocket in a fist position and reach toward one of the other individuals. The individual reached out toward appellant and attempted to receive the unidentified item from his hand. To further investigate this conduct, Officer Heffner made a U-turn and drove to the corner where the group was gathered. As soon as appellant spotted the officers and the car, he placed his hand back in his pocket and began backing away from the group. Officer Juba exited the car, identified himself as a Harrisburg police officer, and began walking toward the group. Appellant immediately began to run “in almost a dead sprint.” Officer Juba chased the appellant, with Officer Heffner following in the vehicle. During the course of the chase, Officer Juba witnessed appellant throw two pagers to the ground; Officer Heffner saw appellant pull a sandwich bag from his pocket and throw it into the yard of an abandoned house. Ultimately, Officer Heffner apprehended appellant and recovered the sandwich bag. The bag was discovered to contain eighteen large rocks of crack cocaine and $45 in cash. Appellant moved to suppress the evidence that was abandoned during the chase, by arguing that the evidence was obtained as a result of an illegal seizure. The suppression court denied appellant’s motion and the Superior Court affirmed in a memorandum opinion. This court granted appellant’s petition for allowance of appeal in order to determine whether the police officers demonstrated reasonable suspicion to stop appellant. Appellant contends that pursuant to the facts in the instant case, the police officers did not have reasonable suspicion to stop him; therefore, the contraband that was recovered must be suppressed as the result of an unlawful seizure. Appellant relies on Commonwealth v. Tither, 448 Pa.Super. 436, 671 A.2d 1156 (1996) and Commonwealth v. Matson, 434 Pa.Super. 155, 642 A.2d 520 (1994) for his position. On the other hand, the Commonwealth contends that the officers possessed rea sonable suspicion; therefore, the lower courts properly denied suppression. Both the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 573 (1997). In Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996), this court established that the reasonableness requirement was met where police, at the very least, demonstrated reasonable suspicion to recover contraband abandoned by a person fleeing the police. Matos involved three separate cases, which were consolidated for appeal: Matos, Commonwealth v. McFadden and Commonwealth v. Carroll. Id. at 770. In Matos, the facts established that two Philadelphia police officers responded to a radio broadcast that unknown persons were selling narcotics in the vicinity of Reese Street. Id. at 771. As the police approached a group of three men in a nearby playground, the men fled. The police pursued the men and one of the officers observed Matos discarding a plastic bag of cocaine as he was being chased. The police recovered the bag. Id. In McFadden, two uniformed police officers in a marked vehicle approached McFadden. McFadden looked at them and promptly ran away. One of the officers chased him a short distance. Id. During the chase, the officer saw McFadden toss a handgun into the bushes. The officer recovered the handgun, and arrested McFadden for carrying an unlicensed firearm. Id. Lastly, in Carroll, two uniformed police officers in a marked vehicle saw two men standing on the sidewalk. Id. The officers exited the patrol car and spoke to one of the two men. As the police were talking to the first man, Carroll stood with his hands in his jacket pockets. One of the officers approached Carroll and asked him to remove his hands from his pocket, at which point Carroll turned and. fled. As Carroll was running, he slipped and fell. One of the officers saw two broken tinted heat sealed packets containing white substance fall from Carroll’s pocket. Carroll was arrested and the packets were recovered. Id. In all three cases, the trial court suppressed the evidence, but the Superior Court reversed. This court reversed the Superior Court and remanded to the respective trial courts for further disposition. Id. at 776. In announcing its decision, this court rejected the United States Supreme Court’s decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), and determined that due to heightened privacy considerations in Pennsylvania, a police officer’s pursuit of a person fleeing the officer was a seizure for purposes of Article 1, Section 8 of the Pennsylvania Constitution. Id. at 776. Thus, pursuant to Matos, any contraband discarded during the pursuit was abandoned by coercion and “the officer must demonstrate either probable cause to make the seizure or reasonable suspicion to stop and frisk.” Matos, 672 A.2d at 771. Where the police officers do not possess either probable cause or reasonable suspicion, then the contraband is illegally obtained and must be suppressed. Id. The court held that based on the facts and circumstances surrounding each of the individual cases, the police were unable to demonstrate either probable cause or reasonable suspicion. Id. at 776. Therefore, based on Matos, the inquiry in the instant case is whether the police officers demonstrated reasonable suspicion at the time they recovered the contraband abandoned by appellant. In the seminal case on reasonable suspicion, the United States Supreme Court recognized that circumstances may exist which require a police officer on the “beat” who has made on the spot observations to take immediate action or investigate further by stopping and perhaps frisking the individual involved. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, a police officer with 30 years experience in patrolling the vicinity for shoplifters and pickpockets, observed Terry and another man taking turns pacing down the street and peering into a nearby store window and then walking back to the corner and rejoining his companion. Id. at 6, 88 S.Ct. 1868. At one point, the officer observed a third man approach the two men, engage in conversation, and then walk on. Id. Following this, Terry and his companion resumed their pacing. Id. The two individuals repeated this process five or six times each. After this had gone on for ten to twelve minutes, the two men walked away in the same direction taken by the third man. Id. By this time, the officer suspected that the two men were “casing a job, a stick up.” Id. Therefore, he decided to investigate further and followed the men. He saw the men stop on the sidewalk and meet up with the third man. Id. At this point he determined that the situation was ripe for action, so he approached the group and asked them for their names. Id. at 7, 88 S.Ct. 1868. When the men only mumbled in response to his question, the officer grabbed Terry, spun him around and with Terry between himself and the other two men, he patted down the outside of Terry’s clothing. Id. The officer felt a pistol in Terry’s coat pocket. Id. Unable to get a grip on the gun, the officer ordered all three men into a nearby store, where he proceeded to pat down the other two men. Id. The officer found a gun on one of the other men. Id. Ultimately, the two men were arrested and formally charged with carrying concealed weapons. Id. The Supreme Court held that the pistol seized from Terry at the time of the stop was properly admitted into evidence. Id. at 30, 88 S.Ct. 1868. Although the court stressed that the police must, whénever practicable, obtain a search warrant, the decision in Terry was based, in part, on the “recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22, 88 S.Ct. 1868. “It was this legitimate investigative function [the officer] was discharging when he decided to approach [Terry] and his companions.” Id. In light of this recognition, the Court created a test, which balanced the need to search against the invasion which the search entails. Id. at 21, 88 S.Ct. 1868. In order to justify the search, the police officer must be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 22, 88 S.Ct. 1868. Even a combination of innocent facts, when taken together, may warrant further investigation by the police officer. Id. Moreover, “in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences he is entitled to draw from the facts in light of his experience.” Id. at 27, 88 S.Ct. 1868. This standard, less stringent than probable cause, is commonly known as reasonable suspicion. Shortly following the Court’s opinion in Terry, this court embraced the reasonable suspicion exception to the warrant requirement in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). Since Hicks, Pennsylvania courts have consistently followed Terry in stop and frisk cases, including those arising under Article 1, § 8 of the Pennsylvania Constitution. Commonwealth v. Jackson, 548 Pa. 484, 698 A.2d 571, 573 (1997); Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 230 (1996)(Terry sets forth the standard for the reasonableness of a search under Art. 1, § 8). Following the dictates of Terry, Pennsylvania courts recognize that under limited circumstances police are justified in investigating a situation, so long as the police officers reasonably believe that criminal activity is afoot. Commonwealth v. Melendez, 544 Pa. 323, 676 A.2d 226, 228 (1996); see also Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992)(rejecting any expansion of the Terry exception to probable cause). In order to demonstrate reasonable suspicion, the police officer must be able to point to specific and articulable facts and reasonable inferences drawn from those facts in light of the officer’s experience. Jackson, 698 A.2d at 573 (citing Terry, 392 U.S. at 27, 88 S.Ct. 1868). Case law has established that certain facts, taken alone, do not establish reasonable suspicion. Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996)(flight alone does not constitute reasonable suspicion); Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992)(flight alone does not constitute reasonable suspicion); Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346 (1992)(mere presence in a high crime area does not warrant a stop). However, a combination of these facts may establish reasonable suspicion. Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868 (innocent facts, when taken together, may warrant further investigation); Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super.1998)(“a combination of circumstances, none of which alone would justify a stop, may be sufficient to achieve a reasonable suspicion”). The instant case presents a similar situation to the one in Terry. Both police officers involved in the stop were assigned to the street level drug interdiction unit, and had worked in that unit for over two years. One of the officers testified that he had made prior drug arrests in the same area where the instant incident occurred. Moreover, in Terry the officer made firsthand observations of completely innocent conduct — pacing up and down the street and peering into a store window — which aroused his suspicions. Similarly, in the instant case, the officers directly observed conduct — the attempted hand-off of an unidentified object — which immediately aroused their suspicions. Thus, similar to the officer in Terry who believed that Terry and his companions were casing a joint based on his experience observing shoplifters and pickpockets, these officers believed they were witnessing a drug transaction based on their experience in narcotics investigation. Similar to the situation that existed in Terry, it is beyond peradventure that it was part of the legitimate investigative function of police work for the officers in the instant case to investigate the situation further. This belief prompted them to make a U-turn and approach the group on the corner, at which point appellant withdrew his hand from the other individual and began to back away. When the police officers went to investigate, appellant fled. Thus, based on the facts surrounding the instant case, including the police officers’ training, expertise and past drug arrests in the same area; the attempted exchange of an unidentified object in a high crime area, appellant’s nervous behavior when the police made a U-turn; and appellant’s flight, the police officers were able to point to specific and articulable facts, which in light of their police training and expertise, supported a finding of reasonable suspicion. Although on its face the instant case appears analogous to the situation in Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995), Banks is clearly distinguishable, because Banks involved probable cause. In Banks, this court held that mere police observation of the exchange of unidentified objects coupled with flight does not establish probable cause. However, the court continued on to state that “such facts, even when considered together, fall narrowly short of establishing probable cause.” Id. at 753 (emphasis added). In the instant case, the requisite cause was the lower standard of reasonable suspicion, not probable cause. Accordingly, it is logical to conclude that since the facts in Banks fell only “narrowly” short of probable cause, similar facts, like those present in the instant case, demonstrate reasonable suspicion. Moreover, the instant case is distinguishable from Matos. In Matos, the police officers had only vague descriptions regarding the identity of the persons and location. In addition, in both McFadden and Carroll, the companion cases of Matos, the police officers approached the appellants for no apparent reason. Accordingly, in all three factual scenarios involved in the Matos decision, the police had no reason, other than the appellants’ flight, to suspect that criminal activity was afoot. All three of the factual situations of Matos are clearly distinct from the instant case where the police made firsthand observations of suspicious conduct before approaching appellant. It was only once they had already made the decision to investigate further, when their suspicions were already aroused, that appellant fled. Thus, as discussed more fully above, there were specific factors, including flight, to support a finding of reasonable suspicion. Lastly, appellant’s reliance on Commonwealth v. Tither, 448 Pa.Super. 436, 671 A.2d 1156 (1996) and Commonwealth v. Malson, 434 Pa.Super. 155, 642 A.2d 520 (1994) is misplaced. In Tither, the officer was walking in a high crime area, when someone yelled “5-0, 5-0” — a warning that there was a police officer in the area. Tither, 671 A.2d at 1158. Immediately following the warning, appellant began to drive away and the man who was leaning in appellant’s car window turned around and walked into his apartment. The officer stopped the car and detained appellant. The Superior Court held that there was no reasonable suspicion and suppressed the contraband. Appellant relies on Tither for the proposition that there is no reasonable suspicion in the instant case. However, Tither presents a situation similar to Matos, where the police had no reason, other than the appellant’s driving away in response to the yelling of “5-0, 5-0,” to suspect that criminal activity was afoot. In addition, in Tither the court stressed that the officer did not “even observe an exchange between appellant and the man leaning into her window,” clearly inapposite to the instant situation where the officers observed a transaction. Id. at 1158. Similar to Tither, Malson involved fewer facts than are present in the instant case. Malson, 642 A.2d at 523. In Malson, the only fact to establish the requisite cause was the police observation of a transaction involving an unidentified object. However, more importantly to the case at hand, in Malson the court was considering whether the police demon strated probable cause to arrest and not the lesser standard of reasonable suspicion that is involved in the instant case. For the reasons stated herein, we conclude that based upon a combination of facts and circumstances, in the instant case, a reasonable police officer could conclude that criminal activity was afoot. Accordingly, the lower courts correctly denied the motion to suppress the contraband and we affirm the order of the Superior Court. Justice SAYLOR files a Concurring Opinion. Chief Justice FLAHERTY and Justice CASTILLE concur in the result. Justice ZAPPALA files a Dissenting Opinion. . Officer Juba testified that the incident occurred "in the evening hours, sometime after 8:00,” on the other hand Officer Heffner testified that "it was about 20 minutes to 1:00.” N.T. 23, 24. . In Hodari D., the Court rejected the notion that police officers need either reasonable suspicion or probable cause to recover contraband abandoned by a person fleeing the police; thus, the holding in Hodari D. precludes any issue arising under the Fourth Amendment in the instant case. . In the instant case, both parties concede that the officers did not possess probable cause. . Officer Juba testified that he had received prior complaints and had made numerous drug related arrests in that specific section of the city. . The suppression court also relied on the time of the transaction in determining that the police demonstrated reasonable suspicion. However, the facts only establish that the transaction occurred some time between 8 p.m. and 1 a.m.; thus due to the ambiguity of the time frame established by the testimony, this court is not persuaded that the "time” of the observations should be used in determining reasonable suspicion. . In Matos, the appellants were described as "unknown persons” with no accompanying physical description; and the location was given as "in the vicinity of Reese Street.” . We would also note that this court is not bound by rulings of a lower court in this Commonwealth. Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811, 823 (1994).

The opinion of the court was delivered by Gibson, C. J. The execution of the disputed specialty is established by plenary proof. Did it stand on the testimony of but the subscribing witnesses, it would still be sufficiently made out. Both recognise their signatures, and both remember the transaction; but neither remembers the fact of a formal delivery. Nothing is clearer, however, than that a formal delivery is not indispensible. The leaving of a deed on the table for the grantee to take it away, has been held sufficient. Here the instrument is proved by one of the subscribing witnesses, to have been laid on the counter; which, in connexion with the fact that it is produced by the party who claims-under it, is enough in all reason to warrant a presumption of its delivery ; and this on the ground of all presumptions-^ — the usual course of such transactions. In a vast majority of cases, the deed is merely left for the grantee to take it away, and where it is produced by him, the law, in the absence of proof to the contrary, infers a delivery, for the reason, that in the absence of countervailing proof, it presumes against fraud and in favour of innocence. So strong is this presumption, that in the case of a second marriage within a' year after the husband had left.the country, it has been allowed to prevail over the usual presumption of continuance in life. Starkie’s Ev. Pt. IV. 1248. It is therefore natural and reasonable to presume, that the grantee producing, as he does here, an instrument, which is proved to have been signed, sealed, and left on the counter with no view, that appears, to a postponement of the delivery, obtained the possession of it with the assent of the grantor rather than surreptitiously. It is by force of the same presumption, that proof of the hand-writing of subscribing witnesses, who are dead or cannot be had, is prima facie evidence of execution. And such presumption accords not only with the current of such transactions, but with the recollection, as far as it goes, of the subscribing witnesses here, both of whom say, in effect, that unless the deed had been delivered, they would not have subscribed it as witnesses of the fact. Of what effect then is it, that the parties have omitted the usual recital of having affixed the seal? That recital is by no means essential to the validity of a deed, nor does it bear even remotely on the disputed fact of delivery ; and as evidence of intention, it is certainly less operative than the customary memorandum of the execution subscribed by the witnesses, to which any recital or declaration of the parties themselves is inferior, just as proof of their hand-writing is inferior. But in addition to the testimony of the subscribing witnesses, we have that of one of the assignees, having released any beneficial interest which he might be supposed to have in the trust, who proves the admission of the assignor at the time of sealing, that the instrument was then his deed, of which delivery was certainly a constituent part. The objection to the competency of this witness on the alleged ground, that none but a subscribing witness, where there is one, can be heard, is destitute of the shadow of an argument. The testimony of the subscribing witnesses, where it is attainable, must be had in the first instance, as it has been here; but the law is not so unreasonable as to declare, that the grantee must lose his right wherever they have lost their memory. The title to priority in the case before us, then, depends not on the proof of the instrument, but on the solution of a question, whether administration is to be made according to the law of the domicil or of the situs rei at the time of the intestate’s death; and that involves a prelimary inquiry as to the true place of his domicil. The facts are, that being a native of Philadelphia, and having been absent from the United States for seventeen years, he returned on the business of a commercial house at Buenos Ayres and Monte Video, of which he was a partner, but with no purpose of resuming his foreign residence. He resided with his father’s family here for two years, during which his connexion with the house in South America, was dissolved by efflux of time, and a partnership formed between him and other persons, for the establishment of a house at Alvarado in Mexico. In consequence of the apprehended insalubrity of the climate, he manifested in the course of the negociation, that led to this arrangement, an insuperable aversion to being bound for more than two years, and the articles of co-partnership, in which, it is worthy of remark, he was designated as being of Philadelphia, were framed accordingly; and though he did not speak particularly of returning, he expressed a determination not to go abroad again after that time. It satisfactorily appears, therefore, that whatever was the character of his residence in South America, his domicil there, if he had acquired one, was relinquished at his return to Philadelphia; and it will not be disputed, that his domicil of origin, which was at most but suspended, was instantly revived by his resumption of the character of an American citizen — even before the dissolution of his connexion with the foreign house. For an acquired character depending, as it does, not on the existence of commercial relations, but actual residence without a present purpose of terminating or abridging it, is abandoned for every purpose of legal effect, the instant a step is taken to abandon the country. It is clear, then, that when the intestate returned to Philadelphia with a view to a residence of indefinite duration, he regained his original domicil; and it is just as clear he did not part with it again by going to Mexico. That he went there for a special and temporary purpose, and without a view to make it a place of indefinite residence, is an indisputable result of the evidence. We have, then, the case of an administrator, who claims to administer, according to fhe law of the domicil, assets transmitted to him by a surviving partner of the intestate, and among creditors, who were not resident, at the time of the death, in the country where the assets were. . The ground on which the assets are to be collected by the authority, and administered according to the law of the country, in which they happen to be at the decedent’s death, is the claim which its citizens have to the protection and assistance of the government in the prosecution of their rights. This protective principle has never been relaxed by the American courts; and was particularly maintained by this court in Mothland v. Wireman, at the last term at Chambersburg. But when the purposes of protection and assistance have been answered, or there are in fact no resident creditors to be protected, it seems from the case of Dawes v. Head, (3 Pickering, 128.) that the proper course is to transmit the assets to the administrator at the place of the domicil for further administration among the other creditors and those entitled to the succession. Perhaps a more regular course than the one pursued in the case at bar, would have been to obtain administration of the assets in Mexico, for the purpose of transmitting them to the administrator here. If, however, there were in fact no Mexican creditors, as is probable from the very nature of the case, the joint debts being payable before the intestate’s interest could be separated from the partnership, the necessity of an ancillary administration for purposes of mere transmission, would not be so imperative. The question, however, is not whether the administrator shall be compelled to account for these assets, but having submitted them to the local jurisdiction, how he shall administer them. He certainly would not be bound to wait an indefinite time for the Mexican government or a Mexican creditor to interpose ; and it is of decisive importance, that the person, who claims according to the order of payment prescribed by the Mexican law, is not a Mexican creditor, but an inhabitant of Canton, to whom the Mexican government owed neither assistance nor protection. Had he preferred his claim to an administrator in Mexico, he doubtless would have been paid according to the rule of priority there, the order of payment being regulated by the law of the forum. But the authorities might have referred him to the administrator here, who is not bound to give him any advantage, to which he is not entitled in common with the domestic.creditors. Were a Mexican creditor to appear, the case would be different. Perhaps our courts would direct a portion of the assets, sufficient for the demand, to be returned to the proper officer in that country : certainly they would not compel payment to be made in a way to deprive him of any advantage he could claim by its laws, or suffer him to be prejudiced by an irregular abduction of the assets from its jurisdiction. But the appellant is not entitled to the same consideration ; and we are satisfied that the instrument, under which the assignees claim, was properly preferred as a specialty. Decree affirmed.

Opinion by Me. Justice Steen, Decedent, W. Lewis Cave, died September 21, 1935, intestate, unmarried, and without issue. He was survived by four nephews and by Jean Cave, adopted daughter of another nephew, Warren F. Cave, who had died before decedent. Jean Cave, when adopted in 1922, was two years old, the decree of the court providing that she should “assume the name of Warren F. Cave and Mary R., his wife, and have all the rights of a child and heir of the said Warren F. Cave and Mary R., his wife, and be subject to the duties of such child.” The present question is whether she is entitled to inherit a fifth part of decedent’s estate. The court below rejected her claim and ordered distribution among the four nephews. The guardian of Jean Cave appeals. The Intestate Act of June 7, 1917, P. L. 429, section 9 (d), provides that, in default of issue, parents, brothers and sisters, the property of an intestate who leaves nephews and nieces shall be divided among them per capita, and “Each child of a deceased nephew or niece . . . shall receive an equal portion of the share which his or her parent would have received if living at the death of the intestate.” Does the adopted child of a deceased nephew come within this provision? The right of adopted children to inherit from kindred of their adoptive parents is dependent entirely upon statutory enactments, and because the “call of the blood” is one of the most firmly rooted instincts of human nature, courts tend to a strict construction of such legislation. In the absence of a plain legislative mandate to the contrary a stranger to the adoption proceedings should not have his property diverted from its natural course of descent to the heirs of his blood; therefore, a statutory grant to adopted children of the right to inherit from their foster parent does not necessarily carry with it the right to inherit from the latter’s col lateral relatives. However, it must be conceded to be within the legislative power to confer such a right upon an adopted child, and the problem in the present case is to ascertain whether the statutory law of the state is properly to be construed as having granted it. It is certain that prior to the Intestate Act of 1917 no such right existed. The Act of May 4, 1855, P. L. 430, section 7, established a procedure for the adoption of children, and authorized the court to decree that the child should assume the name and have all the rights of a child and heir of the adopting parent; with a fui*ther provision that if the adopting parent should have other children the adopted child should share the inheritance as one of them in case of intestacy, and he, she or they should respectively inherit from and through each other as if all had been the lawful children of the same parent. The supplementary Act of April 13, 1887, P. L. 53, provided that if an adopted child died intestate without issue the adopting parents and their heirs and kindred should inherit from him the same as though he were the natural child of the adopting parents, to the exclusion of his natural parents and kindred; in case the adopting parents died intestate, the adopted child should inherit their property the same as though he were their lawful child and heir; provided, however, that the act should apply only to such property as the adopted child should have inherited or derived from the adopting parents or their kindred. Nothing in these statutes gave to adopted children the right to inherit from the collateral relatives of their foster parents, and it was therefore held in Burnett’s Estate, 219 Pa. 599, that an adopted child could not share in the estate of his adoptive father’s brother, the adoptive father having predeceased his brother. The court said that while the Act of 1855 conferred upon an adopted child all the rights of a child and heir of the adopting parent, “it does not, however, give such a child the rights of a nephew or niece, and of a collateral heir of the brothers and sisters of the adopting parent; and if it had been the intention to change the intestate acts so that intestate’s estate should descend without his consent to a person not of his blood, surely such an intention would have been clearly expressed.” By the Act of May 28, 1915, P. L. 580, the Act of 1855 was amended to provide that the adopted child and the adopting parent should respectively inherit and take by devolution from and through each other as fully as if the adopted child had been born a lawful child of the adopting parent. The Intestate Act of June 7, 1917, P. L. 429, repealed all these preceding acts so far as they related to inheritance and devolution under the intestate laws, but substantially re-enacted them. Section 16 (a) provided: “Any minor or adult person adopted according to law, and the adopting parent or parents shall, respectively, inherit and take, by devolution from and through each other, personal estate as next of kin, and real estate as heirs, under the provisions of this act, as fully as if the person adopted had been born a lawful child of the adopting parent or parents.” Section 16 (b) provided: “The person adopted shall, for all purposes of inheritance and taking by devolution, be a member of the family of the adopting parent or parents. The adoptive relatives of the person adopted shall be entitled to inherit and take from and through such person, to the exclusion of his or her natural parents, grandparents, and collateral relatives; . . . Adopted persons shall not be entitled to inherit or take from or through their natural parents, grandparents, or collateral relatives, . . . ” It is immediately obvious that this is broader and more comprehensive phraseology than was employed in the earlier statutes. Since the enactment of the Intestate Act of 1917 there have been three cases in this court Avhich, by way of dicta or decision, are pertinent to the present inquiry. The first was Russell’s Estate, 284 Pa. 164, where it was held that, under section 15 (b) of the Wills Act of June 7, 1917, P. L. 403, providing that under certain circumstances a legacy to a predeceasing niece should not lapse if she left issue surviving the testator, an adopted child of the niece was not to be considered as such issue. This decision has no bearing upon the question now under consideration, but in the course of the opinion it was said (p. 168), quoting from the court below: “In Burnett’s Est., 219 Pa. 599, it was held that an adopted child could not inherit from the collateral kindred of adopting parents; a state of the law altered by the Act of May 28, 1915, P. L. 580, and\ by section 16 (a) and (b) of the Intestate Act of 1911.” The second case was Cryan’s Estate, 301 Pa. 386. There a testatrix devised real estate to four sisters, a brother, and her own adopted daughter. The testatrix died in 1913. One of her sisters died in 1914, unmarried and without issue; another, a widow without issue, died in 1925; another, a widow leaving two children surviving, died in 1929; the brother died later in 1929, unmarried and without issue; the fourth sister and the adopted daughter of the testatrix remained alive at the time of the litigation, which was a proceeding for a declaratory judgment to determine the proper construction of the will of testatrix in regard to the amount and nature of the interests given to the six devisees. The court held they took vested estates as tenants in common, share and share alike. This decision, which adjudicated the actual controversy among the litigants, is of no present relevancy, but the court proceeded to state (p. 402) that it agreed with the court below that upon the death of the one sister in 1914 her undivided share in the real estate descended to her then surviving sisters and brother and the adopted child of the testatrix; that upon the death of the next sister in 1925 her undivided share descended to her then surviving sisters and brother and the adopted child of testa trico; that upon the death of the third sister in 1929, her undivided share descended to her two surviving children; that upon the death of the brother in 1929, his undivided share descended to his surviving sister, to the adopted daughter of testatrix, and to the two children of the sister who had died earlier the same year. The court said (p. 403) : “It remains to say only that the original devisees enjoyed vested estates in the real property here involved; several of them . . . died intestate, after the testatrix, and, under section 16 (b) of the Intestate Act of June 7, 1917, P. L. 429, 439, appellant — being an adopted child of the original decedent, and, because of this position, viewed in law as a niece of those devisees who died without issue (see Russell’s Estate, 284 Pa. 164, 166-8), — inherited a portion of their respective shares. These facts and the statute last cited must be taken into consideration to understand the correctness of the judgment entered in this case.” The court affirmed the judgment of the court below which gave to the adopted daughter of testatrix, as a result of the successive inheritances above enumerated, a one-third interest in the devised property. It will be seen therefore that not only the language of the court, but the actual judgment, established the right of the adopted daughter of testatrix to inherit through her deceased adoptive parent from the latter’s brother and sisters. The existence of this right was not made the subject of argument, but was apparently assumed as a matter of course by the litigants, by the court below, and by this court on appeal. The third case was Reamer’s Estate, 315 Pa. 148. There the decedent died intestate. Her next of kin were first cousins, and the register of wills, upon their nomination, appointed an administrator of the estate. A nominee of an adopted daughter of a predeceased sister of decedent filed a petition praying that the original grant of letters be revoked and that he be appointed instead, The dismissal of this petition w'as held by this court, in a per curiam opinion, to be proper. That the decision was correct cannot be doubted, because the Fiduciaries Act of June 7, 1917, P. L. 447, section 2(c) provides that letters of administration shall be granted to the widow, if any, of the decedent, “or to such of his relations or kindred as by law may be entitled to the residue of his personal estate, . . . preferring always, of those so entitled, such as are in the nearest degree of consanguinity with the decedent, ...” It is obvious that the adopted daughter of the predeceased sister was not entitled to nominate the administrator, for even if she were to be considered as included within the term delations,” the first cousins were “in the nearest degree of consanguinity,” the adopted child not being of the blood at all. The opinion of the court], however, discussed the question as to whether an adopted child can inherit from the estate of a relative of the predeceased adopting parent, and stated (page 150), by way of what must be regarded purely as dictum: “We repeat what we have always heretofore said, that the estate which an adopted child is entitled to have is limited by the statute, to one which comes ‘from and through’ the adopting parent, and that an estate in which the latter never had any interest, cannot possibly go to the adopted child since it cannot be derived ‘from’ or ‘through’ the adopting parent.” Such being the somewhat confused state of judicial expression in regard to this subject, we have no hesitancy now in deciding, apart from any binding authority to be ascribed to the decision in Cryan’s Estate, that the Intestate Act of 1917 perxxxits of xxo reasonable construction other than that, by its terms, an adopted child has the same right of inheritance from the collateral kindred of his adoptive parents as a natural child of such parents would have. The court below apparently relied upon the statement in Reamer’s Estate that an adopted child is not entitled to inherit an estate in which his adoptive parent never had a vested interest, Such a construction of section 16 of the Intestate Act is wholly untenable. It gives no effect to the word “through.” If it be held that the adoptive parent must have had a vested interest in property in order to entitle the adopted child to inherit it, the Intestate Act has added nothing to previous legislation, since that had already provided for direct inheritance by the adopted child from the adoptive parent of property owned by the latter. But the Intestate Act, copying the phraseology of the Act of May 28, 1915, P. L. 580, provided for inheritance by the adopted child and the adopting parent “from and through each other.” The word “from” contemplates the death of either the adopted child or the adoptive parent, the statute giving the survivor the right to inherit from the deceased. But the word “through” extends the inheritance rights of both the adopted child and the adoptive parent to those arising by virtue of representation of each other for purposes of devolution, thereby qualifying them to inherit, not merely from one another, but from one another’s relatives and kindred through the channel left open by the death of either. The word “through” presupposes the death of the adopted child or the adoptive parent, leaving the other surviving, and entitling him to inherit from a third person in the right of the one thus deceased. When a child inherits from a parent property of which the latter is seised, he takes “from,” but not “through,” such parent. When, on the other hand, he inherits property from a third person by right of representation of his parent who would have inherited the property were he living, he takes “through,” not “from,” his parent. By the use of both words— “from” and “through” — it is clear the legislature intended that the adopted child should have the right to inherit not only property in which his adoptive parent himself owned a vested interest, but property of kindred of his adoptive parent which the latter would have inherited had he been living, and which, by reason of his death, passes “through” him to his adopted child as it would have done, to use the language of section 16 (a), “if the person adopted had been born a lawful child of the adopting parent or parents.” The language of clause (a) of section 16 is greatly-strengthened and emphasized by that of clause (b). Nothing could be more sweeping than the provisions: “The person adopted shall, for all purposes of inheritance and taking by devolution, be a member of the family of the adopting parent or parents. . . . Adopted persons shall not be entitled to inherit or take from or through their natural parents, grandparents, or collateral relatives, ...” This severs the child from his natural family tree and engrafts him upon that of his new parentage “for all purposes of inheritance.” The evident purpose of this legislation is lost by the interpretation given to the act by the court below. It is urged that a person should not be permitted, through the expedient of adopting a child, to attach a stranger to the family tree, so as to enable that stranger to share in the estate of the adoptive parent’s collateral relatives. The answer to this argument is that if a decedent does not wish such a “stranger” to share in. his estate, he can make a will accordingly. Be this as it may, it is not our function to approve or disapprove the policy embodied in legislative enactments, but merely to interpret their meaning, and, in the present case, when we examine the successive statutes historically and analytically, steadily broadening as they do the status of adopted children, it is clear, in our opinion, that the rights of such children now include that of inheritance from the estates of collateral kindred of their adoptive parents. The decree is reversed, and it is ordered that distribution be made in accordance with this opinion; costs to be paid out of the estate.

Opinion by Mr. Chief Justice Kephart, The Parish of the Church of Our Lady of Good Counsel, sometimes known as the Church of Our Mother of Good Counsel, was created in Philadelphia in 1889 by and under the authority of the Roman Catholic Church. It had fixed lines and its communicants generally were of Italian origin. The Brothers of the Order of St. Augustine purchased some land in the parish, the legal title being taken in the name of the Order. A church with a rectory was erected on a portion of it under the auspices and in accordance with the ritual of the Roman Catholic Church and was used exclusively for Roman Catholic services under Roman Catholic rules, regulations and canons. A parochial school was also established for Roman Catholic educational purposes under the Franciscan Sisters. The funds to build and pay for the church and school were derived in part from contributions, donations and collections from the parishioners and others. At the time of this action there was outstanding a mortgage of $60,000 against the property, secured by the bond of the Order of St. Augustine. The parish was the seat of a branch of the Order of St. Augustine, having therein a monastery. This Order, under the Ordinary or Archbishop, took charge of the church, supplying it with a pastor approved by the Ordinary and teachers for the schools free from any control .whatever by the communicants of the church, who were the lay members of the Church of Our Lady of Good Counsel. The parish was instituted, in spirit at least, as a parish for Italian people. The church was located close to two other Catholic churches, St. Paul’s and St. Nicholas of Tolentino, and on May 5, 1933, the Ordinary, who is the Archbishop of the Diocese of Philadelphia, deeming the church building not in keeping with the standard fixed by the Roman Catholic Church in. size and structure, and for canonical reasons, issued a decree dismembering the parish. At the same time the Ordinary petitioned the Vatican to approve the removal of the Seat of the Order of St. Augustine to another parish, that of St. Nicholas of Tolentino. This act received the approval of the Pope and was recognized by the Superior General of the Order of St. Augustine, who resides in Rome. The dismembered parts of the parish were merged with St. Paul’s parish, which has a much more beautiful church, only two blocks away, and with other adjoining parishes. According to the laws of the church all parochial property in the dismembered parish, including the church and school with the land on which, they were erected, though held in the name of the Order, was the property of the Roman Catholic Church under the control and disposition of the Ordinary. Rev. Dr. Hickey, Assistant General of the Order, appearing for defendant, testified that the Order recognized the validity of the dismemberment decree by the Ordinary and stated that, under the canon law of the church, it caused the church and rectory property, held in the name of the Order, to come under the control and disposition of the Ordinary for the religious and charitable uses to which it had been dedicated. While the dismemberment decree was being carried into effect, the plaintiffs, members of the Church of Our Lady of Good Counsel, protested against such action and appealed to Pope Pius XI at Rome. They dispatched a cable asking Mm to intervene and restore the status quo. An appeal was also made to the Apostolic Delegate at Washington. The action of Cardinal Dougherty, dismembering the parish, was sustained by the Pope, and the objectors were called upon to obey the Cardinal’s decree made in the exercise of the rights and authority conferred upon him by the canons of the church. Plaintiffs, as members of the Church of Our Lady of Good Counsel, but claiming to be an unincorporated association independent of the Roman Catholic Church, then filed this bill in equity, alleging the Church and school properties were impressed with a trust to be used as an Italian church and school, and that the title was taken in defendant Order’s name upon that understanding and agreement. They averred that the Order was no longer in sympathy with the purposes and objectives for which the school and church properties were purchased and maintained, and was about to convey the real estate to third parties in direct violation of the trust agreements. They asked the court below to place the property under the control of the lay members, “its rightful owners,” to enjoin defendant Order from conveying, selling, encumbering or transferring the premises, to decree that the property should be held by the defendant Order in trust for the plaintiff lay members for the purposes for which it was given, and to direct the Order to convey the premises to the lay trustees in accordance with these purposes. Complete answers were filed. The court below, after a full hearing, dismissed the bill, and this appeal followed. The court below held that as the plaintiffs were no longer members of the dismembered parish they had no standing to assert any rights in the property, and to grant the requested relief would be inequitable, since it would divert the property from the use for which it had been dedicated. At the hearing appellants endeavored unsuccessfully to show by parol evidence that they, as a separate organization, made an agreement or entered into an understanding with the Order of St. Augustine whereby the property was to be held perpetually by the Order for the religious and educational purposes of the Italian people of the parish, and that their association was independent of the Roman Catholic Diocese of Philadelphia, but under the jurisdiction of the Order of St. Augustine. Even if this parol evidence had been admitted [see Act of April 22,1856, P. L. 532, Section 4], and had been sufficient in quantity and quality, it would have placed appellants just as securely under the governance of the Roman Catholic Church as if they were a secular church in the parish. Appellee Order is altogether a Roman Catholic organization subject to the control and discipline of that Church. Any church controlled or held by it, is under the jurisdiction of the church through the Ordinary, and such property used for church or school purposes is subject to the Roman Catholic canons, unless, perhaps, the trust purposes are embodied in a writing which provides otherwise. But, as the record shows, no such independent association ever existed in this parish. On the contrary, it appears that the religious services and the administration of the parochial property were at all times under the control and jurisdiction of the Roman Catholic Church. These church uses existed from the date of the church’s erection in 1889 to 1933, when dismemberment occurred. The members were exclusively of the Roman Catholic faith. Under the canons of the church there can be no such thing as a separate and independent church organization within the Roman Catholic Church, whereby property may be acquired and held in opposition to its laws, canons, rules and regulations, and at the same time be subject to its supervision and control. To create such a status would require special authority from the church itself. There must be evidence that the Order with which the supposed agreement was made had power to enter into such an agreement hostile to church laws and that the church itself accepted the agreement. Any church organization claiming the protection, benefits and assistance of the Roman Catholic faith and laws directly, or through one of its bodies, such as the defendant Order, is and must be subservient to its laws, canons, rules and regulations. It cannot in one breath claim life from the church, and the benefit of the faith that it follows with the protection granted under its laws, and, in the next breath deny its allegiance to the body under which it serves. Its very practices deny such conclusion. Nor can it, in opposition to church laws, set up a trust in property acquired through church contributions, donations and gifts, unless it was specifically reserved in writing. The impulse or motive of the donors in giving was the spirit and love of the church generally, to promote the Catholic faith under its protection, not because of any so-called independent association or any of the members who composed it. It was given for the purpose of advancing the worship of God according to the faith and discipline of the Roman Catholic Church and for no other purpose. Appellants’ counsel, realizing the great burden his clients assumed to establish an independent association, in his argument before us planted his rights on a different basis and argued that the provisions of the Act of April 26, 1855, P. L. 328, Section 7, covered his case. By so doing, he acknowledged his clients to be communicants and members of the Roman Catholic faith. Taking up the case from this viewpoint, appellants earnestly contend that the decree of the court below removed control of the church property from the lay members in contravention of the Act of 1855. There can be no question that under the Act of 1855 church property was held subject to the control and disposition of lay members, but it could not be diverted from the purposes, uses and trusts imposed through its dedication for religious purposes. The fulfillment of the trust was to be accomplished under the rules, regulations and laws of the church as governing and controlling. The act expressed the settled policy of the State, with respect to the tenure of property held by religious societies, existent for years and steadily observed without question: Krauczunas v. Hoban, 221 Pa. 213, 225. The amendatory Act of May 20, 1913, P. L. 442, was construed in Zernosky v. Kluchinsky, 278 Pa. 99, 104, to be no more than a clarification of the accepted meaning of the Act of 1855. But this right of control and disposition of church property was in the lay members by virtue of their membership, and only by those having that status could any right be claimed.t. In St. Casimir’s Polish R. C. Church’s Case, 273 Pa. 494, we said at page 499: “We know of no legislation which gives to a member of a congregation a property right in his membership therein. His rights in the church property flow from his membership . . . church property belongs to the congregation of the church. The difficulty here is that appellants are no longer members of the congregation.” If persons who claim to exercise the right of control and disposition are not members, either because of excommunication or otherwise (Merman v. St. Mary’s C. C. Ch., 317 Pa. 33), or have changed their membership to a church in another parish, or a change of parish lines has caused them to become members of another church (St. Casimir’s Polish R. C. Church’s Case, supra) , they do not retain any right, nor do they have any voice, in the control or disposition of the property of the church of which they were once members. Dismemberment of the parish of Our Lady of Good Counsel worked this result. Inasmuch as the church in which appellants claim membership is a subordinate body of the Roman Catholic Church, it follows that their rights and obligations as members are governed by the laws of that denomination, since the voluntary act of joining the church subjects them to its rules and regulations: Krecker v. Shirey, 163 Pa. 534, 551; Zernosky v. Kluchinsky, supra. The Roman Catholic canons and the decisions of the appropriate tribunals and officials of the church are decisive of the issues here raised, unless in contravention of the law of the land: St. Casimir's Polish R. C. Church’s Case, supra, at pp. 498, 499; Furmanski v. Iwanowski, 265 Pa. 1, 5, 6; Krecker v. Shirey, supra, at p. 551. The canons empower the Ordinaries to divide or dismember parishes when canonical reasons exist, notwithstanding the unwillingness of the rectors and members. The finding of the court below, that the Ordinary in dismembering the parish acted in accordance with the authority vested in him by the canons, is amply supported by evidence. Furthermore, the validity of the decree is not disputed by appellee Order, and, on appeal to the Pope, was upheld by him. Under the church law the effect of dismemberment was to cause the parish to cease to exist and to transfer its members to adjoining parishes. There were no longer any members of the original parish. The order of dismemberment was binding on the parish members. Division, dismemberment or suppression of parishes, and the effect thereof on membership are purely ecclesiastical matters, dependent upon the church law as administered by the appropriate authorities and tribunals. See St. Casimir's Polish R. C. Church’s Case, supra, at p. 501. The effect of the dis memberment of the parish and the transfer of appellants’ membership therefrom to other parishes was to deprive them of all rights as members in the church property of the parish from which they were transferred. Church membership is an ecclesiastical matter, not temporal. There is no property right in membership, and there could be no property rights in lay members except through their membership in the congregation. Appellants’ statement that “by a mere fiat the parish in which the church ... is located could be extinguished,” brings up the question of what would become of this particular church property. We have pointed out in this opinion that in so far as the dismemberment proceedings were concerned they were regular and in conformity to its rules and regulations, having been approved by the highest authority. The inference that the property could be sold by the Ordinary of the Diocese without using the proceeds for religious and educational purposes is negatived by the record, which shows that the Ordinary will make an equitable and just division of the property among the parishes with which the dismembered parish was merged. The Catholic canons provide for the disposition of the property of a dismembered parish by the Ordinary in aid of the purposes to which it has been dedicated. This is in accord with the provisions of the Acts of 1855 and 1935. Canons 1500 and 1501 regulating the disposition of property of dismembered and suppressed parishes and providing for “safeguarding always the wishes of those who made the donations or gifts” must be construed in the light of the purposes actuating the gifts unrestrained in any manner by the donors. The property under no circumstances becomes the property of any individual who may be empowered to divide it under the canons, but must be used in furtherance of the religious purposes for which it was donated. It is earnestly contended by appellants that the Ordinary, in dismembering the parish entirely, did by indi ruction that which the Act of 1855 intended should not be done directly, as his decree of dismemberment left no members of the Church of Our Lady of Good Counsel with a voice in the future control and disposition of the church property. The sole factual distinction between this case and the St. Casimir case is that in the latter the parish was not completely extinguished, only part of its membership being transferred to another parish by the change in the boundary line. In the instant case the parish has been entirely dismembered, and, as a result, it not only has no members but no longer exists as a parish. In reply to the contention that the purpose of dismemberment was merely to avoid the Act of 1855, we point out that there is nothing in the record to justify the inference that the underlying motive was to divest lay members of control of church property in circumvention of the statute. We cannot view either the cause of dismemberment or its effect other than in the light of the action of the church authorities as found by the chancellor. The decree of dismemberment was a proper exercise of the authority vested in the Archbishop by the Roman Catholic rules and made in pursuance of just and canonical reasons. The actuating reasons for dismemberment, as testified to by Bishop O’Hara, were proper for the consideration of the Archbishop, and were amply sufficient to justify action within the canons of the church. The decision of the proper ecclesiastical tribunals in this respect must be accepted by the civil courts unless it violates the civil law or is plainly in disregard of the church canons, even though it touches directly upon property rights which fall within the jurisdiction of civil courts. “When a civil right depends upon an ecclesiastical matter, it is the civil court and not the ecclesiastical which is to decide. But the civil tribunal tries the civil right, and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds them”: Watson v. Jones, 13 Wall. 679, 730. . Under the controlling church law, therefore, appellants are no longer members of the parish in which they seek to control the property and are without standing to maintain a bill in equity to enforce such property rights. However, it is not necessary to base our decision on this ground and to hold definitely that lay control can be entirely suppressed indirectly by the dismemberment of a parish for canonical reasons. Whatever merit there may be to appellants’ argument is vitiated by the Act of June 20, 1935, P. L. 353, Section 1, which is amendatory of Section 7 of the Act of 1855, and materially and substantially changes the law concerning the control of church property. Turning to the Act of 1935, the extent and effect of the change brought about by it is immediately made clear when its provisions are contrasted with the Acts of 1855 and 1913 preceding it. The Act of 1855 vested in the church laity absolute control and disposition of church property subject to the uses for which it was lawfully dedicated. The Act of 1935 provides that whenever any property has heretofore been or shall hereafter be conveyed for the use of any church, congregation or religious society or in trust for religious worship or sepulture, it shall be taken and held subject to the control and disposition of such officers or authorities of such church, congregation or religious society having a controlling power according to the rules of such church, congregation or religious society, “which control and disposition shall be exercised in accordance with and subject to the rules and regulations, usages, canons, discipline and requirements of the religious body, denomination or organization to which such church, congregation or religious society shall belong.” The Act is comprehensive enough to include all property, real or personal, of churches, congregations or religious societies acquired by gift, purchase, grant or devise. The long established and deeply imbedded policy of entrusting the ultimate power of control and disposition of church property to the laity subject to the uses for which it was dedicated was uprooted by the Act of 1935. Its provision prohibiting the diversion of property from the purposes, or trusts for which it was lawfully dedicated is similar to that of the Act of 1855, and by its express terms it applies to all property acquired by churches either prior or subsequent to its enactment. The effect of this statute is to make supreme the internal rules, regulations and usages of religious societies respecting the control of their property. The civil law no longer requires control to vest in lay members, but permits each individual church or society to determine for itself in what authorities this power shall vest. Property control, as well as all other ecclesiastical matters, is now governed by church law, since the impediment imposed thereto by the civil law has been removed. Churches are now no longer differentiated from other voluntary organizations in this respect. The Act of 1935 recognizes the binding effect of the internal laws of religious societies regarding the power of control and disposition of church property. Does the Act of 1935 because of its retrospective character take property without due process of law, and divest church lay members of vested property rights? The fact that it is retrospective in itself does not render it unconstitutional: Adle v. Sherwood, 3 Wharton 481. We there said: “A retrospective law, which does not impair the obligation of a contract, nor is in its nature ex post facto, is constitutional.” See also Palairet’s Appeal, 67 Pa. 479, 485. But if a legislative act operates to divest a vested right by virtue of its retrospective effect, it amounts to a taking of property without due process of law, unless it is a valid exercise of some fundamental power, as the police power, taxing power, or power of eminent domain: White, Constitution of Pennsylvania (1907), p. 117. The legislature cannot arbitrarily interfere with or destroy private property rights: Norman v. Heist, 5 W. & S. 171; Wolford v. Morgenthal, 91 Pa. 30. A consideration of the constitutionality of this act requires a study of the character of the interest which lay members had in church property prior to 1935, so that it may be determined whether they had such a property right as entitles them to protection under the constitution. Prior to the Act of 1855 property held or acquired by a voluntary association as a religious sect, denomination or congregation to be used for religious worship or education, governed by the doctrines of any particular church, faith or denomination, was subject to the control and disposition of the congregation according to the church rules and regulations. The control vested in the lay members. It had long been a settled rule in Pennsylvania where land is conveyed for the use of a religious society, even though the conveyance be in trust, that the transfer operates to vest absolute legal title in the congregation, subject to the limitation that the property may not be diverted from the uses for which it had been lawfully dedicated. This rule was predicated on the Act of February 6,1731,1 Sm. L. 192, Sec. 2, which conferred upon, religious societies the legal capacity to hold land. In Brendle v. The German Reformed Congregation, 33 Pa. 415, where land was conveyed to trustees, in trust for the use of a religious congregation, it was held that the congregation took a complete fee simple title. We said at pp. 424, 425: “That act [of 1731] gave to religious societies legal capacity to hold, and therefore the conveyance to their trustees constituted an executed legal estate in the congregation itself . . . the title in their name is treated as the title of the congregation, to be used by the congregation at their discretion, for such purposes as the law allows. . . . What then is the efficacy of the declaration that the congregation holds the land for the use of its poor, for a church, and for a burial ground? Nothing, except to show that they hold it for the purposes for which the law allows congregations to hold land. Not to limit their own title, but to recognize the uses allowed bylaw.” See also Griffitts v. Cope, 17 Pa. 96, 100; Brown v. Lutheran Church, 23 Pa. 495, 499. The congregation had complete control over the land and could alienate it, with the important limitation on their powers that1 they must use it or the proceeds from its sale for those purposes for which it was dedicated. This was the law with respect to the interest of lay members in church property at the time of the passage of the Act of 1855,! which amounted to no more than a codification of the f then existing rule and continued in force the policy of this State with regard to the ownership of property by religious organizations. In Maceirinas v. Chesna, 299 Pa. 70, we said at p. 73: “The policy of the State, with respect to the ownership of property by religious organizations is embodied in the Act of April 26, 1855, P. L. 328, which, to remedy the situation that existed in relation to property in the hands of ecclesiastical bodies, to clarify the law and to give expression to the then prevalent thought, lodged the absolute ownership of property in the lay members of the church, subject to and impressed with the uses to which it was dedicated. That ownership carried with it the right to receive and control, for the purposes dedicated, the revenues, rents, issues and profits derived from the church property: Ryan v. Dunzilla, 239 Pa. 486, 491; Mazaika v. Krauczunas, 229 Pa. 47, 53. It also included the right to possession and use of church property other than that necessarily and intimately related to and connected with church worship (Zernosky v. Kluchinsky, 278 Pa. 99), and the latter may be subject to the control of the laity if the preservation, maintenance or reconstruction of the church is involved.” N The question arises as to what is meant by the expressions “fee simple,” “absolute ownership,” “grant to the society itself,” “title,” and others of a similar nature, which appear throughout the cases in describing the in terest of the congregation in church property. Do they mean that the lay members took the property free of all restraints? Obviously not, since such interpretation would lose sight of the fact that they are limited in the use of the property to the purposes for which it was dedicated. All the acts, including that of 1935, prohibit “the diversion of any property from the purposes, uses and trusts to which it may have been heretofore lawfully dedicated, or to which it may hereafter be lawfully dedicated. . . . ” It is quite apparent that in effect the lay members held title merely as trustees in a limited sense and were vested with the power of control and disposition of the church property solely in that capacity. A particular church of a given faith or sect as a local congregation is a part of the larger religious faith or sect which comprises the entire church or denomination. The local or parish church cannot divorce or separate itself from the mother church, set up a new independent organization and by so doing retain the ownership of the local church or congregational property: Dochkus v. Lithuanian B. Society, supra, at p. 29. In no event can the members utilize the property in a manner foreign to the principles, customs and rules of the church to which it has been conveyed, even though a majority or the entire congregation express their approval of such action: Krecker v. Shirey, supra. Neither can it, or a majority of its members, sever its connection or separate itself from the ecclesiastical body by and through which it was endowed with faculties, which enabled it to organize as part of the church family in subordination to the given authority of the church, and its laws, and retain any property rights. While the ownership of church property vested in a particular congregation, its use was dedicated to the church generally, not specifically to a local congregation with the power to sell it and divide the proceeds among themselves. The lay members held title subject to the uses, purposes and benefits for which it was given, acquired or devised. In this respect it was subject to the church laws, canons and regulations. Furthermore when a religious society becomes inactive or extinct, its property is not subject to division among its members and does not revert to the original grantors. See Act of May 17, 1921, P. L. 861, Section 1. A dissenting minority of one, or the intervention of the church generally can prevent any spoliation of such uses: Nagle v. Miller, 275 Pa. 157; Kicinko v. Petruska, 259 Pa. 1. Consequently, nothing is clearer than the fact that the property interest of the lay members was in no sense absolute prior to 1935. They merely had the power of control and disposition over the property to be exercised in harmony with and in submission to the principles, rules and canons of their church. This did no more than clothe them with some of the attributes of trustees. The restricted use to which they could put the property negatives “absolute ownership” in them. This term has been used in a loose sense and is inextricably coupled with the prohibition against diversion of the property. Taken by itself it conveys an erroneous impression of the extent of the interest of the lay members in church property. In short, the effect of the Act of 1855 was purely to preserve to them their right to act as “trustees,” and prevent any interference with this right by the church law. The policy of the law was to vest in the lay members, as “trustees,” the power of control and disposition of the property, and nothing more.,-- Whatever property rights one had as a church member did not spring from any statute independent of membership, but existed only so long as he had that status under church laws. This clearly demonstrates that he had no civil right as an individual that appertained to the property of any particular church. As a member of such church he could protest to church authorities for acts done within the Church, and these appellants so proceeded. This right in church property arising from membership is not a personal asset; it cannot be in heriteci, sold or assigned; it cannot Tbe liened, seized for debt, nor is it subject to any dower claim. Control and disposition by tbe lay members as “trustees,” was required to conform to cburcb laws. They could not assess pew rents where tbe laws of tbe cburcb forbid it. They could not make a portal charge for tbe same reason. See Zernosky v. Kluchinsky, supra. In view of tbe fact that tbe lay members were vested with an interest in the property essentially as trustees by tbe Act of 1855, it is necessary to determine whether their interest under that statute is a vested property right within the meaning of the Constitution. In a very early case, Broion v. Hunvmel, 6 Pa. 86, it was decided that where a trust was established by will for the education of poor orphan children and a method provided in the will for perpetuation of the trustees and the filling of vacancies, an act of the legislature changing the method of selection of the trustees divested them of the “rights, franchises and privileges” vested in them by the will without due process of law. The court placed great emphasis on the fact that the statute arbitrarily worked a material alteration in the settlor’s will by taking the administration of the trust from those whom he expressly provided should act as trustees without apparent reason or any trial. The court reached its decision on the theory, which seems doubtful, that the trust was strictly private in character and its administration had no public consequences. The rule laid down is that where trustees of a testamentary trust, active and private in nature, are appointed and hold office under the provisions of the will creating the trust, they have in effect a vested interest in the property, and their duties and powers in their capacity as trustees cannot be divested by the legislature. The legislature has no power to override a testamentary disposition of property, which does not violate any rule of law at the time it takes effect. In the instant case an entirely different situation is presented. The trust res was acquired and used as a church and school in accordance with the faith and discipline of the Roman Catholic Church. In the all-inclusive use of the property, the trustees in “control and disposition” were required to conform strictly to the tenets and laws of the church, and their power of control was merely incidental to such use and of such slight consequence that it possessed very few attributes of trusteeship as that term is generally understood. The usual discretionary power of trustees over the res was almost entirely absent. There was nothing in the grants vesting any particular body or persons with the power of disposition and control. This power vested in the lay members solely by reason of the existing common or statutory law governing such conveyances at the time of their making. The Act of 1855, making them so-called trustees, did not give them such a vested interest as to preclude future legislation regulating the control of the property. The interest created by the Act of 1855 does not possess the character of a vested right within the Constitution. There is no tangible interest in the persons exercising the power. Their tenure of office was not made permanent, but depended first on their status as members, at all times subject to church laws, and second upon the will of the legislature. A change in either sweeps the power to control and dispose from them. Furthermore a change in legislative policy divesting them of control would not run counter to the express provisions of a will, as in the Brown case, and constitute an arbitrary interference with the lawful, testamentary disposition of property. Nor would it interfere with a vested interest in view of the indefinite and unstable character of the right here described. . -' Furthermore it is fair to assume that where a gift is made to a religious society with knowledge that under an existing statute the property will be controlled by the congregation as “trustees,” the donor intends that in the future the right of control is to be subject to the will of the legislature in the absence of the expression of any intent to the contrary. In this respect Philadelphia v. Fox, 64 Pa. 169, is helpful. That case involved certain charitable, testamentary trusts, among them the trusts' created by Girard’s Estate, appointing the City of Philadelphia as trustee. Subsequent to their creation a statute was passed vesting their administration in the “Board of Directors of City Trusts.” The constitutionality of this statute was attacked on the ground that it deprived the municipality of its vested right to administer and control the trusts. This court, speaking through Justice Shaeswood, ruled it constitutional, holding that the trusts were created subject to the control of the legislature with full knowledge that the trustees were merely agents of the legislature acting under a revocable power, and that the city, as trustee of the charities, cannot set up a vested right to have the trust continued in the form in which it was created. It has long been recognized that a religions and educational use is a charitable use. In Price v. Maxwell, 28 Pa. 23, this court stated, at p. 36: “A charitable use is not always a religious one, but we know of no religious use, which could be recognized at all as free from superstition, that is not included in the definition of a charitable use.” Considered in this light, there can be no doubt of the right of the legislature to take measures which they deem necessary to the proper enforcement of the trust. In Philadelphia v. Fox, supra, at pp. 182 and 183, there is the following quotation from Girard v. Phila., 7 Wallace 14: “ ‘It cannot admit of a doubt,’ says Mr. Justice Grier, ‘that where there is a valid devise to a corporation, in trust for charitable purposes, unaffected by any question as to its validity because of superstition, the sovereign may interfere to enforce the execution of the trusts, either by changing the administrator if the corporation be dissolved, or, if not, by modifying or enlarging its franchises, provided the trust be not perverted, and no wrong done to the beneficiaries.’ ” Therefore, for the above mentioned reasons, the Act of 1935 does not constitute a divestment of a vested right and applies with full force to all property acquired by religious societies either prior or subsequent to its enactment. The order of the court below dismissing the bill is affirmed at appellants’ cost. Maceirinas v. Chesna,, 299 Pa. 70; Zernosky v. Kluchinsky, 278 Pa. 99; St. Joseph’s Li. Roman Catholic Ch. Pet., 270 Pa. 73; Davidsville F. Nat. Bk. v. St. John’s C., 296 Pa. 467; Krauczunas v. Hoban, 221 Pa. 213; Carrick v. Canevin, 55 Pa. Superior Ct. 233; see also St. Mary’s 1m. Con. Gr. Cath. C. Petition, 296 Pa. 307; Dochkus v. Lithuanian B. Society, 206 Pa. 25; Watson v. Jones, 13 Wallace 679; Novickas v. Krauczunas, 240 Pa. 248. The court said at pp. 93 and 94: “But the most important of all our franchises — the right of an elector and citizen — cannot, in a confined sense, be called property. It is not assets to pay debts, nor does it descend to the heir or administrator. But who does not feel its value; and who but would turn pale if he thought he could be deprived of it without hearing or trial, by an act of Assembly? The very object of the charter was that a private and eleemosynary bounty of the purest character should be in the legal custody of persons who were responsible to the laws, and who would be bound to administer it in good faith. They were constituted the legal guardians of the estate, and were entitled to certain franchises, of all which they were deprived, without summons, hearing, or judgment, and by an act of the legislature, which, with regard to them, was rather a sentence of condemnation, than a law. But George Fry did not, by bis will, constitute the legislature of the state of Pennsylvania to be the administrators or almoners of his bounty, nor the Synods of the Eastern and Western Lutheran Church, to appoint whom they pleased to that function.” Justice Shaeswood said, at p. 182: “When, therefore, the donors or testators of these charitable funds granted or devised them in trust to the municipality, they must be held to- have done so with the full knowledge that their trustee so selected was a mere creature of the state, an agent acting under a revocable power. Substantially they trusted the good faith of the sovereign. It is plain — too plain, indeed, for argument — that the corporation by accepting such trusts, could not thereby invest itself with any immunity from legislative action. Such an act would not change its essential nature. It is surely not competent for a mere municipal organization, which is made a trustee of a charity, to set up a vested right in that character to maintain such organization in the form in which it existed when the trust was created, and thereby prevent the state from changing it as the public interests may require. ...”

OPINION NIX, Justice. The sole issue presented in this appeal is whether medical bills incurred by a plaintiff injured in an automobile collision are admissible as evidence to measure pain and suffering in an action brought exclusively to recover for non-economic detriment pursuant to section 301 of the Pennsylvania No-fault Motor Vehicle Insurance Act (“No-fault Act”). The Superior Court, reversing the Court of Common Pleas of Allegheny County, held that such evidence was admissible. Having considered this question, we conclude that medical expenditures are clearly irrelevant to the determination of pain and suffering and thus inadmissible for that purpose. Accordingly, we reverse the portion of the order of the Superior Court reversing the trial court and reinstate the trial court’s order. I. The parties to this appeal were involved in a two-car collision on State Highway 51 in Elizabeth Borough, Allegheny County, on January 2, 1977. Appellees LaVerne R. and George Martin sustained personal injuries in the collision, which occurred when the vehicle operated by appellant Larry Soblotney crossed over onto the Martins’ side of the road. The Martins subsequently filed a trespass action against Soblotney under section 301(a)(5) of the No-fault Act, 40 P.S. § 1009.301(a)(5), seeking recovery for non-economic detriment. During trial, counsel for the Martins sought to introduce into evidence medical bills incurred by George Martin as a result of the accident. The trial court excluded the bills, noting counsel’s exception. At the conclusion of the trial, the trial court directed a verdict in favor of George Martin on the issue of liability. The jury awarded him damages in the amount of Five Thousand ($5,000) Dollars, but made no award to LaVerne Martin. Following denial of their post-trial motions, both Martins appealed to the Superior Court. That court affirmed the judgment as to LaVerne Martin. Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982). As to George Martin, the Superior Court, concluding that the excluded medical bills were admissible to prove pain and suffering, reversed the order of the trial court denying his motion for a new trial, vacated the judgment in his favor and remanded for further proceedings. Id. This Court granted Soblotney’s petition for allowance of appeal from that portion of the Superior Court’s determination. II. An understanding of the changes wrought by the No-fault Act upon the traditional automobile-related trespass action is crucial to our decision in this matter. Prior to the enactment of the No-fault Act, an individual injured in an automobile accident could maintain an action to recover both general damages, such as pain and suffering, and special damages, such as medical expenses, loss of wages or services and impairment of earning capacity. Medical bills were admissible at trial to prove an element of special damages, namely the expense of treating the injury, provided the plaintiff established that the charges were reasonable and the services necessary and related to the injuries for which recovery was sought. See Piwoz v. Iannacone, 406 Pa. 588, 178 A.2d 707 (1962). The No-fault Act provided for a compulsory insurance system under which motor vehicle accident victims are compensated for economic losses on a first-party basis irrespective of fault. That Act abolished tort liability for economic losses arising from a motor vehicle accident to the extent that such damages were compensated by the No-fault insurer. See 40 P.S. § 1009.301(a) (Supp.1983-84). The cause of action for non-economic damages arising from a motor vehi cle accident was preserved only where one of four conditions was satisfied. Here, the cause of action for non-economic damages was limited to a recovery for pain and suffering; the medical bills had been paid under the basic loss provisions of the No-fault Act. The issue to be decided, therefore, is whether the medical bills proffered on George Martin’s behalf were in any way relevant to the jury’s assessment of Mr. Martin’s non-economic damages. It is well established that the fundamental consideration in determining the admissibility of evidence is whether the proffered evidence is relevant to the fact sought to be proved. Evidence is relevant if it tends to make a fact at issue more or less probable. See Gregg v. Fisher, 377 Pa. 445, 105 A.2d 105 (1954); J. McCormick, Evidence § 185, at 437 (2d ed. 1972); Fed.R.Evid. 401. In the instant case Mr. Martin’s medical bills were offered to establish the total amount of money he expended on medical treatment for his injuries on the theory that such figure would aid the jury in determining the amount to award him for pain and suffer ing. Our inquiry, therefore, must focus on the evidentiary question as to whether the dollar amount of the medical services provided is probative of the degree and extent of Mr. Martin’s pain and suffering. It is immediately apparent that there is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury. First, the mere dollar amount assigned to medical services masks the difference in severity between various types of injuries. A very painful injury may be untreatable, or, on the other hand, may require simpler and less costly treatment than a less painful one. The same disparity in treatment may exist between different but equally painful injuries. Second, given identical injuries, the method or extent of treatment sought by the patient or prescribed by the physician may vary from patient to patient and from physician to physician. Third, even where injury and treatment are identical, the reasonable value of that treatment may vary considerably depending upon the medical facility and community in which care is provided and the rates of physicians and other health care personnel involved. Finally, even given identical injuries, treatment and cost, the fact remains that pain is subjective and varies from individual to individual. Thus the fact that a particular amount of money was expended to treat an injury bears no logical correlation to the degree of pain and suffering which accompanied the injury to the plaintiff in question, forces the conclusion that such evidence possesses no probative value in a determination as to the appropriate monetary compensation to be awarded. Evidence of the cost of medical services is therefore irrelevant and, consequently must be held to be inadmissible for that purpose. III. The Superior Court, in reaching a contrary conclusion, failed to squarely address the question of relevance. Instead that court filled the void in its analysis with legislative history and statutory interpretation. Although it correctly recognized that the language of the No-fault Act did not provide for the admissibility of evidence of medical bills, the Superior Court nonetheless proceeded to examine the legislative floor debates on the Act. Its conclusion that the legislature “intended” evidence of economic loss to be admissible in actions to recover non-economic detriment is a non sequitur. Once it had been determined that the statute does not provide for the admissibility of such evidence, further attempts at statutory interpretation were obviously not warranted. “[I]t is not for us to legislate or by interpretation add to legislation, matters which the legislature saw fit not to include.” Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 61, 213 A.2d 277, 282 (1965), quoting Hochgertel v. Canada Dry Corp., 409 Pa. 610, 614, 187 A.2d 575 (1963); see also Kusza v. Maximonis, 363 Pa. 479, 70 A.2d 329 (1950); Olyphant Borough School District v. American Surety Co., 322 Pa. 22, 184 A. 758 (1936). Thus the focus shifts from an attempt to ascertain legislative intention to a mere application of the traditional rules of evidence. Having concluded the proffered evidence was irrelevant, its inadmissibility is clear. The Superior Court also reasoned that because the No-fault Act, which abolished tort liability except for serious injuries, preserves tort liability where the injured party has expended in excess of $750 (Seven Hundred Fifty Dollars) for medical services, that monetary threshold reflects “an express legislative determination that the value of such services is probative of the severity of injuries.” Martin v. Soblotney, supra 296 Pa.Super. at 158, 442 A.2d at 706. Based upon this thesis, that court argued that evidence of medical expenses should be deemed relevant and admissible to prove pain and suffering. Again, this is a non sequitur. As we have shown, proper analysis clearly demonstrates that such evidence is irrelevant. The legislature’s decision to prescribe a monetary threshold for determining the availability of a cause of action under the No-fault Act in no way implies the existence of a reliable correlation between dollars and pain and suffering in a particular case. The legislative judgment to use a particular dollar amount for medical services as a triggering device for the cause of action does not force the conclusion of the relevancy of the cost of medical services on the question of the appropriate assessment of damages. The Superior Court also drew support for its ruling from the argument that, since attorneys, claims adjusters and trial judges have employed the cost of medical expenses in settling personal injury cases, and since appellate courts have considered medical expenses in determining the appropriateness of verdicts in such cases, the same information should be available to a jury charged with the function of making an award for pain and suffering. This argument, too, is untenable. The fact that a factor has been frequently used in a rule of thumb does not necessarily establish its legitimacy. To the contrary, mathematical formulas which rely on a multiple of medical costs in computing settlements are in fact arbitrary and do not purport to gauge actual pain and suffering. Such practice was justified by expedience rather than its inherent legitimacy. With the progress of modern medical science there is every reason to believe that a factor, even as subjective as pain and suffering, can be reasonably determined without resort to such crude approximations. Finally, the Superior Court theorized that evidence of medical expenses must be admitted in order for the trial court to determine whether it has subject matter jurisdiction of a suit in which satisfaction of the monetary threshold requirement is placed in dispute. This issue is not presented by the case before us, and, in any event has no bearing on the question of the admissibility of evidence to show pain and suffering. Moreover, in the hypothetical situation posited by the Superior Court, the question is not one of jurisdiction, i.e., the court’s power to adjudicate, but of the plaintiff’s right to maintain an action for damages. See, e.g., In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980). IV. For all of the foregoing reasons, we conclude that medical bills are inadmissible in a No-fault action to establish non-economic loss for pain and suffering. Accordingly, the Order of the Superior Court vacating the Order of the Court of Common Pleas is reversed and the Order of the Court of Common Pleas is reinstated. LARSEN, J., filed a dissenting opinion. . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (Supp.1983-84). . The remainder of the Superior Court’s order affirmed the trial court’s denial of appellee LaVerne Martin’s motions for a new trial and judgment n.o.v. That affirmance has not been challenged on appeal. . Section 301(a)(5) provides: (5) A person remains liable for damages for non-economic detriment if the accident results in: (A) death or serious and permanent injury; or (B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth; or (C) medically determinable physical or mental impairment which prevents the victim from performing all or substantially all of the material acts and duties which constitute his usual and customary daily activities and which continues for more than sixty consecutive days; or (D) injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe. 40 P.S. § 7009.301(a)(5) (Supp. 1983-84). . The record demonstrates the fact that medical services were provided and the nature and extent of the injuries and treatment were fully established by other evidence. The bills were not offered for that purpose. . The cited debates indicate only that certain members of the House of Representatives favored the admissibility of evidence of economic detriment in an action to recover non-economic losses, and believed that, if a provision of the proposed No-fault Act explicitly precluding the pleading and proof of such evidence were deleted, that evidence would be admissible under existing law. See 1974 Pa.Legis.J.-House 4747-4764. This Court has consistently held that views expressed by members of the House and Senate in consideration of legislation may not be relied upon in ascertaining the legislative intent of the enactment as finally passed. See, e.g., Commonwealth v. Alcoa Properties, Inc. 440 Pa. 42, 269 A.2d 748 (1970); Philadelphia v. Depuy, 431 Pa. 276, 244 A.2d 741 (1968); Martin Estate, 365 Pa. 280, 74 A.2d 120 (1950). . In the appellate decisions cited to support this argument it is of significance that the claim for recovery included both general and special damages. See e.g., Fretts v. Pavetti, 282 Pa.Super. 166, 422 A.2d 881 (1980); Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480 (1980); Defulvio v. Holst, 272 Pa.Super. 221, 414 A.2d 1087 (1979); Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979); Wright v. Engle, 256 Pa.Super. 321, 389 A.2d 1144 (1978); Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 361 A.2d 362 (1976). . This holding is, of course, intended to apply only to trial rulings • made on or after the date of this Opinion.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT PAPADAKOS, Justice. This is an appeal from the Order of the Superior Court, 401 Pa.Super. 329, 585 A.2d 485, which affirmed the order of the Court of Common Pleas of Westmoreland County granting Appellee’s, Building Components, Inc., motion for summary judgment in a negligence action instituted as a result of the collapse of a dairy barn on Appellants’ property. The issue presented on appeal is whether a manufacturer of a product, which is incorporated into an improvement to real property by others, is entitled to the protection afforded under 42 Pa.C.S. § 5536, the twelve year statute of repose. Summary judgment is granted properly when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, 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). Summary judgment is appropriate only in those cases which are clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). The facts in the light most favorable to the non-moving party are as follows: In the latter part of 1970, Appellants purchased pre-constructed roof trusses from Appellee. Appellee manufactured these roof trusses and maintained a supply of them for sale to the public. In construction of the trusses, Appellee utilized metal gusset plates supplied by a second defendant, Inter-Lock Steel Company, to connect the individual wooden beams at various stress points in the trusses. The roof trusses in issue were not manufactured to the order or specification of the Appellants. After Appellants purchased the trusses, they were incorporated into the barn constructed on their property. On January 30, 1986, well over 12 years after the trusses were purchased by the Appellants and made a part of the barn structure, the roof of Appellants’ free-stall dairy barn collapsed, killing 37 dairy cows. Appellants instituted the underlying action alleging that the proximate cause of the collapse of their barn was the negligent manufacture and defective construction of the roof trusses by Appellee. With respect to Inter-Lock Steel, Appellants alleged that the coating on the truss splice plates showed “intergranular cracking” from corrosion which led to the failure in the stressed areas. The trial court granted summary judgment in favor of Appellee based upon the determination that the action was barred by the statute of repose applicable to construction projects, 42 Pa.C.S. § 5536. The motion for summary judgment of Inter-Lock Steel Company was denied. The Superior Court affirmed the trial court’s decision and this appeal followed. The party moving for protection under the statute of repose must show: (1) what is supplied in an improvement to real estate; (2) more than 12 years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party must be within the class which is protected by the statute. See, McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907 (1989). Appellants do not contest the first two requirements of the statute. However, Appellants allege that Appellee, as the manufacturer of the roof trusses, is not entitled to protection under the statute because Appellee is not within the class which is protected by the statute. The statute of repose protects: ... any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of an improvement to real property ... 42 Pa.C.S. § 5536 (emphasis added). The lower courts’ focus was on whether the roof trusses were improvements to real property. Once the courts determined that the trusses were improvements to real property, the courts decided that Appellee was a “person ... furnishing ... construction of any improvement to real property” within the meaning of the statute. The proper inquiry in this case is whether the statute of repose is meant to protect only builders or whether the legislature intended the defense to be enjoyed by manufacturers and suppliers as well. We find that the clear and unambiguous language of the statute of repose establishes that a manufacturer who does nothing other than supply a defective product which later is incorporated into an improvement to real property by others is not within the purview of the statute. While roof trusses may be considered improvements to real property according to the definition of fixtures, the statute only protects the acts of those persons involved in the design, planning, supervision, construction or observation of the construction of an improvement to real property itself. When a manufacturer does nothing more than supply the component products for an improvement to real property, the manufacturer is not protected by the statute. The fact that a manufacturer designs and plans the component products which later are incorporated into an improvement to real property is irrelevant under the statute. The Pennsylvania statute of repose was not intended to apply to manufacturers and suppliers of products, but only to the kinds of economic actors who perform acts of “individual expertise” akin to those commonly thought to be performed by builders. In Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978), this Court upheld the constitutionality of the statute of repose. We acknowledged the distinction between suppliers/manufacturers and builders and commented that such a distinction would be based rationally on real differences. We stated: [Suppliers who typically produce items by the thousands can easily maintain high quality control standards in the controlled environment of the factory. A builder, on the other hand, can protect his design and construction only in limited ways — actual use in the years following construction is their only real test. Further, every building is unique and far more complex than any of its component parts. Even in the most uniform-looking suburban subdivision, each house stands on a separate plot of land; each lot may have slightly different soil conditions; one may be near an underground stream; and so forth. The Legislature can rationally conclude that the conditions under which builders work are sufficiently difficult that limitations should be placed on their liabilities, but not on the liabilities of suppliers. Freezer Storage, 476 Pa. at 274, 382 A.2d at 719. Thus, the operative question before us is whether Appellee “furnished construction” or merely “furnished supplies” to be used in construction. The trial court stated in its opinion that the parties do not agree as to what involvement, if any, Appellee had in the installation of the finished roof trusses, or the supervision thereof. The Superior Court stated that Appellee was not involved in the planning, design or construction of the barn. However, we find that the trial court did not abuse its discretion in finding that the extent of Appellee’s involvement regarding the barn was in dispute. Therefore, a genuine issue of material fact exists and a grant of summary judgment is inappropriate at this time. Accordingly, we reverse the order , of the Superior Court and remand this case to the trial court for proceedings consistent with this opinion. LARSEN, J., did not participate in the decision of this case. NIX, C.J., and ZAPPALA and CAPPY, JJ., concur in the result. MONTEMURO, J., who was an appointed Justice of the Court at the time of argument, participated in the decision of this case in his capacity as a Senior Justice. . Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978, as amended by the Act of April 28, 1978, P.L. 202, No. 53, § 10 (63.1), effective June 27, 1978. The statute provides in pertinent part: (a) General Rule. — Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real properly must be commenced within 12 years after completion of construction of such improvement to recover damages for: (1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement. (2) Injury to property, real or personal, arising out of any such deficiency. (3) Injury to the person or for wrongful death arising out of such deficiency. 42 Pa.C.S. § 5536. Statutes of repose differ from statutes of limitation in that statutes of repose potentially bar a plaintiff’s suit before the cause of action arises, whereas statutes of limitation limit the time in which a plaintiff may bring suit after the cause of action accrues. . In reaching its decision, the Superior Court relied on the analysis in Catanzaro v. Wasco Products, Inc., 339 Pa.Superior Ct. 481, 489 A.2d 262 (1985) (manufacturer of a skydome covered under § 5535) and Mitchell v. United Elevator Company, Inc., 290 Pa.Superior Ct. 476, 434 A.2d 1243 (1981) (elevator determined to be improvement to real property). The main issue in those cases centered around whether a specific product was an improvement to real property. In Catanzaro, supra, the Superior Court broadly interpreted the statute of repose and concluded "that the appellees, as alleged manufacturers of the sky-dome, necessarily planned, designed and built the skydome, and are, therefore, persons which the class afforded protection by the act.” 489 A.2d at 266. The lower courts in this case relied on Catanzaro in order to judicially extend the protection of the statute to include a manufacturer/supplier of roof trusses which were incorporated into the roof of the barn. In Mitchell, supra, the court focused solely on the issue of whether the construction of the elevator in an apartment building was the construction of an improvement to real property. The court did not even consider the issue of whether the activity the manufacturer was engaged in was the kind of activity intended to be protected by the statute. . While the language of the Pennsylvania statute of repose does not specifically include manufacturers or suppliers as persons who may avail themselves of the protection afforded by the statute, the standard adopted by a majority of this Court in McCormick, supra, clearly focuses on the activity performed rather than whether the product is an improvement: The Pennsylvania statute identifies its class not by the status or occupation of its member but rather by the contribution or acts done in relation to the improvement to the real property. Thus, the statute immunizes from liability after 12 years “any” person lawfully performing or furnishing such activities. The word "any” is generally used in the sense of "all” or “every” and its meaning is not comprehensive. 522 Pa. at 520, 564 A.2d at 910 (quoting, Leach v. Philadelphia Savings Fund Society, 234 Pa.Superior Ct. 486, 490, 340 A.2d 491, 493 (1975) (emphasis added). . When construing statutes under Pennsylvania law, it is assumed that the legislature does not intend a result which is absurd or unreasonable. Zimmerman v. O’Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982). The policy behind Pennsylvania product liability law is that a manufacturer of a defective product is subject to liability for injury caused as a result of that defect. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). This policy would be undermined if manufacturers of products were able to claim that the statute of repose relieves them of liability merely because their products somehow have become part of "improvements to realty." A manufacturer must make its product safe for its intended use and will not be insulated from liability merely because the purchaser of a defective product incorporated it into the design of a structure. . The record reflects Appellants pleaded in their complaint that Appellee assisted in the design and planning of the construction of the roof trusses into the real property. Appellee denied participating in any of these activities in its answer to Appellants’ complaint. Then, Appellants provided affidavits with their Motion in Opposition to Summary Judgment stating that Appellee did not participate in any of the above-mentioned activities, in direct contradiction to the facts as pleaded in their complaint. The purpose for filing "supporting affidavits” pursuant to Pa.R.C.P. 1035(a) is to support allegations of fact which appear in the pleadings. Appellants cannot use affidavits in order to supply factual allegations essential to avoid the statute of repose which were omitted from the initial pleading. While Appellants can ask the court for permission to amend their pleadings to comport to the facts as stated in their affidavits, Appellants have not done so. Therefore, Appellants’ affidavits must be ignored at this time for summary judgment purposes and the determination of whether there is a disputed issue of material fact must be made on the basis of the pleadings alone.

Opinion by Mr. Justice Linn, May 22, 1933: This appeal is from an order refusing judgment for want of a sufficient reply by plaintiff to defendant’s averment of new matter. Plaintiff claims $150,000 for performance of an oral contract. Defendant denied making the contract, and, also, the performance alleged, and, under new matter, in substance averred that plaintiff’s statement showed that, in the transaction declared on, he was a real estate broker within the terms of the Real Estate Brokers’ License Act of 1929, P. L. 1216, 63 PS, section 431 et seq.; that he had no license as required by section 6, and that suit was prohibited by section 16. By proceedings, described in Sheets v. Armstrong, 307 Pa. 385, 161 A. 359, the County Commissioners of Allegheny County agreed to purchase from Schenley Farms Company certain land for a Town Hall. In the present suit, Verona, the plaintiff, avers that the owner of that land, Schenley Farms Company, the present defendant, “sought the services and assistance of [plaintiff] to act as agent for the [defendant] to present to the [commissioners] the special, peculiar and particular advantages of [defendant’s land]......to the end that said real estate might be sold to the county.” He also avers that the parties “entered into an oral contract” whereby plaintiff “agreed to use his best efforts in presenting to the [commissioners] the special, particular and peculiar advantages of [defendant’s land]......as being the most fitting, suitable and desirable location for the auditorium or ‘Town Hall,’ then under consideration, as compared with other properties which were being offered and considered by the said County Commissioners, to the end that the same might be sold to the said County of Allegheny for the purposes aforesaid,” and that defendant agreed to pay for his services in installments to mature in circumstances which, in view of our conclusion on the principal question, need not be stated. The Real Estate Brokers’ License Act of 1929 is entitled “An act to define real estate brokers and real estate salesmen; and providing for the licensing, regulation, and supervision of resident and nonresident real estate brokers and real estate salesmen and their business.” Briefly, it may be said, the purpose of the act was comprehensive regulation of the business of selling real estate for others. To that end, sellers were divided into two general groups, one requiring a license and the other not. Each group was subdivided into classes; the first group into two classes, (a) real estate brokers and (b) real estate salesmen. The second group was divided into a number of classes, as will appear later. The distinction between the two main groups depended on whether or not a party was engaged in the business of selling real estate for others; parties so engaged are in the first group. Parties not in the business of selling for others are in the second group. The duty of issuing licenses and' otherwise administering the statute was vested in the Department of Public Instruction. Section 2 defines, in paragraph (a), a real estate broker; in paragraph (b) a real estate salesman; and in paragraph (c) excepts and excludes from those definitions certain classes of real estate brokerage that might otherwise be within the general language of (a) and (b). Section 6 makes it “unlawful for any person......to engage in or carry on the business, or act in the capacity of a real estate broker, or a real estate salesman, within this Commonwealth, without first obtaining a license as a real estate broker or real estate salesman from the department.” Section 8 requires each broker to pay a license fee of $10, and each real estate salesman a fee of $5. These fees are payable in addition “to any and all other license fees or license taxes imposed, or to be imposed, upon real estate brokers and real estate salesmen by this Commonwealth or any subdivision thereof.” Other sections confer on the department power to revoke licenses in specified circumstances, subject to judicial review. See Young v. Department of Public Instruction, 105 Pa. Superior Ct. 153, 160 A. 151. Section 12 makes it a misdemeanor to “engage in or carry on the business, or act in the capacity of a real estate broker......within this Commonwealth, without a license......” and provides penalties for conviction thereof. Section 16 provides: “No action or suit shall be instituted, nor recovery therein be had, in any court of this Commonwealth, by any person......for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act to others than licensed real estate brokers, unless such person......was duly licensed hereunder as real estate broker at tbe time of tbe doing of such act or tbe rendering of such service.” In plaintiff’s reply to new matter he asserted that be was not required to have a license for two reasons: first, that be was not engaged in tbe real estate business as broker or salesman during tbe making and performance of tbe contract in suit; second, that be was an alderman in tbe third ward of tbe City of Pittsburgh and therefore within tbe exception of justices of tbe peace stated in section 2 (c). We agree with tbe learned court below that plaintiff’s averment that be was an alderman did not bring him within tbe excepted class, justices of tbe peace; tbe legislature has uniformly made a distinction between tbe two offices. But we cannot assent to tbe view of tbe learned court on tbe first point, that tbe services declared for “were not tbe services of a real estate broker or salesman but rather those of a promoter.” Plaintiff’s averment, in bis reply, that, in performing the contract, be was not “engaged in the real estate business,” is mere denial of what tbe statute defines as “acting in the capacity of a real estate broker,” a denial which, therefore, amounts to nothing. We all agree that the described negotiation with tbe county commissioners, in tbe ordinary and accepted definition of tbe word “negotiate,” was tbe work of a real estate broker within the meaning of tbe statute. Tbe legislature was of course familiar with tbe great variety of real estate brokerage contracts made from time to time, and tbe definition of. real estate broker must be understood in the light of tbe common knowledge on tbe subject; some idea of tbe varied scope of such contracts may be obtained by examining tbe cases cited in Shepard’s Annotations to Keyes v. Johnson, 68 Pa. 42 (1871) down to Shapira v. Union Trust Co., 306 Pa. 35 (1932), 158 A. 564. Tbe pleadings disclose that plaintiff was unlicensed, and that tbe transaction is directly within tbe prohibitions of sections 6 and 16, which prevent recovery. There is no averment that can bring him within any of the classes excepted in section 2 (c) which alone prescribes the conditions in which a license is not required. Section 2, paragraphs (a), (b) and (c) provide (so far as now material) that (a) “The term ‘real estate broker’ shall include all persons......who, for another and for a fee, commission, or other valuable consideration, shall sell, exchange, purchase, or rent, or shall negotiate the sale, exchange, purchase or rental, or shall offer or attempt to negotiate the sale, exchange, purchase, or rental, or shall hold himself or themselves out as engaged in the business of selling, exchanging, purchasing or renting of any real estate, interest in real estate, the property of another...... One act in consideration of compensation, by fee, commission or otherwise, of buying, selling, renting or exchanging any such real estate of or for another, or attempting or offering so to do ......shall constitute prima facie evidence that the person......,so acting or attempting to act, is a real estate broker within the meaning of this act.” “(b) The term ‘real estate salesman’ shall mean and include any person employed by a licensed real estate broker to sell or offer for sale, to buy or offer to buy, or to negotiate the purchase, sale or exchange of any real estate, or interest in real estate, the property of another, “(c) Neither of the said terms ‘real estate broker’ nor ‘real estate salesman’ shall be held to include within the meaning of this act any person,......who, as owner, shall perform any of the acts with reference to property owned by them, nor any person holding in good faith a duly executed letter of attorney from the actual owner of any real estate, authorizing the sale, conveyance or leasing of such real estate for and in the name of such owner, or the negotiating of any loan, thereon, nor shall they be held to include, in any way, attorneys at law and justices of the peace, nor shall they be held to include any receiver, trustee in bankruptcy, administrator or executor, or any other person or corporation acting under the appointment or order of any court, or as trustee under the authority of a will or deed of trust, or any banking institution operating under the banking laws of Pennsylvania.” The negotiation conducted by the plaintiff with the Commissioners, was not conducted as an isolated transaction (in the words of the statute) “in good faith [pursuant to] a duly executed letter of attorney from the” defendant, but pursuant to alleged oral authority to conduct a negotiation with the Commissioners “to the end that [defendant’s land] might be sold to the County of Allegheny for the purposes aforesaid” as plaintiff avers in his statement; such negotiation brings him within the definition of a real estate broker in section 2 (a). This negotiation, defendant insists, constitutes, under section 2 (a), “prima facie evidence that [plaintiff] was acting or attempting to act as a real estate broker within the meaning of this act.” The inquiry, then, is whether the record contains any averment by plaintiff that could be proved in rebuttal of the prima facie effect attributed by the statute to his conduct. What may be shown to rebut the presumption is fully stated in section 2 (c), supra. The statute does not require a license to sell real estate for another by one not a broker, as defined, if the sale is made by a “person holding in good faith a duly executed letter of attorney from the actual owner...... authorizing the sale......”; nor, in such case, will the absence of a license prevent the recovery of compensation, because such transaction is not within sections 6 and 16. But the right to make such unlicensed sales is limited by the legislature to persons who bring themselves within the class. As plaintiff obviously cannot bring himself within any of the excepted classes, he is bound by the effect attributed by the statute to his conduct. The requirement of a license by a real estate broker goes back many years in this State (Luce v. Cook, 227 Pa. 224, 75 A. 1098) but immediately prior to the Real Estate Brokers’ License Act of 1929, the Revenue Act of May 7,1907, P. L. 175, was applicable. The obvious purpose of the Act of 1929 is to prevent fraud and public wrong by correcting well recognized mischief theretofore existing. Numerous illustrations of the wrong to be corrected appear in reported decisions of both appellate courts, which, as the matter is familiar, need not be specifically referred to. The legislature concluded that the time had arrived when the subject must be dealt with. The Department of Public Instruction was therefore not only authorized to require information of the fitness of the applicant before issuing a license, but was vested with power, on its own motion, or on written complaint of the character described in section 10 (too long for quotation here) to refuse, suspend or revoke any license. Although the act has been in force only a few years, this provision has been frequently applied. In determining the meaning of the act, it is necessary to consider the evils which the act was obviously designed to correct: Provident Life and Trust Co. v. Klemmer, 257 Pa. 91, 93, 101 A. 351. As a statute for the prevention of fraud, it must be liberally construed to effect the purpose: Nolan v. Jones, 67 Pa. Superior Ct. 430; 263 Pa. 124, 106 A. 235. Plaintiff’s contention that the statute is penal and must therefore be strictly construed, overlooks the settled rule that “there is no impropriety in putting a literal construction on a penal clause and a liberal construction on a remedial clause” in the same statute: Com. v. Shaleen, 215 Pa. 595, 64 A. 797. In considering its meaning, it is also important to note that the requirement of the license is in aid of the collection of the revenue payable by brokers pursuant to the Act of 1907, supra. It is settled that “statutes to prevent frauds upon the revenue are considered as enacted for the public good and to suppress a public wrong, and therefore, although they impose penalties or forfeitures, are not to be construed, like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature”: United States v. Stowell, 133 U. S. 1, 12; United States v. Ryan, 284 U. S. 167. Though an unlicensed real estate broker, prior to the Act of 1929, could not recover compensation (Luce v. Cook, supra) the fact remained that, if he failed to collect by suit, or if he collected without suit, the State was deprived of revenue properly payable by such broker. The more frequent such transactions were, the greater the loss of revenue. In addition, as a result of the application of the rule, then applied, that it was a question for the jury whether, under the facts of a particular case, a person was carrying on the business of a broker or not (Meyer v. Wiest, 250 Pa. 573, 576, 95 A. 715) different juries would reach different verdicts on substantially the same evidence, with resulting inequality among such persons. Those evils, prevention of fraud, failure of revenue, discrimination among persons, are in some measure corrected by the Act of 1929. While prior revenue acts, not having for their purpose the comprehensive regulation of real estate brokerage as a business, did not prohibit recovery of compensation for brokerage services ren dered by a person without a license, if his business or occupation was not that of a broker, the Act of 1929, regulating such business, specifies precisely how one’s real estate may be sold by another. Unless a plaintiff can show himself entitled within one of the classes of authorized persons, he is within the sections prohibiting recovery of compensation. We understand section 2 (a), (b) and (c) to declare that every person engaged as defined (and as the plaintiff states that he was engaged) if even for a single transaction, unless he brings himself within the exceptions mentioned in 2 (c), must have a license; that sections 6 and 16 prevent recovery for services rendered by any person who cannot bring himself within 2 (c). By this construction of the statute, in harmony with the rules of interpretation quoted, all classes of persons are treated alike and the legislation is made effective within its terms. As there is nothing in the proposed amendment of his reply, which plaintiff asked leave to file in this court, to bring this transaction within any of the exceptions stated in section 2 (e), and, as it is also obvious from the averments in the statement of claim that he can never bring himself within an excepted class, we need not consider what disposition, in other circumstances, might have been made of such application to amend in this court. In accord with section 17 of the Practice Act, as amended April 22, 1929, P. L. 62, authorizing this court to enter such “judgment as justice may require” we must reverse the order appealed from and here enter judgment for defendant. Young v. Department of Public Instruction, 105 Pa. Superior Ct. 153, 160 A. 151. Among the complaints on which the department has acted, and which indicate the variety of fraud and wrong to be prevented or redressed by the statute, are the following, appearing in reports of proceedings before the department collected by Semenow, Pennsylvania Law of Real Estate Brokerage, page 132 et seg.: Collecting rents without accounting for them; embezzlement of down money; deceiving principal as to identity of buyer; acting as agent for both buyer and seller; misrepresentation by salesman as to rental of property; receiving funds by misrepresentation as to identity of principal; false representations in advertising circulars concerning lots; false statements by broker; false representations made in obtaining money; misrepresentations of condition of title.

Opinion by Mr. Justice Walling, The plaintiff, David McCoach, has been a police officer of the City of Philadelphia for forty years and was a captain of police from 1902 until 1920. In the latter year charges were preferred against him, to which an answer was filed and the case heard by the civil service commission, who sustained certain of the charges and ordered the demotion of McCoach to the position of lieutenant. The order being enforced, he sought restoration to his former rank by a petition for a writ of mandamus, to which return was made, and the court below (jury trial being waived) heard the case, filed an opinion and made an order granting the petition; from which the defendant city and its proper officers brought this appeal. The decision of the trial court was based upon its finding that no competent evidence was submitted to the commission in support of the charges. Such finding, if correct, might entitled petitioner to relief by mandamus had he been removed or discharged from the force; but no law seems to prevent the demotion of a policeman without formal proceedings before the civil service commission. Unless restrained by statute, a city may promote, demote or discharge a policeman at will, under the rule that the power which appoints may remove; but section 1 of article III of the Act of June 1,1885 (P. L. 37, 41), known as “The Bullitt Bill,” protected police men and firemen from dismissal, except by the decision of a court of inquiry, created and acting as therein provided; this was reenacted by the Act of 1906, P. L. 94, 95 (which became a law because not returned by the governor within thirty days after the adjournment of the legislature), but was superseded by the more elaborate Act of June 25, 1919, P. L. 581, entitled “An Act for the better government of cities of the first class of this Commonwealth,” which, in addition to expressly repealing the Act of 1885 (reenacted by the Act of 1906, above referred to), repealed also the Act of March 5, 1906, P. L. 83, relied on by the court below, and provides in section 1 of article XIX (Act of 1919, P. L. 613), that “From and after the effective date of this article, all appointments, transfers, reinstatements, promotions, reductions, suspensions, removals and dismissals, in the civil service of such city, shall be made in accordance with the terms and provisions of this article and the rules prescribed thereunder.” This clearly leaves the Act of 1919 as the sole guide in matters like the present, in cities of the first class. Bearing in mind that what we are here considering is not an appointment, suspension, removal or dismissal, but simply a reduction in position and pay, let us see what the Act of 1919 provides in regard thereto. By section 16 of the same article (P. L. 619), it is provided that “No person in the classified service or seeking admission thereto, shall be appointed, promoted, suspended, reduced or removed or in any way favored or discriminated against because of his political or religious opinions or affiliations. No inquiry in any application, examination or investigation shall relate to the religious or political affiliations of any person.” Under this section, plaintiff, being in the classified service, could not be reduced “because of his political or religious opinions or affiliations”; but, since the petition for the writ of mandamus does not aver he was reduced because of either of these reasons, we need consider that section no further. The first paragraph of section 18 of the same article (P. L. 620) provides: “No officer, clerk or employee in the classified civil service of such city shall be removed, discharged or reduced in pay or position except for just cause, which shall not be religious or political. Further, no such officer, clerk or employee shall be removed, discharged or reduced, except during the probationary period, until he shall have been furnished with a written statement of the reasons for such action and be allowed to give the removing officer such written answer as the person sought to be removed from office may desire. In every case of such removal or reduction a copy of the statement of the reasons therefor and of the written answer thereto shall be furnished to the civil service commission and entered upon its public records,” If we assume, because of the general language used, that this paragraph relates to policemen, though we do not so decide, because of the specific provision next to be quoted (Buckley v. Holmes, 259 Pa. 176, 189; Phila. v. Com., 270 Pa. 353), appellee is not helped, for no trial or hearing is required: Thomas v. Connell, 264 Pa. 242. On the same assumption, all that appellee had the right to under this section, was that the cause assigned be a just one, not religious nor political, and the reasons given in this case are ample, if true, to justify the demotion. Neither the court below nor this court is charged with an inquiry into the truth or falsity of the causes alleged; and since there is no trial to be had, the accused is not entitled to such clear specifications as would otherwise be required. The next paragraph of the act is the only one having any further bearing on the question at issue here, and is as follows: “No police officer or fireman except those dismissed during the probationary period shall be removed or discharged except for cause upon written charges, and after an opportunity to be heard in his own defense.” It will be noted that this does not relate to reduction in pay or position, but only to cases of removal or discharge, and therefore in the former instances a police officer or fireman is not entitled to “an opportunity to be heard in his own defense.” It follows that as appellee was reduced and not removed or discharged, it is wholly immaterial what evidence was taken before the civil service commission or in the court below; the matter was one for the appointing power alone, where, as here, there was a just cause stated, not religious or political, a written statement thereof given to the policeman and he allowed to give a written answer thereto. We cannot construe the word “removed” to signify “reduced” or “demoted”; such is not its popular meaning, especially when referring to a public official. Moreover, in other clauses of the Act of 1919, as above quoted, where the legislature meant “reduced” it used that word and its omission when referring to police officers and firemen indicates a legislative intent to make a distinction. The use of the words “removed or discharged” does not signify that either means “reduced.” It is our duty to construe the law as written and that of the legislature to make or modify it. True, the question upon which we decide this case was not raised in the lower court, nor by counsel here; but, as it goes to the jurisdiction to grant the relief sought, we cannot ignore it. The judgment of the court below is reversed and set aside.

Opinion by Mr. Justice Elkin, The murder was committed December 19, 1910. The indictment charged appellant with the commission of the crime. She was tried March 1, 1911, and was found guilty of murder of the second degree. A motion for a new trial was argued March 31, 1911, and was held under advisement until June 2, 1911, when it was overruled. On October 4, 1911, appellant was sentenced to undergo an imprisonment by separate or solitary confinement for a period of not less than fifteen years nor more than twenty years in the Eastern Penitentiary. The Act of June 19, 1911, P. L. 1055, relating to indeterminate sentences, was passed after the commission of the crime, and subsequently to the trial and conviction, but before the sentence, was imposed. It is, therefore, urged that the sentence was imposed under the Act of 1911, and that this act as applied to the crime for which appellant was convicted is an ex post facto law and, therefore, unconstitutional. The constitutionality of the Act of 1911, as it may be applied to crimes committed after its approval, is not questioned by either party. A reargument was ordered in this case for the purpose of having the constitutionality of the Act of 1911, which .necessarily involved the constitutionality of the Act of May 10, 1909, P. L. 495, raised and discussed. But upon this question we are confronted with the' rather unusual positions of both parties, each insisting upon the constitutionality of the Act of 1911. The Commonwealth..argues that the act was in force and that' appellant was . properly sentenced under it, while appellant, urges the,, validity of the act as the ground upon which is based the contention that as to her crime it is an, ex post facto law. In this state of the record there' are no assignments of error raising many of the questions usually presented in considering what are commonly known as indeterminate sentence acts. It is necessary, however, in order to properly dispose of the present case to pass upon the constitutionality of the Act of 1911. The objections to the Act of 1909, and the same objections may be made to the Act of 1911, are summarized as follows: (1) That the title is defective; (2) that the act creates a new crime without notice in the title; (3) that the act is special legislation; (4) that the act transfers judicial discretion to a non-judicial board; (5) that it assumes to restrict the pardoning power of the governor and the board of pardons; (6) that the sixth section.of the act is in conflict with Article III, Section 6, of the Constitution. We do not feel warranted in discussing at length these several objections to the Acts of 1909 and 1911, which in one form and another, and in several cases, have been raised in different courts. In the present case these objections have not been urged because both parties choose to stand upon the constitutionality of these acts, at least this is their position as to the Act of 1911. We agree with counsel that the Act of 1911 is a valid exercise of legislative power, and that nothing contained therein is in contravention of any provision of the Constitution. The same may be said of the Act of 1909, which has been very fully considered by the Superior Court in an opinion recently handed down by President Judge Rice in the case of Com. ex rel. Bates v. McKenty, 52 Pa. Superior Ct. 332. In the supplemental paper book of appellant this opinion is printed in full, and since the questions there considered are incidentally involved in the present case, it becomes necessary for this court to approve or disapprove of what was there decided and the reasons given for the conclusions reached. We fully concur in the views expressed by the Superior Court speaking through its president judge in. that case. The questions involved were given full and exhaustive consideration and the reasons stated for the positions taken convince us that the right conclusion was reached. We can see no valid reason for declaring either the Act of 1911, or the Act of 1909, unconstitutional because of any of the objections hereinbefore recited. This is in accord with the views of counsel on both sides of the present case and it will serve no useful purpose to discuss these objections more in detail. One question remains to be considered, and it is an important one. Is thé Act of 1911 as applied to appellant under the facts of the case at bar an ex post facto law? The prohibition against the enactment of ex post facto laws in this country was first written into the Constitution of the United States and since that time has been incorporated into the organic law of every state. As far back as 1798, the Supreme Court of the United States in Calder v. Bull, 3 Dall. 386, undertook to define the meaning of an ex post facto law, and that case has remained as a leading authority on the question to the present time. Under that decision ex post facto laws were grouped into four classes, as follows: (1) Every law that makes an act done before the passing of the law, and which was innocent when done, criminal; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed; (4) every law that alters the legal rules of evidence, and requires less or different testimony, than the law required at the time of the commission of the offense, in order, to convict. The rule as stated in that case has been amplified, discussed and applied in many subsequent cases, but its substance remains unchanged. In the case at bar, the Act of 1911 did not make that a crime which was not a crime at the time of its passage. It did not aggravate the crime, or make it greater than it was at the time of its commission. It did not change the rules of evidence, nor did it prescribe less or different testi mony in order to convict. It cannot be said therefore that in any of these respects the act in question is an ex post facto law even as applied to appellant. It remains to be considered whether this act changed the punishment, or inflicted a greater punishment, than that prescribed by the law annexed to the crime at the time it was committed. Counsel for appellant argue with much force and marked ability that the punishment was increased by the later act and that by reason thereof this act must be declared ex post facto as to all crimes committed prior to its passage. The argument is that the crime, of which appellant stands convicted, was committed while the Act of 1909 was in force, and that this act fixed the punishment for murder of the second degree at from five to twenty years, that is under an indeterminate sentence the maximum was twenty years and the minimum not more than five years. The Act of 1911 changed this provision of the Act of 1909 by giving to the trial court the power to fix the minimum sentence at any number of years within the maximum limit, and this is the matter about which appellant complains. Under the Act of 1909 her minimum sentence would have been five years, while under the Act of 1911 it was fixed by the court at fifteen years, and in this way it is said the punishment of appellant has been increased. This position overlooks the fact that neither the Act of 1909, nor the Act of 1911, undertook to fix the punishment for any crime, nor did these acts repeal the laws then in existence prescribing penalties and punishments for different crimes. The punishment for murder of the second degree is fixed by the Act of April 11, 1893, P. L. 17, which amended the Act of March 31, 1860, P. L. 382. The Act of 1893 provides that: “Every person duly convicted of the crime of murder of the second degree, shall, for the first offense, be sentenced to undergo an imprisonment by separate or solitary con¡finement not exceeding twenty years, and for the second offense for the period of his natural life.” This is the act, and the only act, in force at the time the crime in the present case was committed, fixing the punishment for second degree murder. The Acts of 1909 and 1911 did not repeal the Act of 1893. The intention not to repeal acts prescribing penalties and punishments clearly appears in the title and all through the enacting clauses of the Acts of 1909 and 1911. These acts undertook to regulate, not the law which fixed the punishments, but the sentencing of convicts, and the method of releasing them on parole. The purpose of these acts was to regulate the control and discipline of persons convicted of crimes with a view to their reformation. Under these acts the courts can sentence in such manner as to give the offender an opportunity to secure a release on parole upon certain conditions within the control of the prison authorities when recommended by the board of pardons and approved by the governor. But nowhere in the Acts of 1909 and 1911 did the legislature undertake to prescribe penalties and punishments for crimes, as to which the law remained the same after as before the passage of these acts. Section 6 of the Act of 1911 provides that when a ^person has been convicted of crime the court instead of sentencing for a definite fixed term under the law, that is the law fixing the punishment, “shall pronounce upon such convict a sentence of imprisonment for an indefinite term; stating in such sentence the minimum and maximum limits thereof; and the maximum limit shall never exceed the maximum time now or hereafter prescribed as a penalty for such offense.” The act does not fix punishments; it relates exclusively to the manner of sentencing. Both acts expressly recognize as still in force the law fixing maximum punishments by providing that the court in imposing the sentence shall always be bound by the maximum punishment prescribed by law. At the time of the passage of these acts the maximum punishment for murder of the second degree was twenty years, and this is still the law, and the indefinite term for which sentence is imposed under these acts must be within the maximum limit. This statutory punishment remains unchanged, but the court is given a discretion in the manner of imposing the sentence, and this was intended to work a substantial benefit to the convicted person as a reward for good conduct. This view finds further support in Section 4 of the Act of 1911, which relates to a convict released on parole, but who has violated the same. In a case of this kind it is provided, that when such a convicted person “shall be brought before the court which released him or her on probation,” the 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.” All of which can only be taken to mean that the Acts of 1909 and 1911 were not intended to repeal former acts fixing punishments for crimes. The punishment annexed to the crime in the present case, at the time of its commission, was prescribed by the Act of 1893, and this punishment was neither changed nor increased, by the Act of 1911. We may safely conclude, therefore, under the well settled rule, that the statutory punishment having been neither changed nor increased by the Act of 1911, appellant cannot escape punishment on the ground of this act being an ex post facto law as to her. This view is in accord with the trend of decisions interpreting indeterminate sentence laws in many other jurisdictions in which it was held that a sentence for an indefinite term must be deemed a sentence for the maximum term prescribed by law as a punishment for the offense committed. This view was first expressed in our own State by President Judge Sulzberger in Com. ex rel. Bates v. McKenty, hereinbefore referred to as having been considered by the Superior Court. In that case the learned court below in passing upon the question we are now considering, said: “Assuming, as we do, for the purpose of interpreting the statute, that it is constitutional, it necessarily follows that the maximum sen tence is the only portion of the sentence which has legal validity, and that 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 pardon be determined.” In State v. Perkins, 143 Iowa 55. in which a similar statute was considered, the court said: “The law is designated as an indeterminate sentence law because under its provisions the board of parole may order a release from prison regardless of the maximum fixed by law. Under similar laws for an indeterminate sentence, judgments conforming to the statutes have been held to be for the maximum period.” Indeed, this view has been accepted by nearly all of the courts in which legislation of this character has been considered, as an examination of the following cases will show: In re Conditional Discharge of Convicts, 73 Vt. 414; People v. Illinois State Reformatory, 148 Ill. 413; People v. Joyce, 246 Ill. 124; State v. Peters, 43 Ohio 629; Com. v. Brown, 167 Mass. 144; Miller v. State, 149 Ind. 607; Davis v. State, 152 Ind. 34; People v. Hayes, 140 N. Y. 484. These cases go on the theory that when the sentence is for an indefinite term, and the law prescribes a maximum punishment for the crime committed, the prisoner in contemplation of that law is committed for the full term, but may secure a release at a much earlier period if by his deportment and good conduct he proves himself worthy of the clemency which it is the policy of indeterminate sentence laws to extend him. A statute which mitigates the penalty is not objectionable on the ground of being an ex post facto law, although passed after the crime was committed: Com. v. Wyman, 66 Mass. 237; Com. v. Gardner, 77 Mass. 438; Dolan v. Thomas, 94 Mass. 421. So, too, statutes which relate to procedure or penal administration, or prison discipline, are not to be considered ex post facto, even though the effect may be to enhance the severity of the punishment: Duncan v. Missouri, 152 U. S. 377; Cook v. U. S. 138 U. S. 157; Gut v. State, 76 U. S. 35; Marion v. State, 20 Neb. 233; People v. Mortimer, 46 Cal. 114. Indeed, it may be stated as a general rule, that no one has a right to insist that particular remedies shall remain unchanged, or that courts and their jurisdiction and the proceedings in them shall continue unaltered, or that there shall be no departure from established methods in prison discipline or penal administration. Eetrospective legislation relating to crimes and punishments may or may not be declared unconstitutional on the ground of being ex post facto. The question in each case is whether it will increase the punishment, or deprive a party of substantial rights to which he was entitled under the law as it stood at the time the offense was committed. If the situation is not altered or changed to the disadvantage of the complaining party, the law even if passed after the offense was committed, is not ex post facto as to him. We are not familiar with any decision, and none has been called to our attention, declaring an act unconstitutional which related to prison discipline, or to penal administration, intended to benefit prisoners, on the groufid of its being an ex post facto law, even if such an act was retrospective in its operation. In the present case the maximum punishment for murder of the second degree under the Act of 1893 was an imprisonment of twenty years, and nothing contained in the Act of 1911 increased or aggravated the crime. The provisions of this act were intended to benefit convicted persons and to mitigate the severity of their punishment as prescribed by law. This act represents the humanitarian view of those most competent to speak on the question of the proper treatment of criminals. It is believed to be wholesome legislation and we can see no reason why courts should be astute in sustaining technical objections intended to strike it down. There is another view that may deserve a passing thought. The Act of 1911 does not require the imposition of a more severe minimum sentence than the Act of 1909. Under the Act of 1909 the minimum time for which a sentence could be imposed for second degree murder was five years, while under the Act of 1911 the minimum sentence may be much less. Under this act the minimum term may be fixed at one day, or one month, or one year, or any number of years within the maximum limit, warranted by the facts of the case. It, therefore, cannot be said that the Act of 1911 in terms increased even the minimum term prescribed as part of the sentence under the Act of 1909. The Act of 1911 gives the court the widest discretion in fixing the minimum sentence. The act itself does not increase or decrease either the maximum or minimum term of imprisonment. The maximum time is prescribed by other statutes, and the minimum time is determined by the court. How then can it be said that the act is unconstitutional because it increases the punishment, which it does not attempt to .do, or on the ground that it increases the minimum term of imprisonment, which it does not do, except in the sense that it vests the court with this discretion. In the .present case, the fault, if there be one, would seem to be, not in the act, but in the sentence. The instances are rare in which courts would feel justified in declaring an act unconstitutional on the ground that the prisoner had been prejudiced by the severity of the sentence if within the law. We are not convinced that the Act of 1911 prejudiced appellant, or in any proper legal sense increased her punishment, or altered the situation to her disadvantage, within the meaning of the law. We find no merit in any of the assignments of error and they are all dismissed. Judgment affirmed, and record remitted in order that the sentence may be executed.

Opinion bv Mr. Chief Justice Brown, The ninth section of the ordinance of the City of Scranton, giving its consent to the construction within its limits of the street passenger railway now owned and operated by the Scranton Railway Company, pro vides that a passenger “may ride from one part of the city to any other part of the city for a fare, which shall not exceed five cents.” In pursuance of an order of the Public Service Commission, made April 22, 1919, the Scranton Railway Company filed a new schedule of rates, increasing its unit fare to seven cents. An appeal from this order to the Superior Court was dismissed: City of Scranton v. Public Service Commission, 73 Pa. Superior Ct. 192. On petition of the City of Scranton this appeal was allowed from the order or decree of the Superior Court, limited, however, to a consideration of the constitutional question of the power of the legislature to authorize the Scranton Railway Company to charge a fare in excess of that fixed in the consenting ordinance. Though the order allowing the appeal is explicit in limiting it to but one question, counsel for appellant discuss others, but we shall confine ourselves to the one mentioned. None of the others call for discussion. The legislature could not have authorized the construction of a street railway within the limits of the City of Scranton without its consent, for the mandatory words of section 9, article XVII, of the Constitution are: “No street passenger railway shall be constructed within the limits of any city, borough or township without the consent of its local authorities.” What this provision means, and what effect is to be given to it in a controversy strictly between a municipality and a street railway company, are clearly pointed out in Allegheny v. Millville, Etna & Sharpsburg Street Ry., 159 Pa. 411. What was there decided was that a railway company cannot avail itself of consent given to it by a municipality to construct its railway within the municipal limits if it fails to perform a condition upon which the consent was given; and this was so decided because “no amount of hardship, or impossibility, or illegality, will avoid the bar of a condition precedent unperformed: Co. Litt. 206; 2 Blackst.; 157,” The question in the ease was solely between the City of Allegheny and the railway company; the Commonwealth was not a party to it; the question now under consideration was not involved, and Mr. Justice Mitchell, speaking for the court, expressly so declared. While the constitutional provision requiring the consent of a municipality to the construction of a street railway within its limits is clear and can have but one meaning, it must be read in connection, with the equally clear third section of article XVI of the Constitution, which declares that “the exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State.” This is but declaratory of an implied power of the State, inherent in all forms of government: Com. v. Vrooman, 164 Pa. 306; and it needs no constitutional reservation or declaration to support it. Street passenger railways have Become necessities. They exist everywhere and contribute in a very large measure to “the general well-being of tbe State,” as means of transportation and communication not only between closely connected communities, but also between those widely separated. Though this is so, they cannot be operated in any municipality without its consent. With such consent, they may be; and, as between the local authorities and the railway companies, there can be attached to it terms and conditions which must be performed by tbe companies; but a municipality may not annex such terms to its consent as will deprive the Commonwealth of its inherent police power to see that a street passenger railway company is not prevented from serving the public by the municipality’s enforcement of conditions in a consenting ordinance that have become impossible of performance. What may have been a reasonable rate of fare at the time of the passage of a consenting ordinance may, under changed economical con ditions, become confiscatory, and a street passenger railway company may not be able to serve the public on account of insufficient revenues, based upon the fare fixed in the ordinance. When such situation arises, as it has arisen and will arise again, there must be relief somewhere to the public, and it lies in the police power of the State, which is never to be abridged nor bartered away. When the City of Scranton gave its consent to the construction of what is now the Scranton railway, it exercised a constitutional power conferred upon it, but it is conclusively presumed to have known at the time the consenting ordinance was passed that the sovereign police power of the State to modify its terms would be supreme whenever the general well-being of the public so required. In exercising the power given it by section 9 of article XVII of the Constitution, the city did so with section 3 of article XVI before it, giving it distinct notice that the police power of the Commonwealth was, and would be, controlling. With this knowledge on the part of the municipality at the time it passed the ordinance, it is not now to be heard to complain that the State has struck down its contract or agreement with the street passenger railway company. The State has done nothing of the sort, but has merely enforced a condition written by the law into the ordinance at the time of its passage, that it would at all times be subject to the police power of the Commonwealth. That power includes the regulation of charges for services rendered to the public by public service corporations, and the State has exercised it in the passage of the Public Service Company Act, under which the Public Service Commission passes, in the first instance, upon all changes of rates made by public service corporations subject to review by the courts: St. Clair Borough v. Tamaqua & Pottsville Electric Railway Company et al., 259 Pa. 462. While the foregoing conclusion is so clear upon reason and certain fixed principles of government as not to require the citation of authorities to support it, they are to be found everywhere. Reference to but a few of thou will suffice. In Leiper v. Baltimore & Philadelphia Railroad Company et al., 262 Pa. 328, it was held that one who enters into a contract with a public service corporation fixing rates is presumed to have done so with knowledge of the right of the State, in the exercise of police power, to prescribe different rates, and that a contract with a public service corporation fixing rates for service, whether for a definite or indefinite period, has no binding force when its terms conflict with the rates fixed in the method prescribed by the public service company law of July 26, 1913, P. L. 1374. In so holding we said, through Mr. Justice Fox: “To permit the contract made between the appellee and appellants to stand as against rates established in a legal and orderly method and in conformity with the provisions of the law, would be to nullify the purposes of the act. It would be impossible for the commission to enforce an equality of reasonable rates, except upon the basis that it is not bound by contracts previously entered into between a public service company and either a municipality, another corporation, or a private individual. The basis upon which this conclusion must rest is that under the Constitution of Pennsylvania, article XVP, section 3, it is provided: ‘The exercise of the police power of the State shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the State.’ Where the rights of individuals under a contract which would otherwise be perfectly valid are in conflict with the ‘general well-being of the State,’ the rights of the individuals must give way to the general welfare. It therefore follows that Avhen, as in this case, the parties enter into a contract with a public service corporation relating to rates, they are presumed to do so with the knowledge that the right of the State to exercise this police poAver in the future is expressly reserved, and that where the common weal and the interests of the public demand that the provisions of the contract thus entered into shall be modified, it can be done without any violation of the provision of the Constitution of the United States with reference to the impairment of the obligation of contracts. A public service company is granted its franchise by the State so that it may properly and efficiently serve its people. This grant is made subject to the reserved power of the Commonwealth to supervise and regulate the exercise of the franchise, and, in the case of rates, to increase or decrease them as the public interest, as distinguished from mere private interest, may demand.” This was followed by the very recent case of Schaper v. Cleveland & Erie Railway Company, 265 Pa. 109, in which the same rule was announced, and a contract or agreement for the sale of round-trip tickets and books of tickets at certain rates, though valid when made by the parties to it, was held to be subject to the power of the State to change the rates in the future, in the exercise of its governmental authority. In other jurisdictions, notably Missouri, Illinois, Colorado and Utah, the effect of constitutional provisions similar to section 9, article XYII, of our Constitution has been before the courts of last resort, and it has been uniformly held that there was no delegation of the police power to municipalities to fix rates, nor was there a limitation on the exercise of that power by the legislature. This ‘’ 'disputable principle has been announced time and again by the Supreme Court of the United States. “Usually, where a contract, not contrary to public policy, has been entered into between parties competent to contract, it is not within the power of either party to withdraw from its terms without the consent of the other; and the obligation of such contract is constitutionally protected from hostile legislation. Where, however, the respective parties are not private persons, dealing with matters and things in which the public has no concern, but are persons or corporations whose rights and powers were created for public purposes, by legislative acts, and where the subject-matter of the contract is one which Effects the safety and welfare ¡of the public, other principles apply. Contracts of the latter description are held to be within the supervising power and control of the legislature, when exercised to protect the public safety, health and morals, and that clause of the Federal Constitution which protects contracts from legislative action cannot in every case be successfully invoked. The presumption is that when such contracts are entered into it is with knowledge that parties cannot, by making agreements on subjects involving the rights of the public, withdraw such subjects from the police power of the legislature”: Chicago, B. & Q. R. R. Co. v. Nebraska, 170 U. S. 57. “Assuming (what is not clear) that the provision in the franchise ordinances respecting the rates of fare and the transfer privilege are contractual in form, still it is well settled that a municipality cannot, by a contract of this nature, foreclose the exercise of the police power of the state unless clearly authorized to do so by the supreme legislative power”: Puget Sound Traction, Light and Power Co. v. Reynolds et al., 244 U. S. 574. The distinction between the right claimed by the City of Scranton and that exercised by the State is thus well stated by the Supreme Court of Oregon in City of Woodburn v. Public Service Commission of Oregon et al., 82 Ore. 114: “The right of the state to regulate rates by compulsion is a police power, and must not be confused with the right of a city to exercise its contractual power to agree with a public service company upon the terms of a franchise. The exercise of a power to fix rates by agreement does not include or embrace any portion of the power to fix rates by compulsion. When Woodburn granted the franchise to the telephone company, the city exercised its municipal right to contract, and it may be assumed that the franchise was valid and binding upon both parties until such time as the state chose to speak; but the city entered into the contract subject to the reserved right of the state to employ its police power and compel a change of rates, and, when the state did speak, the municipal power gave way to the sovereign power of the state.” The Public Service Commission having, in the case under consideration, exercised a power lawfully conferred upon it by the State, its action is not to be disturbed as being a violation of the constitutional right asserted by the City of Scranton to insist upon the continuance of a five-cent rate of fare, for no such right exists. The order of the Superior Court is affirmed, at the costs of the appellant.

Opinion by Mk. Justice Benjamin R. Jones, The defendant, Leola Moore, was found guilty of voluntary manslaughter by a jury in the Court of Oyer and Terminer of Dauphin County and by that court sentenced to pay a fine of f5. and to be committed to the State Industrial Home for Women for an indeterminate term. From that judgment of sentence this appeal was taken. Isaac David Moore and Leola Moore, husband and wife, lived at 1608 Wallace Street, Harrisburg, having come to Harrisburg from South Carolina several years prior to the incident which gave rise to this criminal prosecution. On the mid-afternoon of July 5, 1958, in his home, Isaac Moore received at the hands of Leola Moore, the defendant, a Avound which resulted in his death. At approximately 3:15 p.m. on that date the deceased entered his home and, finding the defendant in the dining room, inquired why she had not prepared anything to eat; the defendant explained that she had cleaned the kitchen floor and was Avaiting for it to dry but the deceased, instead of accepting this explanation, cursed defendant. The defendant Avent into the kitchen followed by the deceased. Defendant picked up a butcher knife, 11% inches long, and returned to the dining room. The deceased from the kitchen threAV a portable radio at defendant which, according to defendant, struck her and, according to the Commonwealth, landed near her feet. Defendant then started toward the living room and the deceased started folloAving her. Defendant turned, raised her arm and stabbed the deceased inflicting a wound which caused his death within an hour. Although unarmed as he followed defendant, the deceased was saying something and in an angry mood. There was no evidence of any attempt on defendant’s part to run aivay from deceased, although there was evidence on the part of the Commonwealth that she could have left the house by the back door before her husband followed her to the kitchen or by the front door after deceased had thrown the radio at her. Dr. Lippard described the character of the wound inflicted: “Yes, the wound, as I say, entered the soft parts of shoulder. It went behind the main bone of the arm. It vented, of course, across the arm pit and then entered the chest between the fourth and fifth ribs. It then went across the chest and cut open the sac which covers the heart. It then terminated at one of the major arteries which leave the heart, the pulmonary artery.” Although the knife blade was 11% inches long the wound to the pulmonary artery was somewhat longer from which the inference may be drawn that the knife was wielded with force. Defendant contends: (1) the trial court erred in overruling her demurrer at the close of the Commonwealth’s case and thus her motion in arrest of judgment should be granted; (2) the trial court was in error in allowing the jurors to deliberate for eleven hours — ■ 7:08 p.m. to 6:10 a.m. — without making any provision for them to rest and sleep; (3) the trial court erred in permitting the Commonwealth, in rebuttal, to present the testimony of a witness concerning a threat alleged to have been made by defendant four months prior to the homicide; (4) the verdict of the jury was against the weight of the evidence. Defendant’s first contention, i.e., that her motion in arrest of judgment should be granted, is premised upon the alleged failure of the Commonwealth to prove that the killing of deceased was intentional. In considering this contention the defendant would have us review the refusal of the court below to sustain her demurrer which we cannot do: Commonwealth v. Spanos, 167 Pa. Superior Ct. 629, 631, 76 A. 2d 243 and cases therein cited. The Act of June 15, 1951, P.L. 585, §1, 19 PS §871, provides: “Hereafter, in all criminal prosecutions in this Commonwealth in which the jury shall have rendered a verdict against the defendant, the defendant may . . . make a motion in arrest of judgment on the grounds that the evidence was insufficient to sustain the charge, and if the Court, after consideration of the entire record, shall decide that there is not sufficient evidence to sustain the conviction, it shall forthwith discharge the defendant and dismiss the case.” Under this statutory provision we consider the “entire record” in passing upon the motion in arrest of judgment and, in so doing, the sufficiency of the evidence must be tested according to the Commonwealth’s testimony and the reasonable inferences arising therefrom: Commonwealth v. Wright, 383 Pa. 532, 119 A. 2d 492; Commonwealth v. Jackson, 187 Pa. Superior Ct. 2, 144 A. 2d 249; Commonwealth v. Elias, 186 Pa. Superior Ct. 137, 140 A. 2d 341. Time and time again this Court has held that the fatal use of a deadly weapon against a vital part of the body of another, when established as a fact, warrants the inference that the act was done with the specific intent to take lire. Our present Chief Justice, speak ing for this Court in Commonwealth v. Samuel Jones, 355 Pa. 522, 526, 50 A. 2d 317, stated: “It is in respect of the alleged intent to take life that the appellant ascribes failure to the Commonwealth’s proofs in the instant case, apparently overlooking the fact that such intent, being subjective, is often unsusceptible of direct proof but must be found in the implications of objective manifestations, such as the character of the weapon used by the slayer. Not infrequently, therefore, specific intent to take life is shown by proof of the offender’s use of a deadly weapon, for while an intention to kill may be shown by the defendant’s expressed words or declarations or other conduct, such intent may be just as effectively inferred from the deliberate use of a deadly weapon upon a vital part for a manifest purpose: [citing cases].” See also: Commonwealth v. Nelson, 396 Pa. 359, 152 A. 2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Vassar, 370 Pa. 551, 561, 88 A. 2d 725; Commonwealth v. Wucherer, 351 Pa. 305, 312, 41 A. 2d 574; Commonwealth v. Kelly, 333 Pa. 280, 4 A. 2d 805; Commonwealth v. Drum, 58 Pa. 9. Apparently conceding that the knife was a “deadly weapon,” defendant argues that the knife was not used on a “vital part” of deceased’s body and, therefore, the inference of a specific intent to kill did not arise. In this connection it is argued that Dr. Lippard changed his testimony in respect to whether or not the wound was inflicted on a “vital part” of the deceased’s body. On direct examination Dr. Lippard testified: “Q. Now Doctor, there has been some reference in remarks in this case as to vital parts of the body. Would you determine from your experience whether or not you regard the area wounded as a vital part of the body? A. Yes, definitely a most vital part of the body.” (Emphasis supplied). On cross-examination the doctor testified: “Q. Now, do you consider the fleshy part of the arm behind the bone as a vital part of the body? A. No.” It is obvious that the doctor did uot change his testimony and that in his opinion the area wounded was a “vital part” of deceased’s body. The court below in its opinion well covered this situation: “The fact that in reaching this most vital part of the body the knife passed through the flesh of the upper arm is of no moment. A weapon may be used in such a way that death is improbable; however, we must consider not only the nature of the weapon, but also the manner in which it is used and all the attending circumstances: Commonwealth v. Kluska, 333 Pa. 65 (1939). In the instant case the weapon is a butcher knife 11 inches long, secured and used by the defendant against her husband who was unarmed and thrust with such force and in such a manner that it caused a stabbing wound longer than its blade in a diagonal path into the heart.” No more vital area exists in the human body than the heart area; it was in this area that defendant wounded her husband and from the use of the knife in the manner in which it was employed, from the wound which it inflicted and under all the circumstances the inference was fully warranted that defendant’s act was done with the specific intent to take life. This contention of the defendant is without merit. Defendant next argues that the court erred in keeping the jury together for an unusually long time without opportunity to rest and thus prejudiced the defendant. During the trial the jury had had rooms at the Penn-Harris Hotel. On the last day of the trial the jurors checked out of the hotel and brought their luggage with them to the courthouse. The jury retired for deliberation on the verdict at 7:08 p.m. after which time the jurors were fed. At 11:15 p.m. the jury requested and were given additional instructions on the various degrees of homicide and, in the words of the trial judge, at that time “gave no indications of fatigue or illness.” At approximately 3 a.m. counsel for the defendant requested that the jury be given sleeping quarters and that their deliberation be suspended while they rested and slept, but this request was refused. On his own volition the trial judge called the jury into the court room at 5:00 a.m. The following colloquy ‘then took place: “the court: Are there any questions that you think the Court might be able to answer; any additional questions that you might have that would help? This is, of course, an important case, as you well know, and you have deliberated on it very conscientiously. It is an important case to both the Commonwealth and the defense and the verdict, of course, must be unanimous, and we want to give you every opportunity to continue to deliberate, hoping that you can come to a unanimous verdict, the fore-lady : Your Honor, I as Forelady — we have deadlocked as far as I am concerned, the court: And you feel that any longer deliberations would not solve the deadlock, is that what you mean? the forelady: We have been trying, the court : Well, we are going to send you back again for another effort to see if you can’t come to a unanimous verdict, and we urge you to make every effort to do that.” The jury finally reached a verdict at 6:08 a.m. Defendant argues that it was reversible error on the part of the trial court to require such extended deliberation without rest for the jurors of whom ten were women. It is very significant that the jurors made no complaint nor any request that their deliberations be suspended and that they be given an opportunity to rest. Many years ago in People v. Olcott, 2 Johns. Cas. 301, Mr. Justice Kent said: “The doctrine of compelling a jury to unanimity by the pains of hunger and fatigue, so that the verdict in fact be founded not on temperate discussion and clear conviction, but on strength of body, is a monstrous doctrine that does not, as St. Ger-main evidently hints, stand with conscience, but is altogether repugnant to a sense of humanity and justice.” A verdict brought about by judicial coercion is a nullity in the eyes of the law: Miller v. Miller, 187 Pa. 572. If the instant verdict were brought about by any compulsion or if there was anything of record to indicate that the instant verdict was reached because of the jurors’ desire for rest and sleep or fatigue we would have no hesitancy in setting such verdict aside. However the instant record does not disclose such motivation for this verdict. The extent of time during which a jury is kept together for deliberation is a matter within the discretion of the trial judge; only for an abuse of such discretion should his action be reversed. Defendant argues that the court violated the Act of August 9, 1955, P. L. 323, §2336, 16 PS §2336, which provides that the county commissioners “shall provide and maintain a separate room or rooms, at or adjoining the Court House, upon order of the Court, for the comfort, accommodation and convenience of woman jurors, and such rooms shall be provided with suitable furniture for the use of women jurors who may be serving upon juries unable to bring in verdicts upon the day in which the case was placed in their hands. . . .” We fail to follow the logic of this argument in its applicability to this case. There is no evidence of record that appropriate quarters for the women jurors had not been provided nor that any request was made on the part of any of. the jurors that the jury’s deliberations be suspended and that provision be made for appropriate quarters for rest and sleep during the suspension of such deliberations. In Commonwealth v. Tenbroeck, 265 Pa. 251, 108 A. 635, affirming a verdict of second degree murder, this Court said: “The jury, after forty-eight hours’ deliberation, came into court and reported their inability to agree upon a verdict, whereupon the trial judge explained the nature of the case and importance of reaching a verdict and said, ‘You must agree,’ but added, ‘If someone of you should become physically unable to remain, the situation would be different, but as long as you are physically able to remain, it is your duty to undertake to agree.’ He also expressed great sympathy for the jury and enjoined them to continue their deliberations. Considering, as we must, all, that the judge said, it did not constitute such a coercion of the jury as to invalidate the verdict.. . .” We find nothing to substantiate the defendant’s charge that this verdict was arrived at through any judicial coercion or because of fatigue from lack of rest. Defendant’s third contention is that the trial court erred in permitting the reception into evidence of the rebuttal testimony of a Commonwealth witness, Constable Grimwood. The defendant had taken the stand and had testified, inter alia, that she loved her husband, had never threatened to kill him and had never told anyone that she would kill him. Grimwood testified that, in March 1958, he was attempting to apprehend the deceased and, while chasing deceased through his home, defendant said “If you don’t soon get him, you will be coming after me, because I am going to kill him.” The court admitted this testimony for two purposes; first, as it might affect the credibility of the defendant and second, to show possible intent. For both purposes this testimony was clearly admissible. In Commonwealth v. Minnich, 250 Pa. 363, 371, 95 A. 565, we stated: “With respect to this latter it need only be said that threats and all declarations of personal hostility are admissible in evidence, as showing malice and tending to show criminal intent charged.” To the same effect see: Commonwealth v. Patskin, 372 Pa. 402, 93 A. 2d 704; Commonwealth v. Peyton, 360 Pa. 441, 62 A. 2d 37; Commonwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145. Lastly, defendant contends that she is entitled to a new trial on the ground that the verdict was against the weight of the evidence. We have made an independent review of both the applicable law and the evidence and we are satisfied that the Commonwealth presented evidence which not only fully supported the present verdict but would have supported a verdict of murder. The defendant, from our examination of the evidence, was indeed fortunate to have received a manslaughter, rather than a murder, verdict. Judgment of sentence affirmed. The cause of death was described by Dr. Dippard: “I found a penetrating wound which entered his body through the left shoulder, entered the chest and entered a major vessel leaving his heart. This wound led to a massive fatal hemorrhage, which was the cause of death.” The distinction, between murder and manslaughter is the presence or absence of malice. The specific intent that death shall result is not essential to a finding of voluntary manslaughter. While it is true that a specific intent to take life, coupled with adequate provocation and passion, constitutes voluntary manslaughter rather than murder in the first or second degree, it is equally true that an intent to inflict serious bodily injury, which results in death, coupled with adequate provocation and passion, does not constitute murder in the second degree but is voluntary manslaughter, it is seen, therefore, that where there is a non-malicious felonious killing with a specific intent either to kill or to seriously injure, it is voluntary manslaughter. Compare Commonwealth v. Vanchaski, 42 Pa. Superior Ct. 294.

OPINION OF THE COURT FLAHERTY, Justice. In 1988, in a trial by jury in the Court of Common Pleas of Clearfield County, the appellant, James Lee Modaffare, was convicted of operating a motor vehicle while under the influence of alcohol. An appeal was taken to the Superior Court, whereupon the judgment of sentence was affirmed. We granted allowance of appeal. On the evening of June 8, 1987, appellant and a friend, Brenda K. Guthridge, traveled together by car to two taverns in Curwensville, Pennsylvania. At the taverns, appellant and Guthridge consumed beer. Later, while driving himself and Guthridge home at approximately 2:30 a.m., appellant struck a parked car. Appellant and Guthridge suffered injuries in the collision and were transported to a hospital. At the hospital, a state police trooper requested that appellant consent to a determination of his blood alcohol level. Appellant gave his. consent, and, at 4:20 a.m., a blood sample was taken. The sample was forwarded to a crime laboratory for analysis. Appellant’s blood alcohol level proved to be 0.108%. Appellant was charged under two provisions of the drunk driving law. The first provision, 75 Pa.C.S. § 3731(a)(1), makes it an offense to drive “under the influence of alcohol to a degree which renders the person incapable of safe driving.” At trial, appellant was acquitted on this charge. Appellant was found guilty, however, of a violation of 75 Pa.C.S. § 3731(a)(4), which provides: (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater. Appellant filed a motion seeking a new trial. A new trial was granted as to the charge under 75 Pa.C.S. § 3731(a)(4), but, upon re-trial, appellant was again convicted. The issue presented is whether the evidence was sufficient to sustain the conviction. In reviewing the sufficiency of the evidence we are required to view the evidence, and all reasonable inferences therefrom, in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Hughes, 521 Pa. 423, 430, 555 A.2d 1264, 1267 (1989). The test is whether the evidence, when so viewed, is sufficient to prove every element of the crime beyond a reasonable doubt. Id. Appellant argues that, because his blood sample was drawn approximately one hour and fifty minutes after the accident, it did not accurately reflect the content of alcohol in his blood at the time he was driving. See generally Commonwealth v. Gonzalez, 519 Pa. 116, 125-34, 546 A.2d 26, 30-35 (1988) (an opinion discussing the difficulty of “relating back” blood alcohol test results to the time of driving). In particular, appellant argues that expert testimony adduced by the Commonwealth on the issue of blood alcohol content was sufficiently ambiguous as to leave open to speculation the question of his blood alcohol content while driving. Upon the record presented, we agree that the evidence of appellant’s blood alcohol level was insufficient to prove beyond reasonable doubt that his blood alcohol level was equal to or greater than 0.10% while driving. In 75 Pa.C.S. § 3731(a)(4), supra, it is made an offense to drive a vehicle while one’s blood alcohol content is 0.10% or greater. In contrast, we note that the legislatures of certain other states have enacted statutes making it an offense to drive with a blood alcohol content of 0.10% “as shown by” or “as determined by” a blood alcohol test administered within a specified time after driving has ceased. See generally People v. Mertz, 68 N.Y.2d 136, 506 N.Y.S.2d 290, 497 N.E.2d 657 (1986) (compilation of various states’ statutes on drunk driving). Under such statutes, the facts of the present case might readily support a conviction. Our statute, however, is more limited in its focus. It makes one’s blood alcohol content while driving the pivotal issue. The legislature has provided that blood tests conducted after suspected drunk drivers have been stopped will be used as evidence of the suspects’ blood alcohol contents while driving. See generally 75 Pa.C.S. § 1547 (chemical testing to determine amount of alcohol). In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been driving, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, where, as in the present case, the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was significant, the inference of guilt is weakened. The blood test in this case was not performed until approximately one hour and fifty minutes after appellant’s accident. It revealed a blood alcohol content that was barely above the 0.10% level, i.e., 0.108%. The Commonwealth introduced testimony from the physician who drew the blood sample for analysis. He testified that a person’s blood alcohol level fluctuates with the passage of time, such that the level gradually rises after drinks have been consumed until a peak is reached roughly one hour after drinking has ceased, and that, thereafter, the level declines. He stated also that alcohol has no effect until it is absorbed into the bloodstream, which normally takes thirty to ninety minutes. He gave his opinion that, at 4:20 a.m. when the blood sample was drawn, the alcohol concentration in appellant’s blood was probably declining. On cross-examination, however, the physician testified that the alcohol concentration may have peaked between the time of the accident and the time when the blood sample was drawn. He was not able to offer any opinion as to what the alcohol level was at the time of the accident. In short, there was no evidence upon which the physician could offer an opinion as to whether appellant’s blood alcohol level was greater than or equal to 0.10% at the time of the accident. The physician further testified that if appellant’s drinking had occurred just five or ten minutes before the accident, then there would have been no alcohol in his bloodstream when the accident occurred. The unlikelihood that appellant’s drinking occurred just five or ten minutes before the accident is apparent, however, considering that appellant consumed beer at two different taverns on the night of the accident. Also, the accident occurred at a location a number of miles away from the taverns, making it unlikely that appellant could have arrived there in such a short time. Appellant did not testify at trial. Guthridge testified, however, that at each of the two taverns that she and appellant visited on the night of the accident appellant consumed at least one beer. Guthridge was seriously injured in the accident and testified that she did not recall whether appellant had more than one beer at each tavern. Nor did she recall at what times she and appellant arrived at or departed from the taverns, or even roughly how long they were there. Aside from Guthridge’s testimony, there is nothing in the record that sheds light upon the quantity or timing of appellant’s consumption of alcohol on the night of the accident. Appellant argues, based upon testimony of the physician who testified for the Commonwealth, that his blood alcohol level may have peaked sometime after the accident but before the blood test was performed. In addition, he argues that there is no evidence that his blood alcohol level was equal to or above 0.10% at the time of the accident. We agree that the record left the jury free to engage in speculation as to whether appellant’s blood alcohol level was at or above 0.10% at the critical time. It is well recognized, however, that a criminal conviction cannot be based upon mere speculation or conjecture. Commonwealth v. Holzer, 480 Pa. 93, 98, 389 A.2d 101, 104 (1978). Given the lapse of one hour and fifty minutes between appellant’s accident and the taking of a blood sample, the very small amount by which the test result exceeded the 0.10% level, and the testimony provided by the physician that, depending on when appellant finished drinking, his blood alcohol level may have been below 0.10% at the time of the accident, we do not believe that it was proven beyond a reasonable doubt that appellant’s blood alcohol exceeded permissible limits while driving. Appellant’s conviction cannot, therefore, be sustained. Judgment of sentence reversed. CAPPY, J., files a dissenting opinion which is joined by McDermott, j. Arguably, statutes such as these may be more responsive to societal concerns about drunk driving, making it easier to obtain convictions. Such arguments could properly be addressed to our legislature, rather than to this Court, for we are constrained to apply the plain language of the existing statute.

OPINION OF THE COURT FLAHERTY, Chief Justice. The issue in these consolidated cases is whether private business entities may be considered public utilities for zoning purposes when the applicable zoning ordinances do not define “public utility.” Crown Communications, a sole proprietorship engaged in the business of providing facilities for wireless communications, obtained a perpetual easement from the Borough of Glenfield to construct and maintain a 375 foot communications tower and equipment shed on a residential lot measuring 100 feet by 100 feet. On or about August 3, 1994 Crown applied for a building permit with the Borough of Glenfield. Although the zoning ordinance of the Borough of Glenfield establishes four zoning districts, none of them permits communication towers by right. Article IX, Section 29(c) of the ordinance provides: In appropriate cases, the Zoning Hearing Board on appeal, may issue a permit ... for the ... use of land in a suitable location by a public service corporation for public utility purposes which the Board determines reasonable [sic] necessary for the public convenience or welfare. Article III, Section 10 of the zoning ordinance provides: Uses Not Provided For. Whenever in any district established under this Ordinance, a use is neither specifically permitted or denied and an application is made by a property owner to the Zoning Inspector and Planning Commission for such use, the Zoning Inspector and Planning Commission shall refer the application to the Planning Commission to permit the use or deny the use. The use may be permitted if it is similar to and compatible with permitted uses in the district and in no way is in conflict with the general purpose and intent of this Ordinance. The zoning hearing board found that Crown is a non-corporate business entity operating for-profit; that the proposed tower will be available for rent at an unregulated rate; that Crown is not regulated by any government agency; and that the property is located in a residential district. The board concluded as a matter of law that Crown is not a public service corporation and denied its application for . a building permit. Crown appealed the zoning hearing board’s decision to the Court of Common Pleas of Allegheny County. The trial court reversed the board, holding that because certain lessees of space on the tower would be public utilities, the use was permissible under Section 10 of the ordinance. On appeal, the Commonwealth Court reversed, holding that Crown is not a public service corporation under Section 29(c) of the ordinance, and is not, therefore, eligible for the expanded definition of uses provided in Section 10. In 1994 Bell Atlantic Mobile (Bell Mobile) negotiated with the Fox Chapel Authority (Authority) to erect a new transmission platform on top of a water tower operated by the Authority. The water tower is located in what has become a residential neighborhood. The transmission platform project also included the construction of a fence and an equipment shed. The proposed transmission platform would consist of nine antennas which would project six feet over the tower. With the Authority’s permission, Bell Mobile applied to the O’Hara Township Zoning Hearing Board (board) for height variances for the antennas and the fence. After a hearing, the board denied Bell Mobile’s application for variances. The board’s findings of fact included that the property in question was located in an R-l residential zoning district and that the antennas, building and use as proposed were not permitted in this district. The board based its decision in part on potential nuisance effects of the additional structures and on the fact that there are other alternative areas more removed from residential districts. Bell Mobile appealed to the Court of Common Pleas of Allegheny County, arguing that its variance request should have been granted under the O’Hara Township Zoning Ordinance which allows “essential services” offered by “public utilities.” Section 72-ll(A) of the O’Hara Zoning Ordinance allows for “essential services” in special residential districts, and Section 72-66 defines “essential services” as various services offered by “public utilities or municipal or other governmental agencies.” The court rejected Bell Mobile’s argument that it is a public utility, citing the Public Utility Code, 66 Pa.C.S. § 102 as follows: the term ‘public utility’ does not include: (iv) Any person or corporation, not otherwise a public utility, who or which furnishes mobile domestic cellular radio telecommunications service. The court determined that because Bell Mobile is not a public utility, it does not qualify for a variance under Section 72-11(A) of the O’Hara Township Zoning Ordinance. Bell Mobile appealed this decision to the Commonwealth Court, which affirmed. The Commonwealth Court agreed with the trial court that Bell Mobile is a private, non-regulated company, not subject to the rates and tariffs of the Public Utility Commission, and that it is not, therefore, eligible for variance under Section 72-ll(A) of the O’Hara Township Zoning Ordinance. In both of these consolidated cases, the Courts of Common Pleas took no additional evidence. Our standard of review, therefore, is limited to determining whether the zoning hearing boards committed either a manifest abuse of discretion or an error of law when they denied the applicants’ requests to construct communications apparatus. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 639 (1983). An abuse of discretion exists when the essential findings of the board are not supported by substantial evidence, or such evidence as a reasonable mind would find adequate to support a conclusion. Valley View, Id.; Abbey v. Zoning Hearing Board, 126 Pa. Cmwlth. 235, 559 A.2d 107 (1989). We granted allocatur in this case to address the limited issue of what test should be applied to determine whether a business entity is a public utility for zoning purposes where the zoning ordinance does not define the term. The Pennsylvania Utility Code defines “public utility” as follows: the term “public utility” does not include ... (iv) any person or corporation, not otherwise a public utility, who or which furnishes mobile domestic cellular radio telecommunications service. 66 Pa.C.S. § 102(2)(iv). Clearly, both Bell Mobile and Crown are excluded from the definition of public utility by the Utility Code. Both Bell Mobile and Crown are simply private business enterprises which are not regulated by the Public Utility Commission. The Pennsylvania Public Utility Realty Tax Act offers the following definition of “public utility”: any person, partnership, association, corporation or other entity furnishing public utility service under the jurisdiction of the Pennsylvania Public Utility Commission or the corresponding regulatory agency of any other state or of the United States____ 72 P.S. § 8101-A(2). Even this expanded definition, which accords “public utility” status to business entities which are regulated by some state or federal agency, does not provide for business entities which are completely unregulated. Among the several definitions of “public utility” offered by Black’s Law Dictionary is the following: To constitute a true “public utility,” the devotion to public use must be of such character that the public generally, or that part of it which has been served and which has accepted the service, has the legal right to demand that that service shall be conducted, so long as it is continued, with reasonable efficiency under reasonable charges. (Fourth Edition). The Commonwealth Court in Commonwealth of Pennsylvania v. WVCH Communications, Inc., has stated: The distinctions between a public utility and a business entity which is not a public utility are well known. For example, a public utility holds itself out to the public generally and may not refuse any legitimate demand for service, while a private business independently determines whom it will serve. 23 Pa.Cmwlth. Ct. 292, 296, 351 A.2d 328, 330 (1976). The court then proceeded to define “public utility corporation”: In order to qualify as a public utility corporation, WVCH would have to prove that it is required by law to: 1) serve all members of the public upon reasonable request; charge just and reasonable rates subject to review by a regulatory body; 3) file tariffs specifying all of its charges; and 4) modify or discontinue its service only with the approval of the regulatory agency. Id. 351 A.2d at 330. ■ These definitions of “public utility” are not, of course, exhaustive, but they do contain a common thread. Implicit in each is that a public utility provides essential services to the public at large, responding to any reasonable request for service without discrimination, and that it conducts its business under the watchful eye of government, which ensures that its rates will be reasonable and its provision of service responsible. No such requirements are made of non-regulated business activity. Because public utilities operate within this framework of regulation, provision must be made in zoning codes and elsewhere for utilities to provide their services without undue restriction. Government cannot simultaneously demand the provision of essential services, but then regulate the provider in such a way that it becomes impossible for the utilities to provide the services. For this reason, the zoning codes at issue in this case make special provisions for public utilities which, in effect, exempt them from certain restrictions which apply to other business activity. We hold, therefore, that when zoning ordinances fail to define the term “public utilities,” the term shall be understood to mean any business activity regulated by a government agency in which the business is required by law to: 1) serve all members of the public upon reasonable request; 2) charge just and reasonable rates subject to review by a regulatory body; 3) file tariffs specifying all of its charges; and 4) modify or discontinue its service only with the approval of the regulatory agency. In the Crown case, the first question is whether Crown is a “public service corporation” which proposes to build a tower for “public utility purposes.” Clearly, the answer is in the negative. Crown is a private, non-regulated business. Crown, therefore, is ineligible under Article IX, Section 29(c) for a variance. With respect to Article III, Section 10, which allows uses not specifically permitted or denied which are not incompatible with the general scheme of the ordinance, Crown’s application was also properly denied, for Section 10 must be understood to operate within the specific requirements of Article IX, Section 29(c). To hold otherwise would render Section 29(c) meaningless. Accordingly, the board did not abuse its discretion in denying Crown’s request. The Bell Mobile case turns simply on the definition of “public utility.” Since Bell Mobile is not a public utility, it was not entitled to a variance for its antennas under Section 72-11(A) of the O’Hara Zoning Ordinance, and the board did not err in denying its request for a variance. The Order of the Commonwealth Court in No. 34 W.D. Appeal Docket 1997, the Crown Communications case, is affirmed, the order of the Commonwealth Court in No. 36 W.D. Appeal Docket 1997, the Bell Mobile case, is affirmed. . Bell Atlantic, unlike Bell Mobile, is a public utility under the Utility Code. It is regulated by the Public Utility Commission and is subject to the rates and tariffs of the commission.

Opinion by Mr. Justice Sadler, Mrs. Markman brought this action to recover damages sustained by a fall at the entrance way of defendant’s store, situated at the corner of Germantown Avenue and Ashmead Street, in the City of Philadelphia. On the morning of November 28, 1923, she had gone to an adjoining place of business and purchased two loaves of bread. Carrying these, she approached the building of defendant from a triangular platform, the sides of which were parallel with the adjoining house lines, the floor above being held up by an iron post located at its apex. The door leading into the sales room was constructed at Ihe base, the latter being about nine feet in width. On the morning in question, when the plaintiff entered the store, the proximity of other customers going in precluded observation of the step as she came from German-town Avenue. After completing her purchases, she departed through the door nearest Ashmead Street, carry ing four parcels of merchandise, with a shopping bag over her arm. Again, according to the testimony, the view was obstructed by persons both in front and at her side. Evidence was offered to show plaintiff then slipped on vegetable refuse, which had accumulated on the wet platform and step, and fell. Cabbage leaves and a piece of fat meat, parts of the same kind of produce offered for sale, were found adhering to the sole of her shoe after the accident. Both bones of the left leg between the knee and ankle were fractured, necessitating her removal to a hospital where requisite treatment was given for several weeks. Since that time, she has been compelled to make use of a brace and crutches, and continues to suffer pain and inconvenience. The jury rendered a verdict for $3,500, and the learned court below declined to disturb it. From the judgment entered thereon this appeal was taken. The rulings made at the trial are not challenged, nor is the charge of the court complained of as either erroneous or inadequate. The testimony offered on the questions of negligence and contributory negligence, and upon which the jury was directed to pass, was fully referred to and analyzed, and the law applicable thereto correctly stated. A reading of it will show that the rights of both parties were amply protected. All of the points presented by defendant were affirmed, with the exception of the request for binding instructions in its favor, and it is to the refusal to so order, and to sustain a motion for judgment non obstante veredicto, that the two assignments of error filed are alone directed. In considering the sufficiency of the evidence to sustain the verdict, we must therefore give plaintiff the benefit of all the evidence and inferences therefrom favorable to her, and reject all others: McDonald v. Pittsburgh, 278 Pa. 485. It is first insisted that plaintiff failed to establish any actionable negligence on the part of defendant. This burden rested upon her, for its presence is not to be presumed from the mere fact that the injury was caused by the fall at the entrance to the store: Chapman v. Clothier, 274 Pa. 394. The doctrine of res ipsa loquitur does not apply in such cases, and the fact that the damage was occasioned by some breach of duty must be affirmatively proved: Huey v. Gahlenbeck, 121 Pa. 238; Sterns v. Ontario Spinning Co., 184 Pa. 519; Diver v. Singer Mfg. Co., 205 Pa. 170. To recover, it was essential to show a failure to exercise reasonable care for the safety of the customer, for this is the measure of responsibility where one comes by invitation, express or implied, for the purpose of inspecting or purchasing goods offered for sale: Bloomer v. Snellenburg, 221 Pa. 25; Robb v. Niles-Bement-Pond Co., 269 Pa. 298; Spickernagle v. Woolworth, 236 Pa. 496; Woodruff v. Painter, 150 Pa. 91. The proprietor must keep the portion of the premises permitted to be used by the prospective buyer in proper condition, and if it is shown that the injury was caused by a neglect to do so, a recovery of damages may be had for the resulting loss: Reid v. Linck, 206 Pa. 109; Polenske v. Lit Brothers, 18 Pa. Superior Ct. 474; Brown v. Milligan, 33 Pa. Superior Ct. 244. In the present case, it appeared the defendant conducted a store, selling groceries, meat and vegetables, and it was to make purchases of these that plaintiff entered upon the premises. When she left, and fell, there were found on her shoe fat meat and cabbage leaves, evidently the cause of her slipping. Testimony was offered to show that celery, lettuce and other plants were washed on the street at the right of the door, that parts became loose and accumulated on the pavement and step, and that this condition existed at the time of the accident. Under proper instructions, the jury has found that there was a failure to protect customers from this possible peril, and the injury here complained of was the result. The mere presence of. such refuse, as described, does not in itself show negligence, for this condition may temporarily arise in any store of this character, though the proprietor has exercised due care; and, if it appears that proper efforts are made to keep clean the passageways so they may be safely traversed, he is not to be held responsible if some one accidentally slips and falls. Where, however, it is disclosed, as here, that the dangerous condition, arising from the same cause, was not a mere chance occurrence, but so often repeated as to call for frequent notices to the owner, and on one occasion to the police, and the same situation was shown to have existed when the customer was hurt, we cannot say the jury was not justified in finding defendant failed in his legal duty. The owner was liable for the negligence of the employees in not keeping the aisles and entrances reasonably clean and safe, though the dangerous condition existing was contrary to his orders or wishes: Whaley v. Citizens’ Nat. Bank, 28 Pa. Superior Ct. 531; Saunders v. Altoona & Logan Valley E. R. Co., 84 Pa. Superior Ct. 385. It is further insisted that, even if a finding of negligence was justified, the evidence showed such lack of attention on the part of Mrs. Markman as to defeat her action. She entered the store on the Germantown side of the doorway, but, as before noted, her view of the platform was obscured by those walking in front and by her side; the same was true when she departed after making her purchases, if the testimony is to be believed. On the latter occasion, she was burdened with four parcels held in front, extending twelve or fifteen inches from her body, to her chin, and carried a handbag on her arm. It is incumbent on one seeking to recover for loss, such as here complained of, to keep a general outlook to observe defects which may give rise to danger (Brown v. White, 206 Pa. 106), and if plaintiff’s own act contributed to the injury, as by carrying parcels making observation of the surroundings impossible, there can be no recovery: Lautenbacher v. Phila., 217 Pa. 318. But all that is required is the exercise of ordinary prudence under the circumstances. More watchfulness is demanded of one traveling on a highway than in a passageway of a store, as here (Bloomer v. Snellenburg, supra), and some inattention may be excused by reason of conditions brought on by matters beyond the control of plaintiff'which limit his ability to see, such as the interference occasioned by others passing (Polenske v. Lit Brothers, supra; Powell v. Wilhelm, 49 Pa. Superior Ct. 268; Ford v. Phila., 45 Pa. Superior Ct. 404), provided they were sufficient in number and nearness to prevent a proper view: Lerner v. Phila., 221 Pa. 294. The mere fact that packages were carried does not necessarily convict plaintiff of contributory negligence, though they may have interfered to some extent with vision: Nicholson v. Phila., 194 Pa. 460; Brown v. Milligan, supra; Robb v. Niles-Bement-Pond Co., supra; see also, Iseminger v. York Haven Water & P. Co., 206 Pa. 591; Musselman v. Hatfield Borough, 202 Pa. 489. Here, the jury, after fair and impartial instructions, found Mrs. Markman, in going upon the platform, used such care as the ordinarily prudent person is expected to exercise, and, under the evidence, this question was one for its determination: Bruch v. Phila., 181 Pa. 588. The testimony was not of a character to justify binding instructions for defendant, or warrant the setting aside of the verdict rendered: Cramer v. Aluminum Co., 239 Pa. 120. For the reasons stated, the assignments of error are overruled. The judgment is affirmed.

Opinion by Mr. Justice Jones, This appeal is from an order of the court below affirming the action of a zoning board of adjustment in sustaining the zoning officer’s refusal of a permit for the extension of a building to accommodate the normal business expansion of a nonconforming .use. The applicant brought this appeal. In 1945 the appellant became the owner of a lot of ground in the Borough of Beaver located at the corner of Fifth and Navigation Streets. The lot fronted 41.74 feet on Fifth Street and ran back along Navigation Street, preserving a substantially even width throughout, for a distance of one hundred and fifty feet to a twenty-foot alley. It was improved with a dwelling located on the Fifth Street end of the lot, and, at the rear, there was erected thereon a double, one-story, frame garage. By 1949 the owner had established in the garage an iron working, welding and automobile repair business. By March 1, 1951, he had enlarged the garage building for his business purposes to its present size of twenty feet by forty feet; and a portion of the lot to the extent of approximately six hundred square feet, between the garage building and the residence, was used by the owner as an open storage and work area in the furtherance of his business. In addition to that, an open frame lean-to, attached to the garage and covering approximately one hundred and twenty-five square feet, was also used for storage of tools, equipment and spare parts necessary in the business. The Borough of Beaver enacted its zoning ordinance on March 13, 1951. The ordinance zoned as commercial practically the entire length of Third (or Main) Street of the borough and two lots directly back of the court house yard and a public square, both of the latter abutting on Third Street. All other property in the borough was zoned residential. Consequently, the appellant’s established business located at Fifth and Navigation Streets became, with the adoption of the ordinance, a nonconforming use. Because of the growth of the appellant’s business, he applied on March 30, 1953, to the zoning officer for a permit for the construction of a concrete block addition to his garage building, thirty feet by forty feet in size. A permit was refused by the administrative officer and, on appeal, the board of adjustment affirmed the refusal. The owner’s appeal to the court below resulted in the record and order which we now have for review. Two somewhat similar prior applications for a permit had likewise been refused and, although extensive testimony had been taken at hearings before the board of adjustment upon the appeals to that body, the matter never reached the court below until the appeal from the board’s affirmance of the administrative officer’s denial of the third application. Upon certifying the record to the Court of Common Pleas, the board of adjustment so condensed the testimony that the court was unable to determine the facts upon which the board had based its findings or the reasons for its conclusions. In that situation, the court remanded the record to the board of adjustment with directions that it institute such further proceedings as were necessary to complete the record and, particularly, that it answer nine specific questions. However, no additional testimony was adduced before tbe board. At tbe hearing on tbe third application, counsel for all parties bad agreed that tbe board might also consider tbe testimony taken at tbe two earlier bearings. From tbe notes of testimony taken at tbe three bearings, tbe board answered tbe questions propounded by tbe court and made findings of fact to which tbe applicant excepted. After argument before tbe court on tbe returned record as thus revised, tbe court entered tbe ultimate order affirming tbe board’s refusal of a permit. Tbe court based its decision on tbe restriction in tbe ordinance against tbe extension by way of structural alterations of a building bousing a nonconforming use, noting that tbe constitutionality of such a restriction or limitation upon a permissible nonconforming use has never been passed upon 'by this court. However, in tbe view we take of tbe case, it is unnecessary for us to consider tbe constitutionality of tbe restriction. Tbe question here involved is one of law as to tbe meaning and scope of tbe provisions of tbe zoning ordinance with respect to permissible nonconforming uses. Tbe material facts are not in dispute although we may point out that tbe board’s findings in several instances are plainly irrelevant. Thus, tbe board found that tbe appellant’s present business interferes with bis neighbors’ enjoyment of their residential properties through tbe congestion of traffic on the streets and bright flashes from welding at night and that the attendant noise and racket annoyed tbe neighbors. There was no question before tbe board as to whether tbe appellant’s operation of bis lawfully existing nonconforming use should be abated; nor could there have been. Jurisdiction of such a problem is in another forum. Likewise, tbe finding that tbe granting of the permit would adversely affect the value of the neighboring residential properties where many new homes had been built in recent years introduced elements of private personal considerations which should have no part in an exercise of the police power for the promotion of the health, welfare, safety and morals of the public generally; and the new homes must have been built with knowledge of the appellant’s existing nonconforming use. Material portions of Article V of the ordinance, which deal with nonconforming uses, are as follows: “Section 1 (a) The lawful use of land existing at the time of the adoption of this ordinance, although such use does not conform to the provisions hereof, may be continued .... (b) The lawful use of a building, existing at the time of the adoption of this ordinance may be continued, although such use does not conform to the provisions hereof, and such use may be extended throughout the building provided no structural alterations are made other than those ordered by an authorized public officer . . . .” If the magnitude of the property devoted to the appellant’s nonconforming business use at the time of the adoption of the ordinance had consisted in its entirety of the twenty feet by forty feet garage building and the lean-to attached, then the restriction on the extension of the use by structural alteration of the building, which the learned court below deemed controlling, would become pertinent. However, such is not the situation which this record presents. Adjacent to the garage there is an area of seven hundred and twenty-five square feet of the appellant’s yard (including the space covered by the lean-to) which Avas as much devoted to the appellant’s business use at the time of the adoption of the ordinance as was the garage itself. The continued use of that land by the appellant in the operation of his business is expressly authorized by the above-quoted provision of Section 1 of Article Y of the ordinance; and nowhere in the ordinance is there an inhibition on the owner’s enclosing with a building the land so lawfully employed as a nonconforming use. The clear implication of our decision in Humphreys v. Stuart Realty Corporation, 364 Pa. 616, 621, 73 A. 2d 407, is that a nonconforming usé may be extended in scope, as the business increases in magnitude, over ground occupied by the owner for the business at the time of the enactment of the zoning ordinance. As our present Chief Justice pertinently stated in the Humphreys case, supra, “a non-conforming use cannot be limited by a zoning ordinance to the precise magnitude thereof which existed at the date of the ordinance; it may be increased in extent by natural expansion and growth of trade, neither is it essential that its exercise at the time the ordinance was enacted should have utilized the entire tract upon which the business was being conducted: Gilfillan’s Permit, 291 Pa. 358, 362, 140 A. 136, 138; Haller Baking Co.’s Appeal, 295 Pa. 257, 261, 262, 145 A. 77, 79; Cheswick Borough v. Bechman, 352 Pa. 79, 82, 42 A. 2d 60, 62.” It is clear beyond dispute that the appellant has a recognized right under the zoning ordinance to continue his nonconforming use over the portion of his lot devoted to his lawful business purpose at the time of the adoption of the zoning ordinance. And, it seems equally clear that it is within such right for the appellant to enclose the open-air portion of his operation of the nonconforming use within a building. Unless such a building could be found to be detrimental to the public welfare, safety or health, the ordinance could not be thought to have excluded it: cf. Gilfillan’s Permit, supra. However, in addition to the seven hundred and twenty-five square feet of the appellant’s yard which is, and at all times presently material has been, an integral part of the property used in the furtherance of the nonconforming purpose, the appellant seeks to include within the walls of his proposed building four hundred and twenty-five additional square feet of the yard immediately adjacent to the portion already used for the nonconforming business. If the use of such additional property is reasonably necessary in order to accommodate the requirements of the natural growth of the business, the appellant’s remedy would be by way of a variance, the requisites for which are hardship to the owner if not allowed so to use his property and want of any detriment to the public interest if used in the manner proposed: Blanarik Appeal, 375 Pa. 209, 212, 100 A. 2d 58. In the Blanarilc case, which was concerned with an application for an “exception” (more correctly, a variance) for the extension of a nonconforming use, Mr. Chief Justice Stern said, — “Apparently Blanarik required some additional room for the normal increase of his business and it would be imposing a wholly unnecessary hardship upon him to prevent his taking advantage of that increase, while, on the other hand, the proposed extension to his building could not, in the remotest degree, be contrary to the public interest or militate against the general purpose of the ordinance; indeed the Board of Adjustment did not give any meritorious reason whatever for their action.” The foregoing is equally applicable to the instant case so far as the use of the additional four hundred and seventy-five square foot portion of the lot is concerned. The restrictive provision in Section 1 (b) of the ordinance against the extension of a nonconforming use by means of structural alterations in a building has no bearing on the facts of this case. The provision relates to a building entirely housing a nonconforming use which may be extended, as of right, throughout the building. Here, the building to be erected will be on the open-air portion of the lot devoted to the nonconforming use at the time of the adoption of the ordinance. The only change to be made in the existing garage building will be the removal of the wall of the garage on the side upon which the new building will abut. To say that the two permissible buildings may not be so joined and thus made communicating would be an unreasonable requirement. The order of the court below is reversed at the costs of the Borough of Beaver and the record remanded with directions that the zoning administrator issue to the appellant a permit for the erection of a building on the seven hundred and twenty-five square feet of the lot upon which the nonconforming use has, in part, been operated and, also, on the additional four hundred and twenty-five square feet, immediately adjoining, in the event an application for a variance with respect thereto be entertained and allowed.

OPINION EAGEN, Chief Justice. In this appeal by the Commonwealth we are asked to determine the constitutionality of section 1311 of the Sentencing Code, 18 Pa. C.S.A. § 1311 (Supp. 1977-78), which establishes sentencing procedures and standards regulating jury determinations of whether or not the death penalty should be imposed as punishment for murder, and which a panel of the Court of Common Pleas of Philadelphia held to be unconstitutional. We shall affirm. I Appellee Theodore Moody was convicted by a jury of murder of the first degree and criminal conspiracy in the death on December 29, 1974, of one James Price, a fellow inmate at Holmesburg Prison in Philadelphia. Pursuant to section 1311(c) of the Sentencing Code, a hearing was then held to permit the jury to receive additional testimony and arguments on the question of aggravating and mitigating circumstances. In order to establish aggravating circumstances, the Commonwealth called an assistant United States attorney from Washington, D. C., who testified that Moody had previously been convicted in the District of Columbia of seven counts of premeditated and deliberate first-degree murder and seven counts of first-degree felony-murder, and that he had been sentenced to a term of twenty years to life imprisonment on each count. During cross-examination the witness testified that Moody’s appeals attacking these convictions were still pending. The Commonwealth also argued to the jury that the evidence adduced at trial indicated the killing of Price was “committed by means of torture,” another statutory aggravating circumstance. In an effort to establish statutory mitigating circumstances, the defense called Moody’s mother, who testified to her son’s age — twenty-one at the time of the killing — and her belief that he was not “quite mature” and that he was “easily led.” After further deliberations the jury returned with a finding that the killing of Price was accompanied by aggravating circumstances and no mitigating circumstances. Although this finding required the imposition of the death penalty, the court deferred formal sentencing pending the disposition of post-verdict motions. Subsequently, a three-judge post-verdict motions court denied Moody’s motions in arrest of judgment and for a new trial, but a majority of that court concluded that to impose the death penalty on Moody would be unconstitutional on two grounds. First, the statutory mitigating circumstances were found “unconstitutionally vague because a reasonable jury would have to guess at the meaning of ‘age,’ ‘youth’ and ‘lack of maturity,’ ” with “arbitrary and capricious decisions ... an inevitable result.” Second, the court concluded that because at the time of Moody’s trial this Court had promulgated no procedural rules for imposition of the death penalty by trial courts in non-jury trials or guilty-plea proceedings, trial courts had no power to impose the death penalty in such contexts, and that therefore, pursuant to United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the imposition of the death penalty after a jury trial “placed a chilling and unconstitutional burden upon the exercise of the constitutional right to trial by jury.” One judge concurred solely on the Jackson ground. The court certified that its decision on the death penalty involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate determination of the matter, and it stayed all proceedings meanwhile; we allowed the appeal. In addition to arguing in support of the grounds advanced by the post-verdict motions court for holding imposition of the death penalty unconstitutional, Moody also urges, as he did below, that section 1311 unconstitutionally restricts the evidence the jury may consider in mitigation of the penalty. We agree. Accordingly, in affirming the order of the Court of Common Pleas, we do not reach the grounds which that court found decisive. II In Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), this Court recognized that the Supreme Court of the United States, by its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), had in effect invalidated Pennsylvania’s prior death-penalty statute as violative of the Eighth and Fourteenth Amendments. Section 1311 was enacted in 1974 by the Pennsylvania legislature in an effort to cure what were perceived to be the constitutional defects of the invalidated statute. See Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 370 A.2d 309 (1977). Section 1311 retains the split-verdict provisions of the previous statute; that is, if the jury finds the defendant guilty of murder of the first-degree, it then proceeds to hear additional evidence and arguments and to render a separate verdict with regard to the penalty. The new statute, however, in an effort to avoid the untrammeled discretion and lack of standards for determining the penalty condemned in Furman, both limits the death penalty to murders of the first degree which the jury finds to be accompanied by at least one of nine specified aggravating circumstances and by none of three specified mitigating circumstances and requires that it be imposed when such a finding is made. The statute also provides that aggravating circumstances must be proved beyond a reasonable doubt and mitigating circum stances by a preponderance of the evidence and further provides for automatic review by this Court of all death sentences. See 18 Pa. C.S.A. § 1311(g). The result clearly is to reduce substantially the scope of discretion in jury determinations of the penalty for murder of the first degree. Ill Last year the United States Supreme Court addressed itself for the first time to the constitutionality of death-penalty statutes enacted subsequent to Furman. In a series of five decisions announced on the same day, that Court found the new statutes of Georgia, Texas, and Florida constitutional and invalidated statutes from North Carolina and Louisiana. None of the statutes there involved corresponds precisely with the Pennsylvania statute here at issue, but we must look to these decisions, as well as to subsequent pronouncements by the Supreme Court, for guidance in determining the constitutionality of section 1311. Our task is complicated by the fact that no clear majority view with regard to ascertaining the constitutionality of a capital-punishment statute has emerged from these decisions. Justices Brennan and Marshall would have invalidated all five of the statutes at issue in the 1976 cases because of their consistently-expressed view that the death penalty in all circumstances constitutes cruel and unusual punishment. Chief Justice Burger and Justices White, Blackmun, and Rehnquist would have found all five constitutional. The decisions of the Court were thus controlled by a “plurality” consisting of Justices Stewart, Powell, and Stevens which in each case constituted part of the decisional majority with one of these justices writing the opinion announcing the judgment of the Court. The conclusion which emerges from these decisions is that the death penalty as a punishment for murder is not, at least at present, inevitably cruel and unusual punishment in violation of the Eighth Amendment, but that a statute authorizing capital punishment for even a narrowly-limited category of murder violates the Eighth Amendment if it does not sufficiently permit the sentencing authority in determining the sentence to take into account the particular circumstances of the crime and the individual history and character of the criminal. See Harry Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977). The Supreme Court plurality in effect appears to have discerned an element of due process in the Eighth Amendment which is applicable to sentencing in capital cases. Thus, in the words of Mr. Justice Stewart: “This Court has previously recognized that ‘[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U.S. 241, 247-249, 69 S.Ct. 1079, 1083-1084, 93 L.Ed. 1337 (1949); Furman v. Georgia, 408 U.S. 238, at 402-403, 92 S.Ct. 2726, at 2810-2811 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. 86, at 100, 78 S.Ct. 590, at 597, 2 L.Ed.2d 630 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. “This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” [Footnote omitted.] Woodson v. North Carolina, supra, 428 U.S. at 304-5, 96 S.Ct. at 2991-92. Moreover, as stated by Mr. Justice Stevens: “ . . .a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, post, 428 U.S. 280, pp. 303-305, 96 S.Ct. 2978, pp. 2991-2992, 48 L.Ed.2d 944, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, post. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” [Footnote omitted.] [Emphasis added.] Jurek v. Texas, supra, 428 U.S. at 271, 96 S.Ct. at 2956. We must determine, therefore, whether section 1311 permits the jury to consider sufficiently “the character and record of the individual offender” and, in particular, whether it permits the jury to consider “on the basis of all relevant evidence” why a death sentence should not be imposed. Plainly, unlike the mandatory North Carolina and Louisiana statutes struck down by the Supreme Court, the Pennsylvania statute does permit the jury in determining punishment to go beyond the crime itself and consider some mitigating circumstances. For this reason, the Commonwealth would have us uphold section 1311 as essentially similar to the Georgia, Florida, and Texas statutes the Court found constitutional. Clearly in bifurcating the guilt and penalty phases of the trial, in limiting the death penalty to murders of the first degree attended by specific aggravating circumstances, and in providing for automatic appellate review of all death sentences, the legislature has adopted procedures for the protection of defendants in capital cases which have been specifically approved and endorsed by the Supreme Court. See Gregg v. Georgia, supra; Proffitt v. Florida, supra. In our view, however, the constitutional defect of section 1311 is that, unlike the statutes approved by the Supreme Court, it so narrowly limits the circumstances which the jury may consider mitigating that it precludes the jury from a constitutionally adequate consideration of the character and record of the defendant. Section 1311(d) limits the circumstances which the jury is to consider mitigating to “the following mitigating circumstances” and lists three: “(2) Mitigating circumstances: (i) The age, lack of maturity, or youth of the defendant at the time of the killing. (ii) The victim was a participant in or consented to the defendant’s conduct as set forth in section 1311(d) of this title or was a participant in or consented to the killing. (iii) The defendant was under duress although not such duress as to constitute a defense to prosecution under section 309 of this title (relating to duress).” Of the three listed, only subsection (d)(2)(i) can be said to focus the jury’s attention upon the character and record of the defendant as opposed to the circumstances of the crime, and that only to the limited extent of determining his age, lack of maturity, or youth at the time of the killing. Although a prior conviction for an offense punishable by life imprisonment is an aggravating circumstance, the absence of a prior criminal record or even positive achievements or good works cannot be considered as mitigating. Whatever the offender’s potential for rehabilitation, his life is to be terminated without consideration of it unless his status or situation at the time of the killing can be found to be a mitigating circumstance. In contrast, the statute approved in Gregg v. Georgia, supra, while limiting the sentencing authority’s power to impose the death penalty for murder to situations in which it finds beyond a reasonable doubt at least one statutory aggravating circumstance, does not even mention specific mitigating circumstances other than the absence of prior convictions; in directing the sentencing authority to weigh aggravating and mitigating factors, it thus gives defendant and sentencing authority wide latitude as to the type of mitigating evidence he may present and it may consider, and a recommendation of mercy by the jury is binding upon the trial court without any finding of a specific mitigating circumstance. With regard to jury determinations of the penalty, the Supreme Court plurality emphasized that “accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die” if the jury is to fulfill its role in capital cases of maintaining “ ‘a link between contemporary values and the penal system.’ ” Id., 428 U.S. at 190, 96 S.Ct. at 2933, quoting Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775 n. 15, 20 L.Ed.2d 776 (1968). Further, the plurality in Gregg expressly indicated that, so long as the defendant is not prejudiced thereby, it is preferable not to impose restrictions on the evidence and arguments presented to the jury at the penalty hearing; it also indicated that the possibility of a jury affording mercy to a particular defendant did not render the procedure unconstitutionally arbitrary. The Florida statute approved in Proffitt v. Florida, supra, lists seven mitigating circumstances, significantly including “[t]he defendant has no significant history of prior criminal activity,” which are to be weighed against eight statutory aggravating circumstances. In addition, however, the plurality noted that the Florida statute does not limit the mitigating factors which may be considered by the sentencing authority to the statutory mitigating circumstances. Id., 428 U.S. at 250 n. 8, 96 S.Ct. at 2965 n. 8. Further, since the jury’s penalty verdict in Florida is only advisory, the judge in sentencing the defendant may also make use of a presentence investigation report, which may also present mitigating factors relevant to the offender’s character and record. Id., 428 U.S. at 252 n. 9, 96 S.Ct. at 2966 n. 9. See also Gardner v. Florida, supra. Thus, in Florida also there appears to be essentially no limitation on the mitigating factors which the defendant may have the sentencing authority consider. The Commonwealth argues that section 1311 is actually more favorable to offenders in that it mandates a life sentence if the jury finds a mitigating circumstance, while the Georgia and Florida statutes allow the imposition of the death penalty if the aggravating circumstances outweigh the mitigating circumstances. This distinction, however, is helpful only if the defendant is able to establish one of the narrow mitigating circumstances mentioned in section 1311(d). Gregg and Proffitt suggest, rather, that the sentencing authority must be given the opportunity to weigh and consider in mitigation whatever evidence might be relevant to passing an informed judgment upon the defendant. This view is fortified by an examination of Jurek v. Texas, supra. The Texas statute there approved limits capital-murder to five situations, which the plurality concluded were comparable to the aggravating circumstances specified by Georgia and Florida. After a defendant is convicted of capital-murder in Texas, a sentencing proceeding follows during which the jury is required to answer three questions based upon the evidence it has heard. For the death penalty to be imposed, the state must prove beyond a reasonable doubt that the answer to each question is yes. One of these questions, which in effect raise the issue of mitigating circumstances, focuses upon the character and record of the defendant. The jury is thereby asked to determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” In finding the Texas statute constitutional, the plurality strongly emphasized that the Texas Court of Criminal Appeals interpreted this question to permit the defendant to present to the jury whatever mitigating evidence he can adduce: “Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital-murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. ■ ****** “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” Id., 428 U.S. at 273, 276, 96 S.Ct. at 2957-58. We thus conclude that what is now constitutionally required with regard to the scope of the evidence in mitiga tion which may be considered by the jury is essentially similar to what had long been Pennsylvania law in capital cases. As Mr. Justice (later Chief Justice) Benjamin R. Jones put it in Commonwealth v. Green, 396 Pa. 137, 148, 151 A.2d 241, 247 (1959): “The imposition of the death penalty by a judicial tribunal should be made only when it is the sole penalty justified both by the criminal act and the criminal himself and then only after a full and exhaustive inquiry into both the criminal act and the criminal himself. Time and again in referring to the duty of juries in fixing the penalty between death and life imprisonment we have insisted that the jury exercise its discretion only after it has considered all the evidence, culpatory and exculpatory, incriminating and extenuating, including what manner of man the criminal is and has been.” [Citations omitted.] [Emphasis in original.] Thus, in our view, in order to protect a defendant from cruel and unusual punishment in a capital case, it is now necessary both that the aggravating circumstances that will justify the imposition of the death penalty be clearly defined for the sentencing authority, and that the sentencing authority be allowed to consider whatever mitigating evidence relevant to his character and record the defendant can present. IV The Commonwealth argues that section 1311 may be liberally interpreted to permit the defendant to introduce a broad range of mitigating evidence at the penalty hearing. Section 1311(c) provides that “the court shall proceed to receive such additional evidence not previously received from the trial as may be relevant and admissible upon the question of aggravating and mitigating circumstances,” but section 1311(d) expressly limits mitigating circumstances to “the following.” Even if this language can be construed as permitting the defendant to present a broad range of mitigating evidence bearing upon his character and record, therefore, clearly the jury, absent consent or duress, can only consider such evidence, or any other relevant evidence presented at trial, to the extent it shows the defendant’s age, youth, or lack of maturity at the time of the killing. We thus conclude that, even if it is liberally interpreted, section 1311, unlike the Texas statute approved in Jurek, does not permit the sentencing authority in making its ultimate decision to focus sufficiently upon the entire character and record of the offender. In addition, the Commonwealth argues that, even if section 1311 does not permit sufficient consideration of the character and record of the offender, Moody lacks standing to complain since he offered no evidence of mitigating circumstances other than that of his asserted youth and lack of maturity. The record reveals, however, that Moody’s counsel prior to the penalty hearing did object to the insufficient consideration of mitigating circumstances permitted by section 1311. Furthermore, this Court has previously indicated that a person sentenced to death under a statute unconstitutional on its face has standing to complain regardless of the actual proceedings in his case. See Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975); Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975). We thus conclude that Moody does have standing to attack the constitutional deficiencies of section 1311. Finally, the Commonwealth notes that the plurality of the United States Supreme Court has expressly reserved the question of whether a prisoner already serving a life sentence may be subject to a mandatory death penalty. See Harry Roberts v. Louisiana, supra. The Commonwealth therefore contends that, since Moody was serving seven consecutive life sentences at the time of Price’s killing, he may constitutionally be sentenced to death regardless of any general constitutional defects in section 1311 relating to mitigating circumstances. The question, however, of a mandatory death sentence for a murderer already serving a life sentence is not properly before us, since section 1311 does not make death mandatory in such circumstances. Accordingly, for the reasons stated above, the order of the trial court is affirmed. ROBERTS, J., took no part in the consideration or decision of this case. NIX, J., filed a dissenting opinion. . “Procedure at sentencing hearing. — After such verdict is recorded and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received from the trial as may be relevant and admissible upon the question of aggravating and mitigating circumstances and shall permit such argument by counsel, and deliver such charge thereon as may be just and proper in the circumstances. Aggravating circumstances must be proved beyond a . reasonable doubt. Mitigating circumstances must be proved by a preponderance of the evidence. The jury shall then retire and consider the aggravating and mitigating circumstances and render such verdict respecting them as they shall agree upon. A failure of the jury to agree upon the aggravating and mitigating circumstances shall not be held to impeach or in any way affect the validity of the verdict already recorded, and whenever the court shall be of the opinion that further deliberation by the jury will not result in an agreement upon the aggravating and mitigating circumstances, it may, in its discretion, discharge the jury from further consideration thereof, in which event if no retrial is directed, the court shall sentence the defendant to life imprisonment upon the verdict theretofore rendered by the jury and recorded as aforesaid and the jury shall be so informed prior to their deliberations. The court shall impose the sentence so fixed as in the other cases.” . Section 1311(d)(1)(ix) lists the following statutory aggravating circumstance: “The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.” Moody’s previous murder convictions had been based upon the deaths of seven persons in the highly publicized Hanafi Muslim killings of January 16, 1973. His confinement in Holmesburg Prison at the time of the instant murder was unrelated to these convictions. During the instant trial, however, the Commonwealtli presented evidence that the victim, Price, had given a statement to the police and grand jury testimony implicating Moody in the District of Columbia killings, and that Moody had been aware that Price had implicated him. . 18 Pa. C.S.A. § 1311(d)(1)(viii). . Section 1311(d)(2)(i) lists as mitigating “[t]he age, lack of maturity, or youth of the defendant at the time of the killing.” . “Aggravating and mitigating circumstances. — If a murder of the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death. If a murder of the first degree is not accompanied by any of the following aggravating circumstances or is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment . . . .” 18 Pa. C.S.A. § 1311(d). . “Guilty pleas and non-jury trials. — In cases of pleas of guilty, or trial by court, the court shall impose sentence in accordance with Rules of Criminal Procedure as promulgated by the Supreme Court of Pennsylvania.” 18 Pa. C.S.A. § 1311(e). . See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 501(b); 17 P.S. § 211.501(b) (Supp. 1977-78). The only issues involved in the present appeal are those relating to the constitutionality of the death penalty. The Attorney General of Pennsylvania has intervened and filed a brief in support of the Commonwealth’s position; the American Civil Liberties Union, greater Philadelphia branch, and the American Civil Liberties Foundation of Pennsylvania have filed an Amicus Curiae brief in support of Moody. . Moody also contends that imposition of the death penalty is a per se violation of Art. I, § 13, of the Pennsylvania Constitution, which proscribes the infliction of “cruel punishments.” This contention was not advanced below and is asserted on appeal in response to the appellant Commonwealth’s argument that the death penalty does not per se violate the Pennsylvania Constitution. In view of our disposition of this appeal, we do not reach this issue. . Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701. At the time it decided Furman, the Supreme Court in fact vacated two death sentences imposed pursuant to this statute. Phelan v. Brierley, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972); Scoleri v. Pennsylvania, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972). See Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975). . Act of December 6, 1972, P.L. 1482, No. 334, § 1311, added March 26, 1974, P.L. 213, No. 46, § 3, imd. effective. On December 30, 1974, the section was reenacted without change and made part of the new Sentencing Code. Section 1102 of the Crimes Code, enacted on December 6, 1972, and effective on June 6, 1973, had merely provided that “[a] person who has been convicted of a murder of the first degree shall be sentenced to death or to a term of life imprisonment” without establishing any procedures or standards to be utilized in determining the appropriate sentence. 18 Pa. C.S.A. § 1102. On March 26, 1974, section 1102 was amended to conform with the new section 1311. 18 Pa. C.S.A. § 1102 (Supp. 1977-78). . Because the per curiam decision in Furman merely held that the statutes there at issue were unconstitutional, with the five justices who concurred in the result each writing a separate opinion and not joining in any of the others, the full meaning and scope of that decision were difficult to discern. Of the approximately 35 states that enacted new death-penalty legislation in response to Furman, over half adopted mandatory death penalties for specified crimes, while the rest adopted statutes providing for various forms of limited discretion. Rockwell v. Superior Court, 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101, 1118 (1976) (Concurring Opinion, Clark, J.). . Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Stanislaus Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). . In Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), a majority of the Court concluded that death in all circumstances is cruel and unusual punishment for the crime of rape. . See Comment, Resurrection of Capital Punishment — The 1976 Death Penalty Cases, 81 Dickinson Law Rev. 543, 564-66 (1977). In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), a majority of the Supreme Court had held that the absence of sentencing standards or bifurcated proceedings in capital cases did not violate due process. But see Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in which at least five justices concluded that the failure of a trial judge to make available to the defendant and his counsel a confidential sentencing report which the judge utilized in determining that the death penalty should be imposed violated due process. . We assume, as did the trial court, without deciding that “age” in the statute means “old age” because of its juxtaposition with “youth.” . The Commonwealth also points out that the sentencing scheme of section 1311 derives from the'Model Penal Code, which was quoted with approval by the Gregg plurality, and urges that the mitigating circumstances in section 1311 are essentially the same as those found in the Model Code. The Commonwealth, however, overlooks the fact that the Model Code not only specifies a broader range of mitigating circumstances, but it also permits the jury to consider additional evidence in mitigation as well as that relevant to the specified mitigating circumstances. It forbids imposition of the death penalty unless the jury finds a specified aggravating circumstance and “that there are no substantial mitigating factors.” Model Penal Code, § 201.6 (Tentative Draft No. 9, 1959). . In non-capital cases, compare Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). . In contrast, the Act of 1939 as amended provided that “the court shall proceed to receive such additional evidence not previously received in the trial as may be relevant and admissible upon the question of the penalty to be imposed upon the defendant.” [Emphasis added.] 18 P.S. § 4701. . Contrary to implications in the dissenting opinion of Mr. Justice Nix, we do not assume that evidence of an offender’s previous history and background would be irrelevant to determining his maturity or lack thereof at the time of the killing. The problem is that, in making its ultimate determination of whether or not mitigating circumstances exist, the jury is restricted by the statute to his status or situation at the time of the killing. We cannot presume that the jury will nullify its instructions and disregard the law as to the circumstances it may find mitigating. Of course, if the penalty determination were to depend upon “a particular jury’s willingness to act lawlessly,” the arbitrariness and lack of standards in sentencing condemned in Furman would remain. Woodson v. North Carolina, supra, 428 U.S. at 303, 96 S.Ct. at 2991. . A comparable situation was presented to the Court of Appeals of Maryland when it found that state’s death-penalty statute invalid: “It is true, of course, that [the statute] permits elements of mitigation to be presented to the jury, i. e., proof of the defendant’s age and of the motive for the act in the context of resolving the question of the proximate cause of the victim’s death. We are unable to conclude, however, that the presentation of these two elements requires the sentencing authority to focus on the specific circumstances of the crime and the particular characteristics of the offender to the extent constitutionally required by the controlling Supreme Court decisions. That Blackwell was afforded an opportunity to present, and did present, broad circumstances of mitigation to the jury hardly suffices as the measure of the statute’s constitutionality; the jury was neither required nor permitted by the statute to weigh or objectively focus on Blackwell’s character and record before returning its verdict and causing the death sentence to be imposed upon him.” Blackwell v. State, 278 Md. 466, 473, 365 A.2d 545, 549 (1976). See also Rockwell v. Superior Court, 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101 (1976). But see State v. Bell, 48 Ohio St.2d 270, 358 N.E.2d 556 (1976), cert. granted 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976), cert. denied 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977) . . We note also that Moody was not serving a Pennsylvania life sentence at the time of Price’s killing, and that at the time of his conviction instantly his sentences in the District of Columbia were still on appeal.

OPINION OF THE COURT FLAHERTY, Justice. We granted allocatur in this case to review the application of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) to a matter where, on the last day to commence an action for personal injuries, plaintiff filed a praecipe for writ of summons but, through plaintiff’s counsel’s inadvertence, service of the writ could not be effected within 30 days of its issuance. Plaintiffs in the original action, appellants herein, seek damages in connection with a slip and fall which allegedly occurred on February 2, 1980. In compliance with the two-year limitation on commencement of actions for personal injury, 42 Pa.C.S.A. § 5524(2), plaintiffs’ counsel filed a praecipe for writ of summons with the Prothonotary of Beaver County on February 2, 1982, the last permissible day under the statute. Plaintiffs’ counsel paid the Prothonotary for issuance of the writ and the writ issued the next day. Although plaintiffs’ counsel intended to immediately instruct and pay the sheriff for service, he misplaced the file. Eight or nine days later, the file was found and returned to plaintiffs’ counsel who then forgot to take necessary steps to effectuate service of the writ. The writ was reissued and the sheriff paid on March 11, 1982, and personal service on all defendants was made within the next two weeks. Defendants, appellees herein, filed preliminary objections raising the statute of limitations. They argued that filing the praecipe could not toll the statute of limitations where plaintiffs failed to instruct and pay the sheriff for service in accordance with local practice. In response, plaintiffs’ counsel filed a brief challenging the propriety of defendants’ raising the statute of limitations in preliminary objections, and an affidavit explaining the reason for the delay in paying the sheriff for service. There is no suggestion, of record or otherwise, that plaintiffs contemplated additional evidentiary proceedings prior to disposition of defendants’ preliminary objections. The Court of Common Pleas sustained defendants’ preliminary objections and dismissed plaintiffs’ action. A three judge panel of Superior Court affirmed without opinion. Farinacci v. Beaver Authority, 339 Pa.Super. 623, 488 A.2d 1169 (1984).. Before reaching the substantive issue regarding application of the rule in Lamp, supra, we turn our attention to the procedural irregularities in this matter. Firstly, in this case, the defense of the statute of limitations was not properly raised in preliminary objections, but in new matter. This case does not involve the bar of a nonwaiva ble statute of limitations which was properly raised by preliminary objections under Pa.R.C.P. 1017(b)(4). See, Id. 469 Pa. at 470-471, 366 A.2d at 885; Sayne v. Wylie, 296 Pa.Super. 134, 137, 442 A.2d 694, 696 (1981); Pa.R.C.P. 1030. Neither does this case fall within the ambit of Pa.R.C.P. 1017(b)(1) which allows attacks on the “former service of a writ of summons” via preliminary objections as the Court of Common Pleas supposed. Existence of a statute of limitation which cuts off a remedy does not constitute a defect in the “form or service of a writ of summons” contemplated by Pa.R.C.P. 1017(b)(1) and subject to attack by preliminary objections. The proper method for challenging the propriety of defendants’ preliminary objections raising the statute of limitations is by preliminary objections to defendants’ preliminary objections. See, Stein v. Richardson, 302 Pa.Super. 124, 139, 448 A.2d 558, 565 (1982); 2 GOODRICH AMRAM 2d, § 1017(b):5, 43-44 (1976). Plaintiffs, however, did not so challenge defendants’ preliminary objections. Rather, plaintiffs filed a brief. Although this procedure was erroneous, Common Pleas Court considered the arguments thus presented, and Superior Court expressly approved the lower court’s decision. We therefore will review the decision of the Court of Common Pleas. Lamp v. Heyman, supra, changed the prior practice of automatically tolling the statute of limitations after praecipe for writ of summons for the same period of time within which the original action could be brought, by imposing the additional requirement that plaintiffs “[refrain] from a course of conduct which serves to stall in its tracks the legal machinery [they have] just set in motion.” Id. 469 Pa. at 478, 366 A.2d at 889. “Depending upon the process obtaining in a particular county, this can be accomplished by instructing either the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering it to the sheriff for service, or by neglecting to pay the sheriff his fee.” Id., 469 Pa. at 472, 366 A.2d at 886 [Emphasis supplied]. Plaintiffs are required to comply with local practice to ensure, insofar as they are able, prompt service of process. A fair reading of the opinion of the Court of Common Pleas indicates that the local practice in Beaver County is for the Prothonotary to deliver the writ to the sheriff, and for plaintiffs’ counsel to deliver to the sheriff instructions and payment for service before the writ is served. See also, Weiss v. Equibank, 313 Pa.Super. 446, 449, 460 A.2d 271, 273 (1983). As stated supra, after plaintiffs’ counsel misplaced the file, he neglected for approximately one month to deliver the requisite instructions and payment to the sheriff. Common Pleas Court held that this neglect violated the rule announced in Lamp. Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action. Although this good-faith requirement is not apparent from a reading of the rule itself, we interpret the rule mindful of the context in which it was announced. The purpose for the rule, as stated in Lamp, “is to avoid the situation in which a plaintiff can bring an action, but by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.” 469 Pa. at 478, 366 A.2d at 889 [Emphasis supplied]; see also Jacob v. New Kensinqton Y.M.C.A., 312 Pa.Super. 533, 459 A.2d 350 (1983). In each case, where noncompliance with Lamp is alleged, the court must determine in its sound discretion whether a good-faith effort to effectuate notice was made. Thus, evidentiary determinations are required. Instantly, plaintiffs submitted an affidavit which the court considered in rendering its decision. Defendants agree that this affidavit sets forth all relevant facts and that no further evidentiary proceedings are required. Based on the affidavit, the Court of Common Pleas found that eight or nine days of the delay was attributable to counsel’s simply misplacing the file. Such is not necessarily inconsistent with a finding of good faith. The remaining four weeks’ delay is attributable only to counsel’s faulty memory. As plaintiffs have failed to provide an explanation for counsel’s inadvertence which could substantiate a finding that plaintiffs made a good-faith effort to effectuate service of the writ, we are constrained to hold that the order of the Court of Common Pleas granting defendants’ preliminary objections and dismissing plaintiffs’ action was not an abuse of discretion, and was therefore proper. Affirmed. ZAPPALA, J., files a dissenting opinion in which LARSEN and McDERMOTT, JJ., join. . Although they are included in the reproduced record, neither the brief nor affidavit are part of the record on appeal, see Pa.R.A.P. 1921. . Although plaintiffs now seek alternative relief in the form of an opportunity to produce additional evidence, their request is in conjunction with an argument that the issue before the court is properly determined at the summary judgment stage, and not on preliminary objections. This argument is without merit. . The practice of raising nonwaivable statute of limitations by preliminary objections was changed by amendment of Pa.R.C.P. 1017(b)(4), effective July 1, 1984.

Opinion by Mr. Justice Stern, In the waist and dress industry in Philadelphia collective bargaining agreements have resulted in industrial peace and the maintenance of harmonious relations between employers and employees for several years. The present case does not involve the determination of any substantive rights of the parties to such agreements. As the record is here presented the only question is in regard to the proper procedural method of effecting their enforcement. Appellees, International Ladies’ Garment Workers’ Union and the Joint Board of Waist and Dress Makers’ Union of Philadelphia, affiliated with the International Ladies’ Garment Workers’ Union, representing employees in the needlework trade, entered into a written agree ment on February 2, 1937, with Philadelphia Waist and Dress Manufacturers’ Association, an organization of employers engaged in the manufacture of blouses, waists, dresses and other women’s apparel in Philadelphia. In making this contract, the Association acted on behalf of its members. Appellant partnership, Gold-stein & Levin, operating a factory in Philadelphia for the manufacture of silk dresses, was, and still is, such a member, and, by the terms of the by-laws of the Association, would be bound by this contract in the absence of any agreement or understanding between themselves and appellees to the contrary. The contract, which aimed to stabilize conditions in the industry and was to be in force for three years, made provision against lockouts and strikes, and contained a covenant that “No member of the Association shall move his factory or factories outside of the City of Philadelphia during the life of this agreement.” All complaints, disputes and grievanees between the parties involving questions of interpretation or application of any clause of the agreement, or relation between the parties and their respective members, were, if the representatives of the Union and the Association failed to agree, to be submitted to an impartial chairman named in the agreement, and his decision was to be binding. It is the contention of appellees that on or about July 4, 1937, Goldstein & Levin moved their factory from Philadelphia to Johnstown and began manufacturing there the same kind of dresses they had been making at their Philadelphia plant. If appellants were parties to the contract in question, and if they violated it, appellees undoubtedly could have compelled a common-law arbitration under the terms of the agreement, and, if the award made called for injunctive relief, could have enforced it by appropriate proceedings in equity. “The law is definitely settled that where parties to an executory contract agree that all disputes, arising in relation thereto, shall be first submitted to the arbitrament of one or more named persons, they are bound by the terms of submission . . . ”: Gowen v. Pierson, 166 Pa. 258, 264; Bashford v. West Miami Land Co., 295 Pa. 560, 568. Instead of proceeding on the basis of common-law arbitration, however, appellees invoked the Pennsylvania Arbitration Act of April 25, 1927, P. L. 381, which unfortunately, as will hereinafter be pointed out, is not broad enough in its scope, and apparently was not designed, to cover arbitration proceedings where the remedy sought and awarded is a mandatory decree. Moreover, even had the act been available, one of its most important provisions was disregarded in these proceedings. Appellees presented their complaint to the impartial chairman, who found that Goldstein & Levin had moved their factory from Philadelphia, as charged by appellees, and made an award directing them (a) to reinstall within one week thereafter the machinery removed from their Philadelphia plant; (b) to reemploy the workers formerly employed at the Philadelphia plant; and (c) to continue to be bound by the agreement between the Union and the Association for the duration thereof. Appellees then filed a petition in the court below, under the Act of 1927, for confirmation of this award. Appellants, on the other hand, filed a petition alleging that they were not parties to the contract between the Union and the Association, but had entered into a special written agreement of their own with the Union on September 4, 1936, which did not provide for any general arbitration by the impartial chairman, and had expired by its terms on June 30, 1937; that it was understood and agreed between them and the Union when the February agreement was made that it was not to apply to them; that they had not in fact moved their factory from Philadelphia to Johnstown but had operated the plant at Johns-town for the manufacture of cotton dresses since October, 1936, this plant being conducted under an agreement made with the Union on April 10, 1937; that their business in Philadelphia had been extremely unprofitable and they had discontinued it entirely. They petitioned that the award of the arbitrator be vacated. Hearings upon the petitions to confirm the award and to vacate it were conducted by the court, but, finding that the testimony before the arbitrator had not been given under oath, as required by the Act of 1927, the court referred the case back to the arbitrator for a hearing de novo. Accordingly the arbitrator held another hearing, at which Goldstein & Levin appeared specially by counsel to object to the arbitrator’s jurisdiction, and requested him to refer to the court for determination the factual issue as to whether they were bound by the contract of February 2, 1937, between the Union and the Association. The arbitrator refused to do this. He made a finding that Goldstein & Levin were parties to that contract, and therefore subject to his authority; on the merits of the case he confirmed his previous award. Appellees again filed a petition praying confirmation of this award, while appellants filed a petition requesting the court to hear and determine preliminarily the issue as to the February agreement. The court held a hearing on these two petitions, together with the former petition of appellants to vacate the award, and handed down an opinion holding that the court was concluded by all the findings of the arbitrator, both that Goldstein & Levin had moved their plant from Philadelphia to Johnstown and that they were bound by the February contract containing the arbitration provision. As to the question of the removal of the factory, the ruling of the court was clearly right. An arbitrator, in the absence of any agreement limiting his authority, is the final judge of both law and fact, and his award will not be reviewed or set aside for mistake in either; otherwise arbitration proceedings, instead of facilitating the settlement of controversies, would serve but to delay the final determination of the rights of the parties: Pierce Steel Pile Corporation v. Flannery, 319 Pa. 332, 339. But as to the question whether appellants were parties to the February agreement, the ruling of the court was just as clearly wrong. The court struck out all the testimony in regard thereto, and in its opinion said: “The question involved [as to the contract] was one of fact, and the decision of the Arbitrator thereof cannot be reviewed by us. . . .We have no power to reverse the findings of the Arbitrator on questions of fact except for actual fraud, deception or a mistake which is not merely one of judgment. . . . It is clear that this Employer’s case rests upon the single question of fact whether it was a party to and bound by the agreement between the Union and the Association. We have examined the testimony presented before the Arbitrator and although there was a conflict of evidence upon this point, there was ample to support his finding and our power to set aside his award only arises when it is unsupported by any testimony whatsoever, or was induced by fraud. It was not contended that the action of the Arbitrator was fraudulent or that he was imposed upon by fraud, and his finding therefore is binding upon all parties.” Accordingly the court entered a decree dismissing appellants’ petition to hear and determine the question whether they were bound by the contract of February 2, 1937, and also their petition to vacate the arbitrator’s award, granting the petition of appellees to confirm the award, and entering judgment upon the award “in accordance with the terms thereof.” Even assuming for the moment that the Arbitration Act of 1927 was applicable to the controversy, the proceedings were fatally defective because of the refusal of the court itself to determine the initial question as to whether appellants were parties to the arbitration agreement. The Act of 1927, under which appellees proceeded, provides, in section 3, that if one of the parties refuses to perform under a written agreement for arbitration, the other party may petition the court for an order to show cause why such arbitration should not pro ceed in the manner provided for in the agreement, and the court shall thereupon hear and determine the matter, and, “upon being satisfied that the making of the agreement for arbitration ... is not at issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement . . . be at issue, the court shall proceed summarily to the trial thereof. If a jury trial be waived by the parties, the court shall hear and determine such issue, or, if a jury trial be not waived, the court shall direct that a jury trial of such issue shall be had at the earliest possible date. If the jury, or the court if a jury trial be waived, find that no agreement in writing for arbitration was made, . . . the proceeding shall be dismissed. If the jury, or the court, if a jury trial be waived, find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.” Referring to this provision, Mr. Justice Maxey said, in Katakura & Co., Ltd., v. Vogue Silk Hosiery Co., 307 Pa. 544, 549: “If the defendant by its answer raises an issue as to the making of the arbitration agreement pleaded by the plaintiff or as to the failure, neglect or refusal to perform the same, the court having jurisdiction shall proceed to the trial thereof, as provided in section 3 of the Arbitration Act. On these issues or any of them, the parties are entitled to a jury trial if it is not waived.” Appellants having raised the issue as to whether they were parties to the contract under which the arbitration was to be conducted, that question had to be preliminarily determined by the court (appellants having waived a jury trial), and the arbitrator could not, in contravention of the statute, determine his own status and jurisdiction by finding that appellants were bound by the contract under which he purported to act. It may be, of course, wholly untrue that, as contended by appellants, there was an agreement or understanding with the Union that appellants were not to be bound by the contract of February 2, 1937, but only by that of September 4, 1936 (which appellees assert was intended to cover merely the adjustment of a particular dispute then pending), but appellants not only had a right under the statute but even a constitutional right to have that issue determined by a judicial tribunal. It was said by Cardqzo, C. J., in Finsilver, Still & Moss, Inc., v. Goldberg, Maas & Co., Inc., 253 N. Y. 382, 389: “Arbitration presupposes the existence of a contract to arbitrate. If a party to a controversy denies the existence of the contract and with it the jurisdiction of the irregular tribunal, the regular courts of justice must be open to him at some stage for the determination of the issue. The right to such a determination, either at the beginning or at the end of the arbitration or in resistance to an attempted enforcement of the award, is assured by the Constitution as part of its assurance of due process of law.” Instead, therefore, of refusing to hear testimony on this issue and holding itself bound by the findings of the arbitrator in regard thereto, the court was obliged to consider the testimony and determine this question before an award could be made by the arbitrator or enforced by the court. Apart from the fatal failure to observe the provision of the Arbitration Act of 1927 in this respect, the fact is, as already indicated, that that act is not adaptable to controversies in which the relief sought is in the nature of a mandatory decree. The act provides, section 14, that “The arbitration shall be docketed in the prothonotary’s office as if it were an action at law in the prothonotary’s office, with the moving party as plaintiff and the other parties as defendant or defendants. The judgment so entered shall have the same force and effect, in all respects as, and be subject to, all the provisions of law relating to a judgment in an action at lawand it may be enforced as such in accordance with existing law.” Arbitration acts almost identical with that in Pennsylvania, or at least closely similar thereto, exist in practically all of the states, but, so far as research discloses, only in the Pennsylvania and Rhode Island statutes are the words “at law” added as a limitation to the effect of a judgment confirming the arbitrator’s award; in most of the acts provision is made that awards shall have the effect not only of judgments in actions at law, but also of decrees in equity or orders in any form of action whatever. For some reason which may have seemed wise to the legislature, our statute was limited in the manner pointed out, and unless and until it is amended there does not exist in Pennsylvania any statutory provision for the enforcement of arbitration awards other than those which could be made the subject of judgments in actions at law. At the risk of repetition, however, attention is again directed to the fact that the enforcement of arbitration clauses in collective bargaining agreements, and of awards made thereunder, are not dependent upon any Act of Assembly. The Arbitration Act of 1927 did not displace old-time arbitration under the common law: Isaac v. Donegal & Conoy Mutual Fire Insurance Co., 301 Pa. 351, 357, 358. In a proceeding by bill in equity the court can determine whether appellants were parties to the agreement between the Union and the Association containing the provision for arbitration, and can specifically enforce any award that the arbitrator may make thereunder to the extent to which it could compel specific performance had the award been contractually agreed upon by the parties themselves. If, as contended by appellants, it cannot decree that they must move their plant back to Philadelphia and there, over a given number of years, continue their capital investment, hire a certain number of employees, and carry on their business operations irrespective of the losses they may suffer thereby, it has at least the power, upon a proper showing, to enforce their obligation to the extent of a negative decree enjoining them from pursuing at any other place than Philadelphia the business which they conducted there when the agreement was entered into. Order and judgment of the court below reversed, without prejudice to appellees as to other proceedings under the contract in controversy. In Palmer & Pierce, Inc., v. Producers’ Mercantile Corporation, 186 N. Y. Supp. 369, and In re H. F. Gresham & Co., Ltd., 195 N. Y. Supp. 106, it was held that under the New York arbitration law, which in that respect was then similar to our own, either party was preliminarily entitled to a jury trial (unless waived) to determine whether there was an agreement for an arbitration of differences under the alleged contract. In Farulla v. Freundlich, 274 N. Y. Supp. 70, 279 N. Y. Supp. 228, relied upon by appellees, the court heard testimony and itself decided the question as to whether the parties were bound by the contract. In Dubinsky v. Blue Dale Dress Co., 292 N. Y. Supp. 898, also invoked by appellees, no question was raised as to the existence of the arbitration agreement. In the New York act the judgment on the award has “the same force and effect, in all respects as, and is subject to all the provisions of law relating to, a judgment in an action” New York Civil Practice Act, section 1463 (now section 1466 under the amendatory act of May 17, 1937, Laws of 1937, ch. 341). It is for this reason that the New York eases relied upon by appellees are not apposite to the present proceedings. The statutes in some states, however, such as Delaware, Iowa, Nebraska and Oregon, provide that the judgment “shall have the same force and effect as the verdict of a jury.” Appellants must, of course, have the opportunity to present to the arbitrator their evidence on the merits of the controversy, which they forbore exercising in this case because of their contention that he was without any authority to arbitrate, and because appellees were proceeding under the Arbitration Act of 1927, which required that question to be decided in limine by the court.

OPINION Justice CASTILLE. The issue on this appeal is whether the Superior Court erred in applying Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), a decision in which this Court unanimously held that the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., “provides the exclusive remedy for post-conviction claims seeking restoration of appellate rights due to counsel’s failure to perfect a direct appeal,” id. at 569-70, in a situation where appellant forwarded just such a claim, outside the framework of the PCRA and after the PCRA filing deadline expired, but before the decision in Lantzy was filed. Appellant argues that Lantzy established a new rule of procedure that cannot be applied “retroactively” to a case such as his and, thus, he is entitled to pursue an extra-PCRA remedy. For the reasons that follow, we hold that the Superior Court properly applied both the provisions of the PCRA and Lantzy, a decision which followed those provisions, in holding that appellant was not entitled to pursue reinstatement of his appellate rights nunc pro tunc outside the PCRA. Accordingly, we affirm. The widowed victim in this case, who suffers from multiple sclerosis, knew appellant from his frequent work-related visits to her Erie County home to service certain medical equipment that she relied upon. Appellant, correspondingly, knew that the victim was physically disabled. On September 6,1995, the victim admitted appellant into her home to service the medical equipment, but appellant, once inside, raped the victim, whose physical condition rendered her helpless to physically resist the assault. On January 18, 1996, appellant was charged with rape, indecent assault, and unlawful restraint. On May 5, 1997, appellant, in the face of the victim’s accusation as well as collected DNA evidence, entered a negotiated plea of nolo contendere to the rape charge. In exchange for the plea, the Commonwealth agreed to nolle prosse the additional charges. There was no agreement as to sentencing. Appellant did not move to withdraw his plea prior to sentencing. On June 11, 1997, appellant was sentenced to a six-to-twelve-year term of incarceration and a consecutive eight-year probationary term. The term of incarceration, though significantly less than the ten-to-twenty year statutory maximum, fell above the standard range of the sentencing guidelines. The trial court noted that an aggravated range guidelines sentence was warranted because appellant had selected a particularly vulnerable disabled victim and had violated a position of trust by raping her. At the time of sentencing appellant was advised of his post-sentencing rights, including his right to file post-sentencing motions, his right to appeal, and his continuing right to counsel. Appellant also signed a document which explained his post-sentencing rights, specifically acknowledging that he understood them. Appellant did not seek to withdraw his plea or to have his sentence reconsidered, nor did he file a direct appeal and thus, by operation of law, his sentence became final thirty days after its imposition, on July 11, 1997. See 42 Pa.C.S. § 9545(b)(3) (“a judgment becomes final at the conclusion of direct review ... or at the expiration of time for seeking the review”). The next docket activity occurred on April 7, 1998, when appellant filed a motion for transcripts and a motion “to grant credit for time on bond as custody time.” The trial court denied both motions on April 22, 1998. On June 17, 1998, appellant filed a pro se motion for leave to have his counsel withdrawn, which the trial court granted on June 22, 1998. On July 13,1998, appellant filed a pro se motion to require the filing of an Anders brief by appellate counsel. The trial court denied this motion, noting that appellant had already had counsel removed and, thus, he had no appellate counsel. Appellant moved for reconsideration, which was denied. On August 6, 1998, appellant filed a pro se motion to appeal nunc pro tunc in the Superior Court. The court denied the motion on August 24,1998. Also on August 24, appellant filed a motion to appeal nunc pro tunc in the trial court, which the trial court denied the same day. Appellant filed a motion for reconsideration in the trial court on September 10,1998, which was denied, and a motion for reconsideration in the Superior Court. The Superior Court treated the reconsideration motion as a timely notice of appeal from the trial court’s denial of nunc pro tunc relief and set a briefing schedule. The trial court subsequently filed an opinion, explaining that it denied the request for nunc pro tunc relief because the PCRA governed any such application. On appeal, appellant argued that he was entitled to reinstatement of his direct appellate rights nunc pro tunc because his plea lawyer allegedly refused to file a direct appeal despite appellant’s request that he do so. On September 1, 1999, a divided Superior Court panel affirmed the denial of nunc pro tunc relief. The panel majority’s memorandum opinion held that it did not need to address the nunc pro tunc appeal claim on the merits because appellant had failed to file a PCRA petition within the one-year time limitation after his judgment became final, as is required under that Act, and he therefore was time-barred from pursuing PCRA relief. See 42 Pa.C.S. § 9545(b). Citing our then-recent decision in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), which was filed on July 7, 1999, the panel majority noted that the PCRA is “the exclusive remedy for post-conviction claims seeking restoration of appellate rights after counsel’s failure to perfect a direct appeal.” Superior Court slip op. at 3. Since there was no avenue by which appellant could pursue his time-barred claim, the panel affirmed the order below. Judge Schiller dissented without opinion. After the ruling in this case, however, subsequent published decisions of the Superior Court, sitting en banc, held that our decision in Lantzy does not apply “retroactively” to cases in which the extra-PCRA request for a nunc pro tunc appeal, premised upon counsel’s failure to file a requested appeal, was made prior to Lantzy being filed. See Commonwealth v. Hitchcock, 749 A.2d 935 (Pa.Super.2000) (en banc); Commonwealth v. Garcia, 749 A.2d 928 (Pa.Super.2000) (en bam) (petition for allowance of appeal pending). We granted review to examine whether appellant, who was denied nunc pro turn relief on an argument concerning the effect of Lantzy that was later accepted by the Superior Court en bam, is entitled to relief on grounds that Lantzy established a new procedural rule that cannot be retroactively applied to him. The matter has been ably briefed and argued, including argument on the validity of the retroactivity analysis that powered the decisions in Garcia and Hitchcock, Echoing the argument accepted by the Superior Court en banc in Garcia and Hitchcock, appellant contends that Lantzy’s holding that requests for reinstatement of appellate rights premised upon counsel ineffectiveness must proceed under the PCRA cannot apply to him because Lantzy was not decided until after he had already requested, and been denied, nunc pro turn relief in the trial court. Prior to this Court’s decision in Lantzy, appellant notes, the Superior Court had held that restoration of appellate rights nunc pro tunc outside the framework of the PCRA was available on claims such as his. Appellant contends that Lantzy was merely intended to “clarify the procedure” by which a defendant may challenge trial counsel’s stewardship in failing to appeal. Appellant does not dispute that the authoritative decision in Lantzy has now supplanted the Superior Court’s contrary line of authority. He claims, however, that Lantzy announced a “new” judicial rule “of a procedural nature,” which “marked a departure from Superior Court precedent,” precedent which he had properly relied upon in seeking nunc pro tunc relief outside the PCRA. Appellant argues that such a new rule should have prospective effect only. Finally, appellant notes that, since his case is “nearly indistinguishable” from Garcia and Hitchcock, he is entitled to the same relief that the Superior Court afforded those post-conviction litigants. The Commonwealth responds that the Superior Court correctly held that in an instance such as this, the sole and exclusive avenue for post-conviction collateral review and relief in Pennsylvania is the PCRA and, thus, the trial court had no power to fashion the extra-PCRA, nunc pro tunc relief appellant requested. The Commonwealth argues that Lantzy merely interpreted the existing requirements of the PCRA, which plainly states that it is the exclusive means for obtaining post-conviction review. Lantzy thus did not break with previous judicial authority, but reaffirmed a plain meaning interpretation of the PCRA that was recognized in Common wealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997) — which was decided well before the nunc pro tunc request appellant made in the case sub judice. The Commonwealth argues that, since the Lantzy “rule” was neither new nor a judicial rule of procedure, applying it here poses no legitimate question of retroactivity. In the Commonwealth’s view, Garcia, Hitchcock and similar cases are simply wrong to the extent they perceive a question of retroactivity. Because all post-conviction remedies are subsumed within the PCRA for claims that may be raised under the PCRA, the Commonwealth reasons, the question of whether relief for such claims may be pursued outside the PCRA’s framework is not one of procedure, but of jurisdiction. Since the courts below lacked authority to devise alternate avenues of post-conviction review for the claim at issue here, the Commonwealth concludes, the denial of extraPCRA review to appellant must be affirmed. We agree with the Commonwealth that Lantzy involved an interpretation of the plain language of the PCRA and that the statute must apply here irrespective of whether appellant sought extra-PCRA review before or after the decision in Lantzy was announced. Section 9542 of the PCRA, which defines its “scope,” provides in pertinent part as follows: This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.... 42 Pa.C.S. § 9542 (emphasis supplied). This provision setting forth the exclusivity of the PCRA as the means for collaterally attacking criminal convictions was enacted as part of the original PCRA in 1988. Interpreting § 9542 according to its plain language, this Court has consistently, repeatedly and unequivocally recognized — both before and after Lantzy was decided — the exclusivity of the PCRA in the arena in which it operates. Lantzy, 736 A.2d at 570; see also Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232, 1235 (2001) (plain language of § 9542 demonstrates General Assembly’s clear intent that claims that could be brought under PCRA must be brought under that Act); Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 586 (1999) (by its own language, and by judicial decisions interpreting that language, PCRA is sole means for obtaining state collateral relief for claims cognizable under PCRA); Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242, 1251 (1999) (PCRA subsumes remedy of habeas corpus with respect to remedies offered under PCRA); Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718, 721 (1997) (PCRA “specifies that it is the sole means of obtaining collateral relief, and that it supercedes common law remedies”) (emphasis in original). Thus, when the Court in Lantzy held that claims seeking restoration of appellate rights due to counsel’s alleged failure to perfect a requested direct appeal are cognizable under the PCRA, and therefore are subject to the PCRA’s exclusivity provision, it was not creating a new judicial rule of procedure, but instead was interpreting and applying the plain language of the statute. Moreover, the interpretation was not unprecedented, but was fully in keeping with this Court’s prior interpretations of the plain language of the PCRA. Since our decision in Lantzy was published, but after this case was briefed, this Court had further occasion to consider the exclusivity of the PCRA for claims seeking restoration of appellate rights premised upon the alleged ineffective assistance of counsel. In Commonwealth v. Hall, we reversed a Superior Court panel which had held that nunc pro tunc relief was available upon such a claim outside the framework of the PCRA. In reversing, this Court did precisely what appellant claims the Superior Court panel in this case erred in doing— ie., we “retroactively” applied Lantzy to a case where the nunc pro tunc request had been made before Lantzy was decided. Our reasoning in Hall was as follows: Appellee, like the defendant in Lantzy, sought restoration of his direct appeal rights nunc pro tunc premised upon his trial counsel’s alleged ineffectiveness. Since such a claim is cognizable under the PCRA, as we held as a matter of statutory interpretation in Lantzy, the trial court had no residual common law or statutory authority to entertain the claim except under the strictures of the PCRA. 771 A.2d at 1236. We note that, although Hall “applied” Lantzy to a case that arose before the decision was announced, no claim was forwarded in Hall that such an application of Lantzy would be unlawfully retroactive, nor did this Court sua sponte speak to the then-extant holdings in Garcia and Hitchcock that Lantzy should not be applied retroactively. The question of Lantzy retroactivity is squarely joined in this case and, for the reasons that follow, we hold that application of Lantzy to petitioners who sought nunc pro tunc relief before that case was decided does not operate in an unlawfully retroactive fashion. Essential to appellant’s argument on retroactivity is his claim that the decision in Lantzy represented a change in the law, i.e., that the case fashioned a new “rule” of procedure. In holding that Lantzy could not apply retroactively, the Superior Court in Hitchcock and Garcia took a similar approach, as it cited to cases which examined the retroactive effect of judicial decisions announcing rules governing the conduct of criminal proceedings, and characterized Lantzy as just such a decision which “overruled prior caselaw and announced a new principle of law.” Hitchcock, 749 A.2d at 937-38; Garcia, 749 A.2d at 931-32. But both appellant and the Superior Court have overlooked the fact that, in deciding Lantzy, this Court was not fashioning a judicial rule of criminal or post-conviction procedure to decide the case. Instead, this Court construed the terms of a statute, the PCRA. As Madame Justice Newman noted in her recent unanimous opinion in Fiore v. White, 562 Pa. 634, 757 A.2d 842, 847 (2000), “[n]ot every opinion creates a new rule of law.” This is particularly so when the opinion involves the construction of a statute, and it either adopts a view of the statute “which was not wholly without precedent,” id.; see also McCloskey v. WCAB, 501 Pa. 93, 460 A.2d 237, 239 n. 3 (1983) (decisions that do not “articulate a new rule but merely rel[y] upon a statutory interpretation which [is] not wholly without precedent, ... are treated as relating back to the original statute because they are nothing more than interpretations of existing legislation”), or it involves this Court’s first opportunity to construe the disputed provision. Fiore, 757 A.2d at 848. With respect to the latter circumstance, which was the circumstance facing the Court in Lantzy, the Fiore Court noted: There can be no change to statutory law when there has been no amendment by the legislature and no prior decision by this Court. Only the legislature has the authority to promulgate legislation. Our role is to interpret statutes as enacted by the [General] Assembly. We affect legislation when we affirm, alter, or overrule our prior decisions concerning a statute or when we declare it null and void, as unconstitutional. Therefore, when we have not yet answered a specific question about the meaning of a statute, our initial interpretation does not announce a new rule of law. Our first pronouncement on the substance of a statutory provision is purely a clarification of existing law. Id. See also Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (“judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Buradus v. General Cement Prods. Co., 356 Pa. 349, 52 A.2d 205, 208 (1947) (“[i]n general, the construction placed upon a statute by the courts becomes a part of the act, from the very beginning”) (emphasis in original). Although our authoritative interpretation of the PCRA in Lantzy differed from the intermediate appellate court’s view on the question of the cognizability of claims seeking reinstatement of direct appellate rights premised upon counsel ineffectiveness, our holding in Lantzy did not overrule, modify, or limit any previous case from this Court on the question. Moreover, the decision in Lantzy was premised, at least in part, upon this Court’s previous plain meaning construction of the exclusivity language in § 9542, a construction that factored strongly into the ultimate holding. As in Fiare, our interpretation of the statute as to PCRA cognizability and exclusivity constitutes its meaning from its inception. As such, it is apparent that the construction of the PCRA in Lantzy applies to appellant’s case, and there can be no legitimate complaint that application of Lantzy is unlawfully retroactive. To the extent Hitchcock; Garcia, and other decisions of the Superior Court hold otherwise, they are hereby disapproved. We turn now to appellant’s equitable argument that he allegedly relied upon the Superior Court’s pr e-Lantzy decisional law when he sought restoration of his appellate rights nunc pro tunc outside the framework of the PCRA, and that he should not be “penalized” for that reliance. Appellant’s equitable argument echoes that accepted by the Superior Court en banc that it would be “unjust” to apply Lantzy to post-conviction petitioners who allegedly relied upon that court’s pr e-Lantzy authority. See Hitchcock, 749 A.2d at 939; Garcia, 749 A.2d at 933. The injustice perceived by the Superior Court arises from the fact that a petitioner who sought relief outside the framework of the PCRA may be time-barred from invoking that Act, since the PCRA requires that all petitions be filed within one year of the date the judgment became final, unless one of three narrow exceptions applies. See 42 Pa.C.S. § 9545(b)(l)(i)-(iii). This perceived injustice cannot warrant the judicial creation of an extra-PCRA remedy for claims exclusively reserved by the statute. The PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act. In this regard, we note that this Court already has held that the PCRA’s time restrictions are not subject to equitable tolling. Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 590 n. 5 (2000); Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222-23 (1999). Moreover, as the Commonwealth notes, the decisions upon which appellant allegedly relied were not from this Court, and the pre-Lantzy legal landscape included Ahlbom, a controlling decision from this Court, and the language of § 9542 itself, both recognizing the exclusivity of the PCRA. There was nothing to prevent petitioner from filing both a PCRA petition and a non-PCRA petition, or from seeking alternative forms of review, so as to protect his rights under the PCRA, in light of this Court’s pronouncement on PCRA exclusivity, as well as the fact that this Court had not yet spoken on the specific question presented in Lantzy. Furthermore, the potential injustice perceived by the Superior Court is much narrower than asserted. Lantzy decided whether the underlying substantive claim here — i.e., that appellant was denied his right to direct appeal as a result of the ineffective assistance of his plea counsel — was one that was cognizable under, and exclusive to, the PCRA. Lantzy’s determination that such claims sound exclusively under the PCRA does not inherently aggrieve any post-conviction petitioner. Indeed, given the courts’ liberal construction of pro se pleadings, including pleadings under the PCRA, see Pa. R.Crim.P. 905 (governing amendment of PCRA petitions), a non-PCRA petition filed within one year of the judgment becoming final could and should be treated as one sounding under the PCRA, and appropriate amendment permitted. See, e.g., Commonwealth v. Weimer, 756 A.2d 684, 685-86 (Pa.Super.2000) (Eakin, J.), allocatur denied, 564 Pa. 695, 764 A.2d 50 (2000) (pro se post-conviction petitions couched in terms of habeas corpus, illegality of sentence, and reinstatement of appellate rights would be treated as PCRA petition since they sought relief that was available under PCRA) (collecting cases). The circumstance that aggrieves appellant arises not from his alleged reliance upon Superior Court decisions leading him to employ an incorrect form or title for his collateral action — i.e., seeking nunc pro tunc relief via a non-PCRA filing rather than via a PCRA petition — but from his tardiness in initiating any collateral attack at all. Appellant did not seek collateral relief in the form of an appeal nunc pro tunc until more than one year after his judgment of sentence became final. At that point, any petition he filed under the PCRA would have been time-barred, unless he could prove an exception to the time-bar. Thus, appellant’s present request for “equitable” relief seeks an unintended benefit that was, at best, collateral to the Superior Court’s pre-Lantzy holding that this type of claim was not cognizable under the PCRA: the benefit of not being subject to the PCRA’s period of limitations. Even if the PCRA authorized this Court to recognize equitable exceptions to its period of limitations, we would not be inclined to fashion one under such circumstances. Appellant could have preserved his claim simply by invoking the lower court’s jurisdiction within one year of final judg ment. His failure to do so results in the unreviewability of his claim under the PCRA’s time-bar. For the foregoing reasons, we hold that the Superior Court properly applied this Court’s decision in Commonwealth v. Lantzy. Accordingly, we affirm. Former Chief Justice FLAHERTY did not participate in the decision of this case. Chief Justice ZAPPALA concurs in the result. Justice NIGRO files a concurring and dissenting opinion. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . Since the question presented is one of law, our review is plenary. See Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232, 1234 n. 2 (2001). . One of the Superior Court cases heavily relied upon by appellant was reversed after this appeal was briefed. Commonwealth v. Hall, 713 A.2d 650 (Pa.Super.1998), rev’d, 565 Pa. 92, 771 A.2d 1232 (2001). We examine the significance of Hall below. . In conjunction with his legal argument, appellant also makes factual averments to the effect that several days after sentencing, he met with plea counsel and twice requested that counsel either file an appeal or seek some type of post-conviction relief, but that counsel refused, informing appellant that there was no merit to an appeal. Appellant acknowledges that, given the posture in which we find this case, there is at present no record to support these averments and thus argues that, if the Court finds that he is entitled to pursue nunc pro tunc relief outside the PCRA, he be given an opportunity to substantiate his claim. For purposes of deciding the appeal, we accept that the facts are, or rather would be, as appellant represents them. . See, e.g., Commonwealth v. Ardestani, 558 Pa. 191, 736 A.2d 552 (1999) (plurality opinion) (involving retroactive application of Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), which held that Article I, Section 8 of Pennsylvania Constitution prohibits police from sending informant into home of individual to electronically record conversations absent prior judicial determination of probable cause); Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) (involving retroactive application of decision in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), which abrogated evidentiary rule which had permitted prosecutors to introduce prior arrests of accused on cross-examination of character witnesses). . To the extent that appellant relies upon Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760 (1996), as authority to seek nunc pro tunc relief outside the framework of the PCRA in this non-summary criminal case, we note that that argument was explicitly rejected in Hall. See 771 A.2d at 1236-37. . In support of his assertion that he relied upon the Superior Court decisions, appellant points to the cases he cited in his Superior Court Brief. The Commonwealth disputes whether appellant filed his motion for nunc pro tunc relief when he did, and in the form he did, in reliance upon the Superior Court’s pre-Lantzy decisions, noting that those decisions were never mentioned in appellant’s pro se, non-PCRA filings in the trial court. For purposes of this appeal, we will assume that appellant sought nunc pro tunc relief by motion in reliance upon the then-extant Superior Court decisional authority. . Notably, the Superior Court decisions holding that claims seeking restoration of appellate rights nunc pro tunc are not cognizable under the PCRA did not themselves suggest that such extra-PCRA motions could be brought at any time, irrespective of the PCRA time limitation. See Commonwealth v. Hall, 713 A.2d 650 (Pa.Super.1998), rev’d, 565 Pa. 92, 771 A.2d 1232 (2001); Commonwealth v. Lantzy, 712 A.2d 288 (Pa.Super.1998), rev’d, 558 Pa. 214, 736 A.2d 564 (1999); Commonwealth v. Petroski, 695 A.2d 844 (Pa.Super.1997). It is equally notable that appellant does not claim that he relied upon the pr e-Lantzy cases in allowing the PCRA period of limitations to expire.

The opinion of the Court was delivered by Kennedy, J. We concur so entirely, not only in the opinion delivered by his honour the President Judge of the court below in this case, but likewise in the reasons advanced by him in support of it, that we are willing to a'dopt it as our own. And I am inclined to believe for myself, that it is expressed with a degree of force and perspicuity to which I could add nothing, were I to attempt it. We have, however, been requested, by the counsel for the plaintiff, to give our opinion upon the second ground taken by the defendant as a defence, upon which the court below considered it unnecessary to pass, as it certainly was, after deciding the cause in favour of the defendant, upon the first ground. The second ground is, that the court-house and public offices, &c., of a county are not such buildings as come within the purview and meaning of the Act of Assembly, giving to mechanics and material-men a lien for materials furnished for and work done in the construction thereof. The only object that the Legislature had or could well have intended by putting it in the power of mechanics and material-men to make their claims for work done in, or materials furnished for, the construction of any building, a lien thereon, was, to give them a real substantial security for the payment of the same; but it is evident that it can afford them no security, in this respect, unless, under the process presented by the Act, the building can be taken in execution afterwards, and be either extended or sold. But can it be supposed that the Legislature could have intended, in any case, to subject a county to the privation or loss of its buildings, such as court-house, public offices or jail, so indispensably necessary for the public benefit and accommodation, as also for the preservation of the public records, containing the only evidence that thousands may have for their rights, and in which, it may be truly said, that every individual of the community has a deep interest ? Besides, to make such buildings liable to extension or sale, even for debts created by virtue of contracts made directly with the county itself, which is much stronger than the present case, would be in direct violation of the express provisions and directions of the Act of the 15th of April 1834. By the 6th section of this Act, Purdon’s Dig. (of 1841), page 190, it is enacted, “ If any judgment shall be obtained against a county in any action or proceeding, the party entitled to the benefit of such judgment may have execution thereof as follows, and not otherioise, viz: It shall be lawful for the court in which such judgment shall be obtained, or to which such judgment may be removed by a transcript from a justice of the peace or alderman, to issue thereon a writ commanding the commissioners of the county to cause the amount thereof, with the interest and costs, to be paid to the party entitled to the benefit, of such judgment, out of any moneys unappropriated of such county; or if there be no such moneys, out of the first moneys that shall be received for the use of such county; and to enforce obedience to such writ by attachment.” It is perfectly plain, then, from the express language of this latter Act, that no other mode can be pursued or resorted to than that which is directed and pointed out by it in terms that cannot be mistaken. There can be no seizure, extension or sale of the property of the county; the payment of a debt owing by it can only be enforced after judgment obtained therefor, by issuing a writ commanding the commissioners to pay, &c., and not otherwise ; and if the commissioners fail or refuse to pay according to the command contained in the writ, obedience may be coerced by attachment. This, however, is not a remedy to which the plaintiff has even the colour of a right to resort; for he has no claim against either the county or its commissioners. It is not alleged or pretended that he ever made any contract with the one or the other for furnishing the lime for which he claims to be paid. Judgment affirmed.

Per Curiam, The learned trial judge rightly held that the agreements, between Leiling and Ott constituted a conditional sale and pot a bailment; and hence there was no error in directing a verdict in favor of the defendant in the issue. All that can be profitably said on the controlling question in the case will be found in the able and exhaustive opinion of the court below' on the rule for a new trial. On it we affirm the judgment.

Opinion by Mr. Justice Schaffer, This suit is brought to recover the withdrawal value of plaintiff’s stock in defendant building association, which withdrawal value is alleged to be the amount paid in on it, $3,000, with lawful interest on. the several payments from the dates when made. An affidavit of defense was filed, which the court held insufficient and entered judgment against defendant for $3,919.10, from which it appeals. The situation at the present time confronting building associations and their many stockholders is of grave moment. The magnitude of their operations throughout the Commonwealth is realizable from the report of the secretary of banking for the year 1929, which shows that the installment dues paid on their stock for that year amounted to $958,490,459.90, that mortgage loans on shares of stock were granted totaling $1,166,299,-428.97, and that there were 3,899 associations and 1,- 626,015 shareholders. We are advised by judges of the courts of common pleas, particularly in Philadelphia, that the litigation against these associations has reached the point of public concern, and, that unless wisdom is exercised, very disastrous consequences in the way of financial losses are likely to result to a large number of persons whose savings are invested in them. The Act of April 29, 1874, P. L. 73, section 37, provides, “Any stockholder wishing to withdraw from the said corporation, shall have power to do so by giving thirty days’ notice of his or her intention to withdraw, when he or she shall be entitled to receive the amount paid in by him or her, less all fines and other charges; ......Provided, that at no time shall more than one-half of the funds in the treasury of the corporation be applicable to the demands of withdrawing stockholders without the consent of the board of directors.” The Supplementary Act of April 10, 1879, P. L. 16, section 2, reads, “Payment of the value of stock so withdrawn, shall only be due when the funds now by law applicable to the demand of withdrawing stockholders are sufficient to meet and liquidate the same, and then only in the order of the respective times of presentation of the notice of such withdrawals, which must be presented in writing at a previous stated meeting, and have been then and there endorsed as to times of presentation by the officer designated by the by-laws of the association.” Written notice of withdrawal was given to the secretary of the association on July 3, 1929, in accordance with the act and the by-laws,-and, at the time of suit brought, January 6, 1930, the association had failed to make payment. The act provides that at no time shall more than one-half of the funds in the treasury of the corporation be applicable to the demands of withdrawing stockholders without the consent of the board of directors and that payment of the withdrawing stock shall be due only when the funds by law applicable to the demand of with drawing stockholders are sufficient to meet and liquidate the same. In plaintiff’s statement of claim there is no averment that there are in the treasury of the association sufficient funds to meet his demand, or that one-half of the funds therein will pay his claim, or that the board of directors has consented to the application of more than one-half of the funds in the treasury to his demand. In view of the language of the statute that payment to him shall be due only “when the funds now by law applicable to the demand are sufficient to meet and liquidate the same,” we think he is not entitled to a summary judgment for the value of his stock. All that he avers as entitling him to judgment is the payment of the amounts he has made to defendant, his giving of written notice to withdraw, his demand for payment and the failure of the association to pay. It is averred in the affidavit of defense that at the time the notice of withdrawal was given and at the subsequent meetings of its board of directors defendant did not have on hand and has not since had funds sufficient to pay the claim of plaintiff as a withdrawing stockholder, nor which are by law applicable to the payment thereof, that one-half of the receipts and one-half of the funds in the treasury since the notice of withdrawal have been insufficient to create a fund for the payment of plaintiff’s claim; that the funds heretofore received in the payment of dues from stockholders have been used for the payment of money borrowed from bank and for other debts which have precedence and priority over any sum due to plaintiff as a stockholder and that such debts have not been paid in full and that the debts were incurred before plaintiff gave notice of withdrawal. We regard these averments as sufficient to prevent summary judgment in view of-the deficiencies in plaintiff’s statement. Summary judgments against building associations in suits of this character should only be entered in clear cases. Building associations differ from ordinary corporations, and stockholders therein are really partners in the enterprise : Christian’s App., 102 Pa. 184. After the payment of general creditors, the residue of the funds belong to the stockholders and should be distributed among them pro rata whether they have given notice of withdrawal and hold orders for the withdrawal value of their stock or not. Both claims are equally meritorious and in marshalling the assets no class is entitled to priority over the other. Withdrawing stockholders are creditors only in a qualified sense, their rights as against those with whom they have been associated as stockholders are very different from those of general creditors, whose claims are based wholly on outside transactions: Ibid. The judgment of the court below is reversed with a procedendo.

Opinion by Judge Williams, Jr., This is an appeal of Catherine Latella and -seven similarly .situated claimants from Unemployment Compensation Board of Review (Board) -decisions which affirmed referees’ decisions upholding the Office of Employment Security’s (OES) deduction of claimants ’ social security -old age payments from their unemployment compensation weekly benefit rates in accordance with. 'Section 404(d) (iii) of the Unemployment Compensation Law, (Law). We reverse. Claimants, all of whom were age 62 or over, were laid off by their respective employers due to lack of work. At various times during 1980, each claimant applied for unemployment compensation benefits. Although the OES determined claimants to be eligible for benefits under Section 404(d) (iii) of the Law, 43 P.S. §804(d) (iii), each claimant’s weekly benefit rate was reduced by the amount of social .security payments received. Section 404(d) (iii) provides in pertinent part: (d) [E]ach eligible employe who is unemployed . . . shall be paid . . . compensation .in an amount equal to his weekly benefit rate less . . . (iii) an amount equal to the amount of a governmental or other pension, retirement or retired pay, annuity, or any other .similar periodic payment which is based on the previous work of such individual. The practical effect of Section 404(d) (iii) is to offset unemployment compensation benefits by the amount of pension or other retirement benefits received by an individual on a dollar-for-dollar basis. Section 404(d) (iii) tracks the language of the 1976 Federal Unemployment Tax Act (FUTA) amendment, codified at 26 U.S.C. §3304(a) (15), disqualifying specific types of wage replacement income. Section 3304(a) (15) is one of the minimum federal criteria set forth in 26 XLS.C. §3304(.a) to which a state must conform for its unemployment program to be certified by the Secretary of Labor. Claimants primarily contend that Section 404(d) (iii) of the Law denies them equal protection in violation of Article III, Section 32 of the Pennsylvania Constitution. Claimants further allege that .Section 404 (d) (iii) violates Article II, 'Section 1 of the Pennsylvania Constitution because “the Legislature has . . . delegated the right to determine weekly benefits to those who control public (.and private) pension funds ’ ’; that the retroactive application of the provision is contrary to the clear wording of .Section 404 (d) ; that the pension offset provision impairs the obligation of contracts in violation of Article 1, Section 10 of the United States Constitution; and that individuals entitled to maximum unemployment compensation benefits under Part E of the “Benefits Table” found at Section 404(e)(1) of the Law, 43 P.S. §804 (e) (i), cannot have their annual unemployment compensation balance reduced by the designated disqualifying income. I. Equal Protection Claimants allege that the pension offset provision violates the equal protection .guarantee of Article TTT, Section 32 of the Pennsylvania Constitution by man dating the deduction of .pension income, but not the deduction of alternative income .such as .rents, royalties, dividends and interest from unemployment compensation .benefits. Individuals .receiving disqualifying pension income are thus more harshly treated than beneficiaries in receipt ,of nondisqualifying alternative income. Before evaluating claimants ’ equal protection claim it must first be noted that it is axiomatic ‘ ‘that there is a strong presumption in favor of the constitutionality of an act of the legislature and the burden lies heavily upon one challenging the act to .show that it clearly, plainly and palpably violate[s] the Constitution.” Wallace v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 342, 347, 393 A.2d 43, 46 (1978). Accordingly, “every presumption must be indulged in favor of the constitutionality of a statute and the burden is heavy upon one who challenges it.” Gilman v. Unemployment Compensation Board of Review, 28 Pa. Commonwealth Ct. 630, 634, 369 A.2d 895, 897 (1977) (citation omitted). Claimants clearly have not met this burden. Since the classification created by Section 404(d) (iii) is economic, impinges .upon no fundamental interest, and does not operate to the peculiar disadvantage of .a suspect class, the standard for review for evaluating claimants’ equal protection challenge is one of minimal scrutiny. See, e.g., Martin v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 629, 439 A.2d 207 (1982); Bievenour v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 616, 401 A.2d 594 (1979); Wallace. Under the “minimal scrutiny” standard, legislation is upheld if it classifies affected persons in a manner rationally related to legitimate governmental objectives. Id. at 347, 393 A.2d at 46. Thus, under the relatively relaxed standard applicable here, the classification established by Section 404(d) (iii) must be upheld under the equal protection provision of the Pennsylvania Constitution “if it bears some rational relationship to the legitimate purpose of the legislation.” Id. at 347, 393 A.2d at 46 (emphasis in original) (citation omitted); see generally, Dandridge v. Williams, 397 U.S. 471 (1970); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 (1977). In order to determine whether the classification established by Section 404(d) (iii) is rationally related to legitimate governmental objectives, the purposes and objectives of the Unemployment Compensation Law must be reviewed. Section 404(d) (iii), and similar pension offset provisions rationally advance two legitimate government objectives: (1) the promotion of the fiscal integrity of the unemployment compensation fund; see, Novak v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 148, 457 A.2d 610 (1983); McKay v. Horn, 529 F. Supp. 847, 861 (D.N.J. 1981); Cabais v. Egger, 527 F. Supp. 498, 502 (D.D.C. 1981), rev’d in part on other grounds, 690 F.2d 234 (C.D. Cir. 1982); Rivera v. Patino, 524 F. Supp. 136, 146 (N.D. Calif. 1981); and (2) the elimination of the payment of duplicative, “windfall” unemployment benefits to those who, primarily because of their retirement eligibility, are receiving adequate wage replacement income and thus experiencing greater economic security than those less fortunate. McKay, 529 F. Supp. at 861-62; Rivera, 524 F. Supp. at 146. It is undisputed that the Commonwealth has a legitimate interest in maintaing a self-supporting unemployment compensation program. Bievenour at 619, 401 A.2d at 595. As we stated in Martin, “.the state has a legitimate interest in preserving the fiscal integrity of the fund”, Id. at 634, 439 A.2d at 210; therefore, the disqualification of specific forms of wage replacement income, thus preventing the disbursement of “windfall” benefits, contributes to the conservation of limited public resources. Id. The fundamental social purpose of the Unemployment Compensation Law, however, is to provide relief from the rigors of unemployment; that is, to provide some economic security to individuals exposed to financial distress during periods of forced unemployment. See McDermott v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 375, 427 A.2d 785 (1981); Unemployment Compensation Board of Review v. Buss, 26 Pa. Commonwealth Ct. 160, 362 A.2d 1113 (1976). The Declaration of Public Policy of the Unemployment Compensation Law at Section 3, 43 P.S. §752, provides in pertinent part: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth. Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth and its political subdivisions in the form of poor relief assistance. Security against unemployment and the spread of indigency can best be provided by the systematic setting aside of financial reserves to be used as compensation for loss of wages of employes during periods when they are unemployed through no fault of their own. 43 P.S. §752. A fundamental purpose of the Unemployment Compensation Law, therefore, is to provide eligible individuals with funds to avoid the crushing burden of indigency while they seek other suitable employment. Unemployment Compensation Board of Review v. Miedama, 27 Pa. Commonwealth Ct. 207, 365 A.2d 900 (1976). The Legislature, by disqualifying certain forms of wage replacement income, has made a reasonable determination that those with outside income have a reduced need for governmental ¡assistance during a period of unemployment. 3f .an individual, though unemployed, is provided with equivalent wage replacement income, the purpose of the statute is fulfilled in that the worker is not made indigent; the social evils the statute was designed to obviate (economic insecurity and indigency) are prevented. See, In re Claim of Liss, 80 A.D. 2d 716, 437 N.Y.S. 2d 731 (3d. Dept., 1981). Furthermore, in Section 404(d).(iii), the Legislature denominated specific categories of .alternative wage replacement income for offsetting against unemployment benefits. The emphasis upon pension and social security income reflects a determination that those who ¡are eligible for retirement benefits are less likely than others to return to the labor force following a period of unemployment, and hence at some remove from the unemployment program’s principal purpose of providing crucial economic assistance during a job search. (Emphasis added.) McKay, 529 F. Supp. at 863. Lastly, claimants contend that Section 404(d) (iii) makes an irrational distinction between pension and other sources of income such as rents and investment income. Although the classification may be imperfect, this does not invalidate Section 404(d) (iii). The Supreme iGourt has consistently held that: In the area of economics and ¡social welfare, a 'State does not violate .the Equal Protection Clause merely because the classification made by its laws are imperfect. If the classification has some “reasonable basis” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some unequality.” Dandridge, 397 U.S. at 485 (citation omitted.) Based on the foregoing, we must conclude that the classification established by Section 404(d) (iii) is rationally related to legitimate governmental purposes, and, therefore, 'Section 404(d):(dii) of the Law is not violative of Article III, Section 32 of the Pennsylvania Constitution. II. Unconstitutional Delegation of Legislative Power Claimants nest contend that the pension offset provision of Section 404(d) (iii) impermissibly delegates the Legislature’s authority to determine unemployment compensation weekly benefit rates to the United States Congress in violation of Article II, Section 1 of the Pennsylvania Constitution. Since the social security benefit amount is established periodically by the Congress and is annually subject to a cost of living adjustment, the weekly benefit rates of claimants receiving disqualifying wage replacement income would be determined not by the Legislature but, indirectly, by the Congress. This claim is .also meritless. It is well-settled that [T]he Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine ,some fact or state of things upon which the law makes, or intends to make, its own action depend. Locke’s Appeal, 72 Pa. 491, 498 (1872). Locke’s Appeal distinguished between two types of legislation: “status-finding” and “rule-making.” A “status-finding” type of legislation includes a .statutory statement of policy which becomes operative only upon the finding by an administrative agent that a described status exists. The legislature may delegate the power to determine the existence or nonexistence of a described fact or status without unconstitutionally abdicating its role. See, East Suburban Press, Inc. v. Township of Penn Hills, 40 Pa. Commonwealth Ct. 438, 397 A.2d 1263 (1979) (not an unconstitutional delegation of legislative power to require newspapers to have second class mailing privileges as defined by U.S. Postal Service regulations to qualify to carry legal advertising); Commonwealth v. Tarabilda, 222 Pa. Superior Ct. 237, 294 A.2d 830 (1972) (not unconstitutional for Legislature to define narcotics .as those drugs found by the United States Secretary of the Treasury to be addicting). A “status-finding” statute, however, does not involve a law-making .delegation, “at least not in the sense of creating general rules governing the subject of the legislature’s concern. . . .” East Suburban Press, Inc., at 444, 397 A.2d at 1266. In a “rule-making” type statute the “legislature states a general policy but gives the administrative agent, within limits set by express standards, the power to fill in details of the policy with regulations.” Id. at 444, 397 at 1266. In East Suburban Press, Inc., we stated: [T]he Pennsylvania General Assembly, in setting about to define publications eligible to carry legal advertising, did not delegate the formulation of rules on the subject of legal advertising to any external agency. The federal concern here is not with that subject at all but with the entirely different matter of postal regulations. (Emphasis in original.) Id. at 445, 397 at 1267. Therefore, we concluded, “the legislature, in looking to the relevant but distinct role of another agency in its exclusive postal sphere, is not abdicating its role of the legal advertising sphere.” Id. at 446, 397 at 1267 (emphasis in original). The legislature, in enacting Section 404(d) (iii), did not delegate the formulation of rules involving offsetting of pensions against unemployment compensation benefits to Congress or any federal agency. The ex-tent of federal involvement concerns Congress’ exclusive role in establishing monthly social security benefit rates, a subject and purpose different from that of the Commonwealth’s determination of unemployment weekly benefit rates after pension offset. See, Id. at 445, 397 at 1267. .Section 404(d) (iii), therefore, is an example of a “status-finding”, and not “rule-making”, type legislation in that it becomes operative only upon the finding by an administrative agent that a described status exists (that is, upon a finding of claimant’s receipt of social security benefits or other retirement income). Claimants’ reliance on Holgate Brothers Co. v. Bashore, 331 Pa. 255, 200 A. 672 (1938) is misplaced in that Holgate invoked a “rule-making” type statute, where the legislature, proposing to regulate working hours, delegated its rulemaking powers regarding working hours to federal administrative agencies, without limiting standards. Section 404(d) (iii) does not constitute an unconstitutional delegation of legislative power to the United States .Congress in violation of Article II, Section 1, of the Pennsylvania Constitution. III. Retroactivity .and Impairment of Contract Section 23(3) of the Act of July 10,1980, P.L. 521, No. 1980-108 (Act 108) provides that [t]he amendments to .section 404(d) .shall take effect immediately and .shall he retroactive for claim weeks beginning* on or after March 3, 1981. The Board complied with this retroactive, effective date provision; claimants now allege .that the Board in complying with .Section 23(3) violated the express language of Section 404(d), Article I, Section 17, of the Pennsylvania Constitution and Article 1, Section 10, cl. 1 .of the United States Constitution. While Section 23 (.3) of Act 108 provides that Section 404(d) ¡amendments “.shall be retroactive for claim weeks beginning on or after March 31, 1980” (emphasis added), Section 404(d) (as amended), added by Section 16 of the Act of July 10, 1980, P.L. 521, No. 1980-108 (Act 108) sets forth that the pension offset provision shall become effective on the “week ending subsequent to the first day of July, 1980 ” (Emphasis added.) A conflict exists, therefore, between two provisions in the same statute, Act 108. Since both provisions are particular in nature, operation and application, resort must be made to Section 1934 of the .Statutory Construction Act, 1 Pa. C. S. §1934. 1 Pa. C. S. §1934 provides that whenever several clauses in the same statute are irreconcilable, “the clauses last in order of date or position shall prevail.” Although both provisions were enacted on the same date, July 10,1980, Section 23(3) of Act 108 is later in position than Section 16 of Act 108. Thus, the Section 23(3) effective date prevails and claimants argument must fail. See, Heck v. Zoning Hearing Board for Harveys Lake Borough, 39 Pa. Commonwealth Ct. 570, 397 A.2d 15 (1979). As to claimants ’ contention that the pension offset provision cannot be retroactively applied, Section 901 of the Law, 43 P.S. §881, allows that there is no vested right to unemployment benefits,- “ [c]onsequently the legislature is free to amend, the act in .any particular, and constitutionally .accord its amendments retroactive effect.” Deal Unemployment Compensation Case, 159 Pa. Superior Ct. 577, 581, 49 A.2d 278, 280 (1946). Regarding the alleged violation of .state and federal constitutional prohibitions against laws impairing the obligation of contracts, this argument too must fail. Quite simply, there is no contractual right to unemployment compensation under the contracts clause of the United States Constitution (Rivera, 524 F. Supp. at 143-44; McKay, 529 F. Supp. at 865-66; Cabais, 527 F. Supp. at 503), nor under Article 1, Section 17 of the Pennsylvania Constitution (see, Deal, 159 Pa. Superior Ct. at 581, 49 A.2d at 280). IV. Reduction of Part E Benefit Year Compensation Claimants ’ final contention is that the deduction of social security benefits from their weekly benefit rates wias contrary to-law, in that claimants were entitled to the maximum number of weeks of compensation under Part E of the Benefits Table at Section 404(e) (1) of the Law, 43 P.¡S. §804(e) (1), and that only benefit year compensation listed under Part D of the Benefits Table may be reduced under Section 404(d). The Benefits Table as found in Section 404(e) (1) of the Law, comprises five columns (denominated Barts A to E), and is employed in determining .a beneficiar y’s weekly and annual benefit rate. The last two columns of the Benefits Table, Parts I) and E, delineate the total unemployment benefits to which a claimant is entitled during a benefit year. If a claimant has worked eighteen to twenty-three ‘ ‘credit weeks ’ during the base year, then claimant’s total benefit year compensation is found in Part D. If a claimant has worked twenty-four or more “credit weeks” during the base year, claimant’s greater total benefit year compensation is found in Part E. Section 404(c), 43 P.S. §804(c). Thus, the Benefits Table includes two columns (Parts D and E) denominating the annual entitlement of unemployment benefits. The number of credit weeks worked determines which benefits column is pertinent to claimant in determining the maximum benefit entitlement for a benefit year. Section 404(c) . After providing for the offsetting of specific forms of disqualifying wage-replacement income, Section 404(d) further provides as follows: The balance in the employe’is compensation account as indicated in Part D of the table contained in subsection (e) shall be reduced by his weekly benefit amount without regard to the pension deduction provided herein. (Emphasis supplied.) 43 P.S. §804(d). While Section 404(d) (iii) clearly and unambiguously provides for the reduction of a claimant’s annual entitlement of unemployment compensation benefits under Part D of the Benefits Table, Part E of the Benefits Table is not referenced. Thus, we conclude, constrained by the express language of Section 404(d), that claimants entitled to maximum unemployment compensation under Part E of the Benefits Table cannot have their annual unemployment compensation benefit .reduced by the disqualifying wage replacement income enumerated in Section 404(d) (iii) of the Law. The Board, however, which does not deny that the Legislature made exclusive reference in .Section 404 (d) to Part D of the Benefits Table, omitting any reference to Part E, urges this Court to judicially amend the Unemployment Compensation Law by adding Part E through application of the rules of statutory construction as codified in 1 Pa. C. S. §§1901-1991. It is axiomatic that when the language of a statute is plain and unambiguous and conveys a clear meaning, there is no occasion for resorting to the rules of statutory construction and the statute must b'e given its plain and unambiguous meaning. Wilderness Industries of Maryland, Inc. v. State Board of Motor Vehicle Manufacturers, Dealers and Salesmen, 58 Pa. Commonwealth Ct. 127, 427 A.2d 1235 (1981). Thus, we have no reason to be concerned with legislative intent and presumption in the absence of ambiguity. Daugherty v. Continental Can Co., Inc., 226 Pa. Superior Ct. 342, 313 A.2d 276 (1973). Although the Board claims that the Legislature’s omission of any reference to the Part E column in Section 404(d) results in an “ambiguity in application,” this Court cannot supply an apparent omission in a statute even though it appears that the omission resulted from the Legislature’s mere inadvertence or failure to foresee or contemplate a case in question. Commonwealth ex rel. Cartwright v. Cartwright, 350 Pa. 638, 645, 40 A.2d 30, 33 (1945). Thus, the maxim “expressio unius est exclusia alterius” is applicable here. The maxim essentially provides that where certain things are specifically designated in a statute, all omissions should be understood as exclusions. Commonwealth v. Charles, 270 Pa. Superior Ct. 280, 411 A.2d 527 (1979). Therefore, since the Unemployment Compensation Law .specified two classes of benefit year maximum entitlements, Part D and Part E, and Section 404(d) specifically mentions Part D, but not Part E, we can only conclude that the Legislature intended the omission of Part E to be .an exclusion. All claimants herein are entitled to the maximum amount of compensation found in Part E of the Benefits Table, and all experienced a reduction of their unemployment compensation account balances enumerated under Part E of the Benefits Table. Since the offsetting of disqualifying wage-replacement income denominated under Section 404(d) (iii) against the unem ployment .account balances found in Part E of the Benefits Table is not provided for in Section 404(d) of the Law, the Board’s action is contrary to law and is reversed. Order And Now, the 29 th day of April, 1983, the orders of the Unemployment Compensation Board of Review, at Decision Nos. B-189407, B-189409, B-189408, B-189991, B-190046, B-190043, B-190708 and B-191329 are affirmed in part and reversed in part. The parts of the orders requiring the deduction of disqualifying retirement income from claimants’ weekly benefit rates are affirmed. The parts of the orders requiring the deduction of disqualifying retirement income from claimants’ total benefit year entitlement of unemployment compensation benefits denominated under Part E of “Table Specified For The Determination of Rate and Amount of Benefits,” Section 404(e) (1), are reversed and the records are remanded for determination of those benefits consistent with this Opinion. Jurisdiction relinquished. Due to the virtual identity of issues, these oases were consolidated by Order of this Court. Act of December 5, 1936, Second Ex. Sess., P.D. (1937) 2897, as amended, 43 P.S. §804(d) (lid). After deduction of their respective social security benefit payments, claimants received the following weekly bnefit amounts: Catherine Datella, $14; Antoinette TJliano, $0; Evelyn Drake, $11; Margaret Oapello, $13; Thelma Ooldian, $10; Jack Kopf, $0; Joseph Nash, $49; Mary Oberholzer, $0. Unemployment Compensation Amendments of 1976, Pub. D. No. 94-566, 90 Stat. 2667 (1976). Congress subsequently amended Section 3304(a) (15) by enacting 'the Multiemployer Pension Plan Amendments Act of 1980, Pub. D. No. 96-364, 94 Stat. 1208. The amendment is not relevant to the disposition of this case. Certification of a abate as a participant in the federal-state cooperative unemployment compensation scheme 1) entitles the state’s employers to a maximum 90% FUTA credit against the payroll tax of contributions made during the fiscal year to the state’s unemployment compensation fund; and 2) federal funds for the administration of its unemployment compensation law are made available. Officially known as “Table Specified For The Determination Of Bate And Amount.” Our Supreme Court has ruled that for purposes of equal protection claims the content of the Pennsylvania Constitution is not significantly different from that of the Federal Constitution. See, c.g., Commonwealth v. Kramer, 474 Pa. 341, 378 A.2d 824 (1977); Baltimore & Ohio Railroad Co. v. Department of Labor and Industry, 461 Pa. 68, 334 A.2d 636 (1975) appeal dismissed, 423 U.S. 806 (1975). Thus, while federal and sister-state appellate decisions involving federal equal protection challenges to pension offset provisions similar to Pennsylvania’s are not binding on us in a case involving the Pennsylvania Constitution, such decisions are particularly persuasive. Cf., Fischer v. Departmet of Public Welfare, 66 Pa. Commonwealth Ct. 70, 77, 78, 444 A.2d 774, 777, 778 (1982). Although claimants contend that the pension offset provision primarily discriminates against the elderly, it is well established that classification by age does not constitute a suspect classification. See, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); Bievenour v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 616, 401 A.2d 594 (1979). 1 Pa. C. S. §1933 provides in part that whenever a particular (special) provision is in irreconcilable conflict with a general provision in the same or another statute, the particular provision shall prevail unless the general provision was enacted later and the Legislature manifestly intended that .the general provision should prevail. When 1 Pa. C. S. §1933 is inapplicable, as when 'the conflicting clauses are both particular (special) provisions, 1 Pa. C. S. §1934 is used in lieu of 1 Pa. C. S. §1983. Section 4(b), 43 P.S. §753(b), defines “Benefit Year” as “the fifty-two consecutive week period, beginning with the day as of which such ‘Valid Application for Benefits’ is filed, and thereafter the fifty-two consecutive week period beginning with the day as of which such individual nest files a ‘Valid Application for Benefits’ after the termination of his last preceding benefit year.” Section 4(g.l), 43 P.S. §753(g.1), defines “Credit Week” as “any calendar week in an individual’s base year with respect to which he was paid in employment or defined in this act, remuneration of not less than fifty dollars ($50). Only one credit week can be established with respect bo any one calendar week. Section 4(a), 43 P.S. §753(a), defines “Base year” as “the first four of the last five completed calendar quarters immediately preceding .the first day of an individual’s benefit year.” It is undisputed and the referees’ findings (as affirmed by the Board) confirm that all claimants, sub judice, are entitled to the maximum unemployment compensation amounts listed under Part E of the Benefts TaMe. The Statutory Construction Act, Acit of December 6, 1972, P.L. 1339, No. 290, formerly, 46 P.S. §§531-602, repealed by Section 4 of the Act of December 6, 1972, P.L. 1339, No. 290. A similar act is now found in 1 Pa. C. S. §§1901-1991.

The opinion of the Court was delivered by Sekgeant, J. The gi’eat object of the plaintiff in error, Braddee, in his applications to the Court of Common Pleas of Fayette county, and to the legislature after his failure in those applications, was to have the fact of payment of the bonds, on which the judgments against him had been entered, tried by a jury. This he eventually obtained by means of the Act of Assembly of the 1st of April 1837, and when the trial was had, the verdict of the jury decided that the bonds had not been paid. In the meanwhile, the defendant in error, Brownfield, proceeded with his executions on his judgments — sold the tract of land now in question at sheriff’s sale, as the property of Braddee, becoming himself the purchaser. The plaintiff in error contends, that the trial of the issue of payment was not the sole purpose of the Act of Assembly: that it went further, and in effect prohibited any proceedings before the trial to sell his property by execution on the judgments, and therefore the sale which took place, and under which Brownfield now claims title, was absolutely null and void to all intents and purposes whatsoever. This is a brief epitome of the matter in contest, and suffices to present the question raised between these parties on which the case turns, what is the true intent and meaning and operation of the Act for the relief of the plaintiff in error, passed on the 1st of April 1837? The defendant in error contends, that this Act of Assembly, in interfering with the duties of a tribunal of justice, and dictating to them that they should open judgments confessed by bonds and warrants, and allow the plaintiff in error a trial by jury of the fact of payment, prescribing new conditions as to sales under the judgments, after the court had heard the parties, and decided that the judgments ought not to be opened, was in contravention of the constitution of Pennsylvania, and in no way affected his proceedings. It is certainly true that this species of legislation, for particular cases pending in courts of justice, by granting extraordinary privileges to one party or the other, out of the ordinary course of justice, is susceptible of abuse, and may lead to great injustice, and ought to be warily employed by a wise legislature. But for us to hold a law unconstitutional, it must be a plain violation of some provision contained in the constitution. It must be an ex post facto law, or a law impairing the obligation of contracts, or manifestly in collision with some constitutional provision. The exercise of a certain sort of superior equity jurisdiction of a remedial character, a kind of mixed power, partly legislative, partly ¡judicial, seems to have been practised by our legislature from time to time, in the shape of special laws like that before us. They have been looked at with jealousy by some, while others have considered them as necessary, under our frame of government, to prevent a total failure of justice in certain cases not falling within the control of ihe judicial branches. There is, at any rate, no clause in our constitution which prohibits them; and when a motion to that effect was introduced in the late convention which formed our present constitution, though the subject was much and ably canvassed, and the law now in question commented upon, no alteration was made on the subject. See Debates in Convention of 1837, p. 479, 544, &c. Under these circumstances, it would be difficult to say that a law, granting a remedy to a party by referring the cause to another decision, or enabling him to sustain an action where he could not before sustain one, or removing an impediment in his way to obtaining a hearing and decision, or conferring powers, or ratifying imperfect acts and doings of officers, by which the rights of a party would otherwise be lost, is a violation of the constitution. Every case of the kind must be judged of by itself, according to its own peculiar circumstances. That there is a usurpation on the judiciary, which it would be unconstitutional in the legislature to assume, may, I think, be safely asserted. That, on the other hand, there are cases where the legislative and judicial powers so commingle, that the exercise of a certain kind of judicial authority in the passage of a law is in accordance with precedents, and not contrary to received constitutional principles, nor such as a court could annul, is perhaps equally clear. In the passage of the present law, the legislature have acted rather in the character of an appellate tribunal of justice, ordering, by way of mandamus, that to be done which they considered ought to be done, and which no existing appellate tribunal could relieve against, by interposing in a special case then depending in court before a competent tribunal, which had already heard and decided between the parties, and giving a remedy in that particular cause alone, without prescribing a general rule for the conduct of all the citizens of the commonwealth. It is unnecessary, however, to pursue this subject further; because we are of opinion that, according to the proper construction of this obscure and ambiguous Act of Assembly, the sale of the lands by executions on the judgments after the passage of the Act, was not absolutely prohibited by the Act, but, on the contrary, was permitted under certain terms and conditions; or, in other words, that its enactment is, that if sales should take place, they should, in a certain event, be voidable, but not absolutely null and void to all intents and purposes whatsoever. If the Act had contained only the provisions of the 10th section and the first part of the 11th section, down to the proviso, the conclusion might well be drawn, that all sales by execution were to be postponed until after the hearing and determination of the issue ordered by the Act, notwithstanding, in the preamble, the gravamen of Braddee’s complaint is recited to be, that he ha'd paid and satisfied the judgments in full, and the court had refused to open them; and that the facts set forth by the defendant, were such as could only be determined by a jury. But then comes the last clause of the 11th section, which provides, that if the jury find otherwise, (that is to say, that the bonds were not paid,) “ the said sales to remain in full force and effect.” What sales, are here referred to? By the settled principles in relation to Statutes, unless some other period be prescribed by the Statute from which it is to operate, it speaks from the time of its passage; its enactments are to operate in futuro, and are not to have a retrospect beyond the time of its commencement. The rule and law of Parliament is, that nova constitutio futuris formam debet imponere, non prceteritis. And this is not only the doctrine of the English law, but is also founded in the principles of general jurisprudence. Dwarr. on Stat. 680; 6 Bac. Mr. 370. The sales referred to, therefore, cannot, as is argued for the plaintiff in error, refer to such as might have happened to take place before the passage of the Act. For although the alias venditioni exponas had then issued, yet there is no pretence that any sale was had; nor is there an allusion in the preamble or Act, to a sale being in contemplation. The sales must necessarily be considered as those whieh should happen after the 1st of April 1837, and not before. Taking into view, then, the whole tenor and scope of the Act, the legislature orders that the judgments be opened, that the plaintiff’s allegation of payment of the bonds shall be tried by a jury, and the rights of the parties be settled according to the event. If the plaintiff should choose to go on and sell, it was to be at the risk of having the whole sale set aside, in case he failed on the trial. On the other hand, the defendant was indulged with another trial, on the merits, before a jury, which was the main object of his complaint and application — with the power, if he succeeded, of treating any sales that might, in the meanwhile, take place, as a nullity. In opening a judgment, the legislature, like a court, may prescribe such terms and conditions as it sees fit. Opening a judgment, is not setting it aside, annulling, or reversing it. It is but a mode of allowing to the defendant a hearing on the merits, and a court may impose such terms as it deems propel’. The legislature, acting as a high and responsible tribunal, in a delicate matter, where they were about to interfere in a particular suit, a measure which is looked on with distrust in a community of laws, might choose to go to a certain extent, and no further. They might choose to say, we will provide you a hearing, but we will do nothing further to delay or hinder the security of the creditor. We will not take away his lien — we will not arrest his executions, if he chooses to go on and sell, and take the risk of the ultimate result. We think we do as much for you, as in justice and reason you can ask, when we allow you to go before a jury to prove your payment, and when we guarantee you from loss of your property, in case you establish your assertion of payment. But we will not tie the hands of your creditor in the meanwhile, when perhaps your assertion is unfounded, and when the fluctuations in the value of property, or the casualties of human aifairs, may operate to impair his security, if we do. Such appears to us to be the proper construction of the Act of Assembly, 1st of April 1837, considering all its different provisions, and the existing state of things apparent from the evidence. And it may be further observed, that, where a Statute of this kind is dark in its meaning, and ambiguous in its expressions, it ought not, in our opinion, to be strained farther, in derogation of the ordinary rights of a party to a suit, than is plainly warranted by its enactments. It is rather in the nature of a private Act of Assembly, conferring new and unusual privileges on a particular individual, and should receive a strict interpretation. Dwarr. Stat. 750; Cowp. 26; 4 Bing. 450 ; 2 Chitt. 610, 650. As to the word void used in the Act, in this as in many other cases that have occurred in the construction of statutes, when the language and meaning of the whole Act necessarily require it, it means voidable only. Prigg v. Adams, (Salk. 678); Winchcombe v. Winchester, (Hob. 166); Dwarr. Stat. 741. Although, therefore, the court below, agreeably to the principles settled in Cash v. Tozer, (1 Watts & Serg. 519), erred in holding that the acknowledgment of the sheriiPs deed to the defendant Brownfield was conclusive and prevented an inquiry in this suit into the validity of the process and sale, yet the verdict and judgment were, for the reasons above given, correct, the sale not being prohibited by the Act of Assembly in the events that have taken place. Nor are the other circumstances referred to in the charge, of the manner in which the levy was made, (subject to the claim of Brownfield to 200 acres,) or the shade cast on the title, sufficient grounds for invalidating the sheriff’s deed. Judgment affirmed. The other case is also affirmed, being of opinion that no writ of error lies to this court from the Court of Common Pleas, on its refusal to open a judgment, or in receiving the acknowledgment of a sheriff’s deed. Judgment affirmed.

Opinion by Judge Blatt, Ms. Sara Wright (claimant) was last employed as a switchboard operator for Parkview Hospital until her discharge in August of 1974. After her discharge she applied for unemployment compensation benefits pursuant to the Pennsylvania Unemployment Compensation Law (Act). At the referee’s hearing the claimant’s employer testified as to certain acts of willful misconduct on the part of the claimant as the reason for her discharge. The claimant, however, offered explanations for some of the acts and denied others. The referee, giving greater weight to the credibility of the claimant’s testimony, concluded that she was discharged merely as an unsatisfactory employee rather than for willful misconduct, and awarded benefits. Upon review, however, the Unemployment Com pensation Board of Review (Board) exercised its own judgment as to the credibility of the witnesses and concluded that the claimant was guilty of willful misconduct. Benefits were, therefore, denied pursuant to Section 402 (e) of the Act, 43 P.S. §802 (e). The claimant has now appealed to this Court. The sole issue raised by the appellant is whether or not the Board erred in making an independent determination of the credibility of the witnesses based upon demeanor testimony. Under Section 504 of the Act, 43 P.S. §824 the Board has the express power to affirm, modify, or reverse the determination of the referee on the basis of the evidence previously submitted in the case. This section has long been authority for the principle that the unemployment compensation referee acts merely as an agent for the Board and that the Board is the ultimate fact finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded the evidence. Franke Unemployment Compensation Case, 166 Pa. Superior Ct. 251, 70 A.2d 461 (1950); accord, Hamilton Unemployment Compensation Case, 181 Pa. Superior Ct. 113, 124 A.2d 681 (1956). This rule has remained unchanged. Yasgur v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 33, 328 A.2d 908 (1975); Rabinowitz v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 51, 324 A.2d 825 (1974). We have no doubt that this is a proper construction of the statute and that this construction is consistent with administrative law generally. See Davis, Administrative Law Treatise §11.01 et seq. (1958). The appellant, however, argues that such procedures violate the claimant’s right to due process. We have carefully examined the authority cited and find no support for the proposition that due process is violated merely where a hearing examiner’s determination as to the credibility of the witnesses is not given special weight by the ultimate fact finder, here the Board. We, therefore, issue the following Order And now, this 14th day of November, 1975, the decision and order of the Unemployment Compensation Board of Review is hereby affirmed. . Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P. S. §751 et seq.

Opinion by Mr. Justice Manderino, The appellant, Michael Henderson, who was convicted in a nonjury trial of receiving stolen goods, contends that his demurrer to the prosecution’s evidence should have been granted. We agree and reverse. The prosecution’s evidence established that sometime between July 7, 1970 and July 14, 1970, a 1963 Volkswagen was stolen in Philadelphia. On July 10, 1970, a license plate belonging to a different automobile was also reported stolen. About 7:80 p.m., on July 31, 1370, two and one-half to three weeks after the thefts, appellant was arrested when observed driving the stolen car with the stolen license plate. The appellant pulled over at an officer’s request and produced his driver’s license. The appellant did not have the owner’s card. This constituted all of the evidence presented by the prosecution. At the conclusion of the prosecution’s case, the appellant’s demurrer to the evidence was overruled. Appellant then took the stand and testified that he had borrowed tbe car from a man named Richard approximately a half-hour to forty-five minutes prior to his arrest. The appellant, along with Carole Laws (his fiancee) and Richard, spent the entire day helping one Gloria Bearing (Carole Law’s cousin) move from one apartment to another apartment in the same building at 5008 McKean Avenue. Richard was a friend of Gloria Bearing and had been invited by Bearing to assist her in moving, just as were the appellant and his fiancee. The moving operation began about 8:30 am., and lasted all day. When the moving was over, late in the day, Richard mentioned that he was going downstairs to visit someone else who lived in the same apartment building. The appellant ashed Richard if he could borrow Richard’s car for a short while because appellant had only a half-hour to forty-five minutes to pick up an anniversary gift for his fiancee’s parents. Richard gave appellant the key to Richard’s car and appellant, along with his fiancee, proceeded to the Cheltenham Shopping Center where they picked up the anniversary gift at Gimbels. They were returning when they were stopped by the police. Appellant first met Richard when the moving began at 8:30 a.m. When arrested, the appellant told the police the circumstances concerning his possession of the car. The appellant did not contradict any of the facts presented by the prosecution and the prosecution did not contradict any of the facts presented by the appellant. The standard to be applied in ruling upon a demurrer is whether the evidence is sufficient to warrant the jury in finding the defendant guilty beyond a reasonable doubt. Commonwealth v. Collins, 436 Pa. 114, 259 A. 2d 160 (1969). The application of the standard requires a consideration of the reasonable inferences which the jury may make from the prosecution’s evidence. These inferences must establish all elements of the crime charged. The crime of receiving stolen goods requires proof that the appellant knew that the property possessed was stolen. Such knowledge on the part of the appellant is an essential element of the crime, in addition to the elements of appellant’s possession of the property and the theft of the property prior to appellant’s possession. The element of appellant’s guilty knowledge may be established by direct evidence of knowledge or by circumstantial evidence from which it can be inferred that appellant had reasonable cause to know that the property was stolen. If from the circumstantial evidence, it can be inferred that the appellant had reasonable cause to know, a final inference can reasonably be made that he in fact knew that the property was stolen. It is difficult to enumerate every circumstance that would warrant a conclusion that the appellant had reason to know the property was stolen. Some of the significant circumstances can be the appellant’s conduct; the appellant’s relationship to the victim; the elapsed time between the appellant’s possession and the theft; the situs of the theft and the situs of the possession; the kind of property; the quantity of the property; and the identifying characteristics of the property. See Turner v. United States, 396 U.S. 398, 24 L. Ed. 2d 610, 90 S. Ct. 642 (1970); Commonwealth v. Shaffer, 447 Pa. 91, 288 A. 2d 727 (1972); Commonwealth v. Owens, 441 Pa. 318, 271 A. 2d 230 (1970). Any or all of the above circumstances, and others not enumerated, taken sometimes alone and sometimes in relation to each other, may give rise to the final necessary inference that the appellant knew that the property possessed was stolen property. In Commonwealth v. Owens, 441 Pa. 318, 271 A. 2d 230 (1970), although it was established that the defendant had possession of stolen property we held that the circumstances (other than defendant’s possession of stolen property), conld not sufficiently support the inference necessary for conviction. In Owens, the kind of property was a gun and possession of the gun by the defendant occurred nineteen days after the theft. The opposite conclusion was reached in Commonwealth v. Shaffer, 447 Pa. 91, 288 A. 2d 727 (1972). We held there that the circumstances (other than the defendant’s possession of stolen property) would sufficiently support the necessary inferences from which guilt could be concluded beyond a reasonable doubt. In that case, the defendant was in possession less than twenty-four hours after the theft, the kind of property was jewelry which was clearly marked with the names and initials of other individuals, the defendant gave the police a false name when confronted and there was an attempt by one of defendant’s co-felons to hide the jewelry. These circumstances we held, were adequate to support the necessary inference that the defendant knew or had reason to know that the property he possessed was stolen. The significance of Owens and Shaffer is that possession of stolen property in and of itself is not sufficient evidence from which a factfinder may conclude guilt beyond a reasonable doubt. Possession alone of the stolen property without a weighing of the other circumstances requires guessing or speculation as to the defendant’s knowledge that the property was stolen. If possession of the stolen property, without a consideration of any of the other circumstances, were sufficient for conviction, an innocent purchaser of stolen property could be convicted by possession alone. In this case, the appellee’s evidence, other than establishing that the appellant was in possession of stolen property, contained very few facts about other circumstances. The kind of property was established—a car and a license plate. The time of possession was two and a half to three weeks after the theft. There is very little else to support an inference that the defendant had reason to know or knew that the car and plate were stolen. Of. Commonwealth v. Wright, 449 Pa. 358, 296 A. 2d 746 (1972). We think this case is controlled by our decision in Owens. The only significant difference is that in Owens the kind of property was a gun and in this case the kind' of property is a car and license plate. We pointed out in Owens that there are many ways by which a person can come into possession of a gun—some of the ways involve innocence on the part of the possessor of the gun. The same is true of a car. The possession of an automobile which does not belong to the driver is not so strange, unusual, or unique that it points to guilty knowledge as more likely than innocent knowledge on the part of the driver. The borrowing or leasing of an automobile for temporary use is not an uncommon occurrence. If every person possessing an automobile which they did not own would be held accountable as having knowledge that the automobile was stolen, every person who borrowed a car would be in peril of a conviction for receiving stolen property. None of the cases cited by the appellee involved a conviction solely on the evidence that the defendant possessed stolen property. In United States v. Polk, 433 F. 2d 644 (5th Cir. 1970) there were circumstances established other than possession of stolen property. The defendants in that case had used false names, false addresses and a false place of employment. There was evidence that the alleged transferors of the automobile to the defendants were fictitious. In McAbee v. United States, 434 F. 2d 361 (9th Cir. 1970), the Court specifically pointed out that there was evidence other than the defendant’s possession of the stolen property. The defendant in that case had been employed at the ranch of the robbery victims and could have recognized the property involved as being stolen. See United States v. Johnson, 433 F. 2d 1160 (D.C. Cir. 1970); United States v. Nasse, 432 F. 2d 1293 (7th Cir. 1970); United States v. Thompson, 422 F. 2d 1104 (6th Cir. 1970); Kowalewski v. United States, 418 F. 2d 118 (9th Cir. 1969); Sewell v. United States, 406 F. 2d 1289 (8th Cir. 1969); Holden v. United States, 393 F. 2d 276 (1st Cir. 1968); Reese v. United States, 341 F. 2d 90 (10th Cir. 1965); United States v. McCurry, 248 F. 2d 116 (3d Cir. 1957). In this case the appellee had the burden of establishing sufficient circumstances, other than the possession of stolen property by the appellant, to support the necessary element of appellant’s guilty knowledge. This they failed to do. The appellant’s demurrer should have been granted. The order of the Superior Court and the judgment of sentence imposed by the trial court are reversed and the defendant is ordered discharged. Mr. Justice Eagen, Mr. Justice O’Brien and Mr. Justice Pomeroy concur in the result. Mr. Chief Justice Jones dissents.

OPINION FLAHERTY, Justice. On July 13, 1970, Howard Rutter, a boy of sixteen, was injured while participating in a Riverside High School summer football practice. The practice was supervised and conducted by two football coaches, appellees John North and Thomas W. George, Jr. At the time of the injury, the team, without wearing protective equipment, was engaged in a game of “jungle football.” Rutter was injured when a player on the opposing side, appellee Zimmerman, struck him in the right eye with an outstretched hand, causing blindness due to a detached retina. Rutter and his parents then filed suit against the Northeastern Beaver County School District, Riverside High School coaches Thomas W. George, Jr. and John North, and the opposing player, Gregg Zimmerman. The case went to trial and at the close of appellant’s case, appellees moved for and were granted a compulsory nonsuit. A motion to strike the nonsuit was denied by the trial court en banc, and the decision was appealed to the Superior Court, 283 Pa.Super. 155, 423 A.2d 1035, who affirmed the denial, Spaeth, J., dissenting. We granted allocatur and reverse. Appellant argues that (1) it was error for the court to enter a compulsory nonsuit; (2) the lower court erred in refusing to admit expert testimony; and (3) the lower court erred in holding, as a matter of law, that appellant voluntarily assumed the risk of all injuries incurred in playing jungle football. TRIAL ERRORS The standard for reviewing the validity of a compulsory nonsuit is as follows: . . . plaintiff must be given the benefit of every fact and reasonable inference arising from the evidence. (Citations omitted.) All conflicts in the testimony must be resolved in plaintiff’s favor and the entry of the compulsory nonsuit is only supportable in a clear case where the facts and circumstances have as the only conclusion the absence of liability. McKenzie v. Cost Brothers, 487 Pa. 303, 307, 409 A.2d 362, 364 (1979). In other words, “[a] nonsuit should be entered only in a clear case, and, on appeal from the refusal to take off a compulsory nonsuit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff(Emphasis supplied.) Cushey v. Plunkard, 413 Pa. 116, 117, 196 A.2d 295, 296 (1964). The facts and testimony of record read in the light most favorable to the appellant reveal that appellant, at the time of the injury, was sixteen years old and was engaged in a pre-season football training and practice activity sponsored by Riverside High School. This practice, conducted under the supervision of the school’s football coaches, proceeded without the use of protective equipment in spite of the fact that certain aspects of the practice involved rough body contact. Appellant had played football on the school team during the prior two years and had been a starting member of the team. He had also played “jungle football” during previous football practice sessions and was generally familiar with the game. Appellant and other members of the team attended a preseason football meeting during which the football coach informed them of the existence of the pre-season practice sessions and caused them to believe that if they did not attend the pre-season practice and training sessions, they would be unlikely to make the team. The practice sessions included various physical activities, such as weight lifting, running, hitting the blocking sled, and jungle football. Team members were expected to participate in all aspects of the practice sessions. On the day of the injury, the coach directed the team to begin a game of jungle football after other aspects of that day’s practice had been concluded. Play in the jungle football exercise was rough, involving body blocks, tackling, and the participants played hard, hoping to impress the coaches. The coaches themselves played in the jungle football game, and during the game, therefore, were not in a position to supervise the play. Appellant testified that he did not anticipate the loss of an eye as an injury he was likely to suffer while playing football. The game of jungle football as played by the Riverside football team was a variant on two-handed touch football in which any number of players was able to participate. Each team had four downs in which to score, and play began at a line of scrimmage. After the ball was snapped, the ball carriers or receivers could throw any number of forward, lateral or backward passes without regard to the thrower’s position on the field, either in front of or behind the line of scrimmage. Because of the unlimited passing of the ball, the game was fast-paced. Play was stopped when the ball carrier was tagged with two hands, or tackled, or when a pass fell incomplete. The lower court held that appellant assumed the risk of the injury which he suffered; that appellant failed to make out a case of negligence; and that appellant’s expert should not be permitted to testify. We first address the issue of expert testimony. Appellant attempted to introduce the expert testimony of Frank Cipriani, a former coach, to establish that the coaches of the Riverside football team were not conducting summer football practice sessions in conformity with the safety standards maintained at other Pennsylvania high schools, and that the practice sessions were in violation of the rules promulgated by the Western Pennsylvania Interscholastic Athletic League (W.P.I.A.L.). The Pennsylvania standard of qualification for an expert witness is a liberal one. “If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury.” Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). Coach Cipriani is a former football coach who has knowledge of the W.P.I.A.L. rules and the customary safety practices and procedures appropriate to high school football. As a former coach, Cipriani has specialized knowledge of the subject matter in question. His testimony is admissible provided that the ultimate determination of whether defendant’s conduct was negligent is left to the jury and that the subject matter is not within the common knowledge of laymen. Densler v. Metropolitan Edison Co., 235 Pa.Super. 585, 593, 345 A.2d 758 (1975). In Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967) we held that a qualified expert may be permitted to assert a relevant fact not generally known, but known to him because of his special training and experience. It seems clear that an experienced former football coach may have knowledge of the customs and safety standards utilized by coaches of high school football teams and of the rules imposed by the W.P.I. A.L. to insure minimum safety, which knowledge is not within the common knowledge of the average juror. This knowledge is relevant to the central question of negligence. The trial court, therefore, was in error in refusing to admit the testimony of Coach Cipriani. On the question of negligence, the trial court concluded that “no amount of supervision, instruction or equipment could have prevented” the injury, and for this reason, the negligence, if there was any, was not the proximate cause of the accident. The evidence, according to the trial court, “was not sufficient to permit the jury to consider the question of negligence.” Remembering that in considering the validity of a compulsory nonsuit, “the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and [that] all conflicts therein must be resolved in favor of the plaintiff,” Cushey v. Plunkard, supra, the trial court’s determination that there was no question of negligence for the jury was patent error. As Judge Spaeth remarks in his dissent, both the majority of the Superior Court and the Court of Common Pleas sitting en banc, ignored the testimony favorable to the appellant and, instead, viewed the evidence in the light most favorable to the appellee, thus reversing the very standard of review under which they were supposed to be operating. The Superior Court, for example, concluded that jungle football is no more dangerous than other forms of football and that the coaches were not negligent in their supervision of the game. Taking the evidence in the light most favorable to appellant, a “touch” football game in which tackling and body blocking occurs, which is initiated and supervised by the football coaches, in which no equipment is used, and which is played by team members attempting to impress coaches who are themselves engaged in the game, may be said at least to present a jury question as to the dangerousness of the game and the negligence of the coaches. A further example of viewing the evidence in the light most favorable to appellees instead of to appellants, this time from the en banc opinion of the Court of Common Pleas, is the court’s conclusion that protective equipment would not have prevented the injury and that the lack of supervision, if any, was not the proximate cause of the injury. Once again, taking evidence in the light most favorable to the appellant, a “touch” football game in which body blocking and tackling occurs, in which the coaches themselves participate instead of monitoring, may be said at least to present a jury question as to the negligence of the coaches in not providing protective equipment and in not monitoring the play. The lower courts were, therefore, in error in concluding that appellant had not made out a case of negligence sufficient to go to the jury. With regard to the assumption of risk issue, the trial court ruled that appellant, as a matter of law, was precluded from maintaining the action because he assumed the risk of the injury which he received. The doctrine of assumption of risk, as cited by the trial court, is articulated in the Restatement of Torts 2d at § 496 A: “A plaintiff who assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” (Hereafter the Restatement of Torts 2d shall be cited merely as Restatement.) This statement of law, so far as it goes, is correct, but for the reasons that follow, we hold that the trial court erred in barring the appellant’s action on the assumption of risk theory. As indicated in Part II infra, the Restatement categorizes assumption of risk into four discrete types. § 496 A, comment c, 1-4. Type 2, which could be applicable to this case, is described as follows: 2. [Pjlaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus, appellant allegedly assumed the risk by voluntarily entering into the player-team relationship. The relief from responsibility granted a defendant under this section arises by operation of law and is a legal consequence of the relationship. The Restatement authors give § 496 C as a further reference concerning this type of assumption of risk. Most importantly, section 496 C, comment “a” indicates that knowledge and voluntariness are elements of an implied assumption of risk, and that these elements are discussed at sections 496 D and E, respectively. The policy behind implied assumption of risk, indicated at § 496 C, comment “b”, is that “the law refuses to permit one who manifests willingness that another shall continue in a course of conduct to complain of it later if he is hurt as a result of it.” The problems of knowledge and voluntariness will be discussed presently, but first we consider the import of this policy statement. An initial question, in light of this policy, is whether there was in fact a manifestation in this case of a willingness that appellee should continue in its course of conduct. Comment “h” of section 496 C deals with this problem: h. Manifestation of acceptance. The basis of assumption of risk is consent to accept the risk. In order for assumption of risk to be implied from the defendant’s conduct, it must be such as fairly to indicate that the plaintiff is willing to take his chances. Implied consent is consent which exists in fact, but is manifested by conduct rather than by words. It is not every voluntary encountering of a known and understood danger which is reasonably to be interpreted even as evidence of actual consent. A plaintiff, for example, who dashes into the street in the middle of the block, in the path of a stream of cars driven in excess of the speed limit, certainly does not manifest consent that they shall be relieved of the obligation of care for his safety. This is merely contributory negligence, and not assumption of risk. Since the interpretation of conduct is seldom so clearly indicated that reasonable men could not differ as to the conclusion, it is ordinarily a question for the jury whether what the plaintiff has done is a manifestation of willingness to accept the risk. (Emphasis supplied.) In the present case, appellant does not admit that he accepted or even knew of the risk. Since the question of whether appellant’s behavior manifested acceptance of risk is precisely the kind of question on which reasonable men can disagree, the question should have been presented to the jury. Even if it could be said that appellant’s behavior manifested an assent to take the risk, however, there are questions as to the appellant’s comprehension of danger and voluntan ness of action. Accordingly, we turn to Restatement §§ 496 D and E on the questions of comprehension and voluntariness. Section 496 D and pertinent comments, concerning knowledge and appreciation of risk, provide: § 496 D. Knowledge and Appreciation of Risk except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he then knows of the existence of the risk and appreciates its unreasonable character. Comment: b. The basis of assumption of risk is the plaintiff’s consent to accept the risk and look out for himself. Therefore he will not be found, in the absence of an express agreement which is clearly so to be construed, to assume any risk unless he has knowledge of its existence. This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character, and extent which make it unreasonable. Thus the condition of premises upon which he enters may be quite apparent to him, but the danger arising from the condition may be neither known nor apparent, or, if known or apparent at all, it may appear to him to be so slight as to be negligible. In such a case the plaintiff does not assume the risk. His failure to exercise due care either to discover or to understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence. c. The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. In this it differs from the objective standard which is applied to contributory negligence. (See §§ 464, 289 and 290.) If by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation; he will not be taken to assume the risk, although it may still be found that his conduct is contributo ry negligence because it does not conform to the community standard of the reasonable man. e. Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion. (Emphasis supplied.) It is axiomatic that appellant cannot be found to have implicitly assumed a risk of which he had no knowledge. Comment “b” states that the whole concept of implied assumption is based on the actor’s consent to accept the risk and look out for himself, which necessarily entails, according to comment “b”, that the actor understand the “nature, character, and extent of the danger in addition to the facts which create the danger (comment “b”). The standard of knowledge applied under this section is subjective, which means that the trier of fact, in determining what knowledge appellant had, may consider his age, lack of information, experience, intelligence or judgment (comment “c”). We are concerned with what appellant actually knew, and not what the reasonable man should have known. As comment “e” indicates, “the court may itself determine the issue only where reasonable men could not differ as to the conclusion.” In this case, appellant’s testimony was: “I never imagined that I would lose my eye.” Viewing the testimony in the light most favorable to appellant, he did not knowingly encounter the danger. Since appellant’s knowledge is assessed on a subjective basis, and since appellant was a young person of limited experience, it was improper for the court to grant a compulsory nonsuit as a matter of law based on appellant’s supposed assumption of risk. Barring the action on an assumption of risk theory was error also because there is a question as to whether appel lant’s action was voluntary. Restatement § 496 E and pertinent comments concerning voluntariness, provide: (1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk. (2) The plaintiffs acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to . . . (b) exercise or protect a right or privilege of which the defendant has no right to deprive him. Comment: c. The plaintiff’s acceptance of the risk is not to be regarded as voluntary where the defendant’s tortious conduct has forced upon him a choice of courses of conduct, which leaves him no reasonable alternative to taking his chances. A defendant who, by his own wrong, has compelled the plaintiff to choose between two evils cannot be permitted to say that the plaintiff is barred from recovery because he has. made the choice. Therefore, where the defendant is under a duty to the plaintiff, and his breach of duty compels the plaintiff to encounter the particular risk in order to avert other harm to himself, his acceptance of the risk is not voluntary, and he is not barred from recovery. The same is true where the plaintiff is forced to make such a choice in order to avert harm to a third person. It is true likewise where the plaintiff is compelled to accept the risk in order to exercise or protect a right or privilege, of which the defendant has no privilege to deprive him. The existence of an alternative course of conduct which would avert the harm, or protect the right or privilege, does not make the plaintiff’s choice voluntary, if the alternative is one which he cannot reasonably be required to accept. (Emphasis supplied.) The voluntariness of the assumption of risk remains at issue in this case because appellant may have been wrongfully forced to choose between two evils. Voluntariness cannot be implied merely from the fact of a relation ship. That appellant volunteered to play football is not dispositive of whether he volunteered to play jungle football. For the sake of deciding whether appellant is barred on an assumption of risk theory pursuant to § 496 E(2)(b), and viewing the evidence in the light most favorable to appellant, we may assume that appellee’s conduct was in fact tortious. We may also assume that the appellant, in trying out for the football team, was exercising a right or privilege connected with his enrollment at Riverside High School, and that appellees had no right to deprive him of this right or privilege. The question, therefore, is whether appellant “voluntarily” assumed the risk. Reviewing the evidence in the light most favorable to appellant, we conclude that the football coach announced prior to the summer vacation that there would be pre-season football conditioning practice and implied that those boys not participating would not be likely to make the team; jungle football was a part of the conditioning practice drills and participation was expected in all aspects of the practice including jungle football. There is at least a question for the jury, then, as to whether appellant was compelled to accept the risk of playing jungle football in order to exercise or protect his right or privilege to play football (§ 496 E, comment “c”). If he was so compelled, the acceptance of the risk was not voluntary, and thus he was not subject to the bar of the rule. Similarly, there is at least a question for the jury as to whether appellant had a reasonable alternative course of action (§ 496 E, comment “c”). The court, therefore, was in error in granting a compulsory nonsuit since there was a jury question as to whether the assumption of risk, if any, was voluntary, and if it was not, whether there was a reasonable alternative course open to appellant. For these reasons, we hold that the lower court erred in the following respects: in denying appellant’s expert an opportunity to testify; in deciding that appellant had not made out a sufficient case of negligence to go to the jury; and in granting a compulsory nonsuit against appellant because he had not made out a sufficient case of negligence to go to the jury and because he was barred from recovery by application of the assumption of risk doctrine. Because the assumption of risk doctrine presents serious problems of application and analysis, as evidenced by this case, we deem it appropriate to explore further the origins of the doctrine and the question of whether it should continue to be used in the Commonwealth. II. THE ASSUMPTION OF RISK DOCTRINE The assumption of risk doctrine is a late development in the common law, having achieved a certain notoriety because it came to be associated with master-servant cases. It was used in these cases as a device to prevent workmen from recovering against their employers for injuries received during employment. See Prosser, The Handbook of Torts § 67 (3d Ed. 1964) (Hereafter Prosser); Bohlen, “Voluntary Assumption of Risk,” 20 Harv.L.Rev. 14 (1906) (Hereafter Bohlen). As the United States Supreme Court remarked in Tiller v. Atlantic Coast Line R. Co.: Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning of this period [the industrial revolution] to insulate the employer as much as possible from bearing the “human overhead” which is an inevitable part of the cost — to someone — of the doing of industrialized business. The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry. 318 U.S. 54 at 58-59, 63 S.Ct. 444 at 446-47, 87 L.Ed. 610 (1943). Although the doctrine gained widespread legal acceptance in the master-servant cases, it has never been restricted to such cases. Rather, the doctrine applies to many different settings apart from an employment context and reflects the individualism of the common law: The maxim volenti non fit injuria is a terse expression of the individualistic tendency of the common law, which proceeding from the people and asserting their liberties, naturally regards the freedom of individual action as the keystone of the whole structure. Each individual is left free to work out his own destinies; he must not be interfered with from without, but in the absence of such interference he is held competent to protect himself. While therefore protecting him from external violence, from imposition and from coercion, the common law does not assume to protect him from the effects of his own personality and from the consequences of his voluntary actions or of his careless misconduct. The doctrine of the so-called voluntary assumption of known risks is but one of the expressions of this fundamental idea; other exhibitions of it, differing only with the conditions to which the conception is applied, are the defenses of consent and of contributory negligence. None of these is identical with any other, none is derived from the other; all are derivatives from a common source. In the law of torts, at least, the idea of any obligation to protect others was abnormal. Bohlens, supra at 14. There is a serious question as to whether the doctrine of assumption of risk, which has had its origins in a now somewhat disfavored legal philosophy and which has presented problems of application of a type well illustrated by this case, should be permitted longer to survive. For reasons apparent in the following discussion we think it should not. The complexity of the doctrine and its consequent difficulty of application are well illustrated in the Restatement’s analysis of the four discrete meanings of the term given at § 496 A, comment c, 1-4: 1. In its simplest form, assumption of risk means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk. The result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff. As to such express assumption of risk, see § 496 B. 2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff. As to such implied assumption of risk, see § 496 C. 3. In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it. For example, an independent contractor who finds that he has been furnished by his employer with a machine which is in dangerous condition, and that the employer, after notice, has failed to repair it or to substitute another, may continue to work with the machine. He may not be negligent in doing so, since his decision may be an entirely reasonable one, because the risk is relatively slight in comparison with the utility of his own conduct; and he may even act with unusual caution because he is aware of the danger. The same policy of the common law which denies recovery to one who expressly consents to accept a risk will, however, prevent his recovery in such a case. As to such implied assumption of risk, see § 496 C. As to the necessity that the plaintiff’s conduct be voluntary, see § 496 E. 4. To be distinguished from these three situations is the fourth, in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible. (See § 467.) At least two major problems arise when the doctrine is applied to this case. First, although it would seem that the “assumption of risk,” if there is one, would arise under type 2 because of an apparently voluntary relation between appellant and the school district, coaches and other players which is fraught with known risks. However, the case might fit under type 3 as well. It might be said that appellant voluntarily proceeded to encounter a known danger created by the appellee’s negligence. The confusion that results from this dual classification is that once the case is identified as belonging to type 2, there is a tendency not to question the voluntariness of the relationship, absent evidence of overt coercion, because the type 2 relationship itself is said to give rise to the assumption of risk. On the surface, voluntariness seems to be assumed. Accordingly, once the case is categorized as a type 2 case, the analysis of voluntariness seems to be that if appellant voluntarily played football (i. e., if he voluntarily entered into a relationship with the school district), he voluntarily assumed the risk of injury due to playing football. To show the fallacy of this view it is necessary to discuss a second major problem related to the practical application of the assumption of risk doctrine: the proper definition of “risk”. What risk can appellant be said to have voluntarily-assumed? One possibility is that he assumed the risk of all injuries related to training for and playing football. A second possibility is that he assumed the risk of all injuries related to training for and playing football while under the direction of coaches who furnished watchful supervision and protective equipment when needed. It is apparent that when the risk is defined more narrowly, as we think it should be, the analysis of voluntariness changes. In order to voluntarily engage in any activity, one must know what the activity is and then decide, as a matter of choice, to participate. Appellant was familiar with varsity football and he voluntarily participated in it, but it does not follow that he voluntarily participated in jungle football if such participation was required to make the varsity team. The fact that appellant voluntarily tried to make the football team, therefore, has nothing to do with whether he voluntarily played jungle football. Another way to put this is that the voluntariness of appellant’s act must be proximately related to the danger (or the risk) which caused the injury. Otherwise, the question of voluntariness, which is said to be at “the basis” of assumption of risk, Restatement § 496 E, comment a, would be avoided, for the only relevant voluntariness is voluntariness related to the risk. In this case, appellant’s voluntary act was that he associated himself with an athletic program which was presumed to be competently and safely administered. It is at least a jury question whether appellant’s voluntary association extended to the jungle football activity. And that question must be answered, for it was during the jungle football game that the injury occurred. A similar problem arose in Green v. Sanitary Scale Co., 431 F.2d 371 (3d Cir. 1970), where a sixteen year old boy, employed by a grocery to wrap and package meat, was injured when his hand was caught in the worm gear of a meat grinder. He had been directed to grind a piece of meat in the machine and had pushed the meat into the grinder with his hand because, according to his testimony, the metal stomper was often not effective in pushing the meat into the worm gear. He had not been given instruction in the use of this machine and had not used it more than a few times during the course of his two-year employment. His testimony was that when he first tried to extract his hand from the funnel of the meat grinder, his hand was above the worm gear itself, but that he could not extract his hand and it was pulled into the worm gear as the meat went down. The district court refused to give an instruction on assumption of risk and the case went to the jury on a contributory negligence defense. The jury awarded a verdict for the plaintiff and the defendant argued on appeal that the trial court’s refusal to instruct on assumption of risk was error. The United States Court of Appeals for the Third Circuit reversed and awarded a new trial, holding that an instruction on assumption of risk should have been given. Judge Staley, in a strong dissent, argued that the trial court was not in error and that the majority’s statement of the nature of the risk assumed did not comport with the proof. Citing the Restatement 2d § 496D, Judge Staley noted that: “[A] plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he knows of the existence of the risk and appreciates its unreasonable character.” He then stated that the majority’s definition of the risk assumed in this case as the danger that if one places one’s hand in the worm gear, it will be injured. Judge Staley would have defined the risk as the danger that if one places one’s hand in the funnel of the meat grinder, the hand will be drawn into the worm gear by the meat. He formulated the definition of risk this way because of plaintiff’s testimony that while he was aware of the danger of putting his hand into the worm gear, he was unaware of the danger that the meat, once inserted into the machine, would catch his hand and draw it into the worm gear. The Green case illustrates that the problem of defining risk is recurrent and that the way risk is defined affects the analysis of plaintiff’s knowledge as well as the voluntariness of his assuming the risk. Together, the present case and the Green case illustrate the difficulty courts have had in applying the doctrine to the cases before them. It seems probable in the present case that the lower courts did not recognize the importance and applicability of questions of voluntariness and knowledge, in part, because they did not properly define the risk. This may also have led to the erroneous exclusion of expert testimony, for once it is seen that the negligence of the coaches is related to the risk said to have been assumed, the relevance of the expert’s testimony is clear. As one commentator has pointed out, the complexity of the doctrine may not be worth the difficulty it causes, for assumption of risk is duplicative of the more widely understood concepts of scope of duty and contributory negligence 2 Harper and James, The Law of Torts, § 21.8 at 1191 (1965). Justice Frankfurter, concurring in Tiller v. Atlantic Coast Line Railroad Co., supra, wrote: Because of its ambiguity the phrase “assumption of risk” is a hazardous legal tool. As a means of instructing a jury, it is bound to create confusion. It should therefore be discarded. Supra at 72, 63 S.Ct. at 454 — 55. A similar idea was expressed by the Supreme Court of New Jersey, commenting on the ambiguity of the meanings of “assumption of risk”: In Meistrich v. Casino Arena [31 N.J. 44, 155 A.2d 90] ... we pointed out that assumption of the risk was theretofore used in two incongruous senses: in one sense it meant the defendant was not negligent, while in its other sense it meant the plaintiff was contributorily negligent. We said that in truth there are but two issues— negligence and contributory negligence — both to be resolved by the standard of the reasonably prudent man, and that it was erroneous to suggest to the jury that assumption of the risk was still another issue. It was our hope that after Meistrich the bench and bar would focus upon the true issues, but unhappily some cling to the terminology of assumption of risk and continue to be misled by it even while purporting to think of it as merely a convertible equivalent of negligence or contributory negligence. McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238, 239-240 (N.J. 1963). (Emphasis supplied.) We agree that the difficulties of using the term “assumption of risk” outweigh the benefits. The issues should be limited to negligence and contributory negligence. Those are the problems in the case at bar and in all cases brought on a negligence theory. There is no need to introduce further complications. The policy reasons which once existed to preserve the doctrine because of its use in the master-servant cases no longer exist. Furthermore, as is indicated in the Pennsylvania Suggested Standard Jury Instructions, “cases which have evoked the doctrine to deny plaintiff’s recovery would have produced the same result either by (1) the court’s determination that, as a matter of law, defendant owed plaintiff no duty, or, by (2) the jury’s determination that plaintiff’s own negligent conduct was a substantial factor in bringing about the harm he suffered.” § 3.04 (1981). For the reasons set out herein, we hold that except where specifically preserved by statute; or in cases of express assumption of risk, or cases brought under 402 A, (a strict liability theory), the doctrine of assumption of risk is abolished. The order of the Superior Court is reversed, the motion to remove the compulsory nonsuit is granted, and the case is remanded to the Court of Common Pleas of Beaver County for proceedings not inconsistent with this Opinion. O’BRIEN, J., concurs in the result. ROBERTS, J., files a dissenting opinion in which WILKINSON, J., joins. NIX, J., files a dissenting opinion in which WILKINSON, J., joins. . The transcript indicates the following with respect to the offer of proof: MR. IRVIN: I call Mr. Frank Cipriani. FRANK P. CIPRIANI, called as a witness, having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. IRVIN: Q. Give the Court and jury your full name. A. Frank P. Cipriani Q. How old are you, Mr. Cipriani? A. Thirty-seven years old. MR. MILLS: Excuse me. May we have permission to approach the Bench. THE COURT: Very well. (Whereupon, Mr. Irvin presented his offers of proof as to Mr. Cipriani — testimony as to coaching standards, use of safety equipment, testimony as to WPIAL Rules — reported, not transcribed. Counsel for Defendants having made objections to the offers of proof, the Court sustained the objections. Whereupon, Mr. Irvin rested Plaintiffs case as to liability. Counsel for Defendants moved for a compulsory non-suit, Court granted motions for compulsory non-suit.) . As indicated in Part II, infra, the present case may fit into more than one of the Restatement’s types. . This type of analysis is articulated in Note, “Contributory Negligence and Assumption of Risk — The Case for Their Merger,” 56 Minn.L.Rev. 47, 49 (1971). The fundamental elements of assumption of risk, type 2, according to the author of the Note, are: (1) the parties have entered into a voluntary relationship; (2) the plaintiff, by entering into this relationship, assumes the risks incidental to it; (3) the defendant has no duty with respect to these incidental risks — thus if plaintiffs injury arises from an incidental risk, defendant is not negligent because he did not breach a duty; (4) the conduct of plaintiff in encountering the particular risk is not relevant because he assumes the risk as a matter of law when he voluntarily enters into the relationship with the defendant — thus plaintiff assumes the risk even if his conduct is reasonable and even if he does not know or appreciate the particular risk at the time he encounters it. We specifically reject this analysis (that plaintiff need not know or appreciate the risk) because of the general requirement of § 496 C and D that a plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he knows of the existence of the risk and appreciates its unreasonable character. . The Pennsylvania Workmen’s Compensation Act has abolished assumption of risk as a defense. 77 P.S. § 41. The act covers most, but not all employees. 77 P.S. § 22 (Supp. 1981-1982). . We note that nineteen other jurisdictions have either seriously modified or abolished the assumption of risk doctrine. The list is as follows: Alaska — Leavitt v. Gillaspie, 443 P.2d 61 (1968) California — Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975) Delaware — see, Frelick v. Homeopathic Hosp. Ass’n, 1 Storey 568, 150 A.2d 17 (1959) Hawaii — Burrows v. Hawaiian Trust Co., 49 Haw. 351, 417 P.2d 816 (1966) Idaho — Fawcett v. Irby, 92 Idaho 48, 436 P.2d 714 (1968) Iowa — Rosenau v. City of Estherville, 199 N.W.2d 125 (1972) Kansas — Smith v. Blakey, 213 Kan. 91, 515 P.2d 1062 (1973) (except in master servant cases) Kentucky — Parker v. Redden, 421 S.W.2d 586 (1967) Michigan — Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965) Minnesota — Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971) New Hampshire — Bolduc v. Crain, 104 N.H. 163, 181 A.2d 641 (1962) New Jersey — McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238 (1963); Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959) New Mexico — Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1971) North Carolina — McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117 (1967) Oregon — Ritter v. Beals, 225 Or. 504, 358 P.2d 1080 (1961) Texas — Farley v. M M Cattle Co., 529 S.W.2d 751 (1975) Washington — Feigenbaum v. Brink, 66 Wash.2d 125, 401 P.2d 642 (1965); Lyons v. Redding Construction Co., 83 Wash.2d 86, 515 P.2d 821 (1973) Wisconsin — McConville v. State Farm Mutual Automobile Insurance Co., 15 Wis.2d 374, 113 N.W.2d 14 (1962); Gilson v. Drees Bros., 19 Wis.2d 252, 120 N.W.2d 63 (1963) Wyoming — Ford Motor Co. v. Arguello, 382 P.2d 886 (1963) . We note that the abolition of the doctrine of assumption of risk is even more appropriate in view of the Pennsylvania comparative negligence statute, 42 Pa.C.S.A. § 7102, which was adopted subsequent to this case and which provides: (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. (b) Recovery against joint defendant; contribution. — Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution. (c) Downhill skiing.— (1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing. (2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (b). For the further reasons that follow, we conclude that the continuation of the doctrine of assumption of risk is inappropriate in a context of comparative negligence. We have already seen that the complexity of the doctrine and the difficulty of its application is a significant problem. Additionally, we have considered the four types of assumption of risk enumerated at Restatement § 496 A, comment c, 1-4, supra, and have concluded that types 2, 3, and 4 should be abolished. At least as to type 4 cases, where assumption of risk coincides with contributory negligence, application of the doctrine operates to frustrate the very result that the comparative negligence statute was designed to achieve. The California Supreme Court, writing on this problem, has stated: [T]he adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. Li v. Yellow Cab, 13 Cal.3d 804, 825, 119 Cal.Rptr. 858, 532 P.2d 1226, 1241 (1975). Dean Prosser, writing on the same subject, stated that retention of the assumption of risk defense after legislative adoption of comparative negligence: in all probability ... defeats the basic intention of the statute, since it continues an absolute bar in the case of one important, and very common, type of negligent conduct on the part of the plaintiff. It can scarcely be supposed in reason that the legislature has intended to allow a partial recovery to the plaintiff who has been so negligent as not to discover his peril at all, and deny it to one who has at least exercised proper care in that respect, but has made a mistake of judgment in proceeding to encounter the danger after it is known. Prosser at 457 (4th ed. 1971). As to type 4, we are of the opinion that its continued viability in Pennsylvania is incompatible with the legislative policy of recovery based on fault that is reflected in the comparative negligence statute. Types 2 and 3 concern implied voluntary assumptions of a known risk. The implication that a risk has been assumed arises in type 2 by operation of law as a consequence of the relation entered into between plaintiff and defendant. The legal consequence of such a relationship, e. g., when a patron pays to attend a baseball game, is that the defendant is relieved of duty as to the plaintiff. In type 3, the implication of voluntary assumption arises when the plaintiff, aware of a risk created by the negligence of defendant, voluntarily proceeds or continues to encounter it. As is indicated in § 496 C, comment g, the implicit decision to assume the risk can be either reasonable or unreasonable. Since the Pennsylvania comparative negligence statute is designed to apportion liability on the basis of fault, not to bar plaintiffs recovery if it can be shown that he had any degree of fault at all, the absolute bar to plaintiffs recovery effected by the application of types 2 and 3, without regard to the reasonableness of plaintiffs action, tends to frustrate the purpose of the comparative negligence statute. Assumption of risk, types 2, 3 and 4, therefore, which act as a complete bar to recovery, regardless of the reasonableness of plaintiffs behavior, are incompatible with our comparative negligence statute and should be abolished for this reason as well as for the other reasons given.

Opinion by Mr. Justice Cohen, On September 3, 1945, White, the appellee (lessor), leased an eighty-four acre tract of land to Young, the appellant (lessee), for the purpose of drilling and operating for petroleum, oil and gas. The lease was for a term of ten years, “and as much longer as [o]il or [g]as is found in paying quantities, or the hereinafter described rental is paid.” As is customary with this type of lease, rental was to be based upon a fractional division of the amount of oil and gas produced, with the lessor to receive a one-eighth royalty from such oil and gas. Since the tract in question was farmland, the agreement provided that wells were to be located in such a manner as to least interfere with lessor’s farming activities. Lessee drilled a well on the premises which produced oil in paying quantities until June 1, 1955. At that time operations ceased and have not subsequently resumed. No royalties have been paid since June 28, 1955. In January, 1956, lessee removed the motor from the pump on the well and in September, 1957 lessee pulled the rods from the pump. The tract is in demand for the erection of dwelling houses but because of the existence of the oil lease the lessor has been hampered in his attempts to sell parcels of land within the tract. After notifying the lessee in writing that the lease had been terminated, the lessor brought a complaint in equity predicated upon the theory that the lease had expired, by its terms, since no royalties had been paid for over three years and no oil had been found “in paying quantities”. Lessor also contended in the alternative that the lessee had abandoned his leasehold interest. He prayed the court to decree that the lease be declared terminated; that the lessee be required to execute and deliver a surrender of the lease; and that the lessee be required to remove from the leased premises the remaining equipment and to plug the well. The lessor alleged that the presence of the equipment connected with the well, consisting of a tank, pump, jack, rods, pipes, etc., interfered with the lessor’s use of the land for agricultural purposes. Lessee filed preliminary objections stating that lessor had a complete and adequate remedy at law under Pa. R.C.P. 1061 and that equity was therefore without jurisdiction under the facts alleged. The lower court dismissed the preliminary objections whereupon the lessee appealed under the Act of March 5, 1925, P. L. 23, 12 P.S. §672 et seq. On allocatur to this Court from the Superior Court we dismissed the appeal because it did not raise at that time an appeal-able question under the aforesaid act. White v. Young, 402 Pa. 61, 166 A. 2d 663 (1960). Thereafter the case was tried and the court below held that the lessor was entitled to the relief requested. An appeal to this Court followed. The issues confronting us are twofold: (1) Does equity have jurisdiction over this case?; (2) If it does, was the court below correct in finding that the lease had been terminated or that the leasehold interest had been abandoned? We conclude that the court below did have jurisdiction over the cause of action and properly found that the lease had expired. Lessee contends that an adequate and complete remedy exists at law under Rule 1061 of the Rules of Civil Procedure. The pertinent parts of the rule are as follows: “action to quiet title “Rule 1061. Conformity to Assumpsit. Scope. “(a) Except as otherwise provided in this chapter, the procedure in the action to quiet title from the commencement to the entry of judgment shall be in accordance with the rules relating to the action of assumpsit. “(b) The action may be brought ... (2) where an action of ejectment will not lie, to determine any right, lien, title or interest in the land or determine the validity or discharge of any document, obligation or deed affecting any right, lien, title or interest in land; (3) to compel an adverse party to file, record, cancel, surrender or satisfy of record, or admit the validity, invalidity or discharge of, any document, obligation or deed affecting any right, lien, title or interest in land . . .” Since Eule 1061 is of comparatively recent vintage “its lines and contours have not yet been sharply defined.” Versailles Township Authority v. McKeesport, 171 Pa. Superior Ct. 377, 383, 90 A. 2d 581, 584 (1952). The underlying purpose of the rule is to unify into one single procedure all of the diverse procedures by which clouds on title were formerly tried. 1 Goodrich-Am-ram §1061 (b)-1. While this rule is to be given a liberal construction, as the commentary to the rule states “[i]t is only within the strict coverage of the definition of the action that a claim of consolidation of law and equity can be advanced.” 1 Goodrich-Amram §1061 (b)-5 at 32. Although the rule elaborates in detail the type of proceedings which it encompasses, it does not purport to cover those cases which require the grant of injunctive relief. In the case before us it is obvious that the law side of the court could not issue an injunction requiring the lessee to remove the equipment and cap the well. Only a court sitting in equity can issue such an order. If equity did not accept jurisdiction over this cause of action, an unfortunate situation would ensue. The case would be referred to the law side where lessor’s title would be adjudicated under Rule 1061. When lessor prevailed in that action, he would then have to go to equity to obtain the above-mentioned relief. Certainly it was not the intendment of the rule that there be two suits where formerly there was one. Since the remedy at law is inadequate as to the part of the proceedings involving injunctive relief, a court of equity should take jurisdiction over the entire controversy in order to do complete justice and to avoid piecemeal litigation. Goodrich-Amram, supra; 3 Anderson Pa. Civ. Pract. 126 (1961 Supp.) ; Sunshine Chapel v. Hohmann, 16 Beaver 37 (Pa. 1954); City of New Castle v. Lawrence County, 63 Pa. D. & C. 363, 369 (1948). See also, Schrader v. Heath, 408 Pa. 79, 182 A. 2d 696 (1962). Lessee also contends that he will be deprived of his right to a trial by jury if equity assumes jurisdiction. This argument is ill-founded since even if lessee tried the case on the law side he would not be entitled to a trial by jury under Rule 1061. Although Rule 1061 (a) states that actions to quiet title “shall be in accordance with the rules relating to the action of assumpsit,” this was intended to relate to pleadings and similar matters and was not meant to confer a trial by jury. Since there was no right to trial by jury under a bill of quia timet, Rule 1061 does not create such a right. The Procedural Eules Committee recognized the confusing nature of the above-quoted language and clarified it by adding a note to Eule 1061 stating that “No right to trial by jury is conferred by this rule.” Turning to the merits of the controversy, we conclude that the lower court correctly found that the lease had terminated. The words used in the lease to denote its duration, i.e., “. . . as much longer as [ojil or [g]as is found in paying quantities, or the hereinafter described rental is paid,” have a well settled meaning and application. Cassell v. Crothers, 193 Pa. 359, 44 Atl. 446 (1899). Cf. Clark v. Wright, 311 Pa. 69, 166 Atl. 775 (1933). Here, the facts are uncontroverted that neither oil nor gas was found in paying quantities, nor royalties paid for over three years after the expiration of the fixed ten-year period of the lease. The sole reason the lessor entered into this lease was to receive royalties. It would be inequitable to encumber the land of the lessor indefinitely because of the faint hope that oil or gas might be extractable sometime in the future. Under these circumstances it has been held that the lease is treated like a tenancy at will which is terminable by either party. Cassell v. Crothers, supra. When the lessor notified the lessee in writing of his. intent to terminate the lessee’s oil and gas rights this terminated the tenancy at will. In view of our affirmance on this ground we will not consider the question of whether the leasehold interest had been abandoned. Decree affirmed. Lessee does not argue that an action of ejectment would be appropriate under the facts of this case. It was promulgated by this Court, effective January 1, 1947. As the following part of this opinion will indicate. Even if an action of ejectment would be appropriate, the lessee would not be deprived of a jury trial since the court below stated that “if an action of ejectment were instituted, the Court would be required to direct a verdict for the plaintiff”. Pa. R.G.P. 1061, Note of the Procedural Rules Committee added March 14, 1962. See also, Goodrich-Amram, Commentary to R. 1061 (Supp. 1962). It should be noted that there is no problem of applying this Note retroactively since it did not change the law in any respect but merely clarified it.

Tilghman C. J. In this case there is a bill of exceptions to the admission of Mary Reichart's deposition as evidence, and also an exception to the opinion of the court on the evidence, in their charge to the jury. Before the deposition was offered, Reichart, the defendant below, had given in evidence a deed from his father Henry Reichart to himself, for the land in dispute. The deed was expressed to be made in consideration of sundry debts paid by the son for the father, and in consideration that the son had, for a long time, supported his father’s wife, and also of 5s. paid by the son to the father. The deposition went to prove, that at the time of the execution of the deed, the grantor declared “ that “ he only did it for a sham, so that the people could not “come at his land.” It does not appear that the grantee was present at the time of this declaration, or in any manner assenting to it, so that I cannot conceive any principle of law under which ,it was admissible. The question is not (as the counsel treated it in the argument) whether parol evidence might be admitted to show a fraud, or a secret trust, but whether ex parte declarations of the grantor were evidence to contradict his deed. There is no occasion to say, whether such declarations might be admitted as supplementary evidence, a ground having been laid by previous testimony tending to show a trust, for the case on the record stands on the naked unsupported deposition. Under these circumstances, I am clearly of opinion that it was not evidence. In considering the judge’s charge, it appears that the whole evidence is not set forth in the record; for in stating the facts, he mentions that Henry Reichart was in jail, and had suspicions that his property would be forfeited to the commonwealth. There ss nothing of this in Mary Reichart’s depo-ition. She only says that her husband was in jail, and declared that he made the conveyance to prevent the people from coming at his land. I should rather understand front this, that he meant to defraud his creditors, or, perhaps, if he was charged with felony, those persons who, on- his conviction, would be intitled to restitution of their stolen property, and may be considered in the light of creditors. It is impossible to form a satisfactory opinion on the case as it really stood before the court of Common Pleas, because we are left to guess at it. But, taking it on the deposition, which is the only evidence on the record, it appears that Henry Reichart made a conveyance to his son with an intention of defrauding some persons who had just claims on his property. That being the case, the deed would be void as to the persons intended to be defrauded, but good against himself and his daughters claiming under him. The judge was mistaken in his opinion, when he placed the daughters on the footing of creditors. Creditors have a legal right to take the property of their debtor in execution; and any conveyance made to defeat them is void, not only by statute, but at common law. But children have no such right. What they receive from their father is his bounty, and he has the undoubted right of disinheriting them, either by deed or will. The judge concluded his charge by telling the jury, that if they believed the deposition, of Mary Reichart, as he did, their verdict should be for, the plaintiffs. In this he was wrong, for it is only proved by that deposition, that the grantor declared the conveyance to be intended by him as a sham &c., but not that the grantee considered it as a sham. Now if a man makes a voluntary.conveyance to his son, and delivers to him the deed and possession of the land, the conveyance cannot be avoided, either by the father or the other children claiming under him, whatever may have been the secret intention of the father, uncommunicated to the son. Upon the whole of this record, I am of opinion that there is error, both in the admission of the deposition of Mary Reichart, and in the charge of the court. The judgment must therefore be reversed, and a venire facias de novo be awarded. Yeates J. The law on principles of general policy, will not permit the grantor of lands to invalidate his own conveyance by declarations subsequently made, nor will it suffer a man to make evidence for himself. The assertions of a vendor of lands in the presence of his vendee, have been received in evidence, on the grounds contained in the maxim, of “ qui facet, consentiré videturIt is true, where reasonable grounds have been previously laid before the court, to induce a belief, that a fraud has been committed to the injury of third persons, testimony is admissible of the declarations of either of the parties to such fraud in the absence of the other party, in like manner as is done in charges of conspiracy. Applying these rules to the case before the court, it not appearing that George Reichart was present when Henry Reichart made the declarations detailed in the deposition of Mary Reichart, nor any circumstances shown, which would evince a meditated fraud on others, before the paper was offered in evidence, I am of opinion that the same was improperly received. If the object of the parties to the deed in controversy w.as really to establish a trust for the benefit of the father and his family, unaccompanied with any intention of defrauding others, a court of equity would grant relief against the defendant, who unconscientiously refused to execute that trust, by claiming the lands for his own benefit. But I am not aware of any decision, wherein equity has interposed in favour of the parties to the fraud. I see not, however, any thing in this case, which would justify me in considering the conveyance as a mere trust, nor what purpose it could possibly answer in the family, in that point of view. It-was considered in the charge of the court below, “that as the “ deed would be void against creditors, so ought it to be “ void against his female children, whom it is impossible “ to suppose the father intended to defraud. Next to the “claim of creditors, the claim of nature is be regarded.” From hence it was inferred, that the plaintiffs, the daughters of Henry Reichart, did not stand in the same situation as their father. To this system of reasoning, I cannot subscribe. It is not explicitly stated in the charge, what was the cause of Henry Reichart's confinement. It is barely mentioned, that he was in jail, and under the suspicion that his property would be sacrificed in some way or other to the state; and he then seems to have determined to cheat the commonwealth, whom he erroneously supposed would be intitled to his landed property. It has been said during this argument, that he was committed on suspicion of felony or burglary, and broke gaol before trial. I do not see that wc can take notice thereof, unless that fact appears on the record before us, though most probably some such matter was admitted upon the trial, which gave rise to the observations made by the court. Under the 30th section of the act of the 31st of May 1718, the persons intitled to the restitution of stolen goods on a conviction of larceny, may take out execution against the lands and chattels of an offender, and levy the amount thereof. And under the 9th section of the act of the 23d of September 1791, the same remedy is given on a conviction of robbery or burglary, to the owners of the goods stolen, and the residue of the lands and chattels of the offender is forfeited to the commonwealth. Upon a conviction therefore of either of these offences, the owners of the stolen goods might lawfully proceed against the lands of the offenders; and, in cases of robbery or burglary, there would be a forfeiture to the state. A conveyance made to elude those provisions would be fraudulent and void at common law, as well as under the statute of 13 Elizabeth, which was made in affirmance thereof, as to the parties intended to be injured thereby. The question then before us is reduced to one single point, on this part of the case: do the daughters of Henry Reichart stand in a different situation from their father as to this deed? The deed, however fraudulent as to creditors, as to him is valid and binding; and neither courts of law nor equity would relieve him against his own iniquity, voluntarily practised. His daughters claim under and through him; and, however innocent and unoffending they must be considered of the trick intended by their father, cannot, in . a legal sense, be deemed his creditors. His crime will be visited on them, and the law points out to them no mode of redress, which was not open to their father. Hence I conceive, that the charge of the court was erroneous in this, that the plaintiffs below stood in a different situation from their father as to the deed under consideration. I am of opinion, that the judgment of the court of Common Pleas be reversed, and a venire de novo awarded. Brackenridge J. was prevented by sickness from attending, and gave no opinion. Judgment reversed.

The opinion of the Court was delivered by Kennedy, J. The only question necessary to be determined in this case is, was the parol evidence, which was objected to by the counsel of the plaintiffs, admissible or not ? By the sixth section of the Act of the 18th of March 1775, which is a supplement to the Act of the 28th of May 1715, providing for acknowledging and recording of deeds, every recorder of deeds is required to keep a book, in which he shall immediately make an entry of every deed or writing brought into his office to be recorded, mentioning therein the date, the parties, and the place wherein such lands, &c., granted or conveyed by the said deed or writing, are situate, dating the same entry on the day in which such deed or writing was brought into his office. And again, by an Act, passed the 28th of March 1820, relative to mortgages, it is enacted that “from and after the first day of October next, all mortgages, or defeasible deeds in the nature of mortgages, made or to be made, or executed for any lands, tenements, or hereditaments, within the commonwealth, shall have priority according to the date of recording the same, without regard to the time of making or executing such deeds; and it shall be the duty of the recorder to endorse the time upon the mortgages or defeasible deeds when left for record, and to number the same according to the time when they are left for record, &c. And no mortgage, or defeasible deed in the nature of a mortgage, shall be a lien until such mortgage or defeasible deed shall have been recorded, or left for record, as aforesaid.” Now, in the case before us, it would seem as if the recorder, intending to. comply with the requirements of both these Acts, endorsed the 15th of December 1836 on the mortgage as the time when it was left for record, and likewise made an entry thereof, in a book kept by him for that purpose, mentioning the date of the mortgage, the parties thereto, &c., and dating the entry so made as of the 15th of December 1836. But after he had recorded it, intending most probably to comply also with the 3d section of the Act of 1715, providing for the acknowledging and recording of deeds, he gave a certificate on the back of the mortgage, under his hand and seal of his office, stating that it was recorded on the 15th of November 1836. This certificate, according to the 5th section of the same Act, is made evidence of the deed’s having been recorded, at least for a certain purpose, by its being therein declared, that “ all deeds and conveyances, made or to be made, and proved or acknowledged, and recorded as aforesaid, which shall appear so to be by endorsement made thereon, &c., shall be of the same force and effect here, for the giving possession and seisin and making good the title and assurance of the said lands, &c., as deeds of feoffment with livery of seisin,” &c. That such certificate is good evidence of the deed’s having been recorded, so as to give to it the effect and operation of a deed of feoffment with livery of seisin, as it regards the giving possession and seisin, and making good the title and assurance of the lands thereby conveyed, cannot be questioned; but that it is to be regarded as the best evidence of the date of the deed’s being recorded, or left in the recorder’s office for that purpose, when it differs from the date of the short entry made on the back of the deed at the time of its receipt for record, for the special purpose of showing the true date of such receipt, and likewise from the entry made at the same time, for the like purpose, in the book of the recorder, according in date with that of the short, entry endorsed on the deed, cannot be admitted or- sustained upon any rational ground whatever; because the certificate endorsed upon the deed, of its having been recorded, is never made at the time of receiving it for record; nor can it be made with propriety until after the deed has been actually recorded, which may not be for weeks after it has been left or received for record. Generally, perhaps, it is done when the party entitled to it calls afterwards at the recorder’s office to lift and take it away; which may be months after the time it was left for record. And as the deed, when recorded, takes effect as a recorded deed from the date of leaving it in the office for that purpose, the recorder, when he comes to make out a certificate under his hand and his seal of office of the deed’s having been recorded, ought, if he undertakes to insert therein the date of its being recorded, to insert, as such, the same day that he received it for record, as it shall appear from his short entry made on the deed, and likewise in his book kept for that purpose, both being made at the time the deed was received for record, for the special purpose of showing, at all times thereafter, the day when it was so received, and not to insert a different day suggested by his recollection merely, which may be frail or treacherous, and therefore much less to be relied on for accuracy than a written entry thereof, made at the time of the receipt of the deed for record. Besides, the entry made in the book of the recorder, kept in his office for that purpose, of the day when the deed was received for record, ought and must be considered as the true and correct date thereof, because it is required to be made therein with a view that persons, disposed thereafter to become purchasers of, or interested in any way in the estate transferred by the deed, may be informed thereof by making inquiry at the recorder’s office. But it is perfectly plain, if what they shall thus find entered in the recorder’s office, is not to be taken by them as true and correct, and therefore not to be relied on, that the primary and great object of the recording acts will be defeated. This view of the matter, which we think is correct, leads inevitably to the conclusion, that the certificate of the time of recording the deed, endorsed thereon by the recorder, under his hand and seal of his office, as was done in this case, cannot avail against the entry thereof made in his book showing a different time. The latter must be considered as the true time. This also goes to show, that no parol evidence ought to be received to repudiate or alter the time mentioned in the recorder’s book, of recording the deed, when its tendency would be to defeat or affect the right of a purchaser acquired upon the faith of the entry made in the book being correct. But it is contended by the counsel for the defendant in error here, and it seems to have been the opinion entertained by the court below, that because the same' person was employed and intrusted by the plaintiffs in the judgment, of whom is one of the plaintiffs in error, under which the latter purchased the land in dispute, to deliver the judgment bond, whereon the judgment was entered, to the próthonotary for the purpose of having judgment entered thereon, that was also intrusted by the mortgagee to deliver his mortgage, under which he afterwards purchased the land, to the recorder to be recorded, the plaintiffs in error must therefore be considered as having full knowledge of the fact that the mortgage was actually delivered to the recorder to be recorded one day before the judgment bond was delivered to the same as prothonotary, and the judgment entered thereon. Now, although it be generally true that notice to the agent, or his knowledge of the fact, is sufficient in law to affect his principal with notice or knowledge of the same fact, yet I am not aware that this principle has ever been applied to a case like the present, where the same person was intrusted as the agent of each party, without any knowledge, at least on the part of the holders of the judgment bond, that he was at the same time intrusted with the delivery of the mortgage, by the mortgagee, to the recorder to be recorded; and in doing so, contrary to his duty to the obligees, withheld this bond from the prothonotary for one day, in order to favour the mortgagee, by thus giving his debt a preference over that of the obligees. The general rule, that the principal shall be affected by the knowledge of his agent, is founded upon principles of policy, and the presumption that the agent has communicated to his principal everything that may be material for the latter to know in relation to the subject of the agency, which has come to the knowledge of the former. It is fair to make this presumption, as it is the duty of the agent to communicate everything of the kind to his principal; and were it not for the operation of this rule, the principal would, most probably, in many instances reap all the advantages of an innocent purchaser, when, in fact, the knowledge acquired by him from his agent rendered the purchase unfair and unconscientious. But there is also another rule which makes the fraud of the agent, in a civil point of view', the fraud of the principal, so far as to prevent the latter from deriving any benefit from it; for to allow him to do so, would be a violation of a third rule of law, which declares that no man shall take advantage of his own wrong. Hence Mr Ridgway, the mortgagee, would seem to have no right to claim any advantage from the faithless conduct of his agent, in withholding the bond of the obligees from-the prothonotary for one day after he delivered the mortgage, for the purpose of giving Mr Ridgway a priority of lien for his debt against the real estate of their common debtor. It is clear that the agent of Mr Ridgway, having undertaken to deliver the bond of the obligees to the prothonotary, so that a judgment might be entered upon it, was bound to embrace the very earliest opportunity he had of doing so; but to withhold it, as he says he did, was a most culpable violation of his duty. Suppose Mr Ridgway, himself, had taken the bond of the obligees, as his agent did, for the purpose of having a judgment entered upon it for the obligees, and he had acted in regard to it, as his agent says he did, could it be alleged, with the least colour of reason or justice, that he would be entitled to claim any advantage from his having done so to the prejudice of the obligees 1 So far, I apprehend, from his being permitted to allege his own turpitude, and to derive a benefit from it, he would be considered liable to them for all the loss which they could show that they had sustained by his not having delivered their bond to the prothonotary, at least as early as he delivered his own mortgage. We therefore think there was error in admitting the parol evidence, and leaving it as a question of fact to be decided by the jury, when the mortgage was recorded. Upon this ground, therefore, the judgment must be reversed, and a venire facias de novo awarded. Judgment reversed, and a venire facias de novo awarded.

The opinion of the court was delivered, January 5th 1869, by Sharswood, J. At common law a man, who is sui jwris and compos mentis, may give away all his personal property, so as to become himself and leave his wife and children, penniless: 1 Blackst. Com. 449; 2 Kent’s Com. 440. As to his lands and tenements his wife is protected to the extent of her dower against any transfer or disposition of her husband by act inter vivos or last will and testament, without her consent; and by the 11th section of the Act of April 11th 1848, Pamph. L. 537, commonly called the Married Women’s Act, the husband cannot by will deprive his wife of the share of his personal property, to which she is entitled under the intestate laws. But as to personal property by gift inter vivos his power is absolute. This is perhaps to be regretted, but it is too well settled to be now shaken. The civil law, that code of written reason, did not permit it. No donation could give away the legitime or legal portion to which children or other persons were entitled as against the will of the owner, and who could attack the testament as inofficiosum: 1 Domat 402, Strahan’s ed. Nay, if a donation were of all one’s goods, there must be reserved either the usufruct of the goods given or some part which may suffice for the sustenance of the donor: Ibid. But in our law no such gift otherwise valid can be impeached as a fraud on a man’s wife or children. They have no legal right to any part of his goods, and therefore no fraud can be predicated of any act of the husband or parent to deprive them of the succession. “ Who so ignorant,” says Gibson, O. J., “ as not to know that a husband may dispose of his chattels during the coverture without his wife’s consent, and freed of every post mortem claim by her ?” Ellmaker v. Ellmaker, 4 Watts 91. A dictum by Woodward, C. J., in Evans v. Dravo, 12 Harris 65, appears adverse to this view, but the question there was whether in an action on a bond given in part for the purchase-money of real estate, the purchaser could set up that the husband had entered into an agreement not to enforce payment of the bond, which had been taken, in order to induce the wife to execute the deed; and it was rightly ruled that he could not, as it was in fraud of the wife. The husband there sued on the bond. Had he voluntarily surrendered or cancelled it, and the action been by his executor or administrator to recover it, an entirely different question would have been presented. There is another point which is equally indisputable. As a party cannot set up his own fraud to avoid any instrument or contract executed or entered into by him, so neither can his personal representative after his death, without some affirmative evidence that it is necessary to enable him to discharge debts of the decedent and then only to the extent to which it may be so necessary: Buehler v. Gloninger, 2 Watts 226. “ There being no averment,” says Rogers, J., “ that the estate was insolvent, the presumption was that the administrators had assets in their hands sufficient to pay the debts.” In Stewart v. Kearney, 6 Watts 455, Gibson, C. J., in an action of trover by an administrator for goods alleged to have been transferred by the intestate in fraud of creditors, said: “ This action is maintainable in the name of the administrator as a trustee for the creditors only so far as the property in contest may be needed for payment of debts, whose existence the plaintiff will be bound to ghow:” and the judgment below was reversed, and the cause sent back with this instruction as to the law. See also Schriber v. Rapp, 5 Watts 351; Englebert v. Blanjot, 2 Whart. 245. One other question remains to be considered before proceeding to notice in detail the assignments of error in this case. The transfer of a chose in action, whether by instrument under seal or not, unless founded on a sale for a valuable consideration, is not complete and executed until delivery to the assignee. When there is a contract for the sale of a chattel or of a chose in action, no doubt actual delivery of the thing, or of the evidence of it is not necessary to perfect the title of the vendee. The property passes whenever the terms of the contract are settled and the subject-matter ascertained and set apart: Smyth v. Craig, 3 W. & S. 14; Parker v. Donaldson, 2 Id. 9. But in a gift of a chattel actual delivery is essential. Until delivery, the gift is revocable by the donor. So where there is a voluntary bond or a gift of a security, or other chose in action, and the donor executes an assignment, whether under seal or otherwise, and retains the paper in his own possession, he retains at the same time entire control over the gift; he may cancel or destroy the transfer. No court of equity would compel the delivery of it to the donee; for a chancellor never interferes to enforce any contract not founded on a meritorious consideration: 2 Kent Com. 438-9; Clemson v. Davidson, 5 Binn. 398; Aycinena v. Peries, 6 W. & S. 251; Nesmith v. Drum, 8 W. & S. 9; Yard v. Patton, 1 Harris 288. But it is urged that the seal in law imports consideration and the transfer on its face purports to be for a valuable consideration, by which the assignor and volunteers under him will be estopped from denying it. This may be true, but the seal produces no such effect until the instrument becomes the deed of the party by delivery or what in law is equivalent thereto. Until then the assignment, though signed and sealed, is still an unexecuted transfer in the eye of the law. The cases cited and relied on by the learned counsel for the plaintiff do not support his position. In Smith v. Smith, 5 Barr 256, there was an express direction by the obligor in a paper which was admitted to probate as testamentary that his executors should deliver the bond in question after his death. In Parker v. Urie’s Executors, 9 Harris 305, the case is put on the ground that there was a valuable consideration for the assignment. “ Where,” says Lewis, C. J., “ one on his death-bed expresses a wish to his heir-at-law that certain persons whom he names shall receive of his estate specified articles and sums of money as gifts from him, and the heir promises him that his request shall be fulfilled, the necessary implication is that the promise is to be performed after the death of the promisee, and that the consideration is that the promissor shall succeed to his estate under the intestate laws.” In Bunn v. Winthrop, 1 Johns. Ch. Rep. 829, the deed is stated to have been delivered, though it was retained in the possession of the grantor. There was nothing in that circumstance necessarily inconsistent with delivery. After the most formal delivery, a deed may be returned to the possession of the grantor for safe keeping or any other lawful purpose. So in Boughton v. Boughton, 1 Atkins 625, the fact that the deed had been fully executed by delivery is assumed: all that was decided was that such a deed kept by the grantor in his possession, and never cancelled, will not be set aside by a subsequent will. In Johnson v. Smith, 1 Ves. 314, the question whether there was sufficient evidence of'a delivery was argued by the counsel and noticed by Lord Thurlow. The grantee had- the key and custody of the assignment, though the grantor still had access to it, and dealt with the securities assigned as his own. The decree was that the grantee should elect between that assignment and a voluntary bond subsequently executed and delivered, because the courts always lean against double portions. I have examined carefully the other cases cited, but find no one of them to sustain the position contended for — that an assignment of a chose in action by deed under seal, but without a valuable consideration, is binding on the assignor, or those who claim under him, without that which in fact or in law actually or constructively amounts to a delivery. Colman v. Sarrell, 1 Ves. Jr. 50, is a clear authority for the doctrine that a court of equity will not enforce an unexecuted voluntary agreement. “ To do so,” said Lord Thurlow, “ would be to make him who does not sufficiently convey, and Ms executors after Ms death, trustees for the person to whom he has so 'defectively conveyed; and there is no case where a court of equity has ever done that. Whenever you come into equity to raise an interest by way of trust, you must have a valuable or at least a meritorious consideration. Nothing else will do.” That a voluntary deed once perfected cannot be revoked at pleasure, even though the grantor has retained it in his own custody, was decided in Worrall v. Jacob, 3 Merivale 256; but no question was made in that case as to delivery. The deed in question was a writing under seal in execution of a power of appointment contained in a marriage settlement. In view of these principles and authorities, it follows that the learned judge in the court below was right in his instructions to the jury which are complained of in the 7th and 8th assignments of error. Pie left it to them to determine upon the evidence whether there was only “ a purpose to assign, or preparation for it, and not an executed or operative assignment such as passed the title or a consummated or finished transactionin other words, “was there an assignment in point of fact.” In this there was nothing of which the plaintiff in error has any right to complain. The first error assigned is that the court admitted in evidence the testimony of the husbands of living daughters of John Pringle, the intestate, whose administratrix was prosecuting this proceeding for the benefit of his estate. That the daughters themselves were interested and incompetent witnesses was not disputed; and indeed one of them, Catharine Snyder, was excluded expressly on that ground. But nothing is better settled than that wherever the wife is interested, the husband cannot 'be a witness; not on the score of his interest, for he may preclude himself from any by a release, or may have done so by a settlement to her separate use, but entirely on the ground of public policy. It is necessary to preserve family peace and maintain that full confidence which ought to subsist between husband and wife: Snyder v. Snyder, 6 Binn. 483; McComb v. Dillo, 5 S. & R. 304. “ The husband cannot be a witness for his wife in a question touching her separate estate:” Lord Mansfield in Wyndham v. Chetwynd, 1 Burr. 424; Davis v. Dinwoody, 4 T. R. 678. There was no pretence here that the proceeding was carried on for the benefit of creditors —no evidence that the money: or any part of it was needed for the payment of debts. There "ivas therefore no possible contingency or uncertainty in the interest of the wives. They had a clear, certain and direct interest in the success of the plaintiff in recovering a verdict on this feigned issue, and thus settling that the judgment in question belonged to the estate of their father. We are of opinion that there was error in the admission of these witnesses. The 2d, 3d and 4th assignments of error may be considered together. They complain of the admission of evidence of the declarations of John Pringle the assignor made subsequently to the date of the alleged assignment. It must be observed that in presumption of law, every deed is taken to have been executed on the day of its date; and if produced by the grantee is presumed also to have been then duly delivered. Every instrument under seal also as against the grantor, and all volunteers claiming under him, imports a valuable consideration. We have seen, too, that a voluntary deed of gift, provided it has been fully executed and perfected by delivery, cannot be revoked by the donor. It is plain upon principle, then, as well as upon the authority of many decided cases, that the declarations of a grantor or donor, made in the absence of the grantee or donee, and subsequent to the grant or gift, are inadmissible to impeach the title derived under it. It is unnecessary to cite these cases at large. Among them are some very nearly resembling this case in their circumstances: as Reichart v. Castator, 5 Binn. 109; Wolf v. Caruthers, 3 S. & R. 240; Whiting v. Johnson, 11 Id. 328, and Scott v. Heilager, 2 Harris 238. These are all cases of instruments alleged to be fraudulent as to creditors. We have seen that a gift of personalty by a husband is no fraud on his wife, nor was there here any evidence or pretence of fraud upon creditors; there could therefore have been no conspiracy between John and George Pringle to defraud anybody, nor was there any evidence of it. The declarations of the one could not therefore be received on the principle which admits the declarations of co-conspirators against each other. We think there was error in allowing this evidence to be given. The 5th error assigned is in admitting Lucy Pringle as a witness. She was the widow of a deceased son of John Pringle. It did not appear whether her husband had died before or after his father. If it was before, it is clear that she would have no interest in the estate. Every witness is presumed to be competent until the contrary is made to appear, either on the voir dire or by evidence aliunde. This assignment of error, therefore, is not sustained. In regard to the 6th assignment, it has already been disposed of. So far as the testimony of the witnesses related to declarations by John Pringle in the absence of George, whether to prove fraud or the non-execution of the assignment, it was inadmissible. As to any facts which such of them as were competent might be able to testify tending to show that the assignment had never been executed and perfected by delivery, it would be material and admissible. The 7th and 8th assignments of error have already been considered. The 9th assignment is for admitting the deposition of II. G. Patton. The grounds of objection are stated in the bill of exceptions, but although the learned judge may have intended to state the facts as proved or admitted, he has not done so. The evidence as we have it on the paper-book does not support these objections in point of fact. The testimony of Joseph Miller is altogether insufficient for the purpose. It may be inferred indeed from what he says that the deposition was taken in the manner it was by consent or at least without objection. If the fact was that the witness was in such a weak and dying condition as to preclude the defendant from cross-examination, and such cross-examination was not waived, the deposition ought not to have been admitted. But as this does not appear we cannot say there was error in admitting the deposition. The 10th assignment of error is to the form of the issue awarded by the court. It was doubtless framed that the questions of law involved might so arise on the trial of the issue, that either party might thus obtain the opinion of the court of the last resort. Had it been confined to the narrow question of fact of the execution or delivery of the assignment, the parties would not have enjoyed that privilege. Whether the note on which the judgment was entered had been legally transferred presented indeed a mixed question of law and fact: but so would have been an issue as to whether it had been executed and delivered, for what amounts to an execution and delivery, when the facts are proved, is a question of law. Nor have we any right to revise the action of the court below in ordering the issue to be put at the head of the trial list and be tried upon its merits without pleadings, which forms the subject of the 10th assignment of error. That was entirely within the sound discretion of the court and is not rightfully the subject of review here. Judgment reversed and venire facias de novo awarded.

OPINION MONTEMURO, Justice. Appellant, Shirley Cochran, appeals from an order and memorandum opinion of the Superior Court affirming an order of the Court of Common Pleas of Allegheny County granting Appellees’ motion for summary judgment based upon the statute of limitations. The issue presented in this case is whether the trial court properly held that Appellant’s claims were barred by the statute of limitations and not -within the “discovery rule” exception because of a failure to exercise due diligence in pursuing the cause of decedent’s illness. The decedent, William Cochran, worked at Jones & Laughlin Steel from 1943 to 1944 and from 1949 to 1982 as a boilerhouse attendant, steelworker and bricklayer. On June 3, 1981, Mr. Cochran was admitted to the hospital for back pain. During this hospitalization, a right upper lobe resection was performed, resulting in a diagnosis of adenocarcinoma. At that time, the decedent had been smoking one-and-a-half packs of cigarettes daily since 1947. In response to the diagnosis of cancer, Mr. Cochran stopped smoking. There was no discussion at this time that the lung cancer was caused by work-related asbestos exposure. On March 3, 1985, Mr. Cochran was again admitted to the hospital after several chest x-rays revealed the presence of a mass in the lower lobe of his left lung. A bronchoscopy and wedge resurrection were performed, and pathology reports confirmed the presence of a malignancy. The 1985 admission records make the first reference to Mr. Cochran’s exposure to asbestos. Following this hospitalization, Mr. Cochran contacted an attorney who arranged for Dr. Howard E. Reidbord to review the tissue slides from both the 1981 and 1985 admissions. An August 7, 1985 report by Dr. Reidbord opined that both pulmonary carcinomas were related to asbestos exposure. This report revealed that slides prepared at the time of the 1981 resection contained asbestos bodies in the pathology material. Appellant initiated the instant action by filing a complaint on September 27, 1985. The complaint alleged that Mr. Cochran was totally disabled from carcinoma of the lung and asbestosis as a result of his exposure to asbestos-containing products manufactured by the various defendants during the course of his employment. In December of 1985, Mr. Cochran died. The Appellees filed a motion for summary judgment contending that the decedent knew or should have known his lung cancer was asbestos related in June of 1981, more than two years prior to initiating his suit. Appellant maintained that the decedent never knew, or had reason to know that his lung cancer was asbestos related until the receipt of Dr. Reidbord’s report on August 7, 1985, and, therefore, the suit was filed well within the two year limitations period. The trial court granted the motion for summary judgment, a panel of the Superior Court reversed the trial court, and an en banc panel of the Superior Court reinstated the order of the trial court. Appellant asserts that the en banc panel of the Superi- or Court incorrectly concluded that the Appellees were entitled to summary judgment as a matter of law. Instead, she argues that the issue of whether the decedent should have known he had an asbestos related cancer in 1981 was an issue for the jury. Our standard of review in this matter is well established. A trial court’s order granting summary judgment will not be reversed unless it is established that the court committed an error of law or clearly abused its discretion. Holmes v. Lankenau Hosp., 426 Pa.Super. 452, 457, 627 A.2d 763, 765 (1993), appeal denied, 538 Pa. 671, 649 A.2d 673 (1994); DeWeese v. Anchor Hocking Consumer and Indus. Products Group, 427 Pa.Super. 47, 50, 628 A.2d 421, 423 (1993). Thus, we must determine whether the trial court committed an abuse of discretion or an error of law in entering summary judgment in this case. Where the issue involves a factual determination regarding what constitutes a reasonable time for the plaintiff to discover his injury and its cause, the issue is usually for the jury. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992); Smith v. Bell Telephone, 397 Pa. 134, 142, 153 A.2d 477, 481 (1959). This is the general rule we set forth today. However, we also recognize the well established principle that where the facts are so clear that reasonable minds cannot differ, the commencement period may be determined as a matter of law. Hayward, 530 Pa. at 325, 608 A.2d at 1043 (quoting Sadtler v. Jackson-Cross, 402 Pa.Super 492, 501, 587 A.2d 727, 732 (1991)). For example, in Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 468 A.2d 468 (1989), the plaintiff owned a tunnel damaged by a collision with a truck owned by the defendant on June 15 or June 18, 1978. In October, 1978, the tunnel was closed and sealed until April 1979. When the tunnel was re-opened in April of 1979, the plaintiff learned that it had collapsed. The plaintiff then sued the truck’s owner, and claimed that the statute of limitations was tolled by the discovery rule. We held as a matter of law that the plaintiff failed to exercise diligence in discovering that defendant’s produce truck caused damage to its tunnel within the two year limitations period. We opined: In the present case, as a matter of law, the cause of action was discoverable by the exercise of diligence in the use of means within the reach of Raceway, and, as such, no equitable exception to the statutory limitation is warranted.... This is not the sort of blameless ignorance which compels the application of the discovery rule ... Id. at 86, 468 A.2d at 471. Thus, we have not hesitated to find as a matter of law that a party has not used reasonable diligence in ascertaining the cause of an injury thus barring the party from asserting their claim under the discovery rule. In evaluating whether the trial court committed an error of law or an abuse of discretion in the instant case, we are mindful of several well-established principles of law. We note that the discovery rule is an exception to the general rule that the statute of limitations begins to run as soon as the right to institute and maintain a suit arises. Pocono, 503 Pa. at 84, 468 A.2d at 471. Therefore, one claiming the benefit of the exception bears the burden of establishing that she falls within it. As we stated in Pocono: “Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.” Id. at 85, 468 A.2d at 471. Thus, it is the Appellant’s burden to establish that she is entitled to the discovery rule exception. In Bcmmgart, the Opinion in Support of Reversal sets forth the definition of what constitutes reasonable diligence: Reasonable diligence is just that, a reasonable effort to discover the cause of an injury under the facts and circumstance present in the case. Long ago we recognized that “[tjhere are few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.” Deemer v. Weaver, 324 Pa. 85, 90, 187 A. 215, 217 (1936) (quoting Madole v. Miller, 276 Pa. 131, 137, 119 A. 829, 831 (1923)). Reasonable diligence is an objective, rather than a subjective standard. Under this standard, the plaintiffs actions must be evaluated to determine whether he exhibited “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985) (quoting Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982)). See also Restatement (Second) of Torts § 283 comment b. Despite the objective nature of the reasonable diligence standard, “[i]t is sufficiently flexible, however, to take into account difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Burnside, 351 Pa.Super. at 292, 505 A.2d at 988 (quoting Petri, 307 Pa.Super. at 271-72, 453 A.2d at 347). Thus, this case law teaches that a plaintiff is not under an absolute duty to discover the cause of his illness. Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case. Opinion in Support of Reversal at 207, 666 A.2d at 244. Our case-law further enlightens us on what is reasonable under the facts of a particular case. It is well settled that the statute of limitations is not tolled by mistake or misunderstanding. Pocono Intern. Raceway, 503 Pa. at 84, 468 A.2d at 471; Nesbitt v. Erie Coach Co., 416 Pa. 89, 93, 204 A.2d 473, 475 (1964). Aso, a diligent investigation may require one to seek further medical examination as well as competent legal representation. Murray v. Hamot Medical Center, 429 Pa.Super. 625, 634-35, 633 A.2d 196, 201 (1993), appeal denied, 540 Pa. 632, 658 A.2d 796 (1994) (citing Souders v. Atlantic Richfield Co., 746 F.Supp. 570, 573 (E.D.Pa.1990) citing United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979)). With these principles in mind, we cannot say that the trial court committed an error of law or an abuse of discretion in granting Appellees’ motion for summary judgment. It is clear that reasonable minds would not differ as to whether the decedent exercised reasonable diligence in discovering the cause of his cancer in the instant case. Here, the decedent was first diagnosed with lung cancer in 1981. The record indicates that there was ample evidence to support a diagnosis of asbestos-related lung cancer at that time. However, Mr. Cochran did not seek additional legal or medical help to ascertain the precise cause of his cancer until March of 1985. Appellant’s sole explanation for this nearly four year lapse is the assertion that the decedent believed that his cancer was caused by his smoking habit and he, accordingly, stopped smoking. There is no medical evidence in the record to support the decedent’s mistaken belief that his cancer was caused solely by his smoking. Appellant in essence contends that her husband mistakenly diagnosed the cause of his cancer as smoking related rather than asbestos related, and did not discover the real cause until 1985 after a second hospitalization. Unfortunately, under our case law cited supra, the decedent’s mistaken belief cannot toll the statute of limitations for the four year period between 1981 and 1985. The record amply demonstrates that the asbestos related nature of the cancer was apparent in June of 1981, and that the decedent failed to seek additional legal and medical help to ascertain the actual cause of his injury until March of 1985. Here, the decedent waited four years before diligently pursuing the cause of his illness. Therefore, we agree with the en banc panel of the Superior Court that reasonable minds could not differ as to the decedent’s lack of reasonable diligence rendering this case suitable for summary judgment. The decedent’s failure to ascertain the cause of his injury was the result of “somnolence,” rather than “blameless ignorance.” See Ayers v. Morgan, 397 Pa. 282, 291, 154 A.2d 788, 792 (1959), and Pocono Intern. Raceway, 503 Pa. at 86, 468 A.2d at 471. Accordingly, the trial court did not commit an error of law or an abuse of discretion in entering a grant of summary judgment. The Dissent accuses us of having committed two errors. These accusations warrant a brief response. First, we are charged with having overlooked medical history information contained in the decedent’s medical records. The Dissent asserts that these medical records create material facts that make summary judgment inappropriate in this case. However, we believe that the Dissent is torturing routine medical history information in an attempt to create an issue of material fact. The medical history quoted by the Dissent merely reveals that Mr. Cochran’s doctors noted that he was a smoker, and recommended that he stop smoking. This information is in the nature of routine medical history taken from any patient. See, e.g., Reproduced Record at 203 (“patient is a heavy smoker” under “Indications”); R.R. at 206 (“The patient smoked sixty packs a year, and quit last week.” under “Social History”); R.R. at 233 (“history of heavy cigarette abuse” under “Past Medical History”); R.R. at 252 (“He is a heavy smoker, no significant alcohol history”); R.R. at 261 (“He smokes 1 to 2 packs of cigarettes per day and is known to drink from 1 to 2 fifths of ethanol per week” under “Social History”). Nowhere in the record is the decedents’s smoking causally related to his lung cancer. Quite simply, these routine medical entries do not constitute a diagnosis that the decedent’s smoking caused his cancer in 1981. Thus, we cannot agree with the Dissent that “it is apparent that the appellant and his physician concluded in 1981 that the lung cancer was caused by smoking.” Dissent at 222. Accordingly, while the Dissent argues that we are acting as fact-finder, it would appear that the Dissent is actually combing the record in a somewhat frantic attempt to manufacture a genuine issue of material fact where none exists. Second, the Dissent accuses us of creating a heightened standard for establishing due diligence. Apparently, the Dissent would be in favor of a “no diligence” rule allowing anyone with a good faith, even if mistaken, belief to claim the discovery rule exception. Despite the apparent benevolence of such an approach, it is not supported by our case-law. Our cases firmly establish that the “reasonable diligence” standard has some teeth. A person claiming the discovery rule exception has the burden of establishing that he pursued the cause of his injury with “those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985) (quoting Petri v. Smith, 307 Pa.Super. 261, 271, 453 A.2d 342, 347 (1982). As discussed supra, this standard may require a party to obtain additional legal and medical advice. Also, a party may not rely on mistake or misunderstanding to toll the limitations period. The approach of the Dissent would dramatically expand the discovery rule and open the flood gates to allow anyone with a good faith lack of diligence to claim benefit of the rule. The standard proposed by the Dissent would severely erode the finality of our statute of limitations, and that would truly be a “grievous error.” For the reasons set forth above, we affirm the order of the en banc panel of the Superior Court. CAPPY, J., files a dissenting opinion in which NIX, C.J., has joined. MONTEMURO, J., is sitting by designation. . The identical issue also appears in the companion case of Baumgart v. Keene, 542 Pa. 194, 666 A.2d 238 (1995), in which the Court, on somewhat different facts, was equally divided.

The opinion of the court was delivered, by Woodward, J. This is a case of contested election. It comes up to us by writ of certiorari. A motion was made and fully argued, to quash the writ on the ground that the decree of the court below is final and conclusive, and that we have no jurisdiction to review it. The first point to be considered, therefore, is our jurisdiction; for if there be any doubt on that head, we shall be more than willing to escape the constitutional question upon the record. When the legislature committed contested elections of county officers to the Quarter Sessions, they made .them judicial proceedings, and annexed all the usual and necessary incidents of judicial proceedings. Always, contested elections might come under judicial cognisance by quo warranto, but in the forms of this case they are purely statutory, and subject to such rules as the legislature has been pleased to prescribe. Our appellate jurisdiction in such cases might be taken away altogether by statute, but if it has not been, it must be held to attach, as a necessary judicial incident, in the same manner in which it attaches to other records of the Courts of Quarter Sessions. For one hundred and forty years the general jurisdiction of this court has been declared by statute to extend to the examination and correction of “ all and all manner of error of the justices, magistrates, and courts of the Commonwealth, in the process, proceedings, judgments, and decrees, as well in criminal as in civil proceedings, ***** and to minister justice to all persons as full and ample to all intents and purposes as the said court has heretofore had power to do under the constitution and laws of the Commonwealth.” Such are part of the words of the Act of 1836. In the old Act of 22d May 1722, the powers granted were such as “the justices of the Court of King’s Bench, Common Pleas, and Exchequer, or any of them, possessed.” When, therefore, the Act of 1836 refers itself to the “heretofore”- powers of the courts, the general common law powers of the three principal courts of Westminster Hall, so far as they are unimpaired by our constitutions, state and national, are to be understood by the reference. This is a large charter. There is no temptation to widen it by judicial construction — the inclination of the judicial mind is rather to narrow it. But as it is a trust for the people of Pennsylvania, judges have no right, from motives of ease and convenience, to surrender, weaken, or obscure, by judicial refinements, one single one of the powers granted. The legislature may qualify them, and in a few instances have done so, as in the Justices Act of 1810, where the Courts of Common Pleas are empowered to issue cettioraries to justices of the peace, and to give judgments thereupon, which shall be final, “ and no writ of error shall issue thereon.” In numerous decisions it has been held that these words oust our jurisdiction over judgments rendered by the Common Pleas on certioraris to justices of the peace. The result of the authorities touching the general subject of our appellate jurisdiction, was well stated by the present chief justice, in Gorsline v. Place, 8 Casey, when he said: “ The judicial authority of this court extends to the review and correction of all proceedings of all inferior courts, except where such, review is expressly excluded hy statute.” There is a class of cases in our books which would seem to establish another exception — that of a case stated by the parties, wherein they agree to submit their disputes to the Common Pleas, without expressly reserving their right to a writ of error. The first of these cases was Fuller v. Trevor, 8 S. & R. 529, which was an amicable reference of a pending cause to referees, subject to the opinion of the court on all legal points and objections. The Court of Common Pleas rendered judgment on the report of the referees, and this court held that a writ of error would not lie to that judgment, because the agreement did not provide that the case should “ be considered as of the nature of a special verdict and subject to a writ of error.” In Kline v. Guthart, 2 Penna. R. 495, which was a reference under the Act of 1705, and a judgment on the award, Gibson, C. J., gave the rationale of the ground on which a writ of error is denied to such judgments. He regarded awards as in the nature of verdicts, exceptions to them as motions for a new trial, and judgments upon them as overruling such motions ; and inasmuch as writs of error never go to verdicts, nor to mere discretionary exercises of power by the courts, such records are not reviewable here. To the same effect were Wilson v. The Commonwealth, 3 Penna. R. 532, and Berg v. Moore, 7 Barr 94; whilst Davis v. Barr, 5 S. & R. 516, and Kelley v. Shoenberger, 7 Watts 394, frequently cited to the same point, are not applicable to it, as any one will see who consults them. If, then, we have an established exception, additional to the one exception stated by the chief justice in Gorsline v. Place, it is where a case is referred by agreement of parties to an auditor or referees, without an express reservation of the right of review, and the Court of Common Pleas passes only on exceptions to their report. The presumption of law is, in such cases, that the parties meant to bind themselves by the award of the domestic tribunal of their own providing, and therefore we leave them bound; for, whilst consent of parties cannot confer jurisdiction upon us, it may take it away. I need not allude to another class of cases, such as viewers of land damages and other special statutory tribunals, between whom and this court there is no recognised relation whatever, for these do not fall within the range of the present discussion. Such, then, in general, is the jurisdiction of this court, to correct all manner of errors of inferior judicial tribunals; — and that is not to be taken away, except by express terms or irresistible implication, has been declared in many cases: Burgenhoffen v. Martin, 3 Yeates 479 ; Overseers v. Smith, 2 S. & R. 363; Commonwealth v. Beaumont, 4 Rawle 366; Commonwealth v. McGinnis, 2 Wh. 113. But this statement is to be received with a very important qualification — that the errors to be reviewed shall appear on the record. This is necessary to all appellate jurisdictions, where cases come up by writs of error or certiorari. The only mode provided by law for bringing evidence or the opinion of an inferior court upon what is- technically called “the record,” is by a bill of exceptions, sealed and certified by the judge; and, as bills of exception are not allowed in the Quarter Sessions, no question ■which arises out of the evidence in that court can be got up into this court. Hence, whilst certiorari lies to the proceedings of the Quarter Sessions, in road eases, in pauper cases, in contested election cases, and in other statutory causes committed to the jurisdiction of that court, the writ brings up nothing but what appears upon the record, without a bill of exceptions. Our correctional power extends no farther in such cases than to keep the court within the limits of its jurisdiction, and to see that that is exercised with regularity according to law: Carpenter’s Case, 2 Harris 486; Mifflin Township v. Elizabeth, 6 Id. 17; Union Canal Co. v. Keiser, 7 Id. 134; Mauch Chunk v. Nescopeck, 9 Id. 46. And especially is this the rule, where, as in Carpenter’s Case, the statute under which the proceeding is had declares that the Common Pleas “ shall proceed upon the merits and determine finally upon the same.” Though bills of exception do prevail in the Courts of Common Pleas, the legislature may restrict our jurisdiction, and these words have been held to restrict it in the manner above stated. Neither these words nor any equivalents, however, are found in the Acts of Assembly under which the present case is prosecuted, and we are, therefore, under no special restrictions. The Act of 3d May 1850, Purd. 239, provides that the elections of district attorneys shall be contested and decided in the manner provided for contesting the election of county officers, and by the 153d section of the General Election Law of 2d July 1839, Purd. 300, the Courts of Quarter Sessions have jurisdiction to hear and determine the contested elections of county and township officers— nothing being said about the finality of the courts’ decree, as in the act of the same date relating to the election of prothonotaries, &c., under which Carpenter’s Case occurred. But the 155th 'section of the act under which the present case originated provides that the Courts of Quarter Sessions, when sitting in contested elections, shall have, in addition to their ordinary judicial powers to compel the attendance of witnesses, and the production of books and papers, “ all the powers which are conferred upon committees of the legislature by the several provisions of this act.” Hence it is argued that the statute meant to make the decree of the Quarter Sessions as final and conclusive as the report of the legislative committee in a case of contested membership of that body. Such, however, is not the meaning of the reference. The reference is, rather, to the provision of the 143d section, which empowers the committee to compel any person, not a legal voter, who voted at the election in question, to declare under oath for which candidate he voted. This was a new and extraordinary power, and, being conferred on a legislalative committee, the statute meant, by the reference, to confer the same power on Courts of Quarter Sessions when sitting in contested elections. Having now brought together the several statutes which define' and regulate our general jurisdiction in Quarter Sessions cases, it is necessary, next, that we see what this particular case is upon the record, for the extent to which we can review the merits must depend upon how far they appear of record. Under the Act of Assembly above referred to, an election for district attorney was held in Luzerne county last October, at which Ezra B. Chase and Jerome G. Miller were the candidates. After counting what the return judges considered legal votes, they gave their certificate of election to Chase, but twenty qualified electors filed their complaint in writing, setting forth an undue election, and a false return of Chase, and thus this contest was inaugurated. . Besides complaining of a large number of fraudulent votes cast within the county, the petitioners set forth that “ on the day of election certain citizens of the Commonwealth, being qualified electors of the county of Luzerne, and then in the actual military service in certain detachments or companies of volunteers, under a requisition from the President of the United States, and by the authority of the Governor of the Commonwealth, did, agreeably to law, hold an election for the purpose of electing county officers of Luzerne;” and then follows a detailed statement of the votes cast by different companies for the office of district attorney, and a complaint that the return judges excluded the vote of the volunteers, and issued their certificate in disregard of it. The petitioners did not give the names of the military voters, nor tell the court where they voted. Exceptions were filed to the complaint, one of which was that the place of voting was not disclosed, but the court overruled the exceptions, and refused to quash the complaint or compel it to be amended in this particular. Pending the proceedings upon this petition, the parties, on the 24th of December, 1861, entered into, and, with the leave of the court, filed of record, a written agreement in these words: “ It is agreed the following facts be submitted as a case stated for the court’s decision. Admitted that of the votes polled within the county of Luzerne, Ezra B. Chase received 5811 votes, and that Jerome G. Miller received 5646, and that the said number of votes by each received be counted by the court as legal votes. That of the votes polled by the volunteers in the army, Ezra B. Chase received 58 votes, Jerome G. Miller received 362 votes. But the legality of the votes polled by the volunteers in the army not being admitted, the question as to the legal effect thereof is submitted as a matter of law for the court. If the court should be of opinion that the army vote is constitutional and legal, the same to be allowed by the court, and added to the vote cast in the county for the party or parties in whose favour they may be, and then the court to decree in favour of the party having the greatest number of votes. If no part of the army vote is received, the decree to he in favour of Mr. Chase, the army vote being taken as above stated, the objections to it being all waived, except as to its constitutionality.” On the 6th of January, the court made their decree “ upon the written statement of facts agreed to by the parties, and filed upon the 24th December ultimo, no other evidence being offered,” which was to the effect that the army vote was legal, that it should be counted, and that it gave a majority to Miller, to whom the office was awarded. It has been seen already that the inability of this court to review a decree of the Quarter Sessions on its merits, springs not from any organic defect of jurisdiction, hut from the want of a bill of exceptions to certify us of the facts; but no bill of exceptions is needed when the parties agree upon the facts and the court make their agreement a part of the record, and then “ thereupon judging,” base their decree exclusively on such agreement. A bill of exceptions compels the facts upon the record. Neither the court nor the adverse party can resist it, but the parties cannot be compelled to agree, nor the court to admit their agreement to record. Still both may be done, and thus the purpose of a bill of exceptions fully attained. The agreed facts become, in such a case, as real a part of the record as if a special verdict had been received and recorded. The court to whom the legislature committed this contested election is provided with a jury which might be used to ascertain facts, and a special verdict is as much legal ground for judgment in the Quarter Sessions as in the Common Pleas. The parties have come to what is substantially a special verdict by their agreement, and it is wholly immaterial that they did not reserve to themselves a right of review, for not waiving it, the law gave them that. Had the court possessed itself of the facts per testes, whether in the form of oral evidence or by depositions, we could not notice them, simply because there is no mode of certifying to us what the facts were, but, placing them upon the record by the concurrent consent of court, counsel and parties, and then basing the decree most distinctly and exclusively upon the facts so ascertained, it would be bypercriticism run mad to so construe the statutes under which we sit as to deny a citizen the right of review. If we should limit ourselves strictly to the agreement of 24th December, as the court below did, we should be obliged to say it was wholly insufficient to support the decree that was built upon it, for it does not tell us that the volunteers, who cast what it calls the army vote, were qualified electors of Luzerne county, that they were serving in any detachment or company in pursuance of public authority, who they were, nor where they voted, whether within ten miles of their usual place of voting, or in Virginia or Kentucky. On all these points the agreement is dumb. And if the parties were able to bring before the return judges no better case than is made by that paper, the judges did well to reject the army vote and award the certificate according to votes of whose legality they had some evidence. Rut to help out the record we choose to read the agreement in connection with t'he petition of complaint, and we have already seen that that did set forth, not as fully as it ought, but with tolerable precision, the qualified character of the volunteers who cast the votes in question. By the expression “army vote, ” in the agreement, we are then to understand the votes alluded to in the petition of complaint. This is absolutely necessary to meet the main question of the cause, for there is nothing in the agreement, in and of itself considered, to raise that question or any other that, is worthy of judicial notice. But even when we construe the agreement by the precedent parts of the record, we cannot learn in what state the votes were cast. The army raised in Pennsylvania has been employed most of the time in other states — though camps of instruction have been maintained within our own state. The reasonable presumption is that the votes denominated the army vote, were cast partly within, and partly without our state, and such we have reason to believe was the fact. No account whatever was made of the place of voting in the court below. The “ army vote,” as it is most loosely called in the agreement of 24th December, was cast somewhere, and counted in pursuance of section 43d and the sections immediately succeeding of the General Election Law of 2d July 1839, Purd. 289. The 43d section is in these words:— “ Whenever any of the citizens of this Commonwealth, qualified as hereinbefore provided, shall be in any actual military service in any detachment of the militia or corps of volunteers under a requisition from the President of the United States, or by the authority of this Commonwealth, on the day of the general election, such citizens may exercise the right of suffrage at such place as may be appointed by the commanding officer of the troop or company to which they shall respectively belong, as fully as if they were present at the usual place of election : Provided, That no member of any such troop or company shall be permitted to vote at the place so appointed, if at the time of such election he shall be within ten miles of the place at which he would be entitled to vote if not in the service aforesaid.” This section and its sequents are virtually a reprint of the Act of 29th March 1813, 6 Smith’s Laws, p. 70. The proviso of that Act prescribed two miles from his usual place of voting as the condition on which the volunteer in actual service might exercise suffrage elsewhere. Such a proviso, whether two miles, as in the Act of 1813, or ten miles, as in the Act of 1839, .is an intimation of that which we have other reasons for believing, that the legislature of neither of those years had any thought whatever of legalizing military voting outside of our own territorial limits. They probably meant to give the citizen soldier who should be in actual • service within the state on the day of the general election, an opportunity to vote, if his engagements detained him at the prescribed distance from his domicil. And so understood, there was nothing in the State Constitution, when the Act of 1818 was passed, which its terms could be thought to contravene. The Constitution of 1790 was then in force, and the qualifications of an elector which that instrument prescribed, were that he should be a freeman of the age of twenty-one years; that he should have resided in the state two years next before the election, and within that time paid a state or county tax, which should have been assessed at least six months before the election — or he should be a son, between twenty-one and twenty-two years of age, of a citizen qualified as aforesaid. This was the constitutional rule, and the whole of it, up to January 1st 1839, when the amended Constitution of 1838 took effect; and, therefore, when the revisers of'our civil code, who were very competent constitutional lawyers, reported in 1834 a general election law, substantially the same that is now in force, they did not hesitate to retain the substance of the Act of 1813. Had their report been made after the Constitution of 1838, we would scarcely have expected them to incorporate the provisions of the Act of 1813, for, as we shall see hereafter, the Constitution of 1838 made the precise place of voting an element of suffrage. For five years their report was not taken up by the legislature, and when, near the close of the long session of 1839, it came up, the legislature passed it pretty much in the words submitted by the revisers, without adverting to the changes which in that interval of five years had taken place in our fundamental law. We are not to wonder at this, for instances of even more careless legislation are not uncommon. The act was a long one, made up of 157 sections, was not touched until a late day of the session, and was adopted by the two houses on the 25th June — the very day they adjourned. It was signed by the governor on the 2d July 1839, which gave the act its date. If, in the hurry of closing a long session of the legislature, any one of the numerous provisions of the act suggested a constitutional doubt to the mind of a single member, he doubtless dismissed it upon faith in the revisers, without remembering that he was called to consider a very different constitutional question from any that engaged their attention. Tradition tells of no constitutional debates on the Act of 1839 in the legislature that passed it. I mention these circumstances as showing how inconclusive is the argument which the learned judge below attempted to deduce in favour of the constitutionality of the act, from the high character of many of the members of .the legislature. The great question now before us is, whether the 43d section of the act can be reconciled with the 1st section of article 3d of the amended constitution ? Having already quoted the 43d section, I will bring into contrast with it the very terms of the constitutional provision:— “ In elections by the citizens, every white freeman of the age of twenty-one years, having resided in the state one year, and in the election district where he offers to vote ten days immediately preceding such election, and within two years paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector. But a citizen of the United States who had previously been a qualified voter in this state, and removed therefrom and returned, and who shall have resided in the election district and paid taxes as aforesaid, shall be entitled to vote after residing in the state six months: Provided, -That white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the state one year, and in the election district ten days, as aforesaid, shall be entitled to vote, although they shall not have paid taxes.” By comparing this clause with the corresponding provision of the Constitution of 1790, it will be seen in what the amendments consisted. The word “white” was introduced before “freemen,” excluding thereby negro suffrage, which had prevailed to a slight extent. The state residence was reduced from two years to one, and the words requiring a residence in the election district where he offers to vote, were added. This latter amendment was probably suggested by the registry law, which was passed in 1836, for the'city and county of Philadelphia, the main object of which was to identify the legal voter, before the election came on, and to compel him to offer his vote in his appropriate ward or township, and thereby to exclude disqualified pretenders and fraudulent voters of all sorts. The idea of a registry of legal voters a.s means to purity of elections was hinted by Ch. J. Tilghman in 1816, in Catlin v. Smith, 2 S. & R. 266. When the third article came up in the Convention of 1838, the political party who had favoured the Philadelphia registry law brought forward and supported this amendment as calculated to accomplish substantially the same results for the whole state which the registry law proposed to accomplish for Philadelphia. The political party to whom the registry law had always been distasteful, opposed the amendment as an unnecessary clog upon freedom of suffrage, but on a division it was adopted by a vote of sixty-four to sixty, every member from the city of Philadelphia, where the registry law had proved acceptable, voting for it, and every member from the county of Philadelphia, which had never relished the registry law, voting against the amendment: Con. Deb. vol. ix., p. 300, et seq. Regarding the amendment as designed in general to exclude fraudulent voting, the question now is, what construction shall be given to its particular phraseology ? Construing the words according to their plain and literal import (and we must presume that the people of Pennsylvania construed them so when they adopted the amendment), they mean, undoubtedly, that the citizen, possessing the other requisite qualifications, is to have a ten days’ residence in an election district, and is to offer his ballot in that district. The second section of this article requires all popular elections to be by ballot. To “ offer to vote” by ballot, is to present oneself, with proper qualifications, at the time and place appointed, and to make manual delivery of the ballot to the officers appointed by law to receive it. jThe ballot cannot be sent by mail or express, nor can it be cast outside of all Pennsylvania election districts and certified into the county where the voter has his domicil. We cannot be persuaded that the constitution ever contemplated any such mode of voting, and we have abundant reason for thinking that to permit it would break down all the safeguards of honest suffrage. The constitution meant, rather, that the voter, in propria persona, should offer his vote in an appropriate election district, in order that his neighbours might be at hand to establish his right to vote if it were challenged, or to challenge if it were doubtful. The amendment so understood, introduced not only a new test of the right of suffrage, to wit, a district residence, but a rule of voting also. Place became an element of suffrage for a two-fold purpose. Without the district residence no man shall vote, but having had the district residence, the right it confers is to vote in that district. Such is the voice of the constitution. The test and the rule are equally obligatory. We have no power to dispense with either. Whoever would claim the franchise which the constitution grants, must exercise it in the manner the constitution prescribes. But,, be it observed, the constitution does not define an election district, and therefore I hold that it referred the definition to the legislature. The words “election district,” do not occur in the Constitution of 1790. The word “ district” was often applied by that instrument to subdivisions of the state for senatorial, representative, and judicial purposes, but never for purposes of general elections. Election districts acquired their first constitutional recognition in 1838. They had, however, long been familiar to our ordinary legislation. “ When any township or townships hath or have been divided, or hereafter shall be divided, in forming any election district, an inspector shall be chosen for each dis triet,” said the 7th section of the Act of 15th February 1799 (8 Smith’s Laws 340), and since that time we have had innumerable Acts of Assembly creating, dividing, and subdividing election districts, until the legislature grew tired of the subject, and, in 1854, turned it over to the Courts of Quarter Sessions, to fix election districts, “so as to suit the convenience of the inhabitants thereofPurd. 1069. Always, from 1799 down to the present hour, election districts, within the meaning of our statutes, have denoted subdivisions of Pennsylvania territory, marked out by known boundaries, prearranged and declared by public authority. Whether composed, as at different periods they have been, of counties, or cities, or townships, or boroughs, of wards or of precincts, they have always been such subdivisions of our own territory, and no man has ever been known to suggest the formation of an election district by Pennsylvania authority outside of her state borders. Now, whilst the constitution did not stop to define election districts, it took up and incorporated them as the legislature had theretofore or should thereafter define and regulate them. It referred itself to the legislative will on the subject. And, therefore, election districts mean in the constitution just what they mean in the statutes. This necessary dependence of constitutional principles upon auxiliary legislation was explained in Maxwell’s Case, 3 Casey 444. We must understand the constitution, then, as prescribing to the qualified voter, that his ballot is to be cast in such an election district as the legislature may erect by itself or through the courts. And the legislative power over election districts is unlimited within our own state. Whether they could form a district beyond our territorial jurisdiction for the convenience of our own citizens, is a question which need not be considered, for no such legislation has been attempted. But it is quite clear to our minds that the legislature might erect a military camp within tbe state into an election district, and the moment they should do so the constitution would apply itself to that district in the same manner as to any other. But there must"not only be a district to vote in, but there must be a residence therein for ten days next preceding the election. This is a part of the condition of suffrage. Undoubtedly the primary signification of the word “residence,” as used in the constitution, is the same as domicil — a word which means the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights, but I am not satisfied that the constitution meant to limit itself to this strict and technical definition of residence. Referring the subject of election districts to the legislature, as we have seen that it did, I incline strongly to think that the constitution meant, also, to leave the subject of residence in an election district to legislative discretion, and, therefore, that the legislature are as free to declare what shall be residence in an election district for ten days next preceding the election, as they are to prescribe the boundaries of the district. When they have not exercised their power nor attached to the word any other than its ordinary legal signification, it is to be received according to its primary meaning in the constitution, as equivalent to domicil. But if they should make a military camp in- Pennsylvania an election district, and declare that military sojourn and service therein for ten days should be equivalent to a constitutional residence for the purposes of election, I would be extremely loth to think such a law unconstitutional. These observations, however, on the meaning of the word residence, must not be considered as expressing the opinion of the court, but only my own. The meaning of the constitutional clause under consideration may, therefore, on the whole, be stated thus — every white freeman, twenty-one years of age, having “resided” according to the primary meaning of that word, or according to legislative definition of it, in any “ election district” created by or under the authority of the legislature, for fen days preceding the election, shall be permitted to offer his ballot in that district. Having now defined, with all possible clearness, the meaning we attach to the clause of the constitution in question, we turn next to the consideration of the meaning of the 43d section of the Act of 1839. Like all other parts of a statute, it is to be construed, if possible, in a manner that shall be consistent not only with the constitution, but with the other parts of the same statute. Neither unconstitutionality nor repugnancy are to be assumed, but, if both clearly appear, we ought not to be expected to give the section effect. The section says that the citizens referred to in its first clause “ may exercise the right of suffrage at such place as may be appointed by the commanding officer of the troop or company to which they shall respectively belong.” Now wTe have seen above that the constitution prescribes a place for the exercise of the right of suffrage, to wit, an election district. The 43d section does not affect to create an election district. There is not a word in it for that purpose. There is no designation of boundaries, no subdivision of territory, nothing, not a word or thought which bears the slightest relation to our legislation on the subject of election districts. But it is said the place which the commanding officer is authorized to appoint is the substantial equivalent of an election district. Not so for many reasons, for these two particularly: 1st. There is no prior public designation of the place. One purpose of having election districts designated on some public record is, that all parties interested may know where to resort to find the ballot-box. Some go there to vote — - others to watch for illegal votes — others to electioneer, but all have an interest in knowing where the law of the land has directed the election to be held. The military commander makes no public proclamation of the place he appoints, no record exists of his appointment. 2d. A second and perfectly conclusive reason why the place fixed by the commander cannot be regarded as an election district is, that the legislature have no power to authorize a military commander to make an election district. It is a part of the civil administration — this designating of election districts — and however it may be committed by one of the three co-ordinate departments of the government to another of those departments, as by the legislature to the judiciary, no civil functions of either department can be delegated to a military commander. This would be to confound the first principles of the government. If the legislature had said in the most express terms that the commander might declare his camp, wherever it might happen to be, an election district, it could have availed nothing, for the constitution, in referring to the legislature for election districts, recognised them as among the oivil institutions of the state, to be created and controlled exclusively by the civil, as contradistinguished from the military power of the state. The constitution says “the military shall, in all cases and at all times, be in strict subordination to the civil power,” which is marking a distinction between the two powers with great emphasis. To the civil and not to the military power did the constitution intrust the formation of election districts, and therefore the civil cannot commit it to the military. If, then, the legislature did not and could not authorize the military commander to form an election district, how could there be any constitutional voting under the 43d section ? Without an election district there can be no constitutional voting. The.43d section provides for no election district, and no military commander can be empowered to form one — hence it follows, as an inevitable deduction, that the “ place” referred to in that section is inconsistent with the constitutional requisition of an election district, and that whatever votes have been cast in pursuance of that section since the Constitution of 1838 came in, have been cast without authority of law. If the place of voting has been, as in many instances we know it has been in other states, and in the District of Columbia, the assumptions set up in behalf of it have only been the more extravagant. For, observe, it has first been assumed that the constitution was intended to have extraterritorial effect; next, that the legislature had power to make election laws to be executed not only in Pennsylvania, but in other states; then that the 43d section established election districts wherever a commander of a troop or company should be pleased to appoint; and finally, that the presence of the soldier-voter at that place— though it might be on a forced march or in the tug of battle — was residence for ten days within the meaning of the constitution, no word of legislation having ever said it should be so considered. Nay, not only had no legislation authorized this last assumption, but this very 43d section had excluded it by declaring that the soldiers entitled to vote at the places appointed by military commanders should be “ qualified citizens.” A constitutional argument which rests on such assumptions can never be formidable. When a soldier returns to his election district, he resumes all the civil rights of citizenship, and, his residence being unimpaired by his temporary absence, he has a right to vote on election day; but under the constitution, to which his fealty is due, he can acquire no right to vote elsewhere, except by a change of residence from one district to another. The repugnancy of the 49th section to other sections of the same statute is as gross as its inconsistency with the constitution. ' It says, the “citizens of this Commonwealth qualified as hereinbefore provided,” shall have the peculiar right of suffrage, which is claimed in this case to be constitutional. This word “ hereinbefore” is a reference to prior sections of the same statute, but the qualifications for suffrage-are not contained in any prior section— another instance of careless legislation. It is not till we get to the 63d section that we come to the subject of qualifications. The 63d section re-enacts the 1st section of the third article of the constitution in terms. If we read the word hereinbefore as if it were written hereinafter, or if we construe it as referring to the consti tutional clause of qualification (and in one or the other of these ways it must be taken), it comes to the same thing — a demand for the constitutional qualifications of suffrage in every soldier who claims to vote under the 43<7 section. It says, in effect, that the soldiers who offer to vote in the election district wherein they have resided ten days immediately preceding the election, shall be entitled to vote in any place their commander appoints, provided it be not within ten miles of the district wherein they have resided for the last ten days — which is downright nonsense. Yet such is the effect of the words “ qualified as hereinbefore provided” when taken in connection with the other parts of the section — they turn the whole section into jargon. The 63d section declares, that “ no person shall be permitted to vote at any election” provided for by the act, except he possess the constitutional qualifications which have been already expounded. The 67th section declares that every person qualified as aforesaid “ shall be admitted to vote in the township, ward, or district in which he shall reside,” and the resolution of 26th April 1844, put down in Purdon as § 48 of the act, provides for a person who removes from one ward, borough, or township to another within ten days before the election, and gives him a right to vote in the ward, borough, or township from which he has removed. These legislative regulations of residence in districts are in accordance with that interpretation of the constitution suggested above, and show clearly how essentially the place of voting has entered into the qualifications of suffrage. The negative words of the 63d and the affirmative words of the 67th are very emphatic expressions of the constitutional rule in respect to the place of voting.. Whilst speaking of the legislative control of election districts it may be proper to advert to a fact, stated in argument, that voters resident in the township of Wilkesbarre, which is an election district, are accustomed to vote in the borough of Wilkesbarre, which is a separate election district, and other similar instances are said to exist in Luzerne county, where votes are actually cast in an election district adjacent to that in which the electors reside. If this practice have the sanction of an Act of Assembly, it is defensible; if it have not, I know of no principle on which it can be excused except that of communis error. And this is all that we feel called on to say in regard to it, for it is not a circumstance of sufficient magnitude or importance to disturb the course of our argument, or to attract further notice. To all these sections the 43d, as construed in the court below, is directly repugnant. It is repugnant, also, to all those numerous provisions of the act which require peace officers, on demand of an election officer, or of three citizens, to preserve free access to the polls, and to suppress disturbances and riot; which forbid wagering and misconduct at the polls, and which prohibit all troops, “ either armed or unarmed,” from attending at any place of election within the Commonwealth. The 43d section is in direct antagonism to all of these reasonable and conservative provisions. It permits the ballot-box, according to the court below, to be opened anywhere, within or without our state, with no other guards than such as commanding officers, who may not themselves be voters, nor subject to our jurisdiction, may choose to throw around it; and it invites soldiers to vote where the evidence of their qualifications is not at hand; and where our civil police cannot attend to protect the legal voter, to repel the rioter, and to guard the ballots after they have been cast. It is scarcely possible to conceive of any provision and practice that could, at so many points, offend the cherished policy of Pennsylvania in respect to suffrage. Our constitution and laws treat the elective franchise as a sacred trust, committed only to that portion of the citizens who come up to the prescribed standards of qualification, and to be exercised by them at the time and place and in the manner prearranged by public law and proclamations ; and whilst being exercised, to be guarded, down to the instant of its final consummation', by magistrates and constables, and by oaths and penalties. All of which the 43d section reverses and disregards, and opens a wide door for most odious frauds, some of which have come under our judicial cognisance. It is due to our citizen soldiery to add, however, in respect to the cases of fraud that have been before us, that no soldier was implicated. The frauds were perpetrated, in every instance, by political speculators, who prowled about the military camps watching for opportunities to destroy true ballots and substitute false ones, to forge and falsify returns, and to cheat citizen and soldier alike out of the fair and equal election provided for by law. And this is the great vice of the 43d section — that it creates the occasion and furnishes the opportunity for such abominable practices. This would be a reason, drawn from our experience of the last half year, for construing it strictly, if strict construction were required. But it is so palpably in conflict with the constitution, and so repugnant to all the substantial parts of the enactment into which it was heedlessly thrust, that no strictness of construction is called for. Taking the section as it stands — as every reader, whether clerk or layman, would understand it, or as the learned judge below administered it — we hold it to be subversive of the amended clause of article 3d of the constitution, and also •of the constitutional sections of the General Election Law of 2d July 1839. Having now examined fully the grounds and extent of our jurisdiction, and having' stated the meaning of both the constitutional amendment and the enactment in question, and thus developed the irreconcilable antagonism between them, it remains only that we notice, briefly, some of the most prominent arguments that have been urged in support of the enactment. The learned judge refers himself to several cases, in which this court have set up judicial implications as to the spirit and meaning of the constitution, in order to support Acts of Assembly that were inconsistent with the letter of the constitution, but he failed to observe that, in all these cases, there was ground laid in the constitution itself to support the judicial implication. Take for example the Acts of Assembly that were discussed in Zephon’s Case, 7 W. & S. 68, Kilpatrick’s Case, 7 Casey 178, and Foust’s Case, 9 Id. 340, all of which were supposed to conflict with that provision of the constitution which requires the president judge of the Common Pleas to be one of the quorum of the Court of Oyer and Terminer. Everybody knows that the constitution betrayed an anxiety that the trial of high crimes should be presided over by a judge “ learned in the law,” and as it provided for no such judges, except in the instance of the president of the Common Pleas, it, therefore, required him to be present in the court of highest criminal jurisdiction. But when the legislature provided associate judges “learned in the law,” for certain Courts of Common Pleas, everybody saw how the overruling purpose of the constitution would be just as well carried out by allowing such associates to constitute the Oyer and Terminer, as by requiring the president judge to be always present. Founding the judicial implication on the manifest intent and purpose of the constitution, the Acts of Assembly were held constitutional. So, in the instance discussed in Maxwell’s Case, 3 Casey 444, the choice of judges by popular election was seen to be the policy and purpose of the constitution, but the constitution could not regulate the details of such an election, and therefore referred them to the legislature to regulate. The legislature, considering that three months was none too much time for the people to look up a good judge, provided that if a vacancy occurred in less than that time before the annual general election, the choice should be postponed till the general election of the next year — the vacancy being filled, meantime, by executive appointment. We held the Act of Assembly constitutional, because it aimed at the accomplishment of one of the great and apparent purposes of the constitution. We could not consider the interval of three months unreasonable, because it was the very period which the constitution itself fixed, for the election of a governor when a vacancy happened in that office in the midst of an official term. Thus, the grounds of the judicial implication set up in support of the law were derived from the constitution itself. The same line of remark might be applied to most, perhaps all, of the other cases cited. But how can it be applied to this case ? In what part of the constitution does it betray the purpose, policy, or desire, that votes should be cast wherever qualified citizens may happen to be on’election day? So far from affording any ground for judicial implications of this kind, it studiously excludes them by prescribing the terms of suffrage with as much precision as we would look for in a treatise on mathematics. It does not deal with suffrage carelessly. It withholds it altogether from about four-fifths of the population, however much property they may have to he taxed, or however competent in respect of prudence and patriotism, many of them may be to vote. And here let it be remarked, that all our successive constitutions have grown more and more astute on this subject. Penn’s frame of government, made in April 1682, gave the right of suffrage to “ every freeman of the province;” his law's, agreed upon in England in May 1682, gave it to every inhabitant of the province who should purchase a hundred acres of land, or who shall have paid his passage, and taken up a hundred acres of land at a penny an acre, and cultivated ten acres thereof; and to every person that hath been a servant or bondsman, and is free by his service, that shall have taken up fifty acres, and cultivated twenty, and to every resi ■dent of the province that pays scot and lot to the government. By the Constitution of 1776, every freeman, of twenty-one years of age, having resided in the state one year next before the election, and paid public taxes during that time, was entitled to vote. Here we see the definition of a voter growing more exact, and in the Constitution of 1790 still more exact, and, finally, in that of 1838, he is to superadd to the other distinguishing marks, a district residence of ten days immediately preceding the election. Now the labour of the Constitution has not been to restrict suffrage in any spirit of distrust of popular intelligence, but it has been to define it so exactly that it might be preserved from abuse and perversion. The constitution affords ample ground for judicial implications in favour of legislation that tends to ascertain legal voters and votes with precision and exactitude, but not an atom of ground for implications in behalf of a law that opens the ballot-box anywhere and everywhere, under supervision of military officers wholly unknown to our civil administration, and where no officer can possibly be who is specially charged with the supervision of state elections. Because judicial implications have been set up in behalf of other Acts of Assembly, it does not follow that judicial implications can save this one. In other instances the implication was well grounded in the constitution — in this instance everything in the constitution forbids the implication. The learned judge deprecates a construction that shall disfranchise our volunteer soldiers. It strikes us that this is an inaccurate use of language. The constitution would disfranchise no qualified voter. But, to secure purity of election, it would have its voters in the place where they are best known on election day. If a voter voluntarily stays at home, or goes a journey, or joins the army of his country, can it be said the constitution has disfranchised him ? Four of the judges of this court, living in other parts of the state, find themselves, on the day of every presidential election, in the city of Pittsburgh, where their official duties take them and where they are not permitted to vote. Have they a right to charge the constitution with disfranchising them ? Is not'the truth rather this — that they have voluntarily assumed duties that are inconsistent with the right of suffrage for the time being ? Such is our case, and such is the case of the volunteers in the army. The right of suffrage is carefully preserved for both them and us, to be enjoyed when we return to the places which the constitution has appointed for its exercise. It is forcing a gratuitous assumption upon the constitution to treat it as intending that the volunteer in the public service, shall carry his elective franchise with him wherever his duties require him to go. There is no word or syllable in the instrument to justify the assumption. A good deal has been said about the hardship of depriving so meritorious a class of voters as our volunteer soldiers of the right of voting. As a court of justice we cannot feel the force of any such consideration. Our business is to expound the constitution and laws of the country as we find them written. We have no bounties to grant to soldiers, or anybody else. It may be said, however, in answer to this suggestion, that the hardship of missing an annual election is one of the least the soldier is called on to endure, and this they share in common with the patriot soldiers of all the loyal states, for it is understood that no state but Pennsylvania has attempted to extend civiUsuffrage to an army in the field. To voluntarily surrender the comforts of home, and friends, and business, and to encounter the privations of the camp and the perils of war, for the purpose of vindicating the constitution and laws of the country, is indeed a signal sacrifice to make for the public good, but the men who make it most cheerfully and from the highest motives, would be the very last to insist on carrying with them the right of civil suffrage, especially when they see, what experience proves, that it cannot be exercised amidst the tumults of war without being attended with fraudulent practices that endanger the very existence of the right. Whilst such men fight for the constitution, they do not expect judges to sap and mine it by judicial constructions. Finally, let it be said that we do not look upon the construction we have given the constitutional amendment as stringent, harsh, or technical. On the contrary, we consider it the natural and obvious reading of the instrument, such as the million would instinctively adopt. Constitutions, above all other documents, are to be read as they are written. Judicial glosses and refinements are misplaced when laid upon them. Carefully considered judicial implications may indeed be made from them in support of statutes — never to defeat statutes — when such implications are grounded in the constitution itself, and' tend to accomplish its obvious purposes, as well as to promote the public welfare. But when asked to set up a construction that opposes itself to both the letter and the spirit of the instrument, and which tends to the destruction of one of our fundamental political rights — that free and honest suffrage on which all our institutions are built — this court must' say, in fidelity to the oaths we swore, that it cannot be done. Decree. — And now, to wit, May 22d 1862, this cause having been argued by counsel, and fully considered by the court, the motion made on behalf of the contestants to quash the certiorari is overruled and dismissed, and it is ordered and adjudged that the decree of the Court of Quarter Sessions of the county of Luzerne made on the 6th day of January 1862 be reversed, annulled, and taken for nought, and it is here determined and decreed, that the election and return of Ezra B. Chase to the office of District Attorney in and for said county of Luzerne, at the general election on the second Tuesday of October last, was not undue or false, as charged by said contestants, but that the said Ezra B. Chase was duly elected to said office, and is entitled, upon taking the proper oath, to all the rights, privileges, and emoluments thereof. It is further considered and certified that the complaint of said contestants was not without probable cause, and it is therefore decreed that the county of Luzerne pay the costs of this contested election. Thompson, J., dissented.

Opinion by Mr. Justice Mitchell, The release was admissible under the plea of not guilty. By the strict letter of the Procedure Act of 1887 “ the only ple.a in the action of trespass shall be not guilty,” though the pleadings are to be “subject to the rules of the respective courts as to notice of special matter.” The rule of the court below prescribes that defences previously pleaded specially or given in evidence under equitable pleas, shall be admissible under tbe geueral issue upon notice given ten days prior to the trial.. This court does not interfere with the interpretation by the lower courts of their own rules, except in cases of plain mistake which has inflicted substantial injury on the party complaining. But here we. see no error. The present action in its nature is trespass on the case, and the legislature, in an effort, however misdirected, to get rid of technical distinctions by calling all actions ex delicto trespass, and limiting the plea to not guilty, certainly did not mean to tie them all down to the technical restrictions of that plea in that action at common law. In actions. on the case a release was admissible in evidence without being pleaded: 1 Chitty, Plead. 491 e; Greenwalt v. Horner, 6 S. & R. 71. The further objection that the release was not admissible because in form it did not comply with the act of May 11, 1881,-P. L. 20, requiring copies of the application etc. to be attached to the policy, is sufficiently answered by the consideration that that act applies only to policies issued by insurance companies, and the relief association is not an insurance company but a, beneficial association, Com. v. Equitable Asso., 137 Pa. 412; N. W. Masonic Asso. v. Jones, 154 Pa. 99; nor does it issue insurance policies. It is further objected, and this is the only substantial ques-. tion in the case, that the release was void as against public policjq and a number of cases are cited to show that a common carrier cannot make a valid contract against his own negligence. •It was quite unnecessary to go out of our own state for authority on that proposition; it is not questioned here any more than elsewhere, but it is wide of the point in this case. There is no provision exempting the company from liability for future negligence. The benefits, by the regulations of the relief association, become due to members whenever disabled by accident in the railroad company’s service, or by sickness or injury other than in the company’s service, without reference to the question of negligence at all. As these provisions include benefits in eases of accident pure and simple, of injury by the negligence of fellow workmen, and by the member’s own contributory negligence, it is apparent that they cover a wide field in which there is no liability of the railroad company at all. Such cases are probably a large majority of those occurring to railroad employees, and the association therefore is of the highest order of beneficial societies. But even in eases of injury through the company’s negligence'there is no waiver of any right of action that the person injured may thereafter be entitled to. It is not the signing of the contract but the acceptance of benefits after the accident that constitutes the release. The injured party therefore is not stipulating for the future, but settling for the past; he is not agreeing to exempt the company from liability for negligence, but accepting compensation for an injury already caused thereby. He may as well accept it in installments as in a single sum, and from an appointed fund to which the company has contributed, as from the company’s treasury as a result of litigation. The substantial feature of the contract which distinguishes it from those held void as against public policy is that the party retains whatever right of action he may have until after knowledge of all the facts, and an opportunity to make his choice between the sure benefits of the association or the chances of litigation. Having accepted the former he cannot justly ask the latter in addition. This feature of the case brings it on all fours with Graft v. R. R. Co., 8 Atlantic Rep. 206, where a release under similar circumstances was held to be a conclusive bar. There is no public policy which the contract can be said to transgress. Judgment affirmed.

OPINION Chief Justice CAPPY. Ronald Collins, Appellant herein, appeals from the order of the Court of Common Pleas of Philadelphia County denying his guilt phase claims under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. The Commonwealth appeals from that same order, which granted Appellant relief in the form of a new penalty phase hearing. For the reasons stated herein, we affirm the Order of the Court of Common Pleas. On October 21, 1994, a jury convicted Appellant of two counts of first degree murder and one count each of aggravated assault, reckless endangerment, and possession of an instrument of crime. Following the penalty phase hearing, the jury found two aggravating circumstances related to each of the murders and one mitigating circumstance. The jury then found that the aggravating circumstances outweighed the mitigating circumstance in both cases and fixed the penalty at death. This court affirmed the sentences of death on Novem ber 20, 1997, and the United States Supreme Court denied his petition for certiorari on November 30,1998. The Governor of Pennsylvania signed a warrant authorizing Appellant’s execution for February 4, 1999. Appellant then filed a Stay of Execution and a pro se Petition for Post Conviction Collateral Relief on December 17, 1998. The PCRA court stayed Appellant’s execution pending resolution of the PCRA litigation and appointed new counsel. New counsel filed an amended Petition on August 15, 2000. The PCRA court held evidentiary hearings on Appellant’s Petition. Following the evidentiary hearing, the PCRA court affirmed the first degree murder convictions but granted a new penalty phase hearing. In granting a new penalty phase hearing, the PCRA court analogized this case to the United States Court of Appeals for the Third Circuit case of Jermyn v. Horn, 266 F.3d 257 (3d Cir.2001), in which the court concluded that the lack of directed and specific testimony about Jermyn’s childhood and its impact on Jermyn’s mental illness left the jury’s awareness of his mental state incomplete. It is from this order that the parties appeal. Initially, we note that this court has jurisdiction over Appellant’s petition as a direct appeal from the denial of post conviction relief in a death penalty case. 42 Pa.C.S. § 9546(d). Additionally, this court has jurisdiction to review the denial of Appellant’s guilt phase claims even though the PCRA court vacated Appellant’s sentence of death. See Commonwealth v. Bryant, 566 Pa. 307, 780 A.2d 646, 648 (2001) (indicating that review of the PCRA court’s decision denying guilt phase relief should precede the imposition of a new sentence by the trial court). Turning to Appellant’s guilt phase claims, the PCRA court concluded that two of Appellant’s claims were previously litigated. In response, Appellant argued that this court’s case law holding that “previously litigated” issues, as defined by 42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2), could not be overcome by forwarding a claim of counsel’s ineffectiveness conflicted with the Sixth Amendment right to effective assistance of counsel. We acknowledged that Appellant’s argument was worthy of closer consideration and ordered the parties to file supplemental briefs on the following issue: Whether the previously litigated doctrine as interpreted by this court as precluding claims of ineffectiveness that are raised for the first time in a collateral proceeding is constitutional and if not, what the proper interpretation of “previously litigated” is as set forth in 42 Pa.C.S. § 9544(b). Per Curiam Order of the Supreme Court of Pennsylvania, 9/30/2004. Appellant’s general argument is simply that an interpretation of “previously litigated” that has the effect of precluding claims of ineffectiveness, which have not been raised previously, does not give adequate consideration to rights granted in the federal and state constitutions or to the nature of ineffectiveness claims. In support of his argument, Appellant contends that the statutory language is clear and merely prohibits a defendant from presenting an “identical” issue. Appellant then argues that this court’s interpretation of “previously litigated” as encompassing claims of counsel’s ineffectiveness ignores that the discrete issue of counsel’s ineffectiveness has not been litigated. Appellant points out that a defendant has a right to effective assistance of counsel at trial and on direct appeal under both the federal and Pennsylvania Constitutions. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (interpreting the U.S. Constitution amend. VI as including the right to effective assistance of direct appeal counsel); Pa. Const, art. 1, § 9 and art. V, § 9. Thus, Appellant concludes that this court’s interpretation of “previously litigated” to include claims attacking counsel’s effectiveness undermines the constitutional right to counsel by precluding a defendant from attacking counsel’s performance. Appellant continues that an interpretation of “previously litigated” as precluding ineffectiveness claims fails to acknowledge that post-conviction review is often the only means by which a criminal defendant can challenge the effectiveness of his prior counsel, including his direct appeal counsel. Appellant also points out that the reason for the statutory provision — the concern with finality and the prevention of repetitive and vexatious filings — is of less moment today than it was 35 years ago, since this court has strictly interpreted the one-year time limitations of the PCRA, which by itself prevents repetitive and vexatious filings. For these reasons, Appellant offers that this court should interpret § 9544(a)(2) literally, as limiting only those filings which raise claims of trial court error or ineffectiveness that were actually presented to and decided on direct appeal. The Commonwealth responds that the PCRA’s previous litigation provision does not infringe upon a defendant’s constitutional right to counsel. Rather, the provision simply precludes a previously rejected claim of trial court error from serving as the basis of an allegation of counsel’s ineffectiveness. Such a result is consonant -with the PCRA’s bedrock principles of finality. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 642 (1998); Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 271, 287 (2002). Thus, the PCRA’s unambiguous provision should continue to be interpreted to foreclose repetitive claims that were litigated on direct appeal and to ensure finality in judgments. The Commonwealth asserts that the “previous litigation” bar is merely the codification of the “law of the case” doctrine, which provides that later phases of a litigated matter should not reopen issues decided by another judge of the same court or by a higher court involved in the earlier phases of the matter. Furthermore, in the interest of stare decisis, this court should uphold its numerous cases interpreting the PCRA’s previous litigation provision. The Commonwealth points out that this court has consistently interpreted the previous litigation doctrine to preclude reconsideration of a claim that serves as the basis for an allegation of ineffectiveness if the underlying issue was rejected on direct appeal. E.g., Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33 (2002); Commonwealth v. McCall, 567 Pa. 165, 786 A.2d 191 (2001); Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154 (1999). For all these reasons, the Commonwealth concludes that this court should continue to interpret the PCRA’s previous litigation provision to preclude reconsideration of an issue, even when the issue is raised in the context of ineffective assistance of counsel. With that in mind, we turn to the relevant statutory provisions, which are as follows: (a) General rule. — To be eligible for relief under this sub-chapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: si? sfc :{« (3) That the allegation of error has not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). (a) Previous litigation. — For purposes of this subchapter, an issue has been previously litigated if: * * * * * * (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; 42 Pa.C.S. § 9544(a)(2). From these subsections, it is clear that the relevant statutory inquiry is the term “issue.” 42 Pa.C.S. § 9544(a)(2). There is nothing in this subsection defining “issue”. That term, as used in “pleading and practice,” is understood to mean “a single, certain, and material point, deduced by the allegations and pleadings of the parties, which is affirmed on the one side and denied on the other.” Black’s Law Dictionary, 6th ed. 831. Thus, “issue” refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief. See, e.g., Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (defining “grounds” as “a sufficient legal basis for granting the relief sought by the applicant”). The theories or allegations in support of the ground are simply a subset of the issue presented. Stated another way, there can be many theories or allegations in support of a single issue, but ultimately, § 9544(a)(2) refers to the discrete legal ground raised and decided on direct review. Thus, at the most basic level, this section prevents the relitigation of the same legal ground under alternative theories or allegations. See, e.g., Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973) (concluding that a new theory in support of the same claim of trial counsel ineffectiveness was unavailing since the claim was decided adversely to petitioner in his previous direct appeal); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972) (“A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory or argument which he had not previously advanced.”). Based upon our understanding of the term “issue” for purposes of § 9544(a)(2), the question before us today is simply whether a claim of ineffectiveness is a discrete legal ground or merely an alternative theory in support of the same underlying issue that was raised on direct appeal. It was not until the mid-1990’s that this question appeared with relative frequency. The origin of this question can be traced to this court’s decision in Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994), wherein we set forth, in cursory fashion, the burdens of proof a PCRA petitioner has including that post-conviction review of claims previously litigated on appeal cannot be obtained by alleging ineffective assistance of prior counsel and by presenting new theories of relief to support previously litigated claims. Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973). Peterkin, 649 A.2d at 123 (emphasis added). The court did not explore the contours of this phrase, but in applying this rule to the facts of the case, we held a claim “previously litigated” when Peterkin raised claims of ineffectiveness on direct appeal and then attempted to raise these same ineffectiveness claims on collateral review. Id. at 124. Thus, the meaning of “previously litigated” in that context was clear since the appellant was attempting to raise the same issues in both proceedings. The court also noted, however, that the appellant also challenged appellate counsel’s conduct for failing to raise or brief this issue on appeal. This claim was found to be “in substance, the one discussed above and therefore, is deemed previously litigated.” Id. at 124 n. 3. Following Peterkin, this phrase was often employed in a way that claims of trial counsel ineffectiveness that were based on an issue that was raised on direct appeal were precluded as “previously litigated”; and the merit of the claim relating to counsel’s conduct and the adequacy of his representation were never examined. See, e.g., Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995) (reversed on other grounds); Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995). Indeed, in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 703 (1998), we explained this concept more fully as follows: Appellant’s attempt to evade this requirement by claiming that appellate counsel must have been ineffective because he should have succeeded on this issue if properly presented is unavailing. The requirement that a claim for PCRA relief not be previously litigated would be rendered a nullity if this court could be compelled to revisit every issue decided on direct appeal upon the bald assertion that that decision was erroneous. Albrecht, 720 A.2d at 703; see also Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719 (2003); Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33 (2002); Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935 (2001); Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293 (1999). Thus, our case law has analogized a claim of counsel ineffectiveness to an “alternative theory” or allegation in support of the same issue. We have done so, however, without fully analyzing whether the nature of an ineffectiveness claim is a discrete legal ground that would entitle a defendant to relief, and not some alternative theory or allegation. This distinction has been highlighted in our recent case law and we have emphasized that the underlying claim of error is different from the collateral claim of ineffectiveness in circumstances different from those at issue in this case. See Commonwealth v. Gribble, 580 Pa. 647, 868 A.2d 455, 471-72 (2004); Commonwealth v. Jones, 572 Pa. 343, 815 A.2d 598, 615 (2002); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517, 535 (2001). Moreover, by citing to Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), we have indicated that while the underlying claim of trial court error is relevant to assessing a claim of ineffectiveness, it is only relevant to the extent that it impacts assessment under the three prong ineffectiveness test. Gribble, 863 A.2d at 472; Jones, 815 A.2d at 615; Williams, 782 A.2d at 535. Thus, we now turn our attention to the nature of an ineffectiveness claim. As noted above, the United States and Pennsylvania Constitutions provide a defendant with the right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (interpreting the U.S. Constitution amend. VI as including the right to effective assistance of direct appeal counsel); Pa. Const, art. 1, § 9 and art. V, § 9. In Kimmelman, the court considered whether a defendant could raise a Sixth Amendment, ineffectiveness claim, on collateral review attacking counsel’s performance with regard to a Fourth Amendment claim. The case of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3087, 49 L.Ed.2d 1067 (1976) established that Fourth Amendment claims were not available for purposes of habeas corpus review, since the remedy for a Fourth Amendment violation — the exclusionary rule — existed to deter police conduct. Thus, in Kimmelman, the state argued that a Sixth Amendment claim raising a Fourth Amendment issue, i.e., trial counsel’s failure to litigate a suppression motion, was barred based on the reasoning of Stone. The Supreme Court rejected the prosecution’s argument since claims related to the Fourth Amendment and Sixth Amendment were distinct. Indeed, “while respondent’s defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values.” Kimmelman, 477 U.S. at 375, 106 S.Ct. 2574. “The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Id. at 374-75, 106 S.Ct. 2574. “The right to counsel is a fundamental right of criminal defendants; it assures the fairness and thus the legitimacy of our adversary process.” Id. at 377, 106 S.Ct. 2574. “Without counsel the right to a fair trial itself would be of little consequence.” Id. The court then noted that collateral review is frequently the only means through which an accused can effectuate the right to counsel and extending Stone to prohibit review of ineffectiveness claims would effectively deny a defendant the opportunity to vindicate the Sixth Amendment right to counsel. Id. at 378, 106 S.Ct. 2574. Accordingly, the court could not conclude, as it had in Stone, “that restriction of federal habeas review would not severely interfere with the protection of the constitutional right asserted by the habeas petitioner.” Id. We find that Kimmelman lends support to Appellant’s argument regarding the distinct nature of Sixth Amendment claims and highlights that the underlying claim of error is only one component of the Sixth Amendment ineffectiveness claim. At least one other court has come to the same conclusion. In Molina v. Rison, 886 F.2d 1124 (9th Cir.1989), the Ninth Circuit Court of Appeals considered whether an allegation that counsel failed to move for the recusal of the trial judge alleged in defendant’s first petition under 28 U.S.C. § 2255, barred a subsequent claim seeking to raise the recusal issue directly in a second petition. After noting the existence of Kimmelman, the court explained that “a claim of ineffective assistance with regard to an issue is ‘distinct’ from any claim concerning the underlying issue itself, ‘both in nature and in the requisite elements of proof.’ ” Id. at 1130. Based upon Kimmelman, the court concluded that “the basic nature and thrust of Molina’s recusal claim is different from that of his ineffective assistance claim.” Id. Accordingly, Molina’s recusal claim was not successive, and he was not barred from raising the recusal issue directly in his second petition under § 2255. What is clear from Kimmelman and Molina is that ineffectiveness claims are distinct’ from those claims that are raised on direct appeal. The former claims challenge the adequacy of representation rather than the conviction of the defendant. Accordingly, we are persuaded by Appellant’s position that a Sixth Amendment claim of ineffectiveness raises a distinct legal ground for purposes of state PCRA review under § 9544(a)(2). Ultimately, the claim may fail on the arguable merit or prejudice prong for the reasons discussed on direct appeal, but a Sixth Amendment claim raises a distinct issue for purposes of the PCRA and must be treated as such. Cf. Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 462 (2004) (noting alternatively that even if the ineffectiveness claim was not previously litigated, the severance theory underlying the claim of ineffectiveness fails for the same reason the Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) theory failed on direct appeal). For these reasons, we believe that a PCRA court should recognize ineffectiveness claims as distinct issues and review them under the three-prong ineffectiveness standard announced in Pierce. Consistent with this standard, the petitioner must establish that: (1) the underlying claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of that counsel’s deficient performance. Pierce, 527 A.2d at 976-77. Turning to the instant case, we now consider the merits of those claims dismissed by the PCRA court as previously litigated. See, e.g., Blackwell v. Com., State Ethics Com’n, 527 Pa. 172, 589 A.2d 1094, 1101 (1991) (holding that new rules of procedure are commonly applied only to the case currently pending before the court). Furthermore, we will remand this matter to the PCRA court for further consideration only if we find that the claims that were considered “previously litigated” by the PCRA court are in need of further elucidation and cannot be evaluated by this court. Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003). The first claim that the PCRA court dismissed as previously litigated was a claim that trial counsel was ineffective for failing to raise a due process claim in support of the issue that the trial court should not have joined the aggravated assault charge from an unrelated shooting to the murder charges involved in the instant case. On direct appeal, Appellant argued that the trial court erred in denying his motion to sever the charge of aggravated assault from the first degree murder convictions. Collins, 703 A.2d at 422. In denying Appellant’s claim, we explained that the proper test in considering a motion to sever offenses that are not based on the same act, requires a consideration of: whether thé evidence of each of the offenses would be admissible in a separate trial for the other; whether such evidence is capable of separation by the jury so as to avoid danger or confusion; and whether the defendant will be unduly prejudiced by the consolidation. Id. (citing Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 496-97 (1988) for the proposition of the proper rule for deciding a motion to sever under the Pennsylvania Rules of Criminal Procedure). We analyzed each of these considerations and concluded that the evidence of the offenses of aggravated assault and first degree murder would have been admissible in separate trials for each other as either evidence of motive, to demonstrate the natural develop ment of the case, or evidence of intent; a jury was capable of separating the evidence since the criminal offenses were distinguishable in time, space, and the characters involved; and Appellant was not unduly prejudiced by consolidation. Id. at 423. Appellant now forwards his claim of ineffectiveness by relying on the Due Process Clause of the United States Constitution. By Appellant’s own admission, however, the factors to consider in assessing a due process claim when offenses have been joined is similar to the test we employed on direct appeal. See id. In fact, according to Appellant, in applying the federal, due process test, the court must consider the same three factors that we considered on direct appeal in addition to whether the trial court gave an adequate limiting instruction. Appellant’s Brief at 55. As we made clear in our discussion of “previously litigated” claims, although we will analyze a distinct claim of ineffectiveness that is based on the underlying issue that was litigated on direct appeal, in many cases, those claims will fail for the same reasons as they failed on direct appeal. In considering the merits of Appellant’s claim, we need not reassess the Due Process claim anew, since the factors that we considered on direct appeal are the same as the factors Appellant now asks us to consider on collateral review. The additional factor that exists under the federal test as set forth by Appellant provides no relief, as Appellant does not claim that the trial court failed to give an “adequate limiting instruction,” and our independent review of the record reveals that the trial court gave such an instruction. N.T., 10/20/1994, at 20. Accordingly, for the reasons discussed on direct appeal, Appellant cannot establish that this claim has arguable merit, and this claim of ineffectiveness fails. The second claim that the PCRA court dismissed as “previously litigated” also fails to entitle Appellant to relief. On direct appeal, Appellant raised a hearsay challenge to the testimony of two witnesses. This court determined that the hearsay statements were properly admitted under the state of mind exception to the hearsay rule. Collins, 703 A.2d at 425. Appellant now argues that counsel was ineffective for failing to forward a claim that the statements violated the Confrontation Clause. Specifically, Appellant argues that the state of mind exception to the hearsay rule is neither “firmly rooted” nor do the statements herein contain “particularized guarantees of trustworthiness” sufficient to evade application of the Confrontation Clause. The statements Appellant is referring to were made by Dawn Anderson, one of the victims in the instant case, who made statements on the night she was killed that “they” were going to shoot her in the head, N.T., 10/19/1994, at 99, and that she was going “to work” around the corner and would be back if “they” don’t kill me, N.T., 10/18/1994, at 85. Both of these statements were introduced through the witnesses to whom the statements were made. One of the witnesses was allowed to further testify that she understood “they” to mean Appellant and his co-actor, Shawn Wilson, N.T., 10/18/1994, 109-10. During closing arguments, the prosecutor returned to the hearsay statements and emphasized that the statements demonstrated where Dawn Anderson was going when she left the witnesses’ presence and her words “shortly before she was killed,” in conjunction with the other evidence, pointed to one thing: “that [Appellant] killed those people.” N.T., 10/20/1994, at 53. The Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause is applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). At its most basic level, the Sixth Amendment’s Confrontation Clause seeks to ensure that the trial is fair and reliable by preserving an accused’s right to cross-examine and confront the witnesses against him. See Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514, 520 (2002) (Opinion Announcing the Judgment of the Court). One way in which the Confrontation Clause can be violated is by the admission of hearsay statements against the defendant as substantive evidence. In those instances, the court must consider the unavailability of the declarant and the reliability of the statements. Ohio v. Roberts, 448 U.S. 56, 66-67, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In assessing the reliability of the statements, the court must decide whether the statements were admitted pursuant to a “firmly rooted hearsay exception” or the circumstances in which the statements were made contained “particularized guarantees of trustworthiness” such that adversarial testing would be expected to add little, if anything, to the statement’s reliability. Roberts, 448 U.S. at 66, 100 S.Ct. 2531. We have explained that whether an exception is “firmly rooted,” for purposes of Sixth Amendment jurisprudence is to be treated as a question of federal law. Robins, 812 A.2d at 524. In that vein, we note that several federal jurisdictions considering this question have concluded that the state of mind exception is a firmly rooted exception to the hearsay law. Horton v. Allen, 370 F.3d 75, 85 (1st Cir.2004); Evans v. Luebbers, 371 F.3d 438 (8th Cir.2004) (relying on Lenza v. Wyrick, 665 F.2d 804 (8th Cir.1981)); Hayes v. York, 311 F.3d 321, 324-25 (4th Cir.2002); Moore v. Reynolds, 153 F.3d 1086, 1107 (10th Cir.1998) (relying on Lenza v. Wyrick, 665 F.2d 804 (8th Cir.1981)); Terrovona v. Kincheloe, 852 F.2d 424, 427 (9th Cir.1988). The federal courts have reasoned that the exception has been a longstanding one that has been recognized by every jurisdiction in the country. Horton, 370 F.3d at 85; Hayes, 311 F.3d at 325. Further, such statements are deemed reliable because of their “spontaneity and resulting probable sincerity.” Horton, supra (quoting McCormick on Evidence, § 274 (5th ed.1999)). For these reasons, the rationale behind the state of mind exception is similar to the other exceptions that have been deemed “firmly rooted.” We find the reasoning of the federal courts persuasive and see no reason to conduct an independent review of the exception. Accordingly, we agree that the state of mind exception is “firmly rooted” for purposes of the Confrontation Clause and Appellant cannot establish that his clam of ineffectiveness has arguable merit. The next claim that Appellant raises is that the trial court unduly restricted Appellant’s ability to present his defense by prohibiting him from showing the jury a picture of his co-actor, Shawn Wilson, holding a gun that was the same or similar to the murder weapon used to kill the two victims in this case. The trial court questioned the relevance of the photo and ruled that such evidence was only admissible if Appellant could establish when the photo was taken. Appellant argues that trial counsel was ineffective for failing to attempt to have one of the Commonwealth’s witnesses, Mark Sisco, date the photograph, since “effective counsel” would have asked the witness if he could date the photograph. Appellant also urges that trial counsel was ineffective for failing to raise the issue of trial court error on direct appeal. Alternatively, Appellant argues that the Commonwealth erred in failing to reveal this information to trial counsel. According to Appellant, trial counsel did not know of the existence of this “critical exculpatory evidence” until it was revealed to him by present counsel. As demonstrated by Appellant’s arguments, Appellant raises this claim in three different ways, and we will address them seriatim. First, Appellant argues that the trial court erred by excluding this evidence and that trial counsel was ineffective for failing to raise this claim of trial court error on direct appeal. In order to prevail on this claim, Appellant must establish trial court error to establish that the claim has arguable merit. It is well settled that the admission of evidence is within the sound discretion of the trial court. Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 350 (1998). The threshold inquiry with admission of evidence is whether the evidence is relevant. “Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact.” Id. (quoting Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696, 699 (1992)). In this case, the trial court questioned the relevance of the photograph and concluded that the photograph was only relevant if the defense could establish that the photograph was taken at or near the time of the murders in question. This was reasonable, since a temporal relationship between the photograph and the murders would lend some credence to the inference that Appellant was attempting to establish — that Wilson was the shooter. Trial counsel, however, did not establish the date of the photograph and therefore, the trial court did not err in excluding the proffered evidence. Accordingly, Appellant cannot establish that his claim regarding trial counsel’s failure to raise this issue on appeal had arguable merit, and Appellant is not entitled to relief on this claim. Alternatively, Appellant argues that trial counsel was ineffective for failing to question Mark Sisco as to whether he knew the date this photo was taken. The prejudice Appellant alleges is that he was prevented from presenting his defense that Shawn Wilson committed the murders instead of him. That argument, however, is unavailing, since there was nothing that prevented Appellant from arguing that there was another person in the apartment at the time of the shooting who had a gun. N.T., 10/18/1994, at 46. Indeed, at trial, it was established that Shawn Wilson was in the apartment with Appellant at the time of the shootings. N.T., 10/18/1994, at 44-48. Accordingly, Appellant cannot establish that he was prejudiced by the trial court’s ruling, and this issue fails on that basis alone. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 357 (1995) (“If it is clear that Appellant has not met the prejudice prong of the ineffectiveness standard, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.”). Lastly, Appellant argues that the Commonwealth withheld this “exculpatory” material in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In order for a defendant to establish the existence of a Brady violation, he must establish that there has been a suppression by the prosecution of either exculpatory or impeachment evidence that was favorable to the accused, and that the omission of such evidence prejudiced the defendant. See Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 696 (2003); Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (2002). Further, no Brady violation occurs where the parties had equal access to the information or if the defendant knew or could have uncovered such evidence with reasonable diligence. Morris supra. In this case, trial counsel had equal access to the information, since trial counsel called Mark Sisco to the stand at trial for additional cross-examination. N.T., 10/19/1994, at 14-22. There is simply no basis for Appellant to contend that the Commonwealth withheld this evidence. Indeed, by Appellant’s prior argument, he acknowledges that counsel could have uncovered this information with reasonable diligence. Accordingly, this issue is without merit. Appellant next raises three arguments in support of his claim that counsel was ineffective for failing to challenge the ballistics evidence. First, Appellant asserts that the Common wealth’s ballistic evidence was erroneous, since it did not compare the bullets from the Mark Sisco shooting to the bullets taken from the scene of the instant murders. Rather, the expert erroneously compared the bullets taken from the scene of the instant murders to other bullets taken from the scene of the instant murders. Second, Appellant alleges that the Commonwealth violated Brady by suppressing ballistic evidence taken from the scene of a separate shooting that was also attributed to Appellant. Lastly, Appellant contends that the PCRA court erred in denying him an evidentiary hearing to determine whether trial counsel was ineffective for failing to request a fingerprint investigation be performed to find latent fingerprints on the bullets or fired cartridge casings. Appellant’s first argument is confounding. Even accepting Appellant’s allegation that the documents that supported the expert testimony were confusing, the confusion in no way affected the ballistics expert’s testimony at trial. Rather, the witness clearly testified that there were three bullets retrieved from the Mark Sisco shooting and that, following his examination of the bullets, he concluded to a reasonable degree of scientific certainty that two of the bullets were fired from the same weapon. N.T., 10/18/1994, at 161-68. The expert witness then testified that he examined the bullets from the instant murders and compared those “to the bullets ... from Mark Sisco.” Id. at 165-66. Again, he concluded that the bullets were fired from the same weapon as that used in the shooting of Mark Sisco. Accordingly, the record does not support Appellant’s allegation that the expert erroneously compared the ballistics evidence from the same shooting. Appellant’s reliance on Brady is similarly unavailing, since there is simply no basis for concluding that another bullet exists. Appellant bases his allegation on a witness that testified at Shawn Wilson’s trial that she saw the police take a bullet out of a doorframe following the shooting. Aside from this one statement, however, Appellant points to nothing in support of his Brady claim, which would demonstrate that the Commonwealth possesses additional ballistics evidence that it failed to reveal to Appellant. Lastly, it is well settled that that a PCRA court does not need to conduct a hearing on all issues related to counsel’s ineffectiveness. Pa.R.Crim.P. 909(B); see Commonwealth v. Lewis, 560 Pa. 240, 743 A.2d 907 (2000). A trial court’s decision not to hold a hearing will only be reversed when the trial court abused its discretion. Like the prior argument, Appellant has not pointed to any evidence indicating that there were fingerprints on the bullets or casings taken from the scene of the crime or that such evidence, even if it existed, would have been exculpatory. Accordingly, Appellant cannot establish that he was prejudiced by trial counsel’s action and this issue is without merit. Travaglia, supra. Having concluded that the guilt phase issues do not entitle Appellant to relief, we now turn to the penalty phase issues. Appellant forwards two penalty phase issues in support of his petition for relief that were not addressed by the PCRA court, since it determined a third claim merited Appellant relief. The PCRA court awarded Appellant relief on his claim that trial counsel did not adequately investigate and present available mitigating evidence during the penalty phase. The Commonwealth challenges this determination and we will consider this issue first. In this case, in awarding a new penalty phase hearing, the PCRA court focused on four main points: trial counsel did not uncover evidence related to Appellant’s abusive childhood; trial counsel did not uncover evidence related to a head trauma sustained by Appellant in 1990; trial counsel failed to review Appellant’s school and psychological records; and Dr. Tepper’s testimony at the PCRA hearing. Regarding Appellant’s background, at the PCRA hearing, Appellant pre sented five family members who testified to the fact that he was abused by his father, paternal grandfather, and mother’s boyfriends. The family members also testified as to Appellant’s head trauma that he sustained in 1990. With regard to two of Appellant’s family members, who testified contrary to their testimony at the penalty phase of the trial, the PCRA court determined that they only met with trial counsel “briefly” immediately prior to the penalty phase hearing. At that meeting, they were told to say “good things” about Appellant. Furthermore, in support of the remaining findings, the PCRA court relied on the fact that counsel failed to secure relevant school and mental health records, which would have demonstrated that Appellant was diagnosed with serious emotional problems from an early age and that such problems were compounded by a head injury he sustained in 1990. Dr. Tepper testified that had he been presented with the documents he now had in his possession, he would have advised trial counsel to obtain a neurological examination and neuropsychological testing. At the PCRA hearing, Appellant presented two other experts corroborating Dr. Tepper’s testimony. All three experts testified that given Appellant’s cognitive defects and his emotional problems, Appellant was under the influence of extreme mental or emotional disturbance, 42 Pa.C.S. § 9711(e)(2), and his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired, 42 Pa.C.S. § 9711(e)(3). For these reasons, the PCRA court concluded that the evidence was relevant to two additional mitigating circumstances and that trial counsel was ineffective for failing to investigate evidence of mitigation. Accordingly, the court ordered a new penalty phase hearing. The crux of the controversy regarding this issue is the performance prong of Strickland (arguable merit and lack of reasonable strategy in Pennsylvania). See, e.g., Common wealth v. Malloy, 579 Pa. 425, 856 A.2d 767 (Pa.2004). The question of whether the PCRA court erred in its determination that trial counsel was ineffective for failing to investigate and present mitigating circumstances depends upon a myriad of factors including the mitigation evidence that was actually presented, the reasonableness of counsel’s investigation, and the mitigation evidence that could have been presented. See Malloy. None of these factors, however, is in and of itself dispositive of the question presented, since even if the investigation by counsel was unreasonable, such a fact alone will not result in relief if the claimant cannot demonstrate that he was prejudiced by counsel’s conduct. See, e.g., Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1150 (explaining that a showing of prejudice is always a prerequisite to a claim alleging the ineffectiveness of counsel). A recent trilogy of cases highlights the fact that the reasonableness of counsel’s investigation into mitigating circumstances is determined on a case by case basis. In Malloy, we provided an extensive roadmap for resolving this prong of the ineffectiveness inquiry. We reiterated the United States Supreme Court’s focus in undertaking such an inquiry, explaining that “our principal concern in deciding whether [counsel] exercised ‘reasonable professional judgment’ is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of [appellant’s] background was itself reasonable.” Malloy, 856 A.2d at 784 (quoting Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (emphasis in original)). In considering this question in Malloy, we first considered the investigation that counsel performed and the evidence that counsel presented. We pointed out that counsel’s overall trial preparation was lacking, as it consisted of minimal meetings with the appellant and his family members. Id. at 786, 788. We also noted that mitigation evidence concerning the appellant’s background was available at the time of trial. Id. at 786. Thus, we concluded that the appellant proved that there were certain factors in his background which were easily discoverable even with minimal investigation. Id. at 788. After reaching this conclusion we further explained that “the onus is not upon a criminal defendant to identify what types of evidence may be relevant and require development and pursuit. Counsel’s duty is to discover [mitigating] evidence through his own efforts, including pointed questioning of his client.” Id. at 788. We then acknowledged that counsel’s investigation is dependent, in part, upon the information given to counsel by the appellant in the course of his investigation. We made clear, however, that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. Ultimately, we found that the failure of counsel to investigate was not based upon strategy, since counsel failed to conduct a cursory review of the appellant’s background. “This is not a case where trial counsel had attempted to elicit relevant mitigation information from his client and family members, only to have childhood abuse, family problems, or other potential mitigation evidence within their knowledge not be mentioned.” Id. For these reasons, in Malloy, we concluded that counsel’s investigation was unreasonable. In Brown, we were again asked to consider the reasonableness of counsel’s investigation and presentation of mitigation evidence at the penalty phase. We first pointed out that the record at the time of trial indicated that the appellant did not suffer from any mental illness or abuse that would have prompted counsel to conduct a further investigation. Brown, 872 A.2d at 1150. Specifically, we noted that the information available to trial counsel did not alert counsel to further investigate such issues, since the appellant told the police he had never been treated for mental health issues; a presentence investigation report prepared by a psychologist indicated that the appellant reported no history of neurological, suicidal, or psychiatric problems; and the record indicated that the appellant had not been abused by his father. Id. at 1149 (referring back to the lack of record evidence in support of his claim regarding self defense). Thus, we concluded that the issue did not have arguable merit and the appellant did not prove that counsel did not undertake a reasonable investigation on the basis of the record that existed at the time of trial. Lastly, in Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177 (2005), we again faced an issue related to counsel’s investigation and presentation of mitigation evidence. In disposing of this claim, we first noted that the “bald allegations” forwarded by the appellant, did not demonstrate that he suffered from any mental deficiencies as a result of the alleged abuse. Id. at 1188. Furthermore, in considering counsel’s investigation, we found that trial counsel spoke with the appellant, his family, and friends for the express purpose of obtaining mitigating evidence, yet counsel was never informed of any alleged mental condition or of any mental abuse allegedly suffered by the appellant as a child. Id. at 1189. Indeed, we noted that over the appellant’s objection, trial counsel put the appellant’s mother on the stand to testify as to the appellant’s good character and trial counsel testified that he did not put the remaining witnesses on the stand in light of the appellant’s wish that no witnesses be called to testify on his behalf. Id. at 1190. Accordingly, we concluded that the appellant “has failed to demonstrate that his counsel was ineffective when he essentially followed [the appellant’s] wishes in not presenting additional mitigating evidence.” Id. Considering the findings of fact of the PCRA court and the evidence adduced at the PCRA hearing in the light most favorable to Appellant, we find that Appellant is entitled to relief on his claim of ineffectiveness. We are aware that this case is a step removed from Malloy, since here, counsel presented evidence of Appellant’s “good character” and also presented expert testimony demonstrating that Appellant had low intelligence, a history of drug and alcohol abuse, a lack of self esteem, and that Appellant lacked a male role model in his life because his father left the family when Appellant was young. Further complicating matters is the fact that Dr. Tepper asked Appellant whether he sustained any head injuries, and Appellant told him no. N.T., 11/8/2001, at 225. Moreover, at the PCRA hearing, it was suggested that Appellant’s mother was uncooperative with trial counsel in preparing for Appellant’s penalty phase and did not meet extensively with counsel. Thus, there was evidence that counsel did some investigation for Appellant’s penalty phase hearing. We find, however, that even in light of these differences, similar to the counsel in Malloy, counsel did not undertake a “reasonable” investigation. Counsel could not remember whether he asked either Appellant or his family members whether Appellant had any medical history. N.T., 11/9/2001, at 77. Counsel admitted, however, that he did not ask Appellant or his family members whether Appellant ever sustained a head injury. N.T., 11/16/2001, at 17. Indeed, one of the witnesses at the PCRA hearing, who also testified at the penalty phase hearing, testified that she was aware of Appellant’s head injury, but was only interviewed by counsel immediately before trial for a brief period of time and was told only to say “good things” about Appellant. N.T., 11/16/2001, at 55-57. Additionally, counsel admitted that he did not obtain Appellant’s school records , N.T. 11/9/2001, at 62, and never obtained a “social history” of Appellant from either Appellant or his family members, N.T., 11/16/2001, at 40. Counsel understood a “social history” to include information regarding Appellant’s background, i.e., whether Appellant had learning difficulties and significant problems in adolescence. Id. Based upon the testimony of the PCRA hearing, it appears that this testimony was readily accessible to counsel; and, like the situation in Malloy, was not uncovered because of counsel’s failure to undertake a thorough investigation. Furthermore, aside from Appellant’s misleading statement to Dr. Tepper, there was simply no evidence to suggest that relevant information was withheld during the interview process by Appellant or his family members. Malloy, 856 A.2d at 788. Indeed, as the PCRA court found, it was unclear whether the extended family members were even given the opportunity to give counsel relevant information about Appellant, since counsel met with them briefly and told them only to say “good things” about Appellant. The instant case is distinct from Brown, simply because here, there was relevant evidence that was available at the time of trial that could have been uncovered with minimal investigation. There is no question that medical records existed at the time of trial that would have demonstrated a serious head injury. If counsel had uncovered such evidence, the evidence would have led to a difference in the expert’s recommendation to counsel and the expert’s testimony at the penalty phase. In fact, such evidence would have led to the presentation of two additional mitigating circumstances, neither of which was offered during the penalty phase. Furthermore, unlike the situation in Hall, in this case, Appellant has presented more than “bald allegations” in support of his contentions and, as demonstrated by the expert evidence adduced at the PCRA hearing, has demonstrated that he suffered mental deficiencies as a result of the head injury and childhood abuse. For these reasons, we agree with the PCRA court’s determination that counsel did not conduct a reasonable investigation to uncover the relevant mitigating evidence and thus, conclude that the Appellant established that his claim has arguable merit and counsel lacked a reasonable trial strategy. Having concluded that counsel’s investigation was not reasonable, we still must consider whether such failure prejudiced Appellant. Brown, 872 A.2d at 1150. In this case, Appellant’s experts testified that such evidence was relevant to establishing two additional mitigating factors that were not presented at trial. Thus, had the jury heard all of the relevant evidence, there is a reasonable probability that at least one juror would have found an additional mitigating circumstance and struck a different balance in weighing the aggravating and mitigating circumstances. See Malloy, 856 A.2d at 789. For the reasons stated herein, we affirm the PCRA court’s order denying Appellant relief on his guilt phase issues and granting relief on his penalty phase issue discussed supra. Accordingly, this matter is remanded for a new penalty phase hearing. Justice NIGRO, Justice NEWMAN and Justice BAER join the opinion. Justice SAYLOR files a concurring opinion. Justice CASTILLE files a concurring and dissenting opinion in which Justice EAKIN joins. . The facts underlying Appellant's convictions are set forth at Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 418 (1997). . With regard to the first murder, the jury found that Appellant killed a prosecution witness to a murder or other felony that he committed for the purpose of preventing the witness from testifying against him, 42 Pa.C.S. § 9711(d)(5), and that Appellant had been convicted of another murder either before or at the time of the offense at issue, 42 Pa.C.S. § 9711(d)(ll). With regard to the second murder, the jury found the same (d)(ll) aggravator and that the killing was committed in furtherance of Appellant’s drug business, 42 Pa.C.S. § 9711 (d)(l4). The catchall mitigating circumstance, 42 Pa.C.S. § 9711(e)(8), was found for both murders. . Although the order listed the relevant section as 9544(b), as both parties recognized, the iteration of that subsection was in error and the relevant section for purposes of this order was 42 Pa.C.S. § 9544(a)(2). . Under the predecessor to the PCRA, post-conviction review was only available where the error resulting in the conviction has not been “finally litigated or waived,” 19 P.S. § 1180 — 3(d). An issue was "finally litigated if the Supreme Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue.” 19 P.S. § 1180 — 4(a)(3). . 42 Pa.C.S. § 9544(a)(3) refers specifically to issues raised on collateral review, but has no relevance to our discussion today. . Of course, as with many general rules, there have been exceptions. Most notably, this court has recognized an exception akin to an "after-discovered” evidence exception when the claimant is presenting new evidence in support of the ineffectiveness claim. See Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88, 98 n. 5 (2004) (noting that the issue does not rest on "previously litigated evidence”); Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 602 nn. 9 & 10 (2000) (holding that claim involving unchallenged evidence was not previously litigated). . In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court set forth a performance and prejudice test for evaluating counsel's conduct. In Pennsylvania, we have adapted the Strickland test as set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) and require a defendant to prove three prongs — -that the claim has arguable merit, that counsel had no reasonable basis for his action or omission, and that the defendant was prejudiced by counsel’s conduct. . As the United States Supreme Court and Pennsylvania jurisprudence has developed, this point has more force, since both courts have explained, more fully, the distinction between direct review and collateral review. In Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), the court explained that the evidence introduced at trial will be devoted to issues of guilt or innocence. Id. at 505, 123 S.Ct. 1690. Thus, the resulting record in most cases will not disclose the facts necessary to decide the ineffectiveness claims. Id.; see also Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). On the other hand, claims of ineffective assistance of counsel concern the adequacy of representation and the appellate court is not the forum best suited to assess those facts. Massaro, 538 U.S. at 504, 123 S.Ct. 1690; Grant supra. For these reasons, the Massaro Court concluded that the ■ nature of ineffectiveness claims suited them to collateral review. . We note that that there are other jurisdictions that adhere to a similar interpretation of "previously litigated” that this court has recognized since Peterlcin. See Underwood v. United States, 15 F.3d 16 (2d Cir. 1993); In re Shriner, 735 F.2d 1236, 1240 (11th Cir.1984); Bannister v. State, 726 S.W.2d 821 (Mo.Ct.App.1987). . Furthermore, although in many cases the claim will be dismissed for the reasons discussed on direct appeal, this is not a distinction without a difference, because it is a distinct, constitutional claim that deserves its own analysis regardless of the result of that analysis. Furthermore, we can envision circumstances where a defendant may be entitled to relief on an ineffectiveness claim attacking counsel’s performance on direct review. . Of course, an exception to this, which should rarely occur following our decision in Grant, supra n. 9, would occur if a claim of ineffectiveness was raised on direct appeal and a claimant seeks to raise the same claim of ineffectiveness on collateral review. . On appeal from the denial of PCRA relief, our standard of review is whether the findings of the PCRA court are supported by the record and are free from legal error. Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719 (2003) (citing Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94 (2001)). Our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party. See, e.g., Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d 802 (2005). . For ease of reference, “trial counsel” will refer to both trial and appellate counsel, since the same counsel represented Appellant through his direct appeal to this court. . There is no argument that the declarant was not “unavailable” and such argument would have been unavailing since Dawn Anderson was killed and, therefore, was unavailable. . The test set forth in Roberts has been superseded by the decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), at least with regard to testimonial evidence. Crawford, however, is unavailable to claimants on collateral review, and therefore, the proper test is that set forth in Roberts. Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455, 464 n. 7 (2004). . Apparently at Shawn Wilson's trial, which occurred two months after Appellant’s trial, Marc Sisco, testified that the photo was taken around November or December, or about six months, before the instant murders occurred. Mark Sisco also testified at Appellant's trial. . Appellant also alleges that the errors by the trial court, trial counsel, and the Commonwealth denied him due process. As discussed infra, however, we find that there were no errors and thus, Appellant’s due process argument is also without merit. . This evidence was important to establish that Appellant committed the murders in this case, since Mark Sisco identified Appellant as his shooter and the ballistics evidence at trial established that the bullets from the scene of the Mark Sisco murder were fired from the same weapon as the bullets collected at the scene of the instant murders. . Trial counsel presented Dr. Tepper as a psychological expert during the original penalty phase. . Apparently, in 1990, Appellant was hit in the head with a baseball bat and slabbed in the head, resulting in hospitalization. Although during the course of the PCRA hearing, the experts disputed the “seriousness" of the head injury, there was no question that Appellant sustained the 1990 head injury. . As with all claims of ineffectiveness, we repeat that we review the PCRA court's findings to see if they are supported by the record and free from legal error. Commonwealth v. Reyes, 582 Pa. 317, 870 A.2d 888, 893 n. 2 (2005). Our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed in the light most favorable to the prevailing party. See, e.g., Commonwealth v. Meadius, 582 Pa. 174, 870 A.2d 802, 2005 WL 711621 (2005). . While it is unclear exactly why Mother did not testify at Appellant’s penalty phase, it was suggested that she did not have much faith in the legal system at the time of Appellant’s trial, since her other son had recently been convicted of first degree murder and sentenced to death. It is clear, however, that several other family members testified at the penalty phase of Appellant’s trial; and the evidence adduced at the PCRA hearing suggested that any interview of the remaining family members was brief and trial counsel told them only to say “good things’’ about Appellant. . At least one expert testified that the school records would have been helpful in assessing Appellant’s overall mental ability. N.T., 11/8/2001, at 24-27. . Moreover, our decision today is consonant with the United States Supreme Court’s recent decision in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), wherein, the court held: even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of the trial. Rompilla, at 2458. In Rompilla, the court ultimately concluded that counsel was ineffective for failing to review a presentence investigative report that would have yielded "a range of mitigation leads that no other source had opened up.” Id. at 2459. Although the conclusion in Rompilla, does not compel a particular result in this case since we are not dealing with counsel’s failure to review a presentence report or other evidence that was in the possession of the Commonwealth, we find that the reasoning underlying such holding is consistent with our decision today, since Rompilla made clear that, under certain circumstances, it is simply not enough for counsel to rely on representations by the defendant, his family, and his friends. . The concurring and dissenting opinion makes much of the fact that we have failed to discuss Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52 (2003), in analyzing the instant issue. Furthermore, it believes that our decision in Fears is dispositive of Appellant's issue. With all due respect, the responsive opinion overstates the impact of Fears on the instant case. First, it must be recognized that each time an appellant raises a colorable claim that trial counsel was ineffective for failing to present sufficienl mitigation evidence during the penalty phase, the case must be analyzed considering the unique facts presented. No two capital defendants will have the same life histories and no two counsel will proceed in the identical manner. Thus, what is considered reasonable in one case will not necessarily be considered reasonable in another. Second, we are not overruling Fears, but rather find it distinguishable from the case at bar. In Fears, the trial court discounted the appellant's expert testimony establishing that the appellant suffered from severe mental impairments and concluded that trial counsel’s performance in failing 1o present such evidence was reasonable. 836 A.2d at 53, n. 23. Here, the PCRA court found that trial counsel’s performance lacked a reasonable basis. The PCRA court reached this conclusion by crediting the testimony of family members, who testified that trial counsel did not spend time preparing them or questioning them regarding Appellant’s life history, but merely told them to say "good things” about Appellant. Such performance indicates a lack of preparation on counsel's part, rather than a failure of family members to come forth with relevant information. In addition to the failure of counsel to uncover "social history” information and information regarding Appellant's head injury, we have the additional fact that counsel admittedly did not procure relevant school and mental health records. Finally, we acknowledge that this case presents somewhat of a “close call,” but ultimately err on the side of finding in favor of Appellant, based, in part, on the deference that is due to a PCRA court’s determination, see standard set forth supra at p. 62 n. 12, 888 A.2d at p. 574, n. 12. We emphasize that this area of the law is constantly evolving, with each case building on the case that came before. To rely solely on Fears, without considering our more recent decisions in Malloy, Brown, and Hall, would be unwise. We cannot ignore counsel’s duty to pursue all mitigating evidence of which he should be reasonably aware. See Commonwealth v. Zook, 585 Pa. 11, 887 A.2d 1218, 2005 WL 3160270 (Pa.2005) (holding that trial counsel’s performance lacked a reasonable basis when he failed to set forth an explanation for failing to pursue evidence that existed at the time of trial, which indicated that the appellant suffered a brain injury and resulting brain damage). . We need not reach the two issues Appellant raises regarding the penalty phase, since we are granting him a new penalty hearing.

VAN der VOORT, Judge: On August 6, 1975, Frederick A. Brunelli, an employee of Cobb and Lawless, was injured in a collision with an automobile driven by Luis Aviles, an employee of Farelly Brothers. At the time of the accident, Mr. Brunelli was operating a motor vehicle furnished by his employer, within the scope of his employment. A complaint in trespass was filed on August 27, 1976 by Fred A. Brunelli against Farelly Brothers and Luis Aviles. On December 14, 1976, CNA Insurance Company, the workmen’s compensation insurer for Cobb and Lawless, filed a Petition to Intervene as Use Plaintiff, alleging subrogation rights (to the extent of workmen’s compensation paid and payable) to any recovery by plaintiff from the defendants. The lower court denied the petition by order dated April 28, 1977, and CNA appealed to our Court, arguing that the lower court improperly ruled that the Pennsylvania No-fault Motor Vehicle Insurance Act implicitly repealed the subrogation provision of the Pennsylvania Workmen’s Compensation Act, and also that the lower court improperly determined that the No-fault statute prohibits subrogation by a workmen’s compensation carrier for money paid to an employee injured in an automobile accident while acting within the scope of his employment. Although the No-fault statute does not specifically prohibit subrogation by a workmen’s compensation insurer, a careful analysis of that convoluted, ungrammatical statute leads us to the conclusion that the workmen’s compensation insurer is not subrogated, at least under the facts of the case before us, to any recovery by the injured employee. Under No-fault § 111(b), the no-fault insurer (or “obligor”, to use the term employed in the Act) must pay the injured insured (the employee Brunelli in this case) “basic loss benefits”, regardless of who was responsible for causing the accident. “Basic loss benefits”, according to No-fault § 103, are paid to a victim to compensate him for his “net loss”. According to No-fault § 103, “net loss” is calculated by subtracting “benefits” and “advantages” (terms which are not specifically defined in No-fault) from “loss”. “Loss” is defined in No-fault § 103 as “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss”. (The latter terms are defined in No-fault § 103). Although “benefits” and “advantages” are not defined in No-fault’s definition section, section 206(a) of the Act provides that (except when certain “assigned claims” are involved) all benefits and advantages which an individual receives or is entitled to receive from workmen’s compensation shall be subtracted from “loss” and in calculating “net loss”. The effect of the foregoing sections is that the workmen’s compensation insurer must pay all that it is required to pay under the provisions of the workmen’s compensation statute before the no-fault insurer’s financial obligations begin to accrue. As noted previously, the no-fault insurer is obligated to pay “basic loss benefits” to the victim. Under No-fault § 301, the tortfeasor’s tort liability for economic damage is abolished, except for amounts in excess of money paid to the victim as “basic loss benefits”. (Section 301 contains other exceptions not applicable here). The victim may recover from the tortfeasor for amounts in excess of the “basic loss benefits”, and if the victim’s no-fault insurance policy provides for “added loss benefits” (benefits in excess of “basic loss benefits”), under No-fault § 111(a)(2) the no-fault insurer will be subrogated to the victim’s right to recover from the tort-feasor, but only for economic damages which exceed the “basic loss benefits” amounts. In other words, the no-fault insurer must pay “basic loss benefits” to the victim, and perhaps additional benefits (if specified in the contract of insurance), but may recover from the tortfeasor only for amounts paid to the victim in excess of “basic loss benefits”. We turn now to the question of whether the workmen’s compensation insurer may recover for amounts paid to the victim under the terms of the Pennsylvania Workmen’s Compensation Act. The Pennsylvania Workmen’s Compensation Act provides, 77 P.S. § 671, that “[w]here the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer . . . .” Since No-fault has abolished the tort liability of a tortfeasor involved in an automobile accident except for amounts in excess of “basic loss benefits”, and since workmen’s compensation benefits are not amounts in excess of “basic loss benefits” (as determined earlier in this opinion), neither the employee-victim nor the workmen’s compensation insurer, his would-be subrogee, has a cause of action against the third party tortfeasor for the sum paid or payable to the employee as workmen’s compensation benefits. The order of the lower court denying the workmen’s compensation insurer permission to intervene as use plaintiff is affirmed. SPAETH, J., concurs in the result. JACOBS, and WATKINS, former President Judges, and HOFFMAN, J., did not participate in the consideration or decision of this case. . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, 40 P.S. § 1009.101 et seq. (Supp., 1977-78). . Act of June 2, 1915, P.L. 736, No. 338, as amended, 77 P.S. § 1 et seq. . “ ‘Allowable expense’ means reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used products, services, and accommodations for: (A) professional medical treatment and care; (B) emergency health services; (C) medical and vocational rehabilitation services; (D) expenses directly related to the funeral, burial, cremation or other form of disposition of the remains of a deceased victim, not to exceed one thousand five hundred dollars ($1,500); and The term does not include that portion of a charge for a room in a hospital, clinic, convalescent, or nursing home, or any other institution engaged in providing nursing care and related services, in excess of a reasonable and customary charge for semiprivate accommodations, unless more intensive care is medically required; or any amount includable in work loss, replacement services loss, or survivor’s loss.” “ ‘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.” “ ‘Replacement services loss’ means expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of himself or his family, if he had not been injured.” “ ‘Survivor’s loss’ means the: (A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and (B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury, reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.” . The workmen’s compensation benefits would not be subtracted from “loss” to calculate “net loss” if the workmen’s compensation statute specifically provided that workmen’s compensation benefits were to be “excess” or “secondary” to no-fault benefits. No-fault § 206(a). . It should be noted, however, that No-fault § 106(a)(3) provides that no-fault benefits shall be paid without deduction for the benefits or advantages which are to be subtracted from “loss” in calculating “net loss” if such benefits or advantages have not been paid or provided to the claimant prior to the date the no-fault benefits are overdue or the no-fault benefits claim is paid. Section 106(a)(3) provides that in such event the no-fault insurer may recover reimbursement from the party, in this case the workmen’s compensation carrier, who is obligated to pay, or may recover from the claimant who has been paid by the party (the workmen’s compensation carrier) after the no-fault carrier has paid the claimant. . A word of caution is in order. The Pennsylvania Workmen’s Compensation Act, 77 P.S. § 481, provides that the liability of an employer to an employee shall be controlled exclusively by that act. ■The Workmen’s Compensation Act does not affect an employee’s cause of action against a third party tortfeasor, except for prohibiting the third party from recovering contribution from the employer for damages which the third party is required to pay to the employee-victim (77 P.S. § 481). No-fault applies to an action between the employee and the third party. Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978), did not contemplate the situation which now confronts us. Although the basic decision in Turner was correct, the dictum in Turner was incorrect insofar as it indicated that No-fault § 206(a) (providing for subtraction of workmen’s compensation benefits from “loss” in calculating “net loss”) did not apply when an employee was driving the employer’s car.

Opinion by Mr. Justice Cohen, Plaintiffs were the owners of a certain property in Washington County. On October 1, 1951, there stood on this property a two-story concrete block and frame building with a basement and sub-basement. Because, of the grade of the land the basement and sub-basement at the back of the building were exposed above the ground. The sub-basement extended under the building to a depth of approximately 20 feet and was divided into four separate rooms. One side of each room was unenclosed, and the rooms could be entered only from the unenclosed sides. Finished lumber and building materials were stored in these rooms and in the rear of the basement which was partitioned from the rest of the basement. In front of the building, along a railroad siding, plaintiffs had stored some lumber. To the rear were open yards in which plaintiffs had stored their less valuable lumber. In the open yards was a small building commonly called a shed, open on all sides and roofed with tar paper, used to store gutters and some lumber. Prior to October 1, 1951, the property Avas protected under insurance policies “[o]n the two story concrete block building . . . occupied for living apartments, offices, and warehouse for lumber and builders’ supplies. . . . “And on . . . lumber in open yard adjacent to the above described warehouse. “Privilege granted to finish and complete.” (Emphasis supplied). On October 1, 1951, the original policies to the value, of .$100,000 were cancelled at the request of the assured because the buildings carried an excessively high rate; and insurance in the amount of $60,000 (divided equally among six companies) was placed only “on stock of lumber and builders’ supplies in open yards and sheds at the rear of assured’s warehouse at Washington County, Pa.” (emphasis supplied). After the new policies totaling $60,000 Avere issued, plaintiffs constructed additional sheds in the open yards and stored -lumber therein. These policies were renewed until October 1, 1954. A fire completely destroyed plaintiffs’ building, including the lumber and building supplies which were stored therein, on March 15, 1954. The lumber in the open yards and at the railroad siding, however, was not damaged by the fire. Plaintiffs sought to recover on the insurance for their losses, maintaining that the partitioned basement and rooms in the sub-basement were “sheds” within the meaning of the policies and that the contents — lumber and builders’ supplies — were thus insured. All the companies refused their claim. Plaintiffs on March 11, 1955, instituted separate suits, (consolidated for trial), against the several insurance companies in the Court of Common Pleas of Washington County. The cases were tried on the following theories: (1) that the word “sheds” is broad enough to encompass within its meaning the basement structures at the bottom of the concrete block and frame building; (2) that though the contracts of insurance are apparently clear, when an attempt is made to apply their terms to the existing situation an ambiguity arises in that the word “sheds” could apply equally to the basement structures or to the small building in the open yard or to both; that a latent ambiguity having thus developed, evidence is admissible to denote the exact reference intended by the parties to be attributed to the word “sheds”; (3) that through fraud, accident or mistake coverage of the materials in the basements was not included in the insurance contracts and that, therefore, the contracts should be reformed to include such coverage. The trial judge rejected the plaintiffs’ first theory— that the basement structures were sheds. However, he determined that the word “sheds” in the insurance policies was latently'ambiguous. He therefore admitted evidence to establish the exact reference intended by the parties when using the word “sheds” and submitted this question to the jury. Additionally, the trial judge admitted evidence to determine whether the parties, pursuant to an oral agreement made with the defendants’ agent, intended to insure the basement structures but failed to include their understanding in the policies because of fraud, accident or mistake. This issue was also submitted to the jury- The jury returned a verdict in favor of the plaintiffs, and the defendants moved for judgment n.o.v. and for a new trial. From the refusal of their motions by the court en banc, (the trial judge dissenting), and the entry of judgment upon the verdict, the defendants have brought these appeals. The plaintiffs’ contention that the basement storage areas are “sheds” cannot be sustained. Simple words of common usage in a policy of insurance will be construed in their natural, plain and ordinary sense. Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mutual Ins. Co., 385 Pa. 394, 397, 123 A. 2d 413 (1956). It has not been suggested that the word “sheds” is a word of art or that it is not a simple word of common usage. We therefore construe it in its natural, plain and ordinary sense. The trial judge in his charge to the jury, quoting from numerous standard dictionaries, stated: “the word ‘shed’, is defined as ‘a slight structure built for shelter or storage; ... a lean-to, or separate building open in front, an outbuilding, a hut, as a wagon shed.’ ... ‘A small building slightly constructed and of simple form, usually one story high, and often with front or front and sides open; also a lean-to, as a wagon- shed.’ ... ‘A slight or temporary building; a large open structure for temporary storage of goods, as a shed on a wharf, a railway shed, a sheep shed, cattle shed.’” (Emphasis supplied). The dictionary’s definition is consistent with the general usage of the word “sheds” and both are denotive of an unsubstantial structure created for a temporary purpose. Such a definition is wholly inapplicable to the basements of a permanent concrete block and frame two-story warehoiise. Aside from the literal definition the word “sheds” is in no sense suggestive of the basements of a concrete and frame building even though the basements may be open on one side. The meaning of the word “sheds” is plain, and there has been no suggestion that it was used in a special or technical sense. While the facts surrounding the making of a contract are admissible in evidence to help explain the meaning of language used in a contract, if the meaning is plain® and the circumstances do not show that the language was used in a special or technical sense, no such evidence can be submitted to a jury. See Restatement, Contracts §§230, 235(a), (b), (d)., and comments (1932); 9 Wigmore, Evidence §§2460: 2462 (3rd ed. 1940) (particularly note pp. 190-194); 3 Williston, Contracts §§609, 618, 629 (2nd ed. 1936). Accordingly, the trial judge was correct in rejecting the plaintiffs first theory. The second theory of the plaintiffs is that the insurance contracts contain a latent ambiguity arising from the fact that while the original policies issued in 1951 used the plural “sheds” there, in fact, existed at that time only one shed in the open yard. From this circumstance the plaintiffs contend that the court below properly admitted evidence showing whether the word “sheds” was intended by the parties to cover the basement store rooms and correctly submitted this issue to the jury. We are unable to agree. A latent ambiguity arises from extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous. Metzger’s Estate, 222 Pa. 276, 71 Atl. 96 (1908). The usual instance of a latent ambiguity is one in which a writing refers to a particular person or a thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more. of them equally. See Lycoming Mutual Insurance Co. v. Sailer, 67 Pa. 108 (1870) (insurance policy covered a “hay house”; there were two “hay houses”); Koplin v. Franklin Fire Insurance Co., 158 Pa. Super. 301, 44 A. 2d 877 (1945) .(plaintiff’s two chicken houses were insured for different amounts; which was chicken house #1 and which was #2 within the designation of the policy?) See also 9 Wigmore, op. cit. supra, §2472. Whether evidence of extrinsic circumstances is sufficient to create a latent ambiguity in a contract is a matter of law for the court. Only after the court is satisfied that a latent ambiguity exists is the question of what the parties intended by language used in the contract — taking into consideration the extrinsic facts and circumstances — an issue to be submitted to the jury. Waldman v. Shoemaker, 367 Pa. 587, 592, 80 A. 2d 776 (1951) ; Lycoming Mutual Insurance Co. v. Sailer, 67 Pa. 108, 113 (1870). See also 3 Williston op. cit. supra, §616. The mere fact that the plural “sheds” was used in the present policies when only one such structure existed in 1951 does not create an ambiguity. The effect of the policies is simply to insure the one existing shed and, further, to cover any other sheds which might be erected during the life of the policies to a total value of $60,000. If a policy of insurance were drawn to cover “horses” and the insured had but one horse at the time, certainly no such ambiguity would arise as would permit testimony that the policy was meant to cover the insured’s cow as well. Simply because the plural “sheds” was used when- only one shed existed is not a sufficient reason for permitting evidence to be introduced in order to show that a structure which is clearly not a shed is a shed within the meaning of the contract on the theory that latent ambiguity exists. Since the court should have, in the first instance, determined that there was no latent ambiguity in the contracts, it follows that the admission of evidence on the question whether the parties used the word “sheds” to include the basement storeroom, and the submission of this issue to the jury, was error. The final theory of the plaintiffs is that they are entitled because of fraud, accident or mistake to have the policy reformed in order to carry out the full intent and agreement of the parties. They would have the coverage of the policy changed to read as follows: “On Stock of lumber and builders supplies in open yards and in a shed in the open yards; and in a shed or sheds consisting of (a) stalls in the sub-basement of the assured’s main building and basement warehouse, and (b) in the storage room in the rear of the basement warehouse, both being classified as storage shed or sheds although being part of the assured’s building; and along Railroad siding about 300 yards South of assured’s main building on Washington Road . . . .” In support of this position Samuel Easton testified that the defendants’ authorized agent agreed that the fire insurance policies when issued were to cover the lumber and builders’ supplies which the plaintiffs had stored in the basement and sub-basement of their building with the understanding and agreement that they would construct a Avail partitioning off the rear portion of the basement warehouse in such a manner that there would be no direct communication between the basement storage areas and any other part of the building. In addition, Easton testified that the agent agreed that after the construction of the partition the basement storage rooms would be classified as “sheds”. In order to obtain the reformation of a contract in equity, or a variance of the terms of a contract at Iuav, the moving party is required to show by clear, precise and indubitable evidence either fraud or mutual mistake. Brandolini v. Grand Lodge of Pennsylvania, 358 Pa. 303, 305, 56 A. 2d 662 (1948); Broida v. Travelers Insurance Co., 316 Pa. 444, 447, 175 Atl. 493 (1934) ; Gianni v. Russell & Co., 281 Pa. 320, 325, 126 Atl. 791 (1934). The meaning of this requirement is that [plaintiffs’] “Avitnesses 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 jury to come to a clear conviction, Avithout hesitancy, of the truth of the precise facts in issue.” Broida v. Travelers Insurance Co., supra, 316 Pa. at 448. Furthermore, the evidence must be established by two witnesses or by one witness and corroborating circumstances. Brandolini v. Grand Lodge of Pennsylvania, supra, 358 Pa. at 305; Broida v. Travelers Insurance Co., supra, 316 Pa. at 448. Whether the plaintiffs’ evidence met this standard and so justified the submission of their case to the jury is again a question of law for the court. Gerfin v. Colonial Smelting & Refining Co., 374 Pa. 66, 68, 97 A. 2d 71 (1953); Brandolini v. Grand Lodge of Pennsylvania, supra, 358 Pa. at 305; Broida v. Travelers Insurance Co., supra, 316 Pa. at 447. Reviewing the evidence presented' in the case before us, we find that the plaintiffs’ evidence does not fulfill the standard of proof required to warrant submission of their claim to the jury. Samuel Easton was the only witness to testify to the alleged fraud or mistake. It is undenied that he knew that the building and its contents had been rated as a high risk by the insurance companies because of lack of fire protection. The evidence- shows that the plaintiffs had argued strenuously with the insurance representatives for a lower rate without success. Under these circumstances it seems less than credible that the plaintiffs, by the addition of a wall separating the storage areas from the remainder of the building, thought that they could obtain on them the same lower fire insurance rate which applied to the materials stored in the open yards and in the open shed for which adequate fire protection was available. We hold, in conclusion, that neither the issue of a latent ambiguity nor the question of mutual mistake or fraud should have been submitted to the jury and that, therefore, the defendants are entitled to judgments n.o.v. The judgments of the Court of Common Pleas of Washington County are reversed and here entered in favor of the several defendants. Webster’s New International Dictionary (1950 ed.) ; Funk & Wagnall’s New Standard Dictionary; Tbe Century Dictionary; Webster’s Twentieth Century Dictionary. Betterman v. The American Stores Co., 367 Pa. 193, 203-204, 80 A. 2d 66 (1951) ; United States National Bank v. Campbell, 354 Pa. 483, 487-488, 47 A. 2d 697 (Í946) ; Swarthmore Boro. v. Phil adelphia Rapid Transit Co., 280 Pa. 79, 84, 124 Atl. 343 (1924) ; McMillin v. Titus, 222 Pa. 500, 503, 509, 72 Atl. 240 (1909). Atlantic Refining Co. v. Wyoming Nat’l Bank of Wilkes-Barre, 356 Pa. 226, 233, 51 A. 2d 719 (1947) ; Anstead v. Cook, 291 Pa. 335, 337, 140 Atl. 139 (1927). Cf. State Line & Sullivan R. R. Co. v. Lehigh Valley R. R. Co., 277 Pa. 227, 233, 120 Atl. 829 (1923). Electric Reduction Co. v. Colonial Steel Co., 276 Pa. 181, 187-190, 120 Atl. 116 (1923). Cf. D’Orazio v. Masciantonio, 345 Pa. 428, 432, 29 A. 2d 43 (1942) ; Lehigh & Wilkes-Barre Coal Co. v. Wright; 177 Pa. 387, 35 Atl. 919 (1896). In view of our disposition of the case it is not necessary for us to determine whether the defendants would be bound by the alleged representations of their agent. In view of our determination of the case we are not called upon to weigh the evidence presented on the issue of fraud or mistake. Were we so to do, however, we should find the following Jet ter (which needs no comment) most persuasive in negating plaintiffs’ contentions: “November 5, 1951 Easton Lumber & Builders Supply Co. R. D. #2 Canonsburg, Pa. Attention: Mrs. Samuel Easton Dear Mrs. Easton: Confirming our phone conversation regarding your account we will try to explain it as follows: On November 2, 1950 a policy was written on the new building and contents under Washington County Policy #37-654-0522. An additional $10,000.00 was added December 8, 1950 under Pennsylvania Millers Policy #396863. On February 3, 1951, $15,000.00 additional was added under Berkshire PoUcy #649973. This made a total amount of $40,000.00 and the bill was sent to you February 9 in the amount of $484.70. It was paid in full by your office March 1, 1951. The policy written in the Washington County effective November 2 was reduced from $15,000.00 to $10,000.00 on March 2, 1951. This was because the company did not want to carry more than $10,000.00 after they made an inspection. This policy was then reduced to $10,000.00 and a policy was written in the Millers Mutual #B 46745 and was billed to you March 5, 1951, in the amount of $30.33. This was paid in full by your office May 9, 1951. ' March 19, 1951 we were out to see Mr. Easton and he asked us to increase'the insurance to $100,000.00 making $50,000.00 on the building and $50,000.00 on contents including the lumber in the open yards. We forwarded binders to your office subject to the Middle Department making rates on same. We had considerable difficulty with the Middle Department in getting them to rate your new building. When they finally did rate it, it was very high. We then fought with them for a long time in attempts to get the rates reduced, but were unsuccessful. We then discussed the matter uñth Mr. Bastón on October 1 and he requested us to eliminate the' coverage entirely oh the hew building and cover $60,000.00 On all stock outside of the building. This bill was sent to you October 12, 1951, premium being $319.60. At the same time we sent you a credit for $175.67 which was the total return premium on the original bill of $484.70, paid by your office March 1, 1951. The binder charges from March 19 to, October 1 for the $60,-000.00 netted $322.01. There was never a bill sent to you on the binders until Oct. 15, 1951. We. hope we have made, ourselvés clear on. the matter of these bills ánd if there is any further question, do not hesitate to call us. Yours very truly, - • Mutual Insurance Agency KMY, Jr. :dg” (Emphasis supplied) A court may not, on motion for judgment n.o.v., eliminate evidence improperly received at trial and then dispose of the case on the basis of the diminished record when there is an issue of fact to be determined. Cherry v. Mitosky, Admr., 353 Pa. 401, 404, 45 A. 2d 23 (1946). But when the issue has itself been withdrawn from the, consideration of the fact, finder, the rule does not obtain.

Mr. Justice Green delivered the opinion of the court, November 20th 1883. At the time the plaintiff received his injury he was standing on the platform of the defendant, so close to its edge that, according to the theory upon which the case was tried for the plaintiff, he was struck by a slight projection from the side of a passing freight car. He was not a passenger, he had no business of any kind with the defendant or any of its agents or employees, in fact he was a boy about five or six years of age amusing himself, looking at the moving train. He was not invited upon the platform by any agent of the defendant, and he was not engaged in the act of crossing either the track or the platform, at the time of the accident. He was simply loitering upon the edge of the platform with no other purpose or motive than his own personal enjoyment. His elder brother, his principal witness, testified that he told him to come back from where he was standing but he refused to do so. A passing car moving at a very slow rate of speed, not exceeding three or four miles an hour, with an iron step projecting a few inches from the side of the car, (as alleged by the plaintiff, though denied by the defendant) struck him and pulled him from the platform under the wheels of the car so that he was run over and injured. In these circumstances was there any right of recovery ? We think clearly not. We held in the case of Gillis v. Pennsylvania R. R. Co., 9 P. F. S. on p. 141, that, “ The platform of a railroad company at its station or stopping-place is in no sense a public highway. There is no dedication to public use as such. It is a structure erected expressly for the accommodation of passengers arriving and departing in the train. Being unenclosed, persons are al lowed the privilege of walking over it for other purposes but they have no legal right to do so.” . . . . “ Still even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner.” Again, on p. 143. “ The plaintiff may not have been technically a trespasser. The platform was open ; there was a general license to pass over it. But he was where he had no legal right to be. His presence there was in no way connected with the purposes for which the platform was constructed.” . . . “As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it. As to all others they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity or to give vent to his patriotic feelings. The defendant had nothing to do with that.” Upon the foregoing principles, and upon the authority of many adjudicated cases cited in the opinion, and which it is therefore not necessary to review here, it was held there could be no recovery although the platform was insufficient to bear the weight of the persons who were upon it. It was conceded that there would have been a right to recover if the persons on the platform had been there as passengers or upon business connected with the defendant. In the latter case there would have been a violation of a duty owing by the defendant to the plaintiff. But there was no such duty because of the absence of the relation and hence there was no right of action. The controlling feature of the inquiry in all such cases is, was there a duty to the plaintiff which was violated by the defendant. If there was not there is no legal liability. This was essentially the distinction on which Railroad v. Hummel, 8 Wr. 375, was decided. On p. 379, Strong, J., said: “ Yet a jury cannot hold parties to a higher standard of care than the law requires, and they can not find anything negligence which is less than a failure to discharge a legal duty. If the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts, then the jury cannot say that a failure to take such precautions, is a failure in duty and negligence.” . . . . “Blowing the whistle of the locomotive, or making any other signal, was not a duty owed to the persons in the neighborhood, and consequently the fact that the whistle was not blown, nor a signal made, was no evidence of negligence.” It will be perceived that it is entirely immaterial, in solving this question, whether the person injured is an adult or a child. There is no question of contributory negligence involved in the inquiry, or essential to its consideration. If the defendant did not owe the duty of protection against the injury suffered in the particular case, the omission to furnish such protection is not negligence, and there is no liability on that ground. Take the present case as an illustration. The only duty which is, or can be, claimed as having been violated, was a duty to protect the plaintiff, when standing upon the edge of the defendant’s platform, from injury from a car sfep projecting a few inches beyond the side of a slowly passing car. But how can any such duty arise out of such circumstances ? The plaintiff had no right to place himself in the position in which it was possible for him to be injured in such a manner, and the defendant was not bound to take precaution against such injury. It is not denied that this would be true if the plaintiff were an adult, how then can it be otherwise than true as to a child. The absence of duty is precisely the same in either case, and the consequent absence of liability must be the same in both. It is quite true that young children can recover for injuries in circumstances in which adults cannot. But even children can not recover unless there is negligence, and there can be no negligence without a breach of duty. In Kay v. Pennsylvania R. R. Co., 15 P. F. S. on p. 276 we taid: “If there be no negligence on the part of the company then the incapacity of the child creates no liability, and its injury is its own misfortune which it must bear.” In Phila. & Read. R. R. Co. v. Spearin, 11 Wr. 300, when a child five years old suddenly ran across the track in front of an approaching engine and was struck and injured we said on p. 303: “ The engine in this case having safely passed the crossing appropriated to travelers, the engineer was under no duty to suppose any one would attempt to cross the track suddenly right in front of the engine, lie had a right to suppose a clear track, and was not guilty in failing to use precaution where he had no reason to expect interruption.” In Hargreaves v. Deacon, 25 Mich. 1, the court said, the plaintiff being a child of tender years, “We have found no support for any rule which would protect those (child or adult) who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant.” In Morrisey v. Eastern Railroad Co., 126 Mass. 377, the action was brought by a child four years of age who was injured while playing upon the track of the defendant. The court said, “ the plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger, nor on his way to become one, but was there merely-for his own amusement, and was using the track for a playground. The defendant corporation owed him no duty, except the negative one not maliciously or with gross and reckless carelessness to run over him.” In Gillespie v. McGowan, 4 Out. 144, we held that the owners of unenclosed lots in Philadelphia owed no duty of protection even to children against the danger of falling into an open well on the premises, although the field in question was crossed by frequented paths and used as a place of resort by children and adults. In Moore v. Phila. & Read. R. R. Co., 11 W. N. C. 310, we held there could be no recovery for the death of a boy ten years of age who was struck by an engine while walking on and along the track, on the ends of the cross-ties. We said, “ The circumstance that the trespasser in this instance was a boy ten years of age can not affect the application of the rule. The defendant owed him no greater duty than if he had been anadiilt.” In the case of Phila. & Read. R. R. Co. v. Heil, 5 W. N. C. 91, a child four years of age was struck, as it was claimed, by the projecting axle-box of a car, which extended one foot six inches beyond the outside of the rail, and three inches over the line of the street curb. He was on the public street-walk, where he had a right to be, but he was so close to the car that he was struck, as was supposed, by the projecting axle. We held that there was no sufficient evidence of negligence in these circumstances to submit the case to the jury. The cases of injuries to persons while crossing the track at permissive crossings are not analogous, and have no application. When the right to cross at a particular place is established, by permission or otherwise, the duty of ordinary care is incumbent upon the company. But in the present case the plaintiff was not engaged in the act of crossing the track or even the platform when he was injured, and therefore the cases on this subject are not in point. Upon the whole case we discover no evidence of any breach of duty owing by the defendant to the plaintiff, there was no pretence of wanton injury, and therefore the first and second points of the defendant should have been affirmed. Judgment reversed.

OPINION OF THE COURT LARSEN, Justice. Appellant Tyrone Jones appeals from the judgment of the Superior Court en banc, which quashed the appeal of his conviction for robbery and criminal conspiracy. 388 Pa.Super. 22, 564 A.2d 983 (1989). The court concluded that appellant forfeited his right to appellate review because he was a fugitive during the appellate process. We affirm. The relevant facts are as follows. On January 27, 1984, appellant was arrested in Philadelphia on charges stemming from the mugging of James Watson. Jury selection began on Friday, February 1, 1985. Appellant, who was free on bail, failed to appear in court on Monday, February 4, 1985, after the weekend recess. The trial court issued a bench warrant for appellant’s arrest and continued with jury selection and the ensuing trial in his absence, pursuant to Pa.R.Crim.P. 1117(a). On February 6, 1985, the jury found appellant guilty of robbery and criminal conspiracy. In appellant’s absence, defense counsel timely filed post-verdict motions, which the trial court denied on the merits. On June 10, 1985, the trial court sentenced appellant in absentia to a prison term of three to eight years on the robbery conviction and a consecutive sentence of one to two years on the conspiracy conviction. The trial court denied the subsequent petition for reconsideration of sentence filed on appellant’s behalf, and defense counsel timely filed a notice of appeal to the Superi- or Court on June 20, 1985. While his appeal was pending, appellant was arrested as a fugitive in Maryland on February 2, 1987 — two years after his escape. On appeal, a panel of the Superior Court granted appellant, who had by this time been in custody for over a yeár and a half, a new trial. The Commonwealth timely filed a petition for reargument, which was granted. The en banc panel of the Superior Court sua sponte quashed appellant’s appeal because of his flight from justice during jury selection in February of 1985. The sole issue presented for our review is whether appellant forfeited his right to appellate review by having been a fugitive from justice. The right to appeal is guaranteed by our state constitution. However, “the right to appeal is conditioned upon compliance with the procedures established by this Court, and a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision.” Commonwealth v. Passaro, 504 Pa. 611, 614, 476 A.2d 346, 348 (1984); Commonwealth v. Coleman, 458 Pa. 324, 327 A.2d 77 (1974); Commonwealth v. Wallace, 427 Pa. 110, 233 A.2d 218 (1967). The dismissal of an appeal, where a defendant deliberately bypasses the judicial process by means of escape, is one such consequence. “Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law.” Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377, 380 (1975). The United States Supreme Court has held that escape “disentitles the defendant to call upon the resources of the Court for determination of his claims.” Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). Likewise, this Court has held that a defendant who escapes from custody forfeits his right to appellate review. E.g., Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984); Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988) (per curiam); Commonwealth v. Craddock, 522 Pa. 491, 564 A.2d 151 (1989) (per curiam). A court may dispose of such an appeal by dismissal upon motion of any party, or it may act sua sponte. In Passaro, the defendant escaped while his appeal was pending. Consequently, the Commonwealth filed a motion to quash the appeal, which the Superior Court granted. The defendant was subsequently returned to custody. He filed a petition to reinstate his appeal, which the Superior Court denied, and then filed a similar petition in this Court. We denied the defendant’s petition to reinstate his appeal, stating: ... a defendant’s resort to escape constitutes a flagrant and deliberate bypass of the entire judicial process. The escape of a convicted defendant from confinement may properly be considered a rejection of the legitimate means afforded the defendant for challenging his conviction and imprisonment. Thus, by choosing to flee and live as a fugitive, a defendant forfeits the right to have his claims considered. Id. 520 Pa. at 615, 476 A.2d at 349. In subsequent cases, we have repeatedly held that a defendant who chooses to bypass proper judicial procedures by fleeing from justice forfeits his appellate rights. In Luckenbaugh, the defendant escaped while his petition for reconsideration of sentence was pending. The trial court sua sponte dismissed his petition for reconsideration because of his fugitive status, and defense counsel filed a notice of appeal on behalf of the defendant. The Superior Court held that the defendant had not forfeited his appellate rights and addressed the merits of his appeal. On appeal, this Court reversed on the basis of Passaro. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (per curiam). Similarly, in Craddock, we upheld the Superior Court’s application of Passaro where the defendant escaped during jury deliberations and was sentenced in absentia. A defendant’s voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant’s capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant forever forfeited his right to appeal. Accordingly, we affirm the judgment of the Superior Court en banc quashing appellant’s appeal. McDERMOTT, Justice, joins this opinion and files a concurring opinion. NIX, C.J., concurs in the result. CAPPY, J., files a dissenting opinion joined by ZAPPALA, J. . Rule 1117(a) provides, in pertinent part, that "[t]he defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.” . Although appellant also challenges his sentencing in absentia, we do not have jurisdiction to review that issue because allocatur was limited solely to the issue of whether the en banc Superior Court properly quashed appellant’s appeal per Commonwealth v. Passaro, infra, based on appellant having been a fugitive. . Pa.Const.Art. 5, § 9 provides: 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 court to be as provided by law; and there shall be such other rights of appeal as may be provided by law. . Pa.R.A.P. 1972(6). . Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976).

OPINION OF THE COURT PAPADAKOS, Justice. This is the appeal of Upper Chichester Township and Officer Thomas Bush (Appellants) from the Opinion and Order of the Commonwealth Court affirming the order of the Court of Common Pleas of Delaware County which denied the Preliminary Objections of Appellants to a complaint brought against them by Denise Marie Dickens (Appellee). The complaint alleges that Appellee was seriously injured on April 9, 1986, at 1:24 a.m., when an automobile driven by John Scott Horner (Horner) struck her. Horner was, at the time, fleeing at a high rate of speed from Officer Bush who had initiated a chase to stop Horner who was believed to be driving without a valid driver’s license and under the influence of drugs. There is no dispute that once Officer Bush identified Horner and decided to stop him, Horner sped away from the officer at a high rate of speed, ran a clearly marked stop sign, and collided with Appellee. Appellee brought this action against Horner and Officer Bush and the Township and alleges that while Horner was directly responsible for the accident, nevertheless, the decision of the officer to pursue Horner was a proximate cause of the accident. Officer Bush and the Township filed preliminary objections to the complaint asserting immunity from suit under the provisions of the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541 et seq. (Tort Claims Act). The preliminary objections weré denied by the Honorable Anthony R. Semararo of the Court of Common Pleas of Delaware County who then certified this interlocutory order for appeal, under our rules of Appellate Procedure Rules 1311 and 1312, as one involving a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal would materially advance the termination of the matter. The Commonwealth Court granted the appeal and the proceedings in the Delaware County Court of Common Pleas were stayed pending the appeal. y The Commonwealth Court, sitting en banc, affirmed the order of the trial court ruling that the allegations of a decision to initiate a pursuit and in failing to exercise due care in a chase could form the basis for a negligence action against a police officer and his employer Township, and that these acts do not fall within the vehicle liability exception to governmental immunity at § 8542(b)(1) of the Tort Claims Act. Dickens v. Upper Chichester Township et al, 123 Pa. Commonwealth Ct. 226, 553 A.2d 510 (1989). We granted Appellants’ petition for allowance of appeal to review this conclusion in light of our case law concerning claims brought under the provisions of the Tort Claims Act. That act provides that liability for negligent acts may be imposed if two conditions are satisfied, and if the injury occurs as a result of one of eight acts described at 42 Pa.C.S. § 8542(b). The two threshold conditions required are that: 1) damages would be recoverable under common la\y or a statute creating a cause of action against one not having an immunity defense, and 2) the injury must be caused by the negligent acts of the local agency or its employees acting within the scope of its office or duties, excepting therefrom acts of crime, fraud, malice or willful misconduct. When considering whether an injury occurs as a result of one of the eight exceptions to the rule of absolute governmental immunity, we have indicated that all the exceptions must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability. Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991); Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988); Mascara v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). The acts of others are specifically excluded in the general immunity section and may not be imputed to the local agency or its employees and, in Mascaro, we held that the Legislature has clearly precluded the imposition of liability on itself or its local agencies for acts of third parties and that it has not seen fit to waive immunity for these actors or their acts in any of the eight exceptions. We viewed this conclusion as being consistent with the general rule that the criminal and negligent acts of third parties are superseding causes which absolve the original actor from liability for the harm caused by such third parties. This is also consistent with the Legislative determination that the criminal acts, actual fraud, actual malice or willful misconduct of its own agency or employees acting within the scope of their duties are not the subject of suit or liability and that it would be incongruous to interpret the Act in such a way that the municipality would be shielded from liability for the crimes of its agents and employees, yet responsible for the crimes of others. Mascaro, 514 Pa. at 363-364, 523 A.2d at 1124. These are the general principles of law which are applicable to this case, and which require us to reverse the opinion and order of the Commonwealth Court. In essence, Appellee seeks to impose liability on Officer Bush and the Township for an accident which was caused by the criminal acts of Horner. It is alleged that Horner was driving without a valid license, under the influence of drugs, and that Horner created the chase by not stopping when he was being pursued by a police officer. Instead, Horner sped through residential streets in the early hours of the morning at 60 miles per hour, ignored a clearly marked stop sign, and rammed into Appellee. We can not impose liability for the crimes of Horner on the Township or Officer Bush any more than we could the City or the Youth Study Center in Mascaro because the legislative scheme of immunity consistently excludes all criminal acts from liability, including the acts of one of such as Horner, who choses to defy a lawful order to stop his car and commits a series of crimes which terminate in inflicting serious injuries to an innocent bystander like Appellee. Also see, Chevalier v. City of Philadelphia, 516 Pa. 316, 532 A.2d 411 (1987). Nor should we overlook the fact that the control of preventing the accident was solely within the hands of Horner who only had to obey the law and stop when requested by the police. Accordingly, the Order of the Commonwealth Court is reversed, the Preliminary Objections of Appellants are granted, and the matter is remanded to the Court of Common Pleas of Delaware County so that Appellee may continue her case against Horner. ZAPPALA, J., concurs in the result. CAPPY, J., joins the majority opinion and also files a concurring opinion. . The vehicle liability exception provides: (b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: (1) Vehicle liability. — The operation of any motor vehicle in the possession or control of the local agency. As used in this paragraph, “motor vehicle" means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air. . 42 Pa.C.S. § 8542(a) provides: § 8542. Exceptions to governmental immunity (a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b) ; (1) The damages would be recoverable under common law or statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541. (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and (2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct. . In Mascaro, an action was brought against the City of Philadelphia and its youth detention center for injuries inflicted on a family by one of the detainees of the center who escaped, premised on the alleged negligent maintenance of the center. . Because of our conclusion, it is unnecessary to analyze whether Appellee stated a cause of action which could be maintained at common law against one having an immunity defense, or whether the injury was caused by the negligent acts of an agency or its employee acting within the scope of his office or duties, a requirement imposed by the statute at 42 Pa.C.S. § 8542(a)(1) and (2), supra.

The opinion of the Court was delivered by Gibson, C. J. The practice of opening a judgment entered on warrant of attorney to let in a defence specially sworn to, is peculiar to our jurisprudence; and it would seem, from the looseness with which it has prevailed, that its nature is not very distinctly perceived by ourselves. We have no traces; of it in the English books; for where the warrant has been procured from an infant or a feme covert; or for a usurious consideration; or as an inducement to live in a state of prostitution; or to secure a void- annuity, or the like; their practice has been to order it to be delivered up, and the judgment, if one has been entered on it, to be set aside. Perhaps it may be thought that this is done upon a supposition of irregularity, but their practice is the same in the analogous case of a regular judgment by default on an affidavit of merits. No instance can be fouud of a judgment opened, by an English court, in our sense of the term; on the contrary, their practice is to award a collateral issue, and only when facts are alleged to be in contest, instead of an issue in the cause. Our practice, however, seems to be the better one, as it gives the defendant all proper advantage of matter of original defence, without loosening the plaintiff’s hold on the security gained by the judgment. Our remedy also, for irregularity or collusion in the rendition of a judgment, is to overturn it; but for pretermitted matter of defence, it necessarily is to open it, for it is impossible to say what may be found due. Our practice, therefore, is to try collusion by a collateral issue, but matter of defence by an issue in the cause. Were this distinction kept in view, it would prevent much misconception and confusion. In Kellog v. Krauser, it certainly was in the view of Chief Justice Tilghtnan, when he said: “I hope it is not now a matter of doubt whether a court of common pleas can entertain a motion to strike out or open a judgment entered on warrant of attorney, or to order a feigned issue to ascertain necessary facts.” Yet it has not always been attended to; for, though the bond and warrant in Whiting v. Johnson, 11 Serg. & Rawle 438, were given to defraud creditors, and consequently presented a case for a feigned issue and striking out, as the matter was held in Gurney v. Langlands, 5 B. & Ald. 330, the judgment was opened in the first instance to try, in the action, what could not be tried betwixt the parties. To open a judgment, however, is not to set it aside; for when it is closed again by the finding of a sum due, an execution issues on it as if it had not been disturbed. It may have been opened on terms; and it is usual to add a direction that it stand as a security, which, however, seems to be unnecessary, as the opening of it deprives it of no quality but its maturity for execution. Now, the substance of the agreement here was, that the judgment should be opened without waiting for the decision of the court on the rule to show cause; and that the sum due should be ascertained by the arbitrament of particular men instead of the verdict of a jury. Was there, then, an action pending within the purview of the act of 170.5? There was, strictly speaking, no action pending then; nor has there been since. The pendency of the action, if it ever had a beginning, was terminated by the judgment into which it instantly passed; and nothing was pending by the agreement but a subordinate proceeding to ascertain the sum for which execution might issue. Nor would the pendency of the action have been restored, had the judgment been opened by order of the court; for it would have remained á judgment still, and the inquiry would still have been a subordinate one to ascertain the amount due by the verdict of a jury—a matter which might have been referred, but not as an action pending within the act of 1705. It is asked, then, to what statute is this species of arbitrament referable? To no statute. It is referable to the agreement of the parties who were a law to themselves. It was doubtless convenient and useful to class these forms of arbitration which were most commonly in use and regulated by the statute or the common law; but it follows not, where there is no positive prohibition in the way, as there is in the case of land title, that there can be no other occasion or form of it by the agreement of parties competent to settle their differences in their own way. In this instance they might have fixed the sum by their own act; and what else did they, when, on the foot of the maxim that things are certain which can be made so, they agreed to let it be whatever should be named by the men designated? If then, they had power to bind themselves, the terms of agreement dispose of the exceptions at a breath. Execution was to issue immediately, and consequently without,waiting for the reading of the award required by the rule of court, the approval required by the act of 1705, or the second judgment required by no authority at all. The execution and subsequent proceedings were consequently regular. Judgment affirmed.

Opinion by Mr. Justice Eagen, The single question presented for determination by this appeal is the constitutionality of the Pennsylvania Fair Trade Act of June 5, 1935, P. L. 266, as amended, 73 P.S. §7 et seq., as applied to the nonsigners of “Fair Trade” price maintenance contracts. The corporate-plaintiff is the manufacturer of drugs, pharmaceuticals and other allied products, distributed under the trade-mark “Squibb.” In this action, the court below enjoined the appellants-defendant from retailing these products at prices less than the. stipulated minimum prices contained in fair trade contracts in existence throughout the State of Pennsylvania. The appellants were not parties to, nor did they sign, these agreements. However, it is undisputed that they knew plaintiff’s products were “fair traded” and, with this knowledge, advertised and sold such commodities below the stipulated minimum prices. Section 2 of the statute provides: “Wilfully and knowingly advertising, offering for sale, or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of section one of this act, whether the person so advertising, offering for sale, or selling is, or is not, a party to such contract, is unfair competition and is actionable at the suit of such vendor, buyer or purchaser of such commodity.” Fair trade legislation precludes the cutting of the established price of any commodity identified by the trade-mark or brand of the producer: Bristol-Myers Co. v. Lit Bros., Inc., 336 Pa. 81, 6 A. 2d 843 (1939). Those who support such legislation strenuously urge that it protects the manufacturer, retailer and consumer from varied harmful consequences which allegedly would result from cutthroat competition. They submit that it is, therefore, a reasonable exercise of the police power and is designed to protect the convenience, prosperity, health, morals, safety and welfare of the public generally. Whether or not such legislation does in fact protect the best interests of the buying public has long been the subject of serious dispute. Many recent statistical studies by competent authority have concluded that, rather than being benefited by such laws, the consumer has actually been harmed, and that the whole scheme of fair trade acts is one for private, rather than public gain. See, 49 Tale L.J. 607, and 21 U. Chi. L. Rev. 175. Our inquiry is necessarily restricted to the legal aspects involved. It is not for us to enunciate public policy. That responsibility rests with the legislature and is for that body alone to resolve. This Court previously sustained the constitutionality of the Pennsylvania Fair Trade Act as applied to nonsigners of retail price maintenance agreements in Burche Co. v. General Elec. Co., 382 Pa. 370, 115 A. 2d 361 (1955). Our careful review of that decision now leads to the conviction that it was in error. Burche relying largely on Old Dearborn D. Co. v. Seagram-Distillers Corp., 299 U.S. 183, 57 S. Ct. 139 (1936), ruled, inter alia, that the Pennsylvania statute was not an unlawful delegation of legislative power. With this, we do not agree. Old Dearborn, as a careful study will bear out, is not precedent for the proposition that the nonsigner clause in a state price fixing statute, delegating legislative power to private individuals, does not violate the state constitution. See, 1 Davis, Administrative Law Treatise, Section 2.14 (1958); Notes, Fair Trade and the State Constitution- — -A New Trend, 10 Vand. L. Rev. 415 (1957), and Conant, Resale Price Maintenance: Constitutionality of Nonsigner Clauses, 109 U. of Pa. L. Rev. 539 (1961). Further, it is our considered conclusion that the nonsigner clause in the Pennsylvania Fair Trade Act is clearly violative of Art. II, §1, of the Pennsylvania Constitution. Price regulatory power vests only in the elected legislative body. It may in limited ways be delegated to other responsible governmental agencies, such as public service or utility commissions: Pennsylvania R. R. Co. v. Towers, 245 U.S. 6 (1917). However, it may not be delegated to private persons. The vesting of a discretionary regulatory power over prices, rates or wages, in private persons violates the essential concept of a democratic society and is constitutionality invalid. See, A. L. A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S. Ct. 837 (1935); Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct. 855 (1936); Bissell Carpet Sweeper Company v. Shane Co., 237 Ind. 188, 143 N.E. 2d 415 (1957); Quality Oil Company v. E. I. DuPont DeNemours & Co., 182 Kan. 488, 322 P. 2d 731 (1958); Remington Arms Company v. G. E. M. of St. Louis, Inc., 257 Minn. 562, 102 N.W. 2d 528 (1960); Union Carbide & Carbon Corp. v. Bargain Fair, 167 Ohio St. 182, 147 N.E. 2d 481 (1958). Moreover, where price regulation is delegated to a governmental agency, constitutional procedures are mandatory. The agency’s action is legislative in character and is subject to the same tests and standards as a legislative enactment: Prentis v. Atlantic Coast Line, 211 U.S. 210 (1908). Once the basic law is established by statute, the legislature may delegate the agency to make detailed rules for the statute’s operation. However, these rules must conform to statutory standards, be adopted after hearing, may not be arbitrary, and are always subject to judicial review. See, Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241 (1935); Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773 (1938), and Los Angeles Gas & Elec. Corp. v. Railroad Com’n, 289 U.S. 287, 53 S. Ct. 637 (1933). In the Pennsylvania Fair Trade Act, these protective processes are completely absent. Fair hearing and judicial review are not available, even though the fixed price is grossly unfair or completely arbitrary. The retailer and the buyer have no recourse. The producer enjoys the unbridled power to stipulate the price he pleases and at that price the retailer must sell and the buyer must buy. In this respect, tbe producer is tbe unrestrained sovereign. No intelligent standards control. It is no answer to the above to say that the retailer and the buyer, having notice of the prices fixed, are under no obligation to sell or buy the particular commodity. Under the statute, both come under the coercive price control of private persons not directly in contract with them. As noted before, compulsory price regulation is a legislative function. It belongs only to elected government. The Pennsylvania Fair Trade Act, as applied to nonsigners of price maintenance contracts, is, therefore, unconstitutional. It may be advanced that despite the above conclusion, we should permit the ruling in Burche (supra) to stand in deference to the principle of Stare Decisis. While it is true that great consideration should always be accorded precedent, especially one of long standing and general acceptance, it doesn’t necessarily follow that a rule merely established by precedent is ihfallible. Moreover, the courts should not perpetrate error solely for the reason that a previous decision, although erroneous, has been rendered on a given question. This is particularly true where no fixed rights of property are involved or where great injustice or injury will result by following the previous erroneous decision. If it is wrong it should not be continued. Judicial honesty dictates corrective action. As stated by this court in Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 193 A. 46 (1937), at 530 and 531, quoting Cooley, Constitutional Limitations (8th Ed. 1927), Vol. 1, page 121, "'. . . when a question in volving important public or private rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acquiesced in, it is not only the right, but the duty, of the court, when properly called upon, to re-examine the questions involved, and again subject them to judicial scrutiny. We are by no means unmindful of the salutary tendency of. the rule stare decisis, but at the same time we cannot be unmindful of the lessons furnished by our own consciousness, as well as by judicial history, of the liability to error and the advantages of review.’ ” See, also, Kelley v. Earle, 325 Pa. 337, 190 A. 140 (1937); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578 (1937) and the opinion of Mr. Justice Bkandeis in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932). Decree reversed. Each party to pay own costs. Burche is the only instance wherein the constitutionality of the Pennsylvania Pair Trade Act was heretofore considered by this court.

Opinion by Mr. Justice Thompson, Appellants rest their defence to this action, which was brought to recover damages for nonperformance of a contract and for the price of coal delivered, upon the grounds that the contract was not executed by appellants’ firm, that under it they were not bound to furnish cars to appellee, for shipment of coal, and that when suit was brought the cause of action had not accrued. Appellants, on November 21, 1887, wrote to appellee as follows: “We are about consummating our arrangements for a supply of coal for the year 1888, and in looking over the field open to us wish to see the arrangements we can make. We have already been asked to consider a proposition from the largest West Virginia Coal Company, and there are several companies on the Creek that will be pleased to enter into arrangements with us, one to take its entire output, and the other to supply our requirements of coal. Besides, we are considering the advisability of opening up our Withers mine on Georgia Creek. Before concluding we wish to know if you are disposed to make a bona fide contract with us for 1888 for the entire output of your mine, we guaranteeing same to exceed quantity to be inquired to be taken out according to the present term of your lease and on which you have to pay royalty.” Subsequently, in pursuance of this letter, S. M. Hamilton, one of appellants’ firm, met appellee. At this meeting there were present other coal operators, with whom contracts were made to take their coal at seventy cents per ton; but appellee declined to make any contract unless the amount to be taken by appellants would be sufficient to provide for the royalty he was required to pay under his lease. Finally, after some negotiation, it was agreed substantially that appellee would sell fifty thousand tons for what would yield him sixty-eight cents per ton. A memorandum was taken to Baltimore, where the agreement was finally prepared, and signed by S. M. Hamilton and sent to appellee, who signed it. Although so signed by S. M. Hamilton it was in fact made for appellants’ firm. The referee so finds and the evidence clearly warrants his finding. The shipment of the coal to them, the manifests made in their name, the checks and their letters, demonstrate that such was the fact. S. M. Hamilton, acting for the firm, made the contract in question, and his act in so making it beyond doubt has been ratified and confirmed by the firm. The evidence justifies the master in finding that “ said firm ratified the said contract and accepted the terms and conditions thereof.” It was therefore the contract of appellants’ firm. In Swisshelm v. Swissvale Laundry Co., 95 Pa. 370, it is said: “ Schoyer was acting as agent under parol authority, and his seal is surplusage, being in excess of his authority: Schmertz v. Shreeve, 12 P. F. Smith, 457. Having but a parol authority, had he signed his principal’s name, adding a seal, assumpsit would lie against the principal: Jones v. Horner, 10 P. F. Smith, 214. Where one accepts a deed containing an agreement on his part, but without affixing his signature and seal, he may be sued in assumpsit for a breach of it: Pratt v. Harding, 6 Casey, 525. On the undisputed facts no one is liable in covenant but Schoyer, and the defendant may be properly sued in assumpsit.” In Hall v. White, 123 Pa. 105, it is said: “ The articles of agreement upon their face are between the plaintiffs as vendors and the Mercer Mining and Manufacturing Company as vendee. If this were all there would be nothing to connect the defendant below with the contract. The jury have found, however, and upon abundant evidence, that the Mercer Mining and Manufacturing Company were but the agents of the defendant; that they negotiated the transaction for him, and that in pursuance thereof he entered into the land and made certain improvements thereon. Under such circumstances it is hornbook law that the vendors had a right to sue the principal for whose benefit the contract was made.” As the present action is in assumpsit it may be said that even if this contract had been executed as contended, it has been so ratified and confirmed by appellants as to support this action. Assuredly, by reason of it, and of such ratification and confirmation, there was a mutuality as to remedies. Appellants contend that even conceding the contract binding upon them, they are not liable because they were not required. to furnish appellee the cars for the shipment of the coal. Appellee sold to them his entire output of fifty thousand tons and covenanted not to sell to any other person or corporation, ex cepting, however, farm and other trade by delivery at the mines. It is not denied that he was ready and willing to deliver the coal there. But as cars were not furnished to him he did not do so. Appellants claim, however, that he was bound to furnish cars and to deliver coal upon them, and having failed to do so he was not entitled to recover in this action. The contract provides: “ It is agreed that the price to be paid to the party of the second part by party of the first part shall be for all good, clean merchantable coal free on board railroad cars at tipple, as follows, that is to say, in hoppers and gondolas, for run of mine coal, sixty-eight cents per ton of twenty-two hundred and forty pounds.” The point of delivery to defendants was to be upon the cars at the tipple; and the fact that settlement was to be made according to the weight at Sand Patch did not change it. This is emphasized by the covenant that appellee shall place on each car “ a weight of coal not less than the capacity as marked on said car.” After the delivery at that point the distribution of the cars necessarily passed to appellants. The appellee undertook to. sell and deliver at the tipple the coal at the designated price; and the appellants covenanted to receive it there and pay for it. If so, they were bound to furnish the cars for it, and the appellee was required to be ready and willing to deliver it there. As he was so prepared, and as the latter neglected and refused to receive it, they became liable in damages for the nonperformance of their contract. In Kunkle v. Mitchell, 56 Pa. 100, it is said: “ The article of agreement between plaintiff and defendant is dated December 27, 1862, by which the defendant Mitchell agreed to deliver on the cars at Indiana 75,000 feet of lumber at eighty-five cents per 100 feet. This is the controlling clause as to the place of delivery. The cars would be either the cars of the plaintiff or those of the railroad company. In either case they were to be provided by the plaintiff and not by the defendant. The cars therefore being to be provided by the plaintiff, the duty was imposed upon him to see that he was at least ready with the cars or willing to provide them, and to have notified the defendant of such readiness and willingness.” And in Dwight v. Eckert, 117 Pa. 508, it is said: “ It is a well established principle of law that in a contract for the sale and delivery of goods ‘free on board vessel,’ the seller is under no obligation to act until the buyer names the ship to which the delivery is to be made.” If this agreement was susceptible of a doubt in its construction in regard to appellants’ duty to furnish cars, the evidence of appellants’ actions clearly resolves such doubt against them. The appellee was therefore entitled to recover if at the time of bringing suit his right of action had accrued. In appellee’s statement of his demand, after his claim for damages, he adds one for the delivery of 3,701 and a fraction tons of coal in December, 1888. It is contended that under the contract the payment for this coal was not due until after the suit was brought. The referee finds as a fact that the appellants notified appellee that in August, 1888, the contract was terminated, and this finding is sustained by the evidence. As the contract was thus terminated prior to the suit, the appellee’s right of action to recover not only damages, but the price of coal subsequently furnished, accrued. In Campbell v. Gates, 10 Pa. 483, it was held that one party having by letter refused to go on with the performance of the contract, the right of action for damages then accrued to the other party. In Lovell v. Ins. Co., 111 U. S. 264, it is said by Mr. Justice Bradley: “Where one party to an executory contract prevents the performance of it, or puts it out of his own power to perform it, the other party may regard it as terminated and demand whatever damage he has sustained thereby.” And in Am. & Eng. Encyclopedia of Law, vol. 3, page 904, it is stated: “If before the time for the performance of a contract has arrived, one party announce to the other that he does not intend to perform his promise, the latter may treat the contract as broken and bring an action immediately against the former for the breach. It is not necessary that he should postpone his suit until the time for performance has arrived.” As the contract was that of appellants, and as, by their refusal to- perform, appellee was entitled to recover, as the damages as found by the master were warranted by the evidence, and as the right of action had accrued at the time when the suit was brought, this judgment is affirmed.

The opinion of the court was delivered by Thompson, J. — The difficulty in the mind of the counsel for the plaintiff in error in this case seems to be his inability to discover a principle upon which the alleged right of way involved may exist; and in truth this is the real difficulty of the case. Can it be resolved ? The grandfather of the plaintiffs, David Phillips, was in his lifetime the owner of one hundred and fifty-three acres and twenty perches of land in one body. Many years before his death he divided it into four portions by surveys on the ground, and to each of his sons, viz., Thomas, Nelson, and Evan, he gave the possession of one of these purparts, and retained one on which was the homestead for his own residence and occupancy. Thomas, whose children are the plaintiffs, had been in possession of his portion, as proved by many witnesses, between twenty and twenty-five years before his death. His father undoubtedly designed it for him, as did he the portions in the occupancy of his brothers; for by a will dated in 1853, and proved in 1856, he devised the same to him in fee as he did the other portions to his brothers. It is not clear when the way in question was laid out or by whom; but it seems to have been always used by Thomas, as the most, if not the only convenient road to church, to mill, to the coal-bank, and to the neighbouring village. After leaving the boundary of Thomas’s forty acres, it passes some twenty rods through the division or portion of the land remaining in the possession and occupancy of his father. It lay near his house, and was used by him as he might desire, either for hauling fuel or going to his son’s residence. The whole land was his, during all the time of the user; and the user was by his assent and knowledge, as the jury have found. The proposition is undoubtedly true, that if the road was not actually laid out on the ground by David, the father of Thomas, he had full knowledge of its location and used it, and consented to its use by his son, his tenant, for many years. It was a continuous and notorious way all the time, at the date of his will and at the day of his death, never altered, changed, or objected to in any way by him. Hay, more, the testimony is that it was fenced out into a lane for most if not all the time on the land retained by him, which we must presume was, if not done by himself, done by his authority, and was most pregnant evidence of his assent to its location and use. We cannot but regard those undisputed facts, if failing to establish a precedent authority or command to lay out the road as equivalent to it, in clearly showing a subsequent assent to the serviency imposed on the portion occupied by him. The facts can be regarded in no other light. The road, therefore, was his road for the convenience of his own property, the same in effect as if laid out by himself. It is quite true, as contended for by the learned counsel of the plaintiff in error, that the user by Thomas of the way, even if equal in time to the period within which a grant of the right of way may be presumed, in case of an independent owner and adverse occupancy, establishes no right upon that principle under the circumstances here. A tenant cannot acquire any kind of easement by prescription as against his landlord. As such a right rests upon the presumption of a grant, it would lead to the absurdity of presuming a grant of a man to himself; for the tenant’s possession is his possession, and whatever is lawfully done on the premises is presumed to be done with the sanction of the landlord. But there is a principle discussed in Kieffer v. Imhoff, 2 Casey 438, in a learned opinion by Lewis, C. J., which I think justifies the charge of the learned judge in this case, although not referred to by him nor the counsel on argument. In that case the easement was an alley, and both the dominant and servient proper ties fell into one ownership ; the consequence of which, according to the common law, would, he an extinction of the easement in the higher right of property: 2 Bing. 83, 9 Moore 166, and 3 Bulst. 340. The alley was kept open after the unity of the title and possession as before, but while the property thus belonged to one owner, it was seized in execution and sold to several purchasers, and the question afterwards arose whether tho easement was extinguished by the unity, or remained, and it was held that it did remain upon the principle of a servitude imposed by the sole owner, and existing at the time of the seizure and sale. “ Servitudes,” says the opinion, “ which are extinguished by unity of title, do not in general revive upon severance ; but where they are apparent and obviously continuous, they do. The disposition made by the owner of both estates is held to be equivalent to a title. ‘La destination du pere de famille vout titre,’ Civil Code Lous. Art. 808; Code Civile, ‘Servitudes,’ § 288; Gale & Whatly on Easements 40 (t. p. 82-3.) Although the service which one estate derived from the other was nothing more than ‘ destination du pere de famille,’ or the disposition of the owner, so long as the heritage belonged to the same person, it becomes a servitude as soon as they pass into the hands of different proprietors : Pardessus Traite du Serv., § 288; Gale & What. 39 (t. p. 82).” This is the rule of the civil law on this subject, which by Chancellor Kent is said to be of “permanent and universal application,” 3 Kent 436; and in the case just cited it is said “ these doctrines of the civil law have been fully recognised by the highest authorities in our own jurisprudence;” and Gale & Whatly 82, says, “the English law upon this subject appears to agree” with the civil law also. It is not to be understood by this doctrine that any temporary convenience adopted by the owner of property is within it. By all the authorities it is confined to cases of servitudes of a permanent nature, notorious or plainly visible, and from the character of which it may be presumed that the owner was desirous of their preservation as servitudes, evidently necessary to the convenient enjoyment of the property to which they belong, and not for the purposes of mere pleasure: Gale & Whatly 88, t. p. A way to a church, mill, or market, greatly more convenient than any other, has sometimes been held in England to stand on the footing of a way of necessity. But, not to insist on that principle, the fact exists here that this way is, although not the only one to the mill, the church, and the village, yet for the portion of the estate belonging to the plaintiffs it is the only convenient way to these points. In this, although we do not recognise a way of necessity, we see the reason for the creation of this private way, why it was opened, kept open, and used by the owner and his family until his death, and the same condition of things as regards the surroundings continuing, we may presume that it must have been the intention of the owner that it should remain permanent, inasmuch as he made a final disposition by will of both the dominant and servient portions, without the slightest hint of a wish that their relations to each other should in this particular be changed. I am aware that the most common cases of servitudes in this country arise out of the passage of the element of water, from one portion of property to another, by drains, water-pipes, millraces, and the like. Of the latter kind was Seibert v. Levan, 8 Barr 383, and the servitude there, as in most cases, was created simply by the act of the owner in constructing the race. The nature of the servitude, however, ought not to be held to control the principle, and does not, as the case of Kieffer v. Imhoff sufficiently proves. It may be granted that the continuance of drains, water-pipes, and mill-races may more distinctly indicate their permanent and essential nature.than a mere private way; but when the permanency of the way is proved, confessed, or not disputed, this difference vanishes; they stand on the same footing. There are many cases which show this, in addition to Kieffer v. Irnhoff. In 3 Cruise 115, there is a case from Jenkins’s Cases (Case 37) which at the same time illustrates- not only the antiquity of this doctrine, as adopted in the common law courts, but also its application to a right of private way, not very dissimilar in circumstances to the one in hand. It is there stated by that learned barrister, “ that where upon a descent to two daughters, land over which there had been a right of way was allotted to one of them, and the land to which the right of way belonged was allotted to the other, it was held that this allotment, without speciality to have the way anciently used, was sufficient to revive it.” But I need not follow the investigation further, as the cases already cited show the recognition of the doctrine in this Commonwealth, and rule the principle which governs this case. There was but little conflict or dispute about the main facts of the case. They were all submitted to the jury with the instruction that if they believed them, the plaintiff would be entitled to recover. This was in fact air instruction that if the way was laid out, fenced, and used by the plaintiff’s intestate, with the knowledge, assent, and acquiescence of his father, for the period testified to, it was to be regarded as a regulation or disposition by him. No other rational view could be taken of it. The road lay over his property, within a few rods of his own door, and he had used it and acquiesced in its use for a quarter of a century. It was a distinct and notorious way, fenced out on the portion occupied by himself, as well as on the portion occupied by his son, his tenant, for most of the time. It was constructed on and over his own property, by his own agent, and if we were to assume that he did not actively engage in its construction, his subsequent assent, as already said, was equal to a previous authority. As a permanent disposition, it passed by his will as appurtenant, or perhaps rather as parcel of the property devised to the plaintiffs, and the defendants had no right to interfere, and do what their testator never did — attempt to close it up. We need not discuss the question proposed as to which is the better title in the plaintiffs, the articles of agreement between their grandfather and Larimer or the devise contained in his will. This is out of the case under the views we entertain. But on this point we do not hesitate to say that the devise is the true title. The agreement was to subserve a temporary purpose which it discloses, and was no revocation of the will. Nor do we think there was error in admitting the testimony of Boyer, limited in its operation, as it was, to McCabe alone. It brought home to him at least knowledge that the way he assisted to obstruct was a way granted by the grandfather of the plaintiffs. It could not have been excluded, because it did not directly apply to the other defendants if it applied to him, and we do not know that they were injured by it. Judgment affirmed.

The opinion of the court was delivered, January 3d 1871, by Agnew, J. — These two cases can be considered together, the parties and the land in controversy being the same. In the ejectment the plaintiff sues for the possession of the road-bed used by the defendants running through his land ; and in the petition for damages, he asks compensation for the right of roadway. The court below decided against the plaintiff in each case, on the ground that his claim was barred by the Statute of Limitations of six years. It is a conceded fact that 15 perches of this land covered by the railroad are not on the bed of the old Beaver road, and are not included in the appropriation proceeding of the Ohio and Pennsylvania Railroad Company, the predecessor of the present railway company. This, therefore, raises a question clearly upon the title of the defendants to so much of the land as was not embraced in the former highway, and not taken by the Ohio and Pennsylvania Railroad Company in due course of law; and how far the title of the plaintiff can be affected by the General Limitation Act of 1718. Both the ejectment and petition were commenced within the two years, contained in the proviso to the Act of 17th April 1860, Pamph. L. 106, and, therefore, that act may be laid out of the case. It is very clear that the title to the possession of land is not barred by the limitation of six years’ adverse possession, but only by twenty-one years under the Act of 1785, and, consequently, the action of ejectment to recover a possession unlawfully taken is not barred by the Act of 1713. How far an ejectment when used as a remedy to enforce a charge on land which is barred by limitation may be defeated thereby, is not the question here. If the company entered unlawfully without a legal appropriation and assessment of damages, the only question which can arise in the ejectment is that of title, not charge or incumbrance. Can a railroad company without a grant, release or legal appropriation, enter on any man’s land nolens volens, and then bar his re-entry by an adverse possession of six years ? The statement of the question refutes the proposition. But the right of the plaintiff stands on higher ground than a mere act of the legislature. The 4th section of the 7th article of the amendments to the Constitution addpted in 1838 provides that “ the legislature shall not invest any corporate body or individual with the privilege of taking private property for public use without requiring such corporation or individual to make compensation to the owners of said property, or give adequate security therefor, before such property shall be taken.” This is a great right of protection not to be frittered away by construction, especially in times like these, when the power of vast railroad corporations has grown so formidable. The 10th section of the 9th article of the Constitution of 1790 provides that no man’s property shall be taken or applied to public use without the consent of his representatives and without just compensation being made. Under this section it was held not to be necessary that the compensation should be actually paid before the property is appropriated, if a sufficient provision for compensation be directed by the legislature. This is said by Rogers, J., in Pittsburg v. Scott, 1 Barr 314-15, a case decided after 1838, but one in which a municipal corporation took property under an act passed in 1836 before the adoption of the amendment. The amendment of 1838 is not referred to or noticed in the argument or the opinion, and the doctrine was announced on the authority of New York cases. The same judge repeated his language in The Commonwealth v. Wood, 10 Barr 97, citing Pittsburg v. Scott, 1 Barr 309. This case was also that of a municipal corporation, and no reference was made to the amendment. I refer to these cases not as standing in the way, but to distinguish them; and because they stand as the types of others. The amendment of 1838 was adopted to remedy a growing evil arising from the exercise of the power of eminent domain by private corporations and individuals, who afterwards became insolvent or unduly refused compensation, putting the owner to the expense of litigation to secure his rights. The difference in the exercise of the power of the state between private and public hands is stated by Lewis, J., in Yost’s Report, 5 Harris 524, who refers to the purpose of the amendment of 1838, and says, quoting the language of Gibson, C. J., in Mon. Nav. v. Coons, 6 W. & S. 114, the difference between the two classes of cases has been held to he that a corporation or an individual must pay or secure the price of the property before it is taken; hut the state must provide the means of payment at the passing of the act. It-was in this spirit in Western Railroad Co. v. Johnston, 9 P. F. Smith 296, when discussing an attempt to reduce the rights of the landowner to the condition of a subordinate lien, we said, the owner who has never parted with his right stands on the higher fundamental right of property; that no one shall take and use it for the public purpose of a railroad without just compensation being made to him, and that this sacred constitutional right shall not be spirited away by refinement. The Ohio and Pennsylvania Railroad Company, a corporation of foreign parentage and hij’th, was adopted into the Pennsylvania family of corporations, with this feature in its charter. The 9th section provided, that it should first deposit with the clerk of the Court of Common Pleas a description of the rights and interests intended to be appropriated, and if unable to agree with the owner touching the damages, legal proceedings should take place to assess them; which being finished, it declares that “ thereupon such corporation shall pay to the said clerk the amount thus assessed or secure the payment to the satisfaction of such court or of the-judge issuing the warrant (to appraise), and on making payment or tender thereof to said clerk or on giving such security as may be required, it shall he lawful to hold the interests in such lands or materials thus appropriated.” It is evident, therefore, from the requirement of the constitution and of the charter, that this corporation took no title to the 15 perches not appropriated by due legal process. Ejectment is the proper remedy in such a case. The owner is not bound to suffer an unlawful intrusion, and afterward fight an unequal battle for compensation. The argument that ejectment will not lie against one using a mere easement does not apply here; because actual pos session has been taken by the trespassing company, by building and fastening its structures upon the soil, and by daily and hourly use of them; and also because no easement has ever been acquired : it is simply an unlawful entry upon and taking of the road-bed and using it to the exclusion of the owner. It is not the case of fleeting and occasional footsteps, which print no trace upon the earth. The court below erred therefor in considering the case as to the 15 perches as a mere question of damages, and applying to it the six years’ limitation. The next thing is the petition for damages of the plaintiff as the owner of the soil. The first observation to be made is that it is evident the proceeding cannot apply to so much of the roadway as had been already appropriated by due course of law. As to that much the former proceeding must govern. But as to so much as never has been legally appropriated there can be no objection to the petition, even though the original entry of the company was tortious. The owner may waive his constitutional right to insist on ousting the trespasser, and proceed for compensation, which, upon being made, will divest his title and vest it in the company, leaving them liable only for the prior trespass. This much was said in the Borough of Harrisburg v. Crangle, 3 W. & S. 464, and there can be no objection to the doctrine, for it is still in the power of the company to proceed to appropriate the land for future use, notwithstanding the tortious character of the original entry, for which it is left to answer. The owner’s right to damages for the trespass is a vested right of which he cannot be deprived, but as to that use which is yet to come, the legal remedy for appropriation and compensation may he exercised by either party. The court erred, therefore, in quashing the petition. The petition, properly used, is not for the recovery of past damages under an unlawful entry, but for compensation for a right to he invested in the company. Though the latter is often denominated damages its subject is essentially different from the former. It is called damages only in the sense of an unliquidated demand, hut in its nature it is the price of a purchased privilege. On the contrary the claim for the tortious entry and illegal user of the land is purely and properly damages. It is obvious, therefore, that the Statute of Limitations is not applicable to the petition, which does not determine, unless by consent of the parties, the former damages for intrusion, but compensation only for the future use; leaving the former damages to be settled in a common-law form, according to Harrisburg v. Crangle, supra. There is nothing, therefore, to prevent the plaintiff from taking judgment in the ejectment to entitle himself to his action for damages as mesne profits, in which the application of the Statute of Limitations to the former damages becomes visible, and the true distinction between the action for the title and the action for the damages is brought to light. But the proceeding under the petition is inconsistent with the taking of possession by execution in the ejectment, and therefore the court would be justified, after judgment therein taken, to secure the plaintiff’s title, and enable him to recover his past damages, in staying execution for possession until the proceeding under the petition shall have been finished, and the compensation paid, which would thereby vest title to the easement in the company, and leave them liable only for the past damages for their unlawful intrusion into possession. It is proper now to add that we are not unmindful of the decision in Hannum v. Borough of West Chester, 13 P. F. Smith 475, made in Philadelphia at the last session. That was not a case of actual taking, but of consequential damages from the diversion of a stream of water, and was ruled upon the special remedy provided by the legislature. It will be found, on an attentive reading of the opinion there, that, though reasoned differently, the fundamental principles of the opinion are the same as these now enunciated. To prevent misconception, however, the Chief Justice, Justice Williams concurring with him, took occasion to say, in concurring in the judgment, that he did not agree that the statute of limitations of actions is a bar in any case of taking under the right of eminent domain. I was not present at the argument of'that case. Nor do we overlook the case of The Delaware, &c., Railroad Co. v. Deborah Burson, 11 P. F. Smith 369. The proceeding there was upon a petition for damages. The entry of the company was in 1853 and the .road was not completed until 1856, while the proceeding was instituted in 1861, less than six years after the completion of the road, and it recited and adopted the original entry of the company in 1853. Besides, the entry had been made under the written release of Deborah Burson, but who, being a married woman, and her husband not joining in the writing, though consenting thereto, was seeking by this means a greater compensation than the one dollar stated in the writing. The Statute of Limitations was pleaded as a bar to the entire proceeding by petition, and not merely to cut off the antecedent damages, the company not choosing to make any point as to them. The question arose upon the following point: “ Under the evidence in this case the plaintiff’s entire cause of action accrued and the statute began to run more than six years before the commence-' ment of these proceedings; that before that time the road had been surveyed and located, the right of the plaintiff to sue for damages was complete, and she cannot recover in this proceeding, because more than six years have elapsed from the location of the road and from the death of her husband, James Burson.” This court held on this point that the special statutory proceeding for damages was not within the general Statute of Limitations. There the plaintiff was willing to waive the trespass and claim her damages under the statutory proceeding, while the defendants, nothing loth to accept this mode of ending the controversy, made no question upon her right to recover damages for the trespass in the statutory mode. Hence, the question of limitation arose wholly upon the proceeding under the statute, and for that reason it was held that the General Limitation Act of 1713 was no bar. But in the present case the plaintiff, though reciting the entry of the railroad company in 1851, did not rest his right of recovery on that ground, but, by his ejectment, contested the lawfulness of the entry by the company, and still insists on his title to the land itself. • The two cases are, therefore, widely different, and the recovery in the ejectment will turn the right of the plaintiff to recover his damages for the unlawful entry and possession into a common-law form of action. In the action of ejectment the judgment of the court below is reversed, and a venire de novo is awarded; and in the proceeding by petition the order of the court quashing the same.is reversed, the petition reinstated, and a procedendo awarded.

Opinion, Mr. Chief Justice Paxson: Each of the above cases is an appeal from the refusal of the learned judge below to grant a preliminary injunction. The object of the respective bills was to test the constitutionality of the act of assembly, approved June 19, 1891, entitled: “An Act to regulate the nomination and election of public officers; requiring certain expenses incident thereto to be paid by the several counties and certain other expenses to be paid by the commonwealth, and punishing certain offences in regard to such elections.” The effect of these proceedings, commenced in different sections of the state, is to seriously embarrass those persons whose duty it is to make the necessary preparations for holding the next general’ election under said act. It is therefore more important that the cases should be disposed of promptly, than that we should elaborate our reasons for our decision. This opinion will be limited to the announcement of our conclusions, with such brief comments only as the occasion requires. It is proper to observe, at'this point, that the bill in each case asks us to declare the entire act unconstitutional. While certain sections of it have been especially criticised, the litigation is directed against the act as a whole. Were we to declare the sections thus criticised unconstitutional, the act thus emasculated would be of little use even if the remainder of it could be enforced. There is no doubt of the power of the legislature to regulate elections. It was said in the recent case of Cusick’s Election, 136 Pa. 467: “ The legislature has, from time to time, passed various laws to regulate elections.- The object has always been to protect the purity of the ballot. It is too late to question the constitutionality of such legislation, so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself.” See, also, Patterson v. Barlow, 60 Pa. 54. Abundance of authority might be cited were it necessary. The test is, whether such legislation denies f the franchise, or renders its exercise so difficult and incon-j venient as to amount to a denial. " The act provides for a secret ballot. That is manifestly its main purpose, and it is in entire ha free and equal.” This means that every citizen shall have an equal right to cast a free ballot. This is the letter of the constitution, and it is a right which no legislature can interfere with. The spirit of the constitution requires that each voter shall be permitted to cast a free and unintimidated ballot. This the act of 1891 was intended to secure. An election to be free must be without coercion of every description. An election may be held in strict accordance with every legal requirement as to form, yet, if in point of fact the voter casts the ballot as the result of intimidation; if he is deterred from the exercise of his free will by means of any influence whatever, although there be neither violence nor physical coercion, it is not a free and equal election within the spirit of of the constitution, which declares the constitution. The framers of the act in question have evidently reached the conclusion that the only adequate guaranty of free and equal elections, within the letter and spirit of the constitution, is absolute secrecy. They therefore have provided a secret ballot. The provisions of the act have been summarized as follows: 1. The exclusive use of uniform official ballots, printed at tbe costs of the counties, containing the names of all candidates nominated, and space for the insertion of other names. 2. The legal nomination of the candidates whose names are to appear on the official ballots, such nomination to be made either: (a) By certificates, signed by the presiding officer and Í secretaries of the authorized nominating body of the political party, which, at the preceding election, polled three per cent' of the largest vote cast for any office in the state, or in thatj portion of it for which the nomination is made; or, (5) By papers signed by qualified electors to the number of one half of one per cent of the largest vote cast at the preceding election for any officer elected for the state at large, if the nomination is for the state at large, otherwise to the number of three per cent of the largest vote cast the preceding election for any officer elected in that portion of the state for which the nomination is made ; the signatures and the qualifications of the signers of every such paper to be vouched for by five of the, signers. 8. The free posting and publication of the candidates’ names before election. 4. The voting in a room where electioneering and solicitation of votes is forbidden, each voter indicating his choice by either secretly marking the names of certain candidates, singly or altogether, or by inserting other names. 5. The voting, in like manner, upon any question which may be submitted to the people, at an election for public officers. 6. The use of licensed and certified watchers, to represent their parties at the polls, thus preventing voters from interference by irresponsible persons. 7. The covering up of the numbers on the ballots, and the sealing up of the lists to which these numbers refer, thereby preventing election officers from learning who has cast any given ballot, and removing the temptations to violate their oaths of secrecy. 8. The punishment of violations of the various provisions of the act. It will be noticed that the act recognizes the machinery of politics, such as political parties, nominating conventions, and other matters by means of which effect is given to the popular will. This is not the first instance in which these subjects have been recognized and regulated by the legislature. In Leonard v. Commonwealth, 112 Pa. 607, it was held that, “ the act of June 8, 1881, P. L. 70, entitled, ‘An Act to prevent bribery and fraud at nominating elections, nominating conventions, returning boards, county or executive committees, and at the election of delegates to nominating conventions, in the several counties of the commonwealth,’ is a lawful exercise of legislative power, and is an election law within the meaning of § 9, article VIII. of the constitution.” The ground of complaint, as set forth in DeWalt’s Appeal, is, not that it denies the right of suffrage, but that it abridges the freedom of voting, and, in its practical operation, it destroys the constitutional equality and uniformity in voting, by discrimination against some voters and in favor of others, notwithstanding that all of them are alike qualified under the constitution ; that, instead of dealing with the electors in the relation in which each stands to the state, and, collectively, as members of one body and that body the state, the act treats of the voters as they are divided into political parties by their voluntary choice; and it then confers upon the voters of some political parties favors and immunities based exclusively on numbers in party associations or groups, which it absolutely denies, under the prohibition and penalties of the act, to the A'oters of other political parties which in .voters are less numerous, thus making numbers in political association the basis for conferring on some voters the freedom, the equality, and the uniformity assured to every qualified elector of the state by the constitution, and for denying them to others. To illustrate this position, our attention was called to the fact that at the last general election the highest vote polled in this state was 790,040, and that the vote cast for the Prohibition candidate was 18,429 ; that the vote so cast for the Prohibition candidate was less than three per cent of the entire vote cast, and that, under the provisions of the act, a candidate nominated by the Prohibition party would not be entitled to have its ticket printed at the public expense, as in the case of the other two parties. It was contended that the provision or discrimination against the Prohibition party is in violation of that clause of the constitution which declares that elections shall be free and equal, and also § 7, article VIII., which declares that all laws regulating the holding of elections by the citizens shall be uniform throughout the state; that these constitutional provisions were intended to secure to every citizen equality in the manner of voting, and to prohibit the legislature from passing any law which shall give, directly or indirectly, an advantage to some voters which will not equally apply to all voters. This contention is plausible but unsound. The act does not deny to any voter the exercise of the elective franchise because he happens to be a member of a party which at the last general election polled less than three per cent of the entire vote cast. The provision referred to is but a regulation, and we think a reasonable one, in regard to the printing of tickets. The use of official ballots renders it absolutely necessary to make some regulations in regard to nominations, in order to ascertain what names shall be printed on the ballot. The right to vote can only be exercised by the individual voter. The right to nominate, flowing necessarily from the right to vote, can only be exercised by a number of voters acting together. Three persons may claim to be a political party, just as the three tailors of Tooley street assumed to be “ the people of England.” It follows, if an official ballot is to be used, nominations must be regulated in some way, otherwise the scheme would be impracticable, and the official ballot become the size of a blanket. While so regulating it, the act carefully preserves the right of every citizen to vote for any candidate whose name is not on the official ballot, and this is done in a manner which does not impose any unnecessary inconvenience upon the voter. It was urged, however, that when an elector desires to vote for a candidate whose name is not on the official ballot, he can only do so by writing the name of the candidate upon the ballot; and that this provision, in view of the limited time allowed the elector for this purpose, renders a compliance with it practically impossible, and in many instances would be a denial of the franchise. This is merely the argumentum ab inconvenienti. We cannot say, as a matter of law, that it would be practically impossible to insert the name by writing. The actual enforcement of the act will test fhis as well as many other matters connected with its operation. It is at least probable that when tested by experience it will be found to contain many features that will need revision and amendment. This can be safely left to the legislature, and is no reason why we should declare the act unconstitutional. Aside from this, we see nothing in it to prevent the elector from inserting the name of his candidate by the use of a “ sticker ” as is now practiced. The twenty-third section of the act provides that: “ On receipt of his ballot, the voter shall, forthwith and without leaving the space enclosed by the guard-rail, retire to one of the voting shelves or compartments, and shall prepare his ballot by marking in the appropriate margin or place a cross (X) opposite the party name or political designation of a group of candidates, or opposite the name of the candidate of his choice, for each office to be filled, or by inserting in the blank space provided therefor any name not already on the ballot.” It would be a strained construction to hold that the word “ inserting,” as used in the act, means inserting by writing. It certainly does not say so, and we see no reason why we should place this construction upon it. The fact, that by § 12, the name of a substituted candidate, is authorized to be placed upon the ballot by the use of what is commonly known as a “ sticker,” furnishes no sufficient reason why the name of a candidate, not on the official ballot, should not be inserted in the same way. On the contrary, it recognizes the convenience and the propri-' ety of this mode of insertion. The only specification of error in Ripple’s Appeal is, that the court below erred in refusing the preliminary injunction asked for. The principal ground of contention in this, as in Meredith’s Appeal, is that the act in question is a local and special law, and therefore in contravention of the constitution. It was alleged to be special and local legislation, because it does not apply to any one of the cities of the commonwealth whose boundaries are not co-extensive with the county. If the fact were as alleged, we would be compelled to declare the act unconstitutional. An examination of it, however, does not satisfy us that it does not apply to every portion of the state. Its language is general and applies to all public offices, whether in counties, cities, boroughs or townships. It contains a vast amount of detail, and there may be inconsistencies in some of its provisions. There are others which are not free from criticism, and as before suggested, its practical working may disclose omissions and defects which will be doubtless corrected by the legislature in the future. The law itself may be regarded in the light of an attempt on the part of the people to secure a pure, free, and unintimidated ballot. Every presumption is in favor of the constitutionality of the law, and it would require a very clear case to justify us in striking it down on the ground of its unconstitutionality. It is impracticable, at this time, for us to consider and discuss all the details of the act, or all the reasons and arguments urged against its constitutionality by the learned counsel representing the respective appellants. As we view the act there is nothing in it which is so clearly a violation of the constitution as to justify this court in striking it down. It would be out of place at this time to discuss its wisdom. If it shall prove beneficial, the people will probably retain it, with such amendments as the future may show to be wise. If it does not meet with the expectation of the people, they will sweep it away. The decree is affirmed in each case, and the appeal dismissed at the costs of the respective appellants.

OPINION OF THE COURT CAPPY, Justice. In this case, we revisit the issue of whether the police have reasonable suspicion to conduct a stop and frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), based solely on an anonymous tip that a person matching the suspect’s description is carrying a gun. This case also presents the question of whether an article abandoned by the appellant during the course of the stop and frisk may be admissible into evidence at appellant’s trial notwithstanding the legality of the frisk, on the grounds that appellant lacked any reasonable expectation of privacy in the article. For the reasons that follow, we answer both questions in the negative, thus reversing the decision of the Superior Court. At approximately 10:23 p.m., a Philadelphia police officer received a police radio report of a man in a green jacket carrying a gun. Other than the location, no additional details were provided. The officer responded, arriving at the corner of Snyder Avenue and Seventh Street approximately two minutes after receipt of the broadcast. A number of individuals were present at the location, of whom only the appellant was wearing a green jacket. There is no contention that the appellant was acting suspiciously. The officer exited his vehicle and immediately searched the appellant for weapons. None were found, but as the officer searched around the appellant’s ankles, he observed a small key box fall to the ground in the vicinity of appellant. The officer retrieved the box and examined it. The box proved to contain 14 packets of cocaine. Prior to his trial for possession of a controlled substance, the appellant moved to suppress the contents of the key box as the fruit of an illegal search. The municipal court found that the search was legal pursuant to Terry, and that because appellant had thrown the box away, he had abandoned it and thus lacked standing to challenge the subsequent search of its contents. The appellant was convicted of possession of a controlled substance and sentenced to one year’s probation. The Court of Common Pleas and the Superior Court upheld the municipal court’s suppression rulings. This court granted allocatur. Our standard of review of the lower courts’ suppression rulings was set forth in Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985) cert. den. 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297: When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. The principal issue presented by this case is the legality of the stop and frisk under Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution, both of which protect the individual against unreasonable searches and seizures. The protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader than that under the federal Constitution, see Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). However, because the protection afforded by the Pennsylvania Constitution may never be less than under the federal Constitution, and also because Pennsylvania has always followed Terry in stop and frisk cases, see Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), we begin our analysis with the United States Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court addressed the constitutionality of the admission against a criminal defendant of evidence located during a pat-down search of a suspect for concealed weapons. The Court recognized that two important, although countervailing, interests were at stake. The first interest was the individual’s Fourth Amendment right to be free of unreasonable searches and seizures. The Court emphasized that a stop and frisk is not a de minimis intrusion on that right: [I]t is simply fantastic to urge that [a careful exploration of the outer surfaces of a person’s clothing all over his or her body] performed in public while the citizen is helpless, perhaps facing a wall with his hands raised, is a petty indignity. It is a serious intrusion on the sanctity of the person which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. Terry, 392 U.S. at 16-17, 88 S.Ct. at 1877, 20 L.Ed.2d at 903. On the other hand the Court recognized that the police must be able to protect themselves and the public against attack by armed criminals. Terry, 392 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 907. The Court held that when an officer is justified in believing that the individual whose conduct he was monitoring was armed, it would be “clearly unreasonable” to deny the officer the power to take necessary measures to determine whether the officer was carrying a weapon, and to neutralize the threat. Terry, 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908. The Court then struck a careful balance between the two competing interests, holding that an officer may conduct a limited, pat-down search for weapons when the officer has a reasonable suspicion that the individual is armed and dangerous. While the amount of information available to the police need not rise to the level of probable cause, something more than an inchoate and unparticularized hunch would be required. Id. The officer’s suspicion must be reasonable, and based on specific, articulable facts and reasonable inferences drawn from those facts in the light of the officer’s experience. Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. Terry was recognized by this Court in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). In Commonwealth v. Melendez, 544 Pa. 323, 327-28, 676 A.2d 226, 230 (1996), we held that Terry also sets forth the standard for the reasonableness of a search under Art. I, § 8 of the Pennsylvania Constitution. When, as here, the underlying source of the police department’s information is an anonymous telephone call, the courts have recognized that the tip should be treated with particular suspicion. Thus, in Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972), the Court observed that a tip from an informer known to the police carried enough indicia of reliability for the police to conduct a Terry search, even though the same tip from an anonymous informant would likely not have done so. The Court reasoned that a known informant places himself or herself at risk of prosecution for filing a false claim if the tip is untrue, whereas an unknown informant faces no such risk. See also Commonwealth v. Anderson, 481 Pa. 292, 296, 392 A.2d 1298, 1300 (1978) (distinguishing the facts before it from those of Adams on the ground, inter alia, that in Anderson the police were acting on an anonymous tip). As we recently observed in Commonwealth v. Hawkins, 547 Pa. 652, 656, 692 A.2d 1068, 1070 (1997), the anonymous tip may have been a mere prank call. Equally, it may have been based on no more than the caller’s unparticularized hunch. This does not mean that an officer may never conduct a Terry stop on the basis of an anonymous tip. In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court held that a Terry stop may be made on the basis of an anonymous tip, provided the tip is sufficiently corroborated by independent police work to give rise to a reasonable belief that the tip was correct. Essentially, the corroboration requirement is based on the principle that because an informant is right about some things, he or she is probably right about other facts also, including the allegation that the object of the tip is engaged in criminal activity. White, 496 U.S. at 331, 110 S.Ct. at 2417, 110 L.Ed.2d at 310. In White, which the Court described as a close case, the suspect matched the description of the alleged criminal, left her residence at the predicted time in a vehicle matching the informant’s description and, most significantly, travelled along the most direct route to the destination that was predicted in the tip. The Court observed that because only a small number of people are generally privy to a person’s itinerary, it was reasonable for the police to believe that the caller was both honest and well-informed. White, 496 U.S. at 332, 110 S.Ct. at 2417, 110 L.Ed.2d at 310. In this case, the description of the alleged criminal was far less detailed than in White. The caller only described the location, the gender of the individual and the color of his jacket. Significantly, unlike the case in White, the caller did not predict any future behavior by the individual. Thus the only detail that the police were able to corroborate in this case was the fact that appellant was at the location described, and that he was wearing a green jacket. In Anderson, the police received an anonymous tip that provided no more than a vague description of an individual, the location at which he could be found and an allegation that he had escaped from a drug rehabilitation program. We held that even though the tip was correct, the police had insufficient information at their disposal to constitute reasonable suspicion that the suspect was armed and dangerous, and that therefore the fruits of a Terry stop and frisk should have been suppressed. More recently, in Hawkins, we confronted facts very similar to those present in this case. In Hawkins, the Philadelphia police responded to an anonymous telephone report that there was a man with a gun at the corner of Sydenham and York Streets. The suspect was described as a black male wearing a blue cap, black jeans and a gold or brownish coat. We held that such allegations, without more, did not constitute reasonable grounds for the police to suspect that the individual was armed and dangerous: If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they' have no certain knowledge except that the caller accurately described someone at a particular location.... [T]he fact that a suspect resembles the anonymous caller’s description does not corroborate allegations of criminal conduct, for anyone can describe a person who is standing in a particular location at the time of the anonymous call. Something more is needed to corroborate the caller’s allegations of criminal conduct. Hawkins, 547 Pa. at 656-57, 692 A.2d at 1070. Thus the details provided by the caller in this case were insufficient, even when corroborated, to satisfy the reasonable suspicion standard. The Commonwealth contends, however, that the degree of danger to the police and the public from armed criminals is so great that if an anonymous caller provides a physical description of the individual, an accurate location and an allegation that the individual is armed, a Terry stop is justified. That argument will not withstand constitutional scrutiny. The danger to the police and public from firearms was already factored into the balance when the requirement of reasonable suspicion was articulated in Terry. To adopt the position that the Commonwealth urges is in reality to overrule Terry in favor of a lower standard of protection under the state and federal constitutions, a decision that we are not empowered to make. Hawkins also involved an anonymous tip that the suspect was carrying a gun. The distinction that we drew between what criminal activity was alleged, and the probability that the allegation was true, applies here. We found the search in that case to be unreasonable, stating that: The fact that the subject of the call was alleged to be carrying a gun, of course, is merely another allegation, and it supplies no reliability where there was none before. And since there is no gun exception to the Terry requirement for reasonable suspicion of criminal activity, in the typical anonymous caller situation, the police will need an independent basis to establish the requisite reasonable suspicion. Hawkins, 547 Pa. at 657, 692 A.2d at 1070. This case is factually indistinguishable from Hawkins. In Hawkins, we held that before the police may undertake a stop and frisk on the basis of an anonymous tip of a man with a gun, the police must establish that they have a reasonable suspicion that the individual is involved in, or about to commit a crime. If the tip contains sufficient information, the police can do this by corroborating sufficient details of the tip. Otherwise, the police must investigate further by means not constituting a search and seizure. If, as a result, they acquire sufficient information to give rise to a reasonable suspicion that the individual is armed and dangerous, they may then initiate a Terry stop. Neither condition was met in this case, and therefore the search was illegal. We find the Commonwealth’s reliance on our decision in Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351 (1988) to be misplaced. While the suggestion was indeed made in Lagaña, that the risk posed by firearms should be factored into the reasonable suspicion analysis, that observation was dictum. In Lagaña, an anonymous caller provided the police with a description and location of the suspect, and stated that he was armed. When the police arrived, they observed the suspect “casing” a store using binoculars, which is precisely the sort of suspicious activity which arose in Terry itself. The police therefore already had the requisite reasonable suspicion to stop and frisk Mr. Lagaña, even absent any allegation that he was armed. There remains only the question of whether the cocaine seized from the appellant may nevertheless be introduced into evidence against the appellant on the grounds that he had surrendered all rights to its suppression by abandoning the key box at the time of the search. The resolution of this question is governed by our decisions in Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973) and Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769 (1996). In those cases we held that when the causative factor in the abandonment of the evidence is an unconstitutional search and seizure, the contraband must be suppressed. Thus, while we accept as true the factual finding of the suppression court that the appellant deliberately released the key box while he was being searched, we nevertheless conclude that the contents should have been suppressed as the fruit of an illegal search. Accordingly we hold that the content of the anonymous tip did not justify a Terry stop and frisk, and that the key box should have been suppressed as the fruit of an illegal search. The order, of the Superior Court is reversed. NEWMAN, J., files a dissenting opinion in which CASTILLE, J., joins. . Art. I, § 8 of the Pennsylvania Constitution provides in pertinent part: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures____" . The Fourth Amendment to the United States Constitution reads in pertinent part: "fflhe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated____" . The fact that the officer in this case received his information over the police radio neither establishes nor negates the existence of reasonable suspicion. As we recognized in Commonwealth v. Queen, 536 Pa. 315, 319-21 and n. 4, 639 A.2d 443, 445-46 and n. 4 (1994), an officer responding to a police radio bulletin is justified in conducting a Terry stop, even if that officer is not in possession of enough facts to meet the reasonable suspicion requirement, provided the officer who requests the first officer to make the stop has the requisite facts at his or her disposal. Conversely, if the police as a whole lack sufficient information to warrant a belief that the defendant is armed and dangerous, then the search is unreasonable. . Compare Commonwealth v. Rodriquez, 532 Pa. 62, 73, 614 A.2d 1378, 1383 (1992), in which we held an arrest for the sale of drugs unconstitutional, observing that "the seriousness of the criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional right of every individual in the Commonwealth to be free of intrusions upon his or her personal liberty absent probable cause.” . In a companion case, Commonwealth v. Kue, 547 Pa. 668, 692 A.2d 1076 (1997), the police responded to a call that there was an Asian man wearing a striped shirt and carrying a gun at a particular intersection in Philadelphia. The police searched a man matching the description and his companions, including the defendant, who was found to be carrying a gun. Kue was resolved in favor of the defendant on the same basis of Hawkins, without reaching the issue of whether an officer may legitimately frisk the companion of an alleged criminal. . The Commonwealth asserts that appellant has waived the issue of whether abandonment was coerced by failing to raise it at the suppression hearing or in the petition for writ of certiorari filed in the Court of Common Pleas. Whether or not that is the case, the issue of coerced abandonment was addressed on the merits by the Court -of Common Pleas and by the Superior Court. Consequently, we do not find that the issue was waived. See American Ass’n of Meat Processors v. Casualty Reciprocal Exchange, 527 Pa. 59, 67, 588 A.2d 491, 495 (1991).

Opinion by Mr. Justice Roberts, In 1963, appellant was convicted in a trial by jury of murder in the second degree and sentenced to a term of imprisonment of 10 to 20 years. Throughout the proceedings, appellant, an indigent, was represented by court appointed counsel. No post trial motions were filed or appeal taken from the judgment of conviction or sentence. Subsequently, appellant filed a petition for a writ of habeas corpus in the court below challenging his conviction, inter alia, on the ground that he was denied his constitutional right to the assistance of counsel on appeal. The petition was dismissed and this appeal followed. For the reasons hereinafter stated, we are of the view that the order of the court below must be vacated and the record remanded for a hearing in light of the decisions of this Court in Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A. 2d 811 (1966); Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A. 2d 89 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A. 2d 637 (1966) ; Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A. 2d 613 (1965). Appellant alleges in Ms petition that following Ms conviction, be requested trial counsel to prosecute an appeal, but that counsel refused to do so on tbe ground that bis appointment did not include representation of appellant on appeal. He further contends that lack of knowledge and indigency prevented him from proceeding on bis own or from retaining other counsel to press bis appeal. As we have previously stated, tbe right of an indigent defendant to tbe assistance of counsel on an appeal as of right, as set forth in tbe decision in Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), includes, as a necessary incident, tbe right to the assistance of counsel in tbe task of taking and perfecting such an appeal. Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 159, 218 A. 2d 811, 812 (1966), and cases cited therein. Appellant, having been convicted of murder, bad an absolute right to appellate review by this Court. Act of February 15, 1870, P. L. 15, §1, 19 P.S. §1186; Commonwealth ex rel. Cunningham v. Maroney, supra at 159, 218 A. 2d at 812. Under our previous decisions, appellant’s failure to take an appeal within tbe time allowed by law may not preclude tbe present assertion of that statutory right if such failure resulted from an unconstitutional deprivation of the assistance of counsel. Commonwealth ex rel. Cunningham v. Maroney, supra; Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A. 2d 89 (1966); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A. 2d 637 (1966); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A. 2d 613 (1965). The record reveals that prior to the instant petition, appellant petitioned the court below to permit an appeal nunc pro tunc. Counsel was appointed to represent appellant in the matter. However, after considering the trial record, counsel informed the court that in his opinion there was no ground which would merit an appeal and requested permission to withdraw from the case. Permission was granted and the petition dismissed. In dismissing the present petition, the court below relied in part on the conclusion of counsel appointed on the nunc pro tunc petition that an appeal was not warranted. The court concluded, therefore, that appellant had been afforded his day in court and that no deprivation had occurred by reason of his failure to obtain appellate review. We do not agree. It is not our impression that the Douglas decision was intended merely to replace counsel for the courts as a screen to determine which cases have sufficient merit to warrant the appointment of counsel for the prosecution of an appeal. In our view, the mere fact that counsel did not consider appellant’s prospects on appeal as favorable was not of itself sufficient grounds for holding that appellant’s constitutional right to the assistance of counsel on appeal had been fully satisfied. That right embodies more than the right to the assistance of counsel in “meritorious cases”; it embodies the right to representation on appeal if the defendant so desires, whatever the prospects of success may appear to be to the court or counsel. As this Court pointed out in Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 160, 218 A. 2d 811, 813 (1966), “had appellant the funds with which to retain counsel, we do not doubt that he would have been able to indulge his grievances, real or fanciful, on appeal. Appellant was entitled to no less.” Accordingly, we are nnable to conclude that appellant may be foreclosed from exercising his constitutional right to representation on appeal merely on the assurance or opinion of counsel that there are no grounds to warrant appeal. Cf. Commonwealth ex rel. Cunningham v. Maroney, supra. The right to such assistance, however, as is the case with all constitutional rights, may, under appropriate circumstances, be waived. Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 76, 215 A. 2d 637, 640 (1966); cf. Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564 (1965); Commonwealth ex rel. Johnson v. Maroney, 416 Pa. 451, 453-54, 206 A. 2d 322, 323 (1965). Therefore, if appellant waived his right to the assistance of counsel in securing appellate review, his failure to take and perfect an appeal within the time allowed by law precludes him' from presently asserting any claim thereto. Commonwealth ex rel. Robinson v. Myers, supra. On the present record, however, we are unable to determine the merits of appellant’s claim. Under such circumstances, our only recourse is to remand the case to the court below with directions to hold an evidentiary hearing at which time the circumstances of appellant’s failure to take an appeal will be fully explored. Cf. Commonwealth ex rel. Branam v. Myers, 420 Pa. 77, 216 A. 2d 89 (1966) ; Commonwealth ex rel. Robinson v. Myers, supra; Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A. 2d 613 (1965). If the habeas corpus court should conclude, following such hearing, that no denial of appellant’s constitutional rights occurred, it shall enter an order dismissing the petition. However, in the event the court determines that his constitutional right to the assistance of counsel on appeal was infringed, it shall enter an order to that effect and transfer the record to thé Court of Oyer and Terminer of Dauphin County. Upon such transfer, the Court of Oyer and Terminer of Dauphin County shall appoint counsel for the purpose of filing and arguing post-trial motions and, if necessary, prosecuting an appeal. In the event such motions are denied, this Court will permit, on motion of appointed counsel, the docketing of an appeal as if timely filed. The order of the court below is vacated and the record remanded for proceedings consistent with this opinion. Mr. Justice Cohen took no part in the consideration or decision of this case. ln light of the disposition we make, we do not consider it appropriate to reach the other contentions advanced by appellant. It should he noted that under our new Rules of Criminal Procedure, effective January 1, 1965, the appointment of counsel continues through direct appeal. Pa. R. Crim. P. 318(c).

Order Per Curiam, The Court being evenly divided, the judgment is affirmed. Mr. Justice Musmanno did not participate in the decision of this case. Opinion by Mr. Justice Roberts, In Support of the Order: This is an appeal from a 1962 conviction of first degree murder in which the jury fixed the penalty at life imprisonment. The appellant assigns several reasons why this Court should reverse the jury’s determination and grant her a new trial. The first two involve claimed errors in the court’s charge to the jury. Initially appellant contends that the court incorrectly instructed the jury that a finding of intent to kill on the part of the defendant would preclude a verdict of voluntary manslaughter. It is, in fact, correct that twice the judge gave instructions which approximate this assertion. First: “Voluntary manslaughter consists in the unlawful killing of another without malice . . . and that means without direct intent to kill. . . .”; later: “If you hear in mind that manslaughter is never accompanied by legal malice, that is, by a direct intent to kill. . . .” However, the Commonwealth replies that if the charge is studied in its entirety, the additional language cleared up any misconception. Specifically, the Commonwealth relies on this part of the charge: “The act of killing must, of course, he voluntary. That is what the very name of the crime implies, because voluntary manslaughter involves an intentional act.” While it is our conclusion that the charge read in its entirety does not require reversal of this conviction, as delivered, the instructions were not a model of clarity on this aspect of the case. The law is well settled in this state that a conviction for voluntary manslaughter may be entirely consistent with an intent to kill. First, in the situation where a defendant acts under an unreasonable fear that he is in danger of serious bodily harm, there may be a specific intent to kill, and yet the offense may constitute voluntary manslaughter. Commonwealth v. Jordan, 407 Pa. 575, 585, 181 A. 2d 310, 316 (1962); Commonwealth v. Thompson, 389 Pa. 382, 394, 133 A. 2d 207, 214 (1957). The same result occurs in the second instance where the defendant may have formed a specific intent to kill, which intent was the product of blind passion or rage. Commonwealth v. Walters, 431 Pa. 74, 82, 244 A. 2d 757, 762 (1968). Therefore, a trial court should make perfectly clear to the jury that, under given circumstances, the presence of an intent to kill should not preclude a verdict of voluntary manslaughter. On the other hand, our review of this charge satisfies us that on this record the portions of the charge complained of were not of such a nature to justify the grant of a new trial. The situation which appellant claims was created by the trial court’s charge could have been remedied by calling it to the attention of the court with an appropriate request for clarification. This was not done; nor was any point for charge submitted. The general exception lodged by trial counsel at the conclusion of the charge is never a proper vehicle to preserve for consideration on appeal alleged errors in the charge, when a timely objection or request could have resulted in a correction of the trial court’s unclear or inadequate instruction. See Pa. E. Crim. P. 1119. The second alleged error is the court’s failure to instruct the jury that if they found the defendant acted under an unreasonable belief that she was in danger of serious bodily harm, they should find her guilty of voluntary manslaughter. This instruction would have been a complement to the one actually given discussing the reasonable belief necessary to establish self defense and yield a not guilty verdict. The court, indeed, did fail to discuss this item in the portion of the charge dealing with the defense of self defense; but when the court charged on voluntary manslaughter, it included the unreasonable belief defense which appellant now contends was never presented. The court charged: “[T]o reduce an intentional blow or wound which causes death to voluntary manslaughter, there must be either sufficient cause for provocation or a state of rage or passion without time to cool . . . The word passion . . . includes such things as anger or terror. . . . Passion means any of the emotions of the mind, such as rage, sudden resentment, or terror, rendering the mind incapable of cool reflection.” Certainly this repetition by the court of these emotional states, especially terror, comprehends the situation where the defendant had an unreasonable fear. If the jury had believed that the appellant had an unreasonable fear, they could reasonably have been expected to find appellant guilty of voluntary manslaughter under this charge. In addition, if appellant’s counsel believed that this explanation of voluntary manslaughter was not sufficiently explicit, we reiterate that the appropriate time to seek clarification would have been when the jury was still in the courtroom and the judge in a position to further amend his instructions. Counsel may not sit silently by at the conclusion of a charge which he thinks is incorrect. “[A] proper administration of justice requires that new trial be not granted on errors which counsel had ample opportunity to correct.” Segriff v. Johnston, 402 Pa. 109, 113, 166 A. 2d 496, 499 (1960); see Lobalzo v. Varoli, 422 Pa. 5, 7, 220 A. 2d 634, 636 (1966) (concurring opinion). This reasoning is entirely consistent with the new Buie of Criminal Procedure 1119 which provides: “(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. . . .” Although this rule was not in effect at the time of appellant’s trial, it reflected the existing case law at the time of its adoption. Commonwealth v. Richardson, 392 Pa. 528, 140 A. 2d 828 (1958); Commonwealth v. Donough, 377 Pa. 46, 103 A. 2d 694 (1954). The dissenting opinion argues that these first two arguments by appellant should result in a reversal of the conviction. It states the general rule to be that this Court will not reverse on a ground not raised in the court below or on a point to which no exception was taken by appellant, unless “there is basic and fundamental error which affects the merits or justice of the case.” This standard is both incorrect and unworkable. First, the relevant standard must be not how severe was the error, but how easily can it be corrected. We are attempting to grant to each defendant as fair a trial as possible. This must be of necessity something short of an error-free trial. There fore we must insist that counsel object to all of those events which counsel alleges to be error so that the trial court is afforded an opportunity to remedy the alleged deficiencies which the trial court determines are valid. Then, this Court will reverse for (1) those errors which were so severe that any attempt to correct them could not dispel the earlier taint and (2) those objections which the trial Court overruled and which we find meritorious. Only in this way will the administration of criminal justice require reversals and retrials in those cases where it is absolutely essential. Further, the use of this inquiry will prevent counsel for defendant from passively allowing error to creep into the proceedings so that in case he fails to obtain an acquittal for his client, he will have established a sufficient record for the, purpose of obtaining a retrial. Second, the standard proposed by the dissent is simply unworkable. This can be demonstrated very easily. The dissent has applied their standard to three different situations before this Court involving “failure to object” problems; when examined, the total lack of parameters for employing their test becomes apparent. First, in the instant case, the “fundamental error” is an ambiguous charge; the dissent believes this error is sufficiently grievous to justify reversal even though there was no objection. Next is Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968), another case involving an incorrect charge. In Williams the trial judge committed an error when he told the jury “. . . the burden is on the Commonwealth to establish his guilt in the commission of this crime. This is their burden. If you feel that their testimony does not substantially do that, based on the credibility of the witnesses, then you are not required to bring in a convictionThis remark was also held to be “basic and fundamental” error under the test espoused by the dissent and therefore resulted in a reversal despite trial counsel’s failure to object. The third case is Commonwealth v. Scoleri, 432 Pa. 571, 248 A. 2d 295 (1968). In this case the appellant claimed that he was denied the rights guaranteed to him under Commonwealth v. Vivian, 426 Pa. 192, 231 A. 2d 301 (1967), in which this Court held that it was denial of defendant’s right to the assistance of counsel to prohibit his speaking with his trial attorney during the noon recess while defendant was being cross-examined. Essentially the same thing occurred in Seoleri; the court instructed the defendant in the presence of the jury that he was not to talk to trial counsel during the recess. Thus there were two serious errors in Seoleri: (1) defendant’s right to counsel was abridged and (2) the jury may have been prejudiced against the defendant by an ill-founded suspicion that because the defendant and trial counsel were not allowed to communicate, something was amiss. But the majority opinion in Seoleri decides that this error is not properly before the Court because it was not raised until appeal. In Seoleri, the majority states that the error was not “of such substance and prejudice as to result in an unfair trial and a deprivation of justice.” This standard is of course nothing more than a reworking of the basic and fundamental error test in the Simon dissent and the Williams majority. Nor does it help us any more. In my view the dissent utterly fails to justify its position that the ambiguous or, perhaps, incorrect charges in Simon and Williams are any more fundamental or basic or of greater substcmce or prejudice than the denial of counsel and the prejudicial Court remark made to the jury in Seoleri. If anything, the Seoleri error was more shocking since it represented the denial of perhaps the most fundamental right. Cf. Commonwealth ex rel. Firmstone v. Myers, 431 Pa. 628, 246 A. 2d 371 (1968), holding White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963), to be fully retroactive, a decision supported by the Supreme Court of the United States shortly after Firmstone. Arsenault v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35 (1968). Firmstone reasoned that the retroactivity of other right to counsel decisions such as Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) and Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963) is based on the fact that “so fundamental is the right to counsel that its absence at any point after the judicial machinery has begun to operate upon the accused can have extremely deleterious effects upon the truth determining process itself.” 431 Pa. at 633, 246 A. 2d at 374. Of course there is no reason why right to counsel should be any less fundamental ¿ere than in the retroactivity situation. This Court, by purporting to apply the same rule on appeal, reaches obviously contradictory results. The majority uses the “basic and fundamental” rule to deny Scoleri relief despite the denial of his 6th amendment right to the assistance of counsel and grants or would grant relief to both Williams and Simon respectively for less than a constitutional claimed right which their counsels failed to call to the attention of the trial court. In the results which the exponents of the “basic and fundamental” rule reach, I fail to see the even-handed and equal administration of the criminal law. The important consideration in all three cases is that, if the counsel for the defendants had made timely objection, there was at least a chance that the trial judge would have corrected the now complained of error. If the trial judge had, the trial would have been fair; if he had not, then it would have been time enough to have reviewed these issues on the merits. Appellant’s next assignment of error is that the prosecuting attorney’s comments during the course of the trial were of such a prejudicial nature as to warrant a new trial. In Pennsylvania, the law is clear that a new trial is not warranted unless the alleged offending language’s unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict. Commonwealth v. Capalla, 322 Pa. 200, 185 Atl. 203 (1936); Commonwealth v. McHugh, 187 Pa. Superior Ct. 568, 145 A. 2d 896 (1958). However, whether this standard has been violated by the language of the district attorney is not in the first instance our decision to make. It is the duty of the trial judge to rule upon the comments; this Court is limited in its review to whether the trial court abused its discretion. Commonwealth v. Martin, 302 Pa. 118, 153 Atl. 141 (1930). A careful review of the record, including the context in which each of the remarks were made, reveals that while at times the district attorney’s remarks may have been harsh and even unwarranted, they certainly were not of such a nature that they can be described as prejudicing the jury in favor of deductions not legitimately derived from the evidence. Theref ore, we conclude that the trial court did not abuse its discretion in refusing to declare a mistrial. During the trial, appellant was questioned about her carrying a knife. Her response was that the only time she carried a knife was on the day of the killing. To contradict her, the prosecution called Phyllis Johnson who testified that appellant had drawn a knife on her one month earlier. Appellant urges that the admission of this testimony was reversible error. We do not agree. There is no doubt that testimony concerning certain acts by the defendant which tends to show the commission of another and unrelated crime is inad missible evidence. Commonwealth v. Burdell, 380 Pa. 43, 110 A. 2d 193 (1955). But since this testimony was offered to contradict an important phase of appellant’s testimony, the fact that it also represents a description of acts which might be a crime should not of itself render it impermissible. Appellant also complains that the trial judge said: “This is testimony to show the vicious disposition of the defendant. . . .” But this remark was made by the judge in chambers; for this reason nothing prejudicial resulted from it. The underlying rationale for the rule which appellant claims is controlling includes situations, where the evidence of an earlier crime or “vicious disposition” is introduced without any independent justification. Such is not the case here. Appellant’s final argument involves the cross-examination of one of her character witnesses, Josephine Bond. This character witness was asked: “You are aware, aren’t you, that our Juvenile Court noted that you are an irresponsible person, having a questionable home and a poor reputation in the neighborhood?” This statement was denied and in rebuttal the prosecution called Frances Shochet, a probation officer of the county court who testified concerning a custody proceeding involving the witness and her poor reputation. It is true that it would have been improper to offer this testimony to impeach the credibility of the witness; the custody dispute could not possibly amount to a conviction of a felony or misdemeanor involving crimen falsi. Commonwealth v. Jones, 334 Pa. 321, 5 A. 2d 804 (1939). However, it has long been the law in this Commonwealth that it is proper to examine a character witness to prove that his “standard of what constitutes good repute is unsound.” Commonwealth v. Becker, 326 Pa. 105, 115, 191 Atl. 351, 356 (1937). “The admission of testimony of good reputation is of doubtful value and often deceptive where there is not applied to it the acid test of cross-examination to prove . . . the standard by which the witness measures reputation.” Id. Since this was the purpose for the prosecution’s line of questioning, the appellant’s complaint certainly does not constitute reversible error. I find no basis for disturbing the judgment below. Judgment affirmed. See Pa. R. C. P. 227(b); Fed. R. C. P. 51. Both of these rules contain similar provisions limiting the effectiveness of the general exception and requiring specific objections to the charge to be filed prior to the presentation of the case to the jury.

The opinion of the Court was delivered by Kennedy, J. —All the errors assigned present, at most, but two questions. First, was it competent for the plaintiffs to impeach and annul the judgment in the scire facias on the mortgage, and the sale of the land under it, by showing that the mortgagor was dead before the impetration of the first writ of scire facias? The second is, was the court right in charging the jury that to entitle the plaintiffs below to recover the possession of the land, it was not necessary for them to tender the mortgage debt with the interest due thereon before the commencement of the action 1 Now, as to the first, it is not denied, that the judgment and sale would have been good, if the mortgagor, who was the defendant in the writs of scire facias, had been living at the time of suing them out, and had continued to live until the sale was effected. Indeed, had this been the case, the validity of the proceeding and the sale could not have been contested; for the practice of selling mortgaged lands under judgments obtained on the return of two nihils made by the sheriff, as in the present case, is as old, I take it, as the act itself, which authorizes and directs the recovery of the mortgaged debts, in such cases, by scire facias, and sale of the mortgaged lands under a levari facias awarded on the scire facias. This practice was adopted because it had obtained previously in other cases, where the writ of scire facias was sued out for the purpose of having execution awarded of judgments, recognizances and the like. Two nihils are considered equivalent to a garnishment, a service of the writ of scire facias, or a return of scire feci by the sheriff. Barcock v. Thompson, Sty. 281, 288 ; Bromley v. Littleton, Yelv. 113. And it has therefore ever been the practice in case of there being no appearance by the defendant, on the return of the second nihil at most, to render judgment as in case of a scire feci returned. Barret v. Cleydon, Dyer 168, a; Rex v. Eston, Ibid. 198, a; Chevin and Paramour’s case, Ibid. 201, a; Yelv. 112, 113; Tidd’s Practice 1039, 1040; Compher v. Anawalt, 2 Watts’s Rep. 492. Now, suppose that Charles Tainter, after giving the mortgage, bad moved with his family to Asia, and had become resident at Canton, and instead of being dead, had been living there at the time of suing out the writ of scire facias, and the sheriff had made to it the return of scire feci; and the defendant not appearing to answer to the writ, the court had rendered a judgment, awarding execution for the mortgage debt against the land, and it had been sold by the sheriff under an execution issued for that purpose : would not the return of the sheriff to the writ of scire facias be conclusive, and could the mortgagor or his heirs afterwards, in an action of ejectment brought against the purchaser at the sheriff’s sale, be permitted to show that the return of the sheriff to the scire facias was false, by proving that the mortgagor was, in Canton at the time, as the heirs of the mortgagor were permitted to show his death in this case, not merely for the purpose of reversing the judgment, but likewise for avoiding the sale of the land under it ? I think it is very certain that he could not. The only remedy in case of an injury being sustained by such false return, would be, as I apprehend, by an action against the sheriff. Fitz. N. B., tit. Writ of Disceit, 222, D; 225, R; 226, R; Corbet v. Marsh, Moo. 349; Barr v. Satchwell, 2 Stran. 813. The judg ment could not be reversed for such cause even upon writ of error; because the sheriff’s return being part, of the record, Mildmay v. Smith, 2 Saund. 334, note 2, no error could be assigned which would contradict it. And accordingly, it was adjudged in Corbet v. Marsh, Moo. 349, that the tenant against whom a recovery had been had in dower, could not assign for error that he was not summoned for fifteen days, nor proclaimed at the church door, according to the statute of 31 Eliz., because the sheriff had returned him summoned and proclaimed; and that his remedy was against the sheriff. So in Plommer v. Webb, note 2, Lord Raym. 1415, in debt on bond in the common pleas, where non est factum was pleaded, and verdict and judgment given for the plaintiff, it was held in the king’s bench, on writ of error, that the death of Webb, before the day of Nisi Prius, could not be assigned for error, because the record mentioned that he appeared that day. And in Jenk. 99, ca. 92, it was held, that a judgment given for husband and wife upon a verdict found in their favour, at Nisi Prius, after the death of the wife, could not be reversed for such cause upon writ of error, although upon an issue joined for having the fact ascertained, it was found by the jury that the wife died before the Nisi Prius ; because the postea of the Nisi Prius recited that the husband and wife appeared at the Nisi Prius. And again, in Helbert v. Held, 2 Lord Raym. 1414, it was decided, that nothing can be assigned for error which is contrary to the record : and this is fully supported both by prior and subsequent cases on the subject. Hudson v. Banks, Cro. Jac. 28; Bowsse v. Cannington, Ibid. 244; Cole v. Green, 1 Lev. 310; Molins v. Werby, Ibid. 76 ; Arundell v. Arundell, Yelv. 33, 34; Lampton v. Collingwood, 1 Salk. 262; Bradburn v. Taylor, 1 Wils. 85 ; 1 Roll. Abr. 758, pl. 8 ; 5 Com. Dig., tit. Pleader, 3, b, 16, 4th ed.; 2 Bac. Abr. 488, et seq., tit. Error, Wils. ed. Now, suppose that the sheriff, in the case before us, had made a return of scire feci to the writ of scire facias, and the defendant not appearing to show cause, a judgment awarding execution against the land had been given, and by virtue of a levari facias, issued in pursuance thereof, the land had been sold; the sale, as it appears to me, would not only have been' good, but the judgment would have been irreversible upon writ of error, because it would have been against the record to have assigned the death of the defendant for error, who could not have been returned served with the writ, unless he had been alive. This then being so, I apprehend, that according to the authorities cited, and upon principles of analogy, and the reason of the law, the proceedings in the scire facias upon the mortgage in the present case, must be considered equally good and available. But with a view to show this, let me first observe, that the law is not indifferent as to what a sheriff shall return to a writ directed to him and put into his hands for the purpose of being served. It does not consider any thing, though true, that he may think proper to return to it, good ; but it has established and declared what shall and what shall not be a good return to each particular writ. Chief Justice Bridgman, in lúe Notes of Opinions 469, says, “in trespass upon the capias, the sheriff cannot return a mortuus, but non est inventus; and so upon an exigent a mortuus is not good; for saith Prisot, the chief justice, it is better to put the executors to a writ of error, than to suffer,the sheriff to return that which may be false, to which no answer can be given,” and cites 32 Hen. 6,28. But it seems that mortuus est is a good return to a scire facias, according to Bro., tit. Retorne de Briefe, pl. 125, for which he cites, 32 Hen. 6,27. See also, 19 Vin. Abr., tit. Return, lib. 2, pl. 12, to the same effect. Now, it cannot be questioned that it is the duly of the sheriff, when a writ of scire facias upon a mortgage, directed to him, is placed in his hands for service, to make that return, and that alone, which is the true and legitimate return to such writ. Hence, in the case under consideration, it was the duty of the sheriff, when the scire facias was put into his hands to be served, to inquire for Charles Tainter, the defendant named therein, and to ascertain first whether he was alive or dead, and if dead, to return mortuus est; but if alive and within his bailiwick, then to serve it and to make return thereof accordingly; if not within his bailiwick, then to return “nihil,” as he did. Seeing that this was his duty, we are bound to presume that he did it faithfully. Indeed every one is presumed to have clone all that his duty required of him, and more especially so, where he has come under the obligation of an oath to that effect, as the sheriff has. The return of nihil, then, would seem to imply that the defendant was alive at the time of the writ being returned by the sheriff, otherwise he ought to have returned mortuus est: and having shown also that a return of two nihils is equivalent to a scire feci, if follows, as a necessary consequence, that all that is implied by the return of scire feci is equally implied by the return of two nihils; and that the defendant is still alive being implied by either return, no averment can be received to contradict it after it has become part of the record. The effect of the judgment rendered in both cases may not be the same in all respects; because where the defendant has been actually summoned, and suffers a judgment to be entered by default against him, he will not be entitled to relief upon an audita querela for the same cause that he would in case of a judgment given against him upon-a return of two nihils. Fitz. N. B., tit. Mdita Querela, 237,1. The reason for this distinction is, that in the case of scire feci the defendant has actual notice, whereas in the case of two nihils, he has only implied or constructive notice; but that he is in full life is alike implied toy either return, and the effect must therefore be the same. Hence the judgment cannot be reversed for or on account of the defendant’s death, before the commencement of the suit, in either case. The case of Lampton v. Collingwood, l Salk. 262, is strikingly illustrative of all this. There a scire facias had been sued out upon a judgment against A and B, in which it was suggested that A died and B survived, and that R was his administrator. Upon two nihils returned, judgment was given by defaidt against R, who brought a writ of error, and assigned for error that A survived, upon which issue was joined, and found for the plaintiff; but the court, notwithstanding, quashed the writ of error, holding this matter not assignable for error, because it was contrary to the surmise of the writ of scire facias. And the court say that if scire fed had been returned, R might have pleaded it, but since it was .not, he must bring his audita querela. So it would appear that the record cannot be contradicted after a judgment rendered upon two nihils upon a writ of error, more than after a judgment given upon a scire fed : that in the former of these cases the party aggrieved may, in some instances, obtain relief aftpr judgment given by an audita querela, but in no case by writ of error, and much less, certainly, in a collateral action. But it has been objected that the judgment rendered in the scire facias upon the mortgage, awarding execution, was not voidable merely, but absolutely void for want of jurisdiction on the part of the court; because Charles Tainter, the defendant named therein, was dead anterior to suing out the writ, and therefore it was impossible that the court could have jurisdiction of his person. This objection I have already met, as I conceive, by showing that from the return made by the sheriff to the writs of scire facias, and the judgment rendered thereon by the court, the plaintiffs below are concluded from making it even upon a writ of error, and much more in a collateral suit. But is it necessary that the court should have jurisdiction of the person in a proceeding by scire facias upon a mortgage1? If it be, then, I apprehend that many judgments, and sales of mortgaged lands made under them, that have hitherto been considered valid, are void. For it is obvious that where the mortgagor, in case of such proceeding, was a non-resident of the state, or even of the county in which the land was situate, and there have been many such cases, that the court of common pleas of the county in which the proceeding was commenced and carried on, could have no jurisdiction of his person, more than if he had been dead. But it never entered into the mind of any one, I thiuk, that a sale made of the mortgaged land in such case was void on account of its being made under an execution awarded by the court upon two nihils returned by the sheriff to the writs of scire facias, where the defendant was a non-resident of the county or the state at the time. ' The court of common pleas in each county, in which these proceedings must be had, with a few exceptions, is of general and unlimited jurisdiction. It is restricted in no respect whatever, either as to the nature or causes of action, nor yet as to persons. And with the exception of the counties of Philadelphia, Lancaster, York and Alleghany, it is the only court or tribunal of the slate, in which a civil suit for a claim exceeding 100 dollars can be brought and tried. It is true that in most cases the original writ, by which the action is commenced, must appear by the return of the sheriff to have been served on the defendant therein named, otherwise the court cannot proceed to give a judgment against him, however just the plaintiff’s cause of action may be ; or if it were to render a judgment, it would be irregular and might be reversed on writ of error. There are, however, some exceptions to this, and the commencement of a suit by scire facias may be considered one. We have seen already that it is sufficient to have a return of nihil from the sheriff to the first, and second or alias, scire facias, to authorize the court to proceed therein, and give judgment against the defendant, which may affect both his person and property. But the proceeding by scire facias upon a mortgage, under our act of assembty, is one in rem, and not against the person at all, and therefore jurisdiction over his person cannot be indispensably necessary. The only reason for not proceeding by suit against a man after he is dead, to obtain a judgment that may affect the property left by him, is the impossibility of his showing cause against the plaintiff’s claim; but if from the sheriff’s return it should appear that he is in full life and has been warned, that is sufficient to justify the court in proceeding according to the usual course to determine the suit, by rendering a judgment either for or against the defendant, as the justice of the case shall seem to require. From the case of Plommer v. Webb, we have seen that to render the judgment of the court of common pleas regular and irreversibly valid, it is not necessary that the defendant should be actually alive at the time of trial and rendition of the judgment against him; it is sufficient that it appear by the record that he was so, though in fact he was dead and proof of the fact is offered. And again, from the case in Jenkins 99, where the fact of the death was actually found by a jury. So in Hopkins v. Wrigglesworth, 2 Lev. 38; S. C., 1 Vent. 207, 3 Keb. 28, the court of king’s bench, on a writ of error coram vobis resident, seemed to think that the judgment could not be reversed, though the death of one of the defendants before the judgment was given against him was in a manner confessed by the plaintiff on the record. The case was this: after rendering the judgment, it was taken to the exchequer chamber by writ of error, where the death of one of the defendants before rendition of the judgment was assigned for error, and the defendant in error, who was the plaintiff in the court where the judgment had been obtained, pleaded in millo est erratum., thus confessing the fact. But the court of exchequer, conceiving that it had no authority to determine errors of fact, affirmed the judgment; and the court of king’s bench afterwards, upon a writ of error coram vobis resident, seemed to think that the writ of error would not lie after the affirmance in the court of exchequer. This case, then, shows that a judgment is not void because the defendant was dead before it was given against him ; and it proves still further, that under certain circumstances it is not even voidable or reversible, though the plaintiff in whose favour it was given has acknowledged on the record the fact of the defendant’s death. Then as to the judgment in question being void, the authorities are abundant to show that in no case is a judgment, rendered by a court, of general jurisdiction, considered void on account of the death of the defendant having taken place before the rendition of it; that at most it is only voidable and may be reversed on writ of error, but in no other way, by any one who is entitled to have such writ. As if in a cui invita the tenant dies pending the writ, and afterwards judgment is rendered against him, which is erroneous, and execution is sued out against the heir, and he brings assize, he shall not avoid the judgment in the assize brought by him by showing that his father died pending the writ, but he must bring his writ of error; for the judgment is not void, but voidable only. 1 Roll. Mr. 742, tit. Error, JL, pi. 1, 768, pi. 4; 2 Bac. Mr. 450, tit. Error, Wilson’s ed. So if a man recover in ejectment and after-wards his executor sue out execution against the recoveree, the recoveree cannot avoid the judgment or stay the execution by showing' that the testator died between (perenter) the verdict and judgment, as it seems, but must sue out his writ of error; for the judgment is only voidable. Ibid., pi. 2; 3 Bane’s Mr., tit. Error, 1 ,pl. 2. Also, if a man recover land in any real action, and afterwards sue out execution against the heir of the recoveree per scire facias, the heir cannot avoid it by plea that his ancestor died pending the writ. Ibid., pi. 3. And so inflexibly does it seem to be settled that there is no mode by which relief can be had from a judgment in such case, except by writ of error; that the death of the defendant cannot be pleaded in abatement nor alleged in arrest of judgment, after verdict. Blaby v. Eastwigg, Cro. Eliz. 202. And I am not aware of even the semblance of authority to the contrary of these and the prior cases referred to, except in the case of Randall and wife, 2 Madd. 308, where the court are reported to have given as a special reason for their decision, that the judgment therein pleaded was not only erroneous but void, on account of its having been given after the death of the defendant. The case was an action in debt upon a bond against the defendants as administrators. They pleaded a judgment recovered against their intestate, and that they had not assets ultra. The plaintiff replied that the intestate died before judgment, and that the judgment was obtained after his death and kept on foot per fraudem. The defendants traversed the fraud, but did not answer the death of the intestate; whereupon the plaintiff demurred, and the reporter says, “the court were of opinion that the plaintiff might avoid the judgment without a writ of error, especially in this case, where it is not only erroneous but void.” This case would also seem to have been made the foundation of a judgment given by the supreme court of errors in Connecticut, in the case of Haydock v. Cobb, 5 Day’s Cases 527, where a majority of the court ruled that a stranger to the judgment or decree, though no right that he had was affected by it or prejudiced in the least, might invalidate it in a collateral suit, by showing that it was passed against a person who was dead at the time. And afterwards the supreme court of New York, in Griswold v. Stewart, 4 Cowen 457, in a scire facias against Stewart as terre tenant upon a judgment entered by default at a term which commenced after the death of the defendant, entertaining, as it would seem, the notion that the judgment so entered was absolutely void on that account, held that the terre tenant might show it by plea and thereby avoid judgment. For Mr Justice Sutherland, in delivering the opinion of the court, speaks of the judgment as being absolutely void. Now, although the judgment of the court in 2 Madd. may be correct in deciding that the plaintiff in that case could avoid the judgment as to himself, which was set up by the defendants in their plea to postpone his claim, by showing that it was obtained before the death of the intestate, yet I apprehend it cannot be so for the reason given by the reporter, to wit, “ that it was not only erroneous but void,;” for this would be contrary to the current of authorities already cited, which show that a judgment for such cause is only voidable, at most, and not void. I am inclined also to believe that the reporter, through misapprehension, has mistated the reason which induced the court to make their decision ; for lord Holt seemed not to think the book of the best authority, when, in the Bishop of Salisbury v. Phillips, 1 Lord Raym. 537, he, upon its being cited by counsel, said, in ira, “that no books ought to be cited at the bar but those which were licensed by the judges.” The decision of the court, however, may be sustained upon the ground that the judgment was erroneous and voidable merely: but the plaintiff not being either a party or privy to it, was, therefore, unable to reverse it by writ of error; and being prejudiced by it, was entitled to do so in effect as to himself, by pleading and showing the error whenever the judgment should come to be set up for the purpose of prejudicing or depriving him of his right. Mr Justice Swift, in the dissenting opinion of himself and two other of the judges of the court, delivered in Haydock v. Cobb, has laid down what perhaps may be considered the correct rule on this subject, when he says, that “ parties and privies to judgments or decrees can never impeach them collaterally. They can question them only in due course of Jaw, by writ of error, petition for new trial, appeal or application in chancery. Strangers to judgments or decrees can never question them directly, but are permitted, when prejudiced by them, to show that they were obtained by fraud or collusion. A decree, void on the face of it, has no effect on parties or strangers.” See, also, 2 Bac. Abr. 456, tit. Error, B; 2 Saund. 46, a, note 6. This is also in accordance with the rule as laid down in 1 Roll. Abr., K, pl. 1; Reynolds v. Dignam, Dyer 90, a.; that a writ of error can only be brought by him who would have had the thing if the erroneous judgment had not been given: and further,, in Toy’s case, 5 Co. 40, that a man shall not reverse a judgment for error, if he cannot show that the error is to his disadvantage. It appearing, then, from this, that the only reason why a party is permitted to reverse an erroneous judgment, even directly in a proceeding instituted specially for that purpose, is to prevent him from being deprived of some advantage, or what otherwise would belong to him; it would be most incongruous to allow it to be done collaterally in any case, unless for the like reason. Hence Cobb, in the suit against him by Haydock, had no pretence, as it appears to me, for claiming, either directly or collaterally, to have the decree in favour of Haydock against, Howard reversed : for he had no right whatever to the property for which the suit was brought against him by Haydock, whether the decree was reversed or not. The right of property had been in Howard, and passed from him to Haydock by the decree, who had a right therefore to recover, not only from Cobb but from the representatives of Howard themselves, as long as the decree stood unreversed ; which could only be reversed at their instance in a proceeding commenced by them for that purpose, as they alone could be said to be injured by it. I am therefore of opinion that the dissenting judges were right. As to the case of Griswold v. Stewart, I think I have shown already that the judgment in question in that case was not void, but voidable only at most, on account of its having been given after the death of the defendant; and that the learned judge who delivered the opinion of the court misapprehended its real character when he said it was “absolutely void.” But still the conclusion of the court on the case may be right, provided Stewart was really a stranger to the judgment and could not have brought a writ of error to reverse it. Of this however I entertain some doubt; because, if I apprehend the facts of the case rightly, Stewart was heir, or one of the heirs at law to Walton, against whom the judgment had been given, as well as tenant of the land, to whom as such it had descended on the death of Walton ; and if the judgment, being voidable only became a lien upon the land, I am not satisfied but that he was privy, and might therefore as such have sued out a writ of error, and by this means have reversed the judgment: for it is not every terre tenant that can falsify the judgment in a collateral suit, because if-he claims under the defendant in (he judgment, he is bound by it until it shall be reversed or revoked by a suitable proceeding commenced for (hat especial purpose. Proctor v. Johnson, 1 Lord Raym. 670. Having shown, as I conceive most clearly, that a judgment rendered against a defendant after his death, who died pending the suit, is at most only voidable, I would ask, if there is any good reason, whyajudgmentrendered against one whodied before the commencement of the action, but from the sheriff’s return to the original writ appeared to be alive at the time, should be considered otherwise. I certainly perceive none. There is no defendant in being, in either case, to show cause or defend against the plaintiff’s right to recover, which is the all important and great objection to the regularity of (he propeeding. There being no reason then for drawing a distinction between the two cases, the conclusion must be the same in both, that the judgment is only voidable, and not void. I, however, under this latter view of the matter, do not wish to be understood as relinquishing the previous one, going to show that the judgment in the scire facias on the mortgage is not even voidable : but have presented the latter as being the most favourable for the defendants in error that the case will admit of, and to show that even under it, the decision of the court below cannot be sustained, in permitting them to show the death of their ancestor for the purpose of avoiding the judgment in the scire facias sued out on the mortgage; because the proceeding by the scire facias being exclusively and directly against the land, which affected the rights of the plaintiffs below as heirs or privies to the mortgagor, they might have brought a writ of error in order to have had the judgment given therein reversed, if any sufficient cause existed for it, and therefore had no right to claim to do it in a collateral action. But it has been further contended, that the evidence was admissible to avoid the sale of the land, if not the judgment. And although no case directly in point has been cited by the counsel for the defendants in error to support this branch of his argument, yet there are cases which have been decided in the higher tribunals of sotne of our sister states, that may seem to have some slight bearing on the question involved in it. In Brown v. M’Cullough, 2 Taylor’s N. C. Rep.,2, it was held that a sale of land made by the sheriff under a fieri facias issued and bearing test after the death of the defendant, who died seised, without any scire facias being sued out against the heirs or devisee, conveyed no title to the purchaser. So it was held by the supreme court of the state of Ohio, in the lessee of Massey’s heirs v. Long, 1 and 2 Ohio Rep. 412, edit, of 1833; and in the the lessee of M’Carty v. Reed, 5 Ohio Rep. 221, that a sale of land, of which the defendant died seised, made under an execution after his death, upon a judgment rendered in his lifetime, was void. And again, by the supreme court of the state of New York, in the case of Stymets v. Brook, 10 Wend. 206, it was adjudged that land sold on an execution sued out after the death of the defendant, but tested as on the day previous to his death, passed no title. And in a prior case of Woodcock v. Bennet, 1 Cowen 711, where, under an execution against two defendants, land was sold, and the execution was after-wards set aside for irregularity, without more appearing on the record, but it was admitted in the argument that one of the defendants in the execution had died before the test of it; the court of errors decided that the vendee of the sheriff under the execution could not hojd the land. The only English authorities I have met with that appear to be any way pertinent, are in Fitz. N. B. 267, where, in treating of an execution on a recognizance taken in chancery, it is said, if the recognizor die, and the recognizee take out an execution without a scire facias, by means whereof the heir or terre tenants are ousted, they shall have an assize of novel disseisin. And this is recognized as good law by Lord Chief Justice Bridgman, in Howard v. Phillips, 6 Bridg. Rep. 473, where he says, it shows that the execution is merely void; and see Ibid. 470. The only authorities given by Mr Justice Nelson, in support of the opinion of the court in Sty mels v. Brook, which case seems to go further than any other on this subject, are 2 Saund. 6, n. 1, 72, a; Bac. Mr., tit. Execution, 731,pi. 14; 2 Tidd. 1029; 2 Jlrchb. Prac. 88. But these authorities, as it appears to me, only go to show that generally, in the case of a defendant’s dying after judgment against him and before execution sued out, the plaintiff cannot have it afterwards without a previous scire facias against the heir or personal representatives of the defendant. I presume, however, that the decision of the court in Stymets <o. Brook may be in accordance wiih and sustained by the statutory law of New York on the subject; but it.appears to be contrary to the English law, as well in respect to taking lands in execution there, as goods. For it is perfectly well settled that under a fieri facias issued after the death of the defendant, but tested before, his goods may be seized in execution and taken from his executors or administrators. Penoyer v. Brace, 1 Lord Raym. 245; S. C., 1 Salk. 319; Odes v. Woodward, 2 Lord Raym. 850; 3 P. Wins 399. And in Harwood v. Phillips, 6 Bridg. Rep. 469, it was held that there was no difference between an execution by elegit and by fieri facias, upon the death of the defendant; and that a writ of execution upon lands which bore test in the life of the defendant might be executed after his death. In regard to the decisions in North Carolina and Ohio, it is probable that the special provisions of their statutes relating thereto have had some influence in producing them, and that their laws are somewhat different from those of this state. Here a judgment against a defendant for money not only becomes a lien upon all his real estate of freehold lying within the county where it is obtained from its date; but all his debts become liens upon it throughout the state, wherever it may be, from the instant of his death, and it passes to his heirs or devisees, subject to the payment of them. How this may be in the states of North Carolina and Ohio, I do not know; and until a late act of the legislature making a change on the subject, it has not been necessary here, as it seems to me to have been in those states, upon the defendant’s dying seised of lands, to sue out a scire facias against his heirs, devisees or the terre tenants, before taking them in execution upon a judgment obtained against him i n his lifetime. A scire facias against the executors or administrators for the purpose of reaching the personal estate of the deceased in their hands by execution, has always been deemed sufficient, where personal estate could not be had, to authorize the taking of the real estate in execution, so that the heirs, devisees or terre tenants who have become the owners thereof receive no notice, and have never been made parties to the judgment; and the reason given in England for requiring a scire facias to be issued after the death of the defendant, before his lands shall be taken in execution, which is “ that where any new person is either to be better or worse by the execution, there must be a scire facias, because he is a stranger, to make him a party to the judgment (Pennoir v. Brace, 1 Salk. 319; Regina v. Ford, 1 Lord Raym. 763 ; Wortley v. Rayner, Doug. 637), has not been regarded as sufficient to make it necessary here. And, indeed, when we come to reflect upon the reason given why, the goods of the defendant may be taken in execution upon a fieri facias issued after his death, but tested in his lifetime, to wit that it binds the goods from the test, which is before the death, and being a lien upon them at the time they come into the possession of the executors or administrators, the sheriff therefore, may seize them under the fieri facias ; 6 Bridg. Rep. 468 ; we might very naturally be led to ask, why the lands might not as well be taken in execution upon the death of the defendant without a scire facias, wherever they are bound by the lien of the judgment upon which it is sued out. It is clear that neither the death of the defendant in such case, nor even an alienation of the lands by the defendant in his lifetime for a valuable consideration after the lien has attached, can prevent their being taken in execution to satisfy the judgment. And where there are no personal assets to satisfy the judgment or they are not liable to pay it, or where it is for a mortgage debt and the land alone is liable for the payment of it; what possible benefit can accrue to the heirs, devisees or terre tenants from issuing a scire facias against the executors or administrators, and giving them notice? I confess that I am unable to discover any, though it may be possible that there is. But as I do not consider this point necessarily involved in the decision of the case under consideration, I shall avoid giving a definitive opinion in respect to it, but will refer to one or two cases, to show that a sale of goods or other property made under a. fieri facias irregularly issued, has been adjudged good. In Jeanes v. Wilkins, 1 Ves. 195, it was held that a leasehold of ninety-nine years, taken in execution and sold by the sheriff under a fieri facias sued out after the body of the defendant had been taken in execution upon a. capias adsatisfaciendum,auú during the continuance thereof, was good, and that the purchaser acquired a good title thereby to the estate. Lord Hardwicke, in giving his opinion, holds the following language : “it is said that by law, during the existence of the capias, and the person in custody, a fieri facias ought not to be taken out; and certainly it ought not; although if the defendant dies the plaintiff may have a new execution, as upon the statute of 21 Jac. 1. Yet while that continues, resort cannot be had to any other execution ; and the court, without putting the party to his audita querela, would, as I apprehend, set it aside on motion. But yet that fieri facias was not void, and the sheriff might justify taking the leasehold by that writ.; and so may the purchaser under the sheriff, who gives a title, otherwise it would be very hard, if it should beat the. peril of the purchaser under the fieri facias, whether the proceedings were regular or not.” So in Emmett v. Thorn, 1 Maule & Selw. 425, where the sheriff had sold a term under a writ of fieri facias, which was afterwards set aside for irregularity, as it was stated on the record, without further explanation of the reason for setting it aside, and the produce of (he sale directed to be returned to the termor; it was held that the termor could not recover his (erra against the sheriff’s vendee. And this seems to be bul a proper application of the principle laid down in Manning’s case, 8 Co. Lilt. 191, and recognized in Drury’s case, Ibid. 284; “that the sale by the sheriff by force of the fieri facias shall stand, though the judgment be afterwards reversed, but (he plnim iff in the writ of error shall be restored to the value, for the sheriff who made the sale had lawful authority to sell, and by the sale the vendee acquires an absolute right of properly see also Bac. Mr., tit. Execution, Q. But beside the case already mentioned, with the authorities in support of it, of taking out an execution without a scire facias after the death of the defendant where it may be lesfed in his lifetime, there are other cases in which it is not required to sue out a scire facias at all, and executions may be issued and tested at-any time after the death without it. Upon a statute merchant and a recognizance in the nature of a statute staple, which are given by statute, the cognizee may sue out execution against the lands of the cognizor, even where he is returned dead by the sheriff, without a previous scire facias against the heir; or he may .sue it out against the heir and (erre tenants at his election. 2 Saund. 71, b, note by Sergeant Williams, who cites, 2 Inst. 471, 395 ; Bro., Statute Merchant, 16, 43, 50; Bac. Mr., tit. Execution 335, Scire Facias 413. Now the award of execution in a scire facias upon a mortgage in this state is not a proceeding at common law, but given by our act of assembly; and there is still less objection perhaps to the execution being sued out after being awarded by the judgment of the court against the mortgaged land, without a previous scire facias to the heirs, devisees or ierre tenants, in case of the defendant’s being dead, than in the case of a statute merchant, or recognizance in the nature of a statute staple. In the case of the mortgage, the identical land embraced within it, is, as it were, condemned and decreed by the judgment of the court to be sold without any further bearing of the parties, and the execution is merely a direction from the court to carry their judgment, which.is specific, into effect; no other than the land contained in the mortgage, which is referred to in the judgment, can be sold. In this respect, then, it may be said to be like to the case of land seized under a fieri facias, and condemned to sale in the lifetime of the defendant, who dies before the return day of the writ, or before a writ of venditioni exponas is or can be sued out, without which a sale cannot be made; in which it is every day’s practice to sue out the venditioni after the death of the defendant at any time, without any previous scire facias, and to sell under it the land seized under the fieri facias. Commonwealth for Pennock’s executors v. M’Kisson, 13 Serg. fy Rawle 147. But the case of the plaintiffs in error is not that of a sale made under an execution issued after the death of the defendant upon a judgment given against him in his lifetime, but the case of a sale made under an execution sued out upon a judgment rendered in a suit commenced against him after his death; so that the error com plained of does not go to the execution and sale, but to the judgment itself. And having shown that the judgment, if not altogether irreversible, can at most only be reversed or annulled by the defendants in error upon a writ of error; it would seem to be rather irregular, and cutting the knot instead of loosing it, to permit that to be introduced in a collateral suit for the purpose of annulling the execution of the judgment and the sale and all that was done under it, which is properly an objection to the judgment itself, to show that is erroneous and voidable, not void, and for that purpose can only be done in a writ of error, and not in a collateral action. Again, suppose that the judgment in the scire facias, being voidable only, were reversed, the plaintiffs in error would be protected by the act of assembly of 1706, under which the proceeding was had. The 9th section of this act, Purcl. Dig. 292, provides, “that if any of the judgments which do or shall warrant the awarding of said writs of executions, whereupon any land, tenements or hereditaments have been or shall be sold, shall at any time hereafter be reversed for any error or errors ; then, in every such case, none of the said lands, tenements or hereditaments so as aforesaid taken or sold, or to be taken or sold upon executions, nor any part thereof, shall be restored, nor the sheriff’s sale or delivery thereof avoided, but restitution only of the money or price for which such lands were sold, or shall be sold.” And, accordingly, in Hiester v. Fortner, 2 Binn. 40, it was held, that if a judgment under which land has been taken in execution and sold, be reversed, the purchaser under the sheriff’s sale shall hold the land nothwithstanding. Now this act applies as well to cases of judgments reversed for errors of fact as of law. For although the form of entry originally may have been a little different, by using the word “revocetur,” in entering a judgment reversed for error of fact, and the word “reversetur” in entering a judgment reversed for error of law, yet they are both substantially the same, and there is not the slightest ground to warrant the construction of the act, that the latter only was intended to be embraced. Arnold v. Sanford, 15 Johns. Rep. 534. Under every aspect, then, in which this case has presented itself to my mind, I am satisfied that the sale of the land under the proceedings had on the mortgage was valid ; and that the court below not only erred in admitting the evidence to show the death of Charles Tainter, but that they also erred in their charge afterwards to the jury, as to the effect of his death upon the sale. In regard to the second question, I also think that the court erred in their direction to the jury. They seem to have entertained the notion, and said to the jury, that the possession of the land by the defendants below was tortious. Now this was clearly a misapprehension on the part of the court; for, admitting that the sale under the proceedings on the mortgage was an absolute nullity, and that it passed not even the shadow of a title to the purchaser, yet he, being the assignee of the mortgage, and the money due on it having become payable, had a right under the mortgage to take the possession of the land, and having obtained it peaceably, either with or without the assent of the mortgagor or his heirs, had an undoubted right to hold it until he was satisfied the mortgage debt. This right, by his will, he passed to his executors, the defendants below, who had not only acquired the peaceable but also the lawful possession of the land, and as a pledge had a right to hold it under the mortgage} which gave them not merely an equitable but a legal title to the possession until the debt should be paid. As long as the debt remained unpaid, the plaintiffs below had no right, either equitable or legal, to the possession of the land, and therefore could institute and maintain no action for the recovery of it before they extinguished the debt. It was not sufficient, therefore, to entitle them to recover, that they brought the amount of the debt into court on the trial of the cause : they ought at least to have tendered it before bringing their action. Judgment reversed.

The opinion of the court was delivered by Woodward, J. Sued for the money which by the agreement of 29th November, 1848, he had bound himself to pay, the defendant offered and was permitted to show that the agreement was founded on a statement of the debts of the firm which was prepared and shown to him with the knowledge and sanction of the plaintiff, and which, through fraud or mistake, was grossly inaccurate. Though represented as containing a substantially true state of the concern, the schedule omitted an aggregate of indebtedness greatly exceeding the whole purchase-money to be paid. The evidence of these facts, believed by the jury, was of course fatal to the plaintiff’s action. The objection to it was in the court below and is in this court, that it contradicted and varied the written agreement, and that salutary rule of law is invoked which forbids parol evidence to be employed for such a purpose. This rule of law is sometimes misconceived, and its application becomes often very embarrassing in connexion with that principle of equity constantly recognised by the courts, that fraud or mistake is ground on which a writing may be reformed. Let us see if both principles cannot be so stated as to exhibit their coherence and harmony. The one is a rule of law, the other of equity. But the legal rule has less scope than the argument in this case, and the use that is commonly made of it, would seem to imply. It is a rule that has reference exclusively to the terms in which the writing is couched. When parties have deliberately put their engagements into writing, and no ambiguity arises out of the terms employed, you shall not add to, contradict, or vary the 'language mutually chosen as most fit to express the intention of their minds. What if the parol evidence prove, never so clearly, that they used such and such words in making their bargain; the writing signed, if it contain not those words, is final and conclusive evidence that they were set aside in favour of the other expressions that are found in the written instrument. And hence this rule of law is only a conclusion of reason, that that medium of proof is most trustworthy which is most precise, deliberate, and unchangeable. But evidence to explain the subject-matter of an agreement, is essentially different from that which varies the terms in which the contract is conceived. It is the dictate of common sense, and therefore a rule of law, that every written instrument is to be interpreted according to the subject-matter, and yet the nature and qualities of the subject-matter are seldom fully stated, often only alluded to in the writing. Thus in the agreement on which this action is founded, Riddle binds himself to pay Barnhart’s share of the “ demands” against him as a member of the firm of M. Riddle & Co., but there is no specification of the demands, either as to character or amount. Now in this case, as in many others, it is obvious we must resort to parol evidence in explanation of the scope and object of the agreement, if we would cause it to have the effect the parties intended it should have. “Demands:” what demands, how many, and to what amount? Parol evidence, or proof outside of the agreement, can alone inform the judicial conscience. But if the evidence shows, that the parties contracted with a schedule of demands before them, it is reasonable to infer that they meant the covenant to pay should be construed in reference to that schedule; that their agreement, indeed, was based upon the prepared statement. And such evidence is not obnoxious to the rule that excludes parol proof to vary written instruments, any more than the evidence in Doe v. Burt, 1 Term Rep. 701, where a lease described the demised premises as a messuage, consisting of “ one room on the ground-floor with a cellar thereunder.” The question was, whether the cellar passed to the tenant, and parol evidence was received that at the time the lease was made, the cellar in question was in the'occupation of B., another tenant, and therefore it could not have been the intention that it should pass under this lease. So also in our own case of Bertsch v. The Lehigh Coal and Navigation Company, 4 R. 130, in a proceeding for damages done to the plaintiff’s land, he was met by his written agreement granting the right of passage through his land, but was permitted to prove that at the time the agreement was entered into, the line or route of defendant’s canal was designated by stakes set up through his land, and that the written agreement was made with reference to this line, and was not intended to apply to that to which the route was afterwards changed. Many other cases might be cited from the books to mark the distinction, too often lost sight of by counsel in the zeal of an argument, between evidence to alter the language of a written instrument, and evidence to define the position of the parties, and the nature and condition of the subject contracted about. So long as parties call on courts of justice to administer their contracts, they must expect them to be administered as nearly as may he according to the very intention and understanding that were present in the minds of the parties when the contract was signed, and to this end courts take the language employed and apply it to the surrounding circumstances, exactly as they believe the parties applied it. In other words, they hold to the rule that plain and unequivocal terms shall not be altered by parol, but that such explanations of the subject-matter may be proved, as shall give those terms the intended effect. And out of this distinction grows that branch of equity jurisdiction which claims, somewhat arrogantly, the exclusive right to relieve against fraud and mistake. Whether we say that equity relieves against a contract founded in fraud or mistake, or that the law refuses to enforce such a contract, we mean the same thing, that justice is to he done, and that the fraud or mistake may he proved by parol. The evidence in the bill of exception, tended very strongly to prove a case for equitable relief. Riddle agreed to buy out Barn-hart’s interest in a certain mercantile firm — to pay him $800, and to pay his share of the demands against the firm. The statement of those demands which was made out was properly admitted in evidence on the principles already adverted to, and then it was shown to the satisfaction of the jury that the demands exceeded the amount contained in the statement by a sum nearly or quite double the consideration agreed to be paid. When it is considered that the firm goods for which Riddle was to pay $800, would be liable for the full amount of the demands against the retiring partner, it is impossible to conceive that he meant to give the above price for being put into such a liability, or that Barnhart expected to receive it. Riddle was either overreached, grossly defrauded by false representations, or else both parties were egregiously mistaken as' to the amount of Barnhart’s indebtedness. The latter is the more charitable supposition, and just as efficacious as a ground of defence. Equity would relieve against a covenant to pay founded in so gross a mistake — the law will not enforce it. And the evidence upon which equity would proceed, or the law refuse to proceed, is such necessary and natural proof as that in the bill of exceptions, which explains fully what the parties treated about without contradicting anything they have set down in their agreement. There is nothing else in this case. The evidence properly admitted was properly submitted to the jury, and their verdict was an end of the case. The judgment is affirmed.

Opinion by Mr. Justice Eagen, On March 28, 1953, the defendant-appellant was arrested for the fatal shooting of his wife. On April 1, 1953, he was given a preliminary hearing before a justice of the peace where he entered a general plea of guilty to the charge of murder. At this hearing, he was not represented by counsel, nor was such representation requested. On May 11, 1953, he was indicted on the charge of murder. On May 25, 1953, the court appointed two lawyers to represent him. On Novem ber 30, 1953, he was arraigned before the court in the presence of his counsel and entered a plea of guilty to the indictment. Testimony on behalf of the Commonwealth and the defendant was presented before a court of two judges on December 17, 18, and 23, 1953. The record of the proceedings at the preliminary hearing before the magistrate was not entered in evidence. The admission of guilt before the magistrate was not used against the defendant at this hearing. On March 8, 1954, the court adjudged Mm guilty of murder in the first degree and fixed the punishment at life imprisonment. No appeal from the judgment was filed. On July 11, 1963, the defendant-appellant filed in the court below a petition for a writ of habeas corpus. Counsel was appointed by the court to represent him. After hearing, the court denied the writ and dismissed the proceedings. An appeal from this order is now before us. No request was ever filed with the court below asking leave to withdraw the plea of guilty; nor has it been or is it now asserted that the defendant was not guilty of the charge. The single question now presented for determination is: Was the appellant denied constitutional guarantees when he was given a preliminary hearing before the committing magistrate without the benefit of representation by counsel? It has long been the law in Pennsylvania that a defendant need not be provided with counsel at the time of his arrest or immediately thereafter: Commonwealth v. Agoston, 364 Pa. 464, 72 A. 2d 575 (1950); Com. ex rel. Carey v. Prison Keeper, 370 Pa. 604, 88 A. 2d 904 (1952) , cert. denied, 345 U.S. 930, 73 S. Ct. 793 (1953) . The act of the legislature of March 22, 1907, P. L. 31, as amended by the Act of April 28, 1961, P. L. 145, §1, 19 P.S. §784, providing for the appointment of counsel for an indigent defendant accused of murder requires the assignment of counsel to defend such person “at the trial of the case.” The present appeal is prompted by the pronouncements of the Supreme Court of the United States in Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932) ; Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961) ; White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963), and kindred cases. The rulings in these cases must be evaluated in light of the facts therein present. In Powell, supra, the defendant plead not guilty and stood trial. No lawyer was definitely designated to represent him, although he was accused of a capital crime, until the very morning of the trial. As pointed out in the court’s opinion, the young illiterate defendant, charged with an atrocious crime, was put in peril of his life within a few moments after counsel, for the first time, began to represent him. Failure of the court to make an effective appointment of counsel, and to give the defendant a reasonable opportunity to prepare and defend, clearly constituted a denial of due process under the 14th Amendment to the United States Constitution. In Hamilton, supra, again the defendant plead “not guilty” and stood trial. Therein it was held that the failure to provide counsel at the time of arraignment of a defendant in a capital case was a denial of due process. The arraignment was a “critical stage” in the proceedings. Under Alabama law, certain defenses must be pleaded at this time or the opportunity to so plead at trial is lost. In White, supra, the defendant at the preliminary hearing, without the benefit of counsel, plead “guilty” to the charge of murder. Later, at the arraignment, he changed his plea to “not guilty” and persisted in this plea throughout the trial that followed. The prosecution used his plea of “guilty” entered at the preliminary hearing against him during the trial. It is readily apparent that the above cases are factually inapposite to the case at hand. Herein, the defendant was represented by competent and experienced counsel at the time of arraignment, as well as at trial. Herein the defendant entered a plea of guilty to the indictment after more than six months had elapsed from the date counsel had been designated to represent him. Ample opportunity to prepare and defend was thus afforded. While he did plead guilty to the charge at the preliminary hearing before the magistrate, this admission was not used against him at the hearing before the court. It in no way entered into the court’s deliberation in assessing the degree of guilt. Further, his plea of guilty to the charge at the preliminary hearing, when he was without counsel, was the same plea he entered upon arraignment and at trial, when he had the services and advice of counsel. Under such circumstances, it is clear that the single reason now submitted for the appellant’s release from prison is completely without merit. A denial of due process is not present. It should be noted that under Pennsylvania law, the preliminary hearing before the committing magistrate and the arraignment of the defendant before the court, prior to trial, are distinctly separate proceedings. The former is conducted immediately after or within a reasonable time following the arrest. The latter is conducted subsequent to indictment and prior to trial. The nature, purposes and significance are materially different. The primary reason for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention. It seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection. It is not a trial in any sense of the word. It does not purport or at tempt to determine the guilt or innocence of the accused, nor is he required to speak, plead or offer testimony in defense. See, Commonwealth v. O’Brien, 181 Pa. Superior Ct. 382, 124 A. 2d 666 (1956). On the other hand, at the arraignment, which is required only in cases wherein the charge is murder, the defendant is called before the court and required to enter his plea to the indictment. It should be noted also, that several federal courts have recently decided that the constitutional provision requiring the assistance of counsel contains no express or implied command that an accused shall be furnished counsel at the time of the preliminary hearing, and that the failure to provide him with counsel at that time does not, in itself, constitute lack of due process. See, Bryant v. United States, 173 F. Supp. 574 (1959); State v. Sullivan, 10 Cir. (1955), 227 F. 2d 511; United States v. Levine, 127 F. Supp. 651 (1955); United States v. Blanton, 77 F. Supp. 812 (1948). Order affirmed. Mr. Justice Musmanno dissents.

Opinion, Mr. Chief Justice Paxson : This case has been so intelligently and exhaustively discussed both by the learned master and the court below that I fear anything I may say will be but a repetition of what they have perhaps better said. . It certainly renders an elaboration of it unnecessary. , The appellant objects to the deeds of trust to the Union Trust Company of New York and to William E. Lines for two reasons: (a) That they are in fraud of her rights as widow; and (5) that they are testamentary in their character. Hence she asks that the said deeds be declared void as against her, and that the trustees may be decreed to hand over the securities, named in said deeds and remaining in their hands, to the executors of the will of Jesse Lines, deceased. The first proposition cannot be sustained. It is the settled law of this state that a man may do what he pleases with his personal estate during his life. He may even beggar himself and his family, if he chooses to commit such an act of folly; When he dies, and then only, do the rights of his wife attach to his personal estate. She then becomes entitled to her distributive share, and of this she cannot be deprived by will or any testamentary paper. “ Who so ignorant,” said Chief Justice Gibson, in Ellmaker v. Ellmaker, 4 W. 91, “ as not to know that a husband may dispose of his chattels during the coverture, without his wife’s consent and freed from every post mortem claim by her?” This point was expressly decided and thoroughly discussed by the late Justice Shabswood in Pringle v. Pringle, 59 Pa. 281, where it was said that “a man’s wife and children have no legal right to any part of his goods, and no fraud can be predicated of any act of his to deprive them of the succession.” See, also, Dickerson’s App., 115 Pa. 198. It is sufficient to announce a rule so firmly settled, without discussing it. It remains to consider the second objection in connection with each of the trust-deeds. That it cannot be invoked in this proceeding, so far as the deed to the Union Trust Company is concerned, is clear for obvious reasons. That deed is a New York contract. It was made in New York; the deed was delivered in New York, and it was intended to be executed there. Moreover, the trustee is a New York corporation, and the securities in question were delivered there to the said corporation. It is almost needless to say that the Court of Common Pleas of Northampton county has no jurisdiction of a trust, where both the trustee and the trust-estate are in another state. Moreover, if it be conceded that this deed is of a testamentary character, it does not help the matter, so far as the present proceeding is concerned. If the securities held by the Union Trust Company are a part of the estate of Jesse Lines, it is nevertheless an estate situated in the state of New York, and a court of equity in this state cannot by its decree take it out of the hands of its custodian there and transfer it to executors in this state. It can only be reached by ancillary letters taken out in New York. It would then be subjected to the payment of the debts of the testator in that jurisdiction, and the balance only, after satisfying any such demands, would be forwarded to the executors of the domicile. This is familiar law. I may further add that the learned master has found as a fact that by the law of the state of New York a married woman has no claim and possesses no title or interest in her husband’s personal estate during his lifetime, and she has no right or privilege of taking his personal estate . against his last will and testament. It remains to consider the deed to William E. Lines. It was said in Mattocks v. Brown, 103 Pa. 16 : “ Many deeds conveying and settling property contain provisions which become operative only after the death of the grantor or settler, but where a present interest passes to a trustee or grantee, it has never been supposed that such instruments were of a testamentary character.” I do not propose to review the numerous authorities cited and discussed by the learned master. I will add, however, that Dickerson’s App., 115 Pa. 198, is upon all fours with the case in hand. There the owner of certain personal property imposed a trust upon it in favor of his children, naming himself as trustee, and the trust was held valid, notwithstanding the reservation of the income to himself and a power of revocation. When we come to examine the deed to William E. Lines, we find an absolute conveyance to him of certain securities specified therein upon the following trusts : “ To have and to hold all of said shares of stock unto the said William E. Lines, his executors, administrators and assigns, upon the following trusts, to wit: In trust to divide the same into twenty-eight equal shares, of which he shall hold fourteen shares for the use of my putative son, the said William E. Lines, and of the remaining fourteen shares he shall hold ten, to wit, one each for the use of the ten children of my deceased sister, Mary Fairchild, named respectively: . . . . And the remaining •four shares he shall hold for the use of my brother, John Lines. During my life the said William E. Lines shall pay over to me and for my use, at the times he may receive the same, all the dividends or other income which he may receive upon and from all of the above-described stocks, and he may deliver the shares thereof above mentioned unto the several beneficiaries above named, at such time or times as he in his unfettered discretion shall think fit. And should he in the exercise of his discretion determine to hold the same during my life and thereafter, he may, after my death, pay the income thereof to the said beneficiaries respectively, and in their several proportions, until such times as he may see fit to transfer the principal of the said shares to the persons entitled thereto respectively,” etc. It is idle to call this a testamentary paper. It passed his entire legal title to the trustee, with a present interest. He parted with the property wholly and entirely. Even the reservation of the income to himself for life was optional with the trustee. The latter could have distributed the corpus of the estate to the beneficiaries the next day. The power of revocation reserved in the deed, having never been exercised, was precisely as if it had never existed. A reserved right of revocation is not inconsistent with the creation of a valid trust. If the right is not exercised during the lifetime of the donor, and according to the terms in which it is reserved, the validity of the trust remains unaffected, as though there had never been a reserved right of revocation: Dickerson’s Appeal, supra; Stone v. Hackett, 12 Gray 227. There is nothing in this deed to indicate an intention to create a trust to take effect only after the death of the donor. On the contrary, the intent is clear to create a present trust in favor of the beneficiaries named therein, to take effect immediately with the execution of the deed. The securities passed into the hands of the trustee along with the trust-deed. The transaction was complete, and the donor was absolutely denuded of his property. It is useless to pursue the subject further. The appellant had no case, and her bill was properly dismissed. The decree is affirmed, and the appeal dismissed at the costs of the appellant.

Opinion by Mk. Justice Maxey, Plaintiff, while a spectator seated in the grandstand at Forbes Field, Pittsburgh, watching a baseball game, was injured when the free end of an expanding iron gate slid or moved across an aisle and struck his knee, causing injuries which gave rise to the present suit against appellant, lessee of the premises. The additional defendants, Jacobs Brothers Company, were brought upon the record by defendant on the ground that the former were liable over to it on an agreement of indemnity. At the trial a verdict was directed in favor of the additional defendants, and the jury returned a verdict in favor of plaintiff against defendant, the appellant, in the sum of $7,500. Complaint is made of the directed verdict, of the excessiveness of the verdict, and of denial of appellant’s motions for a new trial and for judgment n. o. v. Plaintiff was sixty-five years old on the date of the accident, May 29, 1931. On that afternoon he paid for a general admission ticket and took his seat in the first row of that section, next to an aisle at his left. The grandstand sloped towards the field of play from where plaintiff was sitting, the seats being arranged on tiers in the usual manner, each row higher than the one in front. The aisle to his left contained steps. Immediately in front of plaintiff’s seat was an iron bar or railing which served to divide the reserved seat section from those entitled to general admission. This was supported by an iron post located at the rear left-hand corner of the aisle seat in the last row of the reserved section in front of plaintiff’s, and of the same height, possibly three feet. Across the aisle, and on the same level as plaintiff’s tier was attached a collapsible iron gate, which could be folded close against the steel column so as not to obstruct the aisle when it was desirable to keep the aisle open. This gate was four or five feet in height and was designed so that when elongated across the aisle, to form a barrier between the two sections of the grandstand, an iron upright at its end fitted into two U-shaped “lugs” attached to the railing post by the seat, where it would remain of its own accord, unlatched. There was, however, no channel or guide in the concrete floor of the aisle, and no wheel attached to the gate to carry the gate straight across the aisle and into the “lugs” placed on the railing post to receive it. There was no dispute as to the nature of the gate’s design and construction; several photographs were introduced in evidence depicting it in detail. Plaintiff and his business associate, who was sitting in the seat next to him, testified as to the happening of the accident. Near the end of the game plaintiff was leaning forward in his seat, his arms resting on the railing in front of him, his feet apart, so that his left knee was slightly to the right of and about four or five inches behind the iron post which formed the terminus of the gate when extended across the aisle. An usher, a boy employed by defendant, was sitting in the seat just in front of plaintiff, in the last row of the reserved section. His duty was apparently to see that the gate was closed, for he had been engaged all afternoon in closing it in a proper manner, as people passed up and down the aisle. A young boy, selling popcorn and candy, referred to in the evidence as the “candy boy,” employed not by appellant but by the additional defendants, passed through the gate and failed to close it. The usher called to him to return and do so. A fair inference from the testimony is that he did return and impart some movement to the gate, although the evidence on the point is not clear, since plaintiff and his witness were both watching the game and were not paying attention to what the boy was doing. The latter did not testify at the trial. At all events, the next moment the free end of the gate swung across the aisle and, instead of reaching its proper terminus, it extended into the space between plaintiff’s row of seats and the railing, a few inches behind the post, and struck plaintiff’s knee a glancing blow, then bounced off against the post and came to rest. Plaintiff’s trousers were torn at the point of impact against his knee, he suffered severe pain and was forced to leave the game. He first, however, went below the grandstand to report the accident to some official, and he and the official then went back to examine the gate. Plaintiff immediately visited his family physician and was treated for the injury, which was substantial at the time and has since proved to be permanent in character. Two expert witnesses were called by plaintiff and testified as to the results of their examination made in October, 1932, of the gate which caused the injury, plaintiff having previously testified that it was then in the same condition as when the mishap occurred. It was shown that by actual test, although the aisle which the gate was designed to close off Avas only five feet wide, the gate would expand almost automatically — if not checked by some intervening object, — a distance of thirteen feet two inches into the space between the row of seats where plaintiff was sitting and the railing in front. Moreover, it had a tendency to expand in the direction of this open space, instead of moving directly across the aisle to the post intended as its terminus. The reason for this was the fact that the other end of the gate was not properly attached, in a perpendicular line, to the steel column across the aisle. There was testimony by two men to the effect that even though no one pushed or moved the gate or sought to close it, it would move of its own weight across the aisle into the space occupied by plaintiff. Both these witnesses were officials of companies which manufacture gates of a similar type of construction. It was testified that if there had been a channel or runway in the concrete floor of the aisle, which would guide a wheel attached to the bottom of the gate, or if automatic stops had been attached to its folding members, the accident could not have happened. Gates of proper design, these witnesses said, are so equipped. On the gate in question there was a place where such a wheel was obviously intended to be attached, but there was no wheel there. One of the experts said: “The gate — we have gates, our company, similar — seemed to be a make-shift. The wheel on the bottom of the gate that fits into the guiding slot on the step was missing. There was nothing there to keep it in a direct path. It just shot out.” The other gave his opinion that the gate was in fact constructed to close a thirteen-foot, instead of a five-foot opening, and had more than twice the amount of steel in it necessary for the purpose intended. Appellant’s chief contention is that the verdict of the jury cannot be alloAved to stand, because it Avas based on only a guess or conjecture as to the cause of the accident. Neither plaintiff nor the witness who sat beside him at the time of the accident, it is argued, could tell whether the gate slid across the aisle and struck plaintiff of its own motion, or whether the “candy boy” not employed by defendant, caused the injury by negligently slamming the gate shut when the usher called to him to do so. We think that the evidence that the accident happened because of the improper condition and operation of the gate, while somewhat circumstantial, was nevertheless persuasive. It is clear that the accident could not have occurred had a suitable gate, properly equipped, been maintained by defendant. There was not sufficient evidence in the record to show that the “candy boy” was the person whose negligence set in motion a dangerous mechanism maintained by defendant’s want of proper care and who thus became the efficient, proximate cause of the accident. All that was shown was that just as the gate struck plaintiff’s knee the candy vendor was removing his hand from the gate. This might have shown that the boy had something to do with closing the gate but it gave rise to no inference that he pushed it roughly, flung it or slammed it against plaintiff’s knee. The expert testimony was that the gate would slide across the aisle and into the open space occupied by plaintiff of its own accord and without the intervention of any force. This phase of the case was ably handled by the learned trial judge, who submitted the question of intervening negligence to the jury, in a charge entirely fair to defendant, as follows: “If you find that the plaintiff was injured because of the manner in which the candy vendor acted, if it was his fault, if it was his negligence, that the plaintiff was injured, then, of course, the defendant company could not be held liable. ... If you find that the gate was negligently maintained but that it was the intervention of the candy vendor, that it was because of what he did, that he handled the gate in a negligent way himself, and had it not been for his negligence and carelessness the plaintiff would not have been hurt, your verdict will still be for the defendant. If, on the other hand, you find that the gate was negligently maintained and find that the intervention of the candy boy, of the candy vendor, was an innocent intervention and that it did not matter whether he or anyone else was there, that anyone closing the gate normally would have brought about the same result, if you find that the plaintiff was struck by the gate because of the negligent maintenance of that gate regardless of who may have closed it, then your verdict would be for the plaintiff.” Under all our decisions, if the evidence indicated that the negligence of a third party intervened to such extent that defendant might be exempted from liability, and thus raised a question as to the proximate cause of the accident, that question was properly submitted to the jury. The portion of the charge quoted above was in conformity with our ruling in a very recent case: Helmick et al. v. South Union Twp., 323 Pa. 433, 185 A. 609. See also Stone v. Phila. et al., 302 Pa. 340, 153 A. 550; Hoffman v. McKeesport, 303 Pa. 548, 154 A. 925; 45 C. J. 1322; A. L. I., Restatement of the Law of Torts, secs. 447, 453. Appellant in support of its view cites several decisions which are inapplicable here. In all the cases cited the evidence either failed to afford any explanation of how the accident happened or fell short of establishing a specific negligent act of defendant which by any logical process could be said to account for the injury sustained. Thus in Penna. R. Co. v. MacKinney, 124 Pa. 462, 17 A. 14, plaintiff, while a passenger on defendant’s train, sitting near a window, was struck in the eye by some hard substance, probably a piece of coal. No negligent causal act or omission on the part of defendant was proved. Plaintiff in Wolk et al. v. Pittsburgh Hotels Co., 284 Pa. 545, 131 A. 537, sought to recover damages when struck on the head by a falling, milk bottle, by showing that in the past such objects had been seen on window sills of the hotel near which he was sitting in a parked automobile. There was no proof that the object fell from a hotel window or that the negligence of the management rendered such a mishap possible. The other cases referred to in appellant’s brief, Devine v. Bell Telephone Co. of Pa., 298 Pa. 460, 148 A. 522; Sumey v. Fayette County, 298 Pa. 93, 147 A. 851, and Klein v. Phila. Rural Transit Co., 320 Pa. 548, 183 A. 43, are distinguishable on grounds equally plain. So also is Niziolek v. Wilkes-Barre Ry. Corp., 322 Pa. 29, 185 A. 581. None of the foregoing cases is applicable to the proof of negligence in the case before us. Here it was shown that defendant maintained the gate in such a state of disrepair and so ill-equipped from the standpoint of safety that unless closed with painstaking care by someone familiar with its operation it would prove a menace to anyone seated where plaintiff was at the time. It may have been for that reason that defendant required its employee, the usher, to stand by and see that the gate was properly closed, which in this instance he failed to do. The case cannot be distinguished in principle from the decision in Darrah et al. v. Wilkinsburg Hotel Co., 318 Pa. 511, 178 A. 669, where a hotel was held liable for the fall of a flower box, perched at the edge of a balcony above a ballroom floor, which was precipitated upon plaintiff .below by the thoughtless act of an onlooker in the balcony. There is an alleged error in the charge of the trial judge. The latter adverted to the doctrine of “exclusive control” of the instrumentality causing an accident, as applied in such cases as Burning v. Hyman, 286 Pa. 376, 133 A. 568, and Sellmer v. Ringling, 62 Pa. Superior Ct. 410, and referred to in Wright v. Straessley, 321 Pa. 1, 182 A. 682, but he did not charge the jury that proof of slight negligence on the part of defendant, together with the happening of the accident itself and its surrounding circumstances, would afford an inference of its want of due care sufficient to sustain a verdict against it. Actual negligence having been shown by plaintiff, the reference complained of could not have prejudiced defendant’s case in the minds of the jurors. The trial judge did instruct the jury that defendant was not an insurer of the safety of its premises, but impliedly warranted that its grandstand was safe for the purpose intended, except as to unseen and unknown defects which could not be discovered by the exercise of due care. As applied to plaintiff, who paid his admission price to see the game, such a charge could not be objected to, as our cases demonstrate: Haugh et al. v. Harris Bros. Amusement Co., 315 Pa. 90, 172 A. 145; Sheets v. Sunbury & North. Elec. Ry. Co., 237 Pa. 153, 85 A. 92; see also Sellmer v. Ringling, supra, and Cathcart v. Sears, Roebuck and Co., 120 Pa. Superior Ct. 531, 183 A. 113. The charge that the verdict of |7,500 was excessive finds no support in the evidence. Plaintiff’s injuries were and still remain substantial in character. His knee has been permanently incapacitated for efficient usefulness. He has suffered and will continue to suffer considerable pain. The business in which he is and was engaged at the time of the accident requires his constant supervision. Plaintiff is the president and manager of a corporation which manufactures patented wire slings for transporting extremely heavy objects, the nature and design of which is understood by plaintiff alone and necessitates his close attention at the shop during fabrication, as well as many trips to interview customers, solicit orders, and conduct tests as to the requirements of individual purchasers. There was proof that plaintiff is now able to walk only with a cane and that even with its aid his knee pains him constantly, requires rest and frequent medical treatments, and occasionally buckles under him or “locks” as he walks about the streets, causing him to fall and to seek physical assistance from passers-by. This condition, his physician testified, will continue the rest of his life. After the accident plaintiff was confined to his home for several weeks, under treatment by his physician, and wholly incapacitated from attending to his business. For a considerable period after he was able to ride to his office he could work only intermittently. He has never recovered Ms full vigor, nor is he likely to in the future. An operation, it was shown, would not prove helpful. As a consequence the business of his company has suffered a severe decline in income. Plaintiff’s earnings depended directly on profits of the business. Prior to the accident, plaintiff earned a monthly average of $206; since the accident this has been reduced to an average of $78 a month, covering the period to the time of trial, in November, 1935. Allowing something for probable decline in the company’s business from natural causes during the depression years, and for the fact that during some weeks of this period plaintiff was disabled by another mishap which occurred on a trolley car, nevertheless plaintiff’s financial loss has been undeniably substantial. His earnings will probably be similarly diminished in the future. Evidence as to loss of earnings was introduced solely to furnish the jury with a rational basis for measuring plaintiff’s loss of earning-power, along with the other evidence tending to show incapacity. Taking into consideration the permanent nature of the injury, past and future pain and suffering, medical expenses, partial disability, and loss of earning-power, we cannot say that the lower court erred in refusing to reduce the size of the verdict. Appellant, by a separate appeal, complains of the action of the court below in directing a verdict in favor of the additional defendants, Jacobs Brothers Company, whom appellant brought upon the record under the provisions of the Scire Facias Act of April 10, 1929, P. L. 479, as amended, alleging that the additional defendants were alone liable for the injuries, since the person whose negligence caused the accident, the candy vendor, was at the time employed by them and under their supervision and control. The writ of scire facias was not issued until July 20,1933, more than two years after the accident. Hence the writ, as the averment of liability then stood, alleging negligence on the part of an employee of the additional defendants, was clearly barred by the two- year statute of limitations applicable to trespass suits for personal injuries, under the Act of June 24, 1895, P. L. 236, and our ruling in Bowers v. Gladstein, 317 Pa. 520, 178 A. 44, and for that reason the writ could have been struck off. Subsequently, on November 9, 1933, the writ of scire facias was amended by adding an averment that the additional defendants were liable over to the original defendant, not only because of their employee’s negligent act, but also by reason of an alleged indemnity agreement, whereby the Jacobs Brothers agreed to indemnify and hold harmless appellant “of and from all actions and injuries arising out of [the additional defendant’s] activities.” In their answer to the scire facias the additional defendants admitted the existence of the agreement. They were represented by counsel who was present at and participated in the trial. If defendant has a cause of action against the Jacob Brothers on the indemnity agreement, it sounds in contract, not in tort, and hence the two-year statute does not bar it. But such a cause of action, based on contract, is separate and distinct from the cause of action forming the basis of plaintiff’s suit, which is the injury caused plaintiff by defendant’s negligence. Under the decision in Jones et al. v. Wohlgemuth, 313 Pa. 388, 169 A. 758, the additional defendants were improperly joined, and on application the scire facias could have been stricken off for this reason. In that case we said, at page 390: “The Act of 1929, supra, was not intended to complicate legal proceedings by combining entirely separate causes of action in one suit. By the wording of the act, defendant may bring in as an additional defendant ‘any person alleged to be liable over to him for the cause of action declared upon/ [Italics supplied.] In the present case, the liability, if any, of the parents to appellant arises, not on account of the injuries received by the minor plaintiff (which are alleged to have resulted from defendants’ negligence) but by virtue of the indemnity agreement. . . . One action is in trespass and the other in assumpsit. The causes of action are separate and distinct and no sufficient reason exists for joining them in one proceeding,— indeed, such result was never contemplated by the Act of 1929, supra.” The judgment entered was against defendant and in favor of the additional defendants. Being final, the proceeding, though irregular, as it now stands would be a bar to further action which defendant might undertake against the additional defendants on the indemnity agreement. We think the proper disposition of this feature of the case requires that this judgment be reversed and the case remanded to the court below with instructions to enter a nonsuit as to the additional defendants, thus removing the bar of the judgment: Cleary v. Quaker City Cab Co., 285 Pa. 241, 132 A. 185; Fine v. Soifer, 288 Pa. 164, 135 A. 742. In this manner defendant, the present appellant, will be entitled to pursue its claim under the indemnity agreement that the injuries to plaintiff, for which defendant has been held liable, arose out of the “activities” of the additional defendants, any recovery against the latter on the ground of their employee’s negligence being now barred. Appellant is entitled to its day in court on this issue, if it can sustain its contention, since the finding of the jury against defendant on the main issue of negligence does not technically preclude the possibility of defendant’s showing that the additional defendants’ “activities” were the genesis of the injuries for which it will have paid compensation. The judgment in No. 199, in favor of plaintiff and against defendant, is affirmed at the cost of appellant. The judgment in No. 278, in favor of the additional defendants and against defendant, is reversed, and the record is remanded to the court below with instructions to enter a nonsuit upon the writ of scire facias joining the additional defendants as parties to the suit.

Opinion by Mr. Justice Stern, In 1930 one Leo T. Bowman conducted a newspaper distributing business in the Dormont district of Allegheny County. He was the sole distributor there of the Pittsburgh Post-Gazette, a daily newspaper published by defendant company. He offered to sell to plaintiff the part of his business which related to the Post-Gazette. Plaintiff visited Raymond Foudray, defendant’s circulation manager, and had a conversation with him upon which he bases his cause of action in the present suit. According to plaintiff’s version of the interview, he wanted to find out from Foudray “whether it would be all right to buy the news agency from Mr. Bowman.” He told Foudray that his motive in coming to see him was “about buying Mr. Bowman’s business and the exclusive right to handle the Post-Gazette in Dormont,” that the price involved was about $4,600, which he thought was “a lot of money to invest in the newspaper game.” Foudray replied: “It is not so much money when you are buying the exclusive agency of the Post- Gazette in Dormont,” adding that plaintiff “would be the only one up there handling the Post-Gazette,” that “there is a possibility of the Post-Gazette coming out with a Sunday paper and if that is the case it will increase your earning power and increase the resale value,” that plaintiff “couldn’t handle any other paper except the Post-Gazette,” and that at any time he wanted to sell his business he could do so and Foudray would help him sell it. Plaintiff asked whether “the agent receives a car allowance,” and was answered in the affirmative. A discussion followed as to the amount, which was settled at a subsequent interview by Foudray agreeing to give plaintiff $30 a week car allowance in case he bought the business. A couple of weeks later plaintiff made the deal with Bowman and for more than six years thereafter acted as sole distributor for the Post-Gazette in the Dormont district. In September, 1936, plaintiff publicly advertised the business for sale. When this came to Foudray’s attention he told plaintiff he could not sell the exclusive right to handle the Post-Gazette in that district, and shortly afterwards defendant company refused to sell its newspapers to plaintiff and began making distribution in Dormont through its own employees. The present suit is to recover the sum of $4,000 alleged by plaintiff to be the fair and reasonable value of his business of which he claims to have been deprived by defendant, together with the sum of $2,010 alleged to be due for unpaid car allowance. The jury returned a verdict for $4,252.53, but the court entered judgment for defendant n. o. v. Plaintiff appeals. His theory, as set forth in his statement of claim, is that his conversation with Foudray constituted a contract between him and defendant whereby, if he would purchase Bowman’s business for $4,600, defendant would, as long as he owned and operated the business, give him the exclusive right to purchase its newspapers for resale and distribution in the Dormont district at the rate of $2.25 per hundred papers, and would pay him $30 a week as car allowance, and, further, that he would have the right to resell the business at any time, and if and when he desired to sell it defendant company would assist him to do so in every way within its power. Doubt immediately arises as to whether Foudray’s remarks established a contract, or whether they amounted to nothing more than advice given to plaintiff at his own request in regal’d to the desirability of his proposed purchase from Bowman, with an accompanying expression of encouragement and good will. Viewing them as effecting a contractual obligation, as apparently defendant is willing to concede, they nevertheless fall far short of the scope attributed to them by plaintiff and necessary to support his cause of action. They do not contain an intimation, much less an assurance, that if plaintiff bought Bowman’s business his right to act as sole distributor in the Dormont district would be continued for any definite length of time. According to plaintiff’s interpretation Foudray contractually obligated defendant company to vest in plaintiff, who was then twenty-five years of age, an exclusive agency as long as he cared to exercise it, — even for life if he so desired. It might be asked in this connection whether a resale would carry with it a similar measure of duration and so on in perpetuity to all future assignees, or whether the agency in the hands of a purchaser from plaintiff would be reducible, at the moment of purchase, to one terminable at the will of defendant. Obviously, all that could reasonably be inferred from what Foudray said is that if plaintiff at any time desired to sell the agency he could do so, — his equipment, list of customers, and general good will, — and, to that end, defendant would cooperate and help him find a desirable purchaser, just as it then regarded plaintiff as a desirable person to purchase the agency from Bowman, but there was no suggestion that defendant would give to plaintiff, or to any purchaser from him, an irrevocable grant of the right to buy and distribute the Post-Gazette in the Dormont district. To constitute a unilateral commitment of that magnitude there would be required language of far more precise and unmistakable character. It was said by the present Chief Justice in Machen v. Budd Wheel Co., 294 Pa. 69, 77, of cases involving indefinite agreements of this nature, that “Precedents do not cut a great figure in such an inquiry. . . . They are like precedents in will cases. . . . The language used in each instance is different, and so are the circumstances.” The general rule is that when a contract provides that one party shall render service to another, or shall act as his agent, or shall have exclusive sales rights within certain territory, but does not specify a definite time or prescribe conditions which shall determine the duration of the relation, the contract may be terminated by either party at will: Coffin v. Landis, 46 Pa. 426; Trainer v. Laird, 320 Pa. 414; Press Publishing Co. v. Reading News Agency, 44 Pa. Superior Ct. 428, 433; Willcox & Gibbs Co. v. Ewing, 141 U. S. 627. It is true that such a result does not follow in every instance, because it is the intention of the parties which is the ultimate guide, and, in order to ascertain that intention, the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view, and the nature of the subject-matter of the agreement. Thus contracts which do not fix a definite time for the duration of the relationship which they create are sometimes construed as providing for a reasonable time or some particular period inferred from the nature and circumstances of the undertaking. Illustrations are to be found in Weidman v. United Cigar Stores Co., 223 Pa. 160, Nolle v. Mutual Union Brewing Co., 264 Pa. 534, and Rossmassler v. Spielberger, 270 Pa. 30; see also 4 Williston on Contracts (rev. ed.), section 1027A (3), p. 2852. But, even if such principles of interpretation be applied to the alleged oral agreement in the present case, it is impossible to read into it any in tention, express or implied, on the part of defendant to contract with plaintiff that if the latter decided to buy the Bowman agency defendant would obligate itself to allow plaintiff to conduct the business permanently or until he desired to resell it, with the necessary implication that in case of a resale defendant would be bound to recognize in the purchaser a right to the continuation of the exclusive agency. Nor could plaintiff fairly have derived from his conversation with Foudray any such impression. The court below was, therefore, right in holding that the verdict in favor of plaintiff could not be sustained. As to the item of “car allowance,” it appears that this was based upon a custom in the trade and represented a sum to be paid weekly to plaintiff to compensate him for the use of his equipment and time in making delivery of defendant’s newspapers from its place of business or other points designated by it to the respective distributing points at which plaintiff conducted his business. It was thus merely an incident of the distributorship. Plaintiff testified that the original allowance of $30 was reduced by defendant at various times during the depression period, first to $25, then to $23.75, then to $22.50, and finally to $15 per week, but his own testimony indicates that he acquiesced in these reductions as they were made. If the agency relation was terminable by either plaintiff or defendant the latter could permit it to continue on such modified terms as it might designate from time to time: see Trainer v. Laird, 320 Pa. 414. Defendant maintains that, if the conversation between plaintiff and Foudray were to be construed as granting to plaintiff the exclusive right to buy and to resell defendant’s newspapers in the Dormont district for life or as long as he desired to retain the right, the making of such a contract would have been beyond both the actual and the apparent authority of Foudray as circulation manager. There is much to be said in support of this contention: See Seiss v. McClintic-Marshall Corp., 324 Pa. 201; Heaman v. E. N. Rowell Co., Inc., 261 N. Y. 229, 185 N. E. 83. It is unnecessary to discuss it, however, in view of the conclusion we have reached in regard to the extent of defendant’s obligation. Judgment affirmed.

Opinion by Mb. Justice Bell, A jury found defendant guilty of murder of the first degree and fixed the penalty at death in his trial for the murder of Katherine Jones, and also found him guilty of murder of the first degree and fixed the penalty at death in his trial for the murder of Ella K. Jones, Katherine’s daughter. Defendant filed a motion in arrest of judgment and a motion for a new trial which were dismissed by the lower Court. The lower Court thereupon sentenced him to death. From the judgment and sentence defendant took this appeal. Because this is a capital case we shall discuss every one of defendant’s contentions which may have any possible merit. The first question presented was whether the Commonwealth made out a prima facie case, and if so whether the verdict was against the weight of the evidence. Defendant and Ella Jones were engaged to be married. They, with her mother, were living at 500 Fern Street, Darby. There was considerable friction in the home for a month. According to defendant, Ella and her mother kept reminding him that he was on probation and that they could have him arrested at any time. He became incensed when Ella and her mother allowed a coffee pot to burn; he became incensed when Ella’s mother insisted on bringing old furniture into the house, and when she sold some tools, although they were her property. Because of their almost constant arguments, defendant demanded that Ella convey her interest in the property to him, which she did on February 1, 1955. On the evening of that day, Ella had defendant arrested on charges of drunk and disorderly conduct, threatening to kill and breach of the peace. At the hearing before the Justice of the Peace, Ella testified that defendant had kicked her on the leg and had threatened her several times with a gun which he had in the house. After they returned home, they continued to argue during the next two days. On the morning of February 4, 1955, defendant and Ella again became involved in an argument over his recent arrest. Ella refused a reconciliation. When she started to leave the house to go to work, defendant ran to a closet in the living room, got his revolver and fired seven bullets into her head and body. Many of the shots were fired with the muzzle of the gun within 24 inches of the victim’s body, and one at the distance of 18 inches. Since the cylinder of the revolver held but five cartridges, the jury could well have found that the defendant must have paused to reload his gun. Ella’s death was caused by one or more of these bullets. Defendant then went to the rear of the house and shot Ella’s mother as she was standing on the landing just outside the kitchen door calling for help. He fired two bullets into Mrs. Jones. Her death was caused by one or both of these bullets. The murder of Mrs. Jones was witnessed by Mrs. Grace Wood, a neighbor who was walking past the house at the time; there were no eyewitnesses to the shooting of Ella Jones. Officers arrived quickly and were met at the front door by the defendant who immediately said “I killed them.” Defendant added “I have no gun.” The officers then went into the house and found Ella Jones lying on the floor of the living room moaning in pain. Mrs. Katherine Jones was found lying in the snow at the bottom of the steps leading down from the kitchen door. She was apparently dead. The women were rushed to the hospital and were pronounced dead on arrival. Defendant gave detectives several false leads as to what he had done with the gun. It was found after many hours of search secreted in an automatic gas heater in the basement. There is not the shadow of a doubt as to defendant’s guilt. These were two cruel, heartless, savage murders. Defendant willfully, deliberately and premeditatedly got a gun and shot and killed Ella Jones and her mother after numerous threats and after Ella refused a reconciliation. Defendant alleges that the killings were without the slightest motive and because of that and because he was in a state of intense excitement, the killings could not amount to murder in the first degree. “Evidence to prove motive, intent, plan or design are admissible [citing cases].”: Commonwealth v. Homeyer, 873 Pa. 150, 159, 94 A. 2d 743. However, “proof of motive is always relevant but never necessary.”: Commonwealth v. Malone, 354 Pa. 180, 188, 47 A. 2d 445. Moreover, in this case the motivation was obvious, namely, hatred and resentment. Mrs. Freedman, a witness for defendant, whose home defendant had visited on February 2nd, testified that defendant called Ella’s mother a foul name, said he “hated her guts” because she was keeping Ella away from him, and said “I ought to kill her.” Defendant testified on the witness stand “There was murder in my heart the day she [Ella] had me arrested [February 1st].” He testified that after his return from the hearing on February 1st he looked for the gun and failed to find it, but added “I would have believed I would have killed the both of them that night there and then.” When defendant was arrested and taken to the police station he was “perfectly calm, he was talking like an ordinary person would talk if you had a conversation with them.” When he was asked by one of the arresting officers why he had shot the women, defendant replied “They were robbing me.” All the ingredients necessary for first degree murder are so clearly present in this case and the evidence of defendant’s guilt is so overwhelming that a citation of authorities to support the conviction is unnecessary. Defendant contended prior to arraignment and before trial and on this appeal that he lacked the mental capacity requisite to standing trial. Defendant’s Mental Capacity To Stand Trial And To Make A National Defense “. . ., the test at common law and employed by the courts in determining the mental capacity of a defendant to stand trial or to be sentenced or executed is not the M’Naghten ‘right or wrong’ test but whether the defendant is able to comprehend his position and make a rational defense.”: Commonwealth v. Moon, 383 Pa. 18, 23, 117 A. 2d 96. Prior to trial and pursuant to the Mental Health Act of 1951 as amended, the lower Court appointed a Commission to examine defendant. We adopt the following excerpt from that Court’s opinion on the question of defendant’s ability to stand trial: “The commission thereupon proceeded to make a psychiatric examination of the defendant, and a neurologic examination was performed independently by the two physicians. In due course, the commission filed its report with this Court in which it found, inter alia, that Edward Novak is not mentally defective; that there is no evidence of organic disease of the nervous system; that he shows a profound personality disorder that has led to all types of aggression and anti-social behavior, but he is not mentally ill that he is not insane, but can distinguish right from wrong; that he is able to comprehend his position with relation to the crimes of which he stands accused, to confer with his counsel in an intelligent manner to prepare his defense if he so desires and to make a rational defense to the crimes of which he stands accused.” The lower Court then held that defendant was not mentally ill within the purview of the Mental Health Act: “After a thorough study of the commission’s report and the evidence upon which it was based, and in the exercise of our own independent judgment (Commonwealth v. Patskin, 375 Pa. 368, 375), . . .” “We have read and re-read the commission’s report and the evidence upon which it was based. It is our considered opinion, after mature and deliberate study, that the commission discharged the duties of its appointment with ability, fidelity and complete impartiality. The report gives every evidence of thorough, painstaking consideration and preparation. We find no inconsistency or contradiction in the commission’s findings and conclusions. And such findings and conclusions, in our opinion, find abundant support in the evidence. “The commission’s estimate of defendant’s general attitude throughout the examination, accords with our own impression after repeated readings of the evidence. After remarking that defendant showed during the examination, evidences of marked hostility and aggression towards others, the commission said: ‘However, during the course of our examination he was polite and co-operative. When he dealt with matters irrelevant to the questioning he agreed to drop such discussion and return to the topic at hand. A half dozen times during the interview he went into violent rages screaming, crying, beating his fist on the table, yet, when he was ordered to desist and return to the orderly questioning, he did so and was relevant once more.’ . . . “We were not, of course, bound by the findings and conclusions of the commission. As the Supreme Court said in Commonwealth v. Patskin, 375 Pa. 368, 375, ‘If a commission is appointed its findings are advisory and not mandatory upon the court — -under the Act it is the Court and not the psychiatrist or the Sanity Commission which must be satisfied that the petitioner is insane or mentally ill.’ We were of opinion that defendant was not mentally ill. On occasions when we had opportunity to observe him, there was nothing in his bearing, appearance, or demeanor suggestive of mental illness.” Defendant also contends that his statutory and Constitutional rights were violated because his counsel was not present when he was examined by the Commission and therefore could not cross-examine. Neither counsel for defendant nor counsel for the Commonwealth were present at the psychiatric examination of defendant. Indeed, defendant’s counsel said they were satisfied not to be present. In Commonwealth v. Iacobino, 319 Pa. 85, 178 A. 823, the Court said (page 69) : “A defendant charged with a crime who invokes a statutory or common law remedy to determine his sanity before trial or after conviction has no constitutional right to be confronted by or cross-examine witnesses or the members of the commission appointed to ascertain that fact. Such inquiries are for the determination of a fact apart, separate and distinct from that of guilt of the crime itself, as to which trial or sentence may or may not be ordered. The appointment is not demandable of right and if it is contended the members appointed are biased or otherwise incompetent, objection, with the reasons therefor, should be made to the court at the time of appointment. The court may then determine whether it has made a mistake in the selection of persons to inform its conscience. Where witnesses are produced, and they may be by either side, it is customary for counsel to appear and examine or cross-examine them if necessary. The matter is entirely in the control of the court appointing these officers, who in the interest of justice will see that the accused is not prejudiced by the course of the. investigation.” Insanity- Defendant’s sole defense at the trial was that he was insane at the time of the killings. Once again we quote with approval from the able and convincing opinion of the lower Court: “. . . In support of his defense of insanity, and of his contention of inability to stand trial, defendant relied upon the testimony of three psychiatrists, who had examined him within a few months after the killings. The Commonwealth met this issue with the testimony of two psychiatrists, and some lay testimony. It is necessary here to relate something of the defendant’s attitude and conduct at the trial, for the bearing it may have on the question of his mental condition. “Defendant’s behavior was perfectly normal and proper during the first two days of the trial. At the opening of court on the third day, however, he erupted into violence. He lunged and thrashed about in the most reckless and disorderly manner, and made an assault upon a court officer, all the while calling out in a loud and boisterous voice, so that it required considerable force to subdue him and remove him from the courtroom. He engaged in substantially similar conduct on other occasions during the trial. It was necessary at times to keep him under physical restraint in the courtroom, and to take measures to prevent him from continually interrupting the proceedings with his raucuous and belligerent cries. “There was abundant testimony that on the occasions when defendant was removed from the presence of the jury, following these outbursts, he soon subsided and became very calm, orderly and submissive, except for one or two minor incidents. On defendant’s first removal, it was testified, his immediate concern was for his watch, his glasses and some papers he had brought to trial. A witness stated that when he asked defendant why he acted as he did in the courtroom, defendant asked the Avitness what he Avould do if he ‘Avanted to get attention.’ The Commonwealth produced testimony to shoAv that in conversations betAveen defendant and the trial Judge, and between defendant and the President Judge — conversations had at defendant’s urgent and repeated solicitations and in the presence of counsel — defendant was never abusive or violent in either language or conduct, but Avas uniformly courteous, polite and respectful. One witness testified, ‘He was very calm, asked very intelligent questions, talked very coherently, and his general behavior Avas that of a normal person.’ Other witnesses testified that defendant fully comprehended and understood his position. It Avas also shoAvn that defendant frequently conferred with counsel in the course of the trial, both during the selection of the jury and during the questioning of Avitnesses. . . . “The psychiatric testimony on both these issues Avas extensiATe, and was in irreconcilable conflict. In addition to the medical testimony, hoAvever, the jury had before them the defendant’s behavior in court, and the testimony as to his completely changed attitude and conduct when he was out of their presence. The jury may haA’e considered whether or not the defendant was feigning insanity. They may have questioned whether defendant’s pleas of insanity at the time of the killings, and of mental inability to stand trial, were entered in sincerity and good faith, or by way of mere stratagem and artful device. Be that as it may, our study and analysis of the record leads us to the conclusion that the preponderating weight of the evidence supports the jury’s findings that the defendant Avas sane at the time of his commission of the homicides, and that he was able to comprehend his position and make a rational defense.” There was ample evidence to support the finding of the jury and of the lower Court that defendant was sane at the time of the homicides and was competent to stand trial and make a rational defense at his trial. Defendant further contends that he was entitled to have his trial continued and a separate trial allowed him on the question of his sanity. There is absolutely no merit in this contention. No Constitutional or statutory or other rights of defendant were violated. Cf. Commonwealth v. Iacobino, 319 Pa., supra; Commonwealth v. Ragone, 317 Pa. 113, 123, 176 A. 464; Commonwealth v. Cilione, 293 Pa. 208, 216, 142 A. 216; Commonwealth v. Scovern, 292 Pa. 26, 29, 140 A. 611; Webber v. Commonwealth, 119 Pa. 223, 13 A. 427. Defendant nest contends his Constitutional rights were violated by the application of the rule in M’Naghten’s Case. Defendant, as other defendants repeatedly have, asks us to reject or change the rule laid down in M’Naghten’s Case, 8 Eng. Rep. 718, which was adopted as the law of Pennsylvania in Commonwealth v. Mosler, 4 Pa. 264. These cases established the so-called “right and wrong” test for insanity, when insanity is raised as a defense by a defendant. Defendant desires us to adopt some undefined psychiatric test. Once more, we refuse to do so. The M'Naghten Case rule or “the right and wrong test” has been repeatedly reaffirmed by this Court — as recently as 1955. See Commonwealth v. Moon, 383 Pa. 18, 23, 117 A. 2d 96; Commonwealth v. Patskin, 375 Pa. 368, 371, 100 A. 2d 472; Commonwealth v. Heller, 369 Pa. 457, 461, 87 A. 2d 287; Commonwealth v. Neill, 362 Pa. 507, 514, 67 A. 2d 276. In Commonwealth v. Patskin, supra, the Court said (page 371) : “The law of Pennsylvania (following M’Naghten’s Case, 10 Cl. & Fin. 200 (1843)) provides that the test of insanity is whether the defendant at tlie time of the commission of the killing knew the nature and consequences of his acts, or the difference between right and wrong: Commonwealth v. Heller, 369 Pa., supra.” In Leland v. State of Oregon, 343 U. S. 790, 800, 801, the Court said: “Much we have said applies also to appellant’s contention that due process is violated by the Oregon statute providing that a ‘morbid propensity to commit prohibited acts, existing in the mind of a person, who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.’ That statute amounts to no more than a legislative adoption of the ‘right and wrong’ test of legal insanity in preference to the ‘irresistible impulse’ test. Knowledge of right and wrong is the exclusive test of criminal responsibility in a majority of American jurisdictions. The science of psychiatry has made tremendous strides since that test was laid down in M’Naghten’s Case, but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law. Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility. This whole problem has evoked wide disagreement among those who have studied it.. In these circumstances it is clear that adoption of the irresistible impulse test is not ‘implicit in the concept of ordered liberty.’ ” Defendant next contends that it was error to admit into evidence the bloody clothing and photographs of the dead women, since they were irrelevant and inflammatory. There is no merit in this contention. When a defendant pleads not guilty, they are never irrelevant, although some of the photographs may be inadmissible because too inflammatory. In Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728, the Court said (page 26) : “Pistols, fruits of the crime, clothing, parts of the body of the person killed, everything pertaining to the crime which will aid the jury in its consideration of the (alleged) crime and the guilt or innocence of the accused, is admissible.” This has been the law for centuries. The law is likewise well settled that in the trial of criminal cases photographs of the victim and of the scenes of the crime are admissible to aid the jury in their understanding of the alleged crime, the kind of crime it was, exactly what caused the victim’s death and what, if any, connection defendant had with it; however, they are not admissible for the purpose of exciting or inflaming the emotions of the members of the jury. The admission of photographs is largely within the discretion of the trial Court and will not be reversed except for a flagrant abuse of discretion: Commonwealth v. Patskin, 375 Pa., supra; Commonwealth v. Bibalo, 375 Pa. 257, 100 A. 2d 45; Commonwealth v. Smith, 374 Pa. 220, 97 A. 2d 25; Commonwealth v. Moon, 389 Pa. 304, 132 A. 2d 224; Commonwealth v. Gibbs, 366 Pa. 182, 76 A. 2d 608; Commonwealth v. Sydlosky, 305 Pa. 406, 158 A. 154; Commonwealth v. Simmons, 361 Pa. 391, 65 A. 2d 353. When gruesome pictures, or pictures tending to inflame the jury’s emotions, are admitted in evidence, the trial judge should explain to the jury their purpose and admonish them not to permit the photographs to inflame their emotions or to prejudice them against the defendant. All the pictures which were admitted by the trial judge in this case were properly admitted. Furthermore, the trial judge explained to the jury the purpose for which the photographs were admitted and carefully admonished them against permitting the photographs to prejudice them against defendant. The final contention made by defendant was that his Constitutional rights were violated because he was deprived of counsel of his own choice. A defendant has a Constitutional right to choose at his own cost and expense any lawyer he may desire: Constitution of Pennsylvania, Art. I, §9; Constitution of the United States, Amend. V (due process), Amend. XIV (due process); Commonwealth v. Thompson, 367 Pa. 102, 106, 79 A. 2d 401. In a capital case, if a defendant is not financially able to employ counsel or if for any reason he is unwilling or unable to engage counsel, the Court will appoint, at the expense of the County, a lawyer to represent the defendant: Commonwealth v. Thompson, 367 Pa., supra; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 45, 24 A. 2d 1. Defendant engaged two capable and experienced lawyers who were familiar with criminal practice and paid them a very substantial fee. Four months thereafter, defendant became dissatisfied with his counsel. After a while he was not only dissatisfied but actually hostile to his counsel. Counsel then petitioned the Court for leave to withdraw from the case. Defendant and his counsel were told by the Court orally and the Court entered an Order that counsel would be allowed to withdraw as soon as defendant procured other counsel who would enter an appearance for him. At no time either before trial, during trial, or after trial did defendant procure another attorney who was willing to appear for him at the trial or in connection with his indictment. Defendant states that he contacted Francis R. Lord, a member of the Delaware County Bar, for the purpose of retaining him as counsel. “At the bar of the [lower] Court Mr. Lord stated that he had discussed the matter with the defendant but had been unable to come to terms with him and would not represent him.” Counsel for defendant then filed a petition with this Court to be relieved as defendant’s counsel. This Court denied their petition. When defendant’s case was called for trial on January 7, 1957, defendant asked the trial judge to let him “fight this with another lawyer”. The trial judge refused this request. On the fourth day of the trial, defendant’s counsel made a motion at side bar requesting the trial judge to relieve them from further representation of defendant, because of his dissatisfaction and lack of confidence in them, and his refusal to co-operate properly with them. This motion was denied. The trial judge’s rulings were not a denial of defendant’s Constitutional rights. Constitutional provisions, like all laws, must receive a sensible and reasonable construction. The accused’s right to choose counsel must be exercised at a reasonable time and in a reasonable manner. Defendant had a period of almost two years in which to procure counsel to his liking and in whom he could have confidence. He was never denied the opportunity to exercise this right. Defendant knew when his case would be called for trial. He could not wait until the very day of his trial to choose another counsel. This would be, under the circumstances here present, an unreasonable interpretation of Ms Constitutional rights and would shackle not promote Justice. The lower Court in its opinion said: “We take the opportunity to state . . . that counsel at all times have discharged the duties of their employment with diligence, fidelity and outstanding ability.” We add that counsel for defendant, in their briefs and in their oral argument before this Court, have ably presented every factual argument and every legal argument which could be presented by astute counsel. If a defendant who engages his own counsel refuses for two years to engage other counsel and waits until the trial of his case to demand an opportunity to engage other counsel, he can repeat this strategy every time his case is called for trial, and society would not receive the protection and equal Justice to which both they and the accused are entitled. We decide that the evidence amply supported the verdict and the death penalty fixed by the jury; that defendant’s mental condition did not prevent his making as good a defense as was possible in the light of the homicides which he committed; that there was ample evidence from which both the jury and the Court below could justifiably conclude that defendant was sane; that defendant had a fair trial; and that he was not deprived of any of his Constitutional rights. Judgment and sentence affirmed. Mr. Justice Musmanno dissents. Italics throughout, ours.

Opinion by Mr. Justice Eagen, The appellant, Wilford L. Templeton, was employed as chief of police of Wind Gap Borough, Northampton County, from May 16, 1953, to May 10, 1958. He was discharged by the vote of the borough council. The Court of Common Pleas of Northampton County dismissed Templeton’s appeal from this action. It concluded that, regardless of the merit of the reasons upon which his dismissal was based, the office of policeman and/or chief of police in the borough had never been legally created; that his appointment to the post was, therefore, invalid; and that, as a result, no legal right to continue therein existed. The question of the correctness of this ruling is now before us on appeal. The historical facts of the case disclose that Temple-ton was first suspended by verbal order of the burgess of the borough. The latter subsequently filed a “Written Statement of Charges” against the appellant with the borough council, charging neglect of duty, inefficiency, disobedience and misconduct. The borough council passed a resolution adopting the charges made by the burgess. The charges were denied by appellant. A public hearing followed, at the conclusion of which members of the council voted unanimously for dis missal, in effect upholding the charges instituted by the burgess, but without making any specific findings of fact. Templeton filed his petition for appeal with the lower court. Months passed. Oral argument on the issues at that time raised was then had. At this juncture, and before the court’s adjudication had been entered, certain taxpayers of the borough were permitted to intervene in the action, over the objection of the appellant, and in their petition seeking this right the question of the legality of appellant’s appointment as chief of police was raised for the first time. At the hearing on the petition to intervene, this question was litigated and it was stipulated by the parties that “there is no ordinance of record in the Borough of Wind Gap establishing a Police Department.” The lower court, as hereinbefore related, sustained the action of dismissal' without determining whether or not the charges against the appellant were proven, and based its legal conclusion completely on the finding that Templeton had not been legally appointed in the first instance and, therefore, was not entitled to the protection of the provisions of the police tenure Act of June 15, 1951, P. L. 586, 53 PS §§811-815. The propriety of this ruling is well supported by many prior decisions of this Court, If the appellant upon the date of his dismissal enjoyed a legal right to the office of policeman or to the office of chief of police of the borough involved, he was entitled to the full protection and security of the tenure established by the Act of 1951, supra. Under the provisions of this statute, he could not, if entitled to the office, be removed at the pleasure of the power by which he was appointed. His dismissal or suspension could only be brought about legally by the filing of charges, statutorily specified and enumerated in Section 2 of the Act of 1951, supra. If a public hearing were requested, such would be his legal right and, in order to impose upon Mm the severe penalty of suspension or dismissal, proof of the charges to sustain such action would have had to be clear and convincing: Vega Appeal, 383 Pa. 44, 117 A. 2d 736 (1955). However, to establish his legal right to the position involved he had the burden of proving the legality of his appointment thereto. Upon him rested the responsibility of establishing his title de jure to the position he claimed the legal right to hold. Permanency of tenure, given by the Act of 1951, applies only to those whose appointments are made in compliance with law: Manning v. Millbourne Borough Civil Service Commission, 387 Pa. 176, 127 A. 2d 599 (1956). Unfortunately for the appellant, he failed to meet this requirement. As stated before, his counsel stipulated before the court that the official records of the borough fail to show the existence or passage of any ordinance establishing a police department for the Borough of Wind Gap. Proof that his own personal appointment was effected by any borough legislation was also lacking. This is fatal. The creation of a borough police department or force is a legislative function. Such may come into being only through legislative enactment, viz., passage of an ordinance: Miles v. Borough of Houston, 3 Pa. D. & C. 2d 793 (1955) ; Shady v. Wyoming Borough et al., 78 Pa. D. & C. 584 (1951). The Borough Code of July 10, 1947, P. L. 1621, §1006, as amended by the Act of July 19, 1951, P. L. 1026, 53 PS §46006, provides, “The Legislative powers of boroughs . . . shall be exercised by or be based on an ordinance.” Section 1125 of said Code specifically provides for the manner in which a police department may be created and the method by which police officers may be appointed: “Borough Councils may, subject to-the civil service provisions of this act, if they be in effect at the time, appoint and remove, or suspend, or reduce the manner of practice or exercise of the right, granted in rank, one or more suitable persons, citizens of this Commonwealth, as borough policemen . . . “The Borough may by ordinance establish a police department, consisting of chief, captain, lieutenant, sergeants, or any other classification desired by the council . . .” The word “may” in the above section does not mean, as appellant’s counsel argues, that policemen may be legally appointed in some other manner. In addition, Section 3501 of the Code states that this statute provides a complete and exclusive system for the operation of the government of boroughs. The fact that the appellant was employed as chief of police for five years does not, in itself, prove that he enjoyed title de jure to the position any more than it did in the case of Manning, supra, who served in the capacity of patrolman for three years. Mere proof of employment, without more, does not establish the legality of the appointment. “There can be no de facto officer where there is no corresponding office known to the law, or, as it is sometimes expressed, there can be no officer de facto without an office de jure:” Mc-Quillin, Municipal Corporations, Yol. 3, 3rd Ed., §12.104, pp. 383 and 384. Since from aught that appears of record the position of chief of police in Wind Gap Borough never legally existed, appellant has no standing to challenge his dismissal. In Detoro v. Pittston et al., 344 Pa. 254, 25 A. 2d 299 (1942), this Court said at page 261: “An employment which in its inception violates such an act as this (Civil Service Law) is illegal and against public policy and it is the duty of the administrative officers of the state or its civil subdivisions to discontinue any illegal employment when they note its illegality. The illegality should not go unchallenged. In such case the defense is not waived by the action of the representatives of the municipality.” In Manning, supra, Mr. Justice Chidsey, speaking for the Court said, p. 183: “Since appellee (Manning) was never validly appointed as a patrolman, he is not entitled to the protection of the civil service provisions of The Borough Code.” Alone remaining for discussion is the legal propriety of the lower court’s order allowing appellee-taxpayers to intervene in the action. Appellees principally rely on the Act of May 4, 1927, P. L. 519, art. XXXII, §3205, renumbered art. XXXIV, §3405, and amended by the Act of July 10, 1947, P. L. 1621, 53 PS §48405. Appellant refers us to Pa. R. C. P. 2350, and contends that subsection 17 thereof specifically denies to taxpayer-appellees the right of intervention given to them by the Act of 1927. Unquestionably, the section appellant cites does, to an extent, specifically “suspend” the pertinent section of the 1927 Act. But we are asked to hold that the substantive right of intervention, thus legislatively conferred, was in effect repealed by Rule 2350. We cannot, for several reasons, so conclude. We believe that a reasonable construction of the Act of June 21, 1937, P. L. 1982, as amended, 17 PS §61, which authorized this Court “to prescribe rules of practice and procedure” precludes our holding that this Court was thereby empowered to deny to parties substantive rights created by the General Assembly. This Court was authorized by said Act to suspend “the operation of any act of Assembly relating to practice or procedure (which is) inconsistent with such rule”, but we fail to see how it could earnestly be contended that the Borough Code of 1927, as amended, was an “act relating to practice or procedure.” The substantive right to intervene enjoyed, under certain circumstances, by borough taxpayers could not later be abrogated by rule of court. That being so, we conclude that this Court, in promulgating Rule 2350, did not intend to suspend the right, as contradistinguished from by the Legislature. As stated in Pittsburgh Parking Garages, Inc. v. Urban Redevelopment Authority of Pittsburgh, 370 Pa. 578, 580, 88 A. 2d 780 (1952), “Tbe procedural rules were not intended to change the substantive rights of the parties: Act of June 21, 1937, P. L. 1982, 17 P.S. Sec. 61, as amended.” In this connection, we quote at length from Coppage v. Smith, 381 Pa. 400, 404 and 405, 113 A. 2d 247 (1955) : “ ‘Our modern procedure, as exemplified by the Rules of Civil Procedure, and particularly those governing the joinder of additional defendants, is to the effect that such rules should be interpreted liberally to accomplish their purpose, which is to further simplify and expedite the disposition of matters involving numerous parties with divergent interests.’ In McKay v. Beatty, 348 Pa. 286-287, 35 A. 2d 264, speaking by our present Chief Justice, we said, — ‘Procedural rules are not ends in themselves but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives. It is for this reason that Pa. R. C. P. No. 126 (332 Pa. lxvii) provides : “The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantive rights of the parties” ’. The foregoing was quoted with approval in Fisher v. Hill, 368 Pa. 53, 56-57, 81 A. 2d 860. Indeed, a lower court will not be reversed either for waiving or refusing to waive noncompliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party: see Richter v. Mozenter, 356 Pa. 650, 654, 53 A. 2d 76.” We feel bound by the just-quoted pronouncements by this Court in those cases and consider them to be sound in law and practice and to be re quired by the dictates of common sense. There has been no satisfactory showing of any such abuse of discretion in the instant case. Accordingly, we hold that the order of the lower court allowing the intervention of appellee-taxpayers was proper under the existing circumstances. The question of the timeliness of the intervention is one singularly within the periphery of the trial judge’s discretionary domain: Darlington et al. v. Reilly et al., 363 Pa. 72, 69 A. 2d 84 (1949) ; Commentary, Goodrich-Amram, Civil Practice, §2329-4. We see no abuse in his action in this regard. Order affirmed. Mr. Justice Cohen dissents.

OPINION OF THE COURT ROBERTS, Justice. Appellant Lawrence Klemow was a subscriber to LIFE Magazine, formerly published by appellee Time, Inc. In December 1972 appellee announced that after the December 29, 1972 issue LIFE would no longer be published. On December 11, 1972, appellant instituted this class action in equity seeking an injunction to compel appellee to continue publishing LIFE. The prelimi nary injunction was denied. As finally amended, appellant’s complaint sought damages alleging that Time’s offers to those with unexpired subscriptions to LIFE of other magazines, books or refunds were inadequate. Appellee filed preliminary objections to the amended complaint contending, inter alia, that (1) appellant had an adequate remedy at law; and (2) the action was not properly a class action because “each member of the alleged class is severally entitled to recover money damages and . . . the amount to be recovered and the basis for determining that amount will vary among members of the alleged class.” [2] During the fifteen months which elapsed before the trial court ruled on the preliminary objections the parties were directed to answer questions propounded sua sponte by the trial court, concerning the class, costs, and damages sought to be proved. ****On June 28, 1974, the court filed a “decision” and order dismissing appellant’s action as a class action, and dismissing the individual action without prejudice “since [appellant] has an adequate remedy at law.” The opinion of the trial court, en banc, dismissing the action stated: (1) plaintiff can not recover punitive damages; (2) “plaintiff cannot show that damages for himself and the class will be more than nominal; ” and (3) “to handle this case as a class action here would not be judicially or economically feasible.” We vacate the decree and remand for further proceedings. The order of the trial court sustained the preliminary objection that appéllant had an adequate remedy at law. Rule 1509 of the Pennsylvania Rules of Civil Procedure provides: “(c) The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court.” In Shaffer v. Dooley, 452 Pa. 414, 308 A.2d 597 (1973), the Court held, in a unanimous opinion by Mr. Chief Justice Jones, that Rule 1509(c) requires that the chancellor certify an action to the law side of the court when a preliminary objection that there is an adequate non-statutory remedy at law is sustained. See Trimble Services, Inc. v. Franchise Realty Interstate Corp., 445 Pa. 333, 285 A.2d 113 (1971); Setlock v. Sutila, 444 Pa. 552, 282 A.2d 380 (1971); Holiday Lounge, Inc., v. Shal er Enterprises Corp., 441 Pa. 201, 272 A.2d 175 (1971); Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967). Thus, even though we agree that this is not a proper case for equitable relief, it was error for trial court to dismiss the action instead of transferring the action to the law side of the court for disposition. This appeal is not so easily resolved, however. Appellee concedes that the discontinuance of publication constituted a breach of the subscription contracts. By deciding on the undeveloped record that appellant could establish no more than a claim for nominal damages, the trial court went beyond what it could properly determine on preliminary objections. Appellant alleges that the alternatives offered to subscribers, including pro-rata refunds, were inadequate. Though appellee might establish that its offer is adequate, the amount of damages in a breach of contract action can usually be determined only after discovery, and, if necessary, a trial. Deciding at this juncture that appellant would be entitled to no more than nominal damages deprived appellant of the opportunity to prove his claim by the established procedures. The case should proceed as an action at law for recovery of damages for breach of contract. Prior to the resolution of the damage issue, appellant must be allowed an opportunity to sustain his burden that the case is properly maintainable as a class action. Appellant should be afforded a reasonable opportunity to amend his complaint, and establish, if he can, that the case meets the minimum requirements for maintaining a class action: (1) he is a member of the class; (2) the class consists of persons “so numerous as to make it impracticable to join all as parties;” (3) “he will adequately represent the interests of all class members;” (4) his interests are consonant with all members of the class; (5) there is a common issue shared by all class members which can be justly resolved in a single action; and (6) the relief sought is beneficial to all class members. A party purporting to represent a class who cannot, after a reasonable opportunity, define and limit the class so that the matter will move to trial will be found not to have sustained the burden necessary to proceed as a class. Here it is conceivable that appellant could plead and establish that he can properly represent a class composed of all Pennsylvania residents with similar unexpired LIFE subscriptions who have not settled their claims and have similar damage claims to be resolved. Even if appellant cannot establish that the action is a proper class action, his individual damage action may still go forward. Trial courts are vested with broad discretion in determining definition of the class as based on commonality of issues and the propriety of maintaining the action on behalf of the class. We cannot agree, however, that the trial court may simply pronounce, as it did here that “to handle the case as a class action here would not be judicially or economically feasible.” A cause of action has been stated with a damage claim to be resolved by our established litigation process. Appellant must be afforded an opportunity to proceed at law in an action for damages and to establish, if he can, that he may do so on behalf of a class. Decree vacated. Case remanded for certification to the law side of the court and proceedings consistent with this opinion. Each party pay own costs. JONES, C. J., did not participate in the consideration or decision of this case. . The request for an injunction directing Time, Inc., to continue publication of LIFE was, in effect, an action for specific performance of the subscription contract. We agree with the trial court that this was not a proper case for specific performance. See Payne v. Clark, 409 Pa. 557, 566, 187 A.2d 769, 771 (1963); Ralston v. Ihmsen, 204 Pa. 588, 592, 54 A. 365, 366 (1903). . Pa.R.Civ.P. 1017(b), 1509. . There is no authority to support the trial court’s directing interrogatories to the parties on its own motion. The information sought by the court, necessary for an adjudication of the merits of the action should be established in the record by the parties through discovery and at trial. The trial court is not empowered to conduct its own fact finding investigation. Its actions here were inconsistent with the established role of the trial court in adversary litigation. See American Bar Association Standards of Judicial Administration, Standards Relating to Trial Courts, § 2.-00, and commentary thereto; cf. Commonwealth v. Butler, 448 Pa. 128, 291 A.2d 89 (1972); Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924). . The punitive damage issue was not raised in the preliminary objections and therefore was not, at that point, presented for resolution by the trial court. If the punitive damages issue were raised by preliminary objections it might be treated as a motion to strike. See Hudock v. Donegal Mut. Ins. Co., 438 Pa. 272, 264 A.2d 668 (1970). . We hear this appeal under authority of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(4), 17 P.S. § 211.202(4) (Supp.1975). Appellee has filed a motion to quash the appeal contending that the order of the trial court dismissing the action as a class action is not a final, appealable order. This motion is without merit and is denied. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Lee v. Child Care Services, 461 Pa. 641, 337 A.2d 586 (1975), U. S. appeal dismissed for want of a substantial federal question, 44 L.W. 3263 (Nov. 3,1975). . Appellee did not assert on preliminary objections that no cause of action had been stated. The preliminary objections were directed at the propriety of maintaining the suit as a class action for equitable relief. Thus, the question which the trial court addressed was not raised and should not have been decided. Moreover, it is doubtful whether the legality of damages sought could be raised by preliminary objections in the nature of a demurrer. Goodrich-Amram, § 1017(b)-11; Hudock v. Donegal Mut. Ins. Co., 438 Pa. 272, 277 n. 2, 264 A.2d 668, 671 n. 2: “This rule is a sound one because a plaintiff should not be put out of court completely merely because he alleges the wrong measure of damages.” . In proper circumstances the matter may be adjudicated through a Motion for Judgment on the Pleadings, Pa.R.Civ.P. 1034, or a Motion for Summary Judgment, Pa.R.Civ.P. 1035. . See Buchanan v. Brentwood Federal Savings & Loan Ass’n, 457 Pa. 135, 320 A.2d 117 (1974). . McMonagle v. Allstate Ins. Co., 460 Pa. 159, 331 A.2d 467 (1975); Penn Galvanizing Co. v. Philadelphia, 388 Pa. 370, 130 A. 2d 511 (1957). . Pa.R.Civ.P. 2230. . Id. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968); “To be sure, an essential concomitant of adequate representation is that the party’s attorney be qualified, experienced and generally able to conduct the proposed litigation.” . Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974); Penn Galvanizing Co. v. Philadelphia, 388 Pa. 370, 130 A. 2d 511 (1957). . See McMonagle v. Allstate Ins. Co., supra, noting the “obvious relevance of federal practice under [Fed.R.Civ.P.] 23;” Buchanan v. Brentwood Federal Savings & Loan Ass’n, supra; Korona v. Bensalem Twp., 385 Pa. 283, 122 A.2d 688 (1956) . Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974); Penn Galvanizing Co. v. Philadelphia, 388 Pa. 370, 130 A. 2d 511 (1957). We need not here decide whether there are, in certain cases, additional requirements which one who attempts to bring a class action must meet, e. g., as required under the federal practice, that the class action is superior to other available methods for handling the controversy. See Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668 (9th Cir. 1975); Katz v. Carte Blanche, 496 F.2d 747 (3d Cir. 1974). . Because the jurisdiction of the courts of the Commonwealth is territorially limited, the class may consist only of Pennsylvania residents. The class may also include non-residents who submit themselves to the jurisdiction of the state courts. See Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Pennoyer v. Neff, 95 U.S. 714 (1877); cf. Simpson v. Simpson, 404 Pa. 247, 172 A.2d 168 (1961); McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960). . Appellant’s complaint states that he represents a class of all persons who had unexpired LIFE subscriptions — more than 5 million people. The record indicates however that the class of which he is a member will be substantially smaller. The class is limited by the court’s jurisdiction, note 15 supra. It also appears that there were various subscription agreements not all of which may be sufficiently similar to appellant’s. Furthermore, appellee contends many subscribers have settled their claims which, if true, would preclude recovery of damages on their behalf. . Plaintiff attempts to assert á cause of action for fraud. The successful maintenance of a cause of action for fraud includes, inter alia, a showing that the plaintiff acted in reliance on the defendant’s misrepresentations. Thomas v. Seamans, 451 Pa. 347, 304 A.2d 134 (1973); Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); Edelson v. Bernstein, 382 Pa. 392, 115 A.2d 382 (1955). Because such a showing would normally vary from person to person, this cause of action is not generally appropriate for resolution in a plaintiff-class action. Thus, plaintiff might choose to proceed individually on this claim and his damage claim.

PER CURIAM. This action in quo warranto was commenced on February 24, 1977, invoking the original jurisdiction of this Court. Relator John B. Leedom contends that he was duly elected to the office of district justice of the peace for magisterial district 7-2-01 and that he has been wrongfully denied his public office. The writ of quo warranto is granted: respondent is removed from office and relator is declared entitled to the office to which he was elected. See Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976). NIX, J., dissents. Opinions to follow. OPINION OF THE COURT ROBERTS, Justice. This action in quo warranto was commenced in February 24, 1977, invoking the original jurisdiction of this Court. Relator John B. Leedom contended that he was duly elected to the office of district justice of the peace for magisterial district 7-2-01 and that he had been wrongfully denied his public office. On April 22, 1977, this Court issued an order granting the writ of quo warranto and stating that opinions would follow. I The facts are not disputed. In January 1975, the office of district justice of the peace for district 7-3-01 was held by Edward E. Dougherty. His term of office was to expire on January 5, 1976. By order of this Court, dated January 13, 1975, district 7-3-01 was reclassified and redesignated as district 7-2-01, effective January 5, 1976. On February 18, 1975, the election process for the position of district justice for the newly designated district 7-2-01 was initiated by a letter from the Secretary of the Commonwealth to the Bucks County Board of Elections, notifying the Board that the office was to be filled at the November 5, 1975 municipal election and that each eligible political party was to select its nominee at the May 20,1975 primary election. On February 26, 1975, respondent William Thomas filed nominating petitions for the office of district justice on both the Democratic and Republican primary ballots. On March 6, 1975, relator Leedom and the incumbent district justice, Edward E. Dougherty, also filed cross-nominating petitions. On April 23, 1975, Dougherty died. In the primary election of May 20, 1975, Leedom was nominated as the Republican Party candidate and Thomas was nominated as the Democratic Party candidate. On June 9, 1975, the Governor nominated Thomas to fill the vacancy created by Dougherty’s death. The appointment was for a term ending the first Monday of January 1978. The Sentate confirmed the nomination on June 17, 1975. On June 24, 1975, the Senate passed a resolution to recall for further consideration its communication notifying the Governor of the confirmation. The Governor did not issue a commission to Thomas at this time. By decision of the Bucks County Board of Elections, the office of district justice remained on the ballot in the municipal election. On November 5, 1975, Leedom was elected for a six year term commencing January 5, 1976. The Board of Elections issued a certificate of election to Leedom on November 24, 1975. Nevertheless, on December 16, 1975, the Governor issued a commission to Thomas for the office of district justice expiring on the first Monday of January 1978. Thomas took office on January 5, 1976 pursuant to the commission issued by the Governor. On January 15, 1977, this Court’s decision in Berardocco v. Colden, 469 Pa. 452, 366 A.2d 574 (1976), was published in the Atlantic Reporter advance sheets. After learning of the decision, Leedom requested his commission for the office of district justice for district 7-2-01 from the Secretary of the Commonwealth. He also notified the Bucks County Board of Elections that since the office was filled in the 1975 municipal election, it should not appear on the 1977 ballot. II Under section 13(a) of article V of the Pennsylvania Constitution, judicial offices are filled by election. Section 13(b) provides that judicial vacancies “shall be filled by appointment by the Governor” and the appointee “shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs.” In Berardocco v. Colden, 469 Pa. 452, 459, 366 A.2d 574, 577 (1976), this Court stated that the appointive process of section 13(b) was intended to fill vacancies “only until the office could again be filled by a popularly elected officer” and “was not intended to frustrate the electoral process.” Accordingly, we held that the ten month provision of section 13(b) does not apply when the normal election process for judicial office has commenced through the anticipated expiration of the incumbent’s term, even if the vacancy occurs less than ten months prior to the next municipal election. In that event, the appointment may be only for a term equivalent to what would have been the remainder of the previous term. 469 Pa. at 459, 366 A.2d at 577. This case is controlled by our decision in Berardocco. Here, as in Berardocco, although the vacancy arose less than ten months before the 1975 municipal election, the normal election process had already been “triggered by the anticipated expiration of the incumbent’s term.” 469 Pa. at 457, 366 A.2d at 576. Thus; the “ten month” provision of section 13(b) is inapplicable. Thomas’ term of office as an appointed district justice of the peace ran only to January 5, 1976, the date that the previous incumbent’s term expired. Since Leedora was lawfully elected to the office for a six year term commencing January 5, 1976, he was entitled to assume office on that date. Thomas seeks to distinguish Berardocco. He asserts that he ceased campaigning after he was nominated by the Governor to fill the vacancy created by Dougherty’s death and, therefore, a “normal election process” did not take place. We reject the contention that our decision in Berardocco rested on a finding that the parties had actively campaigned for the disputed office. We stated in Berardocco that the “ten month” provision of Pa.Const. art. V, § 13(b) was designed “to insure that the electoral process would be complete with a regularly conducted primary election, as well as a municipal election.” 469 Pa. at 459, 366 A.2d at 577 (footnote omitted). In this case, both the primary and municipal elections were duly conducted by the Bucks County Board of Elections. Thomas’ personal, strategic decision not to campaign in the municipal election in no way alters the regularity of the election and the applicability of Berardocco. Thomas also raises the defense of laches. This defense bars relief when “the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice.” Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 133, 221 A.2d 123, 126 (1966); accord, Thompson v. Curwensville Water Co., 400 Pa. 380, 162 A.2d 198 (1960); Commonwealth ex rel. Storb v. Schroll, 398 Pa. 354, 157 A.2d 179 (1960). A party asserting laches must demonstrate prejudice resulting from the lapse of time. Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975); Beaver v. Penntech Paper Co., 452 Pa. 542, 307 A.2d 281 (1973); Young v. Hall, 421 Pa. 214, 218 A.2d 781 (1966); Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964); Brodt v. Brown, 404 Pa. 391, 172 A.2d 152 (1961). The question of laches is factual and is determined by examining the circumstances of each case. Siegel v. Engstrom, 427 Pa. 381, 235 A.2d 365 (1967); Wilson v. King of Prussia Enterprises, Inc., supra; Mulholland v. Pittsburgh National Bank, 418 Pa. 96, 209 A.2d 857 (1965). Thomas argues that Leedom is guilty of laches because Leedom did not institute this action until February 1977. Thomas contends that he has been prejudiced by Leedom’s delay in the following ways: (1) he retired from the Pennsylvania State Police prior to the May 1975 primary election in order to run for the office of district justice; (2) he ceased campaigning after the Senate approved his nomination to fill the vacancy; and (3) he has devoted his full time to the responsibilities of his office and has attended courses and done outside reading to improve his skills. We conclude that Thomas has failed to establish that he was prejudiced during a period of inordinate delay. Thomas resigned from the state police on April 2, 1975, before incumbent Dougherty’s death, the 1975 primary election and Thomas’ appointment to office by the Governor. Thus, his resignation preceded the material events which gave rise to this dispute and bears no relation to Leedom’s delay in bringing suit. We also conclude that Thomas’ decision not to campaign in the municipal election cannot make out a defense of laches. Laches is founded on some change in the condition or relations of the parties which occurs during the period the complainant unreasonably failed to act. 2 J. Pomeroy, Equity Jurisprudence § 419d, at 177 (5th ed. 1941); see Kay v. Kay, supra; Wilson v. King of Prussia Enterprises, Inc., supra. It cannot be based on a change of position taking place before the complainant could have and reasonably should have brought suit. Here, it was reasonable for Leedom to wait until after the election to bring an action in quo warranto. Thomas had not yet assumed office. Since the purpose of quo warranto is to try the right of the defendant to presently exercise the office in dispute, Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966), an action at that time would have been premature. Leedom may also have lacked standing to institute an action before he won the municipal election. See generally Lehman v. Tucker, 470 Pa. 362, 368 A.2d 670 (1977). Instead of bringing suit, Leedom actively campaigned in the municipal election. This activity put Thomas on notice that Leedom believed himself entitled to the office if he won the election. Thus, during the period before Thomas took office, Leedom asserted his rights in a reasonable manner; Thomas’ failure to campaign is not attributable to any lack of diligence on Leedom’s part. Finally, the time and effort expended by Thomas in connection with the exercise of his duties of office do not establish that he was prejudiced by the delay. While these efforts are commendable, we cannot say that his attempt to conscientiously carry out his responsibilities constitutes prejudice sufficient to sustain the defense of laches. The time and effort Thomas expended amount to no more than performance of his duties, for which he was fully remunerated and do not constitute a change in position. Nothing else in the record suggests that he suffered a prejudicial change in position during the period he held office. For the reasons discussed above, Leedom was entitled to the writ of quo warranto issued by this Court on April 22, 1977. NIX, J., filed a dissenting opinion. . We hear this case pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 201(3), 17 P. S. § 211.201(3) (Supp.1976). See Berardocco v. Colden, 469 Pa. 452-454, n. 1, 366 A.2d 574-75 n. 1 (1976). . Our order stated: “The writ of quo warranto is granted: respondent is removed from office and relator is declared entitled to the office to which he was elected.” Mr. Justice Nix dissented from the order granting the writ. . Pa.Const. art. V, § 13(b) provides: “A vacancy in the office of justice, judge or justice of the peace shall be filled by appointment by the Governor. If the vacancy occurs during the session of the Senate, the appointment shall be with the advice and consent of two-thirds of the members elected to the Senate, except in the case of justices of the peace which shall be by a majority. If the vacancy occurs during sine die adjournment of the Senate such appointment shall not require advice and consent of the Senate. The person so appointed shall serve for an initial term ending on the first Monday of January following the next municipal election more than ten months after the vacancy occurs.’’ (emphasis added). • On May 20, 1975, certain amendments to the Pennsylvania Constitution regarding judicial appointments were adopted. However, the amendments are not relevant to this case. . Section 13(a) provides: “Justices, judges and justices of the peace shall be elected at the municipal election next preceding the commencement of their respective terms of office by the electors of the Commonwealth or the respective districts in which they are to serve.” . Thomas makes no claim that there has been any prejudice to the citizens who reside in the magisterial district as a result of Leedom’s delay in bringing this action. We do not believe that any problems which may arise from Thomas’ leaving office— which should be no more than the problems which normally arise when a district justice leaves office — outweigh the public policy in favor of having the citizens served by a constitutionally elected district justice. . We note that in Berardocco, where Colden assumed office before the 1975 municipal election and Berardocco immediately instituted an action in quo warranto, we dismissed his complaint at that time without prejudice on the ground it was premature. 469 Pa. at 456, 366 A.2d at 575. . Similarly, we reject Thomas’ contention that he has been prejudiced because he expended personal funds in pursuit of office. These expenses were incurred before his appointment by the Governor and certainly must have been incurred before the municipal election. Thus, they did not result from unreasonable delay by Leedom. . Since we find no prejudice arose from Leedom’s delay in bringing suit after Thomas took office, it is unnecessary to determine whether Leedom failed to assert his rights with due diligence. . Thomas’ reliance on Commonwealth ex rel. Storb v. Schroll, 398 Pa. 354, 157 A.2d 179 (1960), is misplaced. In Schroll, the trial court sustained the defense of laches raised in a quo warranto proceeding against an individual who had been holding the unsalaried position of School director for over two years prior to the suit. On the basis of the pleadings alone, the trial court found prejudice because defendant Schroll “must have” incurred some expenses in office and had contributed his “time, talents and energy” to the job. Id. at 359, 157 A.2d at 181. This Court reversed and remanded, reasoning that the pleadings alone were insufficient to establish the requisite prejudice. We stated the prejudice “should be a matter of proof, not conjecture or surmise.” Id. at 360, 157 A.2d at 182. The purpose of the remand was to ascertain the extent of Schroll’s efforts in this unsalaried position, whether he incurred any expenses or otherwise changed his position. Schroll did not establish that the exercise of official duties of office, by itself, is sufficient to establish prejudice and we decline to do so today. . In this action, Leedom sought only a writ of quo warranto. At oral argument before this Court he stated that he would not seek back pay. . Thomas asserts he has been prejudiced because: (1) if he is ousted from office he cannot run for district justice until 1981 and (2) since taking office, he has not sought outside employment. We disagree. Thomas’ inability to challenge Leedom until 1981 derives from Leedom’s lawful term of office, not the delay in bringing suit. Even if this action had been brought earlier, Thomas could not challenge Leedom until 1981. Nor has Thomas demonstrated that his employment opportunities diminished during the period he served as district justice. Thus, he is in no worse a position upon leaving office on the date of our mandate than he would have been had Leedom brought this action earlier.

OPINION MANDERINO, Justice. The Bureau of Traffic Safety suspended, for a one year period, the license to inspect motor vehicles of appellant John Kobaly. The suspension was based on a violation of two sections of the Motor Vehicle Code, section 819(f) and section 819(h). Appellant was found to have violated section 819(f) in that he illegally furnished inspection stickers without making an inspection and issued an inspectipn sticker after a faulty inspection. The violation under section 819(h) was that the appellant had engaged in fraudulent record keeping. Appellant appealed to the Court of Common Pleas of Westmoreland County wherein he was entitled to a trial de novo. After an evidentiary hearing, the Court of Common Pleas made findings of facts different than those made by the Bureau. Based on its findings the court concluded that the appellant was guilty of violating section 819(f) but was not guilty of violating section 819(h). The court reduced the period of suspension from one year to six months. The Bureau did not file an appeal from the order of the Court of Common Pleas. The appellant appealed to the Commonwealth Court. That court did not disturb any of the findings of fact or conclusions of law of the trial court but held that the trial court had no authority to reduce petitioner’s suspension from one year to six months. It, therefore, reinstated the one year suspension imposed by the Bureau. This Court granted appellant’s petition for allowance of appeal. Appellant first contends that the Commonwealth Court had no authority to increase the six month suspension imposed by the trial court. We agree. The Bureau did not file an appeal in the Commonwealth Court. The modification of the trial court’s order in favor of the Bureau was, therefore, improper. For a discussion of the permissable reach of an appellate court in the absence of a cross appeal, see Swarb v. Lennox, 405 U.S. 191, 201, 92 S.Ct. 767, 772, 31 L.Ed.2d 138, 147 (1972). Appellant next contends that the trial court, after making findings of fact and conclusions of law which differed from those of the Bureau was required by the Motor Vehicle Code to remand the matter to the Bureau to redetermine the period of suspension. There is nothing, however, in the Motor Vehicle Code which requires a remand after a trial de novo in which the trial court makes findings of facts and conclusions of law different from those of the Bureau. Although we have not previously considered, in the case of licenses to inspect motor vehicles, whether the trial court may alter the penalty if, in the trial de novo, it makes findings of facts and conclusions of law different from that of the Bureau, we have held in other administrative areas that such authority does exist. In Re Carver House, Inc., 454 Pa. 38, 310 A.2d 81 (1973). See also Barone’s, Inc. v. Pa. L.C.B., 10 Pa.Cmwlth. 563, 312 A.2d 74 (1973). Appellant cites cases involving other types of licenses contending that they support his contention that a trial court cannot modify the penalty imposed by the Bureau. Commonwealth v. Moogerman, 385 Pa. 265, 122 A.2d 804 (1956); Commonwealth v. Garman, 361 Pa. 643, 66 A.2d 271 (1949). In all of the cases cited, however, the trial court attempted to modify the penalty even though its findings of facts and conclusions of law were identical to those of the Bureau. Under such circumstances it was held that the trial court may not alter the penalty. Those cases, however, are not controlling where after the trial de novo different findings of facts and conclusions of law are made. In re Carver House, Inc., supra, Barone’s, Inc. v. Pa. L.C.B., supra. The trial court, in this case, had the authority to impose the six month suspension. The order of the Commonwealth Court reversing the trial court’s six month suspension and reinstating the Bureau’s one year suspension is reversed.

Mr. Justice Sterrett delivered the opinion of court, May 3d 1880. The main contention of the plaintiff in error, to which several of the assignments relate, is that the action should have been trespass vi et armis and not case. A brief consideration of the facts upon which the action was grounded, and the nature of the damages for which compensation was claimed, will enable us to determine this question. The declaration, after setting out, by way of inducement, the purchase by the plaintiff of two tickets of admission to defendant’s theatre, entitling the holders thereof to occupy two designated seats therein, and witness the performances and exhibitions there given on the evening of April 16th 1874, averred in substance that he in company with his wife presented the tickets to the proper person to receive the same and admit them to said seats; that his demand for admission was refused, and both he and his wife were so rudely ejected from the theatre that she was greatly injured, and her health was for a long time much impaired ; whereby the plaintiff was deprived of her assistance in his domestic affairs, and was obliged to expend large sums of money in endeavoring to have her injuries cured and health restored, and thereby sustained damage, &c. The- loss of his wife’s services in his domestic affairs, by reason of the injuries she received, and the consequent outlay necessarily incurred in hiring others to do what she w’ould have done, and in procuring medical attendance, &e., evidently constitute the gravamen or gist of his complaint; and it was to these matters that the testimony was mainly directed. It was not claimed that the plaintiff in error personally inflicted the injuries from which the alleged damages resulted. On the contrary the testimony tended to prove that they were inflicted by her agents in the course of their employment in the theatre, and the court instructed the jury that if they so found, the plaintiff in error was liable in so far as her agents “ had occasioned loss and damage to the plaintiff; but, as the action was by the husband alone, only such loss as he had experienced could' enter into the verdict.” The facts then as claimed by the plaintiff below, and supported by his testimony were found by the jury. Upon the facts so found we think there can be no doubt that the form of action was properly case; because the injuries to Mrs. Peer, from which the damages to her husband resulted, were not inflicted personally by the plaintiff in error, or by her command or with her assent, but by her agents in the course of their employment. The criterion is not whether the master has given the authority to do the particular act, but whether the servant has done it in the ordinary course of his employment. In 1 Chitty Pleading 149, it is said : “ Eor some torts which may prima facie appear to be forcible and immediate * * * an action on the case is the proper remedy. So, though a master may be liable under the circumstances to compensate an immediate injury committed by his servant, in the course of his employment, with force, yet the action against the master must in general be case, though against the servant it might for the same act be trespass.” To maintain trespass vi et arm-is against the employer it must appear that the particular injury or act of trespass was done by his command or with his assent: The Railroad Co v. Wilt, 4 Whart. 142 ; Yerger v. Warren, 7 Casey 319 ; The Allegheny Valley Railroad Co. v. McLain, 10 Norris 442. The action was properly in case for the further reason that the damages claimed by the plaintiff were consequential. In treating of actions of trespass by husband and wife, for battery of the wife, Blackstono says, if the beating be so severe that the husband is thereby “ deprived for any time of the company and assistance of his wife, the law gives him a separate remedy, by action of trespass- in the nature of an action upon the ease for this ill usage, per quod consortium amisit, in which he may recover a satisfaction in damages: 3 Bl. Com. 140. Mr. Stephen, in his treatise on the principles of pleadings, says : “ The action of trespass lies where a party claims damages for a trespass committed against him. A trespass is an injury committed with violence, either actual or implied; and the law will imply violence, though none is actually used, where the injury is of a direct and immediate kind, and committed on the person or tangible and corporeal property of the plaintiff.” It follows from this that where damages are claimed by the husband for loss of his wife’s services, and for medical attendance resulting from a personal injury to her, that case is the proper form of action. The right to the services is an intangible right, and therefore not the subject of immediate forcible injury, such as may he inflicted on tangible or corporeal property. The principle is also recognised in Ream v. Rank, 3 S. & R. 214, which was an action on the case for debauching the plaintiff’s daughter, by which he lost her services and was put to great expense, &c. After reviewing the “authorities, it is there said that “ the injury complained of does not follow directly from the act of the defendant, but consequentially, and that is the criterion between trespass and case. The injury is the loss of services occasioned by consequences flowing from the act itself.” While it is conceded by the court that trespass has often been resorted to in similar cases, it is said, in sustaining the action in that case, that “ on principle the .action of case would seem to he the more appropriate remedy.” This case was followed by Wilt v. Vickers, 8 Watts 227, in which the distinction between trespass and case was elaborately considered, and the principle, contended for by the learned counsel for the defendant in error, recognised. There was no error in holding that the action was in proper form, or m submitting the case to the jury, as was done. If there had been an improper joinder of distinct causes of action in the declaration, this should have been taken advantage of by demurrer; but there was no such misjoinder. The tickets were set out merely by way of inducement to show that the plaintiff and his wife had a right to be where they were at the time the injuries to her person were inflicted, and that as patrons of defendant’s theatre they were entitled to protection from injury at the hands of her employees. Whether the tickets conferred merely a license or something more is immaterial. If they gave only a license to enter the theatre and remain there during the performance, it is very clear that the agents of the defendant had no right to revoke it as they did, and summarily eject Peer and his wife from the building in such manner as to injure her. We incline to the opinion, however, that as purchasers and holders of tickets for particular seats they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening. It is unnecessary to notice specially the remaining assignments of error, further than to say that they are not .sustained. The verdict was fully justified by the evidence, and the judgment thereon should not be disturbed. Judgment affirmed.

Mr. Justice Mercur delivered tho opinion of the court, June 13th 1881. The mortgage on which this scire facias issued shows,tho defendant to he “ a corporation organized under and pursuant to the laws of the state of New York.” It is therefore a foreign corporation holding lands in Pennsylvania covered by the mortgage. The third section of the Act of 21st March 1849, inter alia, declares that in the commencement of any suit against any foreign corporation, the process may be served upon any officer, agent, or engineer of such corporation, either personally or by copy. Tho act is silent as to the character or grade of the agent. In tho present case the sheriff returned, endorsed on the writ, that ho had “made known by giving J. E. Long, agent for the Empire Slate Company, the within named defendant, notice of the contents, and a true and attested copy of the within writ, personally, on November 16th 1880.” The statute authorizes a service on the agout either personally or by copy. This return shows it was served on the agent personally and by copy. Why then is not the service good ? It is contended that tho Act of 1849 is superseded by sect. 5, art. XVI., of the Constitution of 1874, and the Act of 22d April of same year. The Constitution does declare that no foreign corporation shall do any business in this state without having one or moro known places of business, and authorized agent or agents in the same upon whom process may be served. After substantially reenacting this section, the Act of 22d April further requires such corporation, before it shall do any business herein, to file in the office of the secretary of the Commonwealth a statement showing the title and object of the corporation, the location of its office or offices, and the name or names of its authorized agent or agents therein, and imposes a penalty on any person, agent, officer, or employé of such corporation who shall transact business herein for such corporation without the provisions of the act having been complied with. Undoubtedly it is illegal for a foreign corporation to transact business in this state without having complied with the requirements of the Constitution and the Act of Assembly; yet when it has actually done so, and received a substantial benefit from the transaction, whether it can retain the whole fruits thereof, and avoid its liability resulting therefrom, presents a different question. Hence, although a corporation cannot hold lands in Pennsylvania without a license by law, yet the Commonwealth alone can object to its want of capacity: Leazure v. Hillegas, 7 S. & R. 313; Goundie v. Northampton Water Co., 7 Barr 233. So where a corporation executed a mortgage on lands in which it had a qualified interest only, and its title was inalienable, it was held to be no defence to a scire facias on the mortgage. The question of title would arise with the purchaser: St. John’s Church v. Steinmetz, 6 Harris 273. Such title as the corporation had was pledged. When a foreign corporation transacting business in this state has failed to establish an office, and report the name' of its agent to the secretary of the Commonwealth, but has some person residing therein who acts as its agent, it must be presumed that the corporation has substituted such agent as one on whom service is authorized to be made to the extent at least of its unfinished business in this state. It is further argued that the service in the present case is bad under the authority of Liblong v. Kansas Fire Ins. Co., 1 Norris 413. The facts of that case are very different from the facts in this. There the corporation had appointed an agent according to the Act of Assembly. Here none such was appointed. There having complied with the statute and furnished a general agent on whom service could be made, it was held that service was not good on one whose authority was limited to effecting insurances and receiving premiums therefor, under the directions of the agent designated by the statute. The strength of that case rested on the fact that inasmuch as the corporation had provided an agent under the Act of Assembly, on whom service could be made, it ought not to be made on an agent who was not so designated. In this case the company had not appointed an agent under the statute. It may be conceded that a return which omits to set forth the character of the agent served, is not conclusive that he possesses the necessary qualifications; yet where the act authorizes the service on an agent of the corporation without imposing any further qualifications, a return of service, in the words of the act, is prima facie evidence of a good service. Hence in this case the service on Long was presumptively good. The evidence taken on the rule to show cause why the return of service should not be set aside, did not rebut that presumption. The business of the company was the manufacturing of slate in the borough of Bangor. The quarry was let to one who was to manufacture the slate and give the company a royalty payable in slate. It is not shown that Long was appointed agent by any resolution of the company, yet he acted as such for several years. He testified that the president of the company requested him to look after the shipment of slate, and the royalty, and things generally around the quarry; that he did so ; that he shipped and sold slate for the company ; let its house and barn ; paid taxes; gave receipts in its name as agent; sent statements to the company at different times, and accounted to it for money he received; when the writ was served on him he supposed he was the agent of the company ; continued to so act after the service, and has no notice that his authority has ended. Although no slate was manufactured during the preceding year, yet he continued to receive rents for the property every month. Thus it appears in fact he acted as an agent of the company. His place of business was about one-fourth of a mile from the quarry, and appears to have been the only agent of the company residing within this state. Under all the facts proved wc think he was shown to be such an agent as to make the service on him valid. The learned judge, therefore, erred in setting aside the return thereof, and in making the rule absolute. Judgment reversed, rule discharged, return of service reinstated, and a procedendo awarded.

Per Curiam, This is an unemployment compensation case in which the bureau, the referee, and the Unemployment Compensation Board of Review disallowed compensation. The claimant has appealed from a decision of the board. It was claimant’s contention that she was discharged; the position of the employer was that she voluntarily quit work without good cause. This factual issue has been resolved against claimant. The board found that claimant had not been discharged, and that she did not use due diligence to maintain her employment relationship. The board determined that claimant left her employment voluntarily without good cause, and that she was ineligible for benefits. See section 402 (b) of the Unemployment Compensation Law of December 5, 1936, P. L. (1937) 2897, § 402 (b), as last amended by the Act of June 30, 1947, P. L. 1186, § 2, 43 PS § 802 (b). The question presented on this appeal, where the decision of the board is against the party having the burden of proof, is whether the board’s findings of fact are consistent with each other and with its conclusions of law and its order, and can be sustained without a capricious disregard of the competent evidence. Lavely Unemployment Compensation Case, 163 Pa. Superior Ct. 66, 67, 60 A. 2d 352. Claimant had been employed off and on by Bayuk Cigars, Inc., over a period of twenty years. The last day on which she worked for that employer was March 26, 1948, which was Good Friday. Ón Monday, March 29th, claimant did not return to work because her four-year-old daughter was ill and required her attention. She did not at that time notify her employer because she assumed that on Easter Monday most of the employees would be absent. On the following day, Tuesday, March 30th, claimant telephoned her foreman and reported to him that her child was sick. She said that she would call again when the child was better. Claimant gave two versions of the foreman’s reply. Before the referee she testified that he told her that it would be unnecessary for her to call again. Before the board she stated that he told her not to bother, that she was “done.” The foreman testified that he told claimant that if her child was sick he would not expect her to report for work. On Thursday, April 1st, the child’s condition improved, and the next day, Friday, April 2d, claimant took the child with her to the place of employment to collect her pay. She did not intend to work that day, but she testified that she intended to report the following Monday, April 5th. The foreman was busy at the time and he was unable to talk to her. Claimant testified that she thereupon assumed she had been discharged. She further testified that on Monday, April 5th, she telephoned the foreman and told him that she was going to the compensation office, and that he replied “take that up with the office.” The foreman testified that when claimant told him she was going to take the matter up with the compensation authorities, he told her to get in touch with the personnel office. This the claimant did not do. The foreman further testified that he had no intention of discharging the claimant, that she had not been discharged, and that her assigned work was available. We have said in cases of this type that the credibility of the witnesses, the weight of their testimony, and the reasonable inferences to be drawn therefrom are for the board; and that the duty of this Court is performed by studying the testimony in the light most favorable to the party in whose favor the board has found, giving that party the benefit of every inference which can be logically and reasonably drawn from it. Stillman Unemployment Compensation Case, 161 Pa. Superior Ct. 569, 575, 56 A. 2d 380. In the present case, claimant seeks to excuse her failure to go to her employer’s per sonnel office by stating that she misunderstood the meaning of the word “office” as used by the foreman. As the board’s findings are fully sustained and warranted by substantial and competent evidence, its decision must be affirmed. Moreover, it appears from the record that claimant did not go to any office until April 21st, two and one-half weeks after the conversation in question, the date- on which she applied for unemployment compensation. It can be said that claimant’s conduct was not consistent with the good faith and diligence necessary to support a claim for unemployment compensation. Brilhart Unemployment Compensation Case, 159 Pa. Superior Ct. 567, 569, 49 A. 2d 260. Decision is affirmed.

Opinion by Watkins, J., This appeal is from an order of the Court of Common Pleas of Montgomery County which granted a summary judgment in favor of the appellee, Louis G. Pavoni and Marie R. Pavoni, and against the appellant, Gertrude Prince. On January 15, 1970, the appellant, Gertrude Prince, was walking on the sidewalk owned and under the control of appellees, when she fell and suffered a fractured hip. A complaint alleged that she suddenly and without warning slipped and fell to the ground by reason of coming into contact with certain hills and ridges of snow and ice. In answer to appellee’s written interrogatories, appellant answered as follows: “2. Plaintiff was walking in a northerly direction on the sidewalk of 112 Grayling Avenue, Narberth, Pennsylvania, exercising due care, when suddenly and without warning she slipped and was thrown to the ground by reason of coming into contact with certain hills and ridges of snow and ice on said sidewalk. . . . “29. A very heavy accumulation of snow occurred approximately one week before the incident. Fresh snow fell in considerable amounts on January 11, 1970 and January 12, 1970, two days before the plaintiff was injured, and covered the snow and ice which had accumulated on the defendants’ premises. “30. Plaintiff crossed Grayling Avenue near premises in question and reached sidewalk and turned right. Plaintiff fell while walking on sidewalk adjacent to the premises in question. Sidewalk was covered with hills and ridges of ice all of which was hidden by a blanket of snow. . . . “34. The hills and ridges with which plaintiff came into contact were as much as three to four inches high and four to six inches wide.” Later the appellant described the condition while being orally deposed as follows: “Q. Well, did it look to you as if it was snow that had fallen within 12 hours? A. I don’t know, but it went into my feet and my hands. Q. Do you recall whether there were any other footprints on the snow on the sidewalk where you fell? A. No, I do not. Q. Just a couple of final questions. In that sidewalk area where you fell, I’m now referring to the condition of the ice and snow, did you see any what we would call hills and ridges in that area of snow or ice right on the sidewalk where you slipped? A. Yes, there were some. Q. Can you describe what you mean by that? A. Well, you just described them yourself, some little pieces underneath the snow.” A motion for summary judgment was filed by appel-lees and after oral argument before the court below, the motion was granted under Pennsylvania Rules of Civil Procedure 1035. Rule 1035(a) reads as follows: “(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, if any.” It is well settled and beyond reasonable dispute that such a severe dispository procedure should not be granted except in the “clearest” of cases where there is not the least doubt as to the absence of a triable issue of material fact. Mallesky v. Stevens, 427 Pa. 352, 235 A. 2d 154 (1967); Kotwasinski v. Rasner, 436 Pa. 32, 258 A. 2d 865 (1969); Toth v. Philadelphia, 213 Pa. Superior Ct. 282, 247 A. 2d 629 (1968); McFadden v. American Oil Co., 215 Pa. Superior Ct. 44, 257 A. 2d 283 (1969). The burden of proving the absence of any genuine issue of fact is on the moving party and all doubt in reference thereto must be resolved against that moving party. Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A. 2d 841 (1968). The burden of the nonmoving party where summary judgment is requested is not the same as the burden during a trial of the issues; it need only be shown that there is a genuine issue as to any material fact. All averments of appellant are uncontradicted, though not all set forth in the classic language of the expert they do present a genuine issue of a material fact which should only be determined by a trial. The order is reversed and the summary judgment is vacated.

Mr. Justice Mercur delivered the opinion of the court, This was an action by the defendant in error to recover damages for injuries which he sustained by falling into a coal-hole of the plaintiffs in error. They were sugar refiners, occupying buildings on Swanson street, in the city of Philadelphia. They purchased two large iron coolers, to use in their business. The coolers were brought by rail to within about one hundred feet of their works. They then employed John Connor, a rigger, to take thé coolers from the cars and place them in their building. He was to be paid four dollars per day for his own services, and for each of his three assistant riggers. On each off these three men he made a profit of fifty cents per day. He was to furnish the ropes, hoisting apparatus, and all the necessary machinery incident to his occupation. Yet for the use of these he appears to have received an additional sum. The distance to move the coolers being so short, he moved them with skids and rollers, over the sidewalk. While so moving them he uncovered the coal-hole, and left it open, by reason of which the defendant was injured. The question presented is, whether the plaintiffs in error are liable for the injury thus sustained. As one general principle pervades all the assignments, they will be considered together. The learned judge thought it unimportant whether Connor was merely the servant or agent of the plaintiffs, or whether his employment was an independent one; that if he used the hole by either the express or implied permission of his employers, they were liable; or if he used it without their permission, and as a trespasser, and left it open “for any time,” after so using it, they were liable. In this we think there was error. If Connor was their mere agent or servant, they would be liable for his negligent manner of performing the work. Yet, if his employment was an independent one, they are not so liable. This distinction has been rocognised in numerons cases. Among others may be cited Painter v. The Mayor, &c., of Pittsburgh, 10 Wright 213; Hunt v. Pennsylvania Railroad Co., 1 P. F. Smith 475; Allen v. Willard, 7 Id. 374. It is well settled in England and in this country, that persons not personally interfering or giving directions respecting the manner of the work, but contracting with a third person to do it, are not responsible for a wrongful or negligent act in the performance of the contract, if the act agreed to be done is legal: Gray & Wife v. Hubble & Pullen, Law Jour. Rep., vol. 32, part 8, N. S.; Hilliard v. Richardson, 3 Gray 349; Blake v. Ferris, 1 Selden 48; Painter v. The Mayor, &c., supra. The fact that the contractor is paid by the day does not necessarily destroy the independent character of an employment: Forsyth v. Hooper, 11 Allen 419; Corbin v. America Mills, 27 Conn. 274. If one renders service, in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, it is an independent employment: Shearman & Redfield on Neg., sec. 74; Pack v. The Mayor, &c., of New York, 4 Selden 432; Barry v. The City of St. Louis, 17 Mo. 121. In the present case the evidence was most ample to submit to the jury to find that Connor's employment was an independent one. It does not appear that the plaintiffs in error reserved any right to advise or direct as to the manner in which the coolers should be moved, nor that they assumed or exercised any such authority during the progress of the work. It is not pretended that the moving was an unlawful work. As to Connor it was a distinct employment in the line of his occupation. His employers stipulated for the result only. He alone superintended and directed the manner in which his assistant riggers should work. He had the exclusive control and direction of the plaintiffs’ men, who assisted him. He testifies that he did the job according to his own' views. Under his directions the coal-hole was opened. It is not shown that the plaintiffs in erroi’, or any one acting under their directions, were present, or had knowledge that it was opened. It is not claimed to have been opened by their express authority. How could their permission be implied ? We see no necessary connection between the work to be done and the use of this coal-hole in performing it. If the jury should think there was no reasonable presumption that Connor would, use the hole in such a manner as to uncover it, the plaintiffs in error were guilty of no negligence in not stationing a man there to prevent its being opened. The coal-hole appears to have been in all respects constructed and protected according to the city ordinance. Its cover was of solid cast-iron, weighing about sixty pounds. At the bottom it was securely fastened. Certain it is that the coal-hole was not made nor maintained for any such use as it was subjected to by Con-nor. If, then, it should be found that his employment was an independent one, and that he had no implied permission to use it in the manner in which he did use it, or if Connor was a trespasser while so using it, the plaintiff would not be liable for an injury sustained by the defendant, on the instant that Connor ceased to use it. While it is true, as the learned judge said, “the instant that he ceased to use it, its control reverted to the” plaintiffs in error; yet it does not follow “from that instant they were bound to protect it.” This is imposing too harsh terms on them. If they had no expectation that the hole would be uncovered or thus used, and no knowledge that it was, they should not be held liable until such reasonable time had elapsed, under all the circumstances, that a careful and prudent man ought to have discovered its dangerous condition. If, after such reasonable time had elapsed, and they failed to make the hole secure, they cannot be relieved from the consequences of their own negligence, by showing the previous trespass of Connor. It then follows that the assignments, except the last, are substantially sustained. Judgment reversed and a venire facias de novo awarded.

The opinion of the Court was delivered by Kennedy, J. To prevent misapprehension on the part of the jury it is highly necessary that the court, in charging them on any point of law at the instance of either party, should be careful, where the facts out of which the question or point arises, are controverted by the parties, not to direct the jury on the point of law as if the facts were conceded to be as assumed or claimed by the party at whose request the jury are so charged; because it must be obvious that they may be imposed on or misled in regard to their duty, which is, to ascertain first, and find how the facts are. They may suppose that they are to take from the court not only the law, but the facts too as they have been assumed for the purpose of laying down the law to them. In order, however, to avoid any such mistake or misapprehension taking place with the jury, the court ought, in charging them, to refer distinctly to the controversy between the parties in respect to the facts, and to tell the jury that if they should find the facts to be as the one party contends they are, then the law is so and so; but if they should find the facts to be as the other party claims they are, then the law is different; and to state to them how it is, as they shall find the facts to be in one way or the other. It is possible that in the present case the president judge may have made such observations to the jury in regard to the contest between the parties, about their finding the facts, as was contended for by the one party or the other, to which his charge as committed to writing has a reference, so as to have given a different view of the matter to the jury from what there is great reason to apprehend they must have received, if nothing more were said than what is contained in the written charge. If such further remarks were made, in connexion with what has been reduced to writing, so as to have presented to the jury an intelligible and correct view and application of the law to this part of the case between the parties, as they should happen to find the facts to be in the one way or the other, as claimed by either party; it is to be regretted that they were not also committed to writing and sent up as part of the charge. Be this, however, as it may, inasmuch as it does not appear to have been so, we can not presume it was, and must take the charge as it has been given in writing. It is easy to perceive from the case, that there must have been a contest, on the trial of the cause, between the parties, as to the facts to which the charge is applicable: the plaintiff contending that tbe mortgage from Thomas Overton to George Fox and others, although bearing a date on its face posterior to the date mentioned on the face of the deed of conveyance from Thomas Overton to Benjamin Clark, was in reality executed and delivered before the execution and delivery of the latter; while the defendant Clark contended that each was executed and delivered on their respective dates. In this latter state of things the charge of the court would have been correct; but if the facts of the case were as the plaintiff contended, then the charge was clearly erroneous. The court tell the jury, “ if they believe that Clark, since his purchase of the land of Overton, and taking a deed which was recorded in 1810, has been in the possession of the land from that time to the present, he would be a terre tenant and entitled to notice of the scire facias proceedings; and his not being made a party in that cause, renders the judgment inoperative as regards his rights Now, although Clark had been in the possession of the land from the time he actually got his deed from Overton, and was properly and technically terre-tenant thereof, yet if the mortgage from Overton to Fox and others, which embraced the same with other land, was actually executed and delivered by Overton to the mortgagees before Clark’s deed was delivered to him, it would most unquestionably operate on his right to the land, and bind it as effectually as if it had continued to be the property of Overton, the mortgagor. The court, as I .conceive, ought first to have submitted to the jury their right to ascertain and to find how these facts were; and only in case they found the mortgage to have been delivered and executed after the execution and delivery of the deed to Clark, was it, that his right to the land could not be affected by the mortgage and'the proceeding by scire facias upon it; but if they found the facts otherwise, then the mortgage bound the land, and the right of Clark to it was affected by it and the proceeding thereon by scire facias, whether he was terre tenant of it or not, and although he had had the possession of it from the time of his purchase without any notice of the scire facias, unless he could show that the mortgage had been paid or released. But I must further observe, that it appears to me at least doubtful, whether the court by their charge did not intend to instruct the jury that if they believed that Clark had lived upon the land from the time of his purchase and getting his deed for it of Overton, no matter when that was, he thereby became terre tenant of the land, and his right to it therefore could not be affected by the judgment and sale upon the mortgage, as no notice of the writ of scire facias sued out was served upon him. If this be the meaning of the charge, it is clearly erroneous ; for it is not necessary in this state to give notice to the terre tenant of the mortgaged premises of the suing out of the writ of scire facias, or to make him a party to the proceeding in any way, in order to make a good and valid sale of the land to satisfy the debt or money due upon the mortgage. Such notice may be given, and I think it commendable to do so, and in some instances it has been given; still I believe it has been, more frequently omitted, at least in some parts of the state, and has become a practice too long settled to be overturned by a judicial decision. The only difference that a want of notice to the terre tenant makes is, that he will be permitted to make any available defence against the purchaser, of the land at sheriff’s sale, that he might have set up on the trial of the scire facias in case it had been served upon him; see Nace v. Hollenback, 1 Serg. & Rawle 548; but if it has been served upon him he can make no such defence against the sheriff’s vendee. Ibid. 540. Blythe v. M’Clintock, 7 Serg. & Rawle 341. But the circumstance of his having become a terre tenant of the land, after the execution of a mortgage, which was valid in its original concoction, and has been duly recorded, will form no defence whatever, either upon the trial of the scire facias, or that of the ejectment brought against him by the sheriff’s vendee. Nothing short of payment or a release of the mortgage can avail in such a case. Believing that the charge of the court below was calculated to mislead the jury as to the law of the case, I therefore think that their judgment ought to be reversed. Judgment reversed, and a venire facias denovo awarded.

The opinion of the Court was delivered by Sergeant, J. In replevin no set-off is allowable, either under the English statutes, or our own more ancient act of assembly. Replevin is in form an action ex delicto, and seeks damages for unlawfully seizing and carrying away personal property. ( The defendant cannot avail himself of a set-off, because the demand is uncertain in its nature, and it is no justification for a tortious act, that the plaintiff’ is indebted to the defendant.' On the other hand the plaintiff is subject to the same restriction, because he is not within the purview of the defalcation act, and the landlord’s indebtedness to his tenant does not take away the common law right to distrain,, or render the distress tortious. These principles, however, do not prevent the tenant from availing himself of any thing in bar to the avowry for rent in arrear, which goes to show that the rent claimed by the avowant, or any portion of it, is not due: for that is the ground of the distress. And if in the lease certain things are stipulated by the landlord to be done on bis part, which form the consideration for the rent to be paid by the tenant, and the landlord neglects or refuses to fulfil his covenant, such breach of contract may take away his right to receive the rent, or so much of it as is equivalent to the loss sustained by the tenant: for covenants, as is said by Mr. Justice Rogers, in M’Crelish v. Churchman, 4 Rawle 35, are to be construed as dependent or independent according to the intention of the parties, and the good sense of the case; and technical words must give way to such intention. In the present instance the lease was of a tavern and wagon yard; on the one hand, the tenant agrees to pay 250 dollars per quarter, rent, and the landlord covenants to put sufficient cinders and gravel on the wagon yard as soon as practicable. This it is alleged he neglected to do, though frequently requested, and damage ensued therefrom. It is reasonable to suppose the rent was enhanced in consequence of the landlord’s undertaking to put the premises in better order for the tenant’s use. It would be unjust, for the landlord to recover his whole rent,when a covenant material to the beneficial enjoyment of the premises, and forming a part of the consideration for the rent stipulated, was knowingly violated: and it is a good defence for the tenant to the amount of the damage suffered, not by way of defalcation or set-off, for that is inadmissible, but as a failure of the consideration for the rent, by the act and default of the landlord, in the non-performance of his part of the contract, and therefore exempting the tenant from an equivalent portion of the rent. The court below admitted the evidence on these principles, and we think correctly. 2. The next question arising on the errors assigned is, what is the proper measure of damages for the breach of such covenant, on the part of the landlord. It ought to be the difference between the worth of the premises in the condition in which they remained, and that which they would have been in, had the landlord’s covenant been performed; or in other words, so much less as they W'ould have rented for without the covenant. In Hoburn v. Schuylkill Navi gation Company, 7 Serg. & Rawle 411, the plaintiff’s factory was overflowed by the erection of a dam in the Schuylkill, and in a proceeding under the act of assembly, it was held, that the measure of his damages was, not what he might suffer in his business, or by the consequences of the injury, but the difference between the price the property would have brought unaffected by the obstruction, and what it would have produced when the injury was done. And in estimating the value of the item, in the present instance, not only are speculative or remote damages, such as the profits the lessee might possibly have made, to be rejected, but even the proof of a direct loss of business, by showing that a customer went away in consequence of the situation of the yard. Such standards are uncertain and variable, depending on the amount and value of custom, and different with different tenants: whereas the flule ought to be certain and uniform. It is true the court seem to have designed to guard the jury against entering into this field of conjecture, by instructing them, that “remote or speculative damages, although susceptible of proof and dedueible from the non-performance, are not to be allowed,” but at the same time, say, “ the liability of the landlord must be limited to direct damages, such as according to the nature of the subject, may be contemplated or presumed to result from his failure;” and in the result, the jury struck off the whole quarter’s rent, when perhaps they may not have thought the want of one layer of cinders and gravel would have deteriorated the rent of the premises to that amount. For these reasons we think there was error in this part of the charge. 3. As to the third error, the reasons given by the court below satisfactorily show that this point was correctly ruled. Judgment reversed, and a venire facias de novo awarded.

The opinion of the Court was delivered by Sergeant, J. It is contended that by this instrument of writing the plaintiff granted and the defendants obtained nothing more than a privilege to take stone from the quarry, which they might or might not avail themselves of at pleasure, and that they were not bound to take out any stone except what the plaintiff should contract for, agreeably to the stipulation in his favour. I am disposed to think, however, that something more passed to the defendants than such a right, and that the defendants obtained, under this instrument, the exclusive right to the use, occupation and enjoyment of the demised premises during the term. The plaintiff certainly could not afterwards have granted to other persons a privilege, as it is termed, or right to enter and quarry the stone. The defendants might well have complained of such an attempt, and might have sustained trespass against any person exercising the right thus claimed. If the right of the defendants were not exclusive, it might be rendered, in a great measure, valueless by the plaintiff’s acts. It appears to me to be exclusive, conferring on the defendants the sole right, making them owners during the term, constituting, in legal contemplation, a lease to them of the demised premises, with the relations and liabilities between the parties, of landlord and tenant. In the instrument itself different words are used to express the nature of the contract. In one part, the premises, it is said, are to be for the sole use and under the control of the defendants during the term. If they fulfil the conditions, they are to have “ a new lease of the quarry, in preference to any new applicant.” Walker’s part is in one place termed a privilege, and yet it is scrupulously excepted. In another part it is called his bargain in the quarry, and also his contract. It is an established rule of law, that, whatever words are sufficient to explain the intent of the parties, that the one should divest himself of the property and the other come into it for a determinate time, whether they run in the form of a license, covenant or agreement, will, in construction of law, amount to a lease as effectually as if the most proper and pertinent words were made use of for that purpose. 4 Bac. Abr. 161, tit. Leases, K. A license to inhabit amounts to a lease. Ibid.; 11 Mod. 42; 1 Ld. Raym. 404. A license to enjoy a house or land from such a time to such a time, is a lease, and ought to be pleaded as such, though it may be pleaded as a license. Ibid.; 2 Salk. 223. Words in an agreement that A shall hold and enjoy, if not accompanied by restraining words, operate as words of present demise. 5 Term, Rep. 163; Cro. Jac. 172; 2 Mod. 80. If a grant be made of a boilery of salt, the land passes; for that is the whole profit. Co. Lit. 46; Woodf. Land. & Ten. 5,7,8. The whole profit of a quarry consists in the right of taking out the stone, and by a grant of all that right or privilege the land passes, in the same maimer as land passes by a grant of all the rents and profits. Then it is clear the parties contemplated that the quarry should be worked by the defendants to some extent, and not lie idle and unproductive to the landlord: and that extent is declared to be so much stone as the defendants should be able to find use for. They are described as stonecutters, and in the course of their trade the .parties must have presumed they would find occasion for a supply of more or less of the stone. The exact amount they would be able to dispose of could not be ascertained beforehand, because it must depend on the growth of the city and neighbourhood and the consequent demand for the material. But that there would be no demand at all was not to be supposed, nor did the defendants attempt to show that to be the case. They were, therefore, free from any obligation to quarry stone from the premises, except so much as they should be able to use, or, in other words, find demand for in their business. It would surely be a violation of the meaning and design of the lease, if they should leave the quarry entirely idle, either to work some other quarry, or for any reason short of what would legally excuse them. There is abundant evidence in the language of the lease to show that the parties contemplated the quarry should be worked. The exception of the part leased to Walker; the adjustment of the rent according to the measure of the stone taken out; the clause relating to the place of deposit of the stripping; the agreement to furnish orders on the proprietors of buildings for the plaintiff’s proportion within fifteen days; the restriction of injury to the plaintiff’s pasture and fences, all contemplate a working of the quarry. The exact extent is ascertained only in one event, and that was,-if the defendants required Walker’s part, and then they bind themselves to keep four teams constantly at work during nine months of the year. The clause by which the defendants covenant to fulfil contracts to be made by the plaintiff, seems to be only an additional obligation on the defendants, and not to comprehend all that they were bound to' do. Such a construction is irreconcilable with the tenor of the agreement, especially with- the clause by which the defendants stipulate to furnish to the plaintiff orders on the proprietors of buildings for his amount of claim on each contract, which evidently refers to contracts made by the defendants. If the defendants had any excuse, legal or equitable, from the responsibility thus assumed by their agreement, it lay upon them to show it. The plaintiff’ was not bound to prove the extent of their, capacity to fulfil the contract. The lease presupposes they would work the quarry, and gives them the entire control over the premises; and being themselves acquainted with their own business and concerns, they were best able to show the extent to which they were able to work it; or if not worked at all, the reasons for their inability. Not having done so, it was for the jury to give such damages as they might deem a compensation for the loss of rent. There is, therefore, no error in the charge of the court on this subject. Nor is the third error sustained. This action is for damages for nonpayment of rent, and a former recovery for one part of the term does not preclude a suit for other damages sustained by the lessee’s nonpayment of rent during another period of the term for which he was liable. Though the instrument sued on is the same, the causes of action are different. Judgment affirmed.

The opinion of the Court was delivered by Rogers, J. A party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acted. The burthen of the proof lies on him to establish the agency and the extent of it. So the admissions of agents concerning the transactions in which they are employed are, for many purposes, equivalent to the acknowledgement of the employer himself. But before such admissions or declarations can be given in evidence the fact of agency must be proved. Now, what evidence was given that Craig was an agent of the plaintiffs? Such an agency is not pretended; for the allegation is, that Loutzenhizer, and not Craig, was the agent: and yet the court admitted the declarations of Craig as well as Loutzenhizer to charge the plaintiffs. This was clearly erroneous, and would, of itself, be enough to reverse the judgment. But this is not all. The jury, under the direction of the court and \vith their sanction, allow the defendant, as a set off, or as a payment of the note, the price of a horse which, from the evidence, it is indisputable was sold to Craig. It must be remarked, that it is not even pretended that the plaintiffs ever gave any person authority to use their property in the note, which was payable to order, for any such purpose. The most that can be collected from their letter to the defendant is, that they were desirous of purchasing horses for themselves; but there is no intimation of any agency being granted to any person,' much less of such an authority as is now contended for on the part of the defendant. If Lyman had been deceived, he might with some reason have complained of Craig and Loutzenhizer; but he was not misinformed by them, for he knew perfectly well the horse was not purchased for the plaintiffs. Indeed it appears that it was at his own suggestion the note was given in payment for the horse sold to Craig. To enable the defendant t,o lift his note in this way would sanction a fraud. If either of the parties are to sustain a loss, it is but just it should fall on the defendant. But the authority given to Loutzenhizer was special. It extended merely to a power to receive the amount in money, or a note payable at a future day previously drawn and payable to order. An agent specially employed to receive payment in money cannot vary from his authority by receiving a bill. 2 Lord Raym. 930; 2 Salk. 442. And even a general agent cannot, without particular authority, commute the payment by receiving another thing, as a horse, &c. in discharge of the debt. Doctor and Student 286. It is very true that if the article is delivered over to the principal, and he agrees to it, it will bind him. But this is not pretended. On the whole facts, as they appear in the case, I am constrained to say, that I have seldom seen a defence which has less to recommend it, either on the score of justice or law. Judgment reversed, and a venire de novo awarded.

The opinion of the Court was delivered by Sergeant, J. By the codicil, one-half of the residue of the per sonal property is .bequeathed to the Associate Synod of-North America, and the other half to Jason W. Eby, and a devise in the will of one-fourth of an acre of land to the testator’s servant, Ann, is revoked. Jason W. Eby and the Associate Synod of North America- are plaintiffs in this feigned issue of devisavit vel non, in relation to the codicil, and the defendants, for the purpose of establishing the incapacity of the testator to make the codicil, offered in evidence a letter written by Jason W. Eby, on the 10th of March 1838, to R. Slemmons, one of the defendants, stating the situation, conduct and habits of the testator at that time. This was objected to by the plaintiffs, and the court rejected it. . The case that comes nearest to the present is that of Dietrich v. Dietrich, 1 Penn. Rep. 306, where the court was equally divided on the question whether the declarations of Henry Dietrich, one of the devisees, who was, sole party plaintiff in the issue whether the testator was childish, could be received in evidence. In Bovard v. Wallace, 4 Serg. & Rawle 499, on the trial of a feigned issue of devisavit vel non, the declarations of a devisee, not a party to the suit, that the testator was incapable, were held not to be admissible to invalidate the instrument. In Nussear v. Arnold, 13 Serg. & Rawle 323, the [declarations of Mary King, that the testator was incapable of transacting business, were rejected. She was a prin-. cipal devisee in the will, which gave her the whole estate (except a few legacies to a small amount) for her life, and afterwards oner half to her relations, and one-half to the relations of the testator. C. J. Tilghman says, “ if the whole estate had been devised to her, her declarations would have been evidence, because the plaintiff on record was merely her agent. But she was not the only person •interested. The verdict and judgment would be conclusive as to ,her personal estate, against all persons claiming under it. In Dietrich v. Dietrich, 4 Watts 167, it is said that if the interest be joint, admissions by one are evidence against all who are parties •with him in the suit. But legatees and devisees have not a joint ■interest. One who has thousands involved in the question ought .not to be prejudiced by declarations of one who has not a shilling.” f According to the principles recognised by judicial decisions in our .courts on this subject, it would therefore seem, that on the trial of a feigned issue of devisavit vel non, the declarations or admissions. -of a devisee or legatee, to show the incapacity of the testator, áre not admissible, whether such person be a party to the suit or not, if he be not the sole devisee or legatee, but there are others having ■ distinct and separate interests from him under the will, which will be affected by the determination of the issue. Here the interest of the Associate Synod, though equal in amount, is entirely separate • and distinct from that of Jason W. Eby; they are to have one-half, and he the other half; they are not jointly interested in the claim. They are joint parties in .the suit; but that regards only the suit itself and the costs, and not the claim or title under the will; and this evidence will affect the latter as well as the former. The interest of one person cannot be affected by the admissions or declarations of another person having a separate interest. Under the decisions of this court, therefore, as well as on principle, we are of opinion that the court below were right in rejecting the letter offered in evidence. 2. The rule of law in regard to wills is, that the memory which the law holds to be a sound memory, is when the testator hath understanding to dispose of his estate with judgment and discretion, which is to be collected from his words and actions and behaviour at the time. Fonb. Eq. 71; 6 Co. 23; Dy. 72; 1 Ch. Rep. 13; Moore 760. If general lunacy be established, it must be shown that there was not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficient to enable the party soundly to judge of the act. 1 Ves. 611. Incompetency, then, by reason of insanity, is to be sought for in the words, actions and behaviour at and about the time of the act in question. We have no other source to reason from. The internal structure and operation of the mind are inscrutable, and even a physical derangement of the brain (which is usually supposed to be its seat,) is incapable of being ascertained. The factum itself Is to be considered, whether such as a judicious rational mind would perform; and also, when a general derangement has once existed, it is incumbent on him who alleges restoration of mind, to show that it took place so far as to enable the party to judge soundly of the act he is doing. What conclusion, then, are we to come to in a case where a person, in the full possession of his faculties, has made a will, unexceptionable in its structure and dispositions, bequeathing various pecuniary legacies, and then disposing of the residue of his estate to his nearest relations; and where that person, within the space of two or three months becomes lunatic, and in the paroxysms of his insanity, and in connection with them, imbibes the most violent antipathies against one of those relations, for .whom,formerly, he entertained a high regard and affection; which antipathies are proved to be utterly without just cause or foundation, and built upon imaginary grievances; and where this person becoming afterwards relieved from the symptoms of his derange- ' rnent, yet continues to cherish, on all occasions, these antipathies . and perverted impressions, and while under their influence, within nine months after the derangement, adds a codicil to his will, in which he revokes the residuary bequest and gives it all over to . persons—strangers to him in blood, though otherwise having some claim upon his bounty? It appears to me, that the only question ' in such a case is,'whether the person was of sound memory and ' discretion, considering the act done in all its bearings, and judging of the soundness of mind of the supposed testator by his conduct and declarations at the time, and as connected with his previous insanity and the degree of restoration of mind in the interval; and that if the erroneous and groundless impressions, received' during the time of his delirium, shall retain their hold, (whether by some physical derangement of the brain, or by some indelible stamp upon the thinking faculties,) that person must be considered still under a delusion—the effect continues, and it is only by effects we can judge of the existence of the exciting cause—and if he is under a delusion, though there be but a partial insanity, yet if it be in relation to the act in question, it is well settled it will invalidate contracts generally, and will defeat a will which is the direct offspring of that partial insanity, both in the courts of common law and in the ecclesiastical courts, although the testator, in making it, was sane in other respects on ordinary subjects. This question is one which has been discussed on several occasions in the English courts, and occasioned some diversity of sentiment: but seems to be now settled in accordance with the principles I have stated. The first case was that of Mr Greenwood, which is found to have excited much attention from the peculiarity of its circumstances, and is stated by Lord Eldon in White v. Wilson, 13 Ves. 89. He was bred to the bar and acted as chairman to the quarter sessions, but becoming diseased, and receiving, in a fever, a draught from the hands of his brother, the delirium taking its ground then, connected itself with that idea, and he considered his brother as having given him a potion with a view to destroy him. He recovered in all respects, but that morbid image never departed, and that idea appeared connected with the will by which he disinherited his brother; nevertheless, it was considered so necessary to have some precise rule, that though a verdict was obtained in the common pleas against the will, the judge strongly advised the jury, in a second trial, to find the other way, and they did accordingly find in favour of the will. Further proceedings took place after-wards and concluded in a compromise. See 1 Pow. Devises by Jarman 130, note (Law Lib. 75), and Shelford on Lunatics 296 (Law Lib. 188.) Another case soon after occurred, in which a similar question arose; that of Dew v. Clark (Haggard Ecc. Rep. 18), 3 Add. 79-209, Shelf. Lunat. 297 (Law Lib. 189.) In this case there was evidence to show that the deceased, in the ordinary transactions of life, conducted himself and his affairs rationally— was a sensible, clever man—amassed a considerable fortune by his profession—took great care of his property—and that several of .his friends and acquaintance, some of them medical persons, never considered or even suspected that he was deranged in his mind; yet it was shown that he laboured under certain delusions respecting his daughter and himself: so that, although she was proved to have always been amiable in disposition, of superior natural talents, engaging in her manners, diligent, industrious, submissive and obedient, patient under affliction, dutiful and affectionate, modest and virtuous, moral and religious: yet in the deluded mind of the deceased, she was the most extraordinary instance of depravity, vileness, vice, crime, profligacy, hypocrisy, artifice, disobedience, revolt and rebellion, and quite irreclaimable; while in regard to himself, he was a pattern of fatherly tenderness and affection, though tying his daughter to a bed-post and flogging her with the most unmerciful severity, and aggravating her sufferings by other acts of cruelty, and compelling her to perform the most menial drudgery and of the severest sort, to which even a servant would not submit. All these were represented by himself as proofs of his great tenderness and regard; these impressions accompanied him through life, and were recorded in his will. To remove these delusions, no reasoning, no argument, no interposition of friends, no pastoral authority was of any avail; even the sanction of religion could not convince him that his ideas were erroneous, nor induce him to alter his conduct. Sir John Nichols, after saying what might be the condition of the deceased as applied to other transactions, civil or criminal, it was not his duty to consider, but he decided that he was not a person of sound mind when he made the will; or, in Lord Coke’s language, Was non compos mentis. He therefore pronounced against the validity of the will. This was confirmed by the delegates; and the lord chancellor, on a petition for a commission of review, gave judgment that, under the circumstances of the case, he did not think fit to recommend it. - In another case, that of Fulleck v. Allison, 3 Hagg. Ecc. Rep. 527, it has been held that to set aside a paper on this ground of monomania, or partial insanity, it must be shown clearly and decisively that the belief which occasioned the act was founded upon a delusion—that is, it must appear beyond doubt that there was no ground for suspecting the facts to be as the testator thought them. The question then will be, was the party of sound memory and discretion when he made this codicil, taking into view his previous state of mind and feelings towards these relations when of sound understanding, his former will and disposition in their favor, which must stand till legally revoked, the general insanity and prostration of understanding which ensued, the delusive belief or opinions in regard to Col. Boyd, originating in his mind during that insanity, his degree of recovery, the continuance of the' delusion afterwards, as manifested by the retention of these erroneous impressions and .groundless antipathies, their operation in the making of the codicil, and especially whether the causes of those impressions were true, or even if not, yet were of such a character as to warrant the impressions, or on the other hand were utterly groundless, and such as no man in his senses could entertain, and occasioned merely by insanity. If the latter were the case, then I think that, according to the principles of the law, he was not competent to make a codicil which altered his will in the manner he has done. It seems to me that the court below fell into an error in drawing a distinction between the insane delusion itself, and the impressions or prejudices occasioned by such delusion: and in supposing that the former might cease and the latter continue. They are to my mind the same thing, or rather the presence of absurd prejudices, of groundless antipathies, of silly and chimerical hatreds, originating in acknowledged insanity, is the only evidence we can have of the existence of the delusion. The term delusion refers to the state of mind: impression, to the results of that state of mind; but when the results are gone, we can well assert that the delusion is gone. In a legal point of view, however, these subtle inquiries are useless; the great, broad, and intelligible question is, whether the mind was restored so as to be sound, whole, compos; or whether a portion of its thinking and judging power, as connected with the subject of the will, remained mangled and perverted at the time of making the codicil, so as to leave it incapable of interfering with his former disposition of his estate with judgment and discretion. Judgment reversed, and venire facias de novo awarded.

Opinion by Judge Mencer, Maureen Amesbury (Amesbury) was an employee of the Luzerne County Institution District (Institution District) at its Valley Crest Nursing Home. On October 7, 1975, Amesbury received a letter signed by the administrator of the nursing home, informing her that she was being dismissed from her employment by the Institution District, effective at 4:30 p.m. on October 7, 1975. The letter stated three reasons for the dismissal action but, since they are not encompassed by the issue raised in this appeal, we will not enumerate them here. On October 21,1975, at a regularly scheduled meeting of the Institution District, Amesbury requested that a hearing be held concerning, her dismissal. On October 29, 1975, after consulting legal counsel, the Institution District refused to grant. Amesbury the hearing she requested. Amesbury then filed a petition in the Court of Common Pleas of Luzerne County seeking the issuance of a rule to show cause why she should not be reinstated to her position of employment. The rule was granted and made returnable on December 3, 1975. During the hearing held on the rule to show cause, it was stipulated by counsel of record that Amesbury did not have a contract of employment with the Institution District and that no grievance procedures existed, by agreement or otherwise, relative to the discharge of employees by the Institution District. The trial court discharged the rule to show cause and dismissed Amesbury’s petition by order under date of December 31, 1975. This appeal followed and we affirm. The issue raised below and again here can be stated simply: Is an employee of a county institution district entitled, by the provisions of the Local Agency Law, to a hearing prior to dismissal from employment? If here the dismissal of Amesbury by the Institution District was an adjudication, as that term is defined by Section 2 of the Local Agency Law, 53 P.S. §11302, it is evident that Section 4 of the Local Agency Law, 53 P.S. §11304, requires that Amesbury be afforded reasonable notice of a hearing and an opportunity to be heard before any adjudication as to her could be valid. Section 2 of the Local Agency Law defines “adjudication” as follows: ‘Adjudication’ means any final order, decree, decision, determination or ruling by a local agency affecting personal or property rights, privileges, immunities or obligations of any or all of the par ties to the proceeding in which the adjudication is made, but shall not mean any final order, decree, decision, determination or ruling based upon a proceeding before a court, or which involves the seizure or forfeiture of property, or which involves paroles or pardons. The key words in this definition, insofar as the present case is concerned, are the words “property rights. ’ ’ Did Amesbury have a property right in her employment with the Institution District? If not, then there was no adjudication because the Institution District’s decision to dismiss her did not affect her property rights and the definitional test of the Local Agency Law has not been met. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure benefits and that support claims of entitlement to those benefits. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). An enforceable expectation of continued public employment can exist only if the employee, by statute or contract, has been granted some form of guarantee. Here it has been stipulated that no such guarantee has been given by contract. Section 306 of the County Institution District Law, 62 P.S. §2256, provides that “ [t]he commissioners of each county shall have the power to appoint and remove all necessary employes of the institution district. ...” Thus, continued public employment is not guaranteed to employees of the institution district by statute, but the right and pre rogative to remove sucli employees is expressly granted to the county commissioners by statute. Amesbury was an employee at the will and pleasure of the commissioners of the Institution District and not entitled to a constitutional due-process hearing, because she had no property interest in employment, Bishop v. Woods, U.S. , 48 L.Ed. 2d 684 (1976), nor to a hearing under the Local Agency Law because the Institution District did not make an adjudication as to her. Order affirmed. Order Now, this 8th day of December, 1976, the order of the Court of Common Pleas of Luzerne County, dismissing the petition of Maureen Amesbury filed November 10, 1975 to No. 9653, is hereby affirmed. Act of December 2, 1968, P.L. 1133, 53 P.S. §11301 et seq. Institution districts were established and created by the County Institution District Law, Act of June 24, 1937, P.L. 2017, os amended, 62 P.S. §2201 et seq. The parties are not in disagreement that the Institution District is a local agency as that term is defined in Section 2 of the Local Agency Law. This salient factor is what distinguishes this ease and our holding here from those cases where the right to continued employment is guaranteed by statute. See and compare McKelvey v.Co lonial School District, 22 Pa. Commonwealth Ct. 207, 348 A.2d 445 (1975) ; Kretzler v. Ohio Township, 14 Pa. Commonwealth Ct. 236, 322 A.2d 157 (1974); Shellem v. Springfield School District, 6 Pa. Commonwealth Ct. 515, 297 A.2d 182 (1972).

Opinion by Judge Cbatg, This is an appeal from a motor vehicle operator’s license suspension, for refusal to take a breathalyzer test in violation of Section 1547 of the Vehicle Code, 75 Pa. C.S. <§1547. The lower court refused to admit testimony from a police officer in response to initial general questions by Commonwealth counsel concerning who was involved and what happened on November 4, 1977, the date of the alleged refusal of the appellee-driver to take the breathalyzer test, allegedly following an accident. When Commonwealth counsel claimed inability to proceed because of the exclusion of the testimony, the court below sustained the appeal, and the Commonwealth appeals here. Counsel for the driver raiséd in the court below a question concerning the constitutionality, as a matter of procedural due process, of Section 1550 of the Vehicle Code, 75 Pa. C.S. §1550, which provides for appeals to court from drivers’ license suspensions, supersedeas until “final determination of the matter,” and the hearing at which the court is to “determine whether the petitioner is in fact the person whose operating privilege is subject to the recall, suspension, cancellation or revocation.” Appellee interprets the last quoted language as prohibiting inquiry into the merits of the breathalyzer refusal and suspension and thus denying a driver any due process hearing. The lower court apparently accepted that interpretation in excluding testimony concerning “what transpired on that date [November 4, 1977] relating 1o Daniel L. Quinlan, Jr. ...” and similar questions. However, in the opinion filed by the lower court, the trial judge, after referring to the wording of Section 1550, proceeded to state: The Commonwealth, in this case, failed to prove that which it was required to prove. The Commonwealth produced no evidence that the defendant failed or refused to take a chemical test of his breath. The Commonwealth attempted to prove only that the defendant had been involved in an accident, a matter which is clearly irrelevant to the matter of a suspension. There was no testimony presented as to whether the defendant had refused the chemical test. Hence, it is clear that the court below, after excluding the testimony on the basis of the narrow interpretation of Section 1550, supported its decision on the basis of an interpretation broader than one confined to merely establishing the identity of the person whose license was suspended. In stating that the Commonwealth was required to prove that the defendant refused to take a chemical test, the lower court opinion correctly reflects the interpretation of the section which this court has been uniformly following. To sustain a suspension under former Section 624.1(a) of the Vehicle Code, 75 P.S. §624.1, which provisions were similar to the present Section 1547, the Commonwealth had the burden to prove that: (1) the licensee was placed under arrest, and the arresting officer had reasonable grounds to believe that the licensee had been driving while under the influence of intoxicating liquor; and (2) that the licensee refused to submit to a breathalyzer test, after having been requested to do so. Department of Transportation, Bureau of Traffic Safety v. Shultz, 25 Pa. Commonwealth Ct. 598, 360 A.2d 754 (1976); Commonwealth v. Miles, 8 Pa. Commonwealth Ct. 544, 304 A.2d 704 (1973). Additionally, new Section 1547(b) (2) now requires that the driver be warned that a suspension or revocation of license will follow a refusal to submit to a breathalyzer test. Peppelman v. Commonwealth, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979). The effect of Section 1550, as' evidenced by the lower court’s confusion in this case, is ambiguous; we have not found a judicial interpretation of this provision, nor is the legislative intent discernable from any recorded legislative proceeding. Turning to the Statutory Construction Act of 1972, 1 Pa. C.S. §1922(3) directs that the resolution of statutory ambiguities be consistent with constitutional principles; the Pennsylvania Constitution, Article Y, §9 provides for a right of appeal from an administrative agency to a court of record, and operating privileges are protectable property interests that may not be terminated without the procedural due process required by the fourteenth amendment. Bell v. Burson, 402 U.S. 535 (1971); Commonwealth v. Abraham, 7 Pa. Commonwealth Ct. 535, 300 A.2d 831 (1973). Even where the statutory scheme provides for a summary suspension, as here, if the licensee is guaranteed a prompt post-suspension hearing, the constitutional requirements are satisfied. Mackey v. Montrym, 99 S.Ct. 2612 (1979). The de novo hearing before the lower court cures any procedural due process defect resulting from the lack of an administrative hearing. Commonwealth v. Grindlinger, 7 Pa. Commonwealth Ct. 347, 351, 300 A.2d 95, 96 (1973). To construe the ambiguous provision of Section 1550 within constitutional guidelines, we hold that the lower court is not limited to a determination of the identification of the licensee, but must hear evidence upon, and reach the merits of the suspension, in the light of the substantive standing of Section 1547. Our interpretation is in conforndty with the way recent decisions have construed the statute, although the specific question has not been raised until now. Ford v. Commonwealth, 45 Pa. Commonwealth Ct. 268, 406 A.2d 240 (1979); Haklits v. Commonwealth, 44 Pa. Commonwealth Ct. 198 (1979). Thus, because the Commonwealth is required to prove what happened with respect to the driver’s alleged refusal to take a breathalyzer test, the court below erred in excluding the introductory threshold testimony which we have described. It is clear from the record that Commonwealth counsel was employing very general questions, perhaps in an effort to avoid leading his own witness. The driver’s counsel argues that Commonwealth counsel should have tried rephrasing the questions, but the record is clear that the trial judge was at that point ruling that only the identity of the driver, not the events, could be considered, a position from which the judge apparently departed, after reflection, in writing the opinion. We will remand this case for a hearing on the merits. Order, And Now, this 8th day of November, 1979, the order of the Court of Common Pleas of Montgomery County (Civil Action No. 78-7962), July 10, 1978, is reversed, and the case is remanded to the court for a hearing consistent with this opinion. Tile questions put by Commonwealth counsel to the police officer, which were ruled, out by the lower court, were as follows: Q. Would you please tell his Honor and this Court what transpired on that date relating to Daniel L. Quinlan, Jr., who is seated in this Courtroom beside his counsel? Q. Will you tell his Honor and the Court what transpired on that date relative to the petitioner, Daniel D. Quinlan, Jr., who is seated next to his counsel? Q. Officer, will you please describe what happened on the day of November 4th, 1977? Q. Officer, would you please tell this Court what transpired on November 4th, 1977? Q. Officer, was there an accident on November 4th, 1977? Q. And who was involved in this accident? The objection of driver’s counsel was explicitly based on the view that the only thing the officer could testify to was “whether or not this is the individual involved in the suspension proceeding.” The court, after sustaining the objection to the third question, indicated his authority for doing so by reference to an annotator’s comment which he quoted as stating that “jurisdiction is limited to determining whether the petitioner is, in fact, a person, etc., instead of examining the facts of the ease. ...” Act of April 29, 1959, P.L. 58, as amended, added by Section 1 of the Act of July 28, 1961, P.L. 918, as amended, formerly 75 P.S. §624.1 (a) repealed by the Act of June 17,1976, P.L. 162.

Mr. Justice Gordon delivered the opinion of the court, February 18th, 1884. We have before us for our consideration two appeals and two writs of error; as, however, they all arise from the distil bution of but one fund, they were argued as one case, and therefore require but one opinion for their disposition. We are of the opinion that the two cases which are now before us in the shape of appeals were well disposed of in the court below. When, on the 24th of August, 1881, the appellants gave notice to the sheriff, who had then levied, or was about to levy, on the furniture of the St. George Hotel as the property of John D. Ward, on the writs of Stranghellan and others, that they claimed the goods as their own, and thus denied' the title of their tenant, their status as adverse claimants to those writs was fixed. Two things resulted from the position which they in this manner assumed; first, they put the sheriff and the execution creditors in the position of trespassers, and imposed upon them the risk and cost of maintaining Ward’s title, from which necessity they would have been relieved had the appellants claimed but as landlords; second, they disclaimed all interest in any fund that might arise from the sale, in that they denied their tenant’s title in the goods levied upon; for necessarily their claim must be limited to the proceeds of the sale of the goods of the tenant, and not to the proceeds of the sale of their own goods, which sale was a proceeding adverse to their alleged right, and for the infringement of which they held the plaintiffs to an account in the whole value of the goods levied upon. How then, we ask, can they come in on the fund raised from a sale of these goods, claiming, as they do, adversely to the very writs on which that sale was made ? We think that even without the authority of Bush’s Appeal and Vetter’s Appeal we might venture to say this cannot be done. But it is urged that these landlords were not bound to make choice between these two claims; they might pursue both, and if one failed they might resort to the other. That is, in plain English, they might both affirm and deny their own title; claim under the writs or adversely to them ; might hold the plaintiffs in those writs for the whole value of the property, or failing in this, might nullifj'- their own words and acts, and as landlords claim the fund as the product of their tenant’s goods. To this we cannot agree. With bon& fide creditors this kind of double dealing is not allowable. It is out of all conscience that creditors should be thus driven to the trouble and expense of disproving title in the claimants, and when this has been successfully accomplished, that those same claimants should be permitted to pocket the fund by the interposition of the very title by which they were defeated. As to this, the learned Judge of the court below has well said, “ If they lose their claim as landlords by attempting to play a double-handed game for the fund in court, no one is to blame for it but themselves.” The remaining question arises in the consideration of the writs of error. The auditor and court below held, that the agreement of the 26th of March, 1877, between George L. Crawford, trustee of the Edwards’ estate and John I). Ward, was, as to the personal property therein described, a conditional sale, constructively fraudulent as to creditors, hence, said property was liable to seizure and sale as the property of Ward'. We are inclined to think that this conclusion was erroneous. In order to make a sale, which is conditional as to the parties, absolute as to creditors, there must be a delivery of the goods in pursuance of the contract, for without this there can be no present sale, and an agreement of sale without an accompanying transfer, amounts to nothing more than a contract to sell at a future time, or upon the fulfillment of stipulated conditions. Furthermore, the delivery of possession alone, though a material indicium of ownership does not of itself constitute a sale, for the goods may be delivered in bailment, as in loan or hiring. There must in addition to the possession, be at least such a conditional or qualified title passed to the buyer as to give him a transferable interest in the chattels; such an interest as he can, at any time during the running of the condition, sell and dispose of at his own will. Krause v. The Commonwealth, 12 Nor., 418. Again, in order to ascertain whether the contract is one of sale, or of bailment only, we must, where there is doubt, ascertain from the terms of that contract, the intention of the parties. Enlow v. Klein, 29 P. F. S., 488. If from that contract we discover that the party who receives the possession of the goods, receives them under an agreement that he is to retain them for a definite period, and if at or before the expiration of that period, lie pays for them he is to become tlie owner, otherwise to pay for the use of them, this, as was held in Rose v. Story, 1 Barr, 190, is but a bailment, and the title to the property, even as against creditors, remains in the bailor. If during the period of the bailment the bailee pays part of the price fixed, a creditor may levy upon and sell the bailee’s interest, but no right of the bailor will thereby be extinguished. Although payment for the use of the bailed goods is, in the above citation, stated as a condition of the bailment, yet it is clear that this is not always necessary, for a loan under a like condition of sale would be good. Clark v. Jack, 7 Watts, 375. Neither is a stipulation for the return of the property on the expiration of the time during which the bailment is operative, necessary, for if it is not returned the bailor may resort to his legal remedies, and thus enforce the contract. Enlow v. Klein supra. On the other hand, when, from the contract or arrangement between the parties, the possession is transferred to the vendee, and the ostensible ownership reserved to 0the seller for the purpose of security only, there, whilst the condition is good as between the parties, it is bad as to creditors; as to the latter the sale is absolute. Martin v. Mathiot, 14 S. & R., 214; Brunswick Co. v. Hoover, 14 Nor., 508. The legal principles entering into the consideration of this case being thus defined, let us see what were the terms and conditions of the agreement of the 26th of March, 1877, and ascertain, if we can, from those terms and conditions, what was the true and honest intention of the parties. First, there was the lease of the hotel to run for the term of five years from the 1st of April, 1877; then there was, second, the agreement “ to furnish to the party of the second part, with the said hotel, under this lease, all the stock and furniture therein on March 31st, 1877.” This looks to us like a leasing of the furniture as well as of the hotel. Under this lease the lessor was as much bound to put Ward into the possession of the personal property as he was to put him into the possession of the realty, and, in fact, the latter could not be used without the former; if Ward did not get the furniture he could not run the hotel. He thus went into the possession of both by virtue of the lease and by virtue of nothing else. Nor is it necessary for us to stop to consider the partial payment made upon account of the furniture under the previous lease, for both parties deal upon the assumption that that furniture did, on the 1st of April, 1877, belong to the lessor, and as there were at that time no intervening creditors, we must leave the matter as the contracting parties settled it. Now, the auditor admits that a lease of both hotel and furniture would, as to the latter, have been a legitimate bailment-, and that not even a superadded clause for a conditional sale, would have brought the plaintiffs within the statute of Elizabeth, and in this he is undoubtedly correct. But we cannot see how any one can undertake to say, in view of the contract of the parties and the surrounding circumstances, that Ward either did get, or could have gotten into the possession of these goods on the 1st day of April, 1877, in any other capacity than as the tenant of Edwards’ estate. It was certainly not at that time intended that they should be handed over to him as owner, or that he should have a present transferable interest in them. They were the necessary appurtenances of the hotel, and as tenant of that hotel he came into the possession of them. But if his possession came through the lease, it is conceded that the subsequent provision for a sale could not alter the character of that possession, or change the nature of the contract resulting from it. Nor do the words of the agreement leave the intention of the parties at all obscure. By express stipulation no title to the goods was to pass to Ward until they were fully paid for, and until he did so pay for them he could have no transferable interest in them, otherwise he could at any time defeat the object of the lease by a sale of that interest. It is however, unnecessary for us to dwell upon this matter, for, as we have shown, if Ward’s possession was originally under the lease, that determines the character of the transaction, and fixes it in the outstart as a bailment, and as he never complied with the conditions of the contract, under which alone he could have acquired title, the matter remained throughout as it began, a bailment. The appeals are dismissed and the decrees therein affirmed at the costs of the appellants. The judgments on the feigned issues are reversed, and it is ordered that judgments be entered for the claimants, the plaintiffs below. Per Curiam. On motion, ordered that the judgment of this court in the above named cases be so amended as to read as follows: After the words, “ the appeals are dismissed and the decrees therein affirmed at the costs of the appellants,” the judgments on the feigned issues are reversed, and it is ordered that a single judgment be entered for the defendants in the sum of $719.28. (Filed March 24, 1884.)

The opinion of the court was delivered by Sergeant, J. The responsibility of the sureties in this case cannot be distinguished from that of the principal. The condition of the bond is the same as to all the obligors, that is, for the faithful discharge of duty in the office of Recorder of Deeds; and whatever is a breach of condition as to the Recorder, is equally so as to the other obligors. Farmers’ Bank v. Boyer, (16 S. & R. 50). This raises the question whether the Recorder, by giving a certificate that he has searched and could find no mortgage, and charging and receiving the fee allowed by the Act of Assembly in such case, has violated the condition of the bond, when it afterwards appears that a mortgage then existed on the record,- by which the party obtaining the search has been prejudiced. I state it thus particularly, because, in the present instance, there are no facts mentioned from which it might be argued, either from the position or conduct of thé party aggrieved, or of the officer, that the liability of the latter was removed or extenuated in consequence of any peculiar circumstances attending the transaction. Neither the Acts of Assembly requiring official bonds, nor the bonds themselves, define the details of duty appurtenant to an office to which the party is appointed, nor indeed could it well be done. It is obvious that the extent of duty in an office must vary with its nature, and perhaps there is not one in which these details could be expressly defined and set out. The Act of Assembly contents itself with imposing an obligation to perform the duties of the office, leaving the character and bounds of those duties to be settled by the nature of the office, by general principles of convenience, policy and public security, by usage, and by such matters of express legislation as may be connected with the subject. The party seeking the office (and universally, we may say, these offices are sought for the emoluments attached to them), takes it with the condition annexed of giving bond with sureties conditioned, in general terms, to fulfil and discharge all the duties annexed by law to the office; and upon such bond being prepared and sent to him by the Executive Department, executes and returns it, thereby subjecting himself to the liabilities involved by law in the exercise of the office, whatever they may be. Without so doing, he knows that he cannot enter on the duties of the office, or hold the appointment. What, then, are the duties annexed by law to any office, which the officer thus undertakes to discharge faithfully? The solution of this question must result, I think, from a consideration of the nature and character of the office, and a determination of what constitute essential or vital parts of it; for thus much, at least, may be said, that whatever constitutes an essential or vital part of the office, so that without it the design and object of the office cannot be attained, must necessarily be ranked amongst the duties which the officer is bound to fulfil: and as the character and design of different offices are different, the duties of the officer vary accordingly — that being an appropriate and necessary duty in one office, which is of no importance, or altogether unknown, in another. To limit, however, our present inquiry to the office of Recorder of Deeds and Mortgages, let us examine the object and design of the office. This office, though unknown to the English common law, has been coeval with our province and state; being part of the laws agreed upon in England between William Penn and the first purchasers in 1682, and reduced, after various efforts, to a regular system by the Act of 1715, which continues to be the foundation of our code on the subject; and this office may be said to form the pivot on which all our titles to real estate turn. The design of it has been to furnish a permanent record of all titles and muniments of real estate, and many of personal, to which parties may have recourse for exemplifications that have the same force and efficacy as the originals. But there is ánother equally, if not more, important design, which is, to enable all persons to obtain knowledge of the state of titles to real estate by deeds and conveyances, and also of charges and encumbrances existing on them by way of mortgage. Hence it has been the practice of conveyancers and others, I presume from its earliest establishment, to cause searches to be made for existing conveyances, mortgages and encumbrances; and in fact, without such search, there would be no safety, since titles by mortgage depend, for their efficacy among us, not less on their due execution, than on the regularity and priority of their recording. Mortgages have priority only from the date of recording; and who would take a mortgage as a security for money, if he could not be certain as to the existence of prior encumbrances 1 Search, then, is of the essence of the office—indispensable to effect the design of its establishment, and to give certainty and security to the community. That being the case, who is to make that search 1 Surely not any and everybody that may desire it. That has never been the practice; and indeed, especially in such an office as our recording office here, it would be impracticable from the throng of applicants, and would moreover subject the records to many hazards, from carelessness, wantonness, and even fraudulent design. The Recorder and his confidential clerk have, therefore, usually made the searches and given a certificate; and for these the fee-bill allows him a fee. No stronger evidence can be given of the duty of an officer, than that the law gives him a fee for the performance of it. If the search, then, be within the prescribed duty of the Re corder, is he not bound to perform it faithfully ? or, in other words, to make a true search, and give a true certificate 'l and is he not responsible if he does otherwise ? Or can it be maintained that, though he is bound to search, yet the party must take the certificate as he gets it—the officer not being liable for its incorrectness, whatever prejudice may ensue ? Pursuing the same process of reasoning as before, viz., the design and object of such an office, it seems to me it is only by holding the officer responsible, at least, prima, facie, for an untrue certificate, that security can be obtained. Who could rely on a search made in private, and a certificate of the result, if there were no responsibility by the officer whether it were true or false ? It would be a temptation to indolence and carelessness. Purchasers, creditors and mortgagees, would leap in the dark, taking the risk of latent transfers or encumbrances. The usefulness of the office would be nearly destroyed. Every consideration of policy and security to titles, requires the exaction of the utmost vigilance in the officer. In this the law demands no impossibility or insuperable difficulty. Experience has proved that, whilst the public have been secured under the existing practice, the instances of resort against the officer are rare. If there be a risk to the officer attending this rule, qui sentit commodum seniire debet et onus. More care and vigilance ought to be and are required of officers appointed by the law to guard the interests of the community, and who are paid for it by them, than in ordinary cases. As to the form of the certificate that the officer could not find a mortgage, this is, in common understanding and effect, a certificate that none existed; since, if it were there, it was his duty to find and certify it, at least till some good reason is given why he did not. We are therefore of opinion that there was no error in rendering judgment for the plaintiff. A new objection has been raised on the argument here, which was not mentioned in the court below, nor is it contained among the errors assigned; and in such case the rule is, that unless it goes to the merits, we will not reverse on account of it. That exception is, that the Act of 14th March 1777 directs the Recorder of Deeds to give a bond in the sum of £1500, (equal to $4000); whereas the present bond is in the penal sum of $4500, and therefore not in conformity with the Act, and void. In this case it makes no difference in the result, whether the true sum is $4000 or $4500, as the damages recovered are much less than the smallest of these. Under what authority the Secretary of the Commonwealth took the bond in this sum, I have not been able, after inquiry, to ascertain. But we are of opinion that if it exceeds the amourit directed by the Act, it is good for that amount, and void only for the residue. United States v. Howell, (4 Wash. C. C. 620); Commonwealth v. Laub, (1 W. & S. 263); United States v. Brown, (Gilp. 155) ; 8 Mass. 153. Judgment affirmed for $4000 penalty.

The opinion of the Court was delivered by Kennedy, J. These two causes were tried together in the court below by the same jury, in each of which the same questions were raised by the counsel of the respective parties, and decided by the court. The plaintiffs here were the defendants below, where their counsel took no less than eleven bills of exception to the opinion of the court on points of evidence, all of which are assigned for error here, beside other errors founded on exceptions to the charge of the court to the jury, and to the answers of the court, given on points submitted by the counsel, for their instruction thereon, to the jury. A very brief notice of them will be sufficient, as we are clearly of opinion that there is not even any plausible ground upon which they can be sustained. The first exception to evidence was, to the admission of a paper purporting to be a receipt given by Francis Johnson, Receiver General of the Land Office, on the 25th of May 1792, to John Christ for £10 in Pennsylvania certificates, on account of 400 acres of land in the county of Northampton, granted to Christ by warrant dated the 3d of April 1792. Before it was offered to be read in evidence, proof was made showing that the receipt and name of Francis Johnson set to it as Receiver General were in the handwriting of his son, who did business in the office for his father, and occasionally signed the father’s name alone, without showfing that it was done by the son for the father. The objection to its being read in evidence was, that there was not sufficient proof made of its having been given and signed under the authority of the Receiver General, so as to entitle the plaintiff below to submit it as evidence to the jury. After so great a lapse of time, any slight evidence would have been sufficient to have justified the court in leaving it to the jury as a question of fact to be decided by them, whether it was a receipt given under the authority of the Receiver General of the Land Office or not. But the evidence given of its being so was strong, and, in the absence of all testimony tending to show the contrary, it became conclusive as it were. The ground of the objection to the admission of the evidence in the second and third bills of exception, is the same. They will therefore be considered together. The evidence mentioned in the second bill as objected to and admitted, is a certificate under the seal of the Land Office, signed by Jos. Henderson, Deputy Secretary, in the following words and figures: I do hereby certify that the within is a copy of old purchase voucher No. 9465, filed in the Land Office. Attest, Jos. Henderson, Dec. 6, 1838. Dy. Secretary. The evidence mentioned in the third bill of exception, is a certificate in the following words and figures: Pennsylvania, ss. I do hereby certify that the above is a true copy from an old purchase blotter, No. 4. Attest, Jos. Henderson, Dec. 6, 1838, Harrisburg, Pa. Dy. Secretary. These certificates were objected to, because, as the defendants alleged, they were not certified according to law, and also because there was no such office in Pennsylvania as the “ Land Office.” That such an office, known too by that name, existed, first under the proprietary government, is not only shown by the first section of the Act of Assembly, passed by the Legislature of the Commonwealth on the 9th of April 1781, entitled “ An Act for establishing a Land Office, and for other purposes therein mentionedbut an office by that name, as indicated by the title of the Act, is established by the second section of it, to consist of three persons or officers, called or known by the names of the Secretary of the Land Office, Receiver General, and Surveyor General; and in every act of the Legislature relating to the disposition of lands by the commonwealth, it is designated and spoken of by that name. And by the eighth section of the Act of the 29th of March 1809, entitled “ An Act abolishing the offices of Receiver General and Master of the Rolls, and transferring the duties therein performed to other offices, and for other purposes,” it is made “ the duty of the Secretary of the Land Office to prepare a seal, to be styled the Seal of the Land Office of Pennsylvania, which, from and after the 10th day of May then next following, shall be applied to all patents, warrants, and other papers authenticated in said office.” Now, that there is such an office in the State as the “ Land Office,” and known by that name, and properly by no other, is thus incontrovertibly established. And to show that certified copies of all records, documents and papers, of the secretary of the Land Office, when duly certified, shall be received in evidence, I refer to the first section of the Act of the 31st of March 1823, entitled “ An Act making copies of certain documents, records and papers, evidence in courts of justice,” which enacts that “ copies of all records, documents and papers, in the offices of the Secretary of the Commonwealth, Secretary of the Land Office, &c., when duly certified by the officers of the said offices respectively, shall be received in evidence in the several courts of this Commonwealth, in all cases where the original records, documents and papers would be admitted in evidence.” The only colourable objection that existed against these copies being read in evidence, in this case, was, that they do not appear to be signed by the secretary of the Land Office. But they are certified under the seal belonging to his office, and attested by the deputy secretary, which we think is sufficient; for by the eighth section of the Act of 1809, already referred to, the secretary himself is required to sign all patents and warrants to be issued thereafter to which the seal shall be applied; but nothing is said about his signing other papers authenticated in said office, though it is required that the seal shall be affixed to them. This requisition, at most, does not seem to have been intended to be applied to copies, when given of original documents and papers remaining in the office; the affixion of the seal of the office, with the attestation of the deputy secretary, who is authorized to act for the secretary in most cases, must be considered a sufficient authen tication of the copies to render them admissible evidence, where the originals would be so if produced. The fourth bill of exception was to the admission of a deed from John Christ to Jacob Eyerly, dated the 26th of November 1792, conveying all interest, &c. in a warrant obtained from the Land Office of the Commonwealth of Pennsylvania, dated April 3d 1792, for 400 acres of land on the east side of the Lehigh, in Northampton county, near or adjoining lands of Joachim Wigman, and all his interest in any part or parcel of the land which might be obtained, located or surveyed in pursuance of the said warrant, with a covenant for further assurance of said land. This deed was offered in evidence after the warrant therein mentioned, and a survey made in pursuance of the same, had been given in evidence by the plaintiff to support his claim to the land in controversy; and was objected to by the counsel of the defendants because the grantor, as they said, had no interest to sell and convey at the time; and again, because it was not for the land described in the warrant or survey, nor for the land in dispute. There does not appear to be the least force in any of these objections. The grantor being the warrantee, or person to whom the warrant was granted, though nominally only, had undoubtedly the right, as well as the capacity, to convey the warrant and the land surveyed under it to the grantee, so as to invest the latter with the legal title, and more especially so as he was the purchaser of the warrant from the State, and therefore the equitable owner of it, as also of the land that had been or might thereafter be surveyed by virtue of it. And whether the deed was for the same land mentioned in the warrant, or included in the survey made in pursuance of it, or was not for the land in dispute, was a question of fact to be left to the jury; but even a misdescription of the land in the deed conveying the warrant would not, I apprehend, make it invalid, so as to render it inadmissible as .evidence, or destroy its efficacy in passing the right of the warrantee to the land actually held under the warrant. The fifth bill of exception was to the admission of a deed from Betsy Rice to Jacob Eyerly, dated the 26th of November 1792, conveying all her interest and property in a warrant dated the 3d of April 1792, granted to her by the Commonwealth, for 400 acres “of land on the east side of the Lehigh, near or adjoining lands of Joachim Wigman, and also all her interest and property in and to any land to be obtained, located or held in pursuance of said warrant, with a covenant for further assurance of the same. Before this deed was offered in evidence, the warrant therein mentioned, and a survey of 402|- acres made in pursuance thereof, were given in evidence. The objections to this latter deed’s being given in evidence were the same with those made to the giving of the first deed in evidence, and therefore require no other or further answer than what has been given to the first. The sixth bill of exception was to the reading in evidence a deed from Jacob Eyerly to Robert Morris, dated the 11th of February 1793, conveying the warrants granted to John Christ and Betsy Rice, and the lands surveyed or to be surveyed in pursuance thereof, to the said Robert Morris, his heirs and assigns. The execution of the deed appeared to be attested by George Lesher and Thomas Hartman as subscribing witnesses. Before it was offered to be read in evidence, proof was given that Lesher and Hartman were both dead many years before the trial, and that their signatures to the deed as witnesses were in their respective handwriting, and that the signature of Jacob Eyerly to the deed as grantor was also in his own proper handwriting. This proof was made by witnesses who testified that they had seen Lesher, Hartman and Eyerly respectively write while living, and thus became acquainted with their respective handwritings from having seen them write. The reading of the deed in evidence, however, notwithstanding all this proof, was objected to, because its execution was not sufficiently proved to entitle the plaintiffs below to put it in evidence before the jury. It is really difficult to perceive what further proof the plaintiff could possibly have made, after so great a lapse of time, and seeing the witnesses to the deed and the grantor were all dead. It is not right to make such groundless objections to the admission of evidence. It is seldom, if ever, that any advantage can be obtained thereby on the part of the party making them; but he, on the contrary, may frequently lose, by inducing a belief that they are made by him because he thinks his case a desperate one, and conceives that he has nothing better to rely on. The seventh bill of exception was to the rejection of a memorandum, which the defendant’s counsel offered to read in evidence, with the name of “G. Palmer” signed to it, and said to be all in his handwriting, except an entry in its margin. The two first witnesses, however, produced by the defendant for the purpose of proving it to be in the handwriting of G. Palmer, testified that they were acquainted with the handwriting of George Palmer, but they did not think it was his; but the third witness testified that he believed it was. It appeared that Palmer had been a deputy-surveyor, at one time, and the memorandum offered in evidence was alleged by the counsel of the defendants to have been made by him as such ; but it was not signed by him as sueh, nor did it appear whence it came, nor where it was made; so that there was no pretence for admitting it in evidence as an official paper; and upon no other ground could it possibly have been claimed to be admissible as evidence. The eighth bill of exception was to the rejection of a book from the commissioners’ office of the county, containing returns made by deputy-surveyors to the commissioners of unseated lands for taxation, in which Mathias Hollenbaeh was set down as the owner of the lands surveyed under the warrants granted to John Christ and Betsy Rice. It would make sad.work, if such returns were to be received as evidence of title. Though deputy-surveyors are required, upon application of the commissioners of the several counties, by the 1st section of the Act of the 3d of April 1804, entitled “An Act directing the mode of selling unseated land for taxes,” to make out' a correct return to them of all the lands surveyed within their respective counties, whereof, as deputy-surveyors, they may have draughts, maps or plans, made by themselves or their predecessors in office; which returns shall include a list of the number of acres contained in each survey, and the names and surnames of the original warrantees, the waters on which the same is situate, &c.; but they are not required, nor are they authorized to say or determine to whom the lands belong. Indeed, it is very obvious, that not having the means of ascertaining anything of the sort, they would be very incompetent to perform such a task. The evidence offered was therefore very .properly rejected by the court. The ninth bill of exception was to the rejection of certain parts of the deposition of John Stoddart, taken under a rule of the court on behalf of the defendant. The parts rejected went to show that the land in dispute had been reputed and represented, for twenty or thirty years, to be the property of Thomas Dyer, from whom the defendants below derived their claim to it. That such was the representation of the neighbourhood, of which,' however, the witness had no knowledge himself. The witness .was never on the lands in dispute, never resided nearer to them than in Philadelphia ; nor was there a residence of any person nearer to them than from three to seven miles. It would be most extraordinary indeed, and lead to the most crying injustice, if the real owners of lands, whether seated or unseated, were permitted to be affected in their ownership of them by such evidence. It was therefore most rightly rejected. The tenth bill of exception was to the rejection of a small part of the deposition of Pearson A. Reading, taken and offered as evidence on behalf of the defendants below. The witness had bought the lands in dispute of Henry Nixon and his wife; but previously to his doing so he consulted Lewis S. Coryell, the plaintiff below, in respect to it, who advised him to make the purchase, and if he did not like it afterwards, he, Coryell, would take it off his hands. The witness accordingly made the purchase, and, in consummation of it, obtained a deed of conveyance from Nixon and wife for the lands; but afterwards, when he discovered that Abbot, who defended in the court below as the landlord of Urket and Wasser, the defendants, claimed to have a title to the land, he told Coryell of it, and proposed selling and conveying the land to him at the same price he was to pay for it, as he did not wish to be involved in a lawsuit about if. Upon which Coryell agreed to take the land, and the witness accordingly conveyed it to him, as appeared by his deed given in evidence as part of the plaintiff’s title below. The witness, in his deposition, stated all this, in substance, and also in addition, that 44 between Nixon and him, the risk of the title was to be with himand that “ the bond for the purchase money was still outstanding.” These were the parts of the deposition objected to by the plaintiff’s counsel below, and rejected by the court as not being admissible in evidence. It is not easy to perceive their relevancy, nor why they were objected to more than some other parts of the deposition. I cannot conceive how the admission of them could have prejudiced the plaintiff, nor how, on the other hand, they could, had they been admitted, have advanced the interest of the defendants. Whether the witness had been a Iona fide purchaser of the land for a valuable consideration, actually paid by him, without notice of Abbot’s claim, was not a question that arose in the cause, so as to make the evidence rejected admissible under any view that could be taken of the case. Being therefore wholly immaterial, no error could arise from its rejection by the court. The eleventh bill of exception was the rejection of the memorandum with the name of “ G. Palmer” set to it, that was mentioned above, in the seventh bill of exception which was offered by the counsel of the defendants, afterwards, a second time, and rejected by the court. It has been shown already that it was properly rejected by the court, when it was first offered; and as no evidence was given subsequently, changing its character or presenting it in any new light, nothing further need be said in respect to it, to show that it was still inadmissible. The errors next in order are exceptions taken by the counsel for the defendants below, to answers given by the court, to six points submitted by them to the court for their direction thereon to the jury. The first point was, “ that if the lands in dispute were embraced in the articles of agreement of the 20th of February 1795, relative to the North American Land Company, the plaintiff could not recover.” On this point the court told the jury, 1st, £C that the only evidence that these lands were embraced in the articles of agreement is, that the parties to that agreement, in their schedule, state 4 72,000 acres of land in Northampton county,’ as belonging to 4 Morris, Nicholson and Greenleaf.’ This is a vague description, and cannot, without something more definite, be held to embrace the tracts which by the evidence were the separate property of Robert Morris.” 2d. 44 That there was no evidence of any subscription by any person to the articles of agreement of the North American Land Company; and as the titles were only held by the trustees for the benefit of the subscribers to the articles, and those who might thereafter become purchasers, owners or holders of shares in the company, and it not appearing that the object for which the trust was created ever existed, the title of Robert Morris and of his heirs would not have been devested by the articles of agreement, for there were no persons to take under the trust, and until there were subscribers the trust would not take effect.” We consider the answers given by the court, on this first point, unexceptionably correct, and the reasoning of the court therein shows them to be so. The 2d point submitted was; “ if Robert Morris, or those under whom he claimed, did not procure the surveys to be made and returned, the surveys made and,re turned would not enure to their benefit.” To which the court answered; “there is no evidence that the surveys were not properly made for the person who held the warrants. By the order of the Board of Property the warrants went into the hands of William Gray, a deputy-surveyor, and were executed and returned by George Palmer, another deputy-surveyor. There is no evidence that these surveys were made for any one else than Robert Morris ; nor is there any evidence of claim under these warrants by Dyer, until the issuing of the patents to his heirs on the 9th of March 4824. When Thomas Dyer entered his caveat, on the 5th of August 1795, he claimed adversely to the warrant of Betsy Rice; and until the granting of the patent as above stated, does not appear to have set up any claim to the tract. Under the evidence, the court instruct the jury that there is nothing in the case from which it can be inferred that these surveys were not made for the benefit of Robert Morris, who was the owner of the warrants at the time the surveys were made.” Neither can we perceive any evidence given in the cause to the jury, tending in the slightest degree to show that the surveys were not procured to be made by Robert Morris, and it would therefore have been error in the court below to have submitted such a question of fact to the jury, without some evidence given going to show that the surveys were not made for Robert Morris. It was shown clearly that he was the owner of the warrants at the time; but even in the absence of all testimony tending to prove for whom the surveys were made, the jury were, in law, bound to presume that they were made for Robert Morris, he being the owner of the warrants. ' But suppose the surveys had been shown to have been made at the instance and for the use of another person, who had no right to the warrants, they being still the property of Robert Morris, the latter most unquestionably might have adopted and claimed the benefit of them; so that this point of the defendant might well have been answered in favour of the plaintiff below, even had there been evidence showing that the surveys were at the instance and for the use of another person. The third point was, “ That if those under whom the plaintiff claimed lay by from 1795 to 1838, without claiming or exercising any acts of ownership over the lands, and if Thomas Dyer and those who claimed under him during all that time claimed and exercised acts of ownership upon the lands, and paid whatever taxes were assessed upon them, the jury may presume an abandonment by,' and an ouster of, those under whom the plaintiff claims, which will preclude a recovery in this case.” To this point the court answered, “ That as stated it is correct, but is the point sustained by the evidence?” And then say that “ the only acts of ownership exercised by any of the parties are testified of by John Stoddart, whose evidence is as follows: ‘I have known Dyer and Bradshaw being up frequently looking after these lands, and exercising acts of ownership over them. They claimed them, offered them for sale, and sold a good many of the adjoining tracts. I was never on the land.” Then comes the payment of taxes for the years 1829, ’30, ’32, ’33, ’34 and ’35. It does not appear that other taxes were assessed upon the lands. Next we have the taking out of the patents in 1824. It does not appear that Morris, or other persons for him, ever exercised acts of ownership over, or paid any attention to, these lands until 1838. Now, while the court affirm the proposition assumed on this point as correct,- they instruct the jury that the facts in the case, as contained in the evidence, do not show such acts of ownership, and such payment of taxes by the defendants and those under whom they claim, as from them the jury can presume an ouster of the plaintiff, and such an abandonment of the land by him as will defeat his title.” It is perfectly clear that the court answered this point as favourably for the defendants as they had any right to claim. An ouster of the plaintiff, or those under whom he claimed until shortly before the commencement of this action, was entirely out of the question; for there was not even a spark of evidence given, going to show that Dyer or Bradshaw ever were on the land in dispute, or ever directed any act as owners to be done on it. And although John Stoddart does testify that he knew of their exercising acts of ownership over it, yet it is manifest that he only meant that they claimed it and offered it for sale, for he swears he never was on the land, and of course never could have seen them do any act of any kind on it. It lay in the midst of a wilderness, only visible to those who actually went on it, a thing that the witness never did. Paying taxes merely for land, without more, by a stranger, can neither amount to an ouster, or devest the owner of his title to it. And as to abandonment, this can never be presumed from lapse of time, where the plaintiff, and those from whom he derives his title, claimed and held the land, as in this case, under warrants and surveys, upon which the whole of the purchase money had been paid to the Commonwealth. Nothing short of an actual ouster of the owner from the land, in such case, by taking possession of it, and continuing to keep the same, by exercising acts of ownership at least upon it, for twenty-one years or upwards, will defeat the owner of his right to the land. But if he lies by for twenty-one years under such circumstances, with out making an entry upon the land, or bringing his action of equivalent for it, he will be barred by the statute of limitations. The fourth point of the defendants was ei That the patents given in evidence, under which the defendants claimed, were prim&faaie evidence of title, and would entitle the defendants to a verdict, unless the plaintiff had shown a better title.” To which the court answered “ that the point is correct, but then it remained to be ascertained, whether the plaintiff had not shown a better title. For if the person obtaining the patent be not entitled to it, he acquires no title thereby. He cannot recover the land unless entitled to the patent. Our inquiry therefore is, were the heirs of Thomas Dyer entitled to this patent ? If not, it cannot defeat the plaintiff’s right to recover. The plaintiff sets up a title prior to the patent, and is not to be affected by the recitals in it. It appears that Jacob Eyerly paid the purchase money to the State, and that Christ and Rice, the warrantees, conveyed to him. The deeds duly proved are a part of the plaintiff’s title. Nothing was done by Dyer or his heirs to authorize the issuing of the patents to them. One of the warrantees has testified before you that he gave no other deed than the one here given in evidence. The heirs of Thomas Dyer were then even the persons to whom the patents for these lands ought to have issued, and as against the elder title of the plaintiff, it cannot avail them to defeat his recovery.” We think the answer of the court to this fourth point of the defendants below perfectly correct, and that the facts given in evidence, and the reasoning of the court in regard to them, show conclusively that the heirs of Thomas Dyer, to whom the patents were issued, had no right whatever to claim them. The right now vested'in the plaintiff below, entitled whoever was invested with it at the time, to have had the patents; consequently, the plaintiff has the right to recover the land, in the same manner as if the patents had been issued to him, or any of those from or through whom he has derived his title. The fifth point of the defendants was “ That if the jury believed that Thomas Dyer procured the survey to be made by George Palmer, D. S., for himself, in pursuance of an arrangement between Robert Morris, or Eyerly, and himself; then this is a circumstance, taken in connexion with the neglect of Morris to perfect his title, or to look after the land, from which the jury may infer that Dyer had title to the lands.”- To this the court replied “ that there is nothing in the case upon which this point can be raised. There is no evidence to sustain it.” In this reply the court were no doubt correct, for there does not appear to have been a single tittle of evidence given, tending to show that Thomas Dyer procured the survey to be made for himself, or indeed for anybody else, either under the Christ or the Rice warrant; and without some evidence tending to prove that it was so, it would have been error in the court to have submitted it as a fact to the jury which they might find or pass on. The sixth point was “ That the patents conveyed the legal title to these lands to the heirs of Thomas Dyer. That if William Abbot be a bona fide purchaser without notice, the plaintiff could not recover, even if otherwise entitled, without having tendered the costs of the patents with interest, and the amount of taxes paid by him with interest, before suit brought.” To this the court answered, “ If a man wrongfully obtain a patent, and, under claim of it, pay taxes, he cannot raise an equity in himself or his vendee, as against the real owner, to be reimbursed for the costs of patenting and taxes. If he have a right to the patent, he holds the land. The plaintiff was not bound to pay for a patent granted against his title in subversion of it, and even given in evidence to defeat it; nor for the taxes paid by the person claiming that patent. It was issued to his injury and in wrong; and neither the wrongdoer nor his vendee can recover from the person injured what they thus paid.” We perceive nothing incorrect in this answer of the court. The court in their answer speak of the patentee as a wrong-doer; that is, as having obtained the patents wrongfully, or without right; a fact which, according to the evidence, cannot be questioned. This being the case, it would be strange indeed if either he or his vendee could claim to be reimbursed money laid out in the performance of such a wrong, by the party against whom the wrong was committed; or, in other words, for attempting to defraud or cheat him out of his title to the land. Mr Abbot, the vendee, cannot be considered in the light of an innocent purchaser, for he was bound, at his peril, to know the imperfections of the title he purchased, and is entitled to no favour or protection that the patentees could not claim. The remaining errors assigned are to the charge of the court; the first of which is an exception to what the court “ said respecting the effect of the proceedings before the board of property.” We however are unable to discover any error in what the court said relative to these proceedings. On the 11th of June 1792, Jacob Eyerly entered a caveat against Thomas Dyer and Thomas Wright’s obtaining patents for the land in dispute. Eyerly claimed the lands by virtue of the warrants in the names of Christ and Rice respectively; but under what rights Dyer and Wright claimed does not appear until the 5th of August 1795, when Dyer entered a caveat against the Betsy Rice warrant, claiming the land under an older warrant of 1784 in the name of John Carlisle. During the pendency, however, of the caveat entered by Eyerly, he, on the 11th of February 1793, sold and conveyed the Christ and Rice warrants, with the lands claimed under them, to Robert Morris, who, by letter dated April 19th 1793, after stating therein that he had purchased of Jacob Eyerly, Jun. the lands in contest between said Eyerly and Thomas Wright, (not Dyer, observe), as well as the right of the said Thomas (Wright), requested therefore that the caveat entered by the said Eyerly might be dismissed. The court below instructed the jury that “ there was nothing in these proceedings, in themselves or connected with any other part of the case, which could prevent the plaintiff from recovering;” and in doing so we think they were right. It was argued, however, that Morris, by withdrawing the caveat entered by Eyerly, gave up the contest with Thomas Dyer for the land. But Morris, by the terms of his letter, only withdraws the caveat as to the lands in contest between Eyerly and Thomas Wright, and not as to those in contest between Eyerly and Thomas Dyer, assigning also at the same time his reason for doing so, to wit, that he purchased the right of Eyerly and Wright thereto. So that it is perfectly clear that Morris, by withdrawing the caveat as to the lands which had been in dispute between Eyerly and Thomas Wright, intended to concede or give up nothing whatever to Thomas Dyer: and of this, the caveat entered upwards of two years afterwards, on the 5th of August 1795, by Thomas Dyer, against the owner of the Betsy Rice warrant obtaining a patent founded upon it, is complete confirmatory evidence. For it shows to demonstration that as late as August 1795, he had no claim to the land whatever by virtue of the Betsy Rice warrant, but claimed it under an older warrant, as he then alleged, dated in 1784, in the name of John Carlisle. Indeed, it does not appear from the evidence that Thomas Dyer ever, at any time, claimed the lands in dispute, or any part thereof, by virtue of the Christ or Rice warrants, or either of them, or that he ever pretended any claim to the warrants themselves; but it would seem rather that his heirs in 1824, after his death, fabricated deeds in the names of John Christ and Betsy Rice, the warrantees, for the purpose of enabling them to obtain the patents which the defendants gave in evidence, which, as has been shown, cannot avail or aid the defendants in the least. , The second error to the charge of the court is an exception to what the court “ said to the jury respecting the conveyance to the North American Land Company.” This part of the charge of the court has been referred to and shown to be correct in our notice of the defendants’ first point above; and therefore need not be considered again. The third and last ground of error to the charge of the court is, that they took the whole case from the jury, and left nothing for them to decide. The facts upon which the plaintiff below founded his claim, appear to have been clearly and incontrovertibly established by the evidence adduced in support of them : no evidence whatever appears to have been given by the defendants tending to disprove them in any degree whatever. This being the case, we think that the court were justified in saying, as they did, to the jury, in the conclusion of their charge, that “ there did not appear any defect in his (the plaintiff’s) title, or anything to have been shown by the defendants which ought to prevent his recovering.” Judgment affirmed.

The opinion of the Court was delivered by Gibson, C. J. The facts appear to be, that M’Gowan, an iron-master in failing circumstances, had assigned a quantity of pig-metal to M’Junkin, his creditor; and had subsequently assigned to Nesmith whatever should remain of it after satisfaction of M’Junkin’s debt. Bovard, the plaintiff, who was likewise a creditor and M’Gowan’s manager, applied for metal also; but being refused, assisted M’Junkin to take away enough to satisfy his debt, and sent the surplus to the defendant to be sold on his account. Nesmith now intervenes, and claims the proceeds under the assignment to him; and the question is, whether Bovard’s want of title to the metal, is want of title to the price of it. To state such a case is to decide it. Besides, the very principle was ruled in King v. Richards, (6 Whart. 418), in which the bailee of goods surreptitiously procured by the bailo', was allowed to set up the bailor’s W'ant of title to the goods as a defence to an action for them. Then if the defendants could have set up the plaintiff’s want of title to an action for the metal, they can equally set it up to an action for' the substitute. It is immaterial that the plaintiff took the metal before the assignment to Nesmith. His possession could not give him the property, or hinder it from passing to another; and to show that he had no title to the metal, is to show that he has no title to the proceeds of it. Unless the testimony of Floyd was offered to contradict the deposition of Josiah M’Junkin, which had been read on the other side — .a matter that does not appear by the bill of exceptions — it was erroneously-rejected. By having himself called him as a witness, the plaintiff had removed the objection which lay to him as a party, in the first instance. It is true, as was ruled in Ellmaker v. Buckley, (16 Serg. & Rawle 72), that the defendants could not cross-examine him as the plaintiff’s witness; and that they had no choice but to call him themselves. It is true, also, as has been said, (1 Stark. Ev. 162), that the same witness may know distinct parts of the transaction, the one making for the plaintiff and the other for the defendant; and that there is no good reason, when each calls him in turn, why each should not cross-examine him in turn, or be prevented from putting leading questions. The difficulty is to find a reason for those English decisions which hold the parties to a different course, and allow the witness to be cross-examined to every transaction within his knowledge in the hands of the party who is first compelled to call him. This would seem to be foreign to the end of a cross-examination, which is not to give the party an advantage in the manner of introducing the facts of his case, but to test the credibility of the witness as to what he has testified y for, it is said, that he shall not be cross-examined to collateral facts, or to matters unconnected with the subject of inquiry, because it would lead to complication and prolixity; (1 Stark. Ev. 154); and, I may add, that to reward a party with the privi lege of putting leading questions for bringing forward a branch of his case out of its order, would reward him for throwing the cause into confusion. Where the testimony of a witness is required to establish a fact which is part of the plaintiff’s case, and also another fact which is part of the defence, it is a dictate of justice that no advantage be given to either party in the manner of eliciting it. But an advantage is, in truth, given, and for no adequate reason, when a party is allowed to bring out his part of the case by cross-examination, merely because the opposite party had been compelled to call the witness in the first instance. In Rex v. Brooke, (2 Stark. Ca. 473), and Phillips v. Eamer, (1 Esp. Ca. 357), the witness was allowed to be cross-examined because he had been merely sworn, though he even had not been examined. The object could not have been to sift what he had said, for he had said nothing ; or to test his credibility, for it had no connection with anything that had transpired in the cause. There ought to be better authority for such a course, than one or two hasty decisions of a single Judge in the course of a trial. But the authority of these Nisi Prius cases is shaken to its centre by Reed v. James, (1 Stark. Ca. 132); Davis v. Dale, (1 Moody & Mal. 514), and Simpson v. Smith, (1 Stark. Ev. 162, note (n),). It would be better to say that each party should call the witness to serve his turn, and make him his own for the time being, than to entangle the justice of the case in those distinctions with which the English Judges have surrounded it. A plaintiff may be compelled to call the defendant’s principal witness to some matter of formal proof; and it is easy to see that the justice of the case would not be promoted by allowing the defendant, for that reason, to break in on the plaintiff’s order of proof, by introducing his defence, and eliciting the testimony in support of it by leading questions. But the question before us is not involved in these difficulties. The objection was not to the manner of examination, but to examination in any manner. ' By the English practice, he might have been examined to the new matter, when called by the other side, and why not when called in a subsequent stage of the cause 1 The plaintiff himself had called him to prove a part of his case, the witness consenting to be sworn; and had not this been done, he certainly would have been incompetent to testify for his co-defendant. And why? Because his interest raised a presumption unfavourable to his credibility, which would not have been rebutted. But did not the plaintiff rebut it when he produced him as a witness worthy of credit, and had the benefit of his testimony ? Or did he assert no more than that he was worthy of credit only when, he testified against his own interest? The man who is honest enough to declare the whole truth, when it makes against him, will be honest enough to declare no more than the truth in his own favour. It w'ould give a party an unjust advantage to let him pick out particular parts of a witness’s testimony and reject the rest. But the matter does not rest on principle alone; for it is a familiar rule that a party cannot discredit his own witness, or show his incompetency. If the objection, then, was made to the competency of the witness, and not to the substance of his testimony, he was erroneously rejected. The cause goes back on another ground; and, if there was error in this respect, it can be avoided at the trial. Judgment reversed, and a venire de novo awarded.