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The opinion of the Court was delivered by Gibson, C. J. Dr Peter Shoenberger, from whom the plaintiffs deduce their title, owned a moiety of Huntingdon Furnace, Sligo Forge, and the lands appurtenant, as well as a moiety of the ore reserved out of the grant of a tract of land by Gloninger & Co., under whom all parties claim, to one Beck; and the defendants owned a moiety. Dr Shoenberger owned also a third of Bald Eagle Furnace, of the Tyrone forges, and of the lands appurtenant ; of which the defendants owned two-thirds. The parties agreed to make partition of the whole, and to that end Dr Shoenberger conveyed to the defendants his third of Bald Eagle Furnace, the Tyrone forges, and the lands appurtenant; while the defendants conveyed to him their moiety of Huntingdon Furnace, Elizabeth Forge, and the lands appurtenant, (specifying the particular tracts), and also, by a separate and special clause, their moiety of the ore reserved out of the grant of Gloninger & Co. to Beck, in these words: “Also, the rights and privileges reserved in and by a deed of conveyance from John Gloninger &, Co. to Daniel Beck, by which the said John Gloninger conveyed to the said Daniel Beck a tract of land, &c., which deed contains a reservation as follows, to wit: ‘ Reserving out of this grant to the said John Gloninger & Co., their heirs and assigns, all the timber, wood, and ore-mines of every kind on the said tract being, with the right, privilege and liberty of entering on the said tract of land, &c.,’ ” with a memorandum at the foot that the right to cut was limited to timber of the first growth. While the defendants thus specially conveyed their share of the ore reserved in Gloninger’s grant to Beck, they reserved generally from their grant to Dr Shoenberger “ the full undivided half-part of all the iron-ore which may at any time be found on any of the land now belonging to Huntingdon Furnace or Elizabeth Forge, as hereinafter described, within not less than the distance of two miles from said Huntingdon Furnace, for the use of Bald Eagle Furnace.” Then followed the reservation of a right to enter, dig and carry away, with a proviso that the other half should be for the use of Huntingdon Furnace. The Beck tract is distant more than two miles from Huntingdon Furnace; and the question is, whether the defendants’ moiety of the ore in it, which they conveyed by a special clause, as the rights and privileges reserved by Gloninger, was taken back by the general reservation of the ore to be found on the lands then belonging to Huntingdon Furnace or Elizabeth Forge, or rather whether it passed at all. The defendants insist that though it may have been ore in the contemplation of the parties, it was land in contemplation of the law; and they suppose that if they have established that, they have brought it within the words of the general reservation. It is certainly true that a thing reserved remains as it was. A reservation, operating as it does by way of exception, keeps the thing from passing just as if there were no grant at all; so that, if this ore was land before the tract was granted to Beck, it was land afterwards, and consequently corporeal; in which respect the reservation of it differed from the reservation of a thing issuing out of land, like a rent, which is no part of it. There is no inconsistency between the reservation of a rent and a grant of the land, because nothing is to be taken back which has passed by the deed. Of a grantor’s power, however, to take back with one hand what he gives with the other, more will be said presently; but, to speak to the question of intention, what matters it that the ore reserved in the grant to Beck was land in contemplation of law, if it was not land in the contemplation of Dr Shoenberger and the defendants, or the land they intended to reserve by that description ? It is scarce necessary to advert to the great rule that the construction be as near to the apparent intent as possible, and “ that too much regard be not had to the nature and proper definition, signification and acceptance of words and sentences, to pervert the simple intention of the parties.” Touchstone 86. Neither is it necessary to advert to the rule that the meaning is to be collected, not from particular words, but from the context; and not from particular parts of the instrument, but from all the parts of it together. These are cardinal principles which come to the mind unbidden. Is it possible, then, that the parties contemplated a reservation of ore by the name of land, out of what was itself ore, and out of what they had not granted as land, but as rights and privileges previously reserved in a deed to which they referred for a specific description of the thing, and in which it was called ore ? If the defendants’ share of it were supposed to fall within their general reservation as land, it would have been supposed to fall within the general terms of their grant as land; and a special clause, granting it by a particular designation of it, would have been unnecessary. In other words, if they' had thought it land to be embraced by the general terms of their reservation, they would have thought it land to be embraced by the general terms of their grant. The right to a mine may be severed from the soil, as in Doe v. Wood, (7 Barn. & Ald. 724); and that the defendants thought the right had been severed in this case, though they knew nothing about the decision in that, is shown by the fact that they did not describe it as a part of the soil; and that they did not convey it as land, shows that they did not view it as land within the general clause of reservation, which had regard to land, and nothing else. It would have been absurd to reserve the ore from a grant of land which, according to the defendants’ argument, consisted entirely of ore; for the grant and the reservation could not have stood together. But the reservation was of ore lying on land then belonging to Huntingdon Furnace or Elizabeth Forge; and why qualify it as to time, unless to restrict the generality of the words to land which was once appurtenant to that furnace, or that forge, but which was so no longer? We cannot choose but think that the qualification had for its object the exclusion of the ore in the Beck tract from the reservation, because it is not found that the parties owned other lands which had been detached from Huntingdon Furnace or Elizabeth Forge, and it does not appear that there was anything else for its operation. If the ore in the Beck tract is not excluded by implication, what else is ? It is true that if it was land in the contemplation of the parties, it was land then belonging to Huntingdon Furnace, and the negative implied by the word “ now” would be inapplicable to it; but to give that word effect—and every word in a deed must be made to operate where it may—it ought to be shown that it was intended for something else. But the right to this particular ore had been severed from the land; and the restriction of the reservation to ore on land belonging to Huntingdon Furnace or Elizabeth Forge was doubtless intended to exclude it. The popular distinction between ore and land seems to have been studiously preserved; else why speak of ore lying on land, if the ore itself was deemed to be land ? To do so would be absurd. Again. If the parties intended to retain their shares of this ore, why put it in the conveyance at all ? They were joint tenants of it in equal proportions; and, according to the arguments, they are so still, the conveyance being so far a dead letter. Now, it is a rule, as we have said, that every part of a deed must be allowed to operate if it may; but, according to the defendants’ interpretation, the mutual action and reaction of the grant and reservation are so nicely balanced that neither can operate, and the title remains where it was—an interpretation that was rejected by this court in Baker v. M’Dowell, (3 Watts & Serg. 358), where a grant of part of a mine was attempted to be neutralized in the same way. It is true that the timber growing on the Beck tract was reserved along with the ore, and that the defendants’ grant might at one time have operated on it as one of the privileges conveyed; but the reservation was restricted to timber of the first growth, which in the usual course of things is cut off once in sixteen years to supply the coals necessary for a forge or a furnace; and this part of it had consequently become obsolete in the period of three- and-twenty years which intervened between the two conveyances. But, whatever were the intention, the rule that a reservation which is as large as the grant is void, and the grant valid, would control it. A reservation being an exception out of the thing granted, keeps the part reserved from passing; and unless it were smaller than the thing granted, nothing would pass, so that the grant would be void. But the law presumes that the grantor intended that his conveyance should take effect, and it gives effect to it in the only way it can, by disregarding the reservation. A valid reservation, therefore, must be the saving of a smaller thing out of a greater, or a particular out of a general.; as a room out of a house, or timber out of a manor. The subject of it must be not only a thing not expressly granted, but an accessory which is not inseparable from its principal. Again. Where it would destroy the entirety of the thing granted, it is void; as where the manorial court is excepted out of the grant of a manor, for there can be no manor without its court. So where it would destroy the grant altogether; for it has been held that a lease of all the lessor’s lands in a particular place, except his manor, passes the manor if he has no other lands there; and that a lease of a house and shops, except the shops, passes the whole. Every saving which crosses the grant is, so far as it is repugnant, of no force; and it is repugnant wherever the thing must necessarily pass, in the first instance, to satisfy the words. Many more examples of this common-place principle might be taken from Touchstone, (p. 78), where authorities for them are quoted. They are illustrations of the rule already glanced at, that all the parts of a deed shall operate where they may, and that, where they may not, those shall be rejected which stand in the way of its operating at all. Now, the saving out of the grant of this ore is just as large as the grant itself. It is true that the saving in the grant fro in Gloninger to Beck included “ore-mines of every kind;” and that the subject was granted to Dr Shoenberger in terms as large, while the reservation in the grant to the latter is of iron ore only. But the ore of no other metal was found in the region; and as the reservation was to benefit Gloninger as a manufacturer of iron, the presumption is that it was to be not more extensive than the necessities of his business. The difference between the words of the two reservations, in the terms of the first of which the subject was granted to Dr Shoenberger, was evidently the accidental work of the scrivener. It is true, too, that those terms were large enough to carry the timber; but at the end of twenty-three years the presumption is that the first growth of it had been exhausted. It would not differ the case if no such presumption were made; for the ore being expressly granted by reference to a deed in which it was specifically euumerated, could not be reserved. The case is in principle that of the house and shops, in which the saving of the shops was held to cross the demise of the whole. Independently, then, of interpretation, and of actual or constructive intention, this saving is repugnant and void by force of a plain, rational and undoubted rule of the common law. Judgment of the Common Pleas reversed, and judgment rendered by this court for the plaintiffs.

Opinion, Me. Chief Justice Paxson: This was an appeal from the order of the court below refusing’ to open a judgment entered by the Real Estate Investment Company v. Oliver Roop and Fanny C. Roop, appellants, in the sum of $680. The said Fanny was the wife of the said Oliver Roop, but this does not appear on the face of the note upon which the judgment was entered. The petition which was filed in the court below is not printed in the paper-books; hence we have no certain knowledge of the specific grounds upon which the judgment was asked to be opened, and we might well dismiss the case for this reason alone. We learn from the docket entries, however, that the application was on behalf of both defendants, and from the arguments of counsel, (a) that the note was usurious, and (5) that the defendant, Fanny C. Roop, was a married woman, and as such had no power to bind herself by a judgment note. As to the first proposition. The depositions show that only $500 was loaned to the defendants, but, as the plaintiff concedes this, and also alleges that it was a loan with the judgment note as collateral, and that no more than the $500, with interest, is claimed, there would seem no good reason why the court below should open the judgment and order an issue to try a fact which is not disputed. The second ground of relief is more serious. On behalf of Fanny C. Roop it was contended “that, as the record of the judgment reveals no contract within the power of a married woman to make, it is irregular as to Fanny Roop, and cannot stand.” The judgment is entirely regular upon its face, as the record does not show that Fanny C. Roop is a married woman. The depositions do show it, however, and the fact is not denied. The plaintiff contends that under the act of June 8, 1887, P. L. 332, known as the Married Person’s Property Act, a married woman has the power generally of confessing judgments, and refers us to the third section of said act as conferring it. Said section is as follows: “ A married woman may make, execute and deliver leases of her property, real and personal, and assignments, transfers and sales of her separate personal property, and notes, bills, drafts, bonds or obligations of any kind, and appoint attorneys to act for her, and it shall not be necessary for her husband to be made a party thereto or joined therein.” This language is certainly very broad, and is a part of the legislation, commencing in 1848, the object of which, evidently, is to emancipate married women from the restraints of the common law to a certain extent, and to enable them to act as femes-sole in respect of their property. It is not necessary for us to express an opinion of the wisdom of this legislation. We have followed the legislature cautiously, and have, as was our duty, given effect to these acts to the extent of their plainly expressed meaning; but it is so radical in its character, and so wide a departure from the common law, that we have been careful not to extend the force of any of these acts by judicial construction. The act of 1887 certainly does go very far in enlarging the powers of married women. The first section gives them the power of a feme-sole as to the acquisition, ownership, possession, control, use, or disposition of property of any kind in any trade or business in which, they may engage, or for necessaries, and for the use, enjoyment, and improvement of their separate estate, and to “ make contracts of any kind, and to give obligations binding herself therefor.” The only restriction upon the powers thus conferred is found in the proviso at the end of the section. It is as follows: “ Provided, however, that a married woman shall have no power to mortgage or convey her real estate, unless her husband join in such mortgage or conveyance.” The second section declares that a married woman may bind herself by contracts relating to any trade or business in which she may engage, or for necessaries, and for the use and enjoyment of her separate estate, and may sue and be sued, etc., in all respects as if she were a feme-sole: “ provided, however, that nothing in this or the preceding section shall enable a married woman to become accommodation indorser, guarantor, or surety for another.” Then follows the third section, which I have already quoted. It was contended that this section gives her the general power to contract, which would, of course, include the power to confess a judgment. If, however, it was intended to confer this broad power, and place a married woman on the same plane' with a feme-sole, it could - have been done in a few lines, declaring that hereafter a feme-covert should have the same power to contract debts as a feme-sole. For such a purpose it was unnecessary to frame an act with seven sections. We do not think it was intended to confer a power to contract generally. Of what use would be the restriction contained in the first section, that she shall have no power to mortgage or convey her real estate without her husband joining in such mortgage or conveyance, if she may bind her real estate by confessing a judgment for general purposes ? The third section must be read in connection with the other sections, and the act considered as- a whole. Viewed in this light, it un fetters a married woman, subject to the restrictions before mentioned, for three purposes, viz.: (a) Where she engages in trade or business ; (5) in the management of her separate estate; and (e) for necessaries. For any of these purposes she may bind herself and her estate or business by her contracts, and, I have no doubt, may lawfully confess a judgment. But beyond this we do not think the act confers any power. It is entirely proper that the law should clothe her with sufficient power to properly manage her separate estate; and when it authorizes her to embark in business it is right that she should be held to her contracts, which can only be done by authorizing her to make such contracts. So in regard to necessaries. If she may purchase them, she should be authorized to bind herself and her estate for them, in the usual manner, and by the usual forms by which contracts are made by persons sui juris. But we are not disposed to say that for every purpose she may make contracts, and bind her estate generally as may a feme-sole. The legislature must say so in language too clear to be misunderstood, before we will subject the estates of married women to such a peril as this. It was conceded that this judgment was given by a married woman. It was not pretended that it was done in the management of, or for the benefit of her separate estate, or in the prosecution of any business in which she was engaged, or for necessaries. On the contrary, if not given as surety for her husband, it was given upon his importunity and to aid him in liis business, one of the very perils from which the law ought to protect a married woman. The judgment having been confessed without authority, is void as to Fanny C. Hoop. The order of the court below is reversed as to Fanny C. Hoop, and the judgment against her is stricken from the record. Mr. Justice Mitchell dissented.

Opinion by Me. Justice Jones, On May 15, 1963, Kenneth C. Brown (appellant) was injured in the course of his employment with the Reynolds Metals Company. Reynolds’ workmen’s compensation insurance carrier, The Travelers Insurance Company (Travelers), accepted appellant’s claim for compensation under the provisions of The Pennsylvania Workmen’s Compensation Act (Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §1 et seq.) and made payments to appellant pursuant to the schedule established by the Act. Appellant then brought an action in trespass against Travelers, alleging that Travelers’ negligence in inspecting or failing to inspect Reynolds’ work places and equipment caused his injuries. After appellant had filed an amended complaint, Travelers filed preliminary objections in the nature of a demurrer to the amended complaint. The Court of Common Pleas No. 4 of Philadelphia County (per Spaeth, J.) sustained Travelers’ preliminary objections and dismissed the complaint. This appeal followed. Appellant raises two issues: first, whether, as a matter of law, Travelers had a duty to see that the area where appellant worked and the manner in which the work was done were safe; second, if the answer to the first question is affirmative, whether an employer’s insurance carrier is subject to suit under The Pennsylvania Workmen’s Compensation Act. We need not consider the first issue, for we hold that an employer’s insurance carrier enjoys the same immunity from liability under the Act as does the employer. Travelers’ position is that, under §303 of the Act (77 P.S. §481), the insurance carrier is entitled to the same freedom from common law liability as is the employer. Section 303 provides: “Snch agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages. . . . Such agreement shall bind the employer and his personal representatives, and the employe . . . .” (Emphasis added) Travelers claims that the insurance carrier is included within the term “employer,” relying on the definition of “employer” found in §401 of the Act (77 P.S. §701) : “The term ‘Employer,’ when used in this article, shall mean the employer as defined in article one of this act ... or his insurer if such insurer has assumed the employer’s liability . . . .” Appellant counters by arguing that this definition applies only to Article IV of the Act, that the employer’s immunity from liability is established in Article III and that, therefore, the general definition of “employer” set forth in Article I is controlling. Section 103 defines “employer” as “synonymous with master, and to include natural persons, partnerships, joint-stock companies, corporations for profit, corporations not for profit, municipal corporations, the Commonwealth, and all governmental agencies created by it.” (77 P.S. §21). No reference is made to the employer’s insurance carrier. The courts in this Commonwealth which have considered this question have disagreed as to which definition should apply. The leading case in support of the appellant’s position is Mays v. Liberty Mut. Ins. Co., 323 F. 2d 174 (3d Cir. 1963), in which the court (per Staley, J.) held that the Article I definition was to be applied to the immunity section in Article III. We are not persuaded by this opinion. The Mays opinion was carefully analyzed and criticized in an ex haustive and able opinion written by Judges Barbieri and Ullman — both of whom had extensive experience in workmen’s compensation prior to their elevation to the bench. Brown v. Travelers Ins. Cos., 37 Pa. D. & C. 2d 111 (Phila. C. P. 1965). Since we feel that Judges Barbieri and Ullman more than adequately set forth the reasons why the more restricted definition of “employer” should not apply to the immunity section, we quote at length from their opinion: “As is observed, Judge Staley’s conclusion is arrived at by his view that the language of section 103 is to be given superior force to that of section 401, for he refers to the former as the ‘principal definition’. One may ask, why so? We have noted previously herein that article I (including section 103) and article IV (including section 401), are neither of them substantive. We have termed them ‘external’ articles, as compared with the legislatively designated substantive articles II and III. In short, the first and fourth articles are ancillary, descriptive, unsubstantive and are both basically procedural in significance. It would have been inappropriate for the legislature to have included the workmen’s compensation insurance carrier as synonymous with employer in section 103 of article I of the act, because that section was delineating the status of employer and employe for the limited purposes of their status as parties to the statutory agreement to accept the compensation system which was set up in article III .... Chronologically speaking, it would be pointless and fruitless to discuss the insurance carrier in article I of the act, because the need for insuring could not arise until article III had become operative. It is the ‘master’ alone (who, before he accepts the act, has no need for a compensation insurance carrier), who is concerned with the substantive provisions of articles II and III. The employer not only has the right to reject the act, but frequently has done so. See Rich Hill Coal Company v. Bashore, 334 Pa. 449 (1939). Article IV sets up all of the provisions for every form of process and remedy available to a claimant and the manner in which liability of the employer to him is to be met, satisfied, settled, concluded and released; so that even under Judge Staley's conception of article IV, and section 401, the insurance carrier shares every one of the obligations, prerequisites, benefits and release rights of the employer. Thus, we find the legislature stating in section 401 that the employer, who had to be defined in section 103 solely as the ‘master’ for articles II and III purposes, would, for all remedial or procedural purposes, be taken to be a complex entity, including within its scope the compensation insurer (be it a private company or the State Workmen’s Insurance Fund), and the agent of such ‘master’.” (37 Pa. D. & C. 2d at 119, 120) If we were to accept the appellant’s argument that the Article I definition applies to Article III, then we would have difficulty interpreting §319, which states, “Where 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 . . . .” (Emphasis added) (77 P.S. §671). The appellant could hardly argue that if the employer has an insurance carrier, that carrier has no subrogation rights because the word “employer” as used in the subrogation section does not include the insurance carrier. Travelers argues quite convincingly that the legislature clearly intended the word “employer” as used in §319 to include the insurance carrier. Therefore, since §319 is part of Article III, this destroys the appellant’s argument that the Article I definition of “employer” applies throughout Article III. Instead, we are convinced that the legislature intended that the broader definition which clearly applies in §319 should also apply in §303 establishing the employer’s immunity. While we conclude that Judges Barbieri and Ullman correctly interpreted the Act, we must admit in all candor that the question is not free from doubt on the face of the statute. However, the relevant policy considerations reinforce our conclusion that the legislature intended that the insurance carrier would share in the employer’s immunity. First, if the appellant’s position were adopted, then a regrettable discrimination would result between employers who are insured by the State Workmen’s Insurance Fund or are self-insuring employers and those employers who carry private insurance. The statute setting up the State Workmen’s Insurance Fund specifically gives the Fund the same defenses which are available to the employer, and, therefore, it is impossible to bring a suit such as the instant action against the Fund or a self-insuring employer. Such discrimination would be inequitable and unjust both to the employers who utilize private insurance and to their employees: first, these employers would be placed at a competitive disadvantage since private insurance carriers would necessarily have to raise their rates to offset the increased liability placed upon them by the result urged by the appellant; second, the employees-would be disadvantaged because, in the wake of such a result, private insurance carriers would probably abandon all safety programs since these programs, instead of cutting costs by reducing accidents, would merely increase the orbit of the carrier’s liability. We cannot and do not believe that the legislature ever intended the Workmen’s Compensation Act to produce such discrimination. Second, we do not think that the legislature intended to place insurance carriers in such a position that they would be forced to abandon these safety programs. Today many insurance carriers undertake such safety programs in the factories and business places of employers whom they insure. Admittedly, these programs are not motivated by an altruistic feeling toward workers, since it is to the financial advantage of the insurance carrier to reduce accidents and safety programs reduce accidents. Nevertheless, although the insurance carriers are attempting to save money, the safety programs they institute directly benefit the workers. Under the appellant’s position, if an insurance carrier is negligent in instituting a safety program, it is liable to an employee who is injured as a result. Since the insurance carrier is not required by law to carry on these safety programs, the end result of the appellant’s argument seems assured — insurance carriers will specifically absolve themselves from undertaking such safety programs. Again, we cannot conclude that the legislature intended this result. Third, the weight of authority from other jurisdictions supports Travelers’ position. This question has been much litigated across the country. In 1960 the Supreme Court of New Hampshire held that a negligent insurance carrier was subject to suit by the injured employee. Three years later the Supreme Court of Iowa followed suit. However, the legislatures in both these states quickly amended their workmen’s compensation statutes to reverse the results reached in these cases. Courts in at least fifteen other states have considered this question and twelve of these courts rejected the position advocated by the appellant. Furthermore, at least seven states — including Pennsylvania — have amended their workmen’s compensation acts specifically to bar recovery by the employee against the insurance carrier. These statistics indicate that the position advanced by the appellant has generally met with disfavor and represents a minority view. The legislatures of at least nine states have come to the conclusion that permitting an employee to bring an action against the insurance carrier produces serious consequences for the entire structure of workmen’s compensation. In conclusion, we hold that the insurance carrier is included within the term “employer” as that word is used in §303 and, therefore, shares the employer’s immunity from common law liability. Order affirmed. Mr. Justice Cohen concurs in the result. Act of June 2, 1915, P. L. 762, §21, 77 P.S. §362. Smith v. American Employers’ Ins. Co., 102 N.H. 530, 163 A. 2d 564 (1960). Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 121 N.W. 2d 361 (1963). 2-B N. H. Rev. Stat. Ann., §281:12; 6 Iowa Code Ann., §88A.14. Those courts reaching a result contrary to the appellant’s position include: Horne v. Security Mut. Cas. Co., 265 F. Supp. 379 (E.D. Ark. 1967); State Compensation Ins. Fund v. Superior Court, 237 Cal. App. 2d 416, 46 Cal. Rptr. 891 (Dist. Ct. App. 1965); Bartolotta v. United States, 276 F. Supp. 66 (D. Conn. 1967); Gerace v. Liberty Mut. Ins. Co., 264 F. Supp. 95 (D.C.D.C. 1966); Donohue v. Maryland Cas. Co., 363 F.2d 442 (4th Cir. [Maryland] 1966); Matthews v. Liberty Mut. Ins. Co., 354 Mass. 470, 238 N.E. 2d 348 (1968); West v. Atlas Chemical Industries, Inc., 264 F.Supp. 697 (E.D. Mo. 1966); Mustapha v. Liberty Mut. Ins. Co., 387 F. 2d 631 (1st Cir. [Rhode Island] 1967); Williams v. United States Fid. & Guar. Co., 358 F. 2d 799 (4th Cir. [Virginia] 1966); Schulz v. Standard Accident Ins. Co., 125 F. Supp. 411 (E.D. Wash, [interpreting Idaho statute] 1954); Kerner v. Employers’ Mut. Liab. Ins. Co., 35 Wis. 2d 391, 151 N.W. 2d 72 (1967). The three courts which have reached the result advocated by the appellant include: Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 199 N.E. 2d 769 (1964) (4-3 opinion interpreting a Florida statute. A federal district court in Florida refused to follow the Illinois Supreme Court’s opinion in Hill v. United States Fid. & Guar. Co., 272 F. Supp. 569 (M.D. Fla. 1967)); Ray v. Transamerican Ins. Co., 10 Mich. App. 55, 158 N.W. 2d 786 (1968) (the Michigan federal courts reached a contrary result in Kotarski v. Aetna Cas. & Surety Co., 244 F. Supp. 547 (E.D. Mich. 1965), aff'd, 372 F. 2d 95 (6th Cir. 1967)); Mager v. United Hospitals, 88 N. J. Super. 421, 212 A. 2d 664 (App. Div. 1965), aff'd per curiam, 46 N.J. 398, 217 A. 2d 325 (1966) (this case can be distinguished on its facts, however, for the employee was injured as a result of improper medical attention in a hospital run by the employer’s insurance carrier). 8 Ind. Stat. Ann., §40-1205; 3A Neb. Rev. Stat., §48-111; 9 N.M. Stat. Ann., §59-10-4F.; 5 Ore. Rev. Stat., §656.018(3); 22 Tex. Civ. Stat. Ann., art. 8306, §3; 16 Wis. Stat. Ann., §102.03(2). The Pennsylvania statute — Act of January 25, 1966, P. L. (1965) 1552, §1, 77 P.S. §501 (pp) — was not in effect when this cause of action arose.

The opinion of the Court was delivered, March 12, 1855, by Lowrie, J. The boldness of this act seems almost like a studied test of the vigilance of the canal commissioners, and of the efficiency of the remedies which the state has provided for the prevention of injuries. It is hoped that the equity remedy, being somewhat unusual and peremptory in its character, will not be applied to an act which does so little real injury. But writs of capias, replevin, foreign and domestic attachment, estrepement, prohibition, and habeas corpus, are quite as efficient and peremptory in their form, and most of them are much more easily obtained, and yet they are common law writs. And estrepement applies to many of the same cases as injunction, and may issue without bail. And so it is or once was with the prohibition: 1 Mod. 76; 5 Id. 142; Skinner 626, 629; 11 Co. 48; 1 Rolle 86, 100; Hob. 36; 2 Bulst. 279; 2 Inst. 145, 299. In mbst'of the cases, moreover, in which we hear this objection to the injunction, the common law allows more speedy remedy, for it permits the inj.hred party to redress himself by driving off the wrongdoer. It is conducive to social order for government to furnish an equivalent judicial remedy. The argument that'there is no “irreparable damage,” would not be so often used by wrongdoers, if they would take the trouble to observe that the word “ irreparable” is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repealed and continuing character, or which occasion damages which are estimable only by conjecture and not by any accurate standard: 3 Railway C. 106, 345; 4 Id. 186; 1 Sim. & S. 607; 3 Atk. 21; 6 Johns. Ch. 501; 16 Pick. 525; 3 Whart. 513. As this argument is generally presented, it seems to be supposed that injunctions can apply only to very great injuries; and it would .follow that he who has not much property to be injured, cannot have this protection for the little he has. Besides this, where the right invaded is secured by statute or by contract, there is generally no. question of the amount of damage, but simply of the right. He who grants a right cannot take it away, even on giving a better, without a new agreement for the purpose: 19 Eng. L. & E. R. 287; 16 Pick. 525; 4 Sim. 13; 8 Wend. 99; 8 Paige 351; 2 Swanst. 253. And such was our decision in the late case of the Western Saving Fund Co. v. Philadelphia. And so it is when public rights are invaded.. In the case of the Attorney-Greneral v. The Cohoes Company, 6 Paige 133, there was an offer to tap the state canal for a mill purpose, and it was stopped by injunction withoht any regard .to evidence tending to disprove damage. And in Downing v. McFadden, 18 State R. 334, we justified the keepers of the public works in abating a house that encroached upon the embankment of the railroad, though a jury had found that it did no injury. ,; And when railway companies or individuals exceed their statutory powers in-dealing with other people’s property, no question of damage is raised when an injunction is applied for; but simply one of the invasion of a right: 1 Railway C. 135; 4 My. & Cr. 254. And railway companies will not be allowed to exercise their discretion capriciously: 1 Railway C. 238; but the Court will supervise their discretion, as in seeing that they shall not take more land than is needed, nor take land merely in order to get earth for embankments: 1 Id. 576; 4 My. Cr. 116; and that they do not unnecessarily affect a mill race by too small an arch over it: 1 Russ. & M. 181; 2 Railway C. 380. Railway companies must stand upon a strict construction of their chartered privileges: 21 State R. 22; 9 Beav. 391; 2 Man. & Gr. 134; 7 Id. 253; 1 Railway C. 576; 3 Id. 563; 21 Eng. L. & E. R. 620. With the immense powers that. are freely and loosely given to them, this much restraint is essential to the protection of private rights: 1 Railway C. 154, 504, 636; 4 My. Cr. 120. If they step one inch beyond their chartered privileges to the prejudice of others or of the stockholders, or offer to do any act without the prescribed preliminary steps, they are liable to be enjoined irrespective of the amount Of damage. They shall not take soil or land without payment or security: 1 Railway C. 242, 277, 684; 5 Id. 211; nor divide a plantation by their road, without making a good road or bridge communication between the parts: 11 Beav. 497; nor evade their duties or contracts relative to stations for stopping: 4 Railway C. 175; 3 Id. 367; 2 Id. 800; nor seriously injure the access to a wharf without making a new one: 6 M. & W. 699; 2 Railway C. 279; 1 Id. 616 ; nor injure, divert, and encroach upon public or private roads; unless in case of clear necessity, and then a perfect substitute must first be provided : 1 Railway C. 159, 283, 317; 3 Eng. L. & E. R. 263; 9 Sim. 78; and the dissent of one out of many tenants in common of land or easement will stay their hand until compensation be made: 1 Railway C. 120; 2 Id. 162, 395; 3 Beav. 119; 1 Cr. & Ph. 85. Damage or no damage to others they must obey their charter, and that was our decision in the late case of Manderson v. Commercial Bank. This will be the order, even if the plaintiff’s title be doubtful, if the duty be plain: 6 Ves. 703; 2 Mer. 29; and they may be enjoined from commencing their road without sufficient capital: 1 My. & K. 154; 2 Mees. & W. 824. Such at least is the practice elsewhere, and it may be well for us to learn by the experience of others. In the light of these principles the question before us is very easily decided. The matter complained of is an invasion of a public highway, and it must be enjoined against. The defendants are not allowed the excuse that this part of the canal is practically abandoned; for no neglect is chargeable against the state; its officers are insisting on its rights, and it is the merest effrontery in the defendants to set up their views of the need of the canal against the state which thought fit to make it, and against the public officers who are entrusted with its custody. We set aside the objections founded on the defects of the bill, because these being all amendable go for nothing at this stage of the case. It is therefore ordered that an injunction issue to prohibit the defendants from proceeding with the work complained of, in such a manner as in any way to prejudice or interfere with the rights of the plaintiff, until the further order of the Court. Lewis, C. J., dissenting.

Opinion by Mr. Justice Bell, Where a testamentary residuary trust estate is created to pay the income for life to each of five specifically named nephew and nieces and upon the death of a nephew or niece to pay $10,000 from the trust principal to each living child of a nephew or niece so dying, is this gift of $10,000 payable to each living child of all of testatrix’ nephews and nieces or only to each living child of the five named nephew and nieces who were the life tenants? Rose A. Britt, the testatrix, died April 4, 1949 leaving a last will dated December 3, 1947, and three codicils. Her gross estate exceeded $700,000; her residuary estate was approximately $418,000. After some personal and charitable bequests, testatrix gave $10,-000 to her brother, Benjamin T. Britt, and $1,000 to to each of his children who survived her. The next paragraph of her will contained the following controversial gift: “ELEVENTH. All the rest, residue and remainder of my estate of whatsoever kind and wheresoever situate, real, personal and mixed, I give, devise and bequeath to my Trustees hereinafter named, IN TRUST, to invest the same and keep the same invested and until the time fixed for the termination of the trust as hereinafter provided, to pay over the net income quarterly, in equal shares, to and among such of the following nephews and nieces of mine as may be living at each such quarterly period of distribution: Edward C. Britt, Esther N. Lipp, Miriam K. Graueh, Rosemary Britt and Vera A. Jones; provided, however, that upon the death of a nephew or niece of mine leaving a child or children him or her surviving, my Trustees shall pay over out of the principal of the trust estate the sum of Ten Thousand Dollars ($10,000.), to each living child of a nephew or niece of mine so dying. IN TRUST upon the death of the last survivor of my aforenamed nephews and nieces, I direct my Trustees, or the survivor of them, to convert the entire trust fund as it may then exist (after providing for the children of my nephews and nieces as hereinabove set forth) into cash, . . .”; and to pay the balance to certain named charities. Testatrix also executed three codicils, the last of which, dated January 24, 1948, was informal and contained the following statement: “Knowing that my brother Ben’s children will be very well provided for, accounts for my leaving less to them. I love them all dearly.” Testatrix at the time she executed her will had one brother who was living, Benjamin T. Britt, and. five brothers who were deceased. Two brothers, Albert J. and Walter F. Britt, were dead without issue; one brother, Edward, left one child, Rosemary Britt; one brother, Charles, left three children, Esther N. Lipp, Miriam K. Graueh and Edward C. Britt; and one brother, William, left one child, Vera A. Jones, then living. This nephew and these four nieces were specifically named as life tenants in the residuary (eleventh) paragraph of testatrix’ will. Ben had six living children who were between 36 and 48 years of age, and one child who was deceased, leaving four surviving children. The testatrix at the time she made her will knew this family situation, as well as the fact that Ben was very wealthy (he died two years later worth over a million dollars). Appellants, who are (a) Ben’s grandchildren, and (b) the guardian and trustee ad litem for Ben’s minor and unborn grandchildren, claim that each of them is (or will be) entitled to a legacy of $10,000 under the proviso clause of the eleventh paragraph of the will. Appellees claim that the $10,000 bequest is made only to each living child of the named nephew or niece who are the life tenants of the residuary trust estate. Each claimant apparently contends that the language of the residuary clause and of the entire will is clear and unambiguous; but the appellants contend that it means one thing, and the appellees contend it means exactly the opposite. The lower court believed that the will was ambiguous and therefore admitted extrinsic evidence in order to aid it in ascertaining the testatrix’ intent. Possibly for this reason, each party quoted well-known canons of construction to demonstrate the soundness of their construction of the will. The pole star in the construction of every will is the testator’s intent: Woelpper’s Appeal, 126 Pa. 562, 17 A. 870; Mulert Estate, 360 Pa. 356, 61 A. 2d 841; Byrne’s Estate, 320 Pa. 513, 181 A. 500. “The testator’s intent must be ascertained by a consideration of the entire will which of course must be read in the light of the circumstances surrounding him when he made it: Packer’s Estate (No. 1), 246 Pa. 97, 92 A. 65; Hermann’s Estate, 220 Pa. 52, 58, 69 A. 285; Mulert Estate, 360 Pa. 356, 61 A. 2d 841; March Estate, 357 Pa. 216, 53 A. 2d 606. The attendant circumstances include the condition of his family, the natural objects of his bounty and the amount and character of his property: Fahey’s Estate, 360 Pa. 497, 500, 61 A. 2d 880; Mayer’s Estate, 289 Pa. 407, 137 A. 627; Frisbie’s Estate, 266 Pa. 574, 109 A. 663.”: Newlin Estate, 367 Pa. 527, 529, 80 A. 2d 819. In determining the testator’s intention — if no uncertainty or ambiguity exists — his meaning must be ascertained from the language of his will; it is not what the Court thinks he might or would have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words: Conner’s Estate, 346 Pa. 271, 29 A. 2d 514; Ludwick’s Estate, 269 Pa. 365, 112 A. 543. Where a testator’s intent is clear from the language of his entire will, technical rules or canons of construction are unnecessary; it is only where the intent is uncertain or the language ambiguous that such canons should be resorted to: Haydon’s Estate, 334 Pa. 403, 6 A. 2d 581; Snyder Estate, 359 Pa. 138, 58 A. 2d 178; Walker’s Estate, 344 Pa. 576, 26 A. 2d 456. Placing ourselves in the testatrix’ armchair and considering the circumstances by which she was surrounded in order to assist us in arriving at her intention as expressed in the four corners of her will, Jackson’s Estate, 337 Pa. 561, 12 A. 2d 338; Clark Estate, 359 Pa. 411, 59 A. 2d 109, we believe the intention of this testatrix is clear. After a bequest to brother Ben of $10,000 and a bequest of $1,000 to each of Ben’s living children, she gave her residuary estate in trust to pay the net income to five named nephew and nieces for their respective lives, with the proviso that upon the death of a nephew or niece leaving a child or children him or her surviving, the trustees were to pay out of the principal of the trust estate $10,000 to each living child of such nephew or niece so dying. Upon the death of the last survivor of her aforenamed (viz. five named) nephews and nieces, the balance of the residuary estate, after paying the above mentioned $10,-000 legacies, was to be paid to named charities. It will be noted that the children of testatrix’ brother, Ben, were excluded from gifts of income in this eleventh paragraph, but the proviso clause thereof containing the $10,000 gift to each living child of “a nephew or niece so dying” is at first blush sufficiently broad to include the children of any and every nephew and niece of the testatrix including Ben’s children. However, this clause cannot be disassociated from the rest of the language of the eleventh paragraph of the will or from the codicil or from the general scheme of the entire will. Under appellants’ construction of this one clause, although Ben’s surviving children are not provided for in the gift of income, each of their children are entitled upon the death of their respective parent to receive $10,000 out of the principal of the residuary trust fund which was clearly set apart for the primary purpose of producing income not for their parent nor for their branch of the family but for five named nephew and nieces. The implausibility and unreasonableness of this construction is, we believe, apparent from a reading of the entire eleventh paragraph of the will and as we shall see from other parts of the will and the last codicil. For example, the gift over in the eleventh paragraph of the will to certain' named charities takes effect not upon the death of the last survivor of my nephews and nieces, but “upon the death of the last survivor of my aforenamed nephews and nieces”. If appellants’ construction were correct, it would mean that the testatrix (1) intended as she clearly said that her residuary estate should terminate upon the death of the last survivor of her five named nephews and nieces, yet also (2) intended to give to each of Ben’s surviving grandchildren $10,000 upon the death of each of Ben’s six children, some of whom might outlive testatrix’ five named life tenants. This would substantially reduce the income payable, to the five named nephews and nieces and would create uncertainty and conflicting intentions as to the duration of the trust, and consequently is not a reasonable construction. Moreover, the testatrix had in the eighth paragraph of her will given Ben $10,000 absolutely, and in the ninth paragraph of her will had given to each of Ben’s children who survived her $1,000 absolutely; and had stated in an informal codicil: “Knowing that my brother Ben’s children will be very well provided for, accounts for my leaving less to them.” This indicates an-intention to exclude Ben’s branch of the family from the residuary trust estate. We are of the opinion that the testatrix’ intention is clear from the language of the eleventh paragraph of the will read as a whole; and that this interpretation is fortified by the language and the scheme of her entire will and codicils, viz., that the grandchildren of testatrix’ brother, Benjamin T. Britt, are not included in the $10,000 bequest which, on the contrary, is' limited to each living child of testatrix’ named nephew and nieces. For these reasons it is unnecessary to discuss the canons of construction quoted by both parties, nor any other contentions of the appellants. . Decree affirmed. Costs to be paid from the principal of the trust estate. Italics throughout, ours.

Opinion by Mr. Justice Mitchell, The decedent died in 1884, and in the same year an appraiser was appointed and the collateral inheritance tax on personal property assessed and paid. Nearly twelve years afterwards a new appraiser was appointed by the register of wills, and made an appraisement of the proceeds of real estate in the city of New York which had been sold by the executors under the directions of the will, upon the expiration of certain life estates. The ground of this second appraisement was that the New York land had been converted into personalty by the testator’s direction to sell and that the first appraiser had omitted it. The fact of such omission was conceded. The auditor found expressly that the omission was not induced by any fraud or concealment, and the undisputed evidence shows that it was not the result of accident or of mistake in any proper legal sense but was done intentionally by the appraiser upon his view of the law. The error, if there was one, was due to the appraiser’s erroneous judgment, deliberately reached upon knowledge of all the facts. The commonwealth seeks, and the court has sustained, a second appraisement to revise this judgment of the appraiser. Clearly this cannot be done. The plain statutory remedy for such a case is not a second appraisement, but an appeal from the first. It does not admit of doubt that if the commonwealth had appealed, the court would have reviewed the appraiser’s action and corrected any error. This fact alone is conclusive that an appeal was the proper and exclusive remedy. How strictly parties in such case are confined to the statutory procedure is shown by Com. v. Coleman, 52 Pa. 468, where the appeal was taken in time but by the administrator instead of the devisee, and the court below having reduced the assessment, the judgment was reversed, this court saying, “ the effect of this will be to confirm a valuation which we fear was excessive and which, if we could enter into the question we would be likely to reduce somewhat if not as much as the court below. But as the record is, our judgment must be a reversal.” But there is another reason why this proceeding cannot be sustained. The statutes do not contemplate or provide for more than one appraisement. Oh the contrary the intent is that the first shall be complete and final. By the Act of April 10, 1849, sec. 12, P. L. 571, in force in 1884, “in order to fix the valuation of the real estate of persons whose estates are subject to the payment of a collateral inheritance tax ” the appraiser is required not only to “put a fair valuation upon said real estate,” and “ make a fair and conseionable appraisement of the personal estate of the decedent ” but also “ to fix the then cash value of all annuities and life estates growing out of said estate, upon which annuities and life estates the collateral inheritance tax shall be immediately payable out of the estate at the rate of said valuation.” By the next section, where any life estate is left to a person not taxable “ and the remainder over to collateral heirs at their decease, immediately after the death of the testator, the estate so granted shall be appraised .... and the collateral inheritance tax on the remainder shall be immediately due and payable.” It will thus be seen that nothing was allowed to escape or even to be postponed. Real estate whether in possession or in remainder, in fee or for life, annuities and personal property, everything taxable at all was to be included in the appraisement, which thus was not only to be exhaustive but necessarily final. The commonwealth did not intend to wait and take its tax in instalments as the annuities and profits of life estates accrued to their owners, or estates in remainder came into possession, but required everything to be appraised at the standard of its present cash value, and then exacted payment of the whole tax at once. The hardship of this law upon remaindermen was so manifest that by the Act of March 11, 1850, sec. 1, P. L. 150, an exception was made in their favor, by which it was declared lawful for them “ to elect to wait their coming into the actual possession,” and to defer payment upon giving security for the tax with interest from the time it accrued until paid. Even by this act however nothing was postponed but the date of compulsory payment. The tax was still left due upon the testator’s death, was still to be included in the appraisement and was to bear interest until paid. To avoid misunderstanding it may be well to note that the present case arose before the act of 1887, and any changes introduced by that act are not discussed. The legislative intent that the appraisement should include everything and be final, is further illustrated by the provision for the collateral inheritance record book. By section 15 of the act of 1849, the register of wills is required to enter in a book, to be kept for that purpose, the returns of appraisers, and to open an account in favor of the commonwealth against the decedent’s estate, and the tax so ascertained is to be a lien until paid. The register is also to give certificates of search from this book. And by the Act of May 4, 1855, sec. 3, P. L. 425, the register is required “ to keep and leave in his office, as a public record, the book containing the charges and credits for collateral inheritance tax.” The account of the commonwealth against the present estate was opened in this book, and the entries showed the assessment and payment of the collateral inheritance tax “ on personal property subject to tax.” It was strenuously argued for appellant that the entry must be understood as an assessment of the whole personal estate, and that being a record it could not be contradicted by showing the appraiser’s failure to include the proceeds of the New York land. It is not necessary in the view we take, for us to con sider how far a public record of this kind is invested with the attribute of unimpeachable verity that belongs to judicial records, and the subject is adverted to only as a further illustration of the legislative intent as to the completeness and finality of the first appraisement. The plain intent of the requirement of this book and searches to be given therefrom, is to liquidate and give certainty to the tax, which is a lien, and to show for the protection of all parties interested the amount of the tax, the date of its assessment, the estate subject to it, the parties liable for its payment, and the fact whether paid or not. In thus making provision for information upon which parties interested, as purchasers or otherwise, could safely act, the legislature did not contemplate the destruction of the vital element of certainty, by the possibility of a second appraisement, as in this case, nearly twelve years after the apparent closing and satisfaction of the whole claim by the payment of the tax formally and regularly assessed. The collateral inheritance tax has been in force for nearly three quarters of a century, but there is no case in our books sustaining a second appraisement. In Bittinger’s Est., 129 Pa. 838, the statement of the case calls the appraisement “ a supplementary ” one, but the facts in regard to it nowhere appear in the report, and the whole appraisement was declared void for want of jurisdiction over the property. In Eosselman’s Appeal, 2 Penny. 238, the appraiser intentionally omitted a certain note, stating in his return that he did so because of litigation as to whether it had been given to the appellant by the decedent in her lifetime. The tax was assessed on the rest of the estate, and paid. After the ending of the litigation, he added the note to his appraisement, and the legatee appealed. It was argued there as here that the first return must be treated as conclusively covering the entire taxable estate. It is notable that the argument for the appellee there was not a defense of a second appraisement, but that there was only one. And so this court held, saying “the original appraisement did not decide against the liability to tax .... but suspended a decision because the matter was in dispute. When it was afterwards settled that the gift or assignment was a testament, he then decided that it was subject to the tax. The limitation only began to run from the last date.” On the other hand in Com. v. Freedley’s Exrs., 21 Pa. 33, the tax was assessed and paid shortly after decedent’s death, but upon sale by the executors the value proved to be much greater than the appraisement, and the commonwealth claimed the tax on the excess, but this court held that the appraisement, unappealed from, was final. In the opinion it is said that “ property subject to the tax may be fraudulently concealed, accidentally overlooked, or may not be known to the representatives of the decedent at the time of the appraisement” and “ whenever portions of the estate come to light after the first appraisement they are to be appraised in the same manner, but as to such portions as were the subject of appraisement the ‘ clear value ’ is fixed.” This language however is intended to apply to the classes of fraud, accident or mistake which in equity are sufficient to open all transactions to re-examination and correction. The exceptions that it makes are not founded on any provisions of the statutes but on the general principles of law, and clearly do not include cases like the present where there was no fraud, accident or mistake, but at most an erroneous exercise of judgment by the appraiser. For that, the only remedy under all our cases, was an appeal. We are therefore of opinion that the first appraisement exhausted the commonwealth’s power, and the second and all the proceedings under it were void for want of authority. There are other objections to the second appraisement, but we do not consider them, as they were not assigned for error, and our views are fully set forth in Handley’s Estate, infra. Decree reversed and proceedings set aside, at costs of appellee.

Opinion by Mr. Justice Horace Stern, A wife succeeded in the court below in obtaining the enforcement of a separation agreement which she had entered into with her husband. The husband appeals. The parties, Fannie Zlotziver, plaintiff, and Herman Zlotziver, defendant, were married twenty-five years ago; they have two children, a daughter 24 years of age and a son aged 19. They own three pieces of real estate as tenants by the entireties — -a two story brick dwelling at 2014 Duquesne Avenue, a one story brick building at 443 Pacific Avenue, and a two story frame dwelling house at 439 Pacific Avenue, all in the City of McKeesport. Defendant conducted for several years a grocery and meat business in the 443 Pacific Avenue property. Husband and wife lived together in the Duquesne Avenue dwelling, but in 1944 disagreements arose between them, caused chiefly by the alleged philandering of defendant with a young woman employed in the business. In May of that year the parties separated; discussions ensued for a period of several months and in August a meeting was had in the office of plaintiff’s lawyer and an oral agreement entered into for what was intended to be a “complete” separation. The terms of this agreement were that defendant should transfer to plaintiff the business and a truck used in connection therewith and convey to her his interest in their real estate, in consideration of which plaintiff agreed to assume the mortgages and accrued taxes on the properties amounting to about $5,200, to liquidate all the then existing indebtedness of the business amounting to about $3,500, and to pay to defendant in cash the sum of $1,500; plaintiff also waived all claim to support for herself and the children and, in general, all rights arising out of the marriage. While it was apparently understood that she intended to institute divorce proceedings there was no agreement to that effect. Defendant signed a deed in blank and also a certificate of title to the truck and deposited these documents with the lawyer in order that the latter might insert in the deed a description of the properties and fill out the blanks in the title certificate; the lawyer was also instructed to prepare a bill of sale for the transfer of the business. At the same time plaintiff paid defendant $1,000 on account of the $1,500. About two months later she started divorce proceedings which are still pending. In October the parties made an attempt at reconciliation. Plaintiff told defendant she would give him a “trial” if he would come back and “stay good”; he came back but did not “stay good”; on the contrary, he allegedly continued his attentions to the woman employe with the result that the period of restored harmony lasted only for a couple of weeks, since which time the parties have not had conjugal relations. Plaintiff offered to pay defendant the remaining $500 due in cash, but he refused to accept it. She has been managing the business, has paid off the indebtedness, and has made reduction payments on account of the mortgages and taxes on the real estate. Plaintiff brought the present bill in equity against defendant praying that he be enjoined from interfering with the conduct of the business and that he be ordered to complete the conveyance of the real estate and the transfer of the business and the truck. The court found in plaintiff’s favor and entered a decree granting the prayers of the bill. The record is unsatisfactory. The testimony was presented in a disjointed and desultory manner and is replete with irrelevant and inconsequential matters. However, we cannot say that it does not justify the findings made by the court, all of which support plaintiff's version of the facts. Defendant’s present counsel urge five reasons why relief for plaintiff should be denied:— (1) because part of the agreement was for the conveyance of real estate but was not in writing and is therefore unenforceable; (2) because the reconciliation between the parties, even though abortive, constituted an abandonment of the agreement; (3) because the agreement contemplated the procuring of a divorce and is therefore illegal; (4) because the agreement is not one for which equity will grant specific performance; and (5) because a wife cannot sue her husband except in a proceeding to protect and recover her separate property. As to the first of these defenses, it is, of course, true that an oral agreement for the conveyance of land will not be enforced unless followed by change of possession and the making of such permanent improvements on the property as cannot be adequately compensated in damages : Glass v. Tremellen, 294 Pa. 436, 144 A. 413; Brotman v. Brotman, 353 Pa. 570, 46 A. 2d 175; Estate of Lena Hartzell, 114 Pa. Superior Ct. 190, 173 A. 842. The statute of frauds, however, does not absolutely invalidate an oral contract relating to land but is intended merely to guard against perjury on the part of one claiming under the alleged agreement. Accordingly, if the title holder admits, either in his pleadings or his testimony, that he did in fact enter into the contract, the purpose of the statute of frauds is served and the oral agreement will be enforced by the court: Sferro v. Urling, 328 Pa. 161, 167, 168, 195 A. 422, 425, 426; Williams v. Moodhard, 341 Pa. 273, 280, 281, 19 A. 2d 101, 104, 105; Shafer v. Shaffer, 344 Pa. 158, 161, 23 A. 2d 883, 885. Here defendant, in Ms testimony, admitted tlie making of the agreement as claimed by plaintiff. While he, as well as plaintiff’s lawyer, professed to regard it as “tentative” in the sense that they thought there might be a chance for future reconciliation, there were no statements made by either of the parties which would justify such a viewpoint. As to the second of the suggested defenses, although it is always competent for a party to a contract to establish that it was subsequently abandoned, as shown by actions of the parties inconsistent with its continued existence (Weldon & Kelly Co. v. Pavia, Co., 354 Pa. 75, 79, 46 A. 2d 466, 468), and although an agreement of separation, therefore, may be annulled by a reconciliation and a resumption by the husband and wife of the marital relation, this in every case is a question of intention, and whether or not the parties by such a reconciliation really intended to abrogate the separation agreement is to be determined from their statements, their conduct, and all the surrounding circumstances: Ray’s Estate, 304 Pa. 421, 427, 428, 156 A. 64, 66; Henkel’s Estate, 59 Pa. Superior Ct. 633, 636-638. According to plaintiff’s version she accepted defendant’s return to the household only for a trial period and on condition of his subsequent good behavior; in other words, the reconciliation was merely a provisional one. Under such circumstances, and in view of the fact that the condition imposed was not met by defendant and the parties promptly separated again, it would seem clear that, while the agreement may have been regarded as temporarily suspended, it was not rescinded or finally abandoned: cf. Alleman v. Alleman, 2 Dauphin County Rep. 209. As to the third defense, a contract is illegal if it has for its object the procurement of a divorce, as where the husband or the wife agrees to institute, or not to defend, a suit for that purpose: Mathiot’s Estate, 243 Pa. 375, 90 A. 139; Shannon’s Estate, 289 Pa. 280, 137 A. 251. But here there was no such contract. An agreement as to alimony or an adjustment of property rights between a husband and wife is perfectly proper and valid even though made in contemplation of divorce: Miller v. Miller, 284 Pa. 414, 418, 419, 131 A. 236, 238; American National Bank of Camden v. Kirk, 317 Pa. 551, 177 A. 801; Forbes v. Forbes, 159 Pa. Superior Ct. 243, 246, 48 A. 2d 153, 155. If plaintiff’s charges in regard to defendant’s marital derelictions are justified she presumably will be awarded a divorce in the proceeding which she has instituted, and it is not contended that defendant at any time agreed that he would not defend such a suit by refuting her allegations if it is possible for him to do so. As to the fourth defense, while equity will not ordinarily decree specific performance of a contract for the transfer of chattels or interests therein, it will do so where special and peculiar reasons exist such as render it impossible for the injured party to obtain adequate relief by way of damages in an action at law: Schipper Bros. Coal Mining Co. v. Economy Domestic Coal Co., 277 Pa. 356, 361, 121 A. 193, 194. As far as the grocery and meat business is concerned, it is a comparatively long-established and profitable enterprise, it enjoys a neighborhood good-will, and plaintiff would not be able to establish by any satisfactory standard of measurement in an action at law the damages that would accrue to her by defendant’s refusal to.carry out his agreement with regard to it. His obligation to transfer the business is therefore specifically enforceable. Moreover, equity, having assumed jurisdiction in respect to the conveyance of the real estate, may properly grant relief as to all the other terms of what is an indivisible contract. Finally, defendant contends that plaintiff cannot bring suit against him because of the marital relation. At common law the unity of husband and wife was regarded as such that an action could not be maintained by one against the other, and, while the Married Women’s Property Acts have given the power to a married woman to make contracts and to bring suits thereon, she is still prohibited from suing her husband, “except in a proceeding for divorce, or in a proceeding to protect and recover her separate property”: Act of June 8, 1893, P.L. 341, as amended by the Act of March 27, 1913, P.L. 14. But even before the passage of those acts separate agreements between husband and wife were always held to be valid and enforceable by both parties if they provided for an actual and immediate and not merely a contingent or future separation: Hutton v. Hutton’s Administrator, 3 Pa. 100; Hitner’s Appeal, 54 Pa. 110; Commonwealth v. Richards, 131 Pa. 209, 18 A. 1007; Scott’s Estate (2), 147 Pa. 102, 23 A. 214; Fennell’s Estate, 207 Pa. 309, 312, 56 A. 875, 876. And since those acts a suit by a wife against a husband on a separation agreement has been permitted without question, whether on the theory that her rights under such an agreement constitute her “separate property”, or because the policy of the law which frowns upon such suits while the home is intact has no point or purpose when the husband and wife are separated: Moorehouse v. Moorehouse, 7 Pa. Superior Ct. 287, 288, 289; Rodenbaugh v. Rodenbaugh, 17 Pa. Superior Ct. 619; Adams v. Adams, 32 Pa. Superior Ct. 353; Snyder v. Snyder, 57 Pa. Superior Ct. 575; Scott v. Scott, 95 Pa. Superior Ct. 273. The court found as a fact that defendant’s agreement was to transfer title to his undivided interest in all the real estate set forth in the bill of complaint, which would include the three properties held by the parties as tenants by the entireties. In the court’s decree, however, defendant is ordered to convey to plaintiff only tioo parcels of the real estate. Plaintiff has not appealed from that decree, but the record must nevertheless be remanded in order that the court below may properly indicate the properties which it is ordering defendant to convey. Decree affirmed but record remanded for supplemental decree. Costs to be paid by plaintiff. Defendant’s present counsel entered the case only after the entry of the decree nisi. See also Kaiser’s Estate, 199 Pa. 269, 49 A. 79; Singer’s Estate, 233 Pa. 55, 67, 68, 81 A. 898, 902; Lineaweaver’s Estate, 284 Pa. 384, 391, 131 A. 378, 380; Miller v. Miller, 284 Pa. 414, 417, 418, 131 A. 236, 238; Bay’s Estate, 304 Pa. 421, 430, 156 A. 64, 67.

CERCONE, Judge: At issue in this matter is the appropriate statute of limitations for private actions under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). Act of December 17,1968, No. 387, as amended 1976, Nov. 24, P.L. 1166, No. 260, § 1, 73 P.S. § 201-1 et seq. I. Appellants are individuals and owners of residential property located at 5714 Marshall Street in Philadelphia. The premises were previously owned by appellee. This action arose in connection with the purchase by appellants of the property from appellee. On or about June 19, 1980, appellants agreed to purchase the premises for the sum of $20,500.00. Appellants subsequently paid the full purchase price and took possession at settlement on August 29, 1980. Shortly after taking possession of the realty, appellants discovered an allegedly substantial defect in the main soil stack pipe from the cellar to the second floor bath of the house and a leak in the rainspout from the front porch of the house into the cellar. On August 25,1982, appellants filed a complaint alleging, inter alia, causes of action for breach of the implied warranty of merchantability, breach of contract, and fraudulent misrepresentation. The essence of appellants’ assertions were that the existence of the defects constituted a breach of the agreement of sale and that appellee falsely represented the quality of the premises and failed to disclose the existence of the defects. Subsequently, on July 28, 1986, appellants filed a petition for leave to amend their complaint in order to include a claim for violation of the Unfair Trade Practices and Consumer Protection Law. The Court of Common Pleas for Philadelphia County denied appellants’ petition by order of September 15, 1986 on the grounds that the statute of limitations which governs private civil actions under the UTPCPL had run. In its view, appellants’ amended cause of action was barred by Pennsylvania’s two-year limitations period for fraud, rather than the six-year “catchall” limitation period, since it was the closest analogy for appellants’ statutory claims. The timely appeal of this important question followed. n. Initially, we must determine whether the order denying amendment of appellants’ complaint is appealable. Pennsylvania Rule of Civil Procedure 1033 provides that “[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party, or amend his pleading.” Pa.R. C.P. No. 1033, 42 Pa.C.S.A. Although the decision to grant or deny a petition to amend a pleading is a matter of judicial discretion, we have held that “[ajmendments should be allowed with great liberality at any stage of the case unless they violate the law or prejudice the rights of the opposing party.” Gutierrez v. Pennsylvania Gas and Water Co., 352 Pa.Super. 282, 286, 507 A.2d 1230, 1232 (1986) (citations omitted). In Barr v. General Accident Group Ins. Co., 360 Pa.Super. 334, 520 A.2d 485 (1987), we considered the appealability of an order denying amendment of a complaint: “In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramification.” Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) citing Jackson v. Moultrie, 288 Pa.Super. 252, 431 A.2d 1033 (1981). “The finality of an order is a conclusion which can be reached only after an examination of its ramifications.” Praisner, supra, 313 Pa.Superior Ct. at 337, 459 A.2d at 1258, citing Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). When an Order so restricts the pleader as to virtually put him out of court on the cause of action he seeks to litigate, it is a final appealable Order. Trevellini v. West Realty Co., 289 Pa.Super. 84, 432 A.2d 1062 (1981). Id., 360 Pa.Superior Ct. at 344, 520 A.2d at 490. In the case sub judice, the denial of appellants’ petition to amend their complaint to include an UTPCPL claim has the effect of putting appellants out of court on a cause of action they seek to litigate. The amendment of appellants’ complaint to include a claim for violation of the Unfair Trade Practices and Consumer Protection Law does plead a new cause of action, but also brings forth a consideration of another statute of limitations in addition to the two-year statute of limitation for common law fraud. Thus, if a six-year statute of limitation is allowable for UTPCPL claims, appellants’ claim for treble damages and reasonable attorney’s fees, although under UTPCPL, would justify an amended complaint pursuant to section 201-9.2(a) of the statute: Any person who suffers any ascertainable loss of money or property, as a result of the use or employment by any person of a method, act or practice declared unlawful by [this act] may bring a private action to recover actual damages or $100, whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than $100, and may provide additional relief as it deems necessary or proper. The court shall award reasonable attorney’s fees to a person who prevails in an action brought pursuant to this subsection. 73 P.S. § 204-9(a) (emphasis added). Thus, while appellants would not technically be out of court because the claims for fraud and breach of contract and warranty were timely filed, the de facto result would be that appellants would be precluded from seeking recovery of damages and attorney’s fees to which they may be entitled under the UTPCPL. As such, denial of the petition to amend constitutes an appealable order. Cf. Barr, supra, 520 A.2d at 490. III. A prerequisite to the prosecution of a private enforcement action under the Unfair Trade Practices and Consumer Protection Law is that the action must come within the protection of the statute. Appellants argue the sale of real estate falls within the purpose of the UTPCPL. Contrawise, appellee asserts that the sale of the real estate is not within the purview of the UTPCPL. Our resolution of this question is premised upon consideration of the intention and objectives of the UTPCPL. Pennsylvania’s UTPCPL is modeled on the Federal Trade Commission Act. 15 U.S.C. § 45(a)(1). Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 462, 329 A.2d 812, 817-18 (1974) (the UPTCLP “has regularly been interpreted ... as being based on the Federal Trade Commission Act”); Commonwealth v. Flick, 33 Pa.Commw. 553, 561, 382 A.2d 762, 765 (1978) (“the Federal Trade Commission Act ... and the Lantram Trademark Act were models for Pennsylvania’s (UTPCPL)”). The UTPCPL supplements rather than supplants traditional common law remedies with per se liability for a variety of unfair trade practices. The broad construction mandated by the core concerns of the legislature in enacting the UPTCPL allowed our Supreme Court in Commonwealth v. Monumental Properties, supra, to hold that the leasing of residential real estate was within the purview of the statute’s intendment. The Court resting its holding on several bases, including the modern and traditional conceptions of leasing, held: Functionally viewed, the modern apartment dweller is a consumer of housing services. The ... (tenant) is as much a consumer as the purchaser of an automobile, household appliance, or any other consumer good. And from the landlord’s vantage, the marketing and distribution of [residential housing] increasingly follows methods mapped out by purveyors of modern consumer goods. Moreover, there is substantial consumer law authority that the leasing of property is identical to the sale of the premises. Id. 459 Pa. at 467-70, 329 A.2d at 820-23 (citations omitted). Additionally, the Court was mindful of the consequences of a contrary interpretation as well as the intent of the legislature: We have seen that the Consumer Protection law was designed to end unfairness and deception in consumer transactions with the result that consumers would be placed on a more equal footing with seller. And this law was meant to apply to “any trade or commerce directly or indirectly affecting the people of this Commonwealth.” 73 P.S. § 201-2(3) (Supp.1971). It would be difficult indeed to imagine anything that affects the lives and welfare of the people of this Commonwealth more than housing. The Legislature has repeatedly declared that this Commonwealth suffers from a housing crisis. Fully aware of the pressing need for adequate housing and the unequal economic position of landlord and tenant, the Legislature sought to end unfairness and deception in the conduct of trade or commerce. The Legislature directed that consumers were to be safeguarded by the Consumer Protection Law ... By holding that the leasing of housing is covered by the Consumer Protection Law, this Court faithfully gives effect to the legislative mandate. Id., 459 Pa. at 474, 478, 329 A.2d at 824, 826. Although we have no appellate decision in our courts specifically addressing this issue, our sister courts of common pleas have expressed a view on this question. In Anderson v. Kessler, 32 D. & C.3d 623 (Allegh.1984), it was held that “[i]f a leasehold of real estate is covered by the Consumer Protection Law, there is no reason why guarantees given in connection with the sale of real estate should not also be covered.” Id. at 625. Accord Best v. Hammill Quinlan Realty Co., Inc., 18 D. & C.3d 31 (Wash.1980). We agree, but base our conclusion on the more solid ground of the UTPCPL itself. The operative provision of the Unfair Trade Practices and Consumer Protection Law provides: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... are hereby declared unlawful.” 73 P.S. § 201-3 (emphasis added). “Trade” and “commerce” are defined by section 201-2(3) to include “the advertising, offering for sale, sale or distribution of any ... property, tangible or intangible, real, personal or mixed ...” Id. § 201-2(3) (emphasis added). Since unfair or deceptive acts or practices in the sale of real property are expressly declared unlawful, there is no merit to appellee’s assertion to the contrary. That sales of real property would be protected by the UTPCPL is consonant with its broad remedial purposes. Residential real estate is almost always a consumer’s largest single purchase. Consequently, the impact of unfair or deceptive practices is greatest in this type of transaction. IV. We now turn our attention to the important question of the appropriate statute of limitations for private enforcement actions brought under the UTPCPL. Inexplicably, the legislature, in enacting the UTPCPL failed to include a statute of repose for either actions for damages or injunctive relief under section 201-9.2. In the case sub judice, the trial court reasoned that such actions were governed by the two-year limitations period for actions for fraud and deceit: The underlying foundation of [the] Consumer Protection Law is fraud prevention. Commonwealth v. Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974) on remand 26 Pa.Cmnwlth. 339 [399], 365 A.2d 442 (1976). An action pursuant to the Consumer Protection Act must necessarily sound in fraud or deceit. Therefore, it is the opinion of this Court that an action pursuant to the Consumer Protection Act sounds in trespass and as such is governed by the two year limitation pursuant to 42 Pa.C.S.A. § 5524(b) (emphasis added). By contrast, a federal district court sitting in Pennsylvania applied a one-year limitation period to a trade disparagement claim brought under the UTPCPL. In the case of Merv Swing Agency, Inc. v. Graham Co., 579 F.Supp. 429 (E.D.Pa.1983), the action was for libel and for “[disparaging the goods, services or business of another by false or misleading representation of fact” under the Unfair Trade Practices and Consumer Protection Law. 73 P.S. § 201-2(4)(viii). The district court held that the plaintiffs common law libel claim was time-barred by 42 P.C.S. § 5523 which imposes a one-year limitation upon libel actions. The court drew an analogy between common law libel and the plaintiffs disparagement claim pursuant to the UTPCPL, concluding: Section 5523 is equally applicable to bar plaintiffs claim under [UTPCPL] § 201-2(4)(viii). This statute makes disparagement of the services or business of another by false or misleading representations of fact, an “unfair or deceptive act or practice.” This action for false representation of fact is essentially a claim for libel. Consequently, § 5523 applies and this claim must also be brought within one year after the cause of action arose. Id. at 430 (emphasis added). The analysis employed by both the federal district court in Merv Swing and by the lower court in the case at bar in selecting a statute of limitations for the UTPCPL involved application of the most closely analogous limitations period. This approach, however, yielded inconsistent determinations. We believe that this result is directly attributable to the sui generis nature of the Unfair Trade Practices and Consumer Protection Law since the statute encompasses an array of practices which might be analogized to passing off, misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of contract, and breach of warranty. Consequently, the use of the standard employed by the trial court in the case at bar to select a limitations period threatens a multiplicity of potentially applicable statutes of repose for UTPCPL actions. Plaintiffs would be uncertain as to which limitations period governed their UTPCPL claim until the court determined whether their claim more closely resembled a tort action, a contract action, or an action under some other statute. A uniform statute of limitations for the UTPCPL is required to preclude such uncertainty and inconsistency. Appellants contend that, there being no express limitation on private actions under the UTPCPL, and since their claims fall within the ambit of that statute, the six-year “catchall” limitations period of section 5527(6) of the Judicial Code, 42 P.C.S. § 5527(6), applies. We agree for the reasons that follow. The Pennsylvania legislature in 1976 enacted a new, all-inclusive limitation of actions statute. 42 P.C.S. § 5522-5527. This new statute, however, contained no express limitation on actions for fraud and deceit. In 1982, the legislature amended the Judicial Code to provide a two-year limitation period specifically for fraud and deceit actions. Id. § 5524(7). This amendment applies only to causes of action accruing after its effective date in February, 1983. Act No. 326, 1982 Pa.Laws 1409, 1440. Thus, the statute of limitations for fraud and deceit claims cannot apply to the instant case as the court below incorrectly held because appellants’ cause of aetion accrued in 1980, almost three years before the effective date of the two-year period of limitations for fraud actions. Even if we were to conclude that all actions brought pursuant to the UTPCPL sounded in deceit or fraud, what with appellants’ additional claims under UTPCPL the six-year “catchall” limitation of section 5527(6) would be applicable. As we previously noted, the Unfair Trade Practices and Consumer Protection Law embraces actionable conduct which sounds in assumpsit as well as trespass and which parallel actions upon contracts as well as those arising in tort. We are unable, therefore, to characterize all the multifarious claims that may be brought under the UTPCPL as “fraud” or “deceit.” Instead, the UTPCPL creates a civil action which is separate and distinct from appellants’ other causes of action and for which the legislature provided no limitations period. The language of section 5527(6) of the Judicial Code, however, is clear and unambiguous as to what period of limitation shall apply in such instances: “Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation [must be commenced within six years].” 42 P.C.S. § 5527(6) (emphasis added). Since section 201-9.2 of the UTPCPL provides for a civil action which is not subject to a limitations period, the Unfair Trade Practices and Consumer Protection Law is subject to the six-year “catchall” statute of limitations. We find further support for our determination in the decisions of the courts of other states which have concluded likewise. In Holley v. Coggin Pontiac, Inc., 43 N.C.App. 229, 259 S.E.2d 1 (1979), the Court of Appeals of North Carolina was required to determine the appropriate statute of limitations for the North Carolina Unfair Trade Practices Statute. N.C.Gen.Stat. § 75-1.1 et seq. The defendant in that case argued that the treble damages provision of the statute was analogous to a penalty and that therefore the one-year statute of limitations for “an action of proceeding ... [u]pon a statute, for a penalty or forfeiture” was applicable. N.C.Gen.Stat. § 1-54(2). Unconvinced, the Court stated: [I]t does not necessarily follow that because other multiple damages statutes have been found to involve penalties, all multiple damages provisions must therefore be penalties. Indeed, to adopt this reasoning, without more, would be to wander aimlessly through the annals of stare decisis. Quite simply, it may be inappropriate to select limitations by analogy from one subject to another, 53 C.J.S. Limitations of Actions § 33 (1948), especially if to do so would run against the policy and intent of the Legislature enacting the act in question, or if to do so would disregard the nature of the right involved. Id. 259 S.E.2d at 6. Finding next that the purpose of the Unfair Trade Practices Statute were both remedial and penal, the Court emphasized: “In addition, it appears that the provisions ... for treble damages and ... for attorney’s fees were intended by the General Assembly to serve as an incentive to injured parties to pursue their rights under [the Unfair Trade Practices Statute]. The nature of the violations of [that statute] is such that a one year statute of limitations makes it next to impossible to effectuate the policy behind [the statute].” Id. at 8 (quoting a transmittal memorandum from the attorney general). As such, the Court adopted North Carolina’s three-year “catchall” statute of limitations, adding “that where there is doubt as to which statute of limitations should apply, the longer statute should be chosen.” Id. (quoting 51 Am.Jur.2d Limitations of Actions § 63 (1970)). Confronted by the same issue in Murry v. Western American Mortgage Co., 124 Ariz. 387, 604 P.2d 651 (1979), the Arizona Supreme Court applied that state’s one-year “catchall” limitations period to the Arizona Consumer Fraud Act. The plaintiffs in Murry brought suit against a mortgage lender and a subdivision developer for damages sustained as a result of defects in their newly constructed house. Seeking to amend their complaint to include an action under the Consumer Fraud Act in addition to their common law fraud claim, the plaintiffs argued that Arizona’s three-year statute of limitations for fraud should apply. The trial court denied the motion on the grounds that the claim was time-barred by the one-year “catchall” limitation. The Arizona Supreme Court affirmed, because the act creates a new liability. Although the act renders illegal the use of fraud in connection with the sale of merchandise, the elements of a claim for relief are not necessarily identical to those of common law fraud action. Since the Consumer Fraud Act creates a cause of action separate from common law fraud, an action commenced thereunder must be brought within one year as [the catchall statute] requires. Id. 604 P.2d at 654 (citation omitted). Like the North Carolina and Arizona Courts, we find that the application of the six-year “catchall” period of limitations will effectuate the broad remedial policies of the legislature in enacting this statute and ensure that those consumers injured by unfair or deceptive practices may pursue their rights under the UTPCPL. V. Because we hold that the UTPCPL is governed by a six-year statute of limitations and in order to eliminate the aimless searching for various time limits within which to bring actions into UTPCPL, we find that the trial court abused its discretion in denying appellants’ petition to amend their complaint on the basis that a claim pursuant to the UTPCPL was untimely. Accordingly, the order of the trial court is reversed and permission to amend the complaint is granted. Jurisdiction is relinquished. POPOVICH, J., concurs in the result. . Appellants also filed on August 28, 1986 a writ of summons commencing a separate action pursuant to the Unfair Trade Practices and Consumer Protection Law so as to preserve their claim in the event their petition for leave to amend was denied. . Section 5524(7) of the Judicial Code, as amended 1982, sec. 20, P.L. 1409, No. 326, Art. II, § 201, 42 P.C.S. § 5524(7). This provision states: The following actions and proceedings must be commenced within two years: (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter. . Id. § 5527(6). This section provides: Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years, (emphasis added) . This principle is, of course, subject to the qualification that an amendment may not add a new cause of action on which a particular statute of limitations has run. Del Turco v. Peoples Home Savings Ass’n., 329 Pa.Super. 258, 478 A.2d 456 (1984). The issue in this case is whether another statute of limitation under the UTPCPL is equally applicable rather than the two-year statute for fraud. . Thus, although a claim under the UTPCPL brings forth a new cause of action, it also spawns a new statute of limitation period, to be discussed infra. . The UTPCPL was designed to promote full disclosure of information to consumers and "to equalize market position and strength of the consumer vis-a-vis the seller.” Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 467, 329 A.2d 812, 820 (1974). As the Supreme Court of Pennsylvania has observed: [TJhis Law attempts to place on more equal terms seller and consumer [and is] predicated on a legislative recognition of the unequal bargaining power of opposing forces in the marketplace. Instantly, the Legislature strove ... to ensure the fairness of market transactions. No sweeping changes in legal relationships were occasioned by the CPL, since prevention of deception and the exploitation of unfair advantage has always been an object of remedial legislation. Id., 459 Pa. at 460, 329 A.2d at 816 (footnote omitted). See also Pennsylvania Retailers Ass’n. v. Lazin, 57 Pa.Commw. 232, 237, 426 A.2d 712, 717 (1981); Commonwealth v. Kane, 33 Pa.Commw. 553, 559, 382 A.2d 762, 765 (1978). . Compare 73 P.S. § 201-3 ("Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... are hereby declared unlawful.”) with 15 U.S.C. § 45(a)(1) (“Unfair methods of competition in commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful."). The UTPCPL is also based on the Lanham Trademark Act, 15 U.S.C. § 1051 et seq. Compare 73 P.S. § 201-2(4) of UTPCPL (enumerating unfair or deceptive acts or practices) with 15 U.S.C. § 1125(a), which provides: Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation or origin, or any false description or representation, including words or symbols tending falsely to describe or represent the same, and shall cause such goods to enter into commerce ... shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of such false description or representation. . 73 P.S. § 201-2. . The Unfair Trade Practices and Consumer Protection Laws of at least twenty-nine other states also apply to real estate transactions. See Ariz.Rev.Stat.Ann. § 44-1521; Colo.Rev.Stat.Ann. § 6-1-102; Conn.Gen.Stat.Ann. § 42-110b; Del.Code tit. 6, § 2511; Ga.Code Ann. § 106-1202(c); Idaho Code Ann. § 48-602; Ill.Stat.Ann. ch. 121½ ¶261; Iowa Code Ann. § 714.16(1)(b); Kan.Stat.Ann. § 50-624(g); Ky.Rev.Stat. § 367.110; Me.Rev.Stat.Ann. tit. 5, § 213; Md.Com.Law Code Ann. § 13-101 & 102; Mass.Code Ann. ch. 93A, §§ 1(b) & 9(1); Mich.Stat.Ann. § 445.902; Miss.Code Ann. § 75-24-3; Mo.Ann.Stat. § 407.010; Mont.Rev.Code Ann. § 30-14-102; Neb.Rev.Stat. § 59-1601; Nev.Rev.Stat.Ann. § 598.440; N.H.Rev.Stat.Ann. § 358-A:1, N.D.Cent.Code § 51-15-01; Okla.Stat.Ann. tit. 15, § 752; Or.Rev.Stat. § 646.605; R.I.Gen.Laws Ann. § 6-13.1-1; S.C.Code Ann. § 34-5-10; Tex.Bus. & Com.Code Ann. § 17.45; Va.Code Ann. § 59.1-198; Wash.Rev.Code Ann. § 19.86.010; Wyo.Stat.Ann. § 40-12-102. For cases applying these statutes to real estate transactions, see, e.g., Klotz v. Underwood, 563 F.Supp. 335 (E.D.Tenn.1982); Wilkinson v. Smith, 639 P.2d 768 (Wash.App.1982); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981); Rosenthal v. Perkins, 42 N.C.App. 449, 257 S.E.2d 63 (1979); Sherrod v. Holzshuh, 274 Or. 327, 546 P.2d 470 (1976). For a full discussion and comparison of state unfair competition statutes, see generally, Sibert, Enforcement of State Deceptive Trade Practice Statutes, 42 Tenn.L.Rev. 689 (1975); Lovett, State Deceptive Trade Practice Legislation, 46 Tulane L.Rev. 724 (1972). In addition, the Federal Trade Commission has invoked jurisdiction over real estate sales transactions. E.g., Southwest Sunsites, Inc., 3 Trade Reg.Rep. (CCH) 22, 226 (1985) (cease and desist order against real estate developer for misrepresenting actual land values); Las Animas Ranch, Inc., 3 Trade Reg.Rep. (CCH) 21, 840 (1981) (restitution order for real estate buyers for misrepresentations as to quality of land, location of lots and availability of utilities); Cavanaugh Communities Corp., 93 F.T.C. 559 (1979) (consent order against realtor for nondisclosure of unavailability of sewage and water); Kaufman & Broad, Inc., 93 F.T.C. 253 (1979) (consent order against real estate developer for misrepresentations that homes were constructed free of defects and water drainage problems). . 73 P.S. § 201-2(4)(i) (passing off goods or services as those of another) See Bisceglia Bros. Corp. v. Fruit Industries, 20 F.Supp. 564, 568 (E.D.Pa.1937) (defining passing off as "the sale ... of the goods of one vendor ... for those of another"). . 73 P.S. § 201 — 2(4)(ii) (confusion as to commercial source); id. § (iii) (confusion caused by misleading tradenames). See American Oil Co. v. Norkus, 358 Pa. 407, 57 A.2d 868 (1948) (common law tradename infringement). . 73 P.S. § 201-2(4)(iv) (misdescriptive statements as to geographic origin) Compare id. with 15 U.S.C. § 1125(a) (reproduced footnote 6, supra). See also Gum, Inc. v. Gumakers of America, 1 F.R.D. 586 (E.D.Pa.1941) (common law trademarks). . 73 P.S. § 201-2(4)(viii). See Zerpol Corp. v. DMP Corp., 561 F.Supp. 404, 408 (E.D.Pa.1983) (disparagement action "protects economic interests by providing a remedy to one who suffers pecuniary loss from slurs affecting the marketability of his goods”). . 73 P.S. § 201-2(4)(v) (deceptive marketing of goods, services or business); id. §§ (ix) and (x) (bait advertising); id. § (xi) (fictitious price cuts). . Id. §§ (vi) and (vii) (marketing of altered or inferior goods); id. § (xv) (misrepresentation) id. § (xvii) (miscellaneous fraudulent practices). . Id. § (xvi). See Pa.Senate Leg.J., June 28, 1976, at 1798 (Sen. Zemprelli) (“deals with a matter which ... is regarded as a breach [sic] contract"). . Id. § (xiv). See 13 P.S. §§ 2313 (express warranty), 2314 (implied warranty of merchantability), 2315 (implied warranty of fitness for a particular purpose). . 42 P.C.S. § 5524(7) (two year limitation). . Id. § 5525(8) (four year limitation); 13 P.C.S. § 2725(a) (U.C.C. four-year limitation). . Violations of several other statutes also constitute violations of the UTPCPL. See, e.g., Bolden v. Potamkin-Auerbach Chevrolet, Inc., 470 F.Supp. 618 (E.D.Pa.1979) (Pennsylvania Motor Vehicle Sales Finance Act); Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986) (Unfair Insurance Practices Act); Culbreth v. Lawrence J. Miller, 328 Pa.Super. 374, 477 A.2d 491 (1984) (Public Adjuster Law); Pennsylvania Bankers Ass’n. v. Commonwealth, 58 Pa.Commw. 170, 427 A.2d 730 (1981); Safeguard Inv. Corp. v. Commonwealth, 44 Pa.Commw. 417, 404 A.2d 720 (1979) (Usury Statute). In addition, section 1961 of the Pennsylvania Automobile Lemon Law, 73 P.S. § 1961, expressly provides "[a] violation of this act shall also be a violation of the [UTPCPL].” Because the remedy of this statute is analogous to an action for revocation of acceptance under section 2608 of the Uniform Commercial Code, 13 P.C.S. § 2608, the four-year limitations period of the UCC is applicable. Id. § 2725(a). See Saunders, The Pennsylvania Automobile Lemon Law — Uncharted Terrain, 57 Pa.B.A.Q. 30, 36 (1986). . Until 1983, fraud actions were subject to a six-year statute of limitations. Act of March 27, 1713, 1 Sm.L. 76 (repealed by Act No. 53, 1978 Pa.Laws 202, § 2). See Home Life Ins. Co. v. Greenspan, 360 Pa. 542, 63 A.2d 72 (1949). In determining what limitations period governed fraud claims that accrued after 1978 but before 1983, the court in A.J. Cunningham Packing v. Congress Financial Corp., 792 F.2d 330 (3rd Cir.1986), held that the six-year "catchall” statute of limitations was applicable. . See supra notes 10-17 and accompanying text. The remedies of the UTPCPL are not exclusive but in addition to these other remedies. . "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 P.C.S. § 1921(b).

Opinion by Mr. Justice Walling, On the afternoon of October 20, 1917, plaintiff was injured near the northwest corner of Broad street and Windrim avenue, Philadelphia, as the result, he avers, of being struck by one of defendant’s autotrucks. Plaintiff was not mentally able to testify at the trial and only one witness, a Mr. Stauffer, was called to prove the accident. He was standing about 175 feet south of the corner on the east side of Broad street, and saw the truck coming south near the west curb of that street and about 200 feet north of the corner. He estimates its speed at about 20 miles an hour, and says there was no other vehicle in sight, and, as the truck turned west around the corner into Windrim avenue, lie saw plaintiff rolling in the street about five feet from tbe rear end of tbe truck, wbicb stopped in about 20 feet and later took plaintiff to tbe hospital. Tbe witness did not bear a born blown, nor see plaintiff until after tbe accident, and saw no contact between him and tbe truck, but infers be was struck by tbe back part of tbe latter. This appeal by plaintiff is from an order of tbe court below overruling his motion to take off a judgment of compulsory nonsuit. Plaintiff was unfortunate because of bis inability to testify, but, on tbe evidence submitted, tbe nonsuit was properly granted. Tbe mere fact that an automobile 'comes in contact with a pedestrian, or with another vehicle, raises no presumption of negligence against tbe chauffeur: Presser et al. v. Dougherty, 239 Pa. 312; see also Allen v. Kingston Coal Co., 212 Pa. 54. Tbe truck was on a broad open street, free from obstructions, and in tbe suburbs; nothing appears to suggest that tbe rate of speed was unlawful or negligent. Tbe statute then fixed tbe maximum rate of 24 miles an hour (sec. 14, Act of July 7, 1913, P. L. 672, 680) and now at 30 (sec. 19, Act of June 30,1919, P. L. 678, 689). Of course even a less rate may be negligent, depending on conditions, but tbe evidence here discloses nothing to suggest danger or even to show tbe approximate speed of tbe truck at tbe corner where tbe accident happened. Tbe truck was stopped in twenty feet and a lack of proper control is not shown; and tbe fact that a witness some distance away did not bear tbe born signifies nothing. He does not say be was listening for signals or that tbe born was not blown. True, tbe affirmative testimony of one witness as to lack of signals may take a case to tbe jury, but there is no such testimony here. Moreover, theré is nothing to indicate that speed or lack of signals bad anything to do with tbe accident: see Eastburn v. United States Exp. Co., 225 Pa. 33. In fact, it does not appear bow plaintiff came to be in tbe street, which way he was going, whether the truck ran against him or he against it, or neither; and whether he was attempting to cross the street or to get off the truck, or fell from it, is all matter of conjecture. Both he and the chauffeur are presumed free from negligence, neither can be charged therewith merely because of the accident, and plaintiff’s case fails because he shows no specific act of negligence that caused his injury: Stern v. Reading, 255 Pa. 96; Reddington v. Phila., 253 Pa. 390; Smith v. Phila. & Reading Ry. Co., 232 Pa. 323; Welsh v. E. & W. V. R. R., 181 Pa. 461. Where a defendant is responsible only for qne of two or more causes, and it is equally probable that the accident may have resulted from either there can be no recovery: Alexander v. Penna. Water Co., 201 Pa. 252. As no one saw plaintiff before the accident, so far as shown by this record, it is just as probable that he was riding on the rear end of the truck and was thrown therefrom, when it turned the corner, as that he was struck while attempting to cross the street, in fact more probable as he was not seen to fall in front of the truck but rolling behind it. Viewing the evidence, as we must, in the light most favorable to plaintiff, still it fails to sustain his case (Virgilio v. Walker & Brehm, 254 Pa. 241), for there is nothing upon which to base a verdict except conjecture, and that is not sufficient. No affidavit of defense was filed as provided by sections 6 and 13 of the Practice Act of May 14,1915, P. L. 483, the latter of which is, “In actions of trespass the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with section six; the averments of the other facts on which the plaintiff relies to establish liability, and averments relating to damages claimed, or their amount, need not be answered or de nied, but shall be deemed to be-. put in issue in all cases unless expressly admitted.” Appellant contends that, by the omission to file an affidavit of defense, defendants admit the averment in plaintiff’s statement that their truck came in contact with the latter. We cannot adopt this contention. Doubtless the legislative intent was, in the absence of contradiction by affidavit of defense, to dispense with proof of certain formal averments as to the instrumentality, or agency of the person, involved in the occurrence and charged with responsibility therefor — not to relieve a plaintiff from proving the vital averments of his declaration as to injury, negligence, damages, etc., or to require defendant to specially plead substantial defenses, like its own lack of negligence or the contributory negligence of plaintiff. For example, the failure to file an affidavit of defense in the present case constitutes an admission by defendants that the instrumentality charged with the accident was their truck, doing their business and in charge of their chauffeur; but the burden is still upon plaintiff to prove the accident and other facts necessary to support his case. In like manner, a defendant’s admission of ownership of a building would not enable a plaintiff to recover damages for falling therefrom without proof of the fall; nor would a carrier’s admission that he owned the car enable a passenger to recover without proof of an accident. Here the accident is the alleged collision, which is not established by defendants’ admission of ownership and control of the truck; hence, the lack of proof that it came in contact with plaintiff is another reason why his case fails. The order refusing to take off the judgment of non-suit is affirmed.

Opinion by Mr. Justice Linn, This is an interpleader to determine ownership of the proceeds of two 20-year endowment life insurance policies issued on the life of Beatrice Riley. The plaintiff is the insured’s father; defendant is her sister. The defendant was named beneficiary when the policies were taken out, but a few days before the insured’s death, she executed requests for change (naming her father), which were delivered to the company. Each brought suit on the policies. The company then filed its petition for an interpleader setting forth the rival claims, readiness to pay the amount due, and asked leave to pay into court. An issue was ordered for trial on pleadings under the Practice Act of 1915. The amounts due were paid into court. The father has judgment on the verdict. Defendant appeals. Two contentions are made, (1) that the effort to change the beneficiary failed because the policies were not delivered to the insurance company with the requests for change, so that the change could be endorsed on the policies, (2) that the insured had made a gift or equitable assignment of the policies to the defendant. The policies were not formally assigned to defendant. She testified that when the first policy was received (March, 1925), the insured said, “Here, Pearl, is my policy, you are named beneficiary, if anything happens to me you are to take care of me.” When the second was received (January, 1926), the insured said, “Here, Pearl, is my insurance, if anything happens to me you will be in position to take care of me in case of sickness or death.” The policies remained in defendant’s possession until after the death of the insured which occurred January 22,1929. January 14, 1929, seriously ill, the insured was taken to a hospital, and was visited hy her father. He testified that she said she wished him to have her insurance; that he advised the attending physician of this fact, who then wrote a proposed change of beneficiary which the insured signed in the presence of another daughter of plaintiff. On taking to the insurance office the documents so executed, plaintiff was informed that the change must be written on forms prepared for that purpose by the company. They were supplied to him, duly filled in by the company’s agent with all that was required for the purpose ; plaintiff gave them to the hospital physician, who again presented them to the insured, who executed them. Plaintiff took the requests to the insurance office on January 21st, where they were apparently accepted, though no endorsement was made on the policies, which still remained in defendant’s possession. No demand for the policies was made by the insured, or by anyone on her behalf, between January 18th when she executed the request for change, and the date of her death. Each policy contained the following provision: “Change of Beneficiary...... Every change of beneficiary must be made by written direction of the insured and any irrevocably designated beneficiary, and filed with the Company at its Head Office, accompanied by this policy, and the Company shall be charged with notice of such change only when endorsed on this policy by the Company......” One of the requests for change of beneficiary is quoted in the margin. Omission to deliver the policies with the requests may have been due to the serious character of the insured’s illness. The court specifically instructed the jury to determine whether the insured intended to make the change, whether there was fraud or unfair dealing in obtaining her signatures, and whether “every reasonable effort under the circumstances” was made to change the beneficiary; the verdict determines those facts for plaintiff. If the insured did all that she could do in the circumstances, more cannot be required: Gannon v. Gannon, 88 Pa. Superior Ct. 239; Sproat v. Travelers Ins. Co., 289 Pa. 351, 137 A. 621. The policies did not provide that the insurer must approve or assent to the choice of a new beneficiary, or that a change should take effect when endorsed on the policy (as in Sproat v. Travelers Ins. Co., supra, and Shoemaker v. Sun Life Ins. Co., 101 Pa. Superior Ct. 278, cited by appellant, though endorsement would seem only a ministerial act), but merely that they should be produced for the purpose of recording the only notice of such change which the insurer should be compelled to recognize. The company may waive compliance with a provision inserted for its benefit: Sane’s Est., 91 Pa. Superior Ct. 466, 473; Scheid v. Storch, 271 Pa. 496, 500, 115 A. 841; Royal Arcanum v. Behrend, 247 U. S. 394, 401; also see Vance, Insurance (2d ed.), page 571; Richards, Insurance (4th ed.), page 566. Paying the proceeds into court in discharge of its liability on the policies is conclusive proof of waiver. Appellant’s second contention also fails. Each policy was a chose in action. The insured paid the premiums. When delivered to her it became her property. Its terms measured the rights, obligations and limitations of the insurer, insured and beneficiary. As the insured had re served the unrestricted right to change the beneficiary, defendant then had no vested right to the insurance at maturity; she had only an expectancy of benefit: Irving Bank v. Alexander, 280 Pa. 466, 470, 124 A. 634; Weil v. Marquis, 256 Pa. 608, 614, 101 A. 70; Vance, Insurance (2d ed.), 559 et seq.; Richards, Insurance (4th ed.), 564. We have quoted defendant’s recollection of what was said by the insured when she delivered the policies to the defendant. Instead of supporting a gift, those expressions indicate an intention not to give absolutely; the proceeds are to be used for the account of the insured, not for defendant’s use. And defendant concedes this. Her argument is that the policies were delivered to her “with words” (we quote from her statement of questions involved) “indicating a gift and instructions to take care of insured in case of insured’s sickness or death”; they were, as appellant has phrased it, “instructions to take care of insured in case of insured’s sickness or death,” they do not show any intention to enlarge the rights of the beneficiary. The reservation of the unrestricted right to change the beneficiary at any time is a circumstance also inconsistent with intention to make a gift; there is nothing to indicate an agreement not to revoke the designation of the beneficiary. Moreover, defendant never thought that a gift had been made to her until after verdict, when, for the first time, it was suggested in the motion for a new trial. The documentary evidence supports the plaintiff; and not the defendant: Cf. Bond v. Bunting, 78 Pa. 210; Lightner’s App., 82 Pa. 301; Walsh’s App., 122 Pa. 177, 15 A. 470. There is no evidence that the insured intended to surrender policy rights to receive dividends, or to the cash surrender value or the proceeds at the expiration of the endowment period. A beneficiary may of course make a parol gift of a paid-up policy, as in Hani v. Germania Life Ins. Co., 197 Pa. 276, 47 A. 200, and the delivery of a policy may entitle the holder to the proceeds, as in Scheid v. Storch, 271 Pa. 496, 115 A. 841, both relied on by appellant, but the gift must be established by evidence. Defendant’s evidence fails. Judgment affirmed, costs to be paid out of the fund in court. “Request for change of Beneficiary. To the Fidelity Mutual Life Insurance Co., Philadelphia, Pa. I herewith inclose policy No. 375976, for $1,000 on my life, for the purpose of changing the beneficiary therein named as provided for in said policy, and I hereby designate and appoint William R. Riley, Rear 837 Neely Heights Ave., Coraopolis, Pa. (relationship Father) with the right to revoke and change the beneficiary. Send future premium notices to Myself. Address 306 Shady Ave., Pittsburgh, Pa. Witness my hand and seal this 19th day of January, 1929. Insured— Beatrice Riley. Witness F. T. Billings.”

Opinion by Mr. Justice Maxey, ■ This is an appeal from the decree of the Orphans’ Court .of Philadelphia County, dismissing exceptions to the adjudication of the auditing judge and holding that the pecuniary legacies bequeathed to them under the will of Florence Baird Jackson, deceased, cannot to any extent be paid out of the appointive estates. Florence Baird Jackson died a widow and without issue on November 30,1936. ' After directing in her will, dated May 8, 1934, the settlement of all her just liabilities and the setting aside of $500 in trust, the income from which is to be used in maintaining the burial plot in Laurel Hill Cemetery, she bequeathed to friends and relatives pecuniary legacies aggregating $47,000. She then provided by the 11th clause: “All the rest, residue and remainder of my estate, real, personal and mixed, of which I may die seised or possessed, or which I may have in expectancy or remainder, or over which I may have power of disposition by will, hereby expressly exercising any such poAver in me vested, I give, devise and bequeath to my Executor hereinafter named, in Trust, nevertheless, to take, hold, manage and control, and to invest and keep invested, and the net income therefrom to pay . at quarterly, or other convenient periods, in equal shares, to my sister, Mary Baird Shakespeare, and my niece, Beatrice Baird Butter Moore, for and during the terms of their natural lives.” The 11th paragraph provided further that upon the deaths of Mrs. Shakespeare and Mrs. Moore, the corpus of the principal should be paid to the respective children of these beneficiaries, per stirpes, with additional provision to meet the possible contingency of default of descendants. In a codicil dated May 7, 1936, appears the following direction: “Ask the Trust to pay any debts that I may have left unpaid, and to give 500 fres, to the St. John’s Church, Territet.” At the time testatrix made her will she owned in. her own right assets of the approximate value of $16,000 consisting, Avith the exception of some personal effects, of cash. At the time of her death she owned in her own right $5,104.22, and furniture and jewelry in Switzerland valued for tax purposes at about $8,600. In addition, she had a life interest in two trust funds over the principal of which she had the power to appoint by will. The one was created by an irrevocable deed of trust she herself made in 1883. The decedent received the income for life and upon her death the principal Avas given to her children or descendants if she had any (which she did not) and in default of issue, it reserved to her a general power of appointment. The other trust was created in 1866 by decedent’s father, Matthew Baird, which likewise gave her a general power of appointment. If the specific legacies are to be paid in full, the trust funds over which testatrix possessed the power of appointment by will must be drawn upon. The trustees under the two deeds of trust filed separate accounts and the balances were awarded to the executor under decedent’s will, with instructions to keep the funds separate to await disposition of the questions here involved and the final order of the Orphans’ Court. Both funds were included in the account of the executor and showed the “Principal Balance Florence A. Baird Trust” to be $192,647.40, and the “Principal Balance Matthew Baird Trust” to be $98,077.00. The pecuniary legatees contend that the decedent by her will so blended her individual estate and the appointive estates as to create a common fund out of which all bequests made by her should be paid. The residuary legatees deny any such blending except for the purpose of constituting the residuary estate. The auditing judge upheld the contention of the residuary legatees and awarded to the nine legatees, pro rata, only the property owned by decedent in her own right on the date of her death. Exceptions to the adjudication were dismissed by the court in banc, two judges dissenting. These appeals followed. In deciding whether or not there is a blending of estates in cases like the one before us, there is judicial unanimity in holding that it is entirely “a question of the testator’s intention.” Since intention is a state of mind it, in the absence of an unequivocal expression of intent, must be determined by inference from relevant attendant circumstances. Since the significance of circumstances impress different minds differently, we almost always have in these cases a conflict of opinion as to what a testator’s intent was. In the instant case, there is such a conflict of opinion, and the learned judges of the Orphans’ Court of Philadelphia County have reached conflicting conclusions and have supported their respective conclusions with able and learned opinions. In the instant will we find no unequivocal expression of the intent of its maker as to whether or not the specific bequests were to be paid exclusively out of Mrs. Jackson’s individual estate. The phrase, “all the rest, residue and remainder of my estate,” relates grammatically to the phrase, “over which I may have power of disposition by will,”.as much as it does to the words, “of which I may die seised or possessed.” The “residue” etc., she is talking about may as well be the residue of the appointive estates as of the individual estate. No rule of syntax requires that the first part of the 11th paragraph of the will be interpreted as though it read as follows: “All the rest, residue and remainder of my estate, real, personal and mixed, of which I may die seised or possessed . . . and also all of the estate over which I may have power of disposition by will ... I give, devise and bequeath ...” We cannot agree with the learned President Judge of the court below that “nothing could be plainer” than the language of the 11th paragraph as it is Avritten in the will. We think it is equally susceptible of the two conflicting interpretations now before us for review and therefore it is of no assistance to us in reaching a conclusion. Among the accredited canons which are applied in interpreting wills which do not unmistakably reveal the maker’s intention, are the following: (1) “The law will impute to a testator’s words such a meaning as, under all the circumstances, will conform to his probable intention and be most agreeable to reason and justice”: Johnson v. Brasington, 156 N. Y. 181, 185, 50 N. E. 859. (2)' “In determining the testator’s intention the court should place itself as nearly as possible in his position, and hence . . . should take into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will was executed . . . , tbe state of the property devised,” tbe amount and character of tbe property of tbe testator when be made bis will (McGlathery’s Est., 311 Pa. 351, 166 A. 886), and “tbe testator’s relation to tbe beneficiaries, tbeir condition or necessities”: 69 C. J., p. 63, sec. 1120. As tbis court said in McGlathery’s Est., supra, quoting from a well known English case: “You may place yourself, so to speak, in tbe testator’s arm-chair and consider tbe circumstances by which be was surrounded ... to assist you in arriving at bis intention.” See Jarman on Wills, 7th ed., 749. Keeping these canons in mind, let us consider tbe following facts: One of tbe trust funds over which tbe testatrix bad tbe power of appointment by will was tbe Florence Baird Trust amounting at tbe time of testatrix’s death'to $192,647.40. She herself bad created this trust fund with her own money. Except in a very technical legal sense, tbis fund was Mrs. Florence Baird Jackson’s own property. No one but she bad any right to its income and she alone bad tbe power to dispose of it by will. It would be most unusual if she did not look upon tbis trust fund as her own, in tbe fullest sense of tbe word,- to do with as she pleased. Tbis being tbe fact, it is difficult to find any reason why she would object to having tbis fund used, to tbe extent necessary, to pay tbe specific legacies she bad directed in her will to be paid to her relatives, godchildren and friends. Among these relatives were a nephew and a niece and a brother-in-law and sisters-in-law. Having thought so kindly of these relatives and friends on May 8, 1934, when she made her will, as to bequeath them substantial sums, amounting in tbe case of tbe relatives and one friend, to $5,000, each, it is scarcely conceivable that Mrs. Jackson “seated in her arm-chair” would intend that a sister and a niece (and tbeir descendants) would be tbe beneficiaries of trust funds totaling nearly $300,000, while tbe twelve relatives, godchildren and friends to Avhom she had bequeathed $47,000 should re ceive only pro-rata, shares oif $5,104.22 (the balance actually available for these legacies, without deducting anything for “any taxes that may be found to be due”). To hold that the trust fund Mrs. Jackson had created out of her own funds and the trust fund created for her by her father and over both of which she had the power of disposition by will, should be used in part, if necessary, to pay the legacies which the testator was at pains to make to her relatives and friends, is certainly to “conform to” the testatrix’s “probable intention” and is “most agreeable to reason and justice.” This conclusion is strengthened by a consideration of the fact that, according to all available evidence, when testatrix made her will her individual estate amounted to only $16,000. While this fact is not conclusive on the question at issue, it has great probative value. We agree with the court below that “the implication from such a fact should not overcome the express language of the will,” but, as we have already pointed out, there is in the will no such “express language” to be overcome. It is unreasonable to believe that Mrs. Jackson would bequeath $47,000 to twelve relatives and friends when she knew her individual estate could not pay more than a small fractional part of these bequests, unless she expected that the trust funds which for years had been for all practical purposes her own and over which she had the power of testamentary disposition were available for the honoring of these legacies and unless she intended by the words used in the residuary clause of her will to blend her appointive estates with her individual estate to the extent necessary to carry out her testamentary directions. We are not justified in believing that as to these special objects of her bounty the testatrix would “keep the word of promise to their ears and break it to their hopes.” As against appellants’ contention, attention is called to the fact that in 1925 testatrix made a will containing a residuary clause in language identical with the residuary clause under the will now before us and that by a codicil made in 1928 to the 1925 will, she directed that “the legacies herein bequeathed shall be paid from my residuary estate, including any estate . . . over which I may have power of appointment by will.” By a codicil in 1931 (to the 1925 will), she left similar directions as to two legacies of $5,000 each. From these circumstances the court below draws the inferences that (1) Mrs. Jackson “did not regard the clause in the residuary paragraph as blending her appointive estate for the purpose of the legacies in the paragraphs preceding the residuary clause”; and (2), when she wanted legacies to be paid out of the appointive estate she knew how to do it. While the logic of these inferences is not without some persuasive force, the force is decreased somewhat by the facts that neither Mrs. Baird nor the draftsman of the will were learned in the law and therefore it is unsafe to depend too much on inferences from their inclusion or omission of certain legal phrases. To a lay mind, the inclusion or omission of such phrases is of much less significance than to a legally trained mind. The draftsman of the will, Nelson C. Denny, testified (1) that he was “not a member of the bar,” and (2) that Mrs. Baird gave him no instructions “from which fund the legacies were to be paid” and he asked from her no instructions on that matter. It is therefore a legitimate inference that the failure to express definitely in the 1934 will the intention that the specific legacies were to be paid “from my residuary estate, including any estate , . . over which I may have power of disposition by will” (as was provided in the 1928 and 1931 codicils to the will of 1925), was the draftsman’s oversight and is devoid of significance. It is reasonable to believe that if Mrs. Jackson intended that the specific bequests should be paid only so far as her individual estate, was adequate for. that purpose, she would have directed the draftsman to incorporate in the will an unmistakable expression of that intention. It is also argued that since in the codicil of May 7, 1936, there appears the phrase: “Ask the Trust to pay. any debts I have left unpaid” etc., and since in paragraph two of the will testatrix had already directed the payment of her just debts, “she did not construe the exercise of the powers in paragraph eleven as applying to paragraph two, and hence did not regard it as a blending for all purposes.” The phrase: “Ask the Trust,” is manifestly a direction to her executor, the Fidelity-Philadelphia Trust Company. In a letter to Mr. Denny on July 11, 1932, she said: “I leave it to the Trust to do what they think best.” Here she obviously referred to the Trust Company as no one else could have been intended by the use of the word “Trust.” If she in a letter referred to her executor as “the Trust” on July 11, 1932, we are warranted in inferring that on May 7, 1936, when she in a letter used the same words she meant the same thing. The verb “ask” as used in the 1936 letter clearly implies that animate executives of the Trust Company and not an inanimate trust fund were to be the object of the demand. The court below based its decisión on the decision of this court in Valentine’s Est., 297 Pa. 99, 146 A. 453. In that case the point involved was the right of the Commonwealth to collect an inheritance tax on an estate over which a testatrix had the power of appointment by will. It was held that her will did not evidence an intention to blend the appointive estate with her own to such an extent as to subject the former to the state inheritance tax. This court there said, quoting from an opinion in Hagen’s Est., 285 Pa. 326, 331, 132 A. 175: “It was not the purpose of the testator to blend the appointive estates with his own for all purposes, 1 . . what he intended was that the appointive estates should follow the same channels of distribution which he designed for the residue of his [own] estate.” We then added': “This is equally true here, for no reasonably clear indication appears in the present will of an intention to combine the two estates into a common fund for all purposes; which is enough to sustain the decree under attack [italics supplied].” While it is not of great'significance, one fact which further distinguishes the instant case from Valentine’s Estate is that one of the trust estates, amounting to $192,647.40 was itself created out of the testatrix’s own funds, while in Valentine’s Estate the trust estate came from testatrix’s husband. This fact would naturally lead her to look upon it as in every respect one to be dealt with as she would deal with her own individual property. In her mind at least, the estate held in her own name and the estate which she had herself created would be looked iipon as “blended.” Furthermore, as this court said in Long’s Estate, 270 Pa. 480, 487, 113 A. 677 (quoting from an earlier opinion) : “ ‘Precedents are of little value in the construction of wills, because, when used under different circumstances and with different context, the same words may express different intentions. When the intent of the testator, and by that is meant his actual intent, can be fairly gathered from his words, the fact that another testator has used the same \vords With a different meaning is of no avail.’ ” In its opinion the court below said: “In case our conclusion on the principal question should be reversed we express the opinion that the legacies (including the benefits of the tax free clause) should be apportioned between the testatrix’s own estate, and the two trust funds upon the basis of the net values of the three funds.” With this we agree. The decree of the court below is reversed and the record is remitted for further proceedings in accordance with this opinion; costs to be paid by the estate.

OPINION ZAPPALA, Justice. The issue presented is whether a claimant is entitled to receive worker’s compensation benefits for a pre-existing non-work related condition when the claimant has fully recovered from any work-related injury caused by an aggravation of that condition. We find that a claimant is not eligible for worker’s compensation benefits under such circumstances. Joseph Baxter, a 31-year old welder employed by Bethlehem Steel Corporation, suffers from asthma. He was diagnosed with asthma during his childhood. While employed as a welder, Baxter suffered from breathing problems when he was exposed to fumes from paint used on freight cars. Bethlehem Steel paid for Baxter’s period of disability relating to the inhalation of paint fumes, and Baxter’s entitlement to benefits for that period is not an issue in this case. Baxter’s lung functions returned to normal after August 22, 1991; however, Baxter did not return to work based on his physician’s recommendation. On September 3, 1991, Baxter filed a claim petition seeking total disability benefits. At the hearing on the petition, Baxter’s medical expert testified that Baxter’s lung functions returned to normal after August 1991, but Baxter’s severe allergic asthma unrelated to work would put him at risk for further exacerbation of the asthma if he returned to work. The medical evidence established that Baxter’s work-related injuries had been completely resolved. It was undisputed that Baxter’s exposure to paint fumes had not resulted in any permanent injury to him. The referee granted Baxter’s claim for total disability benefits beginning February 17, 1991, and continuing into the indefinite future. Bethlehem Steel appealed and the Work men’s Compensation Appeal Board affirmed. The board held that Baxter was entitled to continuing total disability benefits in spite of the fact that he was able to perform his job because returning to the work environment would result in disability. On appeal to the Commonwealth Court, Bethlehem Steel argued that Baxter was not entitled to continuing benefits because his condition was not causally linked to any work-related injury, but only to a general prophylactic restriction on returning to an allergen-filled workplace. The Commonwealth Court affirmed the board. Citing our decisions in Farquhar v. Workmen’s Compensation Appeal Board (Corning Glass Works), 515 Pa. 315, 528 A.2d 580 (1987) and Pawlosky v. Workmen’s Compensation Appeal Board (Latrobe Brewing Company), 514 Pa. 450, 525 A.2d 1204 (1987), the court held that when a return to the workplace would exacerbate a preexisting condition and subject the employee to further aggravation of that condition, even though the employee’s preexisting condition is not work-related, the employee is entitled to worker’s compensation benefits. We granted Bethlehem Steel’s petition for allowance of appeal in order to consider Baxter’s eligibility for benefits where he was unable to return to work because his preexisting condition would be exacerbated if he should return to work. A claimant is not entitled to receive benefits when he recovers from an injury. “[Ejntitlement to benefits under the Act is contingent upon proof that the claimant suffered an injury or disease in the workplace and the injury or disease affects his or her ability to earn a wage.” Republic Steel Corporation v. Workmen’s Compensation Appeal Board, 537 Pa. 32, 36, 640 A.2d 1266, 1268 (1994) (emphasis supplied). In Republic Steel, we reiterated the longstanding principle that eligibility for workers’ compensation benefits requires that a claimant prove both the existence of a work-related injury and the loss of earning power. We referred to the seminal case of Unora v. Glen Alden Coal Company, 377 Pa. 7, 12, 104 A.2d 104, 107 (1954), wherein we adopted the following language from a treatise on Workmen’s Compensation Law: [T]he disability concept is a blend of two ingredients, ... the first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything---The proper balancing of the medical and the wage-loss factors, is, then, the essence of the ‘disability’ problem in workmen’s compensation. The claimant in Republic Steel was permanently disabled as a result of coal worker’s pneumoconiosis developed while employed in the coal industry. Because the claimant had voluntarily retired, the employer asserted that he had suffered no work loss and was not entitled to benefits under the Act. We held that the claimant was ineligible for benefits, stating “where the claimant suffers a disability which has no effect upon his earning power, no entitlement to benefits arises under the Act.” 537 Pa. at 37, 640 A.2d at 1269. A workers’ compensation claimant’s burden of proof is two-fold to establish eligibility for benefits. The claimant must prove that he was injured in the course of his employment and that the injury resulted in a loss of earning power. The claimant in Republic Steel continued to suffer from work-related pneumoconiosis but was ineligible for benefits because his loss of earning power resulted from his voluntary retirement. Conversely, in this case Baxter has proven a loss of earning power, but no longer suffers from a work-related injury. The referee accepted the medical opinion of Baxter’s own medical expert that the restrictions placed on Baxter had nothing to do with his actual employment at Bethlehem Steel. The referee specifically found that all of the medical experts had agreed that “the same prophylactic restriction on Claimant’s work in a dusty environment would have been placed on the Claimant whether or not he ever worked at Bethlehem Steel Corporation or had the episodes of exacerbation of his pre-existing asthma____” Referee’s Finding of Fact No. 6 (emphasis added). Therefore, Baxter has failed to establish his eligibility for benefits. Baxter cites no authority of this Court that would permit a claimant who has fully recovered from a work-related injury to receive benefits. His reliance upon Farquhar v. Workmen’s Compensation Appeal Board (Corning Glass), 515 Pa. 315, 528 A.2d 580 (1987) (Opinion Announcing the Judgment of the Court), is misplaced. In Farquhar, the claimant was employed by Corning Glass as a screen-maker. Her responsibilities included the manual production of frames and screens used to make decorative designs for Corning Glass products. She developed thrombosis which obstructed the flow of blood to her arm. The claimant’s medical expert testified that the incidents of thrombosis were caused by her work as a screen-maker. The employer cross-examined the expert as to whether the claimant had a physiological makeup that caused the thrombosis. The expert did not waver in his opinion as to causation, although he conceded that the claimant may have had a tight thoracic outlet that would result in more pressure on the vein extending down to the arm. The referee denied the claimant’s petition for reinstatement of benefits, concluding that although she had sustained a work-related injury she had returned to work without a loss of earning power. The referee’s decision was sustained by the Workmen’s Compensation Appeal Board and the Commonwealth Court. In a plurality opinion, this Court reversed on the basis that the claimant had met her burden of proving her eligibility for benefits. The opinion stated that the referee had improperly disregarded the claimant’s consistent, unequivocal medical testimony that the claimant had been seriously injured as a direct result of the work done at her place of employment and that she could not perform her job because she would risk being seriously injured again if she resumed her position. In Farquhar, the claimant introduced evidence that her thrombosis was directly caused by her employment. Although the employer suggested on cross-examination that the claimant’s injury was not caused by her work, the claimant’s medical expert’s opinion as to causation was unchanged. Farquhar is distinguishable from this case because it is undisputed that Baxter’s asthma was a pre-existing condition and was not directly caused by his employment. To the contrary, the referee found that the prophylactic restrictions placed on Baxter would have been placed on him regardless of whether or not he ever worked at Bethlehem Steel or had the episodes of exacerbation of his pre-existing asthma. We have held that under certain circumstances, a claimant may be eligible for benefits where a work-related injury results in a diminution of earning power. Lash v. Workmen’s Compensation Appeal Board, 491 Pa. 294, 420 A.2d 1325 (1980). The issue presented in Lash was whether claimants who were required to handle lead daily during the course of their employment were entitled to an award of compensation for partial disability when they were involuntarily transferred to lower paying lead-free jobs because they had become lead absorbers. The claimants were employed by a manufacturer of lead-lined batteries which required daily exposure to the risks of lead handling. Periodic tests conducted by their employer to determine the lead content of them blood indicated that the claimants had become lead absorbers, i.e., they had begun to absorb lead into their bloodstreams at an abnormally high rate. The employer transferred the claimants to lower paying positions in which they would not come into contact with lead. The claimants sought occupational disease benefits to compensate them for their loss of earnings. We held that the claimants had sustained a work-related injury of lead poisoning, which is defined under the Act as an occupational disease, and that they were entitled to partial disability benefits. The claimants had undergone physiological changes as a direct result of their exposure to lead; the amount of lead in their bodies had reached abnormal levels and caused them to become lead absorbers. The claimants continued to suffer from their work-related injuries when the claims were made. Unlike this case, the Lash claimants had established both an ongoing work-related injury and the loss of earning power as required under the Act. The claimants in Farquhar and Lash suffered from residual work-related injuries that were never resolved. The claimant in Farquhar continued to suffer from thrombosis which was caused by her employment; the Lash claimants continued to suffer from lead absorption which was caused by their employment. These work-related injuries were ongoing. The Farquhar claimant did not fully recover from the thrombosis; the blood of the Lash claimants did not become lead free. Had Baxter introduced medical evidence in this case that his exposure to paint fumes at Bethlehem Steel had resulted in an ongoing condition that affected his pulmonary capacity, Farquhar and Lash would be controlling. Instead, Baxter’s medical expert found no evidence that the claimant had sustained any continuing changes to his pulmonary capacity or in the functioning of his lungs. Baxter is unable to cite to any decision of this Court in which we have held that workers’ compensation benefits are available to a claimant who no longer suffers from any work-related injury, and relies instead on cases in which the claimants suffered from residual physical injuries caused by their employment. The Workers’ Compensation Act is the means to obtain compensation for injuries which has been substituted for common law tort actions between employees and employers. Kachinski v. Workmen’s Compensation Appeal Board, 516 Pa. 240, 532 A.2d 374 (1987). It undermines the principles of the Act to impose liability on an employer for the existence of a condition present from childhood when no residual work-related injury is demonstrated. Baxter was properly paid worker’s compensation benefits for the period of time he was disabled by conditions at his workplace, as those conditions exacerbated his pre-existing condition, but once he had fully recovered from that disability, he was ineligible for benefits. Accordingly, the order of the Commonwealth Court is reversed. NEWMAN, J., did not participate in the consideration or decision of this case. CAPPY, J., files a Dissenting Opinion in which NIGRO, J., joins. . This case was heard prior to the passage of Act 44 of 1993 in which the title of referee was redesignated as "workers' compensation judge.” 77 P.S. § 701. . Baxter relies primarily upon decisions of the Commonwealth Court which merely reflect the same conflict with this Court’s precedent addressed herein.

OPINION OF THE COURT FLAHERTY, Justice. This case was before us in 1989 to determine the jurisdiction of the trial court when it was alleged that all indispensable parties were not joined in the action. Our opinion in that appeal is helpful in understanding the background of the case. The factual background of the case is that J.H. France Refractories Company (hereinafter J.H. France) and its now wholly-owned subsidiary, the Van Brunt Company, between 1956 and 1972 manufactured and marketed a product containing asbestos. J.H. France also marketed and continues to market products containing silica, which, like asbestos, is claimed to cause physical injury to those who breathe it. On April 19, 1979, Gladys Temple, administratrix of the estate of Charles Temple, filed suit against J.H. France, claiming that her decedent, Charles Temple, suffered from asbestos-related diseases contracted through exposure to J.H. France’s asbestos-containing products from 1948 through 1978. J.H. France was insured during various time periods relevant to this action by the Pennsylvania Manufacturers Association, St. Paul, Allstate, U.S. Fire, Wausau, and Rock-wood Insurance Companies. Upon receipt of this suit, J.H. France presented the Temple claim to Allstate, St. Paul and PMA for defense and indemnity, the insurers who had provided coverage between 1967 and 1979. None of these insurers agreed to defend or indemnify, and J.H. France undertook its own defense. In 1981 J.H. France filed this declaratory judgment action for the purpose of determining the insurers’ duty to defend and indemnify against the Temple claim. Subsequent to the filing of this declaratory judgment action, additional asbestos and silica-related lawsuits were filed against J.H. France. Apparently because these actions were for injuries allegedly sustained during a time period which went beyond 1979 (into the 1980’s), additional insurance companies became involved. In 1984, Allstate filed its own declaratory judgment action, naming PMA, St. Paul, U.S. Fire, Wausau and Rockwood Insurance Companies, as well as fourteen individuals who had filed asbestos or silica-related lawsuits after J.H. France filed its original declaratory judgment action.' Still other asbestos or silica-related claims against J.H. France were filed after Allstate’s declaratory judgment actions were consolidated, and the carriers who insured J.H. France during the relevant time periods have taken differing positions with respect to their duty to indemnify and defend. If a defense has been provided, it has been provided subject to reservation of rights. The issues at trial were whether the various insurance companies were liable for the defense and indemnification of J.H. France for claims based on exposure to its products containing asbestos and silica, and if they were liable, how the liability was to be apportioned among the insurers. The various insurance contracts could be adjudicated in one action because the relevant language was virtually identical in all of the contracts. The trial court ... worked out a scheme ... in which the various insurers were required to defend and indemnify against asbestos or silica related claims made against J.H. France and determined that the insurers had not acted in bad faith in failing to defend or indemnify at an earlier time. Multiple appeals were filed in Superior Court challenging the substance of the trial court’s determination, but Superi- or Court declined to address the merits of the case on the grounds that the lower court did not have jurisdiction because parties who filed claims against J.H. France after the declaratory judgment actions were filed had not been included in the declaratory judgment action. J.H. France Refractories Co. v. Allstate Insurance Co., 521 Pa. 91, 93-95, 555 A.2d 797, 798-99 (1989). The first appeal resulted in a decision that the declaratory judgment action was proper despite the nonjoinder of parties who filed claims after the initiation of this proceeding, and the case was remanded for the Superior Court to review the substantive aspects of the appeal. Id. The review having been accomplished, we have allowed the appeal of J.H. France which challenges several aspects of the Superior Court’s disposition of the case, 396 Pa.Super. 185, 578 A.2d 468. Some additional facts are necessary to resolve the detailed issues under review. The six insurers which are parties to this action provided comprehensive liability insurance coverage to J.H. France at all times relevant to this action. All the policies contained identical language insofar as the relevant clauses are concerned: [The Insurer] will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury ... to which this insurance applies, caused by an occurrence, and [the Insurer] shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury.... “Bodily injury” means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom---- “Occurrence” means an accident, including continuous or repeated exposure to conditions, which result in bodily injury ... neither expected nor intended from the standpoint of the Insured. Pursuant to the stipulation of all parties, the medical evidence at trial included the testimony of Dr. John E. Craig-head, an anatomical and clinical pathologist who is an expert in pneumoconiosis and asbestos-related disease. In summary, he testified that “injury” is a “process which alters structure,” and the term is applicable in reference to a cell, a tissue, an organ, or the entire body. “Disease” means “an injury and a response to that injury.” The presence of asbestos in the lungs stimulates a wide range of reactions, which Dr. Craig-head divides into three responses. First, characterized as “direct injury,” asbestos fibers in the respiratory tract interact with the membranes of the cells lining the trachea and cause the release of enzymes and superoxides which either damage or kill individual cells. If sufficient cells are damaged, tissue (an accumulation of cells) is damaged or destroyed. This injury occurs within minutes after asbestos fibers enter the cells. Second, characterized as “indirect injury,” the presence of asbestos fibers stimulates macrophages to accumulate. Macrophages are scavenger cells which attempt to envelope foreign particles. As microphages attempt to ingest the fi bers, there is a release of enzymes which have a damaging effect on tissue. There is also a chemical reaction which scars the injured tissue. The accumulation of scar tissue in the respiratory system prevents the lung from performing its normal oxygen-carbon dioxide gas exchange. The process of macrophage accumulation, tissue scarring, and functional impairment of the lungs begins to occur within a month of exposure. The third response in the asbestosis process is a change in the form of the cells lining the bronchial tree. The normal lining, designed to move dust particles out of the body, is replaced by cells lacking cilia, resulting in a tendency toward accumulation of asbestos particles. The asbestosis process continues to progress even after exposure to asbestos ceases. Medical authorities differ on the reasons for this fact. Substantial authority regards this as the nature of the asbestosis pathogenesis. Another view theorizes that disease progression may be attributable to the eventual, and inevitable, decrease in the respiratory function involved in aging, and also to other factors such as cigarette smoking or infection. In either view, the injury process continues after exposure and may culminate in “manifestation,” such severe functional impairment that asbestosis is finally diagnosed, and of course, the disease may be fatal. Based on the foregoing record, the Superior Court held that liability of each insurer was triggered if any one of the three— exposure, progression, or manifestation — occurred during the term of its policy. The court prorated the obligations of all insurers whose policies were in effect throughout the development of the disease, including J.H. France as a self-insurer during periods when it did not purchase liability insurance. Although the Superior Court did not explicate this point, it seems implicit in its reasoning that the obligations to defend would be allocated pro rata in the same way as the obligations to indemnify; presumably J.H. France would bear a proportionate share of defense costs for periods when it did not purchase liability insurance. Finally, the Superior Court affirmed the trial court’s ruling that the insurers were not guilty of bad faith in contesting their duty to defend so that J.H. France was not entitled to attorneys fees in this declaratory judgment action. The first issue is whether the Superior Court was correct in applying the “multiple-trigger” theory of determining liability of the insurers — that is, in deciding that liability results if any one of the following occurred during the time an insurer was on the risk: exposure to asbestos or silica, progression of the pathology, or manifestation of the disease. The Superior Court concluded that the medical evidence of discrete cellular injuries occurring upon exposure to asbestos justifies the conclusion that exposure to asbestos causes immediate “bodily injury” in the terms of the insurance policies, triggering the insurers’ duty to indemnify. With this analysis and conclusion, we agree. In similar fashion, the Superior Court reached the conclusion that the term “bodily injury” also encompasses the progression of the disease throughout and after the period of exposure until, ultimately, the manifestation of recognizable incapacitation constitutes the final “injury,” and that these stages in the pathogenesis of asbestos- and silica-related diseases also trigger the liability of J.H. France’s insurance carriers. We find no error in this analysis and conclusion. The insurance policy language and the evidence of the etiology and pathogenesis of asbestos-related disease compel us to reach this result. The insurance policies obligate the insurers to “pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury ... to which this insurance applies, caused by an occurrence.” Whether the claimants’ diseases are “bodily injury to which this insurance applies” depends on the definition of bodily injury. The policies define bodily injury as “bodily injury, sickness or disease which occurs during the policy period.” The injuries at issue are caused by an “occurrence,” which the policies define as “an accident, including continuous or repeated exposure to conditions, which result in bodily injury ... neither expected nor intended” by the insured. The medical evidence in this case unequivocally establishes that injuries occur during the development of asbestosis immediately upon exposure, and that the injuries continue to occur even after exposure ends during the progression of the disease right up until the time that increasing incapacitation results in manifestation as a recognizable disease. If any of these phases of the pathogenesis occurs during the policy period, the insurer is obligated to indemnify J.H. France under the terms of the policy. Abundant authority supports this result. In the surfeit of litigation spawned by asbestos-related disease, many courts have recognized that mere exposure to asbestos causes injury within the meaning of the same policy language which controls this case. See, e.g., Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir.1980), clarified, 657 F.2d 814, cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). Other courts have recognized that manifestation, likewise, constitutes an injury which triggers the insurers’ obligation to indemnify. See, e.g., Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1280, 75 L.Ed.2d 500 (1983). Rather than selecting one or another of the phases as the exclusive trigger of liability, it seems more accurate to regard all stages of the disease process as bodily injury sufficient to trigger the insurers’ obligation to indemnify, as all phases independently meet the policy definition of bodily injury. This multiple-trigger approach, as well, has been adopted by other courts. See, e.g., Vale Chemical Co. v. Hartford Accident and Indemnity Co., 340 Pa.Super. 510, 490 A.2d 896 (1985), rev’d on other grounds, 512 Pa. 290, 516 A.2d 684 (1986); AC and S, Inc. v. Aetna Casualty and Surety Co., 764 F.2d 968 (3d Cir.1985); Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). We therefore affirm the Superior Court’s approval of the so-called multiple-trigger theory of liability adopted by the trial court. Thus, every insurer which was on the risk at any time during the development of a claimant’s asbestos-related disease has an obligation to indemnify J.H. France. The second question is how to allocate the liability of each insurer when, as is commonly the case, more than one insurer was on the risk at one time or another during the development of a claimant’s disease. As we have intimated above, the Superior Court adopted a scheme whereby the several insurers on the risk during a given claimant’s development of a disease would share the obligation to indemnify on a pro rata basis apportioned upon the amount of time each policy was in effect, including an obligation of J.H. France to act as a self-insurer during periods when it was uninsured. There are several reasons we decline to adopt this approach. First, and most compelling, is the language of the policies themselves. Each insurer obligated itself to “pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury to which this insurance applies.” We have already ascertained that any stage of the development of a claimant’s disease constitutes an injury “to which this insurance applies” under each policy in effect during any part of the development of the disease. Under any given policy, the insurer contracted to pay all sums which the insured becomes legally obligated to pay, not merely some pro rata portion thereof. As another court stated, each policy has a built-in trigger of coverage. Once triggered, each policy covers [the manufacturer’s] liability. There is nothing in the policies that provides for a reduction of the insurer’s liability if an injury occurs only in part during a policy period. As we interpret the policies, they cover [the manufacturer’s] entire liability once they are triggered. Keene, supra, 667 F.2d at 1048. (Emphasis in original.) Second, there is no medical evidence in this case to substantiate the assumption that the progression of asbestos-related disease is linear in character. There is, instead, good reason to believe otherwise. See INA v. Forty-Eight Insulations, Inc., supra, 633 F.2d at 1214. To apportion liability among the insurers on a strictly temporal basis in direct proportion to the length of time each insurer was on the risk, however, notwithstanding its surface attractiveness, assumes a linearity of disease progression which this record does not support. Third, although it is superficially attractive to include J.H. France in the pro rata apportionment of liability for periods during which it was uninsured, to do so is to create a judicial fiction which cannot be supported, viz., that J.H. France was self-insured under a policy the terms of which are ascertainable so that J.H. France may be included among the insurers in apportionment of liability. Faced with the same argument, the United States Court of Appeals for the District of Columbia Circuit stated: We have no authority upon which to pretend that [the manufacturer] also has a “self-insurance” policy that is triggered for periods in which no other policy was purchased. Even if we had the authority-, what would we pretend that the policy provides? What would its limits be? There are no self-insurance policies, and we respectfully submit that the contracts before us do not support judicial creation of such additional insurance policies. Keene, supra, 667 F.2d at 1048-49. Fourth, the definition of an “occurrence” which constitutes a risk against which the insurance was provided leads us to reject the pro rata allocation ordered by the Superior Court. The definition suggests that any insurance policy triggered under the “multiple-trigger” concept with respect to any specific claim is potentially liable for the entire amount of any judgment or settlement of that claim. An “occurrence” includes “continuous or repeated exposure to conditions which result in bodily injury.” The insurers which drafted the definition obviously contemplated the possibility of injury resulting from continuous or repeated exposure to conditions, and specified that the process of exposure was to constitute one occurrence. If prolonged exposure, constituting one occurrence, resulted in injury, and if the injury occurred during the time a given policy was in effect, then the injury is an insurable risk under the terms of that policy. Being defined as one “occurrence,” the entire injury, and all damages resulting therefrom, fall within the indemnification obligation of the insurer. In other words, once the liability of a given insurer is triggered, it is irrelevant that additional exposure or injury occurred at times other than when the insurer was on the risk. The insurer in question must bear potential liability for the entire claim. In keeping with this analysis, we conclude that each insurer which was on the risk during the development of an asbestosis-related disease is a primary insurer. In order to accord J.H. France the coverage promised by the insurance policies, J.H. France should be free to select the policy or policies under which it is to be indemnified. This analysis was also used in Keene, supra, to implement the multiple-trigger approach to liability. The court stated: In any suit against Keene for an asbestos-related disease, it is likely that the coverage of more than one insurer will be triggered. Because each insurer is fully liable, and because Keene cannot collect more than it owes in damages, the issue of dividing insurance obligations arises. The only logical resolution of this issue is for Keene to be able to collect from any insurer whose coverage is triggered, the full amount of indemnity that it is due, subject only to the provisions in the policies that govern the allocation of liability when more than one policy covers an injury. That is the only way that Keene can be assured the security that it purchased with each policy. Our holding each insurer fully liable to Keene is also consistent with other courts’ allocation of liability when more than one insurer covers an indivisible loss. This does not mean that a single insurer will be saddled with full liability for any injury. When more than one policy applies to a loss, the “other insurance” provisions of each policy provide a scheme by which the insurers’ liability is to be apportioned. Keene, 667 F.2d at 1050 (citation omitted). When the policy limits of a given insurer are exhausted, J.H. France is entitled to seek indemnification from any of the remaining insurers which was on the risk during the development of the disease. Any policy in effect during the period from exposure through manifestation must indemnify the insured until its coverage is exhausted. We believe this resolution of the allocation of liability issue to be most consistent with the multiple-trigger theory of liability. This conclusion does not alter the rules of contribution or the provisions of “other insurance” clauses in the applicable policies. There is no bar against an insurer obtaining a share of indemnification or defense costs from other insurers under “other insurance” clauses or under the equitable doctrine of contribution. The third issue is whether the Superior Court was correct in determining that the insurance coverage provided by PMA prior .to November 13, 1973 had a valid exclusion pertaining to asbestos-related disease claims. J.H. France argues that the exclusion set forth in the policies is ambiguous and therefore invalid. PMA argues that the exclusion was bargained for, is perfectly clear, is binding, and that J.H. France was therefore uninsured against asbestosis claims prior to November 13, 1973. The policy, in endorsement number one, states: EXCLUSION (Completed Operations Hazard and Products Hazard) It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage does not apply to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard. “Products hazard” is defined as follows: “products hazard” includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others. The claims at issue in the litigation underlying this case are squarely within the risk designated as “products hazard.” We see no ambiguity in the exclusion of insurance against “products hazard,” and thus cannot accept J.H. France’s invitation to construe a nonexistent ambiguity against the insurer. Moreover, all of the annual policies issued prior to November 13,1973 declare that the insurance “is only with respect to such of the following coverages as are indicated by specific premium charge or charges.” The schedule of coverage includes several categories, including “products.” In the description of the hazard insured under products, the entry “see exclusion endorsement attached” appears, and the space for the premium charge is blank. On November 13, 1973, an endorsement was added to the policy then in effect which described the product hazard insured against as “brick manufacturing” and indicates the amount of the premium charged for the products hazard coverage. It is clear that PMA did not begin insuring J.H. France against claims based on asbestos-related disease until November 13, 1973, when the products hazard exclusion was removed by endorsement and a premium was first charged for products hazard coverage. The fourth issue is how to allocate the insurers’ duty to defend when liability under more than one policy is triggered with regard to a claim based on asbestos-related disease. The obligation to defend is based on the policies which state that “the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury ... [until] the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.” It is well established that the duty to defend and to pay the costs of defense is broader than the duty to indemnify. Erie Insurance Exchange v. Transamerica Insurance Co., 516 Pa. 574, 533 A.2d 1363 (1987). The defense of a claim is a right, as well as a duty, falling upon the insurer. In order to effectuate that right, we hold that the selection of the insurer or insurers to undertake a defense is to be made by the insurers. In the event that the insurers are unable to agree as to the conduct of the defense, then J.H. France shall be entitled to select an insurer. The last issue is whether the trial court and the Superior Court erred in denying J.H. France’s claim for attorneys fees and expenses based on alleged bad faith manifested by the insurance companies in refusing to defend the asbestosis cases. Like the courts below, we cannot impute to the insurers any bad faith in contesting their obligations to defend and indemnify the asbestos-related claims represented by Temple when excessive pluralism and disparity exists in the decisions of the many courts which have entertained similar litigation. There are a variety of approaches and possible conclusions to the several issues raised in this case, any of which seems reasonable from some point of view. Most of the different approaches, points of view, and conclusions are represented among the many parties in this case and the two courts below, as well as in the decisions of courts in many other jurisdictions. We do not regard the issues presented in this case as simple ones, nor are the principles underlying our decision obvious. It would be harsh indeed to attribute bad faith to parties which relied on the reasoning and approaches that other courts have found convincing, when there had been no definitive precedent in this jurisdiction. Therefore, J.H. France is not entitled to attorneys fees or costs in this case. The order of the Superior Court is reversed insofar as it is inconsistent with this opinion. Reversed in part and affirmed in part. ORDER AND NOW, this 27th day of May, 1993, it is hereby ordered that the Petitions to Strike Statement of Issues, filed by appellant, are hereby denied; it is further ordered that the Application to Add or Substitute as an Appellee the Pennsylvania Insurance Guaranty Association, filed by appellant, is hereby denied. LARSEN, J., did not participate in the consideration or decision of this case. McDERMOTT, J., did not participate in the decision of this case. . The periods of coverage are as follows: PMA July 1, 1967 — July 1, 1976 St. Paul July 1, 1976 — July 1, 1977 Allstate July 1, 1977 — July 1, 1979 U.S. Fire July 1, 1979 — June 3, 1980 Wausau June 3, 1980 — October 30, 1983 Rockwood October 30, 1983 — October 30, 1984

Opinion by Mr. Justice Eoberts, Appellant Hugh Sinclair Williams moved pretrial to suppress oral and written statements implicating him in the murder of a PhiladelpMa policeman. The motion was denied and a jury found appellant guilty. Post-trial motions were denied and consecutive sentences imposed. We reverse and remand for a new trial. Police arrested Williams without a warrant on August 29, 1970, at approximately 8:30 p.m. Appellant was taken to the Police Administration Building and questioning began. Initially appellant denied involvement in the murder. At 3:30 a.m., according to the police account, appellant made an incriminating statement. Nevertheless, the police continued interrogation intermittently for seventeen additional hours as they endeavored to have Williams supplement his original admissions. During this period the police checked the accuracy of appellant’s confession. A formal written statement was begun at 8:30 p.m., twenty-four hours after arrest, and signed at 9:55 p.m. Appellant was arraigned at 11:30 p.m. Williams raises several issues concerning his interrogation and various allegedly erroneous rulings by the trial judge. We need address only one: Did the delay between arrest and arraignment violate Pennsylvania Rule of Criminal Procedure 118? Rule 118 provides, inter alia, that “[w]hen a defendant has been arrested without a warrant, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him.” We have delineated a three-part test to be used when inquiring into an alleged violation of Rule 118. The delay must be unnecessary; evidence that is prejudicial must be obtained; and the incriminating evidence must be reasonably related to the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); accord, Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); Commonwealth v. Jones, 449 Pa. 619, 294 A.2d 889 (1972); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973). Here, that the evidence obtained during the delay was prejudicial is not questioned. The confession constituted the most telling element of the Commonwealth’s case against Williams. Compare Commonwealth v. Futch, supra at 393-97, 290 A.2d at 419-21. Furthermore, we conclude tha,t the twenty-seven hour delay in arraigning appellant ivas unnecessary. This Court has held pre-arraignment delay unnecessary unless required to administratively process an accused. Commonwealth v. Dixon, supra, at 447, 311 A.2d at 614; see Commonwealth v. Futch, supra; Commonwealth v. Tingle, supra. The Commonwealth has not advanced administrative considerations to excuse the twenty-seven hour delay in arraignment. Rather, we are urged to justify this delay on the ground that it was necessary because police needed to corroborate appellant’s statement and apprehend other participants in the crime. It must be emphasized that pre-arraignment delay will always be unnecessary unless justified by administrative processing—fingerprinting, photographing, and the like. Here no doubt about probable cause to arrest or to charge existed. We hold that a delay, otherwise “unnecessary” as this Court has defined that term, may not be excused because police utilize the delay to corroborate an accused’s statement. Rather than making the delay “necessary” the Commonwealth’s corroboration argument supplies the final prerequisite to reversal when Rule 118 has been violated, that is, it establishes a reasonable relation of the confession to the delay. Here, by the Commonwealth’s admission, the delay in arraignment resulted from police desire to corroborate Williams’ story. This need to corroborate can only indicate that the interrogating officers were not satisfied with the initial statement given. This lack of satisfaction with the accused’s initial admission provides the reasonable relation of the confession to the unnecessary delay. See Commonwealth, v. Tingle, supra. In Tingle, the accused was in police custody for twenty-one and one-half hours prior to arraignment. Six hours after arrest, Tingle gave an incriminating statement. However, the police did not find the statement adequate and thus continued interrogation for an additional fifteen hours. This Court viewed the facts surrounding Tingle’s statement and concluded that the confession was related to the unnecessary and prejudicial delay. See id. at 246-47, 301 A.2d at 703-04. We hold that the unnecessary delay in appellant’s arraignment violated Rule 118 of the Pennsylvania Rules of Criminal Procedure. The judgment of sentence is reversed and a new trial granted. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Eagen and Mr. Justice Pomeroy dissent. Sentences imposed, upon appellant were life imprisonment for murder, five to ten years imprisonment for assault and battery with intent to murder, and five to ten years imprisonment for possession of explosives. This Court has jurisdiction in appeals from convictions of felonious homicide pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, PX. 673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1973). Appeals from the other convictions were certified to this Court from the Superior Court. Although there is some conflict in the testimony, the suppression court found that appellant received eonstitutionally-adequate Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Our disposition makes unnecessary consideration of appellant’s other alleged grounds for reversal. In addition to his Rule 118 claim, appellant asserts that his confession was not voluntarily given. Further, it is urged that the trial court erred in: (1) admitting evidence adduced solely to corroborate the confession, (2) failing to submit to the jury a special interrogatory regarding the voluntariness of the confession, (3) refusing to grant a continuance requested because of the extensive pretrial publicity, (4) restricting defense voir dire and permitting the prosecution on voir dire to inquire into the prospective juror’s attitudes toward capital punishment, (5) restricting attendance by the public at the trial, (6) refusing to order a police officer to comply with a subpoena, (7) permitting the display of inflammatory exhibits, (8) refusing defendant’s application for production of evidence favorable to the defense, (9) limiting the scope of cross-examination, (10) refusing to admit the hospital record of defendant’s treatment following arrest, and (11) permitting a personal attack on defendant’s medical expert. This is the ground upon which the suppression court excused the violation of Pa. R. Crim. P. 118. We need not here express any opinion on the question whether the six and one-half hour delay prior to appellant’s first oral statement would, in itself, constitute a violation of Rule 118.

MONTEMURO, Judge: These cross-appeals arise from an order of the Dauphin County Court of Common Pleas in a divorce proceeding concerning the equitable distribution of marital property, alimony, and counsel fees. Roslyn S. Braderman, is the appellant in appeal No. 272 and Jáy R. Braderman is the appellant in appeal No. 273. In order to avoid the confusion which the . terms “appellant” and “appellee” would cause in dealing with these cross-appeals, the term “plaintiff-wife” will be used throughout this opinion to describe Roslyn S. Braderman and Jay R. Braderman will be designed as “defendant-husband”. Roslyn and Jay Braderman were married on April 7, 1963 and two children were born of this marriage. Since the parties’ separation in June, 1980, the children, Randi, age five, and Sari, age three, have resided with their mother. Roslyn Braderman, age thirty-nine (39) works part-time as a medical secretary. Jay Braderman, age forty-three (43), is a practicing attorney earning a gross income of approximately $60,000.00 per year. Until 1977, he was employed by the Commonwealth of Pennsylvania and participated in the State Employees’ Retirement System from which he now receives monthly benefits. On July 29, 1981, plaintiff-wife instituted an action for divorce alleging indignities under 23 P.S. § 201(a)(6). She later amended her complaint alleging that the marriage was irretrievably broken under 23 P.S. § 201(c) and both parties filed affidavits of consent. On December 22, 1982, pursuant to defendant-husband’s motion, the trial court entered an order granting a decree in divorce and bifurcating and preserving all other issues. The matter was then assigned to a special master who, after conducting hearings on May 18, 1982 and May 21, 1982, filed his report and recommendation. The master’s report identified the retirement benefits as marital property and awarded the entire amount of the benefits to defendant-husband. The master then divided the other marital property, and awarded plaintiff-wife alimony in the amount of $150.00 per week for seven (7) years. The master, however, denied plaintiff-wife’s request for counsel fees, finding that she would receive at least $20,000 per year from part-time employment, alimony, and child support. Both parties filed numerous exceptions to the Master’s report. Oral arguments on these exceptions were heard by the Honorable Warren G. Morgan who entered an order rejecting the master’s inclusion of the retirement benefits as marital property, and adopting the remainder of the master’s proposed property distribution. The trial court also found that the master’s award of alimony was insufficient. After evaluating plaintiff-wife’s income from part-time employment, child support, and investments, as well as her reasonable expenses, the court awarded her alimony in the amount of $190.00 per week for five (5) years. Furthermore, the court rejected the master’s recommendation relating to insurance coverage for the plaintiff-wife, but adopted the master’s recommendation that her request for counsel fees be denied. These cross-appeals followed. On appeal, Roslyn S. Braderman, plaintiff-wife, presents two arguments for our consideration: First, she contends that the defendant-husband’s state employee retirement benefits constitute marital property subject to equitable distribution. Second, she argues that the trial court erred in concluding that she was not entitled to an award of counsel fees. In his cross-appeal, Jay R. Braderman, defendant-husband, challenges the determination of the trial court concerning: (1) the property distribution scheme; (2) the alimony award; (3) the division of the stock portfolio; (4) the amount of his weekly net income; and (5) the plaintiff-wife’s and defendant-husband’s living expenses. We shall consider these issues seriatim. Before addressing these contentions, we reitérate our scope of review. Awards of alimony, counsel fees, and property distribution are within the sound discretion of the trial court and this court will not reverse, nor interfere with the determination of the trial court unless there has been a clear abuse of discretion. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence. As a result, under the abuse of discretion stan dard, we do not usurp the trial court’s duty as fact finder; rather, we carefully scrutinize each of the guidelines to determine whether the lower court has abused its discretion. Ruth, supra. However, an abuse of discretion will be found by this court if the trial court failed to follow proper legal procedures or misapplied the law. Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980). Considering this standard of review, we now address the claims presented. Plaintiff-wife contends first that the state retirement benefits appellee receives as a result of his employment with the Commonwealth of Pennsylvania should be classified as marital property. The trial court reversed the master regarding the status of the benefits and concluded that the state retirement plan was actually an annuity, since an “annuitant has an interest only in the payments themselves and not in any principal fund or source from which they may be arrived [sic].” Since the trial judge viewed the retirement plan as purely income, its present value was not included in the marital property. We disagree with the trial court’s interpretation and conclude that defendant-husband’s state retirement benefits constitute marital property. In many equitable distribution cases, an employee’s retirement plan represents one of the most valuable assets accumulated by the marital parties. Often, the marital home is the only other major asset. As a result, questions relating to whether these benefits should be classified as marital property subject to equitable distribution are vital to Pennsylvania’s system of equitable distribution. Although the Pennsylvania Appellate Courts have not addressed this matter, it has produced vast amounts of litiga tion in other jurisdictions with varying results, depending on the type of benefits involved. Pension or retirement benefits are characterized as . vested or non-vested, contributory or non-contributory, and matured or unmatured. A critical question concerning these benefits deals with during what stage of the plan the marriage was terminated. A marriage can be terminated during the stage when benefits are non-vested, vested, unmatured or fully matured. Non-vested benefits are subject to a number of contingencies. These benefits have accrued, but are still subject to the condition that the employee continue his employment. They will be forfeited by discharge, voluntary termination or death. An employee’s interest is vested if he is entitled to receive them at retirement age, regardless of whether he continues working for the employer. If the benefits have vested, but have not yet matured, the employee has a right to benefits in the future, often upon attainment of a designated age. However, the benefits subject to the least amount of contingencies have matured, meaning the employee is collecting payments from the plan or has met all the requirements for immediate payment. These matured benefits are subject only to the contingency that the employee survive to receive all the payments. Even if the employee terminates his employment, he has a present right to receive these benefits. The vast majority of jurisdictions hold that vested, unmatured retirement benefits are marital property, and the present trend rejects any distinction between these benefits on the basis of vesting, by including vested, as well as unvested rights, as marital property. In the case sub judice, however, we deal with retirement benefits that have both vested and matured. During his marriage to plaintiff-wife, defendant-husband was employed by the Commonwealth of Pennsylvania and contributed to the State Employee Retirement System. When he terminated his employment in 1977, he withdrew his contributions to the retirement system amounting to approximately $15,000.00. Defendant-husband elected to withdraw his contribution in a lump sum payment. Under this option, no further lump sum payments are permitted. Defendant-husband, however, has met all the requirements under the plan and currently receives monthly payments in the amount of $99.43 from the State Employee’s Retirement System. He has the right to receive these monthly payments for the rest of his life or the life of the surviving beneficiary which is currently plaintiff-wife. After a study of these concepts, we begin our analysis by focusing on the definition of marital property in our Divorce Code of 1980. Section 401(e) defines marital property as “all property acquired by either party during the marriage”. The Code presumes that all property, whether real or personal, acquired by either party during the marriage is marital property. 23 P.S. § 401(e). This presumption, however, is overcome if the property was acquired by one of the methods which are excepted from the marital property definition. These exceptions include: (1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage. Furthermore, the inclusion of matured retirement benefits as marital property fully comports with the policies and goals of the Divorce Code. Section 102 provides that the goal of the Code is to effectively deal with the realities of marriage and to “[EJffectuate economic justice between the parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the the [sic] parties and insure a fair and just determination and settlement of their property rights.” 23 P.S. § 102(a)(6). Through the joint efforts of both parties to a marriage, an employee spouse is able to obtain additional compensation in the form of employee retirement benefits. The contribution of the non-employee spouse to the household cannot be ignored. In the instant case, plaintiff-wife made significant contributions to the marriage as a homemaker, as well as through employment outside the home. To deny her a share of defendant-husband’s retirement benefits would deny her what she helped to achieve during the marriage. Each spouse has a reasonable expectation of enjoying the monies received from an employee retirement fund. In order to “effectuate economic justice between the parties”, equity demands that both parties share in this asset acquired during the marriage. Accordingly, we conclude that defendant-husband’s state retirement benefits are marital property subject to equitable distribution, and that the trial court abused its discretion by failing to include these benefits as marital property. (2) Property excluded by valid agreement of the parties entered into before, during or after the marriage. (3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage. (4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until divorce. (5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced. (6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation. (7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for divorce are commenced. (Footnote omitted) 23 P.S. § 401(e). None of these section 401(e) exceptions are applicable to retirement benefits. If the presumption of marital property is not overcome, the property is marital property. Therefore, due to the operation of the presumption, since retirement benefits are not excepted by one of the above categories, they must be included as marital property. The critical question under the Divorce Code then becomes whether the benefits were “acquired by either party during the marriage”. 23 P.S. § 401(e). An interest in an employee retirement plan is a form of additional compensation. The employee benefits are a wage substitute which are earned and bargained for by the employee. If these benefits result from employment during the mar riage, they are marital property since the benefits are received in lieu of higher compensation which would have enhanced the marital assets or the marital standard of living. Therefore, it must be determined if and how much of the benefits were earned while the parties were married. Only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code. King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Plaintiff-wife and defendant-husband were married when defendant-husband was employed by the Commonwealth, as well as at the time he terminated this employment and his interest matured. These benefits constitute deferred compensation for services defendant-husband performed during the marriage and therefore, he acquired his interest in these benefits while married to plaintiff-wife. The lower court stated that the defendant-husband only had an interest in the monthly payments, not in the principal fund. We disagree. Defendant-husband’s interest in his retirement benefits has not only vested, but has matured. He worked for and earned the right to these payments, and he, therefore, has an interest in the principal sum, not only the monthly payments he receives from that principal. This holding is in agreement with a recent case by this court dealing with a related issue, as well as decisions from numerous trial courts in Pennsylvania. This court recently reviewed the valuation of a pension for equitable distribution purposes. King, supra. Although not an issue raised by the parties, the court in a footnote opined that a pension is marital property. The court stated: We believe it is clear that the pension is marital property subject to equitable distribution and agree with the decisions of other jurisdictions that have so found. See e.g. In re Marriage of Fairchild, 110 Ill.App.3d 470, 66 Ill.Dec. 131, 442 N.E.2d 557 (1982) Janssen v. Janssen, Minn., 331 N.W.2d 752 (1973); Jerry L.C. v. Lucille H.C., Del., 448 A.2d 223 (1982). Moreover, the Divorce Code, 23 P.S. § 401(e) defines marital property as ‘all property acquired by either party during the marriage.’ None of the exclusions to the definition applies to pensions. King, supra, 332 Pa.Superior Ct. at 531 n. 2, 481 A.2d at 916, n. 2. Furthermore, retirement benefits have been classified as marital property in our sister states which have similar property distribution statutes. Having determined that the retirement benefits are marital property subject to equitable distribution, the complex task of valuing and dividing this asset must be addressed. Although Pennsylvania courts have never addressed this task, two main methods of distribution have been established by our sister courts. One method, the immediate offset method, divides the benefits at the time the equitable distribution order is entered by assigning a present value to them. For a discussion of the determination of present value see Troyan, Pension Evaluation and Equitable Distribution, 10 FAM. L.REP. (BNA) 3001 (1983). As we recommended in King, supra, the retirement plan should be valued as of the date of the hearing. After determining the present value of the benefits, it is necessary to calculate the portion of the present value which was earned during the marriage. As we stated above, only those benefits attributable to the period commencing with the marriage and ending on the date of separation are marital property. King, supra. This present value must then be multiplied by the “coverture” fraction to reach the present value of the entitlement which was acquired during the marriage. The “coverture” fraction represents that portion of the value of the benefits attributable to the marriage. The numerator of the fraction reflects the total period of time the employee spouse participated in the plan during the marriage, and the denominator is the total period the employee participated in the benefits program. See Skoloff, How to Evaluate and Distribute Employee Benefits in Divorce, NATL. L.J. 25 (February 13, 1984). Next, the court must determine how the sum available for equitable distribution should be apportioned between the spouses according to the provisions of the Divorce Code. After determining the non-employee spouse’s interest in the benefits, the court awards these benefits to the employee spouse and offsets this award by distributing other marital property or by ordering payment to the non-employee spouse. The second method is labeled the deferred distribution or reserved jurisdiction method, since the court retains jurisdiction and apportions the benefits when they enter pay status or mature. Under this method, present value figures are not used. Rather, the “coverture” fraction is applied to the benefits when they enter pay status since there are too many variables projected into the future. King, supra, (citing Troyan, Pension Evaluation and Equitable Distribution, 10 FAM.L.REP. (BNA) 3001 (1983)). The immediate offset method has the advantage of avoiding further entanglement between the parties. Problems with continuing court supervision and enforcement are also avoided. This method’s greatest virtue, however, is that it effectuates a final and immediate settlement of the distribution of the retirement benefits. In contrast, the deferred distribution method equally divides the risk of forfeiture before maturity among the parties, but also prolongs the strife and hostility between the parties by extending the time for a final resolution of the parties’ assets. Although an immediate offset is preferred, See Troyan, supra, this method is impractical where the parties do not possess enough assets to offset the pension award. When the value of the employee-spouse’s pension far exceeds the value of the other marital property, the deferred distribution method must be used. We do not attempt in this case to establish a distribution scheme to be used in every case. Rather, the trial courts of this Commonwealth must balance the advantages and disadvantages of each alternative method as applied to the facts of each particular case to determine which method best effectuates a fair and equitable distribution. In the instant case, however, the defendant-husband’s benefits have matured and he is currently receiving monthly payments. As a result, on remand, the trial court shall use the immediate offset method. Finally, defendant-husband suggests that he will be unjustly burdened if the pension is designated as a marital asset subject to equitable distribution and also used to calculate the alimony award to plaintiff-wife. This argument ignores the provisions of the Divorce Code providing that in determining the alimony award, the court must consider numerous factors including the sources of income and the property of both parties. 23 P.S. § 501(b)(3). In determining the husband’s ability to pay support, the court must consider his earning power and the nature and extent of his property. Commonwealth ex rel. Buehler v. Buehler, 288 Pa.Super. 303, 431 A.2d 1059 (1981). Also, in determining whether plaintiff-wife lacks sufficient property to provide for her reasonable needs, the court must consider any property distributed to the wife pursuant to the equitable distribution award. 23 P.S. § 501(a)(1). Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). As a result, defendant-husband will not be unjustly burdened since his property, as well as plaintiff-wife’s property must be considered in calculating an alimony award. Since we have concluded that defendant-husband’s state retirement benefits constitute marital property, we reverse the equitable distribution order of the trial court and on remand direct the court to include defendant-husband’s retirement benefits as marital property and to equitably distribute the benefits in accordance with the procedures established in this opinion. The second issue on appeal concerns whether the trial court erred in failing to make an award of counsel fees to plaintiff-wife. The plaintiff-wife contends that the court abused its discretion by refusing her request for attorney fees. The trial court adopted the master’s recommendation that plaintiff-wife’s request for counsel fees and expenses be denied because she receives at least $22,000 per year from part-time employment, alimony and child support. In determining that she was not entitled to attorney fees, however, the court also considered that she was awarded in excess of $40,000.00, plus the house and other tangible personalty from the distribution of the marital property. Since we have determined that the equitable distribution order upon which the trial court relied in awarding counsel fees was in error, we also reverse and remand the order regarding counsel fees and expenses. The court may or may not wish to change its determination, but on remand it shall reconsider plaintiff-wife’s entitlement to counsel fees after it properly distributes the marital property. We next consider defendant-husband’s cross-appeal. First, he argues that the lower court erred in determining that the parties living expenses were essentially equal. Specifically, he complains that, in order to evaluate their living expenses, the court should have considered the additional costs he would incur in purchasing a home and visiting his two daughters, as well as the fact that plaintiff-wife’s mortgage payments would be ending soon. We find this argument meritless. The record reveals that the lower court did not adopt the finding of the master that the needs of the parties were equal. Rather, the court examined the annual expenses of the parties and found that defendant-husband’s needs were “presently approximately $3,000 to $4,000” more than plaintiff-wife’s. The testimony concerning expenses was carefully evaluated by the court. The court labeled some of plaintiff-wife’s expenses as unjustified, thus lowering the amount of her claimed expenses. The court deleted from her yearly living expense statement expenses for “Yeshiva & Hebrew High School ($1399.94), houshold help ($1040), camp for children ($999.96), lawn care/snow removal ($520).” In arriving at its own reasonable yearly expenses for the plaintiff-wife, the court also considered the fact that the mortgage on the marital home would soon be paid. Furthermore, in evaluating defendant-husband’s expenses, the court noted his desire to purchase a new home. However, since he had not yet purchased a new home, his testimony regarding possible mortgage payments was regarded as “extremely vague.” Finally, the court dismissed defendant-husband’s argument that the court failed to consider his visitation costs including the need to purchase a new home with sufficient bedroom space for his daughters when they visit. The court noted that the testimony revealed that one daughter on only one occasion ever stayed at her father’s home overnight. Since the court considered the facts argued by defendant-husband and arrived at its own expense figures for the parties, we find no merit to this contention. The next contention raised in defendant-husband’s cross-appeal challenges the court’s projection of his weekly net income. He claims that the court erroneously adopted the master’s figure of $788.00 per week, instead of $759.00 per week. The defendant-husband does not offer any figures concerning how he arrived at this amount. The mas ter, however, also reached a similar figure of $760.00 per week for his weekly net salary. The master then properly added to that amount $5.00 for dividend income and $23.00 for the state pension to reach a total of $788.00. Therefore, we find no error in the trial court’s calculation of defendant-husband’s weekly net income. Defendant-husband also argues in his cross-appeal that the trial court abused its discretion in framing its award of alimony to plaintiff-wife. The trial court granted plaintiff-wife alimony in the amount of $190.00 per week for a period of five (5) years. Defendant-husband complains that the amount, as well as the duration of his award is unreasonable under the standards set forth in the Divorce Code. In determining the amount of alimony the court properly relied, inter alia, on the property distributed, to both parties under the equitable distribution scheme. However, since we have determined that the court’s order of equitable distribution was in error, as discussed above, we also reverse and remand the alimony order. The court may or may not decide to change its award, but on remand the court shall reconsider the alimony award after it distributes the marital property. Accordingly, the orders of the trial court regarding equitable distribution, alimony, and counsel fees are reversed and the case remanded for proceedings consistent with this opinion. On remand, the court is directed to include the retirement benefits as marital property and to determine an equitable distribution of the marital property and plaintiff-wife’s entitlement to alimony and counsel fees. Jurisdiction is not retained by this court. Affirmed in part and reversed in part. This case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished. . The court also rejected the master’s determination regarding two (2) of plaintiff-wife’s rings concluding that the insurance claim which arose from the loss or theft of these two (2) rings constituted plaintiff-wife’s separate property, since the rings were acquired by her as gifts. . An abuse of discretion has been defined as "... not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976) (cited in Commonwealth ex rel. Caswell v. Caswell, 280 Pa. 359, 421 A.2d 762 (1980). . For purposes of this opinion, the terms "retirement plan” and “pension" are used interchangeably. The terms used to describe rights under a pension plan include "retirement benefits”, “pension payments” and "deferred employee benefits”. . In King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984), this court noted: Although he does not raise the question as a separate issue, appellant does suggest in the body of his argument that perhaps his pension fund is not subject to equitable distribution. He cites our opinion in Young v. Young, [320] Pa.Super. [269], 467 A.2d 33 (1983). In that case, however, we did not say that a municipal pension was not marital property, but that it was not subject to attachment. As we said, ‘Appellant must utilize other means, whether at law or in equity, to enforce such order.’ We believe it is clear that the pension is marital property subject to equitable distribution and agree with the decisions of other jurisdictions that have so found. King v. King, supra, 332 Pa.Superior Ct. at 531 n. 2, 481 A.2d at 916 n. 2. . See, e.g., Mienholz v. Mienholz, 11 FAM.L.REP. (BNA) 1027 (November 20, 1984) (Ark.Sup.Ct. October 29, 1984). Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 (1984); DiPietro v. DiPietro, 193 N.J.Super. 533, 475 A.2d 82 (1984); Hatcher v. Hatcher, 129 Mich.App. 753, 343 N.W.2d 498 (1983); Deering v. Deering, 292 Md. 115, 437 A.2d 883 (1981); Kikkert v. Kikkert, 177 N.J. 471, 427 A.2d 76 (1981), aff’d 88 N.J. 4, 438 A.2d 317 (1981), Bloomer v. Bloomer, 84 Wis.2d 124, 267 N.W.2d 235 (1978). See generally Annot., 94 A.L.R.3d 176 (1979) (discusses the issue of whether a spouse’s pension or retirement benefits are subject to award or division by a court in settlement of property rights between spouses). . See, e.g., Lookingbill v. Lookingbill, 301 Md. 283, 483 A.2d 1 (1984); Damiano v. Damiano, 94 App.Div.2d 132, 463 N.Y.S.2d 477 (1983); Janssen v. Janssen, 331 N.W.2d 752 (Minn.1983); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del.Super.1981); Woodward v. Woodward, 656 P.2d 431 (Utah 1982); Kikkert v. Kikkert, 177 N.J. 471, 427 A.2d 76 (1981), aff’d 88 N.J. 4, 438 A.2d 317 (1981) (quoting Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975)), and In Re Marriage of Brown, 15 Cal.3d 838, 544 P.2d 561, 126 Cal.Rptr. 633 (1976). . See, e.g., Nogan v. Nogan, No. — (Allegheny Ct.C.P., Sept. 24, 1984); Salac v. Salac, No. — (Allegheny Ct.C.P., March 21, 1984); Kalinoski v. Kalinoski, No. 80-530 (Butler Ct.C.P., Dec. 1, 1982); and Gorr v. Gorr, No. 114 Oct. Term (Allegheny Ct.C.P. 1980). . See, e.g., New Jersey — Kikkert v. Kikkert, 177 N.J. 441, 427 A.2d 76 (1981) ("The court may make ... [an] award or awards to the parties in addition to alimony and maintenance, to effectuate an equitable distribution of the property, real and personal, which was legally and beneficially acquired by them or either of them during the marriage.” N.J.Stat.Ann. 2A:34-23 (West 1984)) and Delaware — Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del.Super.1981) ("In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably distribute and assign marital property between parties without regard to marital misconduct, in such proportions as the court deems just." DelCode Ann. tit. 13, § 1513(a) (1981)). See also Comment, Vested But Unmatured Pensions as Marital Property: Inherent Valuations, Allocation and Distribution Problems in Equitable Distributions, 14 RUTGERS L.J. 175 (1982). . The master used the following calculations to determine defendant-husband’s net income: Gross pay per week (including year end hold back distribution) $ 996.00 Federal W/H -143.00 PICA -61.00 State W/H -22.00 Local W/H -10.00 Net Salary 760.00 Dividends +5.00 Pension +23.00 Weekly Total Net Income $ 788.00 Master’s Report at 29. . Since we have remanded to the trial court for reconsideration of its equitable distribution award in light of our decision concerning the retirement benefits, we need not reach defendant-husband’s two remaining claims of whether the trial court erred in: (1) awarding him only sixty percent (60%) of the stock portfolio and plaintiff-wife forty percent (40%); and (2) awarding plaintiff-wife sixty-two percent (62%) of the marital property and only thirty-eight percent (38%) to defendant-husband.

Opinion by Me. Justice Cohen, The issue raised hy these appeals has been before this Court on innumerable occasions: Did the trial court abuse its discretion in awarding new trials on the ground that the verdicts were against the weight of the evidence? One need only refer to 3 Yale, Pennsylvania Digest, Appeal & Error sec. 977(3) (Supp.) to appreciate the volume of litigation questioning such actions by the lower courts, and the repetitious recital by this Court, in each case, of the applicable rule of law: viz. The determination of whether a verdict is against the weight of the evidence, so that a new trial should be granted, rests primarily within the discretion of the trial court, and its action will not be disUorbed unless there is a palpable abuse of that discretion as determined from a careful review of the entire record, or a clear error of lato which controlled the outcome. True it is that the assaying of the credibility of witnesses and the resolving of conflicts in their testimony are for the jury. But it is equally true that the trial judge may not hide beihind the jury’s verdict; he has a duty to grant a new trial when he is convinced that the judicial process has resulted in the working of an injustice upon any of the parties. The present action, instituted in the Court of Common Pleas of Crawford County, arose out of a head-on collision between two automobiles traveling in opposite directions along highway route 322 on a snowy evening in November, 1951. Both cars were demolished, and the drivers and their respective wives were injured. The following suits in trespass were instituted as a result of this accident: Suit No. 1: Mr. and Mrs. Kiser (plaintiffs) v. Mr. Schlosser (defendant) ; Suit No. 2: Mr. Schlosser (plaintiff) v. Mr. Kiser (defendant) ; Suit No. 3: Mrs. Schlosser (plaintiff) v. Mr. Kiser (defendant), who in turn joined Mr. Schlosser as an additional defendant. The jury found for the plaintiffs Kisers in Suit No. 1; and for the defendant Kiser in Suit No. 2. In Suit No. 3 the jury returned a verdict in favor of the plaintiff, Mrs. Schlosser against her husband alone (the additional defendant), after instructions from the court that such a verdict was permissible. The Schlossers moved for new trials assigning as errors these instructions to the jury, and that the verdict Avas against the weight of the evidence. The court en banc recognized that although Mr. Schlosser Avas properly joined as a defendant for purposes of contribution in the action by his Avdfe against Kiser, he could not be directly liable to his wife. The court concluded, nevertheless, that the error was not prejudicial to the Schlossers, and could be corrected by striking the ver diet in favor of Mrs. Scthlosser against her husband from, the record. We agree with this disposition of the issue. Koontz v. Messer, 320 Pa. 487, 181 A. 792 (1935). See also the excellent discussion of this question by the late President Judge Keller, in Fisher v. Diehl, 156 Pa. Superior Ct. 476, 40 A. 2d 912 (1944). However, the Court did see fit to order new trials in these actions on the ground that the verdicts were against the weight of the evidence. The reasons for their decision were detailed in the opinion which accompanied the order. After an examination of the record, the majority of the members of this Court agree that the court below did not palpably abuse its discretion in granting new trials. Since the cases go back for retrials, “it would, manifestly, be inappropriate for us now to relate in detail and perhaps appraise, if by no more than implication, the facts. . . .” Londrino v. The Equitable Life Assur. Soc. of the U. S., 377 Pa. 543, 545, 105 A. 2d 333 (1954). Order affirmed. Mr. Justice Musmanno dissents.

Opinion and reasons eor decree oe July 19,1893, by Mr. Justice Dean, By act of 5th of August, 1870, what is known as “ The Building Commission ” of Philadelphia was created. It was authorized to erect public buildings for the use of the several courts, and other municipal purposes in the city ; to locate them either on Washington or Penn Square, as should be determined by a vote of the people at the general election in October, 1870; procure such plans adapted to either of said sites as, in thei'r judgment, might be needful; employ competent architects, assistants and other employees; fix the compensation of each person employed by them, and do all other acts necessary, in their judgment, to carry out the intent of the act in relation to said public buildings; to fill vacancies caused by death, resignation or otherwise, of any of the members of the commission ; make all needful contracts for the construction of said buildings, which contracts, when approved by a majority of the commission, should be binding upon both the city and the contractors ; make requisitions on the city councils prior to 1st day of December in each year for the money required for the purposes-of the commission the succeeding year, the amount to be expended by the commissioners being strictly limited to the sum-required to satisfy their contracts for the erection of said buildings, and for the proper and complete furnishing thereof. The-act further directed that any part of said buildings, when completed, should be occupied by such branches of the municipal government as they were intended for, and the present buildings on Independence Square, except Independence Hall, as soon-as the public buildings were entirely completed, should be removed. Further, it was made the duty of all branches of the city government to do and perform all such acts in aid of the intent and purpose of the act as the commission might, from, time to time, require. Under this act, the commission organized, and has since been in uninterrupted existence down to 24th of May, 1893. An attempt was made in the Constitutional Convention of 1874, when the section which prohibited the legislature from creating such commissions was under discussion, to amend it by adding, “ And all such commissions now existing are hereby abolished,”' but the amendment was rejected. Then, when the act of 1885, providing for corporate government of cities of the first class, was passed, a saving clause against the repeal of special acts was inserted. So that the existence of the commission, endowed with all the great powers we have mentioned, is not open to question. Whether it was wise to thus invest the servant with the right of the master over the master’s business and master’s purse, is not for us to inquire. Such special laws could be passed, and often were passed, before the new constitution went into effect. The commission organized 27th August, 1870, and for twenty-three years has prosecuted the work intrusted to it, and this work is now approaching completion. Exasperating delay on the part of the commission is alleged; extravagance, mismanagement and dishonesty are more than insinuated. It is averred, it has so conducted the work as to arouse the hostility of the citjq and prompt a practically unanimous demand for the repeal of the commission, which demand was responded to by the act of 24th May, 1893, now before us. The plaintiffs aver this is unconstitutional, and must be so pronounced, and they ask that any interference by the city with the commission in charge of the work be restrained. The defendant, the city, affirms the constitutionality of the act, and, as a consequence, alleges that, from the date of its approval by the governor, the commission ceased to exist, and the city, in resuming possession of the public building, did so in accordance with law. The first section of the act abolishing the commission is as follows: “ An act to abolish the Commissioners of Public Buildings and to place all Public Buildings heretofore under the control of such Commissioners under the control of the Department of Public Works in cities of the first class. “ Section 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by authority of the same; That commissioners created by any special act of assembly for the erection and construction of any public buildings, required to accommodate the courts, and for municipal purposes, in cities of the first class in this commonwealth, are hereby abolished, and the erection, completion, construction, repair, removal and protection of all public buildings heretofore under the control of such commissioners in Said cities shall be under the direction, control and administration of the department of public works.” The constitutional power of the legislature to repeal the special act creating the “ Building Commission,” is not denied by complainants; that it should be repealed, if the city of Philadelphia so desires, cannot be denied. But the contention here is not determined by either the right to repeal or the duty to repeal. Is the act of 24th May, 1893, a lawful repeal of the special act of 5th of August, 1870, or is it itself a special act violative of the constitution ? It does not purport to be an act for the repeal of the act of 1870. It is entitled, “An act to abolish,” not the “ commission,” the warrant or authority by which they exercised power, but the “ commissioners,” those who exercised the authority, “ and to place all public buildings heretofore under the control of such commissioners, under the control of the department of public works in cities of the first class.” Its declared purpose is the removal of the commissioners and the transfer of their-authority to the department of public works. The title of an act is part of it; it limits its scope, and is properly used in interpreting its words : Pa. R. R. Co. v. Riblet, 66 Pa. 164. We therefore turn to that part of the act which follows the title. The first section of the act, then, in pursuance of the one subject clearly expressed in its title, enacts: “ That commissioners created by any special act of assembly for the erection and construction of public buildings required to accommodate the courts and for municipal purposes in cities of the first class, are hereby abolished.” Up to this point, the commissioners are undoubtedly removed, and their offices are vacated, but the commission is still in force. The same section then goes on to say: “And the erection, completion, construction, repair, removal and protection of all public buildings heretofore under the control of such commissioners in said cities, shall be under the direction, control and administration of the department of public works.” The first section of the bill thus follows strictly the declared purpose of the act in the title. The commissioners are removed, and all their powers and authority are conferred on the department of public works. We now turn to the legislation for cities of the first class, to ascertain what person or persons shall perform the duties theretofore imposed upon the removed commissioners. Section 1, article 4, of the Bullitt Bill provides, that: “The department of public works shall be under the charge of one director, who shall be the head thereof.” Then article 12 of section 1 of the same bill enacts, that, among other officers: “ The mayor shall nominate, and, by and with the advice and consent of select council, appoint the director of public works.” The vacancy thus created by the removal of the commissioners, is thus filled by an officer appointed by the mayor, with the consent of select council. Assuming, then, that the legislature did not intend to pass a bill containing more than one subject, and that clearly expressed in its title, the first section of the bill in apt words clearly accomplished its purpose; but the special act of 5th of August, 1870, still stood in full force on the statute book, with all its special and large powers relating specially to Philadelphia, to be performed, not by the old commissioners, but by the officer appointed by the mayor. Certainly, it needs no argument to show that the special powers enumerated in the act of 5th August, 1870, when conferred on any officer, is a violation of section 20, article 3, of the constitution : “ The general assembly shall not delegate to any special commission .... any power to make, supervise or interfere with any municipal improvement, money, property or effects .... or perform any municipal function whatever.” The special commission which, by the general assembly of 1870, was delegated to certain commissioners, was, by the general assembly of 1893, simply withdrawn from them and delegated to the head of the department of public works, another commissioner. The fact is not material that the new commissioner was already by general law an officer of the city; the special and unusual power given him, to be exercised in a special manner, with reference to one particular building, constituted the special commission delegated to him. The first section, then, which fulfills the promise of the title, creates a vacancy in the office of commissioner, and fills it with the nominee of the general assembly. The authority of the general assembly of 1870, under the constitution of 1838, to delegate such power to a special commission, was clear; that of the general assembly of 1893, under the constitution of 1874, was peremptorily forbidden. This is not an act increasing the duties and enlarging the powers of the head of the department of public works in cities of the first class, but an act abolishing commissioners of public buildings, and transferring their powers to another in such cities. There is just one city of the first class, Philadelphia ; just one set of commissioners to erect public buildings for the use of the courts and municipal purposes, created by any special act of assembly; so there can be no doubt as to the specialty of the commission delegated, nor of the nature of the powers conferred. If the powers of the commission, bjr a simple repeal of the act of 1870, had passed to the city, the department of public works, as such, would have taken nothing. If the city decided to proceed with the work of building, the direction of the actual labor would have fallen, by virtue of the subdivision of executive powers of the city, upon this department. But the act of 1893 proceeded to gather up carefully all the powers of the old commission, and deposit them, not with the city, but in the lap of the director of public works. By a repeal, the extraordinary powers of the commission would have ended with its own life; the ordinary powers would have fallen back upon the city to be exercised in the ordinary manner; the department of public works would have performed such work and onty such as councils, in the exercise of their paramount “ direction, control and administration” of municipal affairs, might have seen fit to direct. Under the Bullitt bill the department of public works can only take through the city; if the powers of the commission had passed to the city, the department, as such, would have taken nothing; the direction of the actual labor would have been with it, by virtue of being one of the nine subdivisions of the executive power of the city. But under the act of 1893 this department is named as the sole legislative donee of the powers of the commission. It takes not from or through the city, but independently of it, and directly from the commonwealth. Its title is subject to no condition or trust, but is absolute and independent; as much so as that of the old commission. Taking the title and first section of the act together, and treating the second section as surplusage, it is legislation prohibited by section 20, article 3, and therefore cannot stand. But does the second section, when read in connection with it, enable us to sustain the act as a whole ? This second section contains three legislative declarations: (1) Repeals the act of 5th of August, 1870. (2) Repeals the proviso to section 1, article 4, of the general act of 1st of June, 1885, saving the act of 5th August, 1870, from repeal. (3) Saves from repeal the act of 6th of March, 1867, appropriating grounds for public purposes in the city of Philadelphia. All three are subjects different from that announced in the title. The purpose of legislative action as stated in the title, is to remove commissioners of public buildings, and transfer their powers and control to another; this purpose, as we have seen, is fully carried out by the language of the first section. But then, another subject is taken up; the act creating the commission is repealed, and a proviso inserted saving from repeal the act of 26th of March, 1867, creating the Fairmount Park Commission and placing in its control the property and public buildings of the Park. Neither of these subjects is hinted at in the title, and both are distinct from the subject announced in the title, and at variance with the purpose there disclosed. The title, in substance, professes to abolish the commissioners and keep alive the commission. So far as words can do this, it is done in the first section. But then the legislative mind changes and the second section strikes down the one commission and saves another. Therefore, the bill contains more than one subject and cannot stand as a whole, because of section 3, article 3, of the constitution: “No bill shall be passed containing more than one subject, which shall be clearly expressed in the title.” It is argued by counsel for the city that the second section of the act is supererogatory, and that all of the first section except the first sentence was needless. With all but the first sentence eliminated, the act would stand thus: “ Commissioners created by any special act of assembly for the erection and construction of public buildings required to accommodate the courts and for municipal purposes in cities of the first class in this commonwealth are hereby abolished.” Treating this as the whole of the act and all the rest as surplusage, it is averred there is such a positive repugnance between it and the old act as necessarily works the repeal of the commission. We have given this point most careful consideration, with a desire, if possible, to treat the act of 1893 as simply a repeal of that of 1870. But the significant language of the later act warrants no such construction; abolishing the commissioners does not touch their commission; there is only a vacancy in the office. Besides, the legislative intent is so manifest in the title and first section of the act to oust the commissioners and save the commission to the department of public works, that it would do positive violence to the obvious natural meaning of words, were we to treat the whole act as one repealing the former act. It is our desire, as well as a judicial duty, to sustain and enforce all acts of assembly which do not manifestly transgress against the constitution, but we cannot frame new bills which are constitutional, and substitute them for older ones which are not. The plaintiffs further aver that this bill violates section 7, article 3, of the constitution : “ The general assembly shall not pass any local or special law. . . ¡ regulating the affairs of counties, cities, townships, boroughs, or school districts.” This act purports to be a general law applicable to cities of the first class. We have held, and now adhere to it, that the legislature may lawfully classify cities for corporate purposes, and that an act to promote such purposes is not local or special, merely because, at the date of its passage, there was but one city to which it applied. But it has been decided in case after case, since the constitution of 1874 went into effect, in positive unmistakable language, that if the act was intended to apply to but one particular city, county or township, and was not intended to and could never apply to any other, it was local and therefore unconstitutional. This act is nominally general ; applies in terms to cities of the first class; abolishes commissioners of public buildings for the use of courts and municipal purposes in such cities, created by special acts of assembly, and places all buildings heretofore under their control in the control of the department of public works. At the date of its passage there was just one city, one set of commissioners, one special act of assembly, one public building, to which it could apply ; from the very nature of the case, there never could be another city in the first class to which the.act could apply, for it transfers to the department of public works buildings heretofore under the control of such commissioners ; no matter how many cities come into this class, nor how soon they reach it, this act cannot apply to them, for their affairs have not heretofore been regulated by the special provisions of airy such act as that of 1870. In fact it is not denied that the act applies solely to Phila delphia, and to but one particular building in that city, and regulates the affairs of that city by placing in the control of the head of the department of public works a particular building heretofore under the special control of a special commisT sion with special powers. It even goes further, and in express terms imposes upon him a duty not theretofore belonging to his department. The act of 1870 directed the building commission, on the completion of the City Hall, to remove all the buildings on Independence Square except Independence Hall, and place the ground in good condition; the general act of 1885 put in charge of the director of public works in cities of the first class “ the construction, protection and repair of public buildings; ” the act of 1893 divests councils of any control over this subject as effectually as the act of 1870, by inserting the word “ removal.” as among the new duties imposed upon the director of public works. In every sense of the words of the constitution, the act is local, special, and regulates the affairs of the city to the exclusion of the municipal legislature, the city councils. True, it does this under the guise of a general law; but as is said in Scowden’s Appeal, 96 Pa. 425, City of Titusville case: “It requires but a glance at the act to see that it is an attempt to evade the constitution. It is special legislation under the guise of a general law. Of all forms of special legislation this is the most vicious. ... It is merely an attempt to legislate for certain cities of the fifth class to the exclusion of all other cities of the same class.” It cannot be pretended that the act of 1893 can have any application to any other city than Philadelphia which may subsequently come into the first class. If a dozen cities, by reason of increase of population, had come into the class since the act of classifying cities was passed, no one of them would have been affected by the act of 1893, because, while each would, under the general act of 1885, have hada department of public works, no one of them would have had, in such department, the special powers here transferred to the department of public works in Philadelphia. The act stands before us, as if the legislature had given it this form: “ The Commissioners of Public Buildings in the city of Philadelphia, holding office under the act of 5th of August, 1870, are hereby removed, and all their powers and duties under said act, with reference to the erection of city hall in said city of Philadelphia, together with the duty of removing buildings from Independence Square, are hereby delegated to the head of the department of public works in said city, and all acts inconsistent with this act are hereby repealed except the act of 26th of March, 1867, which places in the control of the commissioners of Fairmount Park the public buildings in said park; and it is further enacted, that this is not local and special legislation, but it is a general law for the government of cities of the first class in this commonwealth.” This is the act of 1893 stripped of a disguise so thin that it can scarcely be called one, and brings it directly within the prohibition of section 7, article 3, of the constitution, as clearly as was decided in Seowden’s Appeal, the act of April 18,1878, regulating the affairs of the city of Titusville and Crawford count}7, came within the same prohibition. To the same effect as Scowderi’s Appeal, are Davis v. Clark, 106 Pa. 377; McCarthy v. Commonwealth, 110 Pa. 246; Scranton v. Silkman, 113 Pa. 191; Morrison v. Bachert, 112 Pa. 322; Ayar’s Appeal, 122 Pa. 266, and many others. It may be asked, then, cannot a city or other municipality, because of the constitutional prohibition, rid itself of obnoxious local and special laws antedating the present constitution? We answer, certainly it can, if that be the real end in view, The very same article 3, section 7, which forbids local and special legislation, points the way so plainly, that, of all forms of legislation, it is subject to the least uncertainty. ' It says, after enumerating what laws shall not be passed: “ But laws repealing local or special laws may be passed.” Under this express constitutional authority, an act of a dozen lines, repealing the act of 5th of August, 1870, would have ousted the commissioners and obliterated the commission. All the rights of the city over its own property, with the control of its own purse, would at once have been resumed. Then, through councils, the direct representatives of the people, by ordinances, City Hall could have been completed, the old buildings on Independence Square removed, in a time and way and at such cost as to the city seemed proper. Why this easy path to the professedly desired end was not followed, we do not know; we do know, however, that, whether this act was designed with a view to evade the prohibitions of the fundamental law, or those having it in charge, in haste to accomplish a lawful purpose, carelessly and unlawfully framed it, the result is the same; as it and the constitution cannot stand together, the act must fall. The argument, that every reasonable intendment should be made in favor of the constitutionality of a law enacted by a co-ordinate branch of the government, appeals to us with much force. But the matter to be determined is purely judicial; a spirit of comity can only impel us to a careful consideration of the question; it cannot determine the answer; that must be found in the language of the act, and the manifest intent of the constitution. If this act be sustained, the same sort of legislation can regulate the affairs of the most insignificant borough in the commonwealth, and we may expect a flood of the same vicious local laws which preceded the adoption of the constitution of 1874. It is certainly not forgotten, that the well-nigh unanimous demand which brought the convention of 1873 into existence, was prompted by the evils springing from local and special legislation. That convention, direct from the people, composed of the ablest and most experienced citizens of the commonwealth, framed this article 3 on legislation. Assuming, what was the settled law, that the general assembly had all legislative power not expressly withheld from it in the organic law, they set about embodying in that law prohibitions which«hould, in the future, effectually prevent the evils the people complained of. Article 3 is almost wholly prohibitory; it enjoins very few duties, but the “ thou shalt nots ” number more than sixty, among them sections 3, 7 and 20, which we here decide to be transgressed by this act. That constitution, with this article the most prominent feature of it, was adopted by an unprecedented majority on a direct vote, indicating a settled determined purpose on part of the people to hold back from the legislature the power to enact local and special laws. Every department of the government is bound by its provisions, but especially is this court, for on it is the duty of judicially determining any violation of it. The state as a whole is subject to it; the largest municipality as well as the'smallest township. Yet it is a fact that, notwithstanding the respect which, as citizens of a free commonwealth, we all have for the fundamental law, since 1874 more than three hundred bills have been passed by the legisl a ture, which four governors have vetoed because they were unconstitutional; nearly one hundred of thesebecause they violated section 7, article 3, prohibiting local and special laws. In the same time, thirty-three, which received executive-approval, have been pronounced unconstitutional by this court, most of them because violative of the same section 7, article 3. When we consider that no special duty of judicial ascertainment of the constitutionality of legislation is imposed on the executive department, we must assume, these vetoed bills were so palpably unconstitutional that, under the oath taken by the head of that department, he could not conscientiously affix his signature to them ; and the correctness of that assumption is all the more probable from the fact, that more than one third of the members of the general assembly must have concurred in his objections, for, so far as we can discover, in no instance were any of them passed over his veto. During the session at which this bill was passed seventy-three were vetoed; thirty-seven or more than one half were refused signature because violative of the constitution; of these thirty-seven, twelve transgressed section 7, of article 3, against local and special legislation, and most of the others, sections 3, 18 and 20 of the same article. Why such a fact exists, of course, must be in a great degree conjectural. Mr. Buckalew, in his excellent work on the constitution of 1874, noticing that for the- legislative session of 1879, Governor Hoyt had vetoed thirteen bills because clearly violative of prohibitory clauses in article 3, suggests, as the reason, that the old habits of special legislation prior to 1874 were “ thrown off with difficulty and often with reluctance.” But this explanation does injustice to the legislative branch. . The general assembly of the commonwealth is just as devoted to the constitution as either of the other departments of the government. In no like period, since the foundation of the commonwealth, as since 1874, has the material and intellectual advancement of the whole people been stimulated and fostered by so many wise and beneficent laws. But the legislature being quickly responsive to local public sentiment, and having no duty of determining purely judicial questions, honestly attempts legislative advancement of local interests or legislative relief from local evils. Bills framed to accomplish such purposes are often met and stricken down by a constitution highly restrictive, and bristling with specific prohibitions. This is no imputation on either the integrity or patriotism of the popular branch of the government. Under the circumstances it would be strange if the fact were otherwise. But, being the fact, what reasonable intendment in favor of the constitutionality of an act is to be made from its passage by the general assembly ? What is the reasonable presumption of law from that fact? The law presumes all departments of the government will observe the constitution, for all are alike sworn to do so; but if an infringement of it be alleged, we can only determine that question by an impartial scrutiny of the statute, and by giving the constitution its fair, natural and obvious meaning; in so doing, caution in arriving at an opinion adverse to the statute is a duty; so is firmness in pronouncing one when formed. This is all the law enjoins. Neither the law controlling us in the exercise of the duty, nor, since 1874, any extreme rarity of unconstitutional acts of assembly, warrants such intendment in favor of a bill as relieves us from the necessity of a judicial inquiry, which, itseems to us in this case, leads, inevitably, to a conclusion adverse to its constitutionality. Another point made in the argument before us — that the public sentiment of Philadelphia with practical unanimity demanded tlio passage of this law, was doubtless more effectively urged before the legislature. But the question presents itself to us in a different shape; we do not believe the intelligent public sentiment of the greatest city of the commonwealth demands the accomplishment of a lawful purpose by unlawful means ; unconstitutional statutes are the very essence of lawlessness. Even if the unanimous public sentiment of the city demanded the enforcement of this act, we could not heed it. Public sentiment, properly, may move courts, in matters wholly discretionary, such as the adoption of rules to speed causes, afford quick relief to suitors, and eradicate abuses in the administration of justice; but such sentiment can have no place in the interpretation of a constitution; the public sentiment expressed in that instrument is the only sentiment of which a court can take notice; it contains the deliberate,- emphatically expressed sentiment of the whole people; they, and they alone, can change ox amend it in the way provided in it, but even they cannot trample upon it. If laws in conflict with it be passed by the legislature, be approved by the governor, and sustained by this court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner, whether the structure intended to shelter him be blown up by dynamite or the foundation be pried out, stone by stone, with a crowbar; in either case he is houseless. There can be no stability in a free government, if successful assaults in any department be made on the fundamental law; — the supreme law, deliberately established by the whole people as a rule of action in all governmental matters affecting their welfare. As to the averment, that the act also violates section 8, article 3, because notice of the proposed legislative action was not published in Philadelphia at least thirty days before the introduction of the bill, we can only say, it is not our duty to go behind the law to inquire whether all the precedent formalities have in fact been complied with. The evidence that notice has been published is to be exhibited to the general assembly; it is not directed to be entered on the journals. The law before us is certified by both houses and approved by the governor. We must presume the requirement as to notice was complied with; to this effect are all the authorities of "numerous adjudicated cases on the same question. Note. The court being pressed for a speedy decree in this case by^both parties, within half an hour after it was agreed upon in consultation, it was filed. There was no time then to prepare and file an opinion with the decree. Therefore, I was requested by the Chief Justice to prepare an opinion embod}1'ing the reasons of a majority of the court for granting the preliminary injunction, to be filed at October term at Pittsburgh. While I feel sure the subject could have been more ably discussed by any one of my brethren, I am, nevertheless, confident, no one of them is clearer in his conviction that the decree is right on both reason and authority.

ORDER PER CURIAM. Having reviewed the Petition for Reargument filed by Harold Edwin Casety, Jr., and the Opinion of the Court filed in this matter on December 13, 1985, it appears that revisions on pages nine (9) and twelve (12) of the Opinion are required, and that these corrections can be made without reargument. Accordingly, the Petition shall be considered as a Petition for Reconsideration and is granted. The Prothonotary is directed to file the attached corrected Opinion and to withdraw the Opinion filed by the court on December 13, 1985, 502 A.2d 177. OPINION OF THE COURT PAPADAKOS, Justice. Harold. Edwin Casety, Jr. (Casety) has petitioned this Court from the Finding of Facts and Recommended Discipline of the Disciplinary Board (Board) of this Court recommending that Casety be disbarred from the practice of law. The facts are not in dispute and can be briefly summarized. Casety was admitted to the practice of law in 1972, and practiced continuously in the Commonwealth until mid-1979, when he and his girlfriend moved to California. On November 22, 1979, he killed his girlfriend, shooting her five times in various parts of her body. Casety admitted shooting his girlfriend and immediately turned himself over to the police. After being charged with murder and use of a firearm during the commission of a crime, Casety pled guilty to voluntary manslaughter as defined by the California Penal Code (CPC) § 192, subd. I, and to using a firearm during the commission of a felony within the meaning of CPC §§ 12022.5, 1203.06(a)(l)(i). As a result of the plea, Casety was sentenced to a term of imprisonment of four years for manslaughter, and two years for using a firearm during the commission of a crime. Casety served almost three and one-half (3V2) years of his sentence in prison before being paroled. He was permitted to return to Pennsylvania to complete his parole, which he successfully completed on October 20, 1984. After returning to Pennsylvania, Casety, for the first time, notified the Disciplinary Council of his California conviction for voluntary manslaughter. After Casety’s June 6, 1984, notification to the Board, we suspended Casety from the practice of law pursuant to Pennsylvania Rule of Disciplinary Enforcement (Pa.R.D.E.) 214(d), pending final disposition of disciplinary proceedings to be instituted as a result of the conviction. A Hearing Committee of the Board conducted its investigation on December 11, 1984, where Casety admitted his conviction and his neglect of four years in notifying the Board of his conviction. At that proceeding, Casety presented evidence only as to the nature of the discipline to be imposed. The Hearing Committee found that Casety’s conviction and deliberate failure to notify the Board of his conviction warranted a five year suspension, effective July 13, 1984, the date of our interim suspension order. A panel of the full Board heard Exceptions to the Hearing Committee’s recommendation. The Board adopted the Hearing Committee’s findings, but based on its review of the facts and violations involved, on July 24, 1985, recommended that Casety be disbarred. We granted Casety’s request for oral argument from the Board’s findings and recommendations. Casety acknowledges that his conduct requires that he be disciplined, but contends that a five-year suspension retroactive to April 20, 1980, the date of his guilty plea, would serve both justice and the legal profession. In support of his argument, Casety notes that he has served his incarceration and parole periods without incident, has successfully reformed prior alcohol and drug dependencies which were partially responsible for his conduct in killing his girlfriend, and has made arrangements with the girlfriend’s family to make some form of restitution. The Office of the Disciplinary Counsel argues that Casety’s conviction for voluntary manslaughter, coupled with his deliberate failure to report the conviction to the Board, constitutes misconduct which requires that Casety be disbarred as of July 13, 1984, the date of our interim suspension. Pa.R.D.E. 214(d) makes clear that any attorney “convicted of a crime which is punishable for one year or upwards in this or any other jurisdiction, excluding violations of the Motor Vehicle Code or a similar law of another jurisdiction,” is subject to immediate suspension pending the final disposition of a disciplinary proceeding. Furthermore, once convicted of a crime, an attorney is required to report the fact of his conviction to the Secretary of the Board within twenty (20) days of the date of sentencing. Pa.R.D.E. 214(a). Any proceedings before the Board or its Hearing Committee under Rule 214 are limited to determining the extent of the final discipline to be imposed, which can consist of any of those disciplines permitted by Rule 204(a). Our review of the Board’s findings and recommended discipline is de novo, and we are free to evaluate for ourselves the evidence presented before the Hearing Committee. Office of the Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983); Office of the Disciplinary Counsel v. Kneep, 497 Pa. 396, 441 A.2d 1197 (1982); Office of the Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981). In this case, however, Casety admits his misconduct and, therefore, there are no factual disputes. Where the disciplinary proceeding arises out of an attorney’s conviction of a crime, our inquiry must focus on whether the attorney’s character, as shown by his conduct, makes him unfit to practice law from the standpoint of protecting the public and the courts. Office of the Discipli nary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975). The Board’s factual findings and our review of the record make it clear that Casety’s actions surrounding his girlfriend’s murder were reprehensible and showed a total indifference and disrespect for the law. At the time of the shooting, Casety had already ingested large amounts of sleeping pills and Bentyl tablets (a stimulant), mixing these drugs with at least a half gallon of wine, and was having a bitter argument with his girlfriend. These parties had apparently argued violently before, with Casety trying to “bluff” his girlfriend into staying with him by brandishing a gun at her. On November 22, 1979, Thanksgiving Day, Casety's “bluffs” did not appear to be working and, in a fit of anger, he emptied five bullets into Patricia Bovino’s body, causing her death. We see in Casety’s conduct intemperance, as well as illegality and moral reprehensibility. As lawyers, we are bound to maintain high standards of professional conduct at all times. Ethical Consideration E.C. 1-5 of the Rules of Professional Responsibility sets the aspirational standard for a lawyer’s conduct: ... He should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.” As the United States Supreme Court stated in Ex parte Wall, 107 U.S. 265, 274, 25 S.Ct. 569, 576, 27 L.Ed. 552 (1882): Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws ... argues recreancy to his position and office____ It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve. Where one who has sworn to uphold the law actively breaches it, his fitness to practice is unquestionably destroyed. Campbell. Casety’s repudiation of society’s rules and indulgence in alcohol and drug abuse and homicidal conduct were serious rejections of the oath he undertook to uphold the law. We cannot condone such conduct because it destroys public confidence in the legal profession. An attorney who shows such disrespect for the law has forfeited his privilege to be numbered as an attorney, and is not competent to represent members of the public or to appear before courts. If that were all the record revealed, we would disbar Casety with little difficulty. Clearly, he was convicted of a crime and thereby violated DR 1-102(A)(1), (3) and (6). In this proceeding, however, Casety’s subsequent conduct more than convinces us that disbarment is the only proper discipline. Once having been convicted of a heinous crime in California, he was honor bound to report such fact to Pennsylvania. Not only did he fail to do so, he deliberately withheld this information and continued to deceive the Administrative Office of Pennsylvania Courts (AOPC) that he was in active practice in Pennsylvania by executing and filing the AOPC’s filing statements for the years 1981, 1982 and 1983. He accomplished this deceit by using a false business address in Pennsylvania (a friend’s business address) and by having a friend pay the required annual registration fee out of funds Casety maintained in Pennsylvania. After Pa.R.D.E. 214(a) became effective on April 2, 1983, and while he was still incarcerated in California, he failed to report his conviction within twenty (20) days to the Secretary of the Board and continued to ignore this obligation for more than a year until June 6, 1984. Surely, this obligation applied to all Pennsylvania lawyers whether they were in prison or out of prison. Casety admits that he was aware of his duty to report his conviction, but claims that he was depressed and disoriented and could not deal with the effects of the conviction or of having to notify the Board. We cannot condone Casety’s deliberate misrepresentations and his subsequent violation of Pa.R.D.E. 214(a). While the Board chose not to base its disciplinary action against Casety for his failure to report his conviction because he was not formally charged with this violation in the Petition for Discipline, it does not follow that we cannot consider Casety’s admitted conduct in determining the discipline to impose. Such conduct can be considered like any other conduct Casety brought to our attention to show that he had reformed himself. In this respect, Casety brings to our attention that he turned himself in to the authorities, served his jail term and parole time without incident, has sought help for his drug and alcohol dependencies, and has made plans of restitution to his victim’s family. The record also reveals, however, that while Casety was reforming himself he deliberately withheld the fact that he had been convicted, and devised a scheme to misrepresent his ability to continue in active practice during 1981, 1982 and 1988, in violation of D.R. 1-102(A)(4) and 1-103(A). In weighing Casety’s post-conviction conduct, we are impressed by his attempts to serve out his prison sentence without incident, and by his apparently successful drug and alcohol rehabilitation; but we find that, in the meantime, he ignored an equal, if not higher, duty to the Court, bar, and the public, to report his conviction and to advise the system that he was not qualified to practice law. This duty is mandatory and is imposed on lawyers because they are held to the highest standard of ethical and legal behavior. If lawyers are convicted of crimes which require discipline, and then are permitted to hide that fact from the Courts and the public, there is no question that the integrity of the bar will be lowered and that the public will perceive the profession to have been brought into disrepute. Under the circumstances, Casety’s post-conviction conduct was far below that expected of a lawyer. That conduct, coupled with his conviction for voluntary manslaughter, requires that we accept the recommendation for discipline. Casety is ordered disbarred as of July 13, 1984, the date of the interim suspension order, and is directed to pay the costs of the investigation and prosecution in this matter. ZAPPALA, J., filed a dissenting opinion in which HUTCHINSON, J., joined. . The Disciplinary Board of the Supreme Court exists pursuant to the Pennsylvania Rules of Disciplinary Enforcement, Pa.R.D.E. 205, and is authorized to investigate conduct of attorneys subject to our discipline. After a hearing committee conducts hearings into an attorney’s alleged misconduct, it makes recommendations as to the disposition of the charges filed against an attorney. The full Board then is required to review same and make its final recommendation to us. See Pa.R.D.E. Rules 205, 206 and 208. . The California Penal Code at § 192, subd. 1 provides in pertinent part: Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: 1) Voluntary — upon a sudden quarrel or heat of passion... . The California Penal Code at § 12022.5, provides: Use of firearm in commission of felony or attempt; additional punishment; disposal of firearm Any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of imprisonment in the state prison for two years, unless use of a firearm is an element of the offense of which he was convicted. Section 1203.06(a)(l)(i) provides: (a) Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following crimes: (1) Any person who personally used a firearm during the commission or attempted commission of any of the following crimes: (i) Murder. . On August 15, 1984, Casety also informed the Florida Bar of his conviction. The Supreme Court of Florida responded by suspending Casety from the practice of law on November 13, 1984. . Rule 204(a) provides: (a) Misconduct shall be grounds for: 1) Disbarment by the Supreme Court. 2) Suspension by the Supreme Court with or without probation. 3) Public censure by the Supreme Court for a period not exceeding five years. 4) Probation by the Supreme Court under supervision provided by the Board. 5) Private reprimand by the Board with or without probation. 6) Private informal admonition by the Disciplinary Board. . DR 1-102(A)(1), (3) and (6) provide: (A) A lawyer shall not: 1) Violate a Disciplinary Rule. 3) Engage in illegal conduct involving moral turpitude. 6) Engage in any other conduct that adversely reflects on his fitness to practice law. . Pa.R.D.E. 214(a) provides: (a) An attorney convicted of a crime which is punishable by imprisonment for one year or upward in this or any other jurisdiction, excluding violations of the Motor Vehicle Code or a similar law of another jurisdiction, shall report the fact of such conviction to the Secretary of the Board within 20 days of the date of sentencing. The responsibility of the attorney to make such report shall not be abated because the conviction is under appeal or the clerk of the court has transmitted a certificate to Disciplinary Counsel pursuant to subdivision (b) of this rule. . DR 1-102(A)(4) provides that: (A) A lawyer shall not: (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. . DR 1-103(A) provides: A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

Opinion, Mr. Chief Justice Gordon: From the evidence in this ease we gather the following facts: on the evening of the 9th of August, 1884, the plaintiff, William Rommel, a minor, entered the tavern of the defendant, Jacob Schambacher, and there found one Edward Flanagan: they both became intoxicated on liquor furnished them by Schambacher. Whilst the plaintiff was standing on the outside of the bar, engaged in conversation with the defendant, who was in the inside thereof, Flanagan pinned a piece of paper to Rommel’s back and set it on fire. The consequence was that Rommel’s clothes were soon in flames, and before the^y could be extinguished he was very badly injured. He brought the present suit to recover damages from the defendant for the injury thus sustained. The court below adjudged the facts as stated above to be'insufficient to sustain the plaintiff’s case, and directed a nonsuit. In this we think it made a mistake. There is no doubt that the defendant, from the position he occupied, had a full view of the room outside of the bar, and did see, or might have seen, all that was going on in it. If, in. fact, he did see Flanagan setting fire to the plaintiff, and did not interfere to protect his guest from so flagrant an outrage, his responsibility for the consequences is undoubted. If, on the other hand, he was guilty of making Flanagan drunk, or if he came there drunk, and Schambacher knew that fact, he was bound to see that he did no injury to his customers. All this is a plain matter of common law and good sense, and does not depend on the act of 1854, or any other statute. Where one enters a saloon or tavern, opened for the entertainment of the public, the proprietor is bound to see that he is properly protected from the assaults or insults, as well of those who are in his employ, as of the drunken and vicious men whom he may choose to harbor. To illustrate the principle here stated we need go no farther than the case of the Pittsburgh & Connelsville R. Co. v. Pillow, 76 Pa. 510. In the case cited, a drunken row occurred on board one of the defendant’s cars, and during the quarrel a bottle was broken, and a piece of the glass struck the plaintiff, a peaceable passenger, in the eye and put it out; held, that the company was responsible for the injury thus done. In the opinion of this court the following language was used: “ The plaintiff lost his eye through the quarrel of a couple of drunken men, who should not have been permitted aboard the cars, or, if so permitted, should have been so guarded or separated from the sober and orderly part of the passengers that no injury could have resulted from their brawls.” If, then, a railroad company is liable for the conduct of drunken men who may chance to board its cars, much more the tavern-keeper who not only permits drunken men about his premises, but furnishes liquor to make them drunk, and who is thus instrumental in fitting them for the accomplishment of just such an insane and brutal trick as that disclosed by the evidence of the case iu hand. The judgment of the court below is now reversed and a new venire ordered.

HOFFMAN, Judge: This appeal is from an order dated June 30, 1989, granting appellee Kenneth Parker Associates’ (KPA) preliminary objections in the nature of a demurrer to count II of appellant’s complaint. Appellant contends that the trial court erred in (1) dismissing the count, without leave to amend, on the technical basis that several causes of action had been pleaded under one count in violation of Pa.R.Civ.P. 1020(d)(1); (2) finding that the complaint did not set forth sufficient facts to justify recovery for either punitive damages or emotional distress; and (3) raising, sua sponte, a defense which served as an alternate basis for dismissing the entire cause of action against KPA. For the reasons set forth below, we agree with appellant that the trial court erred in granting KPA’s preliminary objections and, accordingly, we reverse the order below and remand for proceedings consistent with this opinion. Beginning in January of 1985, appellant was employed at KPA as a staff designer. On February 16, 1986, appellant enrolled both herself and her husband under an insurance policy written by defendant Allstate Insurance Company (Allstate), and made available to her by defendants Mediq Inc. (Mediq) and KPA. This action arose when the defen dants refused to pay life insurance proceeds upon appellant’s husband’s death. On February 7, 1989, appellant filed a complaint in three counts against KPA, Mediq, and Allstate, alleging breach of contract, negligence, estoppel, and fraud. The counts of the complaint were very similar except for the identity of the named defendant: count I was against Mediq, count II was against KPA, and count III was against Allstate. On March 29,1989, Mediq and KPA filed preliminary objections requesting that counts I and II of appellant’s complaint be dismissed. In seeking dismissal, KPA and Mediq alleged that appellant violated Pa.R.Civ.P. 1020(d)(1) because she had failed to set forth her causes of action for trespass, contract, estoppel and fraud in separate counts. Further, they alleged that appellant had failed to aver facts sufficient to support a claim for punitive damages and emotional distress in a contract action. In her response to the preliminary objections, appellant asserted that her complaint was not in violation of Rule 1020(d)(1) and should not be dismissed. In the alternative, she maintained that if the trial court did find that she had failed to comply with Rule 1020(d)(1), it should grant her request for leave to amend her complaint. In addition, appellant attached her proposed amended complaint to her response. On June 30, 1989, the trial court issued an order sustaining KPA’s preliminary objections, and completely striking count II of the complaint, thereby dismissing KPA from the case. The trial court, however, overruled the same preliminary objections made as to count I against Mediq and ordered it to file an answer within thirty days. On August 18, 1989, appellant filed an appeal from the trial court’s June 30, 1989 order, and on December 11,1989, the trial court issued its opinion. In that opinion, the trial court reasoned that a demurrer to count II was sustainable because (a) count II was improperly pleaded in that it presented several causes of action under one count, (b) to the extent appellant sought punitive and emotional distress damages, the count was defective in that it did not set forth distinct claims for negligence and fraud, and (c) KPA was immune from liability, in that it hired Mediq as an independent contractor for the purposes of administering the insurance plan. Moreover, the trial court went on to state that Mediq’s preliminary objections to count I had been inadvertently overruled. Finally, the trial court noted that, had appellant filed a motion for reconsideration, leave to amend would have been granted in order to file a single cause of action for breach of contract against KPA. See Trial Court Opinion at 1-3. Our scope of review in considering a challenge to a trial court’s decision granting preliminary objections in the nature of a demurrer is well-settled: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra. Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facte as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra [436 Pa.] at 291, 259 A.2d at 449. County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); see also Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524-25, 543 A.2d 1092, 1093-94 (1988). With this standard in mind, we turn to appellant’s contentions. First, appellant contends that the trial court erred in dismissing, without leave to amend, count II of her complaint on the basis that several causes of action were pleaded under one count in violation of Pa.R.Civ.P. 1020(d)(1). Appellant does not dispute that she violated this rule by raising several causes of action in one count. However, she argues that the violation was merely technical in nature and did not warrant a dismissal of the entire cause of action against KPA. Instead, appellant argues that the proper course was to grant her leave to amend her complaint pursuant to Pa.R.Civ.P. 1033. Rule 1033 provides in relevant part that: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his [or her] pleading. Pa.R.Civ.P. 1033. It has long been the law in this Commonwealth to liberally grant leave to parties to amend their pleadings. Biglan v. Biglan, 330 Pa.Super. 512, 521, 479 A.2d 1021, 1025 (1984). Although the decision of whether to grant leave to amend a pleading is a matter of judicial discretion, such amendments should be allowed at any stage of the proceedings to secure a decision on the merits, unless they violate the law or unfairly prejudice the rights of the other party. Soxman v. Goodge, 372 Pa.Super. 343, 347, 539 A.2d 826, 828 (1988). Thus, if no prejudice results, pleadings may be amended “after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal taken therefrom.” Biglan v. Biglan, 330 Pa.Super. 512, 521, 479 A.2d 1021, 1025-26 (1984) (citations omitted). “The fundamental purpose of this rule is to prevent cases from turning on purely technical defects.” Id., 330 Pa.Superior Ct. at 521, 479 A.2d at 1026. Moreover, prejudice, in turn, must be more than a mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of the amending party and correspondingly weaken the position of the adverse party. Carpitella by Carpitella v. Consolidated Rail Corp., 368 Pa. 153, 157, 533 A.2d 762, 764 (1987). Here, we find that to the extent the trial court granted KPA’s preliminary objections and refused to allow appellant to amend her complaint based on the Rule 1020 defect, it abused its discretion. Appellant’s failure to set out each cause of action against KPA in a separate count is clearly a technical error, which in no respect affects the substance of the pleading. See Commonwealth ex rel. Specter v. Bauer, 437 Pa. 37, 40 n. 2, 261 A.2d 573, 574 n. 2 (1970) (no reason to dismiss complaint where captioning incorrect, as such defect is easily correctable by amendment); Mancine v. Concord-Liberty Sav. & Loan Ass’n, 299 Pa.Super. 260, 269-70, 445 A.2d 744, 749 (1982) (right to amend should be liberally granted and fact that plaintiff erroneously labeled action as assumpsit of no importance). Moreover, appellees are unable to show how they have been or will be prejudiced by appellant’s request to amend her complaint. See Carpitella by Carpitella v. Consolidated Rail Corp., supra; Tanner v. Allstate Ins. Co., 321 Pa.Super. 132, 137, 467 A.2d 1164, 1167 (1983). In this case, appellant simply sought to amend her complaint so as to reorganize the pleadings into separate counts. Such an amendment clearly would remedy the defect, would help to focus the issues and ensure that the case is not decided on a technical error. In light of the fact that the technical error could easily have been corrected by amendment, see R.P. Clarke Personnel v. Commonwealth Nat’l Bank, 384 Pa.Super. 524, 535, 559 A.2d 560, 566 (1989), and because a demurrer is proper only “in cases that clearly and without doubt fail to state a claim for which relief may be granted,” see County of Allegheny v. Commonwealth, supra, we hold that the trial court abused its discretion in sustaining the demurrer and refusing to grant appellant such leave to amend her complaint. We find further support for our conclusion by noting that a contrary holding would require a disingenuous reading of Rule 1020. The primary purpose of Rule 1020(d)(1) is to ensure that causes of actions arising out of the same transaction or occurrence are tried together in the same suit. In fact, if a plaintiff fails to properly plead all such causes of action, the cause not pleaded is waived. See Pa.R.Civ.P. 1020(d)(1), Historical Note. Incidental to this principal purpose, is the requirement that these causes of action should be set out in different counts. Appellee would have us latch on to this rule, which primarily relates to mandatory joinder, and hold that it mandates the extreme sanction of dismissal for a mere failure to list the separate causes of action under separate counts. This we refuse to do. Appellant also takes issue with the court’s ruling on her claim for emotional distress and punitive damages. Appellant maintains that the trial court based this decision on a misunderstanding of the causes of action and the corresponding damages requested in the original complaint. Appellant suggests that the court erroneously believed that because the various causes of action were brought within the same count, the negligence and fraud claims were merely alternative theories of liability based on the underlying breach of contract cause, and not separate causes of action. This misunderstanding, in turn, led to the court’s conclusion that appellant failed to set forth a claim for punitive damages or emotional distress. A review of appellant’s original complaint reveals that although all three claims (negligence, fraud, and breach of contract) are contained in one count, the facts as set forth in the complaint establish the essential elements of each cause of action. Moreover, appellant’s claims for negligence and fraud are set out in separate paragraphs and are distinguishable from her claim for breach of contract. Appellant’s prayer for relief in the form of punitive and emotional distress damages are not requested until after her claims for negligence and fraud. These types of damages, of course, are recoverable under these two theories of liability. See Restatement (Second) of Contracts, § 355, at 154 (1981) (punitive damages are not recoverable in action for breach of contract but are recoverable in tort action brought in conjunction with action for breach of contract); Restatement (Second) of Torts, § 908 comment b, at 464 (1977) (same). Thus, in admitting as true all well-pleaded material facts, and every inference deducible from those facts, we find that count II set forth facts sufficient to state a claim for relief under negligence and fraud as well as breach of contract, and thus, appellant should be afforded the opportunity to request punitive and emotional distress damages. Appellant finally contends that the trial court erred by raising, sua sponte, a defense which served as an alternative basis for dismissing the entire cause of action against KPA. Appellant notes that the trial court, sua sponte, found that KPA, as appellant’s employer, was immune from liability because it had hired Mediq, an independent contractor, for purposes of implementing the insurance policy in question. Appellant maintains that it was a clear error for the court to raise this supposed immunity defense, sua sponte, as a basis for dismissing the entire cause of action against KPA. We agree. It is inappropriate, of course, for a trial court to act as an advocate and raise a defense on behalf of a party. See Wojciechowski v. Murray, 345 Pa.Super. 138, 142, 497 A.2d 1342, 1344 (1985) (trial court had no authority to sua sponte employ Political Subdivision Tort Claims Act as basis for dismissing claim against defendant who had not raised defense); see also Travers v. Cameron County School District, 117 Pa.Commw. 606, 544 A.2d 547 (1988); Gubernick v. City of Philadelphia, 85 Pa.Commw. 397, 481 A.2d 1255 (1984). In this case, a review of the preliminary objections raised by KPA reveal no reference to a defense based on the theory that KPA hired Mediq as an “independent contractor.” Instead, as we noted above, the preliminary objections raised only the questions regarding the Rule 1020 defect and whether the averred facts supported a claim for emotional distress and punitive damages. Under the Rules and the case law, it is clear that matters not raised in preliminary objections may not be considered by the court sua sponte. See Pa.R.Civ.P. 1032; Wojciechowski v. Murray, supra. Accordingly, because the defense was not raised by appellee, the court’s granting of preliminary objections is not sustainable on this ground. For the foregoing reasons, we reverse the order below and remand for proceedings consistent with this opinion. Order reversed and case remanded. Jurisdiction relinquished. . Allstate did not file preliminary objections; accordingly, it is not a party to this appeal. . Pa.R.Civ.P. 1020(d)(1) provides that: If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. Id. . The June 30, 1989 order was not entered on the docket until July 20, 1989. Thus, appellant’s appeal was timely filed. Moreover, the trial court’s refusal to grant appellant leave to amend her complaint so as to cure the technical errors is a final and appealable order because it effectively puts appellant out of court as to KPA. See Gabriel v. O’Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987). . We note that, on appeal, KPA filed an appellate brief in conjunction with Mediq. However, despite the trial court’s pronouncement in its December 11, 1989 opinion, the record contains no appealable order as to Mediq. Thus, we will review only the propriety of the demurrer as to count II of the complaint. . Appellee argues that the trial court was well within its discretion in refusing to grant appellant leave to amend her complaint because appellant, "having failed to utilize the various procedural remedies available to her to correct a defect in her complaint at the trial level, has waived her right to amend her complaint." Appellee Brief at 7. This claim is meritless. Appellant requested leave to amend her complaint at the trial level in her response to appellees’ preliminary objections. She also attached a copy of her proposed amended complaint to her response. Thus, the trial court was aware of appellant’s informal request to amend her complaint at the trial level. Moreover, the trial court, recognizing that appellant had requested leave to amend her complaint, stated in its opinion that had appellant filed a formal motion to reconsider, the court would have granted her leave to amend her complaint. . This ruling alone is not enough to warrant sustaining preliminary objections to the whole count. . We need not determine whether the defense raised by the trial court was appropriate in light of the factual circumstances of this case. However, we do note that the complaint is devoid of any information leading to the conclusion that KPA hired Mediq as an independent contractor. In fact, appellant alleges in her complaint that "at all applicable times, defendant KPA was a wholly-owned subsidiary corporation of defendant Mediq.” See Appellant’s Complaint, R.R. at 5a.

The opinion of the court was delivered by Woodward, J. The personal estate of Adam Johnston having been sold at sheriff’s sale, the proceeds were .distributed to the mechanics and labourers employed in his service, in pursuance of the Act of Assembly of 2d April 1849: Purd. 344, tit. Execution, pl. 108. His real estate was then levied on and sold, and after deducting costs and expenses, a fund of $14,379.66 remained for distribution. Part of this fund, $12,847.17, was taken out of court by judgment-creditors, whose right to it does not seem to have been contested. The residue, $1532.49, was also claimed by judgment-creditors, whose judgments were entered on the 24th March 1858; but they were resisted by the mechanics and labourers, on the ground that Johnston became insolvent on the 10th April 1858, and that under an Act of Assembly, applicable only to Berks county, passed the 23d January 1849 (Purd. 835, tit. Wages, pl. 5), they were entitled to be paid wages for six months immediately preceding • his insolvency, in preference to judgment-creditors. The court referred the matter to auditors, and they found that Johnston became insolvent on the 10th April 1858, and that the mechanics and labourers were entitled to wages for six months before that period; but that from the 24th March 1858, the judgment-creditors acquired a superior lien, and that from the six months’ wages allowed to the mechanics and labourers, there was to be deducted so much as they earned between 24th March and. 10th April 1858. They made distribution accordingly, which the court confirmed, and from that decree both parties, the judgment-creditors and the mechanics and labourers, have appealed to us. Before adverting to any other facts, I pause to remark, that any distribution to the mechanics and labourers, as against judgment-creditors, must be supported by the before-mentioned Act of 23d January 1849, exclusively, for in Wade’s Appeal, 5 Casey 328, it was decided that although, under the Act of 2d April 1849, labourers might be paid $50 of their wages out of the proceeds of their debtor’s real estate, yet they were not entitled in preference to lien-creditors of record, but took only where there were no such creditors, or after they had been satisfied. If that case be law, and we have no reason to doubt it, there is an end of these unrecorded claims, so far as the last Act of Assembly is concerned, for the judgments on record greatly exceed the fund for distribution. • Yet the auditors strangely blended the two Acts of Assembly in making their distribution. They took the six months from the first, and the $50 from the last, as limitations upon the rights of the labourers. There were more than ninety creditors of this class, and their respective claims ranged from $5 to $600. The auditors allowed none of them over $50, no matter how much they may have earned in the last six months. Then, from that sum they deducted what was received from the distribution of the personal estate, and from the balance, again deducted what was earned after the judgment-creditors acquired their lien on the 24th March. This cannot be right. If the labourers are entitled to share in this distribution at all — there being judgments enough to absorb the whole fund — I repeat that their right rests exclusively on the Act of 23d January 1849, and in that act there is no limitation of $50. The only limitation in that act is six months immediately preceding the insolvency. What they would be entitled to take, therefore, would be six months’ earnings, and as the fund would be inadequate to pay the aggregate of' these, it would have to be distributed among them pro rata, to the total exclusion of judgment-creditors. In other words, the fund in court belongs wholly to the labourers, or wholly to the judgment-creditors, as the one act or the other shall be followed. This brings us to the question whether both of these Acts of Assembly are in force. That they cannot both be followed in the same distribution is apparent, from what has been already said. That they were both intended to protect the wages of labour is too apparent to be doubted, and that the mode of protection was by payment out of the proceeds of the sale of the debtors’ property, appears by the words of both. They are, therefore, in pari materia. Yet, in several points they are inconsistent. One, the limitation imposed, has been already adverted to. In the first act, it is a limitation of time; in the last, of amount. So in regard to the parties subject to this legislation; in the first act, they are the “ owner or owners of any manufacturing establishment in the county of Berks;” in the latter act, they are any person or persons “ owning or leasing forges, furnaces, rolling-mills, nail factories, machine shops, or foundries, in Berks,” and several other counties mentioned. In the first, the six months’ wages are declared to be a “lien on the establishment;” in the last, the $50 of wages are called a claim, to be paid by the officer who sells the property, in the manner he pays rent. In the first, the wages are payable out of the proceeds of sale, only in the event of death or insolvency; in the latter act, they are to be preferred in all assignments, to rank immediately before rents in case of death, and to be paid “ in all cases of execution.” ■ This comparison of the two acts shows that, in all essential particulars they are inconsistent with each other, and therefore the latter repeals the former. It is said, that the first of these acts was passed by the legislature of 1848, and presented to the governor for his signature on the 6th April 1848, and was not returned within three days of the meeting of the next legislature, whereby it became a law. It is most likely the legislature of 1849 were not aware that the enactment of the previous session had thus come into operation, or they would have added a repealing clause. But, doubtless, they intended a substitution for it, that should extend not only to Berks, but to the other counties enumerated. It has been said, that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former; by Dewet, J., in Bartlett v. King, 12 Mass. R. 546: he refers himself to King v. Cater, 4 Burr. 2026, and King v. Davis, 1 Leach’s Cases 306, which are the same authorities on which Judge Kin® ruled the case of Commonwealth v. Cromley, 1 Ash. 181. In Harcourt v. Fox, 1 Shower’s R. 520, Mr. Justice Eyre said, “ Where a subsequent statute affirmative is a repeal of a former statute made concerning the same matter, is a large field to walk in;” but, he concluded that affirmative statutes, introductive of a new law, do imply a negative; and he referred to Townsend’s Case, Plowd. Com. 113, “ where you may see a great deal of this learning plainly laid down to this purpose.” From what is said in Plowden, it is manifest that by “ new law” is meant a rule out of the course of the common law. The new law implies a negative of all prior statutes on the same subject, as well as of all things not expressed affirmatively. “And so do all other statutes, which, in affirmative words, appoint or limit an order or form of things which were not at common law; but, if a thing is at common law, a statute cannot restrain it unless it be in negative words. And so is the diversity, where a statute makes an ordinance by affirmative words, touching a thing which was before at common law, and which was not before at common law.” Now, it need not be said that these acts, and especially that of January 1849, was a “ new law,” quite out of the course of the common law. The labourers, whose contract was personal, had at common law no manner of lien on their employer’s establishment. That act undertook to give them one, but it was negatived by the affirmative words used on the same subject in the subsequent act. And it is well it was, for it would have been a difficult, if not impossible task, to administer a “ lien upon such establishment.” Johnston carried on a large iron foundry, machine shop, blacksmith and car shop, in the city of Reading. He had, doubtless, his own residence, and some of his many hands may have had theirs. Now, what was his “ establishment ?” Did it include all his buildings, and the ground they stood on, and the machinery and tools they contained ? And what sort of a lien did the legislature mean to give for the six months’ labour ? What was the amount of it? Would it take precedence of mortgages, mechanics’ liens, and judgments duly recorded and docketed ? Would it follow the establishment into the hands of purchasers either at private or judicial sale ? How long would it last, and when could it be known to have ceased? These and many other questions would have arisen in practice; and seeing how embarrassing they would have been, and how opposed the enactment was to that policy of our law which requires the ascertainment and public record of liens, it is fortunate that we are able, on settled principles of construction, to declare it annulled by the subsequent enactment. The construction already fixed for the subsequent enactment, excludes the mechanics and labourers from the distribution, and therefore the decree must be reversed. And now, to wit, 30th June 1859, this cause came on to be argued by counsel, and having been fully considered by the court, it is ordered and decreed that the decree of the Common Pleas of Berks county be reversed and set aside in each of said appeals, and that the fund in court be distributed among the judgment-creditors as follows: To Ritter & Kline, . $535.80; Daniel McCormick, 103.17; Junius Judson, Ritter & Kline, . 338.62; 554.58; and that the costs of these appeals be paid equally by the appellants in each case, and that this decree stand for each of said appeals.

Mr. Justice Paxson delivered the opinion of the court, The assignments of error from one to eight inclusive, raise substantially the same question and may be considered together. In each of them the complaint is that the court below erred in its construction of the deeds from John C. Mott to the plaintiff. At the time of the execution and delivery of the deed of September 22d 1866, Mott was the owner of two mills, a grist-mill and a saw-mill. Prior to that date he had leased to the plaintiff a piece of ground for a spoke-factory. All of these mills were supplied Avith water from the Sawkill creek. On the day above mentioned Mott conveyed to the plaintiff the land previously leased to him for a spoke-factory, with the right “ of using the Avater for the uses and purposes of the property hereby conveyed, equal to six horse-power, Avith the privilege to take the same from the race leading to the grist-mill of said Mott where it is now taken. And in case said race leading to the said grist-mill shall be abandoned, the said party of the second part shall have the right and privilege to take and use said water from the dug-race on the Dingman side of the Sawkill creek, at such point most convenient to the said party of the second part. Provided, hoAvever, that the grant of water as above described shall in no Avay interfere with the grist-mill of the party of the first part; but it is expressly understood that the said gristmill is in all cases to be first supplied, and in case of Ioav water the said grist-mill shall be entitled to the exclusive use of the AYater if necessary to drive said mill; and provided further, that no use Avhatever shall be made of said water by said party of the second part, his heirs, executors or administrators, for any purpose which shall in any manner interfere with the grist-mill or the sawmill of the said parties of the first part. And it is further understood and agreed, that the said John C. Mott, his heirs, executors and administrators, Avill not erect any building on the adjoining premises or permit the same to be erected, or engage himself in the business of making spokes and hubs, or sell or permit any other person or persons to do so.” Each of the above provisoes has a distinct object. The first is to limit the grant of water so that it shall in no Avay interfere with the supply for the grist-mill. The grist-mill is in all cases “to be first supplied,” and in case of Ioav Avater “shall be entitled to the exclusive use of the water.” The language of this proviso is explicit. It refers to the quantity of water granted, and subordinates the spoke-mill to the grist-mill. The latter must first run, then if there was water enough left, the plaintiff could run his spoke-mill. Having secured this primary object and protected his grist-mill from loss of water necessary to its operation the grantor proceeds to protect both the grist and sawmill from competition by restricting the purpose to which the water is to be applied. Upon this point the language of the second proviso is equally clear and explicit. It says: “No use Ayhatever, shall be made of said Avater by said party of the second part, his heirs, executors or administrators, for any purpose which shall in any manner interfere with the grist-mill or the saw-mill of the said parties of the first part.” This restriction has no reference to the quantity of water to he used by the spoke-mill; it merely limits the purpose to which the water shall be applied. It shall not be used for any purpose which shall in any manner interfere with the grist-mill and saw-mill. That is to say, the plaintiff should not erect a rival grist or saw-mill and use the water to run it. This is the obvious meaning of the second proviso. It does not, and was not intended to protect the saw-mill against the use of the water for the spokc-'mill, but only against its use for a purpose detrimental to the saw-mill. So much is clear. On the 1st of April 1868 Mott, being still the owner of the grist-mill and saw-mill, conveyed the grist-mill to the plaintiff by a deed containing the following clause : “ Also the right and privilege to the use of the water from the race and dam belonging to said Mott, sufficient to run a grist-mill upon the premises hereby conveyed, of the capacity and power as the mill now constructed; or the said Klaer may use the water to the same extent as now used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill), in lieu, and place of the water now used by said grist-mill; but in no case is said Klaer, his heirs or assigns, to have the right to use any more water than is now necessary for said grist-mill.” Thus the plaintiff became the owner of both the spoke-mill and the grist-mill; Mott continuing to be the owner of the saw-mill. After the death of Mott the defendants purchased the saw-mill from his executors, and they now have whatever water-right was left in Mott after the conveyances above mentioned, and no more. What was that right ? He had first conveyed to plaintiff the right to the extent of six-horse power of the water left after supplying the grist-mill. He then conveyed to him the grist-mill, with the right to use sufficient water to run it as of its then present power, or to “ use the water to the same extent as used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill) in lieu and place of the water now used by said grist-mill.” It is a familiar rule that a deed or grant must be construed most strongly against the grantor. This applies with especial force to a reservation or restriction in a deed whereby there is a withholding of something from the grant. Here the grantor limits the quantity of water to the amount then required for the grist-mill, 'but restricts the purpose to which it shall be applied only to the exclusion of a sawmill. He excludes such use to protect the saw-mill which he still owned, hut,for any other purpose the plaintiff was at liberty to use the water. It is clear that under the two deeds from- Mott to the plaintiff, the water as between the parties must be applied, first, to the grist-mill; second, to the spoke-mill; and third, to the saw-mill, owned by Mott. The latter would have no right to use the water for the saw-mill until the grist and spoke-mills had been supplied. It is equally plain that under the last deed to plaintiff he would have the right to shut down the grist-mill and run the spoke-mill as against Mott, and his grantees of the saw-mill. This covers all that is really important in the case. The remaining assignments refer to the admission of evidence, and may be briefly disposed of. It was error to admit the evidence contained in bill of exceptions No. 2, (9th specification). It was irrelevant, and may have misled the jury. It is not material whether the plaintiff objected to the building of the dam. ‘ The defendants had a right to construct a dam upon their own premises. It was only its use that could injure the plaintiff, and it is of its use only that he complains. Equally objectionable was the evidence referred to in the tenth assignment. It proved merely an unaccepted proposition, and had no bearing upon the question whether the defendants had used water which of right belonged to plaintiff’s mill. All of the assignments of error are sustained. The judgment is reversed, and a venire facias de novo awarded.

Opinion by Keller, J., The question involved in this appeal is, does the court of quarter sessions have power to revoke a restaurant liquor license issued by the Pennsylvania Liquor Control Board, under the Act of November 29, 1933, (Special Session 1933-4, P. L. 15), where the licensee, who had pleaded guilty to violations of prior liquor laws, obtained the license by falsely representing in his application therefor that he had never been indicted for or convicted of crime. On December 4, 1933 Oscar Wolf applied to the Pennsylvania Liquor Control Board for a restaurant license for 303 North Sixth Street, Philadelphia, under the Act aforesaid, for the year ending December 31, 1934, on the'form prepared and provided by the Board. The application, which was signed by him and sworn to by him before a Notary Public the same day, contained, inter alia, the following questions: “10. Has the applicant.......been indicted or convicted of crime? If so, give date, charge and record of proceedings.” To which'he answered, “No.” “11. Has the restaurant building or any part thereof been subject to State or Federal padlock or nuisance proceedings? If so, give date and record of proceedings.” To which he answered “No.” The license was issued by the Board pursuant to said application on December 11, 1933. On January 17, 1934 the Attorney G-eneral filed his petition in the Court of Quarter Sessions of Philadelphia County praying that court to revoke the license on the grounds that the answers to said questions were false and fraudulent and contrary to the provisions of the Act of November 29, 1933' aforesaid and the rules and regulations of the Board made pursuant thereto, in that the applicant, Oscar Wolf, had been indicted for crime and that his restaurant building had been padlocked under decree of the Court of Common Pleas No. 1 of Philadelphia County, sitting in equity, in the case of Com. of Pa. v. Oscar Wolf et al., to March Term 1931, No. 14887; and that the premises' set forth in the application was not a reputable place operated by responsible persons of good reputation as required by said Act.. No answer was filed by the respondent licensee, thus admitting the averments of the petition. A hearing was had, however, at which testimony was' taken, by which it was shown that between October 26, 1921 and May 20, 1931 the respondent had been arrested thirteen times for violation of the liquor laws of this Commonwealth and had pleaded guilty four times — see opinion of the lower court, pp. 15a-17a; and that his place had been padlocked in 1931 for liquor violations as averred in the petition. The court below revoked the license. Respondent has appealed. He contends that under the Act of 1933, supra, his license cannot be revoked for anything except a violation of a law of this Comxnonwealth relating to liquor, malt liquor or alcohol, done or committed after the grant and issuance of the license. Section 410 is the part of the Act having immediately to do with the Revocation and Suspension of Licenses. It provides: “After a license has been issued to a hotel, restaurant or club under this act, the attorney general, the district attorney, or fifteen or more taxpayers, residents of the municipality where the hotel, restaurant or club is located, may petition the court of quarter sessions of the proper county for the revocation of such license. If, after notice and hearing, it shall appear to the court that the licensee has violated any law of this Commonwealth or regulation of the board relating to liquor, malt liquor, or alcohol, the court may suspend or revoke the license. The court shall assess or remit the costs in its discretion. The action of the court in suspending or revoking a license shall be final. Any licensee whose license is revoked shall be ineligible to have a license or permit under this act, or under any other act relating to the manufacture, sale or distribution of liquor or malt liquor, until the expiration of five years from the date his license was revoked.” But there are other portions of the Act to be considered in construing the provisions of section 410. The first question that arises is the right of the respondent to appeal in view of the declaration in the section that “The action of the court in suspending or revoking a license shall be final.” We considered this question in Revocation of License of Jacob Mark, 115 Pa. Superior Ct. 256, 176 A. 260, and came to the conclusion, in a somewhat similar case, that an appeal in the nature of a certiorari will lie in order that we may inspect the record, with regard to the regularity and propriety of the proceedings, to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion. We come then to the main question — Did the court below, in revoking the appellant’s license exceed its jurisdiction or its proper legal discretion? . The Act of November 29, 1933, supra, is entitled, inter alia, “An act to regulate and restrain the sale, importation and use of certain alcoholic beverages.” Section 3, which relates to the interpretation of the Act, provides: “(a) This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth, and to prohibit forever the open saloon; and all of the provisions of .this act shall be liberally construed for the accomplishment of this purpose.” The Act established an entirely new system of liquor control designed (1) to do away with saloons or mere drinking places and restrict the sale of spirituous and vinous alcoholic liquors to clubs, and to hotels and restaurants where meals are. regularly and habitually prepared for the public; (2) to limit the licensing of hotels and restaurants to “reputable places, operated by responsible persons of good reputation”; (3) to require a complete separation of financial and business interests and relations between the manufacturer of such liquors and the holder of a hotel, restaurant or club liquor license; (4) to prohibit all other transactions in such liquors within this Commonwealth, except by and under the control of the Pennsylvania Liquor Control Board, a new authority, created to carry the provi sions of the Act into effect. The grant or issuance of licenses to clubs, hotels and restaurants, as defined in the Act, was placed in the Board, (see. 201-d), and authority was given the Board to make such regulations, not inconsistent with the Act, as it might deem necessary for the efficient administration of the Act (sec. 202), and specific authority was given the Board to make regulations regarding “Forms to be used for the purposes of this Act” (see. 203'-g); all of which regulations, when adopted by the Board are declared to have the same force as if they formed part of the Act (sec. 202). The Board, in its endeavor to carry out the aims and purposes of the Act, and to perform the duties imposed upon it, prepared a form of application to be used by applicants for a Restaurant Liquor License which propounded certain questions and called for answers that would supply information needed by it in passing on the merits of the application and the fitness of the applicant to have a license. They included, inter alia, the name, address and citizenship, of the applicant, the length of his residence in the Commonwealth, a full description of the place to be licensed, giving the area, number of tables with which it is equipped, the number of persons who could be accommodated in the dining room at one time, and the number of persons regularly employed in the prephration of meals, the name and address of the owner of the premises, whether the applicant is interested in any manner, directly or indirectly, in the manufacture, etc. of liquors in this State or in the ownership, mortgage or leasehold of any property used in such manufacture, or whether any person interested in the manufacture, etc.' of such liquors has any stock, ownership, mortgage or leasehold interest in the applicant’s restaurant property or equipment, its fitting out, maintenance or conduct. Then followed questions 10 and 11, above quoted, to which the appellant made false answers, and question 12 which inquired “Has applicant or manager ever held a beverage or liquor license which was revoked? If so, give date and record, of proceedings.” To which the applicant answered “No.” The regulations prepared by the Board pursuant to the authority conferred by . the Act, which have the force of law, as aforesaid, require written applications, in the form prepared by it as aforesaid, to be signed and sworn to by the applicant for license, and filed with the Board, and such verified applications are used by the Board as a basis in disposing of the application, by granting or refusing the license. Once the license is issued, the Board’s control over it is ended. It cannot revoke a license issued to a club, restaurant or hotel. Its powers of revocation are limited to permits for sacramental wine (sec. 414) and importers’ licenses (sec. 415). The sole power of revoking club, restaurant and hotel licenses is placed in the court of quarter sessions by Section 410. In construing this section we must bear in mind what the Supreme Court said (Umholtz’s License, 191 Pa. 177, 43 A. 75) in interpreting a statute along similar lines, providing for the licensing of the sale of alcoholic liquors, “It must also be understood that it is a law we are interpreting and not a contract between private parties. All legislation, especially that which regulates proceedings in the courts, is of a broader and more comprehensive scope, and is couched in more generic language than is employed in the drafting of private contracts, and requires an interpretation conformable to its general purpose. Thus statutes are to be so construed as best to effectuate the intention of the legislature, though such construction may seem contrary to the letter: Com. v. Fraim, 16 Pa. 163; Com. v. Monongahela Nav. Co., 66 Pa. 81”; and also keep in view the interpretation of the present statute which Section 3 above quoted directs shall be used. Doing so, we are of opinion that the power of the court of quarter sessions to revoke such licenses is not limited to violations of liquor laws done or committed after the license is issued; it is also given power to revoke the license for violation of any “regulation of the Board relating to liquor, malt liquor or alcohol”; and we think that false swearing to a form of application for a license, prepared pursuant to statute and the regulations of the Board, in order that it may ascertain the fitness of the applicant to have a license .and whether he is a “responsible person .of good reputation,” by means of which false swearing he fraudulently secures a license from the Board, is such a violation of a regulation of the Board as justifies the court of quarter sessions to revoke the license thus fraudulently obtained; that the license may be revoked for violation of a regulation of the Board, done or committed in securing the license as well as after the issuance of the license. We need not go so far as to hold that if the applicant had truthfully answered the questions in the application blank prepared by the Board and the Board, notwithstanding his record as to previous violations of the law, on full consideration, had seen fit to grant him a license, the court would have the authority to revoke it because of some previous infraction of the law which the Board had fully considered; but we do hold that when the licensee has obtained his license by false representations respecting his criminal record, or other material matter, such as his connection with the manufacture, etc. of liquors, and by reason of such false application has fraudulently obtained from the Board a license which it would not have granted if it had been in possession of the facts, the case falls within the 410th section of the Act and the court has power to revoke the license thus fraudulently obtained. The use of the word ‘licensee’ in the section does not imply that the violation of the regulation must occur after the issuing of the license. It is only descriptive of the holder of the license and is the natural term to use. See Umholtz’s License, supra, p. 180, where the expression ‘party licensed’ was construed. Appellant’s counsel admits that there should be some judicial forum with power to revoke the license thus fraudulently obtained from the Board, but suggests it is a court of equity rather than the court of quarter sessions. Considering the limited equitable jurisdiction which has been, conferred by statute on our courts of common pleas, we are not at all certain that a court of equity would have jurisdiction to revoke a license granted by the Board. The act creating the system designates the court of quarter sessions as the authority to revoke such a license, and a liberal interpretation of its provisions, having in view the purposes of the act and the protection of the public welfare, health, peace and morals of the people, which it has in mind, justifies the court of quarter sessions in revoking a license which has been obtained by a wilful violation of a regulation of the Board made pursuant to statute and designed to carry its provisions into effect. The question is not moot since the order appealed from renders appellant ineligible to have a license for five years from its date. The assignments of error are overruled and the order of the court below is affirmed at the costs of the appellant.

Opinion by Stadtpbld, J., This is an appeal from an order of the court below, striking off an appeal from a judgment in an action of assumpsit brought before an alderman and dismissing a rule to show cause why the appeal should not be perfected nunc pro tunc. The facts are undisputed and are correctly set forth in the opinion of the court below, Palmer, P. J., from which we quote in part as follows: “This case was heard on January 25, 1941, before Alderman Faulls of the First Ward of the City of Pottsville, who entered judgment in favor of the plaintiff and against the defendant in the sum of $211.78. “On January 30, 1941, the defendant by its attorney in fact, appeared before J. Edward Wetzel, an aider-man in the City of Lancaster, Pennsylvania, and made an affidavit for an appeal from the judgment of Aider-man Faulls. At the same time the defendant executed a bail bond in the amount of Five Hundred ($500) Dollars. Notice of the intention to appeal-was given to Alderman Faulls but the affidavit and the bond were not filed in his court. “The transcript of the record as prepared by Aider-man Faulls together with affidavit and the bond as taken before Alderman Wetzel were filed in the office of the Prothonotary of Schuylkill County on February 6, 1941. “On March 11,1941, the plaintiff caused a rule to be issued upon the defendant to show cause why the appeal as filed should not be stricken from the record. The defendant then entered a rule to show cause why an appeal from said judgment should not be perfected nunc pro tunc.” The failure to file the affidavit for appeal and bond with the alderman before whom judgment was entered and having the same made a part of the record, before the expiration of the twenty day period within which appeal must be taken, constitutes fatal error. Seltzer v. Cauley, 12 Schuylkill Legal Record 87. The alleged appeal was a nullity and the petition of the appellant to perfect the appeal is in reality a petition to take an appeal nunc pro tunc. Where an act of assembly fixes the time within which an act must be done, as for example, an appeal taken, courts have no power to extend it, or to allow the act to be done at a later day, as an act of indulgence. Something more than mere hardship is necessary to justify an extension of time, or its equivalent, an allowance of the act nunc pro tunc. The court “can no more enlarge the time than he can legislate in any other matter.” There must be fraud or its equivalent to permit an appeal nunc pro tunc: Wise v. Cambridge Springs Boro., 262 Pa. 139, 104 A. 863; Marcus v. Cohen, 94 Pa. Superior Ct. 383. In Kaumagraph Co. v. Thissen Silk Co., 42 Pa. Superior Ct. 110, it was held that the neglect of counsel in reading only part of a notice intended to guide attorneys as to the dates of terms and the placing of a wrongful construction on such reading will not entitle a defendant to an appeal nunc pro tunc from the judgment of a justice of the peace after the time of appeal has expired. The procedure in the appeal in question is strictly statutory. The appellant claims that it should have been permitted to perfect its attempted appeal or allowed an appeal nunc pro tunc because its counsel claims that he was misled by the alderman’s notation on his transcript, “And Now, January, 1941, defendant takes out an appeal,” into believing that the appeal had been completed before the alderman. The notation in question was not misleading. The appellant was not misled by it. The transcript is dated January 25,1941, and no affidavit of appeal or bail was filed at that time. These were not executed by the representatives of the appellant until January 30,1941. The appellant made no attempt to effect an appeal until five days after the date of the transcript. By this act, appellant showed that it did not consider the transcript as an appeal. We do not feel that the alderman by his transcript misled the appellant. No fraud or its equivalent appears, nor is it alleged in this case. We see no error justifying a reversal in this case. Judgment affirmed.

Opinion by Jacobs, J., Plaintiff-appellee, James Ragan, obtained a jury verdict against defendants-appellants Oliver Steen and McKeesport Hospital in a medical malpractice action. The lower court molded the verdict and entered judgment for indemnity over against Oliver Steen in favor of McKeesport Hospital. From this judgment both defendants appeal raising questions as to the limitation of actions, the sufficiency of the expert testimony to establish evidence of negligence, and the ability of the lower court to mold the verdict giving the hospital the right to indemnity. We find that the plaintiff-appellee’s evidence was timely produced establishing a right to recovery and that the defendant hospital is entitled to indemnity. Therefore we affirm. In September 1968, appellee consulted his family physician concerning a colony of plantar warts on his right foot. His doctor referred him to McKeesport Hospital to determine if x-ray treatment was advisable for removal of the warts. At the hospital he was seen by Dr. Steen, who was employed by the hospital as a radiologist. After two radiation treatments administered by Dr. Steen, appellee returned to his studies at Ohio University. A blister developed on the site which he had treated at the University Health Center and thereafter the area appeared to heal normally. However, in November 1970 the tissue in the area where the warts had been began to decompose and the appellee began to experience pain in his foot. He visited doctors in an attempt to remedy the increasing decomposition and finally in May, 1971 surgery was performed. However, despite all efforts appellee remains with a permanent disability. On March 30, 1971 appellee filed a complaint in trespass against both Dr. Steen and the McKeesport Hospital. The complaint asserted the negligence of Dr. Steen in Count I. In Count II, liability on the part of the hospital was asserted based on its own negligence a,nd on its vicarious liability as the employer of Dr. Steen. The jury returned a verdict in favor of the appellee, finding “Oliver Steen and McKeesport Hospital equally responsible.” The court en banc molded the verdict on the hospital’s motion, granting the hospital indemnity over against Dr. Steen, but denied the appellants’ motions for judgment n.o.v. and for a new trial. Judgment was therefore entered in favor of the appellee, against both appellants for |40,0G0 with indemnity over to McKeesport Hospital against Dr. Steen. The first question raised by the appellants is whether the two year statute of limitations should bar the appellee’s personal injury action. The two year period on actions such as this begins to run when the injury is done. It is undisputed in Pennsylvania that the injury is considered done “when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). Appellants contend that this point was reached when the blister on the affected area appeared in October 1968 warning the appellee of his damaged condition and that an act of negligence had been committed. Appellee maintains that since the blister healed, the warts were gone and the foot appeared normal, he had no reason to know of the injurious effects of the x-ray until November 1970 when the area began to decompose. Which of these two positions is substantiated by the evidence is a question which the jury must decide. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Ayers v. Morgan, supra. The lower court correctly submitted this issue to the jury, and the jury determined that the action had been timely commenced. There was ample evidence in support of this finding. In support of their motion for judgment notwithstanding the verdict, appellants maintain that the expert testimony produced in support of the plaintiffappellee’s claim did not establish negligence on the part of Dr. Steen. At trial, the appellee called two expert witnesses. The first, a pathologist, testified that from an examination of tissue removed from appellee’s foot he concluded that the ulceration had been produced by radiation. The second, Dr. Herring, testified that after examining the appellee and studying his history it was his opinion that the only cause for his injury was an overdose of radiation. He based this conclusion on his knowledge of the effects of x-ray treatments when radiation is used in massive doses and on his experience that tissue death and ulceration can follow such therapy. If the testimony elicited at trial is to establish proof of medical malpractice, it is necessary that it meet certain well recognized standards. The physician is not expected to guarantee a good result from the course of treatment he recommends or administers. To obtain a recovery against a doctor when the prescribed treatment results badly, the plaintiff initially must prove either that the physician did not possess or employ the skill and knowledge required to effect a cure, or that he did not exercise the care and judgment of a reasonable man under like circumstances. In addition, it must be shown to the satisfaction of the trier of fact that the specific injury complained of resulted from such failure of skill and knowledge or lack of reasonable care. A course of treatment which culminates in a bad result is not evidence of negligence in a malpractice case. There can be no inference of negligence due to a bad result which might have occurred despite the use of reasonable care. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). Where the treatment of a patient’s condition is such that the attendant risks and the consequent injury are not matters within the experience of layman, expert testimony is required to establish a right of action. Collins v. Hand, supra; Taylor v. Spencer Hospital, 222 Pa. Superior Ct. 17, 292 A.2d 449 (1972). In the present case, appellants contend that Dr. Herring was not qualified to testify as an expert on the cause of the appellee’s injuries and that therefore his testimony should not have been considered by the jury. Because the witness was a surgeon and not a radiologist, and was admittedly unfamiliar with the practice of removing plantar warts by x-ray, it is argued that his testimony merely goes to show a bad result from a course of treatment and is no proof of negligence. Dr. Herring, however, had had occasion to refer many of his own patients for x-ray treatment, was knowledgeable of the risks of this treatment, and had had occasion to observe the results to the patient when massive doses of radiation were administered. If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert. Whether the witness’s knowledge or. experience justifies admitting his testimony for the consideration of the jury is a matter within the discretion of the trial judge, and the weight to be given this evidence is for the jury. Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 80 A.2d 734 (1951) ; Taylor v. Spencer Hospital, supra. Due to the witness’s familiarity with the use of x-ray and his knowledge of the results of radiation given in massive doses, we find no abuse of discretion on the part of the trial judge in admitting his testimony. We also find no merit in the appellants’ contention that Dr. Herring’s testimony showed only his recognition of a bad result unconnected with any lack of skill or reasonable care on the part of Dr. Steen. Dr. Herring indicated that in his expert opinion the depth of tissue death in the appellee’s foot could have occurred only through an overdose of radiation when he was being treated for removal of his plantar warts. That is, the dose of radiation that caused the decomposition of his foot was significantly greater than necessary under the circumstances. This testimony was supported by that of Dr. Totten, the pathologist. It is not denied that Dr. Steen prescribed and supervised the administration of radiation. Under these facts a properly instructed jury would not be inferring negligence from the existence of an injury alone, but would have an adequate factual basis on which to infer a lack of skill or reasonable care in the treatment of the appellee. Tlie appellants further contend that the chance of a malfunctioning of the x-ray machine itself was not eliminated. However, there was no testimony in the record that the machine used was in any way defective. Since the possibility of a defective machine was not fairly suggested by the evidence, there was no need for the appellee to disprove this possibility as a cause of the injury. “[I]t is not the rule that circumstantial evidence to establish negligence need exclude everything which the ingenuity of counsel may suggest as having possibly caused or contributed to the injuries or death.” Straight v. B. F. Goodrich Co., 354 Pa. 391, 396, 47 A.2d 605, 607-608 (1946). Finally it is contended that the question of the hospital’s right to indemnity from Dr. Steen was improperly considered by the court below. No claim for indemnity was made in the pleadings but at the conclusion of the trial, McKeesport Hospital requested the following point for charge: “If you determine that the plaintiff’s injury was caused by the negligence of the defendant, Oliver Steen, then you must find that the defendant, Oliver Steen, is liable over to the defendant, McKeesport Hospital, to indemnify the hos pital for the amount of any verdict rendered.” In granting the point for charge, over the objection of Dr. Steen, the trial judge instructed the jury on the law of indemnity stating that if Dr. Steen was found negligent the verdict would have to be returned against both defendants since the hospital remained liable for the acts of its employee. The court continued, however, to charge that “from all of the evidence, there is no negligence on the part of the McKeesport Hospital and the only negligence is that of Dr. Steen” and that in such a case Dr. Steen would be found to be liable over to his employer the hospital, for the amount of any verdict entered. The verdict as returned by the jury found that both defendants Oliver Steen and McKeesport Hospital were “equally responsible” but failed to state Dr. Steen’s liability over to the McKeesport Hospital as instructed. Upon the motion of the hospital the court molded the verdict to conform to the charge, adding the finding of indemnity. It is now contended by Dr. Steen that since both appellants were original defendants to the plaintiff’s suit, the proper way to raise the issue of indemnity between the co-defendants was for the hospital to plead it in its answer under new matter as provided by Pennsylvania Rule of Civil Procedure 2252 (d). Rule 2252 generally concerns the joinder of additional defendants and section (d) of that rule permits the joinder of any party, whether plaintiff or defendant, as an additional defendant by the assertion under new matter “that such party is alone liable to the plaintiff or liable over to the joining party . . . .” The question we must consider is whether the failure of the hospital to join Dr. Steen, an original defendant, as an additional defendant for the purpose of determining indemnity, results in the loss of appellant hospital’s right to have that issue resolved in this suit. As originally enacted, Rule 2252 permitted the joinder as an additional defendant of any person who was not already party to the action who might he solely liable or liable over to the original defendant or jointly or severally liable with him. In 1961, the rule was amended to allow the joinder as an additional defendant of a co-plaintiff in the canse of action. The rule was amended again in 1969 to provide a procedure for joining any party, plaintiff or defendant, who might be solely liable, liable over or jointly or severally liable with the joining party. The purpose of these amendments was to provide a short cut procedure for disposing of matters involving numerous parties with divergent interests, avoiding the cumbersome three step process of severance, joinder and consolidation formerly required if one wished to join a person already party to the action. Goughenour v. Campbell, 219 Pa. Superior Ct. 142, 281 A.2d 69 (1971) ; Goodrich-Amram, Procedural Rules Service, §2252 at 235 et seq., (Supp. 3 & 4,1974). In construing this rule as it applies to the circumstances of this case, a number of principles are to be kept in mind. Generally applicable to all the rules of civil procedure is Rule 126 which provides that “[tjhc rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Such an approach is particularly pertinent where multiple parties are involved since in such cases the primary intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit. Martinelli v. Mulloy, 223 Pa. Superior Ct. 130, 299 A.2d 19 (1872). This Court has favored the policy of broadly interpreting Rule 2252 “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution.” Martinelli v. Malloy, supra, at 135, 299 A.2d at 21. In the present case, appellant, McKeesport Hospital, could have utilized Rule 2252 (d) to raise clearly the issue of indemnity between the two original defendants, appellants here, by asserting its right to liability over in its answer as new matter. This process would insure the determination of the respective parties’ primary or secondary liability to the plaintiff at trial. However, in this case the plaintiff appellee asserted in his complaint not only the liability of Dr. Steen and the McKeesport Hospital through their separate negligent acts, but also liability of the hospital on the basis of its relationship as an employer to Dr. Steen. The employment relationship was admitted by both appellants. Since no evidence was introduced by any party to establish grounds upon which the hospital could be held liable due to its own acts or omissions, the only basis on which it could be held liable was by virtue of the vicarious liability of an employer for the negligence of its employee acting within the scope of his employment. Where an employer is not negligent by his own act, it is well recognized that his liability to the injured party is only secondary to that of the negligent employee. The employer therefore is entitled to indemnity for any payment of damages he is compelled to make from the employee who is primarily liable. Burbage v. Boiler Engineering & Supply Co., Inc., 433 Pa. 319, 249 A.2d 563 (1969); Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) ; Mixter v. Mack Trucks, Inc., 224 Pa. Superior Ct. 313, 308 A.2d 139 (1973). Prior to the amendment of Rule 2252 (d), where suit was brought against both an employer and em ployee, and liability was established against the employer only through the application of the respondeat superior doctrine, this Court did not question the employer’s right to indemnity. Although procedure was not available at that time for joining a person already a defendant on another issue, it was recognized that the defendant primarily liable was a party to the suit and had had opportunity to participate in the defense. Consequently the liability of the defendants between themselves could be established in the plaintiff’s action, without separate suit. Muldowney v. Middleman, 176 Pa. Superior Ct. 75, 107 A.2d 173 (1954). The right of the parties to a determination in a single action of all their obligations to one another regarding the subject matter of the suit was also recognized in East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 401 (1937). In that case it was stated that in the absence of a jury finding as to the right to recovery over, the proper approach of the party claiming secondary liability was to object to the receipt of the verdict or to move that the court mold the verdict to conform with the jury’s intent. Considering that the amendment of Rule 2252 (d) was intended to promote the resolution of all parties’ rights in a single suit it is indeed anomalous in a case such as this to advance the method provided by the rule as a reason for denying the parties a right previously held, forcing them to maintain a separate suit. The evidence here showed that the only liability of the hospital was the vicarious liability of the employer. Failure of the hospital to assert against its co-defendant the employment relationship which would entitle it to indemnify should not operate to force the parties into the futile exercise of a separate suit when the plaintiff’s complaint to which both defendants were responding in court asserted that very relationship. Such a result would unnecessarily exalt the form of the procedural rules over their substantive objectives. Goughenour v. Campbell, supra. In this case we believe that the judge acted correctly in charging the jury on the issue of indemnity and subsequently molding the verdict to clarify the jury’s unexpressed intention. See, Gombar v. Schaeffer, 202 Pa. Superior Ct. 282, 195 A.2d 527 (1963); East Broad Top Transit Co. v. Flood, supra. Judgment affirmed. Weight, P. J., took no part in the decision of this case. Spaulding, J., took no part in the consideration or decision of this case. The limitation of personal injury actions is covered by the Act of June 24, 1895, P. L. 236, §2, 12 P.S. §34. See Siemens v. Turner, 274 Pa. 228, 117 A. 922 (1922) where the lower court instructed the jury that they could conclude the dofendant acted negligently if they determined the plaintiff merely sustained an x-ray burn on his groin. In so doing, the court directed the jury to hold the defendant to a higher standard of care by permitting a finding of negligence on the basis of proof of an x-ray burn alone without consideration of the defendant’s skill or care in administering the treatment. The case was remanded for a new trial by the Supreme Court with the instruction that the res ipsa loquitur doctrine was not to be applied to x-ray burning cases. Appellants raise substantially the same issues in their motion for a new trial, arguing that it was error for the trial judge to instruct the jury solely on the basis of Dr. Steen’s negligence. However, we agree with the trial judge that the evidence was sufficient to create a jury question as to the negligenc of Dr. Steen and that there was no evidence suggesting negligence on the part of the hospital.

The opinion of the Court was delivered by Lewis, C. J. — Samuel Baiman, the plaintiff below, claimed the land in controversy under a purchase from Peter Henry, who had taken out a warrant for it on the 9th July, 1832, and received a patent on 31st January, 1835. William Henry claimed under a warrant to Reese Meredith in 1776, which became vested in Woods & Olymer; an agreement between the attorneys of Woods & Clymer on the one part, and Joshua F. Cox on the other, ratified by conveyances to Mr. Cox on the 15th February, 1839, and 29th March, 1839, together with a conveyance from Joshua F. Cox to William Henry, on the 14th December, 1839. But it is contended that the purchase by Mr. Cox, of the title of Woods & Clymer, enures to the benefit of Samuel Raiman; and this was the question tried in the Court below. It was in evidence that,-in September, 1833, an ejectment was brought by Woods & Clymer against Peter Henry; that the latter employed Joshua F. Cox as his counsel to defend the suit, and placed the title papers in his hands. Mr. Cox received a fee, and attended to the trial of the cause; but Peter Henry was not' heard on the merits of his-title, on the ground that he stood in the relation of a tenant to Woods & Clymer, and was bound to deliver up possession before he could try his title. The cause was decided against bim, on the 6th December, 1837, and he was toned out of possession on the 7th February, 1839. The agreement for the purchase by Cox is without date, so that it does not clearly appear whether it was made before or after Peter Henry was turned out of possession. ■ Nor does it appear whether it was made before or after Peter Henry'conveyed his interest to Samuel Raiman. Clymer’s ratification is dated but eight days after Peter Henry was dispossessed; and as Clymer lived in a distant part of the state, and the facilities for travelling were not as great in 1839 as they are now, it is probable that Mr. Cox made the contract for the purchase before his client ceased to occupy the premises.' It is clear, however, that his client’s rights wére not concluded by the decision. One verdict is not conclusive in ejectment, even where the title has been tried; but in this ease he had not had the benefit even of one trial on his title, before he found his own counsel arrayed against him, armed with the title of his adversary. If such a purchase can be justified by showing that, before it was made, the relation of counsel and client had terminated, either by the decision of the cause, or by the conveyance of the client’s interest to another, the burden of proof is on the party who affirms this to be the case. But such a transaction is not to be sustained on any such grounds. It is a mistake to suppose that the attorney is at liberty to violate the professional confidence reposed in him by his client, the moment the relation of counsel and client terminates. The necessities of the client compel him to repose unlimited confidence in his counsel. When he is in jeopardy — either of life, liberty, property, or character — he is obliged to repose confidence in his professional adviser, in order that he may be properly defended. If he is threatened with a lawsuit about his land, he is compelled to exhibit his title papers to his counsel, and to disclose to him every supposed defect in them, in order that imperfections may be remedied, and preparations made to sustain the title. So, if the life or liberty of the client be in danger from legal proceedings against him, unlimited confidence in his counsel is so necessary, that he cannot safely go to trial without it. As the necessities of litigation compel confidence on the one side, the policy of the law requires fidelity on the other. The policy which enjoins good faith, requires that it should never be violated. The reasons for requiring it at all demand that it shall be perpetual. Occasions may arise where an upright counsellor may feel himself bound to withdraw from his client’s cause, but no circumstances whatever can justify him in betraying the trust reposed under the highest obligation of professional honour. Where fidelity is required, the law prohibits everything which presents a temptation to betray the trust. The orison which deprecates temptation is the offspring of infinite wisdom, and the rule of law in accordance with it rests upon the most substantial foundations. The purchase by an attorney of an interest in the thing in controversy, in opposition to the title of his client, is forbidden, because it places him under temptation to be unfaithful to his trust. Such a purchase, therefore, enures to the benefit of his client. Where the confidence has relation to the title to land, the fidelity of the counsel must necessarily follow the title of his client wherever it goes.' Any other rule would defeat the object of the trust, by destroying the market value of the title. If a trust reposed for the purpose of establishing it, might be made available as the means of defeating it, the moment it passed into other hands, it would be more injurious than beneficial. No prudent man would repose confidence on such terms, and all men would be deterred from purchasing titles which had ever been in the hands of attorneys or counsellors-at-law. If, after the cause is ended, or the relation of counsel and client is terminated by a sale, or by the death of the client, the counsel employed to defend the title should be permitted to make war 'upon it by means of the purchase of the hostile claim, which he was employed to oppose, no one would be safe in the .employment of professional aid. If the client’s vendees, and even his orphan children, maybe ruined by means of violating the trust reposed by their vendor or ancestor, and such breaches of trust are sanctioned by the Courts, the whole Commonwealth would be overwhelmed in litigation; all land titles in the state would be in jeopardy; the Bar would cease to enjoy the confidence of the people, and the Courts of justice, instead of being the bulwarks of public and private security, would become the most intolerable engines of disturbance and oppression. In the case of Reid v. Stanley, 6 W. & Ser. 376, it appeared that Reid was employed by one Buck to make some examinations respecting Buck’s title to the lot on which he had made valuable improvements. Reid discovered that Buck, instead of making his improvements on his own lot, had made them by mistake on a lot that belonged to Henry Pratt. Reid thereupon, without disclosing the discovery to Buck, purchased the lot of Mr. Pratt. Buck, a few days afterwards, sold and conveyed his title to William G. Birch, who put Stanley in possession as his tenant. After Birch, the vendee of Buck, had been in possession by his tenants more than a year, Reid brought an ejectment against the tenant, Stanley. Reid was not a member of the Bar. He was not employed under the seal of professional confidence. He was merely employed as an agent. Nevertheless, it .was held that he could not avail himself of a defect discovered in the course of his agency, and that his purchase of the adverse title enured to the benefit of his principal. It was not supposed for a moment, in that case, that Reid could assert his ill-gotten purchase against the vendee of his principal with any better success than he could against the principal himself. Accordingly, Stanley, the tenant of Birch, who had purchased Buck’s title, ivas allowed to defeat the claim of Reid, on the ground Of duties assumed by him while the title was in' the hands of Buck. If this rule exists in full force where the agent is not a professional adviser — where he is not an officer of the Court, created and recommended to public confidence by law — and where he is not acting under the sanction of an oath of fidelity to his principal, it applies with much stronger reason to the relation of counsellor and client, where so many circumstances combine to increase the confidence on the one side, and add strength to the obligation on the other. In Galbraith v. Elder, 8 Watts 81, it was held that the fidelity of the counsel must be for ever observed, and that a purchase of the adverse title, “ after the relation of counsel and client had ceased, is equally forbidden with a purchase during the existence of such relation.” In what has been here said, we do no more than carry out the spirit of that decision. But had William Henry notice of this equity ? Notice at any time before payment of the purchase-money is sufficient. The receipt on the body of the deed, although good evidence of payment against the party who signed it, is not evidence on a question of this kind to affect the rights of third persons: Union Canal Company v. Young, 1 Whar. 431; Bolton v. Johns, 5 Barr 151; Snelgrove v. Snelgrove, 4 Des. 287. We do not see the evidence-of payment of the purchase-money by William Henry before notice of the equities arising out of the professional duty of Mr. Cox. But, admitting that he paid the whole purchase-money when he made the purchase, there is evidence that he was in attendance as a witness for Peter Henry in the suit in which Mr. Cox was engaged as counsel, and that he knew that the latter was so engaged. But this is not all. He purchased pending the action brought against himself and Paul Cleavinger by Samuel Raiman to September Term, 1839. That action was full notice that the plaintiff claimed the land. There was therefore no injury done to him in submitting the question of notice to the jury. The objection to the tender, on the ground that the money was not kept in Court from the time it was refused till the time of trial, seems to be founded on an inattention to an established distinction on this branch of the law. Where a debt is due on á contract executed, and the creditor is entitled to it without the performance of anything on his part, an actual tender is required, and must be kept good by bringing the money into Court and pleading the tender, at an early stage of the cause, with an averment of “ tout temps prist.” But this is not necessary where the agreement is executory, and the acts of the parties are to be concurrent ; as where one is to make a deed and the other to pay the purchase-money. In such case an unconditional tender is not required. It is sufficient for the -plaintiff, in order to put the opposite party in default, so that an action may be maintained, to show that he was ready and willing to pay the money, on receiving the consideration to which he is entitled. An offer to pay, and a demand of performance, is sufficient if performance be refused. In such case it is sufficient to bring the money into Court at the time of the trial. The rule here indicated was recognised by this Court, on full consideration, in McKean v. Wagenblast, a case not yet reported. B'esides, although an offer to pay the money was necessary to the support of an action brought immediately on the defendant’s taking possession, no such offer is necessary where the possession has been of so long a continuance as to require an account of the rents and profits before the amount to be tendered can be ascertained. The law never requires anything unreasonable. It was sufficient under the circumstances of this case to bring the money into Court at the time of trial. This is all that is necessary to be said on this part of the ease. We do not decide that even that was indispensable. But it is alleged that the verdict is void for uncertainty. The verdict is in favour of the plaintiff below for the land described in the writ. This is sufficiently certain. The uncertainty, if any 'exist, is in the condition annexed to the verdict, and not in the' verdict itself. The condition is in the nature of an injunction to stay proceedings at law upon terms. It is in favour of the defendant below, and it was his business to see that it was expressed with sufficient certainty. An uncertainty in it will not vitiate the judgment at law. In the exercise of its chancery powers, the Court may reduce the condition to certainty either with or without an issue for the purpose: Harmar v. Holton, ante, p. 245. The plaintiff below is required by the condition annexed to the verdict to pay “back the purchase-money with interest.” What purchase-money? The law settles this. It can be no other than the purchase-money paid by Joshua E. Cox, under his agreement with Woods & Clymer. That agreement is returned with the evidence, and forms part of the record. By that contract it appears that the purchase-money paid by Cox was $630, with interest from 1st May, 1839, and $150 with interest from 1st May, 1840. This, at the time of the trial, amounted to the sum of $1519.80; and that sum was brought into Court before the verdict. The condition annexed to the verdict is therefore sufficiently certain, because it can be made so by reference to the contract, and to the money paid into Court. It follows from these views of the questions involved in the cause, that the plaintiff in error has nothing to complain of. The action of the Court was quite as favourable to him as he had any right to require. The judgment must therefore be affirmed. It is considered that the judgment on the verdict be affirmed. It is further considered and ordered that William Henry have leave to take out of Court the sum of $1519.80 deposited there for his use, on delivering a conveyance in fee to the said Samuel Raiman of the said William Henry’s title to the premises in controversy, as fully as it was derived from Joshua E. Cox, free from all encumbrances done or suffered by said Cox or William Henry.

The opinion of the court was delivered by Strong, J. — The inquiry raised by the pleadings relates to the extent of the exception inserted in the policy. It is entirely a question of construction. The contract was one of insurance upon the hull, tackle, machinery, and apparel of a steam propeller, but it stipulates for exemption from liability for certain losses. The stipulation was inserted by the underwriters, and was intended for their benefit. If it be obscure, it is their fault. If it be capable of two interpretations, equally reasonable, that must be adopted which is most favourable to the assured, for the language is that of the insurers. The excepting clause in the policy is in the following words : “It is understood that this company is not liable for any breakage or derangement of the engine, or bursting of the boiler, or any of the parts thereof, or for the effects of fire from any cause connected with the operation of the repair of an engine or boiler, unless the damage be occasioned, and the repairs rendered necessary, by the stranding or sinking of the vessel after her engines and boiler shall have been put in successful operation. It is also understood that this company is not liable for fuel, wages, and provisions, nor for any expense of any delay consequent upon repairs to the engine or boiler, of any kind, or repairs to the hull, if such repairs are rendered necessary by breakage or derangement of machinery, or bursting of boiler.” It is not to be denied that the intention of the parties is far from being clearly expressed in this excepting clause. The controversy, however, is all in regard to the first exception, and we are of opinion that its purpose was only to relieve the underwriters from liability to indemnify the assured for broken or deranged machinery, and not to exempt them from the obligation to pay for a total loss, even though that loss could be traced back to the breakage of the machinery as its first cause. The exemption embraces three kinds of losses; first, breakage or derangement of the engine, or bursting of the boiler, or any parts thereof; second, the effects of fire arising from certain causes; and third, fuel, wages and provisions, and expenses of delay consequent upon repairs to the engine boiler or hull, if rendered necessary by breakage of the machinery. If it was the intention of the parties by the first exemption to except from the contract of indemnity all losses directly or indirectly consequent upon breakage, it would have been easy to have done so clearly by the insertion of two or three additional words. That the difference between damage, itself a loss, as well as causing one, and the loss caused, was in the minds of the insurers, may be inferred from the fact that by the second exemption they have protected themselves against such consequential losses. They expressly provide against liability “for the” effects “of fire from any cause connected with the operation of (or) the repair of an engine or boiler,” but they do not expressly exclude the effects of breakage or derangement of the engine or bursting of the boiler, or any of the parts thereof. The difference in the mode of expression is indicative of a difference of intention. It is difficult also to account for the additional stipulation contained in the third exception, if the first was designed to embrace all the consequences of breakage of the machinery. In that case expenses of delay consequent upon repairs to the engine or boiler, or repairs of the hull, rendered necessary by breakage or derangement of the machinery, are twice excluded from the contract. These things are but consequences of breakage. Why stipulate the second time for their exception, if they had already been excepted ? No satisfactory reason has been given for it. Parties are not to be presumed to have intended mere repetition. It seems clear, that something additional was meant which had not before been excepted. To allow any force to this part of the exempting clause, the first must be construed as extending only to immediate damage to the machinery. And it is a cardinal rule of construction, that effect should be given, if possible, to every part of the instrument. The general provisions of the policy cover the whole loss however occasioned. The underwriters limit the general words by stipulating that they are not to be liable for breakage, nor for expenses of delay caused by breakage, or by repairs consequent upon breakage. The exception itself raises an implication that, for all other consequences of breakage not mentioned, they were to remain responsible under their general covenant of insurance. This interpretation is consistent with all the provisions of the policy, and leaves no part of it without meaning. Judgment affirmed.

Opinion by Mr. Justice Boberts, In 1942, upon a plea of guilty to murder generally, appellant was convicted of first degree murder and sentenced to life imprisonment. On September 1, 1966 he filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. §1180-1 et seq. (Supp. 1966), setting forth three grounds for relief: (1) that his plea of guilty was not knowingly and intelligently made; (2) that he was deprived effective assistance of counsel; and (3) that he was not properly arraigned. After an attorney was appointed to represent Hill in this post-conviction proceeding, the hearing judge, on November 14, 1966, dismissed the petition without an evidentiary hearing. However, on the very next day, consistent with our decision in Commonwealth ex rel. West v. Myers, 423 Pa. 1, 222 A. 2d 918 (1966), Judge Graff wisely vacated this order and scheduled an evidentiary hearing. At the hearing appellant was the sole witness. He maintained that he was never arraigned, and that his counsel had never told him of the consequences of a guilty plea, or of his right to a trial by jury, but, instead assured him that he would be sent only to White Hill for some time. •Appellant was 16 years old at the time of sentence. Although the original transcript of the 1942 guilty plea hearing has been lost, and Hill’s trial counsel at the time of the post-conviction hearing had been dead for six years, Judge 'Graff, who also presided at the 1942 hearing, chose, to disbelieve Hill, and consequently denied relief. From that denial Hill appeals. On the issue of Hill?s guilty plea, we start with the well established doctrine set forth in Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 85, 202 A. 2d 299, 302 (1964), cert. denied, 379 U.S. 976, 85 S. Ct. 677 (1965). As the Court there noted: “When an accused pleads guilty to an indictment, it is presumed that he is aware of what he is doing: [citing cases]. Hence, the burden of proving otherwise is upon him.” . With the burden of proof thus on appellant, we hold that the hearing judge was justified in refusing to accept Hill’s version of the circumstances under which his' plea was entered. A decision of this sort turns on a pure question of credibility; we can find no basis upon which to challengé Judge Graff’s evaluation of appellant’s testimony. Appellant next contends that he did not have effective assistance of counsel at the time his plea was entered. This Court has just recently announced the test in Pennsylvania for determining when counsel can be said to have been constitutionally ineffective. In Com monwealth ex rel. Washington v. Maroney, 427 Pa. 599, 613, 235 A. 2d 349, 357 (1967), we held that before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it. The facts in this case fall woefully short of meeting such a requirement. Appellant, and two other men, were arrested in connection with the robbery and assault of one Veseley, as well as the robbery and murder of Joseph Bamoska. Shortly after their arrest, all three men voluntarily confessed their guilt orally, and later in writing. There is no allegation that any of these statements were unlawfully induced. It is clear that, faced with this overwhelming evidence of guilt, the age of the defendant Hill, and the brutality of the crime, Hill’s trial counsel wisely concluded that appellant would stand his greatest chance of escaping the death penalty if he were to plead guilty. Not only was this choice of strategy reasonable, it was likely the very best choice that could have been made under the circumstances. Finally, appellant challenges the validity of his arraignment. However, in view of our decision that the guilty plea was knowingly and intelligently made, we need not reach the merits of this argument. As this Court has said on numerous occasions: “A plea of guilty, knowingly made, constitutes an admission of guilt and is a waiver of all nonjurisdictional defects and defenses.” Commonwealth v. Garrett, 425 Pa. 594, 597, 229 A. 2d 922, 924 (1967); Commonwealth ex rel. Foeman v. Maroney, 420 Pa. 486, 218 A. 2d 230 (1966); Commonwealth ex rel. Walls v. Rundle, 414 Pa. 53, 198 A. 2d 528 (1964). That the court had jurisdiction over Hill is obvious. Order affirmed. Mr. Justice Cohen took no part in the consideration or decision of this case. Although it appears that Hill was never advised by the judge as to the consequences of a guilty plea, and although such a procedure is preferable, this failure would not, of itself, entitle appellant to relief. Not only did this hearing take place twenty-five years ago, at a time when such cautionary instructions from the bench were not customarily given, but also we recently noted in Commonwealth ex rel. West v. Myers, 423 Pa. 1, 7, 222 A. 2d 918, 922 (1966) “that our cases have not prescribed a fixed procedure whereby voluntariness and understanding are to be determined and, thus, we have not disturbed convictions based upon guilty pleas merely because the court failed to examine the defendant at the time it accepted his plea.”

Opinion by Mr. Justice Patterson, Joseph Libonati, the appellant, was indicted and tried for the murder of one Carrie Kolb, who was shot and killed at about 12:30 a.m. on July 24, 1940, as she sat in a parked automobile with one John Ewing near 2645 West Carson Street, Pittsburgh. Ewing, a boarder of the deceased, was likewise shot and killed. The defense was an alibi — that appellant could not have committed the offense because he was at home and in bed at the time the fatal shots were fired. By their verdict the jury found appellant guilty of murder in the first degree and fixed the penalty at life imprisonment. Motions in arrest of judgment and for a new trial filed by appellant were overruled, sentence of life imprisonment was imposed, and this appeal followed. According to the Commonwealth’s case, an intimate relationship grew up between the deceased and appellant following the death of the latter’s wife in 1937. Admittedly he gave her sums of money, as much as fifty dollars a month, and in addition had bought her an automobile, a fur coat, a washing machine, and other articles of personal property. When, her attitude toward him became cool appellant demanded of deceased the return of a large sum of money, from twelve to sixteen hundred dollars, and threatened her with bodily harm if the money was not returned. A few months before the killing appellant told a felloAV-employee of the money he had given deceased and stated that if she did not return it he “might be going to kill her”; again he was heard saying to deceased over the telephone, in an angry tone, “If I don’t get my machine back or some of the money you owe me I’ll cut your teats off”; and on still another occasion, in the latter part of April or early in May, 1940, he stated to a friend that the deceased “wasn’t going to make a fool of him. She has promised to marry him,” and that unless he obtained his money back he Avould “cut her guts out.” At numerous times appellant was observed maintaining a watch on deceased’s house and he warned one woman to keep her husband away from the deceased. He denied that he ever owned or possessed a gun, but the Commonwealth’s evidence establishes that he had been seen to have a revolver in his possession, and that several months prior to the killing he produced a broken clip from an automatic pistol, asking a felloAV-workman to make the necessary repairs. Appellant admitted he was at the scene of the crime after the shooting but denied that he was the responsible party, claiming he was at his home, and in bed, when the shots were fired. This was contradicted by two witnesses for the Commonwealth, however, one of whom testified he saw appellant in the vicinity of the crime at approximately 11:50 p.m., some forty minutes before the killing, and the other of whom stated he observed appellant walking along West Carson Street, in the direction of Ewing’s parked car, twenty to twenty-five min utes before the reports of the fatal shots were heard. Witnesses who lived near where the car was parked stated that screams were heard and thereafter shots, followed by silence and then more shots. The figure of a man was seen standing beside the car firing a gun and then running from the side of the car toward a set of railroad tracks leading to the rear of appellant’s home after a five minutes’ walk. Appellant’s bedroom was at the rear of the house, and the rear entrance was by a door leading directly into this room. Following the shooting appellant was observed to be in an agitated condition; he was “white as chalk” and was “shaking.” On returning to his home after visiting the scene of the crime appellant said nothing about a killing having taken place, simply stating there had been “an accident,” but took a long automobile ride through the streets of Pittsburgh with his son and one Fazio who testified that no mention of what had occurred was made by appellant during the entire trip, although they drove past the scene of the crime, and that he did not know of the murder until he read about it in a newspaper the next day. Appellant’s alibi was supported in part by apparently disinterested witnesses and by members of his immediate family. Some of the evidence could be true and appellant could still have committed the crime; other parts, particularly that given by members of his family, would, if believed, have completely exonerated him. It is conceded the Commonwealth’s case “may have been sufficient to point the finger of suspicion at the appellant,” but it is urged, as appellant’s principal contention, that the evidence, being wholly circumstantial, was not sufficient in quantity and quality to overcome the presumption of innocence and put appellant to a defense. In the alternative, complaint is made of certain rulings relating to the admission and exclusion of evidence and of alleged misstatements of fact in the trial judge’s charge to the jury, by reason of which it is urged appellant has been denied a full, fair, and impartial trial. Our review of the evidence and the law convinces us that the conviction was proper and that the judgment and sentence must be affirmed. The mere fact that the evidence to establish appellant’s authorship of the crime is wholly circumstantial is not fatal to the Commonwealth’s case. As long ago as Commonwealth v. Harman, 4 Pa. 269, this court said, speaking through Chief Justice Gibson (p. 271) : “No witness has been produced who saw the act committed; and hence it is urged for the prisoner, that the evidence is only circumstantial, and' consequently entitled to a very inferior degree of credit, if to any credit at all. But that consequence does not necessarily follow. Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger.” See also Commonwealth v. Kovovic, 209 Pa. 465, 468; Commonwealth v. DuBoise, 269 Pa. 169, 174; Commonwealth v. Karmendi, 328 Pa. 321, 333. Nor may we say, as a matter of law, that the guilt of the accused has not been sufficiently established to carry the case to the jury merely because of a remote possibility that the evidence, or some part of it, might be true and the accused still be innocent. The requirement of the law is that in order to warrant a conviction the facts and circumstances proved must be of such character as to produce a moral certainty of the guilt of the accused beyond any reasonable doubt — not that they need be absolutely incompatible with his innocence — and that doubt is for the jury unless the evidence “be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances”: Commonwealth v. DuBoise, supra, 174. See also Commonwealth v. Karmendi, supra, 334; Commonwealth v. Giovanetti, 341 Pa. 345, 359; Commonwealth v. Marino, 142 Pa. Superior Ct. 327, 333. Bearing in mind the relationship between the deceased and accused, his thwarted desire to marry her, and her refusal to return his gifts of money and property, we have a motive for the murder as old as crime itself — that of revenge and jealousy. We have also accused’s announced intention to do deceased serious bodily harm; the fact of his possession of a gun and his request for certain necessary repairs to the clip of an automatic revolver within several months of the killing; and the positive testimony of persons who knew accused well placing him in the immediate vicinity of the crime at the time it was committed. In addition we have the circumstance that the course taken by the murderer would lead directly to the rear of accused’s home and his bedroom after a few minutes’ walk, the fact of his agitated emotional condition immediately after the killing, and his subsequent incriminating actions, such as his false statements when taken into custody, to the effect that he was not out of the house at any time on the night of the killing, and the fact that he made no mention of what had actually taken place upon his return home after visiting the scene of the crime, merely stating there had been an accident. It is true the figure observed firing into the Ewing’car was described as garbed in dark clothes, whereas the testimony is that when accused was later seen at the scene of the crime he was coatless and wearing a white shirt, but this circumstance, as well as a large part of the evidence offered by accused to substantiate his alibi, is entirely consistent with the theory of the Commonwealth that after firing the fatal shots accused fled along the railroad tracks to the rear of his house, came out of the front door of the house, and then walked back to the scene of the crime. Considered individually none of these facts would be conclusive, but when considered in its totality we are of one mind that the evidence was such as to require submission of the case to the jury, under proper instructions which were given as follows: “. . . the evidence in this case, upon which the Commonwealth relies for a conviction, is circumstantial evidence ... In other words, there were no eye witnesses to this killing who could identily the person who actually did the shooting. . . . Now, members of the jury, with reference to circumstantial evidence, we say to you this is the law, that the facts and circumstances which you find to be true, from the evidence offered before you, must not only be consistent with guilt, but inconsistent with innocence before you can convict . . . Where the Commonwealth asks a conviction upon circumstantial evidence, such evidence must point with steady and unerring aim to the guilt of the accused, beyond all reasonable doubt, and must be inconsistent with and irreconcilable to any reasonable hypothesis of his innocence . . .” See Commonwealth v. Benz, 318 Pa. 465, 472; Commonwealth v. Bardolph, 326 Pa. 513, 521; Commonwealth v. Giacobbe, 341 Pa. 187, 189: Did the alleged trial errors, or any of them, substantially abridge in any way the fundamental right of appellant to a full, fair and impartial trial? Our conclusion, like that of the court below, is that they did not. It is contended the court improperly excluded evidence to show that about a week before the killing an unidentified person stopped at a gasoline station located some six blocks from where deceased lived, exhibited a revolver, and told the attendant he intended to use it on “a blonde woman” who had gotten out of his car at the gasoline station some weeks before and who had given him a disease. As stated, the offer was obviously too indefinite to have any real evidentiary value, since the individual referred to in the alleged conversation may have been any one of an indeterminate number of blonde women in the community, and its rejection, in the absence of some attempt to show that the person referred to and deceased were one and the same, furnishes no just cause for complaint. See Commonwealth v. Winter, 289 Pa. 284, 293. Nor are we convinced of error in the court’s refusal to admit in evidence the record of the coroner’s inquest upon the body of the deceased. The finding of the coroner’s jury, being based on less than all the evidence in the case, was entirely superfluous, and hence its exclusion was proper, particularly since the finding did not declare a person other than the accused to be the wrongdoer but simply stated death resulted “from a gun in the hands of a person or persons unknown” : See 5 Wigmore on Evidence (3rd. ed.), section 1671(6). The remaining grounds for a new trial may be disposed of briefly. The testimony of the witness Gray as to threats of bodily harm made by appellant over a telephone was only rendered admissible after it had been brought out on cross-examination of appellant that he never called any person over that particular telephone excepting deceased. This was clearly rebuttal evidence, and the same is true of the evidence of the witness Brooks. The latter was called principally for the purpose of discrediting the testimony of appellant that he had not left his home at any time on the night of the killing, rather than for the purpose of placing appellant at the scene of the crime, and while it might properly have been received as part of the Commonwealth’s case in chief, this fact does not necessarily exclude it as rebuttal. “The admission of testimony not strictly rebuttal is within the discretion of the court, and if relevant the mere fact that it was received in rebuttal when it should have been offered in chief, is not reversible error”: Sadler Criminal Procedure in Pennsylvania (2nd ed.), section 546. See also Commonwealth v. Bell, 166 Pa. 405, 413; Commonwealth v. Weber, 167 Pa. 153, 156. Considered as a whole the charge fairly sets forth the essential evidence, and we are satisfied that the alleged misstatements as to the results of appellant’s negative paraffin test and his ownership of an automatic revolver, if they be misstatements at all, could not possibly have prejudiced appellant in any way, especially in view of the court’s caution to the jury that “if court or counsel have inadvertently misstated any part of the evidence, you will correct us and take your own recollection; you are tlie sole judges of tlie facts.” See Commonwealth v. Jones, 341 Pa. 541, 551. Upon a review of the entire record we are satisfied that it discloses a homicide with all the elements necessary to constitute murder in the first degree. While largely circumstantial, the evidence was convincing. The case was tried with great care, the rulings on evidence and the charge of the trial judge are free of reversible error, and the verdict of the jury is conclusive. . All the assignments of error are overruled and the judgment and sentence are affirmed.

The opinion of the Court was delivered by Gibson, C. J. As this case has no precedent, we must decide it on grounds of reason and analogy; and in order to do so, it is necessary to premise certain principles about which there is no dispute. The domicil of an infant is the domicil of his father, during the father’s lifetime, or of his mother during her widowhood,- but not after her subsequent marriage; the domicil of her widowhood continuing in that event to be the domicil of her child. A husband cannot properly be said to stand in the relation of a parent to his w'ife’s children by a previous marriage, where they have means of support which are independent of the mother, in whose place he stands for the performance of her personal duties, because a mother is not bound to support her impotent children so long as they are of ability to support themselves. Neither can they derive the domicil of a subsequent husband from her, because her new domicil is itself a derivative one, and a consequence of the merger of her civil existence. Her domicil is his, because she has become a part of him; but the same thing cannot be said of her children. Having no personal existence for civil purposes, she can impart no right or capacity which depends on a state of civil existence; and the domicil of her children continues, after a second marriage, to be what it was before it. Thus, we see that when the defendant was appointed guardian of these minor children, their domicil was in the township of East Bradford, where they resided with their mother, if that were important, even after her second marriage; and as the situs of their moveable property attended the domicil of their persons, i't was taxable only there. So far there is no dispute. But_as a father, or a mother, sui juris, may change the domicil of the child by changing the domicil of the family, provided the change be induced for a disinterested motive — not, for instance, to change the rule of succession in the event of the child’s death — the question is whether a guardian or tutor stands in the place of a parent, or has. the same power; and it is still a vexed one with the civilians, who are equally divided in regard to it. Those who maintain the affirmative of it, are corroborated by the code Civile, which, though of positive enactment, is supposed to be founded, in this particular, on the established principles of civil jurisprudence; while those who maintain the negative have, on their side, among others, the authoritative name of Pothier. But the former are supported by the approbation of Mr Burge, the learned British commentator on the Conflict of Laws, as well as by the opinion of Sir William Grant, in Pottinger v. Wightman, (3 Merivale 67), and by the decisions of some of the American courts; which would be amply sufficient to turn the scale of authority, were it not for the powerful doubt thrown in on the other side by Mr Justice Story. “ Notwithstanding,” says he, “ this weight of authority, which, however, with one exception, is applied solely to the case of parents, or of a' surviving parent, there is much reason to ques- ; tion the principle on which the decision (in Pottinger v. Wightman) is founded, when it is obviously connected with a change; of succession to the property of the child. In the case of a : change of domicil by the guardian, not being a parent, it is extremely difficult to find any reasonable principle on which it can be maintained that he can, by any change of domicil, change the right of succession to the minors’ property.” Conflict of Laws, 2d ed. § 506, in notes. And there are reasons for this doubt which seem to bear it out. No infant, who has a parent sui juris, can in the nature of things, have a separate domicil. This springs from the status of marriage, which give rise to the institution of families, the foundation of all the domestic happiness and virtue which is to be found in the world. The nurture and education of the offspring make it indispensable that they be brought up in the bosom, and as a part of their parents’ family; without which. tbe father could not perform' the duties he owes them, or receive from them the service that belongs to him. In every community, therefore, they are an integrant part of the domestic economy; and the family continues, for a time, to have a local habitation and a name, after its surviving parent’s death. . The parents’ domicil, therefore, is consequently and unavoidably the domicil of the child. But a ward is not naturally or necessarily a part of his guardian’s family; and though the guardian may appoint the place of the ward’s residence, it may be, and . usually is, a place distinct from his own. When an infant has no parent, the law remits him to his domicil of origin, or to the last, domicil of his surviving pai’ent; and why should this natural and wholesome relation be disturbed by the coming in of a guardian, when a change of the infant’s domicil is not necessary to the accomplish- , ment of any one purpose of the guardianship ? The appointment of a new residence may be necessary for purposes of education or health; but such a residence being essentially temporary, was held, in Cutts v. Haskins, (9 Mass. R. 543), insufficient to constitute a domicil. But, granting for the moment that a guardian may, for some purposes, change his ward’s domicil, yet if he may Jnot exercise the power purposely to disappoint those who would [take the property by a particular rule of succession, (and nearly | Jail agree that even a parent cannot,) how can he be allowed to ifexercise it so as obviously and unavoidably to injure the ward (himself? It is true, that what has been said on the subject has (had regard to a change of national domicil, and that here we have to do with a supposed change, by implication of law, from one township to another in the same county; but the power of the guardian to do injury can be no greater in the one case than it is in the other. The very end and purpose of his office is projection; and I take it, that there is no imaginable case in which the law makes it an instrument of injury by implication. Where, ' indeed, he acts fairly and within the scope of his authority, the ward must bear the consequences, because he must bear those psks that are incident to the management of his affairs; but that is a different thing from burtheiiing him with a loss as a mere technical consequence of the relation. Buf a guardian cannot convert his ward’s money into land, or his land into money, except at his own risk; and, for a reason'more imperative than any to be found (in a case of mere conversion, he must not be allowed to burthen his ward with a certainty of loss by subjecting his property to taxation for purposes in which the ward has not an interest. It is said that these minors may receive an equivalent for their contributions to the school fund by participating in the instruction which it was intended to dispense; but the district in which their parents resided, has elected to reject both the benefits and the burthens of it; and to say they are bound by the election made by the inhabitants of their guardian’s district, is to assume the ground in dispute — that their domicil has been changed. A guardian has indeed power over his ward’s person and residence; but it follows not that the ward’s domicil must attend that of his guardian, for there is nothing in a state of pupilage which requires it to do so. We are of opinion, then, that the domicil of a ward is not necessarily the domicil of his guardian; and that the personal property of these children was not taxable by the borough of West Chester. Judgment affirmed,

OPINION OF THE COURT LARSEN, Justice. On July 11, 1985, a jury of the Court of Common Pleas of Allegheny County convicted Ronald G. O’Shea, the appellant, of robbery and of murder of the first degree for the machete killing of Herbert Kleber and the robbery of the store in which Mr. Kleber was working when the murder took place. The following day, that same jury sentenced appellant to death following a hearing conducted pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711. Post-trial motions were denied on December 5, 1986 by the presiding judge, the Honorable Robert P. Horgas. On February 2, 1987, Judge Horgas denied appellant’s supplemental post-trial motions, and formally sentenced appellant to death in accordance with the verdict of the jury. A concurrent sentence of ten to twenty years imprisonment was imposed on the robbery conviction. This direct appeal automatically followed. 42 Pa.C.S.A. §§ 9711(h)(1) and 722(4); Pa.R.A.P. Rule 702(b). The record evidence, viewed in the light most favorable to the Commonwealth which prevailed on the verdict, discloses the following. In the early morning hours of November 22, 1985, City of Pittsburgh police officers found the body of Herbert Kleber in the rear of the Liberty Avenue News, where the victim was employed as a clerk. His body was in a freight elevator in the rear of the store, lying face down and his hands were handcuffed to the metal grate door of the elevator about six inches off the ground. Forensic evidence established that the cause of death was multiple deep wounds to the shoulders, neck and head that had been inflicted by a heavy and large knife, consistent with wounds that would be inflicted by a machete. One of the owners of the Liberty Avenue News had just stocked the shelves the preceding day with the victim’s assistance, and thus the owner was able to inform the police of numerous items that he knew to be missing from the store. These items included one of two machetes, knives, numerous inexpensive gold chains, about fifty butane lighters, martial arts throwing stars, other jewelry, cigarettes, and cash that had been in the cash register and in an envelope containing proceeds from the sale of lottery tickets. Also missing from the store was a light gray athletic type bag that had been left in the rear of the store. The store owner provided the investigating police officers with the names of its current and past employees, as well as samples of many of the items that had been stolen. Appellant was on the employee list and had recently been fired for stealing money. The Pittsburgh police officers, including Detective Ronald Freeman, knew appellant from his previous history in the criminal justice system. On the afternoon of November 22,1985, police officers learned that a man matching appellant’s general description had been giving away gold chains and money in the downtown, Market Square, area of Pittsburgh. Detectives Freeman and Terry Hediger decided to question appellant, and they drove out to his residence in Shaler Township, a municipality just outside of the City of Pittsburgh, to do so. Appellant had been living with his brother and sister-in-law, James and Marion O’Shea, and their daughter Eileen in Shaler Township. When these detectives arrived at the O’Shea residence later that day, appellant was not there. After identifying themselves and explaining that they wanted to question appellant, the detectives were given permission to enter the house by the owners, James and Marion O’Shea. The O’Sheas took the detectives to the family gameroom in the basement which is where appellant slept. In this room, the detectives viewed a large hunting knife and a plastic bag containing several gold chains, which were identical to items stolen from Liberty Avenue News. The O’Sheas had never seen these items previously. Additionally, in a laundry room adjacent to the game room, Mrs. O’Shea discovered a gray athletic bag that she had never seen before (which turned out to be the bag taken from the store) and turned it over to the detectives. At some point while the detectives were in the basement, appellant returned home. He knew about the homicide/robbery and suspected the detectives were there to question him. Appellant became somewhat agitated and told the detectives that he did not want to involve his family, and he requested that he go downtown with them. Appellant voluntarily accompanied the detectives to the Pittsburgh Public Safety Building. On the ride downtown, appellant began discussing the homicide, at first denying any involvement in it. The detectives advised him not to discuss it, but he persisted and Detective Freeman then orally advised him of his constitutional Miranda rights. Arriving at the Public Safety Building, appellant was again advised of his Miranda rights, and he executed a written waiver of said rights. After giving two contradictory statements about his activities the previous evening, appellant confessed to the murder of Herbert Kleber and the robbery of the Liberty Avenue News. Appellant told the detectives: that he had gone to the Liberty Avenue News on November 21, 1985, and asked the victim to repay him a $20.00 debt; that the victim “sucker punched” appellant; that appellant then forced the victim to the rear of the store and handcuffed him to the freight elevator; that the victim then, while handcuffed on the floor of the elevator, kicked him in his groin; that subsequently, appellant went to the front of the store and filled a gray bag with gold chains, cigarettes, knives, butane lighters and other items, and he also took cash from the cash register. Appellant further stated that he then decided to kill the victim who knew him and could send him to jail; that he took a machete from the store, went back to the elevator, and started hitting the victim with it — he could not remember how many times he hit the victim; that he left the store, and went to the Good Time Bar in the Borough of Millvale, adjacent to the City of Pittsburgh; that at this bar and elsewhere on the evening of November 21, 1985, appellant gave lighters, chains, cigarettes and other items from a gray bag to numerous people including the bartender, bar patrons and appellant’s girlfriend; and that he had gotten rid of the machete, which was never found. Appellant was arrested. Further investigation confirmed that appellant had indeed distributed items stolen from Liberty Avenue News to various individuals who testified against appellant at trial. Additionally, appellant was wearing a jacket at the time of his arrest which had blood stains on it. Chemical analysis showed that this blood was consistent with that of the victim (whose blood contained genetic markings shared by only two percent of the population) and inconsistent with appellant’s. Appellant was charged with homicide and robbery and, following disposition of pretrial motions, his trial began on July 9, 1986. On July 11, 1986, the jury returned a verdict of guilty of murder of the first degree and of robbery. The bifurcated sentencing proceeding required by the Sentencing Code, 42 Pa.C.S.A. § 9711, was then conducted. The Commonwealth offered only one aggravating circumstance in support of the death penalty, namely that appellant had committed the killing while in the perpetration of a felony, i.e. the robbery. 42 Pa.C.S.A. § 9711(d)(6). The defense presented psychiatric and other evidence of mitigating circumstances suggesting that appellant was, at the time of the murder, under the influence of extreme mental or emotional disturbance and that he was incapable of appreciating the criminality of his conduct or of conforming his conduct to the law. 42 Pa.C.S.A. § 9711(e)(2) and (3). The defense also presented as other “evidence of mitigation concerning the character” of the accused, that he had been sodomized as a young boy of 6-8 years and that he had been deeply affected by his mother’s death when he was 16 years of age. 42 Pa.C.S.A. § 9711(e)(8). After arguments by the defense and the Commonwealth, the jury was instructed by the court in accordance with the Sentencing Code. The jury unanimously found an aggravating circumstance — killing committed while in the perpe tration of a felony — which outweighed any mitigating circumstances. (The mitigating circumstances were not specified by the jury.) The jury therefore sentenced appellant to death. 42 Pa.C.S.A. § 9711(c)(l)(iv). Our standard of review in cases of murder of the first degree in which a verdict of death has been rendered is established by the Sentencing Code, 42 Pa.C.S.A. § 9711(h), which provides: (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 further proceedings as provided in paragraph (4). (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 the defendant. (4) If the Supreme Court determines that the death penalty must be vacated because none of the aggravating circumstances are supported by sufficient evidence or because the sentence of death is disproportionate to the penalty imposed in similar cases, then it shall remand for the imposition of a life imprisonment sentence. If the Supreme Court determines that the death penalty must be vacated for any other reason, it shall remand for a new sentencing hearing pursuant to subsections (a) through (g). We now affirm appellant’s convictions, his sentence of death and his sentence on the robbery conviction. Initially, we hold that the evidence was clearly sufficient, beyond a reasonable doubt, to sustain the jury’s determination that appellant was guilty of murder of the first degree. Although appellant does not challenge the sufficiency of the evidence of murder of the first degree (or the robbery conviction for that matter), this Court will, as in all appeals from a judgment of sentence of death, review the record to determine whether the evidence is sufficient to sustain the conviction for murder of the first degree. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). Appellant’s first argument on appeal is predicated upon the Statewide Municipal Police Jurisdiction Act (the Act), 42 Pa.C.S.A. § 8953. Appellant claims that the Pittsburgh detectives had no authority under that Act to go to Shaler Township to investigate the homicide/robbery, and that therefore the search conducted at the O’Shea residence was illegal. Appellant argues that all of the evidence seized as a result of that search, including his incriminating statements, must be suppressed as the fruits of the alleged illegality. Section 8953 provides: Statewide municipal police jurisdiction (a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases____ Section 8953(a) then delineates six specific situations wherein an officer can go outside of his or her primary jurisdiction to make arrests, serve warrants and perform other official functions, such as: where the officer is acting pursuant to court order; service of arrest and search warrants with consent of local law enforcement agency; acting in hot pursuit; acting upon request of a local law enforce ment officer; and where an officer views a felony or has probable cause to believe that a felony has been committed and makes a reasonable effort to identify himself as a police officer. 42 Pa.C.S.A. § 8953(a)(l)-(6). The suppression court denied appellant’s motion to suppress the items viewed by Detectives Freeman and Hediger in the gameroom-basement which included the hunting knife, gold chains and the gray athletic bag. In its opinion supporting the denial of post trial motions, the lower court stated two grounds for the admissibility of these items: the court considered that the initial search of the O’Shea residence was authorized by subsection (6) of section 8953(a) ; alternatively, the court held that even if the Act had been violated, and the search was therefore illegal, suppression of the evidence obtained thereby would not be an appropriate remedy, citing Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985) and Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). When we review the ruling of a suppression court, we must determine whether its factual findings are supported by the record. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense which is uncontradicted on the record as a whole; if there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from thise facts are erroneous. Commonwealth v. D Amato, 514 Pa. 471, 482, 526 A.2d 300 (1987). Moreover, even if the suppression court did err in its legal conclusions, the reviewing court may nevertheless affirm its decision where there are other legitimate grounds for admissibility of the challenged evidence. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435, 438 n. 5 (1975). Applying those standards of review, we affirm the suppression court’s ruling. The following relevant facts were found by the suppression court and are fully supported on the record. City of Pittsburgh police detectives decided to question appellant because he was a former employee of Liberty Avenue News who had recently been fired, because appellant was well known to the detectives due to his previous history with the criminal justice system, and because a man matching his general description had been giving away gold chains in Market Square, Pittsburgh. Without obtaining prior consent from any Shaler Township officials, detectives Freeman and Hediger drove to the O’Shea residence in Shaler to Question appellant on November 22, 1985. When they arrived at the residence, appellant was not home. After identifying themselves, and explaining the purpose of their presence (to question appellant about the homicide/robbery), the O’Sheas allowed the detectives to come in to look around, and the challenged items were seen by the detectives in plain view. While Detectives Freeman and Hediger were in the basement gameroom, appellant returned to the O’Shea residence. Appellant was not arrested at this time, and he voluntarily accompanied the detectives to the Pittsburgh Public Safety Building, where he eventually gave a full confession after knowingly, voluntarily and intelligently waiving his constitutional rights. The suppression court ruled that subsection (6) authorized the search because the officers, Detectives Free man and Hediger, had “probable cause to believe that an offense which is a felony has been committed, and [made] a reasonable effort to identify [themselves] as ... police officers].” See note 2, supra. We do not believe subsection (6) authorized the search in question as there was no probable cause to believe appellant had committed the crime until after the search had already begun and the knife, chains and gray bag had already been viewed. Moreover, the clear import of subsection (6) is to authorize official police action by an officer who is outside of his primary jurisdiction and there views a felony offense in that non-primary jurisdiction or has probable cause to believe that a felony has been committed in that non-primary jurisdiction. Otherwise, subsection (6) would authorize any police officer to go outside of his or her jurisdiction and make arrests or take other action whenever he or she has probable cause to believe that a felony had been committed in his or her primary jurisdiction. Such an interpretation would render subsections (1), (2) and (4) largely superfluous, and would eliminate the need to ever seek the consent of law enforcement officers within the non-primary jurisdiction. This would defeat one of the major purposes of the Act which was to promote cooperation and cohesive working relationships among municipal police departments. Commonwealth v. Ebersole, 342 Pa.Super. 151, 492 A.2d 436, 439 (1985). Thus, subsection (6) does not explicitly authorize City of Pittsburgh police officers to go into another jurisdiction to investigate a crime without prior consent by responsible law enforcement officials of that jurisdiction; neither do the other subsections. However, we think it equally apparent that nothing in section 8953 prohibits a police officer from going outside of his or her primary jurisdiction to conduct the investigative activities that took place in this case. Section 8953 authorizes arrests, execution of search warrants and other official police conduct outside of an officer’s primary jurisdiction in six specific circumstances. We do not believe that these six specific circumstances are all-encompassing of any activity that an officer may conduct outside of his primary jurisdiction, no matter how informal or unobtrusive. For example, if Detective Freeman had picked up the telephone to talk to appellant at his home in Shaler Township and asked appellant to come to Pittsburgh to answer some questions, would that telephone call be prohibited by section 8953 in the absence of prior consent by Shaler Township police officials, and would any “fruits” of that telephone call have to be suppressed because the Pittsburgh detectives violated section 8953? Such a telephone call is not specifically authorized by section 8953, but neither is it expressly prohibited. Similarly, we do not believe section 8953 prohibits police officers from leaving their primary jurisdiction to go into other jurisdictions to ask questions therein, or to enter a residence therein upon the consent of its owners (and full disclosure of the officers’ purpose) and observe what they observe therein. Such unobtrusive police conduct is outside the scope of section 8953, and is not illegal. Any citizen of the Commonwealth could do what Detectives Freeman and Hediger did herein, namely drive to the O’Shea residence, ask them questions, enter their home with their consent and look around. In the absence of explicit legislative directives to the contrary, we will not prohibit police officers from doing that which a private citizen could do. Accordingly, the initial search of the O’Shea residence and seizure of the items viewed in plain sight therein was not illegal under section 8953, nor under the constitutions of this state or of the United States. That warrantless search was reasonable and justified by the freely given and informed consent of the owners of the residence, James and Marion O’Shea, who obviously had authority to show the detectives their gameroom-basement area. Additionally, we agree with the suppression court’s alternative reason for denying suppression, i.e., that even assuming, arguendo, that there had been a violation of section 8953, exclusion of evidence thereby obtained would not be required in this case. In Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), we held that suppression of evidence was an inappropriate remedy for a violation of the Rules of Criminal Procedure relating to the issuance and execution of a search warrant outside of a police officer’s primary jurisdiction where said violation did not implicate fundamental, constitutional concerns, was not conducted in bad faith or did not substantially prejudice the accused in the sense that the search would not otherwise have occurred or would not have been as intrusive. Automatic exclusion of evidence obtained by searches accompanied by relatively minor infractions of the rules of criminal procedure would be a remedy out of all proportion to the violation, or to the benefits gained to the end of obtaining justice while preserving individual liberties. Id. at 407, 490 A.2d at 426, quoting United States v. Searp, 586 F.2d 1117 (6th Cir.1978), cert. denied 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979); but cf. Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). The Superior Court has recognized that, under Mason, suppression of evidence may or may not be the appropriate remedy for a violation of section 8953 of the Act, depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the Act, and the prejudice to the accused. Compare Commonwealth v. Saul, 346 Pa.Super. 155, 499 A.2d 358 (1985); Commonwealth v. Peppers, 357 Pa.Super. 270, 515 A.2d 971 (1986); Commonwealth v. Sestina, 376 Pa.Super. 441, 546 A.2d 109 (1988): with Commonwealth v. Merchant, 385 Pa.Super. 264, 560 A.2d 795 (1989); Commonwealth v. Fiume, 292 Pa.Super. 54, 436 A.2d 1001 (1981); Commonwealth v. Roberts, 356 Pa. Super. 309, 514 A.2d 626 (1986). We approve of this case-by-case approach to the determination of the appropriateness of exclusion of evidence allegedly obtained in violation of the Act. Accordingly, we affirm the suppression court’s alternative ruling that exclusion of the challenged evidence would not be warranted in this case even if the search was considered to be “illegal” under section 8953. Appellant next asserts that the trial court erred in admitting certain demonstrative evidence, namely a photograph of the corpse, an illustration of the victim’s wounds with a drawing of a machete superimposed, and a machete similar to the machete believed to be the murder weapon, claiming that the prejudicial nature of said evidence outweighed its probative value. We disagree. Demonstrative evidence which may tend to inflame the jury is admissible in the discretion of the trial judge, and an appellate court will not disturb his or her ruling in the absence of abuse of that discretion; it is not for an appellate court to usurp the function of the trial court to balance the alleged prejudicial effect of the evidence against its probative value. Commonwealth v. Bartlett, 446 Pa. 392, 400, 288 A.2d 796, 799-800 (1972); Commonwealth v. Cargo, 498 Pa. 5, 15, 444 A.2d 639, 644 (1982). The Commonwealth introduced one 8" x 11" black and white photograph of the corpse, showing the body lying face down on the floor of the freight elevator and his hands handcuffed to the metal grate door of the elevator about six inches off the floor. The victim’s head and shoulders are substantially obscured by the metal grate and shadows cast thereby, and the wounds are not graphically shown by this photograph. Splattered blood is apparent in the photograph. The Commonwealth offered the photograph to demonstrate that it would have been unlikely that the victim could have kicked the appellant in his groin as appellant stated to the police, a factual question that has a bearing on appellant’s state of mind and whether the homicide was premeditated and deliberate. A photograph of a corpse which is judged not inflammatory is admissible if it is relevant and can assist the jury in understanding the facts; a photograph that is gruesome or potentially inflammatory is admissible if it is of such essential evidentiary value that its probative value clearly outweighs the likelihood of inflaming the minds and passions of the jurors. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818, 827 (1989). We find no abuse of discretion in the trial court’s determination that the photograph was not inflammatory and that it was relevant and helpful to the jury. Similarly, we find no abuse of discretion in the admission of the illustration of the victim’s wounds with a drawn machete superimposed or of the machete that was similar to the murder weapon. The illustration was not particularly inflammatory and was helpful and relevant on the issue of specific intent to kill in showing the exact location, nature and extent of the injuries. Commonwealth v. O’Searo, 466 Pa. 224, 239-40, 352 A.2d 30, 37-38 (1976) (use of deadly weapon on vital part of body supports inference of specific intent to kill). The machete was the twin of the missing machete that had also been displayed in the store the day of the murder, and in light of appellant’s admissions that he took a machete from the store, repeatedly hit the victim with it, and disposed of this machete, the matching machete was highly relevant and probative. The trial court did not abuse its discretion in admitting this demonstrative evidence. Appellant’s remaining contentions on appeal deal with the sentencing proceeding. He first argues that an erroneous evidentiary ruling precluded him from introducing a mitigating circumstance to the jury in violation of his constitutional right to introduce any evidence of mitigation involving the character and record of the accused. Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). This issue is without merit, but it requires some elaboration. In 1976, appellant was arrested and charged with robbery in circumstances entirely unrelated to the murder and robbery presently before this Court. He was eventually convicted on these charges, and was imprisoned thereon. While in jail pending prosecution on the 1976 robbery charges, another inmate, Charles “Zeke” Goldblum, allegedly approached appellant and offered to pay him to kill four people, including Detective Freeman and his partner at that time. Appellant contacted Detective Freeman and informed him of this Goldblum solicitation. Goldblum was charged with four counts of criminal solicitation, although these charges were eventually nolle prossed. In the case before us now, an in camera proceeding was conducted after appellant had been convicted but before his sentencing hearing commenced. This proceeding concerned the scope of Detective Freeman’s testimony concerning the above events of 1976 regarding the Goldblum solicitation. Defense counsel intended to call Detective Freeman as a mitigation witness for the defense to show that appellant had saved the lives of Detective Freeman and his partner and had foiled Goldblum’s murder plot. At this in camera proceeding, Detective Freeman testified that appellant told him that he had contacted the detectives in 1976 because “you [the detectives] treated me fairly. You were both gentlemen. He [appellant] didn’t want to see us get hurt.” N.T. Sentencing Hearing at 441. Detective Freeman also testified, however, that appellant had asked the detectives if they could “help” him secure lenient treatment in his prosecution on the 1976 robbery charges. According to Detective Freeman, appellant and the detectives reached an agreement whereby the detectives would help appellant in exchange for appellant’s informing them of the Goldblum solicitation and his cooperation in prosecuting Goldblum for solicitation. From the record of the in camera proceeding, and from argument on appellant’s post-trial motions, written evidence of such an agreement could not be located in the Commonwealth’s files, despite due diligent efforts by Detective Freeman and the assistant district attorney in this case. Defense counsel William Brennan, representing appellant in this case at trial and sentencing, had learned during his pretrial investigation that appellant had warned Detective Freeman and his partner in 1976 of the Goldblum solicitation, and defense counsel had some brief discussions with Detective Freeman about this incident. N.T. id. at 448-50 and Post-trial Arguments, October 20, 1986 at 21. According to Mr. Brennan, Detective Freeman confirmed that appellant had warned the detectives about the Goldblum solicitation, but did not tell Brennan during these pre-trial interviews that appellant had been incarcerated at the time or that his warning was given as part of a deal or agreement with the detectives to get help in the prosecution on the 1976 robbery charges. Defense counsel requested the court to restrict crossexamination of Detective Freeman so that the Commonwealth could not elicit the fact of appellant’s incarceration in 1976 on robbery charges, or bring out appellant’s expectation of help and/or agreement to secure such help as a possible motivation for his warning the detectives. The court ruled that the Commonwealth would not be precluded from cross-examining Detective Freeman on these matters. Defense counsel decided, therefore, not to call Detective Freeman as a defense witness in mitigation. Appellant claims this ruling was erroneous and prejudiced him for several reasons. First, he argues that the court’s ruling violated the general rule which prohibits the Commonwealth from introducing evidence of prior criminal conduct of the accused. While the general rule does prohibit such evidence, it is obvious that the rule is subject to numerous exceptions. Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 840 (1989). The exceptions are not narrowly confined, as appellant suggests, but instead cover a wide range of situations wherein the evidence is not offered solely to portray the accused as a bad actor, but for some other legitimate purpose where the probative value of the evidence outweighs the potential prejudice to the accused. Id. There is no question that the probative value of the challenged evidence in this case outweighed the potential prejudice to the appellant, and was admissible at the sentencing hearing. A defendant is undoubtedly allowed to present any evidence “relevant and admissible” to any mitigating circumstance, including any evidence “concerning the character and record of the defendant____” 42 Pa. C.S.A. § 9711(a)(2) and (e)(8); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). However, it is equally clear that the defendant is not entitled to present, without challenge or rebuttal by the Commonwealth, false or misleading evidence or to create a false impression of his character or record. Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178, 1188 (1988). Defense counsel sought to present an incomplete and one-sided picture regarding appellant’s intervention in a murder plot on behalf of its intended victims, Detectives Freeman and his former partner by creating the impression that his motives were entirely altruistic. While appellant was entitled to present that evidence and to attempt to create such an impression, the Commonwealth was also entitled to present evidence to the jury suggesting other or additional motives for appellant’s intervention, namely an expectation of favorable treatment or help from the detectives in his pending criminal prosecution for robbery. In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626, 631-32 (1986), this Court stated: whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it. The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case. See also Commonwealth v. Jeffrey D. Hill, 523 Pa. 270, 566 A.2d 252 (1989). Just as a defendant must be given the opportunity to cross-examine such a prosecution witness on his possible motivations for cooperating with the Commonwealth where the witness faces outstanding criminal charges, so too must the Commonwealth be given the opportunity to explore a defendant’s possible motivations for prior cooperation with the police or Commonwealth where that prior cooperation is relevant to a pending prosecution and is offered by the defendant as beneficial to the defense. Next, appellant argues that the court should have limited cross-examination of Detective Freeman because of an asserted violation of his right to discovery under the rules of criminal procedure and under the due process clause. Pa.R.Crim.P. Rule 305; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant asserts that his pretrial request for “all statements of the accused and of witnesses” encompassed Detective Freeman’s statements about the deal or arrangements that this witness testified to regarding appellant’s intervention in the Goldblum matter. Because the defense did not hear about these deals or arrangements until after trial had commenced, appellant asserts that his discovery rights had been violated and that Detective Freeman should have been precluded from testifying as to these matters. This argument is specious. Detective Freeman’s knowledge of appellant’s requests for help and/or of any deals or agreements was not exculpatory Brady material. Appellant’s pretrial discovery request for statements of the accused and of witnesses in the possession of the Commonwealth and for Brady material did not specifically ask for any information regarding the “Goldblum incident,” and appellant’s omnibus pre-trial motion did hot even list Detective Freeman among the witnesses whom the defense intended to call at trial. There is no evidence in the record that the Commonwealth or Detective Freeman withheld exculpatory information from appellant. The record does support an inference that, in brief interviews with Detective Freeman prior to trial, he (Freeman) did not explain to counsel that appellant had discussed or requested a deal or help in his robbery prosecution, but there is no evidence that this “omission” was anything but inadvertent. Moreover, assuming arguendo only that information regarding deals or expectations of leniency had been improperly withheld from appellant, the Commonwealth could not be precluded thereby from introducing the facts and circumstances surrounding appellant’s incarceration and pending prosecution for robbery and arguing to the jury from those facts alone that appellant’s motivation was the expectation of favorable treatment. See Commonwealth v. Evans, supra. Accordingly, there was no violation of appellant’s discovery rights, nor any abuse of discretion in the trial court’s ruling refusing appellant’s request to restrict cross-examination of Detective Freeman. Appellant next contends that the trial judge, the Honorable Robert P. Horgas, erred in refusing to recuse himself upon defense motion at the sentencing proceeding, and in failing to grant appellant’s request for a three judge panel to consider this recusal issue on post-trial motions. We disagree. Judge Horgas was a former assistant district attorney in Allegheny County, and in 1976 he prosecuted appellant for the robbery for which he was incarcerated when Goldblum allegedly solicited him. The parties were aware of this prior to trial, but no request for recusal or disqualification was made at that time. We have already discussed how the Goldblum solicitation matter, and Detective Freeman’s recollection of that incident, became relevant at the sentencing hearing when defense counsel attempted to restrict the scope of cross-examination of the detective. At that in camera proceeding, defense counsel claimed surprise and also argued that, because no written proof of the existence of any deal or agreement had been located, Detective Freeman should not be permitted to discuss it. Detective Freeman insisted that there had been such a deal or agreement, despite being unable to locate same. There was no suggestion on this record, however, that Judge Horgas, as prosecuting attorney, did know or would likely have known about such an agreement. In fact, the detective testified that it would not have been the policy to inform the prosecuting attorney but that a supervising attorney would have been informed of appellant’s cooperation; he did not believe Judge Horgas would have been informed, of this matter. N.T. Sentencing Hearing at 440. In this context, Judge Horgas made gratuitous, unsolicited remarks at the in camera proceeding that he had never been contacted or informed about any deals or agreements regarding appellant and the Goldblum solicitation, and that appellant’s robbery prosecution was handled the same as any other. N.T. id at 446, 457. Appellant now claims that the trial judge erred in denying his motion to recuse because, by his remarks, he became a witness on a factual matter in dispute, namely matters pertaining to appellant’s former prosecution which had become relevant to the current sentencing hearing. There is no per se rule that a judge who had formerly prosecuted a defendant must disqualify his or her self from presiding over a trial on unrelated charges against that defendant; to the contrary, absent “some showing of prejudgment or bias we will not assume a trial court will not be able to provide a defendant a fair trial based solely on prior prosecutorial participation.” Commonwealth v. Darush, 501 Pa. 15, 22, 459 A.2d 727 (1983). See also Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). It is the burden of the party asserting that a judge should be disqualified to make sufficient allegations of bias, prejudice or unfairness necessitating recusal, and a failure to do so will result in denial of the recusal motion. Reilly by Reilly v. Southeastern Pennsylvania Transit Authority, 507 Pa. 204, 218, 489 A.2d 1291 (1985). The trial court may ordinarily dispose of the petition for recusal on its own without hearing where the court believes there is no merit to the petition, and the complaining party may assert the issue of recusal on appeal (if any appeal is taken). Commonwealth v. Darush, supra; Reilly by Reilly, supra. If a judge rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be disturbed on review absent an abuse of discretion. Reilly by Reilly, supra 507 Pa. at 221, 489 A.2d 1291, quoting Crawford’s Estate, 307 Pa. 102, 160 A. 585 (1932). Where a judge has personal knowledge of disputed facts or is a witness in a proceeding, the judge should disqualify his or herself from further proceedings. Municipal Publications, Inc. v. Court of Common Pleas, 507 Pa. 194, 489 A.2d 1286 (1985). Applying these principles to the instant case, the trial court did not abuse its discretion in denying the motion to recuse or the post-trial motion to convene a three judge panel to hear and decide the recusal issue. Judge Horgas was not a witness in this proceeding, and his unsolicited, gratuitous comments made in camera could not have affected the jury’s determination or deliberations. Moreover, while those comments were tangentially related to a matter in dispute, the substance of those comments was not in dispute. All that Judge Horgas said was that, as prosecuting attorney, he knew nothing about any deals or agreements or of appellant’s cooperation on the Goldblum solicitation. At most, this is merely corroborative of Detective Freeman’s own testimony that the prosecuting attorney would not have been so informed, and of the fact that no written evidence of any deal or agreement could be located. Appellant did not propose to call Judge Horgas as a witness, and if the judge were asked to be a witness he could have, at his discretion, declined since his “testimony” on this matter would have been cumulative, would not have contradicted anything that had been said, and would have been of minimal importance. There was no abuse of discretion. Appellant raises several additional challenges to the imposition of the death penalty, all of which have been previously addressed and resolved by this Court in prior cases. We will discuss these issues seriatim. Appellant argues that aggravating circumstance number 6, 42 Pa. C.S.a. § 9711(d)(6) is unconstitutional on its face, and as applied to him, because this circumstance— the killing was committed while in the perpetration of a felony — fails to present sufficiently special factors to justify the extreme penalty of death. There is no question that it is within the discretion and authority of the legislature to establish the aggravating circumstances which that body deems of sufficient weight and/or heinousness to warrant the imposition of the death penalty. Commonwealth v. Zettlemoyer, supra; Commonwealth v. DeHart, 512 Pa. 235, 263-64, 516 A.2d 656 (1986). There is no question that the death penalty may constitutionally be imposed for a murder of the first degree that is committed while in the perpetration of a felony. Commonwealth v. DeHart, supra at 512 Pa. 260-61, 516 A.2d 656; Commonwealth v. Blystone, 519 pa. 450, 549 A.2d 81, 93 (1988), cert. granted — U.S. -, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989). Appellant next contends that the jury instructions at the sentencing phase “were unconstitutional and insofar as they incorporated the death penalty statute, the statute is unconstitutional.” Brief for Appellant at 52. The court instructed the jury, in accordance with the Sentencing Code, that its verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances or if the jury unanimously finds that the aggravating circumstance (only one was argued by the Commonwealth) outweighs any mitigating circumstances, and that the verdict must be a sentence of life imprisonment in all other cases. N.T. Sentencing Hearing at 564, 568; 42 Pa. C.S.A. § 9711(c)(1). Appellant argues that this instruction, by use of the word “must,” contains a mandatory directive to the jury and unconstitutionally limits the discretion of the jury. Appellant’s argument is convoluted and takes the court’s instructions out of context. Moreover, we have made it clear that the sentencing scheme and instructions of which appellant complains do not unconstitutionally limit the jury’s discretion nor constitute a mandatory directive or conclusive presumption that death is the appropriate punishment. Commonwealth v. DeHart, supra at 512 Pa. 257, 516 A.2d 656, quoting Commonwealth v. Peterkin, 511 Pa. 299, 326-28, 513 A.2d 373, 387-88 (1986). It is further alleged that the jury instructions violated the mandate of the Supreme Court of the United States in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), which held that individual jury members must not be precluded by' statute or instructions from individually determining what he or she believed to be the mitigating circumstances established by the evidence. The unanimity instructions in Maryland created the unacceptable risk that individual jurors might have believed that, unless all unanimously agreed as to the existence of a particular mitigating circumstance, none of the jurors could consider such circumstance in his or her decision as to whether death was the appropriate penalty. Pennsylvania’s sentencing scheme and jury instructions do not present this same problem and do not preclude an individual juror from considering and weighing any mitigating circumstance in his or her deliberations. Commonwealth v. Frey, 520 Pa. 338, 554 A.2d 27, 30-31 (1989); Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 843-44 (1989). Finally, appellant argues that placing the burden of proof on the defendant to prove mitigating circumstances by a preponderance of the evidence is unconstitutional and invalidates the sentencing process. This assertion has been addressed by this Court and resolved against appellant. Commonwealth v. Zettlemoyer, supra 500 Pa. at 64-66, 454 A.2d 937. We have conducted the independent review required by the Sentencing Code, 42 Pa. C.S.A. § 9711(h), and we determine that the evidence clearly establishes the aggravating circumstance of killing while in the perpetration of a felony and that the sentence of death was not the product of passion, prejudice or some other arbitrary factor. 42 Pa. C.S.A. § 9711(h)(3)(i) and (ii). We have also reviewed the data and information compiled by our Administrative Office of Pennsylvania Courts regarding capital cases under the Sentencing Code, see Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, 707-08 (1984), cert. denied 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984), and Appendix attached thereto which forms the baisis for the AOPC data, and we find that the sentence of death imposed in this case is not excessive or disproportionate to the sentences imposed in similar cases. 42 Pa. C.S.A. § 9711 (h)(3)(iii). Commonwealth v. DeHart, supra 512 Pa. at 264, 516 A.2d 656. The judgments of sentence are, therefore, affirmed. ZAPPALA, J., concurs in the result. . Detective Freeman knew appellant from, inter alia, a previous conviction for murder of the first degree. That conviction was reversed on the grounds that a confession had been illegally obtained, and should have been suppressed. Commonwealth v. O’Shea, 456 Pa. 288, 318 A.2d 713 (1974). Ultimately, the Supreme Court of Pennsylvania dismissed these charges against appellant because his retrial was not timely commenced under Pa.R.Crim.P. Rule 1100(f) as it existed at that time. Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976). . Section 8953(a)(6) states that an officer can act beyond his or her primary jurisdiction in the following situation: "(6) Where the officer views an offense which is a felony, or has probable cause to believe that an offense which is a felony has been committed, and makes a reasonable effort to identify himself as a police officer." . James O’Shea showed the detectives a locked foot locker belonging to appellant and offered to cut the lock off, which offer was declined. However, the detectives did call other City of Pittsburgh detectives and an assistant district attorney who prepared a search warrant to search and seize additional items in the residence. A search warrant was obtained and subsequently executed later that evening by City of Pittsburgh police detectives, accompanied on this occasion by a Shaler Township police officer. The suppression court found "the search warrant faulty, that is it lists no date on it. As a result the Court would rule that the items seized, these items seized pursuant to the execution of the warrant cannot be admitted into evidence----’’ Notes of Testimony (N.T.), Pretrial Proceeding, June 9, 1986 at 156. (The propriety of this ruling has not been challenged and is not before us.) . In deciding whether a suppression court erred in admitting or excluding evidence alleged to have been seized as the result of an illegal search, a reviewing court has the discretion to address either the legality of the search and seizure, the appropriateness of exclusion as a remedy for the type of illegality asserted, or both; to address and resolve one issue does not render the other moot, nor does it make discussion and resolution of the "second” issue dicta. See United States v. Leon, 468 U.S. 897, 924-25, 104 S.Ct. 3405, 3421-22, 82 L.Ed.2d 677 (1984) and Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). . The prothonotary of the Western District is directed to transmit, as soon as possible, the full and complete record of the trial, sentencing proceeding, and review by this Court to the Governor, 42 Pa. C.S.A. § 971 l(i).

The opinion of the court was delivered by Rogers, J. This is an action of assumpsit, against the defendants as common carriers, for the loss of a parcel, containing one piece of silk, and two piepes of chintz, which the defendants, proprietors of the New YorlCline of coaches, received in Easton, and undertook, but failed to deliver, at New York. The plaintiffs proved the delivery of the pareel to the defendants, and an undertaking, on their part for a certain stipulated sum, to deliver it at New York. The defendants contend, that they were not common carriers, and if they were, their responsibility was limited. That the defendants were common carriers, and liable as such, can not, I think, admit of question. A common carrier has been defined to be one who undertakes for hire and reward, to transport goods, of such as choose to employ him from place to place; and they are generally of two descriptions, carriers by land and carriers by water. It is unnecessary to say any thing of the latter description, but the former are the proprietors of stage wagons, and stage coaches, &c. which ply between different places, and carry passengers and goods for hire. In addition to the regular business of the company, the defendants were in the continued practice of transporting parcels and packages at a liberal compensation, whenever offered, the parcel being marked on the way-bill, so as to direct the attention of the agents along the line to it, with a view to its security and safety. It is true, that it is not every person, who undertakes to carry goods for hire, that is a common carrier. A private person may contract with another for the carriage of his goods, and incur no responsibility beyond that of any ordinary bailee for hire, that is to say, the responsibility of ordinary diligence. But here the defendants pursued the business as a public employment, and undertook to carry goods for persons generally. They held themselves out, as ready to engage in the transportation of goods for hire, as a business, and not as a mere easuál occupation, pro hac vice. This at least, is the'fair import of the testimony. If the defendants were common carriers of persons, and of the baggage belonging to passengers, they would not on that account be liable as common carriers of merchandize. A stage coach for the conveyance of persons, is not of course a conveyance for goods; but a continual practice, such as has been proved by the owners of a stage coach, of receiving parcels and packages for carriage, and of carrying them, for hire, will make them common carriers. If the defendants stand in this relation, they are liable for all losses not occasioned by the act of God, or the common enemy, unless the responsibility which the law casts upon them, is limited by special contract or by notice, brought home to the plaintiffs or their agent; and this brings me to the second and most material part of the case. The principal business of the defendants consists as appears from advertisements, in the carriage of passengers in which is necessarily included, the baggage intended for the personal convenience of the traveller. The advertisements are “ cheap travel-ling cheap travelling, in which the rate for passengers, but not for parcels is stated, and to this is appended, a N. B. “ all baggage at the risk of the owner.” It is insisted that the N. B. limits the responsibility of the carrier, not only as regards baggage, strictly so called under the eye and supervision of the owner, but that it includes also, goods and merchandize of whatever description, even when placed under the exclusive care and superintendance of the carrier. This is a doctrine to which we cannot accede. If the defendants wished to be so understood, it is certainly not unreasonable to require something more explicit, than that which is contained in the handbills, on which they rely. The meaning of the word baggage, taken in consideration with the advertisement, is the effects of a traveller, and this signification has been attached to it in a case very like the present, decided by the Supreme Court of Massachusetts. Dwight & al. v. Brewster, 1 Pick. 50. In the case cited it is ruled that the practice of conveying for hire in a stage coach, parcels not belonging to passengers, constitutes the proprietors of the coach common carriers: and that in an advertisement stating the route, fare, &c. the clause, * all baggage at the risk of the owners,’ did not apply to such parcels. It manifestly applies to the baggage of passengers, it being in the same advertisement, which states the route, the fare, &e. The clause was intended to guard the proprietors from liability in case the trunks &c. were stolen, without any fault on the part of the owner of the stage or their agents. It was formerly a question of much doubt, how far common carriers, on land, could by contract limit their responsibility. But that they have the power seems now to.be settled, although, many learned judges have expressed some regret that the validity of notices restricting their liability, was ever recognised. But although this must now be admitted, yet, they cannot by any special notice, or agreement free themselves from all responsibility, particularly where there is gross negligence or fraud, nor in a case like this from the exercise of ordinary care. When a common carrier claims an exemption from the responsibility, which the rule of law casts upon him, on the plea of special notice, it is not affording him a hard measure of justice, to require that not only the notice should be brought home to the employer, but also that the terms of the notice should be clear and explicit, and not liable to the charge of ambiguity or doubt. But on the supposition that the defendants are not common carriers, but ordinary bailees for hire, .the cause may be viewed in another aspect. The defendants undertook for a certain sum, to transport the parcel to New York, and this as already stated, they have failed to do. It is surely then, necessary for them to show why they have not performed the contract. In the absence of all proof of loss, they lay themselves open to the imputation, that the property is still in their possession, or in the possession of their agents, or has been embezzled by them. And in either case, it is clear that they are liable to the plaintiffs. I have looked though the testimony for some account of these goods. All we know, is that they were received by the defendant’s agent, who undertook to convey them to New York, and for some reason, they never reached their place of destination. Less than positive proof would suffice, but some account should be given, from which the jury would be warranted to infer, that the goods had been either discharged, or had been lost by accident, or had gone into other hands, than the defendant’s or his agents. Here the parcel was booked and put on the way-bill, and if mislaid, there must have been some negligence on the part of some of thé agents along the line. If the parcel did not arrive at a particular point, it was the duty of the agent, to make inquiry, and ascertain the reason it had not arrived; and if this had been done, we should not now be in doubt, whether the package had been mislaid, or embezzled, and possibly we would then have known, when and where, and how the loss had occurred. It is true, that where a loss has been proved, ordinary care in the carrier is presumed, and the onus is thrown upon the plaintiff, but all a plaintiff has to do, in the first instance, is to prove the contract, and the delivery of goods, and this throws the burthen of proof, that the goods were lost on the carrier. And, this is a salutary principle, for otherwise, owners and employers, would be at the mercy, of bailees, who would rely on a failure to perform the contract, as a complete indemnity against the suit of the bailors. I cannot see how, in the absence of any proof, as to the manner the loss occurred, the plaintiffs can do more than to rely on the fact of the non-delivery of the goods, as evidence of want of ordinary care, on the part of the carriers, or their agents. Since the above remarks were written, the case of Beardslee v. Richardson, 11 Wend. 25, has been put into my hands, in which the same opinion is intimated. It was'the case of a sealed package of the value of one hundred dollars, which the defendant as bailee, without reward, undertook to deliver. It was.held that the defendant was liable for gross neglect only; and whether he was guilty of any neglect, did not sufficiently appear, from the. testimony. That it did not appear that any demand was made or application of any kind, until the suit was brought. That the plaintiff was bound to show that the money was lost by the defendant’s negligence, or could not be obtained on request. On this ground, and because the suit was for money had and received, the plaintiff failed in his action. But says Chief Justice Savage, “had he shown'a demand and refusal, the defendant, I think, would have been bound to account for the loss, and to indemnify the plaintiffs, unless he could show the property lost, without fault on his part, that is, without gross negligence.” With the exception of the principles above indicated, we concur with the judgment of the court of Common Pleas.. Judgment reversed, and a venire de novo awarded.

M'Kean, Chief Justice. It is clearly the general rule that a garnishee is not liable for interest, while he is restrained from the payment of his debt, by the legal operation of a foreign attachment. But it is said by the plaintiff’s Counsel, and I assent to the proposition, that if there is any fraud, or collusion; nay, if there is any unreasonable delay occasioned by the con duct of the garnishee himself, such cases will form exceptions to the general rule. In the present instance, however, there is no proof of fraud, or collusion; nor of any wilful procrastination on the part of the garnishee; and fraud can never be presumed. It is true, likewise, that no express authority was given for laying the attachments; but an implied authority appears in the correspondence that has been produced: And the defendant is not answerable for the event. I am, therefore, of opinion that; interest ought not to be allowed. Snippen, Justice. Evidence will often strike different minds in a different manner. It does not appear to me, that there was sufficient authority for instituting the foreign attachment; but, on the contrary, that it was done officiously, and at the instance of the garnishee himself. I should, consequently, think it just, on this occassion, to allow the claim of interest; but the majority of the Court will sanction a different decision.

OPINION OF THE COURT CAPPY, Justice. This is a direct appeal from the order .of the Court of Common Pleas of Philadelphia County denying Appellant’s petition for collateral relief filed pursuant to the Post Conviction Relief Act (PCRA) 42 Pa.C.S § 9541 et seq. For the reasons that follow, we affirm the orders of the court below; all three of which deny Appellant post-conviction relief. In the underlying trial, a jury found Appellant guilty of first degree murder in the December 9, 1981 shooting death of Philadelphia police officer Daniel Faulkner. Appellant was also found guilty of possession of an instrument of crime. At the conclusion of the penalty phase hearing, the jury found one aggravating circumstance, the killing of a police officer acting in the line of duty, and one mitigating circumstance, no significant history of criminal convictions. Finding that the aggravating circumstance outweighed the mitigating circumstance, the jury returned a verdict of death. Post-trial motions were ultimately denied whereupon a consecutive sentence of two and one-half to five years was imposed on the weapons offense. On direct appeal, this court affirmed the judgments of sentence. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). Appellant filed a petition for certiorari in May 1990 in the Supreme Court of the United States, which was denied. Appellant’s original and second requests for rehearing were also denied by the Court. On June 1, 1995, a writ of execution was signed by the Governor, setting execution for August 17, 1995. A petition for stay of execution, a petition for discovery, a petition for post-conviction relief and a petition for recusal of the Honorable Albert F. Sabo, the judge assigned to hear the PCRA petition, were then filed by Appellant. The PCRA court ultimately denied Appellant’s request for recusal and an emergency appeal therefrom was denied by this court. By order entered July 14, 1995, the PCRA court dismissed Appellant’s motion for discovery, but granted his request for an evidentiary hearing. Then, on August 7, 1995, the PCRA court granted the request for stay of execution. The evidentiary hearing on this matter began on July 26, 1995 and ended on August 15, 1995. On September 15, 1995, the PCRA court filed an extensive opinion detailing its findings of fact and conclusions of law and an accompanying order denying post-conviction relief. A direct appeal to this court followed. During the pendency of that appeal, Appellant filed a petition with this court seeking a remand for the express purpose of taking additional testimony from one Veronica Jones whom the defense alleged was a “newly available witness.” According to Appellant’s petition, Ms. Jones would provide important “new” evidence that days before she took the stand as a defense eyewitness at the 1982 trial of Appellant, Philadelphia police contacted her while she was incarcerated on felony armed robbery charges and threatened and coerced her to change her testimony. It was farther alleged that Ms. Jones would testify that she, indeed, succumbed to this police intimidation and accordingly altered her testimony at trial by repudiating her true eyewitness account that she saw two men flee the scene immediately after the shooting. This court ultimately entered an order remanding the matter to the PCRA court to conduct an evidentiary hearing regarding this claim. After holding a hearing thereon, the PCRA court disagreed with Appellant’s contention; specifically, the court concluded that the testimony of Ms. Jones did not constitute “after-discovered evidence.” Alternatively, the court ruled that even assuming such testimony were to be incorporated into the record, her testimony was of such an incredible nature that it would provide no relief to Appellant. Subsequently, Appellant filed two additional applications for remand with this court. In those applications Appellant sought a variety of relief, including, first, a remand for the express purpose of eliciting the testimony of one Pamela Jenkins who would allegedly provide further support for Appellant’s claim of police intimidation and/or coercion of witnesses and whose testimony would allegedly demonstrate that the prosecution had withheld pertinent information from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant also asserted a request for additional discovery, including specifically, discovery of both the prosecution and police files in their entirety, and a request that the matter be reassigned to a different judge on remand. Finally, Appellant sought a remand to supplement his Batson claim based upon a videotape released after his trial which allegedly demonstrates the Philadelphia District Attorney Office’s policy of systematically striking African-American venirepersons in violation of Batson. By order dated May 30, 1997, this court granted Appellant’s request for a second remand for the limited purpose of taking additional testimony with respect to Pamela Jenkins, but denied his request for a new post-conviction judge as well as his requests to supplement his Batson claim with the videotape and to take discovery regarding that claim. After hearing, the PCRA court issued an opinion and order concluding that this additional testimony did not warrant post-conviction relief. This appeal followed. The circumstances surrounding the killing were stated by this court in our opinion on direct appeal as follows: The evidence presented at trial established that at approximately 3:55 a.m. on December 9, 1981, Officer Faulkner made a routine car stop on Locust Street between Twelfth and Thirteenth Streets in Center City Philadelphia. The car was driven by the appellant’s brother, William Cook. After making the stop, Officer Faulkner called for assistance on his police radio, requesting a police wagon to transport a prisoner. While Faulkner was trying to handcuff Cook, the appellant ran from across the street and shot the officer once in the back. Faulkner was able to fire one shot, which wounded the appellant, but after Faulkner had fallen to the ground the appellant shot him four more times at close range; once through the center of the face. The appellant was found slumped against the curb in front of Cook’s car and taken into custody by police officers who arrived on the scene within thirty to forty-five seconds. The officers had been in the area and were turning onto Locust Street from Twelfth Street in response to Faulkner’s radio request. They were flagged down by a cab driver who had witnessed the shooting while stopped at the intersection of Thirteenth and Locust. Two other pedestrians also witnessed the incident and identified the appellant as the perpetrator, both at the scene and during the trial. Abu-Jamal, 521 Pa. at 193-194, 555 A.2d at 848. To be eligible for collateral relief, Appellant must satisfy the dictates of the PCRA, which, at the time of the filing of Appellant’s PCRA petition, provided in relevant part as follows. Sections 9543(a)(2), (3) and (4) required that Appellant plead and prove by a preponderance of the evidence: (2) That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty. (iv) The improper obstruction by Commonwealth officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court. (v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner. (vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced. (3) That the allegation of error has not been previously litigated and one of the following applies: (i) The allegation of error has not been waived. (ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual. (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief. (4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel. Thus, the first inquiry is whether the allegation of error has been previously litigated. Relevant to Appellant’s petition, section 9544(2) provides that an issue is deemed “previously litigated” where “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.” See Commonwealth v. Szuchon, 548 Pa. 37, 693 A.2d 959 (1997); Commonwealth v. Crawley, 541 Pa. 408, 413, 663 A.2d 676, 678 (1995). If an issue has not been finally litigated, inquiry is then made as to whether the issue has been waived. An issue is deemed waived if the petitioner failed to raise it and “it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.” 42 Pa.C.S. § 9544(b). Waiver is excused under 42 Pa.C.S § 9543(a)(3)(ii) and (iii) only if the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual or where the petitioner can demonstrate that his trial or appellate counsel was ineffective. Commonwealth v. Beasley, 544 Pa. 554, 562-566, 678 A.2d 773, 777-778 (1996). A claim of ineffectiveness must be raised at the earliest possible stage in which the allegedly ineffective counsel no longer represents the petitioner. Commonwealth v. Griffin, 537 Pa. 447, 452-454, 644 A.2d 1167, 1170 (1994). However, a claim of ineffectiveness will not be deemed waived provided the petitioner has layered the claim by alleging the ineffectiveness of all prior counsel for faffing to pursue the claim. Commonwealth v. Chmiel, 536 Pa. 244, 249-251, 639 A.2d 9, 12 (1994). The standards for determining claims of ineffective assistance of counsel are well settled. A petitioner is required to demonstrate: (1) that the underlying claim is of arguable merit; (2) that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate his client’s interest; and (3) that but for that act or omission, the outcome of the proceedings would have be different. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). There is a presumption in our law that counsel is effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). It is Appellant’s burden to prove all three prongs of this ineffectiveness standard. Commonwealth v. Travaglia, 541 Pa. 108, 118-120, 661 A.2d 352, 357 (1995). Further, if, upon review, it is clear that Appellant has failed to meet the prejudice prong, the claim may be dismissed on that basis alone without determination of whether the first and second prongs of the ineffectiveness standard have been met. Id. at 118-120, 661 A.2d at 357 (citing Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Also, a petitioner cannot obtain PCRA review of previously litigated claims by alleging ineffective assistance of counsel and presenting new theories of relief to support the previously litigated claims. Beasley, 544 Pa. at 564-566, 678 A.2d at 778. The first issue raised by Appellant is that Judge Sabo, who presided over the PCRA proceedings, evidenced bias and partiality and that Appellant was thereby denied a full and fair PCRA hearing. Appellant’s initial argument respecting this issue is that the judge’s bias and hostility was amply displayed during the PCRA proceedings and was of such notoriety as to dictate his recusal. In support of this claim, Appellant submits that the court failed to give the defense a reasonable amount of time to prepare for the hearing insofar as the court gave only two days advance notice of the hearing date; that the PCRA court denied over twenty-five (25) subpoenas; that the court either precluded testimony completely or repeatedly cut short testimony offered by Appellant; that the court repeatedly threatened counsels for the defense with contempt, ultimately incarcerating one and fining another; that the court, in its findings of fact, made blatantly inaccurate statements; that Judge Sabo’s allegiance to the Fraternal Order of Police (FOP) via his past membership in the FOP “inspired” his biased findings; that the court adopted almost verbatim, the prosecution’s findings of fact; and, finally, that the court repeatedly denied the defense the discovery it requested. In his brief to this court following the hearing on the second remand, Appellant submits that further evidence of the court’s bias was amply demonstrated at this remand hearing. In that brief, he essentially argues, as he does with respect to the conduct of the initial hearings, that the court evidenced its settled bias against the defense by denying the defense the opportunity to present proffered witnesses and denying virtually all of the defense’s discovery requests. The standards for recusal are well established. It is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist’s ability to preside impartially. Rizzo v. Haines, 520 Pa. 484, 512-513, 555 A.2d 58, 72 (1989); Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310 (1995). As a general rule, a motion for recusal is initially directed to and decided by the jurist whose impartiality is being challenged. Commonwealth v. Travaglia, 541 Pa. at 143-145, 661 A.2d at 370, citing Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989). In considering a recusal request, the jurist must first make a conscientious determination of his or her ability to assess the case in an impartial manner, free of personal bias or interest in the outcome. The jurist must then consider whether his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary. This is a personal and unreviewable decision that only the jurist can make. Goodheart v. Casey, 523 Pa. 188, 201-203, 565 A.2d 757, 764 (1989). Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. Id. at 199-201, 565 A.2d at 763. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair and competent. Reilly v. SEPTA, 507 Pa. 204, 221-223, 489 A.2d 1291, 1300 (1985). In arguing that the judge’s hostility and bias towards Appellant was notorious, Appellant relies upon several newspaper and magazine articles which criticized Judge Sabo’s behavior during the PCRA proceedings. The opinions of a handful of journalists do not, however, persuade us that Judge Sabo’s decision not to recuse himself was in error. Moreover, our careful review of the proceedings reveals that none of the challenged behavior on the part of Judge Sabo evidences an inability to preside impartially. While there are certainly instances in the record where the judge displays displeasure and/or impatience, those instances were, in large part, a direct result of obstreperous conduct on the part of Appellant’s counsel. The record reveals instances where defense counsel refused to accept a particular ruling offered by the court, relentlessly urging the court to reconsider. Although we certainly do not condone unjustified or indiscriminate rhetoric on the part of a presiding judge, we are nevertheless mindful of the fact that judges, too, are subject to human emotion. It simply cannot be denied that this particular case was one that was not only highly publicized but also highly emotionally charged. As a result, the judge’s duty to maintain the judicial decorum of the proceedings was, at times, met with great resistance. Upon review of the entire record, we cannot conclude that any of Judge Sabo’s intemperate remarks were unjustified or indiscriminate nor did they evidence a settled bias against Appellant. Appellant submits that Judge Sabo’s impartiality was demonstrated, in large part, by his rulings, which according to Appellant were almost invariably in favor of the prosecution. Adverse rulings alone do not, however, establish the requisite bias warranting recusal, especially where the rulings are legally proper. Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310 (1995); Travaglia, 541 Pa. at 137-139, 661 A.2d at 367. While, indeed, there were numerous rulings made against the defense, our review of the entire record reveals numerous rulings made against the prosecution as well. Moreover, many of the adverse rulings complained of were necessitated by the defense’s repeated attempts to secure evidence which was only “believed” to exist or by its attempts to present witnesses who were clearly only peripherally, if at all, relevant to the scope of the PCRA proceedings or involved the court’s denial of proffered testimony based upon the defense’s failure to establish a proper foundation for the admission thereof. In any event, we cannot conclude that any of the rulings were legally improper. Respecting Appellant’s claim that the court unfairly rushed the proceedings to the detriment of Appellant, we note the PCRA court’s obvious, and we believe, justified, concern that it was the defense strategy, in part, to delay the proceedings. As noted by the PCRA court, Appellant’s petition was clearly not the result of hurried investigation and/or haphazard preparation. Appended to the petition itself were numerous affidavits and statements of witnesses who were allegedly available at the time of the filing of the petition to proffer testimony in support of Appellant’s claims. Appellant asserts further that Judge Sabo possessed deep-rooted bias that warranted his recusal here. Specifically, he asserts that the judge maintained an adversarial relationship with Appellant during the actual trial in 1982, and that the judge’s prior membership in the FOP presupposes his allegiance to the prosecution in this matter. Our review of the record evidences, first, that during trial in 1982, Judge Sabo displayed no such adversarial position towards Appellant. Rather, we find evidence therein that quite the contrary was true; that it was Appellant who, from the very beginning of the trial proceedings, openly criticized Judge Sabo and repeatedly asserted that he would not abide by the court’s rulings. The trial record reveals numerous outbursts and displays of intemperate behavior on the part of Appellant. Judge Sabo, for the most part, displayed much patience with Appellant’s diatribes. At those points when it became necessary for the judge to restore decorum in the proceedings, he properly did so. Simply stated, Appellant’s own disruptive behavior cannot be used to demonstrate that the judge bore hostility towards him. As for Appellant’s claim that the judge possessed an allegiance to the FOP so as to cloud his judgment in this matter, again, we find no support for such a claim in the record. A jurist’s former affiliation, alone, is not grounds for disqualification. Cf, Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998); Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983). Generally, it is deemed preferable for the same judge who presided at trial to preside over the post-conviction proceedings since familiarity with the case will likely assist the proper administration of justice. It is only where it is shown that the interests of justice warrant recusal that a matter will be assigned to a different judge. Commonwealth v. Rashed, 496 Pa. 26, 436 A.2d 134 (1981). For all the reasons discussed, this standard has not been met in the instant matter. In conclusion, we simply cannot discern from the record that Judge Sabo abused his discretion in denying recusal. A second argument reiterated by Appellant throughout the PCRA proceedings is that the PCRA court erred in denying his discovery requests. He claims both that the PCRA provides for such discovery, and that the evidence presented by the defense demonstrated police and/or prosecution misconduct that warranted discovery of the entire Commonwealth file in this matter. In short, Appellant essentially requested wholesale discovery of whatever information he “believed” to exist and/or of entire files so that he could discern whether his assertions were true. Such a request exceeds even that to which a defendant is entitled in pretrial discovery. See generally, Pa.R.Crim.P. 305. Appellant submits that Pa.R.Crim.P. 1508 provides for discovery in PCRA proceedings. In making this argument, Appellant employs specific terms of the rule and argues that “[r]ule 1508’s broad grant of authority to a court to enter ‘such orders as may be necessary’ to afford a party the opportunity ‘for investigation’ before a hearing plainly contemplates discovery orders.” (Brief of Appellant at p. 28). We find this particular argument to be lacking in merit. Rule 1508 nowhere addresses the right of discovery. In providing for “investigation,” the rule clearly contemplates only that each party be given a reasonable opportunity to further investigate and/or prepare where such opportunity did not previously exist. The ability of a party to conduct investigation into the claims being raised in a PCRA petition simply does not translate into a right of discovery; especially the type of discovery being sought by Appellant in the instant matter. As noted above, Appellant’s petition is certainly not the product of a hurried investigation or haphazard preparation. Rather, as Appellant’s own assertions bear out, he conducted extensive investigation into the preparation of this PCRA petition. Moreover, Appellant received extensive discovery during the course of his trial in 1981-1982. And, while Appellant asserts that material information, mostly regarding police coercion of witnesses and/or promises in exchange for favorable testimony, was withheld by the prosecution at the time of trial, as will be discussed more fully infra, many, if not all, of Appellant’s specific assertions have been found to be incredible. In further support of his claim that the court erred in repeatedly denying his discovery requests, Appellant posits that 42 Pa.C.S. § 9543(a)(2)(v), which permits PCRA relief on any basis “which would require the granting of Federal habeas corpus relief to a State prisoner,” provides a further basis for allowing discovery. Appellant submits that McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) holds that colorable claims raised in a habeas corpus petition include claims which require discovery. Appellant’s interpretation of McCleskey is not correct. What that case held, in relevant part, is simply that a habeas corpus petitioner is required to present all of his or her claims that could be gleaned upon reasonable investigation. In other words, the case emphasized that it was the burden of the petitioner, just as it is in the instant PCRA proceedings, to present and prove his claims. In sum, Appellant’s claim that he is entitled to discovery warrants no relief. Appellant next claims relief based upon the PCRA testimony of Officer Gary Wakshul. Officer Wakshul was one of the police officers who escorted Appellant to the hospital the morning of the shooting and guarded him while he awaited treatment. At trial, two witnesses, Patricia Durham, a hospital security guard, and Gary Bell, another police officer, testified that Appellant made a statement, at the hospital, to the effect that “I shot him ... I hope the m.... f.... dies.” Appellant claims that if Officer Wakshul had testified at trial, he would have exposed this “confession” as false. In order to adequately address this issue it is first necessary to set forth in some detail the facts bearing on this issue. Officer Wakshul gave three statements regarding this matter. His first statement, taken at 5:50 a.m. on the morning of the shooting, contained the statement: “He [Appellant] made no comments.” His second statement, given on December 16, made no mention of an admission on the part of Appellant, but as noted infra, the subject matter of that statement was narrowly tailored. In the third statement, taken during an Internal Affairs Bureau investigation initiated by Appellant’s complaints of mistreatment, Officer Wakshul reported having heard Appellant’s admission that “I shot him ... I hope the m... f... dies.” On the last day of trial testimony, the defense attempted to call Officer Wakshul, but was informed that he had gone on vacation and hence was unavailable to testify. Following a sidebar discussion regarding this proposed witness, the court denied a defense request to delay the proceedings so they could search for Officer Wakshul. It is apparent from review of this sidebar discussion that the basis for the court’s denial was the defense’s belated request to have this officer testify. The record demonstrates that the defense was aware of the existence of Officer Wakshul as well as the substance of his statements well before this last day and, thus, its belated request was seen as merely a delay tactic. At the PCRA hearing, Officer Wakshul testified that he did not stand guard over Appellant at all times; that there were several other officers also at the hospital, none of whom he could recall. (N.T. 8/1/95 p. 22). Officer Wakshul explained the omission of the information regarding Appellant’s confession in the first statement by saying that he was emotionally overwrought after hearing Appellant state that he had shot the officer and then seeing the body of Officer Faulkner on a gurney and that he remembers little of what transpired after he heard Appellant’s exclamation. (N.T. 8/1/95 p. 71). Specifically, Wakshul testified that when Appellant uttered this confession, Wakshul was so stunned that he stumbled into an alcove and began to cry. He then went outside in an effort to regain his composure. He testified that upon his eventual return, he remembers little else but having seen Officer Faulkner’s feet on a gurney. Admitting that his recollection after leaving the hospital was somewhat weak, Wakshul testified that he remembered being in the Homicide Unit and, after leaving there, crashing his vehicle into a cement pole. (N.T. 8/1/95 pp. 25-26). He testified that he and Officer Faulkner were friends and that the fact that a police officer was killed was trying. (N.T. 8/1/95 p. 5). He explains the second statement by saying that he was simply answering very specific questions relating to specific items and was not asked whether he had heard the admission. (N.T. 8/1/95 p. 64). Appellant contends that the conféssion was concocted and that, by negative inference, Officer Wakshul’s testimony would have revealed the falsity of the confession evidence. He claims, therefore, that Wakshul was a “crucial Brady witness.” According to Appellant, had the confession truly been uttered, it is simply incredible that Officer Wakshul would have failed to report hearing that admission when he gave those first two statements. Appellant claims he was unable to muster an attack on this confession for the following reasons: first, because the prosecution engineered his absence; second, because the trial court erred in denying the defense a continuance so as to secure the presence of Wakshul; and third, because trial counsel was ineffective for failing to call Mr. Wakshul. Appellant’s claim lacks .merit for several reasons. First, as noted above, Wakshul testified that his failure to report the confession in his initial statement was due to his emotional state at that time. The PCRA court found this explanation credible. Where, as here, there is record support for a PCRA court’s credibility determinations, we, as a reviewing court, are bound by those determinations. Beasley, 544 Pa. at 564-566, 678 A.2d at 778. In addition, hospital security guard Patricia Durham reported the exact same admission to her superiors the day after Appellant made it. (N.T. 6/24/82 pp. 45-52). Wakshul testified that at the time he gave the third statement, in response to the Internal Affairs Bureau investigation, he was not aware that Ms. Durham had given a similar statement. (N.T. 8/1/95 pp. 47-48). Wakshul testified that he did not know Durham. (N.T. 8/1/95 p. 48, 117). In addition, Durham testified at trial that she told no one but her superiors about her statement given the day after the shooting. (N.T. 6/24/82 pp. 48-52). Furthermore, in this third interview, Wakshul stated, also for the first time, that after the statement of confession was uttered by Appellant, someone responded “if he dies, you die.” During his PCRA testimony, Wakshul acknowledged that he was aware that if it was an officer that uttered this statement, he or she would be subject to an investigation for making such a remark. ( N.T. 8/1/95 p.113). Given all this, we agree with the PCRA court’s conclusion that there was no credible evidence to suggest that Wakshul fabricated the confession. Accordingly, Appellant’s claim that Wakshul was a key Brady witness is without merit. Also, the law is clear that no claim of ineffectiveness will lie where it can be shown that the defendant, and not counsel, was in control of trial strategy. Commonwealth v. Pierce, 537 Pa. 514, 526-528, 645 A.2d 189, 196 (1994). We note that the PCRA court explicitly found incredible trial counsel’s statements at the PCRA hearing, to wit, that it was counsel’s fault alone that he did not make a timely attempt to call Officer Wakshul at trial. The court further found that it was Appellant’s decision, and not that of trial counsel, to call Officer Wakshul at the last minute. The court’s findings here are supported by the record. Accordingly, those findings are binding on this court. Beasley, supra. Thus, Appellant’s claim regarding trial counsel’s performance with respect to Officer Wakshul warrants no relief. In. any event, had Wakshul testified, that testimony would not have benefited Appellant; rather, it would have prejudiced him since it would have been consistent with Durham and Bell’s trial testimony. Finally, there is no evidence that the prosecution orchestrated Officer Wakshul’s unavailability.. Officer Wakshul testified that all officers were asked to “try” to be available during their vacations. (N.T. 8/1/95 pp. 80-83). He further testified that he did remain at his home for the beginning part of his vacation, which lasted from June 25, 1982 through July 8, 1982, but that when he was not notified that he was to appear, he left the city during the latter part of this vacation. He testified as well that no one asked him to absent himself from the Philadelphia area so as not to be available for trial. (N.T. 8/1/95 pp. 94, 100-101, 118-122). The court found this testimony credible. As the record supports this determination, this court is bound by that finding. Beasley, supra. Given all the foregoing, Appellant’s.claim lacks merit since Appellant failed to prove that Wakshul was available to testify at trial; failed to prove that, even if available, Wakshul’s testimony would have revealed that the confession was fabricated; and failed to establish trial counsel’s ineffectiveness since the testimony, if presented at trial, would have been prejudicial to Appellant. Appellant next makes several interrelated claims. The crux of Appellant’s challenges regarding the two remand hearings as well as that of several specifically enumerated issues in his original brief to this court is that the prosecution deliberately withheld crucial information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) with respect to several key witnesses. Those challenges involve claims of intimidation or coercion against witnesses to alter their testimony and/or promises of economic or penal benefits in exchange for favorable testimony. Respecting virtually all of these witnesses, it is Appellant’s contention that these tactics were employed to thwart the defense theory that the real shooter fled the scene before back-up police arrived and that this evidence constitutes “newly discovered evidence” because the prosecution withheld this evidence from the defense. In Brady, the United States Supreme Court held that the prosecution’s suppression of evidence favorable to an accused, when requested, is a violation of due process where that evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution. Id. at 87, 83 S.Ct. 1194. In analyzing similar claims, this court has previously held that where a general request for exculpatory evidence is made, the evidence is material only “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242 (1994), citing Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265 (1992). As noted above, at the time of the filing of Appellant’s PCRA petition, section 9543(a)(2)(vi) provided for post-conviction relief where a petitioner could prove a claim of newly discovered exculpatory evidence. In order to succeed on such a claim, the petitioner must establish that: (1) the evidence has been discovered after the trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) such evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) such evidence would likely compel a different verdict. Commonwealth v. Schuck, 401 Pa. 222, 164 A.2d 13 (1960); Commonwealth v. Williams, 537 Pa. 1, 24-26, 640 A.2d 1251, 1263 (1994). Initially, Appellant focuses on the testimony of Robert Chobert, one of the three eyewitnesses to the shooting. He claims that during the months prior to trial, Chobert repeated ly changed his testimony in ways favorable to the defense. Appellant submits that through the ineffective assistance of counsel, prosecutorial misconduct and improper trial rulings, he was precluded from establishing Chobert’s incentive to favor the prosecution. Chobert, a cab driver, testified at trial that, on the morning of the shooting, he was stopped at the corner of 13th and Locust Street after having let a fare off when he heard a shot. As he looked up from his paperwork, he saw an officer fall to the ground. Appellant was standing over the fallen officer, firing shots at him. (N.T. 6/19/82 pp. 209-210). After that, he witnessed Appellant walk back from the officer a distance of approximately ten feet and then fall by the curb. (N.T. 6/19/82 p. 211). He identified Appellant at the scene of the shooting and gave a statement that morning concerning his observations. In that statement, Chobert claimed that he saw Appellant run approximately thirty steps after shooting the officer, but then fall; he also saw another man run, but get only a half block away before the officers arrived and stopped him. (He gave a similar statement on December 12, 1981). Appellant submits that additional trial testimony establishes that Chobert told an investigator at the scene that the “shooter ran away.” (Brief of Appellant at p. 39). Appellant refers specifically to the testimony of Inspector Giordano who testified at trial as to his observations upon arrival at the scene just moments after the shooting. Giordano testified that he encountered Chobert who told him “that the man that shot the policeman ran away, and he was a MOVE member.” When Giordano asked Chobert what he meant by a “MOVE member,” Chobert responded, “he had the hair, the funny hair.” At that point, someone mentioned that the man being described was in the back of the police wagon, whereupon Chobert proceeded to the wagon and identified Appellant as the shooter. (N.T. 6/1/82 pp. 70-71). Chobert was called as a defense witness during the PCRA proceedings. It is Appellant’s contention that Chobert’s initial statements to the police, support the defense theory that the true shooter fled the scene and that testimony at the PCRA proceedings established that Chobert’s trial testimony to the contrary had been manipulated by a previously undisclosed promise of the prosecution to assist Chobert in securing his driver’s license which, at that time, was under suspension. Also, it is contended that Chobert was biased in favor of the prosecution due to his probationary status at the time of trial. Appellant’s current contention, that Chobert initially claimed the shooter “ran away,” is a misrepresentation of the testimony. As noted above, his initial statements include only the fact that the shooter ran some distance before falling. The testimony elicited from Giordano is not inconsistent with these statements; instead it is simply not as complete as Chobert’s formal statements. Also, contrary to Appellant’s assertions, the record reveals that no promise was offered by the Commonwealth to Mr. Chobert regarding his license. Mr. Chobert testified at the PCRA hearing that his driver’s license was suspended in December 1981 and that at some point during trial, he had asked the prosecutor if he could assist him in ascertaining how to get his license back. He testified further that although the prosecutor assured him that he would look into the matter for Mr. Chobert, that the prosecutor never contacted him again regarding this matter. Indeed, he admitted at the PCRA proceedings that, as of then, his license had still not been restored. (N.T. 8/15/95 pp. 3-20). Appellant offered no additional evidence which would contradict Chobert’s assertions that no such deal existed. Moreover, the PCRA court specifically found Chobert’s PCRA testimony to be credible. Accordingly, since the record amply supports that finding, we are bound thereby. Beasley, su/pra. Finally, Mr. Chobert’s pretrial statements, which were consistent with his trial testimony and which were introduced by the Commonwealth, were made prior to this supposed “deal.” Appellant contends that the Commonwealth also failed to disclose favors given to prosecution witness Cynthia White. Cynthia White testified at trial that on December 9, 1981, shortly before 4:00 a.m., she witnessed Appellant shoot Officer Faulkner. Her testimony revealed that she was standing on the corner of 13th and Locust when she observed a police car stopping a Volkswagen vehicle. After both the officer and the driver of the Volkswagen had alighted from their vehicles, she saw them speak and then observed the occupant of the Volkswagen strike the officer in the cheek and observed the officer turn that individual as if to handcuff him. At that point, she saw Appellant run from an adjacent parking lot and, as he reached the curb, shoot the officer in the back. According to her testimony, as the officer was staggering, he seemed to be reaching for something. After the officer had fallen to the ground, she saw Appellant stand over the officer and shoot several more times. (N.T. 6/21/82 pp. 4.92-4.94, 4.105). While Appellant admits that Ms. White was cross-examined at trial respecting her extensive criminal record, which consisted mainly of prostitution charges, in an effort to attack her credibility, he claims that the trial court improperly barred the most critical evidence of her alleged bias. Specifically, Appellant claims that the court barred another prostitute, Veronica Jones, from testifying that police told her that Ms. White received favors for her testimony and that Ms. Jones could receive similar favors if she implicated Appellant in this murder. Jones, too, was present in the area of the shooting and had given the police a statement on December 15, 1981 wherein she, in pertinent part, noted that she was standing on a corner in the vicinity of Locust and 12th streets when she heard several shots. She then looked down Locust Street and saw an officer falling to the ground. She stated that she then saw “two black guys walk across Locust Street and then they started sort of jogging.” At trial, she testified consistent with this statement except for that portion of the statement wherein she indicated she saw two men jog away. At trial, she specifically denied that she saw two men jogging; claiming instead that she only saw two men standing near the fallen officer and that she then left the scene. (N.T. 6/29/82 pp. 109-114). Moreover, she admitted at trial, that on December 15, 1981, at the time she gave the statement, she was a “half a nickel bag high.” (N.T. 6/29/82 p. 122). Significant to Appellant’s current claim, it was revealed during Jones’ trial testimony that she, along with some other persons, was taken to the police station sometime in early January, 1982 on unrelated matters. She testified that while at the station, a conversation ensued regarding the instant case during which the police “were getting on [her] telling [her] she was in the area and [had] seen Mumia, ... do it ... intentionally. They were trying to get me to say something that the other girl said.” (N.T. 6/29/82 p. 129). She denied being actually interviewed at that time, testifying instead that the police were “more so conversating [sic] among each other” and that she assumed that they expected her to say “something in them behalf,” but that she could not do so because she “just saw what [she] saw.” (N.T. 6/29/82 pp. 131-132). When trial counsel sought to further question Jones regarding this event, the prosecution objected. At sidebar, defense counsel claimed he was unaware of this incident prior to Jones’ testimony and that he would like to question Jones further as to any possible statements she may have made while at the police station in January, 1982. Defense counsel was then given the opportunity to confer with Jones after which he informed the court that if permitted, Jones would testify that the police told her and the others who were with her that if they would give statements similar to that given by Cynthia White regarding the night of the shooting, they could work the streets without interference. An objection to this line of questioning was ultimately sustained and this latter statement was never heard by the jury. (N.T. 6/29/82 pp. 142-145). Appellant contends that the Commonwealth’s failure to disclose this interview of January, 1982, the favor offered to Jones and the favor offered to Cynthia White, violates the doctrine of Brady that evidence tending to impeach the credibility of witnesses must be disclosed. For the following reasons, this claim warrants no relief. First, there was no evidence presented of any such “deals” or “favors.” Moreover, at the original PCRA hearing, where Appellant first made this claim, the defense did not offer the testimony of either White or Jones, nor did it offer the testimony of the officers present during this alleged “interview.” Our discussion of this matter is, however, not yet complete. The purpose of the supplemental hearing on the first remand in this matter was to provide Appellant the opportunity to prove, as alleged, that the defense had just recently located Jones, and that they had evidence to establish that the police badgered and harassed Jones both in January 1982 and immediately before she took the stand at trial in June, 1982. Her testimony at this supplemental hearing was that, as a result of the badgering, she lied at trial and said that she did not see anyone running at the scene, when in fact, as she said in her statement of December 15, 1981, she did see someone running. Following this hearing, the PCRA court explicitly found Jones’ testimony to be incredible and, accordingly, concluded as well that such testimony was not likely to have altered the verdict and thus, did not establish the fourth factor necessary to meet the test for “after-discovered evidence.” , The court further concluded that, even assuming her testimony was. believed, that testimony would still not be likely to alter the verdict. In support of its ruling, the court, after reciting the above-referenced trial testimony and sidebar discussion, noted the following: At the remand hearing on October 1, 1996, Veronica Jones stated that her testimony at the trial in June of 1982 was truthful, except when she testified that she “didn’t see two men leave the, umm, run away, leave the scene.” The change in her testimony, Ms. Jones stated, was due to two detectives who visited her in jail and promised to help her with her charges if she helped them. Ms. Jones described the meeting -with the detectives as follows: It was just more so that, umm, I was to name Mr. Jamal (indicating) as the shooter, you know. And if I was to do that, I was supposed to do something like this girl named Lucky White. They said we made a deal with her and it was going to work out for her so they could make it work out for me. All they kept expressing was don’t forget five to ten years, that’s a long time. They kept expressing that point. So flashback my kids, that’s all I think about is my kids. (10-1-96 N.T. at 24). As noted above, the witness testified at trial to a similar encounter with uniformed police officers in January of 1982 who asked her to identify the defendant as the shooter at the trial. Consequently, the testimony of Ms. Jones, was that on two occasions police/detectives promised favorable treatment if she would identify the defendant as the shooter. However, despite these promises or threats, as she described them, she did not identify the defendant as the shooter. The promises or threats caused her to only deny seeing two men running away. (10-1-95 N.T. at 70.) This Court finds it remarkable that one who decides to testify falsely as a result of a deal with the police for favorable treatment would testify to other efforts by police personnel to get her to change her testimony and, in addition, not testify in the fashion requested by the police. There are, however, other aspects of Ms. Jones’ testimony which are incredible. At the remand hearing, Ms. Jones related the circumstances of her encounters with the police and detectives when they sought her cooperation in identifying the defendant as the shooter. (See 10-1-96 N.T. at 37-39 and 45-46). Despite remembering the details of these alleged encounters, including the fact that she was asked to identify the defendant as the one who shot the police officer, she could not remember whether she told the police that she would or would not go along with the plan. Prior to testifying, Veronica Jones met with a member of the Philadelphia Public Defender’s Office who counseled her on whether her testimony had Fifth Amendment implications. Following that interview and before the witness testified, the Defender advised this Court in the presence of defense counsel and the prosecutor that he had spoken to Ms. Jones and reviewed her statement and there were no Fifth Amendment problems. (6-29-82 N.T. at 92-94). Ms. Jones testified at the remand hearing that she was brought into the courtroom to testify at trial without being told that she was to be a witness in the defendant’s case. As she described it, she “was scared and ... didn’t know what was going on. I wasn’t ready.” (10-1-96 N.T. at 21). Yet at the defendant’s trial, before Ms. Jones was called as a witness, the following transpired: THE COURT: Let the record indicate that we are here in chambers. Give us your name? MR. ROSIN: David Rosin of the Public Defenders Office. THE COURT: And you represent whom? MR. ROSIN: Veronica Jones. Louise Tatum. THE COURT: Mr. Jackson wants to call your client as a witness in this case. MR. ROSIN: I have spoken to my client and I have seen her statement. I see no Fifth Amendment problem with her in testifying to what she saw. (06-29-82 N.T. at 93-94). Then, while testifying Ms. Jones was questioned as follows: BY MR. JACKSON: Did they have Dreadlocks? I can’t say. Like I told my public defender I was too far to say that they had Dreadlocks. (6-29-82 N.T. at 111). Thus, it is clear that Ms. Jones had the opportunity to consult with counsel, discussed her statement and proposed testimony and was advised of her Fifth Amendment rights. When asked at the remand hearing if she had met with an attorney the day that she testified she responded, “I don’t, I don’t remember. I don’t remember.” (10-1-96 N.T. at 69). Although Veronica Jones testified at trial that she had only signed one blank sheet for the detectives who interviewed her on December 15, 1981, at the remand hearing she acknowledged that she did sign each page of the statement she gave to the detectives. (10-1-96 N.T. at 77). She also acknowledged that the statements she gave were truthful based on what she remembered from the night of the incident. In her statement as indicated above, Ms. Jones appears to describe two men jogging across Locust Street, toward the fallen officer. However, in her testimony at the remand hearing, she refutes that and claims that she meant they were running away. (10-1-96 N.T. at 85). Nevertheless, her testimony reveals that whatever she saw occurred after the police officer and defendant had been shot and the incident was over. Ms. Jones testified that she was leaning on the railing of the High Speed Line entrance. That after hearing shots around the corner on Locust Street, she waited “a few minutes” until after the shooting and stopped and looked around the corner. (10-1-96 N.T. at 94). Thus, in spite of the fact that Ms. Jones gave a statement shortly after the incident describing two men jogging across Locust Street to within two or three steps of the fallen officer, her claim that the men were actually running away from the scene is of no moment. Eye-witness testimony at the trial established that the defendant was wounded and sitting on the curb a short distance from the fallen officer when Ms. Jones would have peered around the corner. Whether two men were running towards the officer or away from the officer, it is clear the incident between the officer and the defendant was over when Ms. Jones made her observations. The defendant was found sitting on the curb a few feet away from the police officer he had shot to death. Defendant’s emptied gun was found nearby. Eyewitnesses independently identified the defendant as the shooter. Defendant boasted in front of witnesses that he had killed the officer. Defendant’s brother who was on the scene throughout the incident never mentioned a killer running away but stated to police arriving on the scene, “I ain’t got nothing to do with this.” (6-19-82 N.T. at 155). (Op. of Sabo, J. dated Nov. 1, 1996, pp. 7-12). Traditionally, issues of credibility are within the sole domain of the trier of fact since it is the trier of fact who had the opportunity to personally observe the demeanor of the witnesses. Commonwealth v. Farquharson, 467 Pa. 50, 59-61, 354 A.2d 545, 550 (1976); Commonwealth v. McCracken, 540 Pa. 541, 543-544, 659 A.2d 541, 546 (1995). Additionally, the law regards recanting testimony such as that presented here as exceedingly unreliable. Indeed, this court has commented that “there is no less reliable form of proof, especially when it involves an admission of perjury.” Commonwealth v. Anderson, 466 Pa. 339, 342, 353 A.2d 384, 386 (1976). Just as with any other credibility determination, where the record supports the PCRA court’s credibility determinations, those determinations are binding on this court. Beasley, supra. Our review of the record reveals ample support for the court’s findings as set forth above. Moreover, even assuming the truth of Jones’s PCRA testimony, we cannot conclude that Appellant has proven a Brady violation. Her testimony reveals that she was almost a block away, and that after hearing the shots, she did not even look in the direction of the shooting for a few minutes because she was afraid. In addition, contrary to the assertions of the defense, her December 15, 1981 statement does not even mention someone “fleeing from the scene.” Rather, she stated only that she saw two persons jogging, presumably away from the fallen officer. Accordingly, testimony to that effect would do little to support the defense theory that the true shooter fled the scene. Also, the jury heard her claim during her original trial testimony, that police tried to get her to implicate Appellant when she was taken to the station in January 1982. Finally, she never portends to have witnessed the actual shooting. Accordingly, there is nothing exculpatory about her statement. Thus, this claim warrants no relief. See, Green, supra. Continuing with his claim that the prosecution violated the dictates of Brady, Appellant next contends that the prosecution withheld evidence of its attempted intimidation of key defense witness, Dessie Hightower, whose trial testimony supports Appellant’s theory that the true shooter fled the scene before backup police arrived. Hightower testified at trial that as he and his friend were walking towards their car, they heard gunshots being fired and shortly thereafter, saw someone wearing a red and black sweater running in a direction opposite the site of the shooting. (N.T. 6/28/82 pp. 28.122-126). This testimony was consistent with two prior statements he had given to police. The defense called him to testify at the PCRA hearing for the purpose of establishing that he had taken a polygraph examination at the behest of the police. It is Appellant’s contention that Hightower was subjected to this polygraph for the purpose of intimidating him. In support thereof, Appellant submits that PCRA testimony establishes that Hightower was the only witness subjected to a polygraph; that the results of that polygraph show that he was telling the truth; and that during the polygraph, he was not even asked about whether he saw someone run from the scene. Appellant contends that the prosecution withheld all of these facts from the defense. At the PCRA hearing, Hightower testified that he was told by the person administering the polygraph that he had passed the test and that he did not remember the person ever telling him during the test that the results indicated he was lying. (N.T. 8/3/95 pp. 27, 71). However, Lieutenant Craig Sterling, the detective who administered the polygraph to Hightower, testified that the test revealed, and that he so told Hightower, that he had not been telling the whole truth about the shooting. (N.T. 8/4/95 p. 124). It appears that the test revealed that Hightower was not being truthful when he was asked whether he saw a gun in Appellant’s hand on December 15, 1981 and he answered “no.” (N.T. 8/3/95 p. 66). During his PCRA testimony, it was also revealed that in a statement given to defense investigator, Robert Greer, on May 3, 1982, Hightower said: I heard shots go off. Maybe three or four, probably two or three seconds in between. I walked back and peeped from behind the wall. I couldn’t see anything. I didn’t hear any more shots going off, okay. So I walked towards Whispers, and by then it was flooded with other police officers. I saw somebody running past the hotel. (N.T. 8/3/95 p. 46). When presented with this statement, Hightower quickly offered that the statement was somewhat out of sequence with the events he actually witnessed. He testified that he actually saw this “someone” running before the other officers arrived. (N.T. 8/3/95 p. 46). The PCRA court found Hightower’s PCRA testimony to be not credible. In support thereof, the court noted that it found Lieutenant Sterling’s testimony credible and Hightower’s not credible respecting the issue of whether Hightower was told he passed the polygraph; that Hightower’s demeanor suggested he was not credible; and that Hightower’s PCRA account of the “fleeing person” was inconsistent with the one he gave to Greer on May 3, 1982. Apparently, the court did not credit Hightower’s attempted clarification of this May 3, 1982 statement. As a reviewing court, and given the record support for the court’s findings, we cannot second guess the PCRA court’s determination respecting Hightower’s lack of credibility. See, Beasley, supra. Accordingly, Appellant has failed to establish his claim here that there was material and exculpatory evidence withheld by the prosecution regarding Hightower. Appellant’s argument continues with a claim that the police destroyed at least two exculpatory statements taken from another eyewitness, William Singletary, and threatened to cause him physical harm and to destroy his business if he did not cooperate and say what the police wanted him to say. Appellant asserts that the defense did not know about Singletary’s true account of the shooting. Singletary testified at the PCRA hearing that he was a witness to the shooting. According to his testimony, he went to the police station shortly after 4:00 a.m. on December 9, 1981 whereupon he was interviewed by someone named Detective Green. (N.T. 8/11/95 p. 209). Singletary testified that while being interviewed, he was asked to write a statement respecting his observations of the shooting incident. He testified that he attempted to complete two or perhaps three such statements, but that after each statement was complete, the detective read it and then ripped it in pieces and threw it in the trash. Detective Green then told Singletary to write what Detective Green wanted him to write or else he would be beaten and his business would be destroyed. Accordingly, Singletary then wrote what the detective dictated and after that statement was typed, Singletary signed it. (N.T. 8/11/95 pp. 210-212). The substance of that statement was that as he was stopped at a red light at 13th and Locust Streets, he heard what he initially thought to be firecrackers, but soon realized it was not firecrackers because they were going too fast. He looked down Locust Street and saw a police car parked at the curb. He then parked his own vehicle and exited it. He proceeded to the southwest corner of 13th and Locust from where he observed two figures some twenty-five to thirty feet away. One was standing facing the wall; the other with his back to the wall, bent over at the waist. As he began to walk towards these two figures, someone yelled to him that a policeman had been shot. He then saw a policeman sitting on the ground with his back against the wall with his blood covered right hand to his face. The other person, an African-American man with dreadlocks and wearing green pants, was sitting on the curb, holding his leg that was stretched in front of him. After the fallen officer was placed in a police car and transported elsewhere, Singletary encountered Officer Vernon Jones with whom he was familiar. Officer Jones directed that Singletary proceed to the police station and report what he had observed. (N.T. 8/11/95 pp. 245-249). Singletary testified that a few days after he gave his statements, he contacted State Representative Alphonso Deal and informed him of the coerciveness he encountered, but that, to his knowledge, Representative Deal never initiated an investigation into his complaint. (N.T. 8/11/95 pp. 214, 251). He also testified that a few days later, four officers came to the gas station which he managed, claiming they were on burglary detail. Singletary, his employees, and his customers were told to lie on the ground while the officers displayed their weapons. Singletary claims that one of the officers said “this will give you something to remember.” (N.T. 8/11/95 pp. 218-219). He testified that in February, 1982 he was forced to close his business because of repeated instances of vandalism. (N.T. 8/11/95 pp. 219-223). At the PCRA hearing, Singletary testified that what he actually witnessed, and what he wrote in the discarded statements, was that he saw an officer frisking the driver of the Volkswagen. He claims a passenger, a tall man with dreadlocks, alighted from the Volkswagen, screaming and yelling, and then pulled a gun and shot the officer. The passenger placed the gun in the Volkswagen and fled. The driver ran after the passenger. Singletary then observed Appellant approach the fallen officer, asking him if there was anything he could do to help the officer. As Appellant was bending forward, the officer’s gun discharged and struck Appellant. (N.T. 8/11/95 pp. 234-237). Singletary also testified that when the police arrived, they repeatedly beat and kicked Appellant and, at one point, rammed his head into a police car with enough force to fracture his skull. (N.T. 8/11/95 pp. 237-238). According to his testimony, Singletary gave a statement to one of Appellant’s current attorneys on August 31, 1990. In that statement, Singletary stated that after Appellant offered to help the officer, the officer mumbled something that sounded like “get Maureen” and/or “get the children.” (N.T. 8/11/95 pp. 269-271). In another part of that deposition, however, he also said that after Appellant asked if he could help the officer, the officer said nothing and “just laid back, grabbed his gun and fired.” (N.T. 8/11/95 p. 276). When confronted by the prosecution with this inconsistency in his December 1990 statement, Singletary claimed to have been confused by the questions being posed at the time of his statement. (N.T. 8/11/95 p. 278). To counter Singletary’s PCRA testimony, the prosecution presented the testimony of Police Detective Quinn, who claimed that he, and not a Detective Green, took Singletary’s statement at the time of the murder. He recalled having been asked to leave his post at the North Central Detective Division and go to the Homicide Unit to assist. (N.T. 8/14/95 p. 49). He testified that he typed Singletary’s statement verbatim and that at no point was Singletary asked to write anything. (N.T. 8/14/95 pp. 51-52). Quinn testified that he did not recall who directed him to take Singletary’s statement, but that during the taking of that statement, no one but he and Singletary were present. (N.T. 8/14/95 pp. 50, 67). He testified that to his knowledge, no other detectives interviewed Singletary. However, he admitted that he not know how long Singletary was at the station that day. (N.T. 8/14/95 pp. 52, 67-68). Officer Vernon Jones testified that he saw Singletary, with whom he was familiar, at the scene and that Singletary asked him what had happened. (N.T. 8/14/95 pp. 18-19). According to Jones, when he told Singletary that a police officer was shot, Singletary responded that he heard shots, but believed them to be firecrackers and that after that several police cars arrived. (N.T. 8/14/95 p. 21). When Jones asked Singletary whether he had seen the shooting, Singletary replied “no.” Id. Jones had recorded this precise account in a statement given to homicide detectives on December 17, 1981. He candidly admitted at the PCRA that he had no present recollection of these events, but was certain his recorded statement was true. (N.T. 8/14/95 pp. 20, 29). The PCRA court found Singletary’s testimony not credible. We find ample support in the record for this conclusion and, thus, will not overrule that finding. Beasley, supra. Accordingly, Appellant’s claim which is based on Singletary’s testimony lacks merit. Appellant next contends that the prosecution withheld favorable testimony of several witnesses. The first specific claim focuses on Deborah Kordansky, who allegedly also saw someone fleeing, and who was unavailable at trial allegedly due to the prosecution’s deliberate withholding of her address and phone number. Kordansky, who, at the time of the murder, lived in an apartment located at 13th and Walnut Streets from where she could overlook the scene of the shooting, gave a statement to police on December 9, 1981. Her testimony at the PCRA hearing, which was consistent with that statement, was that between 3:45 and 4:00 a.m. on that date, she heard several shots that she thought were firecrackers, and then heard sirens. (N.T. 8/3/95 pp. 232, 235). When she heard the sirens she looked out her window, saw some eight to ten police vehicles and saw someone running down the street. (N.T. 8/3/95 p. 240). She was questioned extensively respecting the sequence of events to which she was testifying, and remained steadfast that at the point that she saw a person running, the police had already arrived on the scene. Contrary to Appellant’s contentions, trial counsel did contact Kordansky by phone during the time of trial. Kordansky told counsel during that conversation that she doubted she could be of assistance to the defense. (N.T. 8/3/95 pp. 210-212). The PCRA court concluded that Kordansky’s testimony could not have aided the defense and that, therefore, trial counsel was not ineffective in failing to secure her testimony at trial. We agree. Her testimony is simply not corroborative of the defense theory that the true shooter fled the scene since her testimony places someone running well after the police and emergency vehicles had arrived on the scene. Accordingly, even assuming the truth of Appellant’s claim that he was unable to locate Kordansky at the time of trial due to the prosecution’s actions, that claim would not provide PCRA relief since Kordansky’s testimony was not material. See, Green, supra. Appellant next claims that the true statements of an alleged suspect, Arnold Howard, were not disclosed to the defense. Howard was questioned by police on December 9, 1981 because an application for a duplicate operator’s license bearing his name was found in Officer Faulkner’s pocket. Howard maintained that he knew nothing about the murder; was not present in the vicinity of the shooting; and that he had lost the driver’s license application in William Cook’s Volkswagen on November 30, 1981 when Cook had provided him a ride. He was not called to testify at trial. At the PCRA hearing, Howard was called by the defense in an effort to establish that he had actually been taken into custody within several hours of the murder and told that police suspected he was at the scene of the shooting and was the person witnesses said fled. Howard testified that he had known Appellant virtually all of his life and that they grew-up in the same neighborhood. Respecting the shooting incident, he testified that he was in custody for some 72 hours during which time he was made to appear in a line-up; photographs were taken of him; and “some kind of powder was put on his hands.” (N.T. 8/7/95 pp. 5-8). He testified that also in the line-up was a neighborhood friend of his, Kenneth “Poppy” Freeman, to whom he had loaned his driver’s license. He testified that Freeman was a partner of Appellant’s brother, William Cook, in a vending stand operation where Howard himself sometimes worked. Howard also claimed he saw a person known to him as “Sweet Sam,” an alleged pimp in the Center City area of Philadelphia, also being held by police. Howard testified that he witnessed “Sweet Sam” being escorted away by two men in suits and that he never saw “Sweet Sam” again. When asked, Howard identified “Sweet Sam” as Cynthia White’s pimp. Howard also testified that Freeman was selected from the line-up by an African American woman seated behind the glass. Freeman, according to Howard’s testimony, died in either 1993 or 1994 after allegedly being handcuffed and “shot-up” with drugs. (N.T. 8/7/95 pp. 9-22). On cross-examination, it was revealed that Howard had prior convictions for burglary, theft by receiving stolen property, and forgery, and that he was then on probation. (N.T. 8/9/95 pp. 27-30). When confronted with a statement purported to be one he gave the police on December 9, 1981, Howard admitted that he had given a statement; admitted that the statement being offered at the hearing bore his signature on 4 of the 5 pages; and admitted the truth of some of the substance of the statement, but specifically refuted a majority of the statement. (N.T. 8/9/95 pp. 64-75, 83-98). Howard was also shown a page purportedly taken from the logbook located in the front entrance of the Police Administration Building. The page was dated December 9, 1981, and included on one line, the witness’ name and indicated a “time-in” of 12:30 and a “time-out” of 2:30. Howard testified that he had no recollection of this piece of paper. (N.T. 8/9/95 pp. 95-98). In rebuttal to Howard’s testimony, the prosecution called Captain Edward D’Amato, who testified that he took Howard’s statement on December 9, 1981. He stated that Howard appeared at the interview voluntarily and that he was not handcuffed. According to D’Amato, the interview was conducted at the Police Administration Building and lasted from 12:30 p.m. until 2:30 p.m. He stated that he typed the statement verbatim and that Howard was given a completed copy to review and sign. (N.T. 8/11/95 pp. 117-130). The prosecution also presented the testimony of Officer Joseph Brown, who was the custodian of the sign-in-book at the Police Administration Building. He verified the log dated December 9, 1981 and testified that persons who are handcuffed are not brought into the building through the entrance where this log book is located and are not required to sign the log book. (N.T. 8/11/95 pp. 65-70). The PCRA court found Howard’s testimony to be incredible. In support thereof, the court relied upon the testimony of Howard, and Officers D’Amato and Jones; the fact that Howard had prior crimen falsi convictions; as well as Howard’s demeanor. The court specifically found the testimony of the officers to be credible. Our review of the record reveals ample support for the PCRA court’s credibility determinations and we are bound thereby. Beasley, supra. Given those findings, we conclude that Appellant has failed to prove he is entitled to relief on this claim. Next, Appellant focuses on the testimony of one William Harmon whom the defense contends they just discovered during the midst of the PCRA proceedings. At that time, Harmon was incarcerated at the State Correctional Institution (SCI) at Mercer on drug charges. He testified that he contacted his attorney and asked him to contact Appellant’s lawyers to inform them that Harmon had been a witness to the shooting on December 9, 1981. (N.T. 8/10/95 p. 48). On August 3, 1995, Harmon was visited in prison by counsel for Appellant to whom he provided an affidavit. He was then transported to Philadelphia on August 9, 1995 and after being interviewed by counsel for the Appellant on the morning of August 10, 1995, he was directed by the court to testify. In that affidavit, and in his PCRA testimony, Harmon claimed to have been in a restaurant on 13th Street at approximately 3:80 a.m. on December 9, 1981. While in the restaurant he saw Appellant, with whom he was familiar, on the sidewalk outside and quickly left to talk to Appellant. While outside, the two men heard loud arguing whereupon Appellant began to walk through a parking lot towards the noise and Harmon followed. At that point, Harmon heard a shot and when he looked in the direction where he heard the shot, he saw an officer fall. According to Harmon, the officer was laying with his back against a wall with his gun visible. While Harmon stopped walking when he heard this shot, Appellant continued in the direction of the fallen officer. Harmon then heard a second shot and saw Appellant fall. Harmon claimed to have seen someone running down Locust Street in the direction of 12th Street after the first shot was heard. Then, shortly after hearing the second shot and seeing Appellant fall, Harmon saw a car pull up, someone alight from that car and shoot the officer again, and then get back into the car and drive off. (N.T. 8/10/95 pp. 55-68). Harmon ex plained that, because he was a pimp and did not want to get involved with the police, he then fled the scene. (N.T. 8/10/95 pp. 70-71). Significantly, when questioned on cross-examination, Harmon stated that Officer Faulkner was facing the man who first shot him. (N.T. 8/10/95 pp. 92-93). Physical evidence, however, proved to the contrary; that Officer Faulkner was shot from behind. (N.T. 6/25/82 p. 8.167; 6/26/82 p. 15). The PCRA court found Harmon’s testimony to be “absolutely incredible.” In support thereof, the court cited not only his entire testimony, but also his demeanor, and defense counsel’s obvious attempt to delay his testimony. We find support in the record for this conclusion; especially in light of the fact that Harmon’s account of the shooting is at odds with virtually all of the other eyewitness testimony and since it was the PCRA court which personally observed his demeanor. As such, that finding of credibility is binding on this court. Beasley, supra. Additionally, we point out that Appellant offered no proof whatsoever of Harmon’s unavailability at the time of trial nor of any efforts made to locate Harmon. Certainly, Appellant would have been aware of Harmon since Harmon testified that he and Appellant were allegedly together at the time of the shooting. Accordingly, Appellant’s claim warrants no relief. Schuck, supra. At the PCRA hearing, Appellant also presented the testimony of Sharon Smith whom he alleged was a newly discovered witness. Smith testified that on December 9, 1981, she, together with her husband and two eldest children, were staying in what was then called the Midstown Hotel. She claimed that early in the morning on that date, she heard loud arguing and then two, or perhaps three, gunshots. When she then looked out her window, she saw several police officers beating a black man with their sticks and kicking him. She claimed to hear the officers shouting: “kill the black m....f...er” and “beat the shit out of the black m.. .f.. .er.” (N.T. 8/9/95 pp. 112-115). She testified that the man she saw was being beaten so bad that she thought he might die. (N.T. 8/9/95 p. 125). On cross-examination, Smith explained that she never came forward with this information despite her knowledge of the trial of Appellant, because she feared the police and because her husband advised her not to get involved. (N.T. 8/9/95 pp. 121, 133). She claims that she only now came forward with this information because she did not believe Appellant should be executed. (N.T. 8/10/95 p. 121). The PCRA court found Smith’s testimony regarding this alleged beating to be incredible. In support thereof, the court cited to the testimony of Appellant’s treating physician at Jefferson Hospital who, as noted above, testified that Appellant’s injuries were not consistent with having been beaten as described by Smith (N.T. 6/28/82 pp. 28.58; 28.100); the fact that Appellant had not complained to the treating physician that he had been beaten (N.T. 6/28/82 pp. 28.92-101); and the fact that Appellant never offered evidence substantiating any claimed beating. (N.T. 6/28/82 pp. 28.92-103). Since there is support in the record for the court’s finding respecting the testimony of Smith, this court is bound by that finding. Beasley, supra. The PCRA court also found her testimony that she was unavailable at trial to be not credible. Essentially, the PCRA court found significant the fact that Smith never explained why her alleged reasons for not coming forward with this information sooner ceased to have an affect on her willingness to testify in 1995. As noted previously, in reviewing credibility determinations we, as an appellate court, give deference to the trier of fact’s assessment of a witness’ trustworthiness since it is the trier of fact who had the opportunity to personally observe the demeanor of the witness. Farquharson, supra. After giving such deference to the PCRA court’s findings regarding Smith, and having found sufficient support in the record for those findings, we conclude that Appellant’s claim that Smith’s testimony constitutes newly discovered favorable evidence is without merit. Appellant next asserts that the PCRA court improperly precluded the proffered testimony of his brother, William Cook, who would allegedly testify that a passenger in the Volkswagen shot Officer Faulkner. This claim is entirely devoid of merit. William Cook was present during Appellant’s trial, but was not called to testify. It is Appellant’s contention that he offered to prove at the PCRA hearing that his brother was “unavailable” at trial because of a concern that criminal charges might be filed against him. Following closing arguments at the PCRA hearing, counsel for Appellant indicated that he wished to call William Cook, but that Cook’s counsel, Daniel-Paul Alva, wished to first make certain representations to the court respecting his client. Following some further discussion, it was determined that Mr. Alva would have Cook in the courtroom the following day. However, when the court reconvened the following day for that express purpose, Appellant’s counsel represented that he was not successful in securing William Cook’s presence, and, instead offered Cook’s attorney, Mr. Alva, to explain Cook’s absence. Respecting whether or not William Cook was “unavailable” at the time of trial due to an assertion of the Fifth Amendment, Mr. Alva commented only that he was informed that “it had been decided that he [William Cook] would not testify.” (N.T. 9/12/95 p.8). As such, Appellant has failed to establish that William Cook was unavailable at the time of trial. Further, contrary to Appellant’s assertions, the court did not refuse to continue the matter until Cook could be located. Rather, the court commented that, given the representations of Appellant’s PCRA counsel that they had tried repeatedly to subpoena him but were unsuccessful, the court would, at that point, conclude the proceedings, but that in the event the defense was able to produce William Cook, the proceedings would be reopened. Thus, contrary to Appellant’s contentions, he was not denied the opportunity to either establish the unavailability of William Cook or to secure his presence at the PCRA proceedings. The record clearly demonstrates that Appellant’s claim lacks even arguable merit. Appellant offered yet another claim of alleged previously undisclosed evidence of police coercion in connection with the second remand; this one respecting one Pamela Jenkins, a prostitute in the Philadelphia area. In the application, Appellant states: Specifically, if given the opportunity, Jenkins will testify that, in late 1981, police pressured her to falsely identify Jamal as the shooter in this case. Jenkins would further testify that she knew prostitute and prosecution witness Cynthia White, also know as “Lucky,” and that White also was subjected to threats by police, which produced her false identification of Jamal as the shooter. None of this has ever been disclosed to the defense before. Application pp. 1-2. Our review of the record respecting this second remand healing reveals no evidence which would support the granting of PCRA relief. First, contrary to Appellant’s contentions, the evidence presented was not exculpatory. Although Pamela Jenkins testified that Cynthia White told her that she was afraid of the police; that the police were attempting to get her to say something about the murder of Officer Faulkner; and that she had been threatened with her life by the police, at no time did Pamela Jenkins testify that Cynthia White’s testimony at trial was perjured or that Cynthia White even alleged that her testimony was false. Also, a significant portion of Jenkins’ testimony involved alleged communications with Cynthia White occurring at a time after White had been confirmed dead. Furthermore, while Jenkins testified that she was badgered and coerced by police to implicate Appellant in the shooting, she, in fact, never offered any testimony implicating Appellant and, thus, we find it unlikely that her testimony, if it had been available at trial, would have altered the verdict. As such, Appellant’s claim that Jenkins’ testimony constitutes “after-discovered evidence” is meritless. Schuck, supra. Most significantly, the trial court explicitly found Pamela Jenkins to be incredible. Our review of the record reveals support for the court’s conclusion; accordingly that ruling remains inviolate. Beasley, supra. This second remand hearing, therefore, produced no additional evidence which would support the granting of post-conviction relief. Appellant next contends that he was unable to present an adequate defense due to the court’s denial of adequate funds; the Commonwealth’s suppression of key evidence; and the ineffective assistance of trial counsel. While Appellant presents somewhat distinct theories of relief in his current appeal, in essence, he is arguing the precise issue addressed by this court on his direct appeal: whether the trial court failed to afford adequate investigative resources thereby depriving Appellant of a meaningful ability to present a defense in violation of his due process rights. Abu-Jamal, 521 Pa. at 200-202, 555 A.2d at 852. Accordingly, Appellant is not entitled to PCRA relief on this claim. See, Beasley, supra.; Commonwealth v. Christy, 540 Pa. 192, 201-203, 656 A.2d 877, 881 (1995)(a petitioner cannot obtain PCRA review of previously litigated claims by alleging ineffectiveness and presenting new theories of relief to support that previously litigated claim.). Appellant next complains that the prosecution withheld Federal Bureau of Investigation (F.B.I.) files evidencing that Appellant had been under constant surveillance for years because of his political affiliations and had committed no criminal conduct. Appellant complains that the court improperly denied his proffer of over 600 pages of alleged FBI files which he claims would have supported his contention. The court denied the admission of these documents on the basis that the defense had failed to lay a proper foundation for their admission. The admission of evidence is a matter vested in the sound discretion of the trial court, whose decision thereon can only be reversed by this court upon a showing of an abuse of discretion. Commonwealth v. Williams, 541 Pa. 85, 94-95, 660 A.2d 1316, 1321 (1995). The court’s ruling on this issue did not constitute an abuse of discretion, but rather constituted a proper evidentiary ruling. Absent any authentication that these files were, indeed, FBI files, there is simply no basis for their admission. Appellant claims, as well, that he sought to subpoena one Inspector Alphonse Giordano to establish that he knew Appellant through police surveillance. While a subpoena for Giordano was, indeed, quashed at the PCRA hearing, there was no offer of proof made at the hearing to support Appellant’s current claim. In short, Appellant’s contention that this evidence would have established police bias against him as well as the fact that he had no prior criminal history, is of no moment. First, we note that the fact of his lack of a prior criminal history was known to the jury given its finding of this precise mitigating circumstance. Moreover, even assuming that such files did exist, Appellant fails to explain how such files could be exculpatory. Appellant’s claim is, thus, without merit. Appellant next asserts trial counsel’s ineffectiveness as a basis for obtaining collateral relief. He argues generally that trial counsel failed to adequately prepare his defense and that the animosity which developed between counsel and Appellant necessarily rendered counsel ineffective. The PCRA court, however, found that the animosity that existed between counsel and Appellant resulted solely from Appellant’s persistent refusal to cooperate with his counsel and his personal decision to direct the trial strategy. As noted infra, that finding is supported in the record and we are, thus, bound by that finding. See, Beasley, supra. Given that finding, Appellant’s current claim lacks merit since his decision to pursue his own trial strategy renders any claim of ineffective assistance of counsel a nullity. Commonwealth v. Szuchon, 506 Pa. 228, 250-252, 484 A.2d 1365, 1377 (1984). Appellant goes on to recite specific instances of trial counsel’s alleged ineffectiveness. However, Appellant’s argument as to the specific instances is largely redundant as he has elsewhere in this appeal raised the underlying merits respecting each of those instances and therein also included a claim of counsel’s ineffectiveness. Accordingly, as this court has found no merit to any of those underlying claims, we need not, at this point, again individually analyze the claims since there can be no finding of ineffectiveness where the underlying claim lacks merit. Commonwealth v. Tilley, 528 Pa. 125, 149-151, 595 A.2d 575, 587 (1991). Appellant submits next that the trial court prematurely and unjustifiably stripped him of his right to self-representation when back-up counsel was ordered to take control of the voir dire and the subsequent trial. Appellant’s claim is devoid of merit. Appellant, who had been granted indigent status, steadfastly insisted from the initiation of this matter that he be permitted to proceed with “counsel” of his choice. However, he insisted on proceeding with an individual known as John Africa who was not a licensed attorney and had apparently never received any formal legal schooling. The court properly refused this request and, when Appellant requested to then proceed pro se, the court initially permitted such status and as a precaution appointed back-up counsel to assist Appellant. When it became apparent that Appellant was unable to properly conduct voir dire, the court first asked Appellant whether his back-up counsel could take over the questioning or whether he preferred the court to conduct voir dire. Appellant steadfastly refused to permit his back-up counsel to take part in any of the proceedings and argued vehemently that the court should not perform the voir dire questioning. We find that the court properly took over the questioning and then properly ordered that back-up counsel take control. All defendants, even those who may display the potential to be disruptive, have the right to self-representation. Commonwealth v. Africa, 466 Pa. 603, 620-622, 353 A.2d 855, 864 (1976). In such instances, however, it is advisable that stand-by counsel be appointed. Id. at 620-622, 353 A.2d at 864. As explained in Africa, in such circumstances: The court should explain to the defendant the standards of conduct he will be expected to observe. If the defendant misbehaves, he should be warned that he will be removed from the court, his right to represent himself will be considered waived, and the trial will continue in his absence with standby counsel conducting the defense. If the defendant again misbehaves, these measures should be taken. The defendant must be made to realize that his disruptive tactics will result only in his exclusion from the courtroom. His case will be tried according to law, in an attempt to do justice, whether he cooperates or not. Id. at 621, 353 A.2d at 864. The record evidences that the trial court fully complied with the dictates of Africa. Appellant also asserts that the court’s decision to take away his pro se status and to direct back-up counsel to proceed, denied him his right to counsel of his choice. While an accused is constitutionally guaranteed the right to the assistance of counsel that right gives to a defendant only the right to choose, at his or her own cost, any attorney desired. Where, as here, an accused is indigent, the right involves counsel, but not free counsel of choice. Commonwealth v. Segers, 460 Pa. 149, 153-155, 331 A.2d 462, 465 (1975). Accordingly, Appellant was not denied his right to the assistance of counsel, and, therefore, this claim warrants no relief. Appellant next argues that he was improperly removed from the courtroom for significant portions of his trial. He claims that such removal violated his right to self-representation and was not properly tailored to assure continued communication with his counsel and assistance with his defense. Appellant claims he was not disruptive and asserts that it was error to remove him from the courtroom and thereby deny him of his right to represent himself. Disruptions, particularly those that are purposeful and persistent, are not to be tolerated as they threaten the court’s ability to conduct a trial properly. Africa, at 619-620, 353 A.2d at 863. Removing a disruptive defendant from the proceedings is a permissible means for a court to discharge its duty to defend the judicial process. Id. at 620 n. 12, 353 A.2d at 863 n. 12, citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The record is replete with instances of Appellant’s unwillingness to cooperate with the court and/or his counsel. He was oftentimes argumentative with the court, even after repeatedly being warned that if this disruptive behavior did not cease, he would be removed from the courtroom. Under these circumstances the removal of Appellant from the proceedings was proper. See, Africa, supra. Appellant further contends that upon his removal the court failed to employ available technology to ensure that Appellant could monitor the proceedings and promptly communicate with his attorney. Conspicuously absent from Appellant’s argument is any assertion that his attorney, indeed, failed to keep him properly informed. There is at least some indication to the contrary in the record that during such absences, trial counsel told Appellant what had transpired and/or what the intended course of action was. (See, N.T. 6/28/82 p. 6). Appellant next argues that his absence from two specific in camera conferences violated his due process rights. Both of these conferences occurred during a time in which Appellant had been removed from the courtroom due to his persistent disruptive behavior. The first conference involved the violation by a juror of the court’s sequestration order. The issue of whether this juror was properly removed is discussed infra. Appellant’s attorney was present at this conference and acquiesced in the court’s determination that the juror should be removed, especially due to the fear that during her absence, she may have been privy to information regarding the trial. Appellant does not submit that he disa greed with the removal of this juror and, indeed, the record evidences that this particular juror appeared hostile toward Appellant during the voir dire proceedings. The second conference involved a discussion regarding evidence the court had ruled inadmissible on hearsay grounds. Specifically, the defense was requesting an opportunity to question two police officers respecting whether they had information which would reveal that an officer other than Officer Faulkner shot Appellant. As the purpose of this inquiry was to determine if, indeed, there was evidence that another officer may have shot Appellant, the court, upon agreeing to conduct the inquiry, properly dictated that the inquiry be held in camera. While Appellant was absent from this conference due to his own obstreperous behavior, at defense counsel’s insistence, Appellant was given the choice of attending this inquiry. Appellant refused to attend unless the court agreed to hold the inquiry in open court. This request the court correctly refused. It is important to note at this juncture that this inquiry ultimately revealed that no such evidence existed and these two officers were never called to testify. Contrary to Appellant’s assertions, this conference was not a “critical” stage of the proceedings and he was not denied his right to a public trial since the inquiry revealed no admissible or relevant trial evidence. In sum, Appellant’s absence from these conferences was due to his own making and, in any event, no resulting prejudice can be shown from his absence at either of these times. Thus, this claim warrants no relief. Appellant argues next that the prosecution’s summation at guilt phase exceeded the permissible bounds of advocacy. Appellant challenges, specifically, four comments advanced by the prosecution during this summation. Generally, a prosecutor’s arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. Commonwealth v. Gorby, 527 Pa. 98, 112-114, 588 A.2d 902, 909 (1991). Moreover, the prosecution and the defense alike are afforded wide latitude and may employ oratorical flair in arguing to the jury. Commonwealth v. Zettlemoyer, 500 Pa. 16, 52-55, 454 A.2d 937, 956-957 (1982). The arguments advanced must, however, be based upon matters in evidence and/or upon any legitimate inferences that may be drawn from the evidence. Commonwealth v. Chester, 526 Pa. 578, 597-599, 587 A.2d 1367, 1377 (1991). Finally, any allegedly improper prosecutorial comments must also be examined within the context of the conduct of defense counsel. Commonwealth v. Morales, 549 Pa. 400, 423-425, 701 A.2d 516, 528 (1997). If a challenged remark is made in response to the defense’s closing argument, it will generally be deemed fair response and hence permissible comment. See e.g. Commonwealth v. Williams, 539 Pa. 61, 76 n. 13, 650 A.2d 420, 428 n. 13 (1994), citing Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). Appellant first complains that the prosecution’s closing impermissibly “ridiculed” Appellant’s assertion of his Sixth Amendment right to counsel. Appellant recites the following comment in support of this claim. Will you understand that the Defendant is on trial for taking somebody’s life, too. That is one thing we hadn’t heard too much about. If maybe true and indeed it is true that Daniel Faulkner on December 9th, at 3:51 as he looked up at the barrel of this gun did not have an opportunity to ask for any type of abusive remarks in relation to anybody, the system, the laws or anything. No one quickly ran down and said, “Do you want an attorney?” (N.T. 7/1/82 pp. 147-48). For several reasons, we cannot conclude that these comments were impermissible. Initially, we note that Appellant has taken these comments out of context. Viewing these comments in the proper context, it is clear that the point being expressed by the prosecution was simply that the jury should consider not only the fact that the defendant’s life was at stake in this trial, but also that a life, that of Officer Faulkner, was unjustly taken and that the jury should consider that loss in rendering its verdict. While a portion of this comment did, indeed, reference Appellant’s behavior, that portion was rather innocuous, and, in any event, when read in context, was not outside the bounds of permissible oratorical flair. Next, Appellant contends that the prosecution improperly commented on his right not to testify. In so arguing, Appellant points to the following comment: ... although they have no burden to do anything, of all that they had, all that was presented to them over that period of time you saw what the defense put on, and they don’t have any burden that is true, but.... Are they suggesting that there was a third man, a fourth man, or is he doing this all for his brother? I ask you to look through all of this, as well as any other strategy or tactics you have seen during the course of this whole particular trial and recognize it for what it is. (N.T. 7/1/82 pp. 171-72). We do not agree with Appellant’s claim that this comment included impermissible references to Appellant’s right not to testify. The prosecution here simply commented on the defense evidence, arguing that it was not sufficient to overcome the prosecution’s evidence of guilt. Appellant argues further that the prosecution improperly appealed to community sentiment in order to inflame the jury by commenting as follows: This is one vicious act. This is one uncompromising vicious act. This is one act that the people of Philadelphia, all of them, all of you everywhere is [sic] outraged over. This act demands action. This act demands a reasonable view and the result of responsibility and courage.... An officer of the law who serves two years in service and assists individuals throughout that time, some of whom have testified here. He helped a rape victim and mother of the victim and [sic] the last arrest he ever made. That man as a member of the Police Force comes back from war and is faced with a war on the street right at 18th and Locust. Ladies and gentlemen, I ask you, all of us, the Commonwealth, the people of this city, reach out to you and demand justice. Look right at that intent to kill and that man who did it with that weapon and say, “The evidence is clear to all of us. You are guilty of first degree murder.” (N.T. 7/1/82 pp. 172; 187). Contrary to Appellant’s portrayal, the challenged comments do not impermissibly urge the jury to convict on some generalized grounds, such as to protect society or preserve civil order. Rather, the comments were limited to a plea to convict Appellant based solely on the actions committed in the instant matter, and, thus, were within the bounds of proper oratorical flare. Cf. Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221 (1995)(it is improper for the prosecutor to urge the jury to sentence a defendant to death as a means of retribution for the ills inflicted on society by drug dealers rather than based on statutorily enumerated aggravating circumstances). Appellant also submits that the prosecution, in its summation, improperly vouched for the credibility of two witnesses. First, he submits that in commenting on the testimony of Robert Chobert, the prosecutor supplied his personal assurance that Chobert was credible, knowing that evidence of his bias and motive for testifying had been withheld. However, as discussed previously, the alleged promise of penal benefits in connection with Chobert’s suspended license was not proven by Appellant to actually exist. Moreover, the prosecutor did not personally vouch for the credibility of Chobert, but merely argued from the evidence that his testimony supported a guilty verdict. Such argument is permissible. Chester, supra. Appellant next claims that the prosecution improperly vouched for the credibility of Priscilla Durham by referring to purported testimony of James LaGrand, a fellow security officer of Durham’s, who never testified. In so arguing, Appellant cites to N.T. 7/1/82 p. 173, wherein the prosecution, in arguing that the evidence was sufficient to convict, noted, inter alia: “Priscilla Durham. Present was also LaGrand as he comes in and makes that statement.” The Commonwealth responds that this comment was a fair representation of the evidence presented at trial. Specifically, the Commonwealth submits that the fact of LaGrand’s presence during the statement Durham gave to police in February 1982 was in evidence. Our review of the record reveals, however, that at trial, on re-direct examination of Durham, the following exchange occurred: BY MR. McGill: (for the prosecution) Q. Now also normally in reference to giving the statements to the police when would it be that that you would give a statement to the Philadelphia police, in what kind of a situation? A. In an official capacity, if I myself called them. As far police business, I have no interference. I don’t have to make statements to the police ... Q. Okay. A.....when they bring in prisoner, that’s their prisoners and we don’t have anything to do with it. Q. Would you, for example, if it was a crime that occurred in the hospital then would you become actively involved and give statements if you were a witness or in any way connected with it? A. Yes. It would have to be within the hospital. Q. So your duties, then, really were limited in terms of responded [sic] to interviews in the normal course of events to your supervisor in the hospital, which you did. A. Right. Q. And the next time that you had an opportunity, I believe..well, the next time that you told anything to the police was when they came to you on February the 9th? A. Yes. Q. Was there any other security officer in that general area there? A. Yes. Q. There? Who? A. Officer James Legrand [sic]. Q. He is also a security officer? A. Yes, he is. (N.T. 6/24/82 pp. 123-24). It is not entirely clear from this trial testimony at what point Durham is claiming that La-Grand was present. Arguably, the challenged comment of the prosecution implies that this testimony established that La-Grand was present when Appellant allegedly made the confession that he had killed Officer Faulkner and, thus, may not be fair representation of the original testimony. On review, we cannot conclude that this representation had the unavoidable effect of prejudicing the jury to the point that it could not render a true verdict. First, the comment was an isolated occurrence. Moreover, the statement itself, when viewed against the evidence the jury heard during trial on this issue, was ambiguous enough so as not likely to have led the jury to believe, as Appellant suggests, that LaGrand, too, heard Ap pellant’s confession. Accordingly, we cannot conclude that Appellant’s claim here warrants relief. Appellant next asserts that the prosecution, in arguing to the jury that there were numerous statements, expert reports and physical evidence made available to the defense, somehow conveyed to the jury that Appellant’s failure to present such evidence was indicative of the fact that no such evidence existed. In support, Appellant recites the following comments: ... fifty-seven statements all given to the defense, with one hundred and twenty-five other statements all given to the defense, with all sorts of medical reports and ballistic reports and chemical reports and property receipts and all physical evidence ... all that was presented to them over that period of time you saw what they put on. (N.T. 7/1/82 p. 171). Appellant’s argument here is preposterous. When the above statements are read in the context in which they were actually uttered, it becomes clear that the argument being advanced was in response to the defense’s closing argument that the trial resulted from a conspiracy to frame Appellant. (N.T. 7/1/82 pp. 170-172). As such, it is fair comment. Commonwealth v. Williams, 539 Pa. 61, 76 n. 13, 650 A.2d 420, 428 n. 13 (1994). Appellant next raises several issues regarding the jury voir dire. Initially, he argues that he has established a prima facie case of the prosecution’s pattern of using peremptory strikes to exclude African-Americans from the jury panel. While Appellant admits to having raised this issue on direct appeal, he nevertheless contends that evidence presented at the PCRA hearings demonstrates that, contrary to this court’s assessment of this issue on direct appeal that “[t]he record reflects that eight of [the stricken] venirepersons were black,” there were, in actuality, at least ten, and possibly eleven African-Americans peremptorily stricken by the Commonwealth. In support thereof, Appellant relies on a stipulation entered into during the collateral proceedings regarding the fact that two venirepersons, whose races were not recorded at trial, would now testify that they are African Americans and that they were peremptorily challenged by the Commonwealth. In order to establish a Batson claim, a defendant must establish a prima facie case of purposeful discrimination. To do so, a defendant must demonstrate that he/she is of a cognizable racial group; that the prosecution has exercised peremptory challenges to exclude members of that racial group from the panel of venirepersons; and finally, that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude venirepersons on the basis of race. Implicit in this scheme is the notion that peremptory challenges constitute a jury selection practice that allows for such discrimination by those who have a design to discriminate. Commonwealth v. Dinwiddie, 529 Pa. 66, 69-71, 601 A.2d 1216, 1218 (1992). If a defendant succeeds in establishing a prima facie case of purposeful discrimination, the prosecution is then required to provide non-discriminatory reasons for striking the potential jurors. This court’s analysis of this issue on direct appeal indicated that the record reflected that the prosecution employed peremptory challenges to strike eight African-American venirepersons. It now appears, via a stipulation, that there may have been two more African-American venirepersons stricken by the prosecution. That evidence does not alter our original conclusion. Significantly, in concluding on direct appeal that Appellant failed to establish a prima facie case of discrimination, we stated: “... we have examined the prosecutor’s questions and comments during voir dire, along with those of the appellant and his counsel, and find not a trace of support for an inference that the use of peremptories was racially motivated.” 521 Pa. at 198, 555 A.2d at 850. Even assuming that ten, rather than eight, stricken venirepersons were African-American, we would still arrive at the same resolution of this issue that we did on direct appeal. Appellant’s current claim, thus, warrants no relief. Appellant next contends that the jury pool did not reflect a fair cross-section of the community. In his PCRA petition, Appellant contends specifically that the manner of polling juries in effect at the time of his trial, which was by voter registration list, was not a random selection process, and therefore did not satisfy the Federal and State constitutional standard that juries be selected from a fair cross-section of the community. The PCRA court correctly ruled that this precise claim has been repeatedly rejected by this court. See, e.g. Commonwealth v. Jones, 465 Pa. 473, 479-481, 350 A.2d 862, 866 (1976); Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990). In his brief to this court, Appellant asserts that the PCRA court misconstrued his argument on this issue. He contends that his claim is that “the jury system rotated voter lists in a way that denied a fair cross-section of the community at any given time.” (Brief for Appellant, p. 98; emphasis in the original). Contrary to Appellant’s intimations, our review of the record reveals that Appellant did not raise this precise argument, but rather raised the issue addressed by the PCRA court. Accordingly, we will not entertain his assertion that the court misconstrued his claim. Appellant’s next assertion, that he is entitled to discovery and a hearing on this claim, borders on the preposterous. Assuming Appellant had raised this claim to the PCRA court as he now asserts, it was his burden to present evidence at the PCRA hearing in support of that claim. This he did not do. Accordingly, even if we would find this issue to have been properly preserved, Appellant has utterly failed to carry his burden. Appellant next claims that the court improperly denied a juror’s request to leave to attend to personal business, despite sequestration, without notifying the defense, and then used this incident to later remove that same juror from the panel. It appears that during the course of the trial, an African-American woman juror had asked the court crier if she could go home to tend to her sick cat and was told, after the crier had consulted with Judge Sabo, that she was not permitted to leave. This juror nevertheless left that same evening without notifying anyone, returning to the hotel several hours later. When confronted upon her return, she commented: “I don’t care what Judge Sabo or anybody says, I do what I have to do. Nobody is going to stop me.” Prior to the beginning of testimony the following day, a conference was held in the judge’s chambers respecting numerous issues, one of which involved Ms. Dawley’s violation of sequestration. Present during the relevant discussion was the judge, the court crier, the prosecutor and Appellant’s counsel, Anthony Jackson. It appears that Appellant was not present due to the court’s prior ruling barring him from the proceedings due to his misbehavior. Given this juror’s open defiance of the court’s sequestration order, the judge, with the concurrence of both counsel, determined that the juror should be removed. (See N.T. 6/18/82 pp. 2.35-2.47). It was discussed at this hearing that during voir dire this particular juror had openly expressed a dislike for Appellant. Appellant now relies on that discussion to argue that the court actually “engineered” the removal of this juror. His claim is devoid of merit. During the in-chambers discussion, Judge Sabo expressed his concern that this juror exhibited such defiant misbehavior that, if she remained on the panel, she may display this type of behavior again and/or that her unauthorized disappearance may be seen by other jurors as permissible behavior. Contrary to Appellant’s assertions, it does not appear that Judge Sabo in any manner orchestrated her removal. Rather, Judge Sabo was justifiably concerned that the jury remain free from external influence. The court evidenced a legitimate concern for the integrity of the jury. Rule 1108(a) of the Pennsylvania Rules of Criminal Procedure provides that a trial court may seat an alternate juror whenever a principal juror becomes unable or disqualified to perform his or her duties. Such a decision will be reversed on appeal only upon a finding of an abuse of discretion. Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786 (1994). We find no such abuse of discretion. Moreover, Appellant has failed to demonstrate how he was prejudiced here. Indeed, given this juror’s open hostility towards Appellant, a finding of prejudice from her removal would be unlikely. Appellant next asserts that three white jurors improperly deliberated outside the presence of other jurors during the midst of the trial. Appellant complains that the trial court improperly precluded his proffer to call some of the jurors to testify to these alleged deliberations. However, as the PCRA court noted, this ruling is consonant with the law of this Commonwealth which forbids the post-verdict testimony of jurors which would tend to impeach the verdict. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). Appellant next asserts that the method of assigning homicide cases in Philadelphia County in 1982 violated the Pennsylvania Constitution. Specifically, Appellant takes issue with the existence of a “Homicide Unit” division of the Court of Common Pleas of Philadelphia County, arguing that such constitutes a “special tribunal” in violation of Article I, Section 15 of the Pennsylvania Constitution. This argument is clearly devoid of merit. Article I, Section 15 of the Pennsylvania Constitution provides “No commission shall issue creating special temporary criminal tribunals to try particular individuals or particular classes of cases.” In Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119 (1993), we discussed the scope of Article I, Section 15’s prohibition, noting that this provision was intended to secure to the Commonwealth, as well as to the accused, a trial by ordinary tribunals and not special tribunals created for the trial of a particular case with a view to producing a particular result. However, we specifically found that Article I, Section 15 has no applicability to the ordinary general criminal jurisdiction of the courts of common pleas of this Commonwealth. Accordingly, Appellant’s assertion here that the administrative assignment of certain judges of the Court of Common Pleas of Philadelphia County to hear only homicide cases is not a violation of Article I, Section 15. Appellant next challenges trial counsel’s stewardship respecting his representation of Appellant at the penalty phase. He asserts counsel’s ineffectiveness in failing to prepare for the penalty phase and most significantly for not presenting mitigating witnesses who would demonstrate that Appellant was an admired and award-winning journalist, that he was involved in community service and that he was a loving family man who abhorred violence. Counsel will not be deemed ineffective for following the penalty phase strategy designed and/or directed by the accused. Beasley, 678 A.2d at 778. Similarly, an accused cannot refuse to cooperate with counsel respecting a particular trial strategy and then later argue ineffectiveness on the part of counsel for failing to pursue a particular course of action. Commonwealth v. Pierce, 537 Pa. 514, 526-528, 645 A.2d 189, 196 (1994). Simply stated, the law is clear that an accused bears the burden of the consequences flowing from his own obstinance. Commonwealth v. Szuchon, 506 Pa. 228, 250-252, 484 A.2d 1365, 1377 (1984). Appellant presented several witnesses at the PCRA hearing who, in essence testified to Appellant’s talents as a journalist, his dedication to community services and his devotion to his family and humanity generally. All of those witnesses testified that they were available and willing to so testify at this trial. Appellant’s trial counsel, Anthony Jackson, testified at length during the PCRA proceedings. Signifi cant to Appellant’s current contention, Jackson testified that he, and not Appellant, dictated the penalty hearing strategy. However, the PCRA court made a credibility determination that Jackson was not credible when he testified to such. The court found as a fact, that Appellant chose to exercise personal control over his trial strategy, including, specifically, the selection of character witness during the guilt phase. Also, the court found that it was Appellant who chose to read a statement at the penalty hearing and that Appellant never consulted with counsel regarding this statement. In short, the court found that Appellant’s steadfast refusal to cooperate with his counsel continued in the penalty phase. Our review of the record leads us to no different conclusion. As noted previously, where, as here, an accused makes his own strategic choices at trial, he has no recourse for those choices in the form of a claim of ineffective assistance of counsel. Id. Accordingly, since the record supports the PCRA court’s conclusion that the failure to present mitigating witnesses was as a result of Appellant’s own choosing, this court is bound thereby and Appellant’s claim, thus, warrants no relief. Appellant next challenges the prosecution’s penalty phase closing argument. He makes three distinct arguments regarding this closing: (1) that the summation unfairly tarnished Appellant’s character by exploiting his decision to exercise his Fifth and Sixth Amendment rights; (2) that the prosecutor improperly argued that the jury’s decision at penalty phase involved only a mechanical process as opposed to any exercise of discretion; and (3) that the prosecutor improperly expressed his view that a sentence of death was warranted here. As noted previously, the statements of a prosecutor will not be grounds for relief unless the unavoidable effect thereof is to fix in the minds of the jury a settled bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. Gorby, supra. At the penalty hearing, where the presumption of innocence no longer has application, the prosecutor is granted greater latitude in presenting an impassioned plea for a sentence of death. Travaglia, 541 Pa. at 134-135, 661 A.2d at 365. Appellant argues first that the following comments by the prosecution during the penalty phase impermissibly commented on Appellant’s right not to testify: You heard nothing at all, ladies and gentlemen, in reference to testimony as to any kind of emotional feelings on the defendant’s part because he has, as his absolute right, he did not choose to take the stand and testify what the circumstances were. (N.T. 7/3/82 pp. 59-60). We do not construe the above-quoted language as an attempt to have the jury draw an adverse inference from Appellant’s failure to testify. Indeed, while responding to the argument raised by Appellant’s counsel during closing, the prosecutor here explicitly told the jury that Appellant possessed the right not to testify. In any event, when viewed in context, it is clear that this statement was made in response to the comments made during the defense closing wherein the defense argued in mitigation that in shooting Officer Faulkner Appellant was acting under emotional disturbance. Based on the foregoing, we find that the prosecutor’s comments were within the bounds of fair response and thus permissible. Commonwealth v. Young, 477 Pa. 212, 383 A.2d 899 (1978). Because the challenged remarks were permissible, counsel cannot be deemed ineffective for having failed to raise this issue. Tilley, supra. Appellant next asserts that the prosecution improperly urged the jury to consider the difficulties Appellant had with trial counsel and/or the court. A persistent theme of the prosecution’s closing was that Appellant believed himself to be above “law and order.” This argument was made in response to the defense’s closing argument which attempted to discredit the aggravating circumstance “killing of a police officer.” In essence the defense argued that there should be no distinction between killing just anyone and killing a police officer. Pertinent to the instant claim of Appellant, the prosecution argued that Appellant’s lack of concern and respect for the law and society was demonstrated by his murder of this police officer. In further support of that same theme, the prosecution detailed the instances throughout the proceedings where defendant displayed utter disrespect for the justice system. These comments were fair response to the defense closing, and when read in the context in which they were made, were not likely to cause a fixed bias or hostility towards Appellant which would impede the jury’s ability to objectively render a true verdict. Thus, they do not warrant relief. Morales, supra. Appellant next argues that the prosecution improperly argued that the jury’s duty in sentencing was a mere mechanical process, thereby diluting the moral gravity of its decision. This claim is devoid of merit. First, Appellant recites only a portion of the actual comment made by the prosecution. The challenged remarks were uttered as part of the prosecution’s discussion of the law regarding the jury’s statutory duties upon the finding of aggravating and mitigating circumstances. The challenged comments correctly conveyed the law. The prosecution correctly stated that once the jury determines that one or more aggravating circumstance outweighs any mitigating circumstance, section 9711(c)(iv) mandates that the sentence be death. This mandatory sentencing scheme has since been found to be constitutional. See Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); Commonwealth v. Peterkin, 511 Pa. 299, 326-329, 513 A.2d 373, 387-388 (1986). Since there is no merit to Appellant’s claim, any claim of ineffective assistance of counsel fails. Tilley, supra. The final claim of Appellant respecting this penalty phase summation is that the prosecutor impermissibly interjected his “authoritative view” that a sentence of death was warranted based on his own experience. (Brief of Appellant at p. 113). Appellant objects to the prosecution’s statement that law and order “is what this trial is all about more than any other trial I have ever seen.... ” (N.T. 7/3/82 p. 62). This claim, too, is without merit. Appellant has taken this statement out of context. In ascertaining whether challenged comments are improper, it is fundamental that the comments be viewed in the context in which they were made. Morales, supra. The comments were made as part of the prosecution’s response to the defense claim that killing a police officer, as opposed to any other individual, should not constitute an aggravating circumstance. Indeed, immediately preceding the challenged remark, the prosecutor stated that, in response to the defense contentions, he would attempt to explain why this particular aggravating circumstance is important and valid. On review, we find nothing prejudicial or improper about this comment; even viewed in isolation as Appellant has presented it. Accordingly, this claim warrants no relief. Tilley, supra. Next, Appellant asks that we reconsider two issues addressed by this court in his direct appeal. First, Appellant asks that we reconsider our conclusion that the introduction of comments made by him in a 1972 newspaper article which, inter alia, referenced Appellant’s association with the Black Panther Party and quoted him as having said “political power grows out of the barrel of a gun” was permissible. Appellant contends that the subsequent decision of the United States Supreme Court in Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), supports this previously litigated claim that his First Amendment rights were thereby violated. Our prior ruling, however, is in complete accord with the decision in Dawson. In Dawson, the state, in order to rebut mitigating character evidence adduced by the defendant, introduced evidence that the defendant was a member of the Aryan Brotherhood prison gang. This evidence was introduced via stipulation which proved only that an Aryan Brotherhood prison gang which entertains white racists beliefs originated in California in the 1960’s and that a separate gang in the Delaware prison system calls itself the Aryan Brotherhood. The Court noted that had the prosecution offered the evidence it initially claimed it had which would demonstrate that this is a white racist gang associated with drugs and violent escape attempts at prison and that this gang advocates the murder of fellow inmates, the Court would likely have found no error in admitting evidence of the defendant’s membership in that gang since the violent nature of that gang would be relevant to rebut evidence of the defendant’s good character. In other words, the Court made clear that the admission of such affiliations of a defendant is proper only where there is evidence demonstrating some connection between that affiliation and the character evidence sought to be rebutted. Id. at 168, 112 S.Ct. 1093. In the instant case, Appellant’s own quotes in the newspaper article evidence that the Philadelphia chapter of the Black Panther Party, to which Appellant belonged, would use violence if necessary to quell, what the Party perceived to be, rampant police brutality against Party members. Accordingly, the nature of the Party was amply demonstrated and the requisite connection between membership in the Black Panther Party and the character evidence presented by Appellant, specifically, that he was a peaceful and genial man, was met. Thus, this issue has been finally litigated and warrants no further review, even in light of the subsequent decision in Dawson. See, 42 Pa.C.S. § 9544(2); Commonwealth v. Szuchon, 548 Pa. 37, 693 A.2d 959 (1997). Appellant also argues that we should reconsider our holding on direct appeal wherein we concluded that it was proper to allow the prosecution to cross-examine Appellant following his plea of mitigation. This issue warrants no further review as it, too, has been finally litigated. See Abu-Jamal, 521 Pa. at 210-214, 555 A.2d at 857-858. Appellant next submits that the penalty phase verdict slip was constitutionally defective pursuant to the dictates of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). The crux of Appellant’s argument on this point is that the structure of the form was such that the jury would be led to believe that unanimity was required in order to find, and thus consider, a mitigating circumstance. Appellant’s argument regarding the structure is: The jury’s completed verdict form showed one aggravating circumstance and one mitigating circumstance. On the first page of the form, the jury had to identify any mitigators it weighed by filling in a blank. Then, on the third page of the form, the jurors were required to identify mitigators by putting a check mark on the page. All twelve jurors had to sign that page. (Brief of Appellant at p. 114). Initially, we note that Appellant offered absolutely no evidence in support of this claim at the PCRA hearing. His sole support appears to be the verdict slip itself; a copy of which he appends to his PCRA petition. This argument is without merit. In Mills, the Supreme Court vacated a sentence of death on the basis that the judge’s instructions, together with the verdict form, created a substantial probability that reasonable jurors may have believed that they were barred from considering mitigating evidence unless all twelve jurors agreed on the existence of any given circumstance. The form employed in Mills contained printed instructions for both the section respecting aggravating circumstances and that for mitigating circumstances. These instructions were identical but for the respective burdens of proof. In both, the term “unanimously” was used. Compounding this was the judge’s instruction which indicated that both aggravating and mitigating circumstances had to be unanimously found. The verdict slip employed in the instant case consisted of three pages. The requirement of unanimity is found only at page one in the section wherein the jury is to indicate its sentence. The second page of the form lists all the statutorily enumerated aggravating circumstances and includes next to each such circumstance a designated space for the jury to mark those circumstances found. The section where the jury is to checkmark those mitigating circumstances found, appears at page three and includes no reference to a finding of unanimity. Indeed, there are no printed instructions whatsoever on either page two or page three. The mere fact that immediately following that section of verdict slip, the jurors were required to each sign their name is of no moment since those signature lines naturally appear at the conclusion of the form and have no explicit correlation to the checklist of mitigating circumstances. As such, we cannot conclude, as Appellant urges, that the structure of the form could lead the jurors to believe that they must unanimously agree on mitigating evidence before such could be considered. Moreover, verdict slips similar to that employed in the instant matter have been held by our court not to violate the dictates of Mills. See e.g. Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927 (1995). Appellant next submits that, in Pennsylvania, the death penalty is applied “disparately and freakishly” in ways that affected his case. Again, Appellant failed to raise this claim at trial or on direct appeal and, therefore, it is technically waived. Presumably, however, he is raising this claim, too, under the guise of prior counsels’ ineffectiveness for failing to raise this issue. In any event, his claim lacks arguable merit. Appellant claims that he repeatedly attempted to offer proof that Philadelphia County defendants were more likely to receive the death penalty and that sixty percent of the death row inmates in Pennsylvania are African-American, but was denied the ability to present evidence establishing such racial and geographic disparities. Our review of the record reveals, however, that Appellant never offered competent proof of such claims. In further support of this claim, Appellant reiterates four arguments raised elsewhere in his brief and which have already been addressed herein and rejected. (See, e.g. arguments respecting the Homicide Unit in Philadelphia; use of voter registration lists for jury selection process; prosecution’s allegedly improper reference to Appellant’s membership in the Black Panthers; and that three white jurors allegedly deliberated outside the presence of the remaining jurors.). Having thoroughly addressed each of these points already and having found none of them meritorious, it is clear that those claims provide no relief to Appellant here either. Appellant submits that in denying this claim, the PCRA court erroneously relied upon McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Significantly, the PCRA court cited McCleskey for the proposition that a claim of constitutional violation cannot be established merely upon an allegation that a certain percentage of murderers sentenced to death in Pennsylvania are African-American. Appellant submits this was an erroneous application of that ease since the PCRA court precluded his proffered evidence to support the claim. Appellant’s claim is disingenuous. As the PCRA court noted, Appellant proffered nothing more than conclusory statements; he never offered to present facts in support thereof. As noted by Appellant, McCleskey requires proof of discriminatory intent; accordingly, the PCRA court’s citation to McCleskey was proper. Appellant submits that his Eighth and Fourteenth Amendment rights were violated because the jury was confused as to whether life imprisonment in Pennsylvania carried no possibility of parole. He argues that the United States Supreme Court decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), dictates that the jury be informed that a life sentence carries with it no possibility of parole. He argues that counsel was ineffective for failing to seek a clarifying instruction and/or that the trial court erred in failing to correct this alleged error. Neither of these contentions warrants relief. First of all, this court has clearly held that the decision in Simmons is not to be given retroactive effect in collateral attacks on a sentence. Christy, 540 Pa. at 214-216, 656 A.2d at 888. In any event, there was no error committed here, and, thus, nothing on which to seek correction. Appellant’s counsel did, indeed, inform the jury that life imprisonment meant precisely that and that parole was an unlikely event. Contrary to Appellant’s assertion, the trial court’s interruption of the summation was not done in a manner so as to instill in the jury’s minds the notion that some persons sentenced to life imprisonment are “out in a few years.” (Brief of Appellant at p. 117). Appellant’s counsel was not interrupted until after he informed the jury as to the harshness of a sentence of life imprisonment and that the jury should realize that a sentence of life would likely be just that. Upon review of this particular portion of the defense summation, we cannot conclude, as suggested by Appellant, that the jury would have believed that the imposition of a life sentence might have resulted in Appellant being released from prison. Instead we find that the jury was informed of precisely what Appellant now argues he was entitled; that a defendant sentenced to life is not likely to receive parole. Appellant’s final claim is that the cumulative effect of all his alleged errors denied him a fair trial. However, as we have concluded that none of his claims, considered on their individual merits, warrants relief, the instant claim of Appellant also does not warrant relief. Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992)(no number of failed claims may collectively attain merit where they could not do so individually). For all the foregoing reasons, we affirm the denial of post-conviction relief. . 42 Pa.C.S. §9711(d)(1). . 42 Pa.C.S. §9711(e)(1). . Judge Sabo also presided over the jury trial in 1982. . Ms. Jones testified at Appellant’s trial in 1982. It appears from Appellant’s argument that what he is truly claiming is that the information that Ms. Jones would now offer is "newly available.” . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . Appellant originally raised this Batson claim to this court on direct appeal. He again raised this claim in his PCRA petition. . In reviewing an order granting or denying post-conviction relief, this court's standard of review is limited to a determination of whether the court's conclusions are supported by the evidence of record and whether they are free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 505-507, 424 A.2d 1302, 1305 (1981). . Although the PCRA was amended in November, 1995, Appellant filed his PCRA petition on June 5, 1995. Accordingly, the Act as it existed prior to the 1995 amendment is applicable for purposes of this appeal. . It is important to note at this point that many of the issues raised by Appellant were not raised on direct appeal. Rather than posit appellate counsel’s ineffectiveness in failing to raise these issues on direct appeal in his discussion regarding each distinct issue, Appellant sets forth, in a specifically enumerated issue, a boilerplate claim of appellate counsel’s ineffectiveness in failing to raise meritorious issues on appeal. Appellant contends that many of the issues raised in his PCRA petition are based on evidence outside the trial record and that, therefore, they could not have been presented fully on direct appeal. Appellant asks that in the event this court deems any of those issues waived for failure to raise the same on direct appeal, that they be reviewed as claims of ineffectiveness of appellate counsel. In conjunction with this issue, Appellant notes this court’s tradition of entertaining all claims raised in a capital case, whether on direct appeal or collateral attack, irrespective of waiver. However, where, as here, an appellant has layered his claims so as to escape the bar of waiver, the relaxed waiver doctrine has no applicability. . Appellant moved, albeit unsuccessfully, for the judge’s recusal prior to the start of PCRA testimony. Appellant alleged specifically that Judge Sabo openly demonstrated, during Appellant’s trial in 1982, his bias and hostility towards Appellant and that Judge Sabo had a reputation for bias against defendants in general and African American defendants in particular, such that the proceedings would be lacking the fundamental aspect of the appearance of fairness and impartiality. In his motion for recusal, Appellant set forth specific examples of rulings or comments allegedly made during trial which showed the judge’s bias. The Commonwealth, in its answer to that motion, responded specifically to each of those instances, many times indicating, correctly, that Appellant's recitation of the trial evidence was distorted or incomplete. On July 12, 1995, the court held a hearing on this recusal motion during which both sides presented argument in accord with the previously filed motion and answer. At the conclusion of argument, the court denied the motion for recusal. Appellant again raised the issue of recusal in conjunction with his application for a second remand. There he simply requested that, for all the reasons expressed in his original brief to the court, the matter should be reassigned upon remand to another judge. This request was explicitly denied by this court in its order of May 30, 1997. . In any event, this court ultimately granted Appellant a delay of an additional week. . Appellant, in a footnote, asserts that Judge Sabo, because he was a senior judge, lacked jurisdictional authority to preside over this PCRA proceeding. This claim lacks even arguable merit and we, thus, summarily reject it. . Rule 1508, which applies to PCRA proceedings, generally provides that the PCRA court shall schedule a hearing where the Commonwealth files a motion to dismiss alleging delay on the part of the defendant or where the petition and answer, if any, raises material issues of fact. Relevant to Appellant's contentions, rule 1508 provides, in relevant part, that: (a) ... The judge shall schedule the hearing for a time that will afford the parties a reasonable opportunity for investigation and preparation, and shall enter such interim orders as may be necessary in the interests of justice. (b) The judge, on petition or request, shall postpone or continue a hearing to provide either party a reasonable opportunity, if one did not exist previously, for investigation and preparation regarding any new issue of fact raised in an amended petition or amended answer. . Given Appellant’s strenuous argument that he has proven his right to collateral relief, we find his current claim, that the order denying discovery significantly hampered his ability to conduct a reasonable investigation and to prepare for the PCRA hearing, to be somewhat disjointed. It cannot be that one has proven his/her claim; yet also be true that the inability to obtain discovery on that precise claim resulted in a denial of one's right to prove that claim. . We note that Pa.R.Crim.P. 1502(e)(2), which was added in 1997 and thus, is not applicable to Appellant's PCRA petition, provides that no discovery shall be permitted on a first counseled petition in a death penalty case, except upon a showing of "good cause.” However, even assuming this new subsection was applicable to the instant matter, Appellant's request for discovery which is premised only on unsubstantiated claims of police and/or prosecutorial misconduct, would not be granted. . While Appellant takes issue with the trial court's failure to mention this second statement, Appellant himself notes that this second inter view concerned only the subjects of Appellant's clothing and Officer Faulkner's missing camera. (Brief of Appellant at p. 32). Accordingly, it does not appear that this omission by the PCRA court in any way undermines the court's findings and conclusions regarding this matter. . While Appellant offers no legal analysis on this statement, he is referring to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which as noted in more detail infra, holds that the prosecution's deliberate suppression of evidence favorable to the defense constitutes a violation of due process. In support of this current claim, Appellant cites Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), which held that the suppression of exculpatory witness statements violated Brady. Those statements revealed significant inconsistencies and self-incriminating assertions of the eyewitness which the Court found would have, inter alia, raised opportunities for the defense to attack the thoroughness of the investigation. However, as noted infra, no statements of Wakshul were withheld by the prosecution and the failure to call Wakshul to testify at trial regarding these statements was of Appellant's own making. . Although Wakshul testified that he did not know who made this statement, it was revealed through further questioning that Officer Gary Bell had admitted in testimony at trial that he, in fact, uttered the statement to Appellant. (N.T. 8/1/95 p. 116; 6/24/82 pp. 28-29, 135-36). . Appellant's trial counsel, Anthony Jackson, testified at the PCRA hearing that it was his decision to call Wakshul and that it was his fault that Wakshul was not called until the last minute. (N.T. 7/27/95 pp. 67, 195). However, at trial, Mr. Jackson stated that he did not know that he would be calling Mr. Wakshul, and that he had just been informed that Appellant wanted him to call Wakshul. (N.T. 7/1/82 pp. 33-34). The court found that it was Appellant’s personal decision to call Mr. Wakshul, against the judgment of Mr. Jackson. The court also found Mr. Jackson’s trial statements, rather than his PCRA hearing testimony, to be the more credible account. . Prior to the initiation of cross-examination of Chobert at trial, a side bar conference was held to determine whether the defense was permitted to question Chobert regarding his prior record for arson; a crime for which he remained on probation at the time of trial. During this conference, the defense argued that because the witness had been paid for committing this arson, such conviction qualified as crimen falsi and the defense should, therefore, be permitted to cross-examine the witness as to that crime. The trial court ultimately ruled that arson did not qualify as crimen falsi and, accordingly, precluded the cross-examination. Appellant now claims that such a ruling was in error. In support thereof, he claims that the conviction could have been used to establish bias of the witness given his probationary status. He argues both trial court error in not allowing the questioning for purposes of establishing bias and trial counsel's failings for not pursuing such a claim. Appellant implies that, notwithstanding the fact that the defense specifically offered this evidence only to impeach credibility, the court should have recognized the value of this evidence in exposing alleged bias. The trial court, however, had no duty to present Appellant’s case. Moreover, at the time of trial, the law allowed evidence tending to show bias only where there was a pending indictment and the prosecutor's ability to grant leniency. See, Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973). It was not until 1986 when this area of the law was expanded to allow questions tending to show that the witness may expect leniency even absent any such promises on an outstanding charge. See, Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986). In any event, there were no pending charges against Chobert to which this rule of law would have applied. . Appellant asserts that the trial court's ruling precluding further questioning of Jones regarding this alleged conversation in January 1982, was improper. However, Appellant offers no argument in support thereof. It appears from a reading of the record that the court's ruling was, at least in part, based upon finding that this line of questioning was irrelevant since the proffer regarding Jones’ testimony was only that she would testify as to what she saw on December 9, 1981. In its opinion following the remand hearing, the court noted that this additional questioning was not permitted since the witness had already testified concerning this conversation of January, 1982. Appellant subsequently claimed in his brief following the remand hearing which specifically involved this issue regarding Jones, that the court's ruling prejudiced him. However, as discussed infra, no such prejudice has been established. . Appellant also asserts that counsel was ineffective in failing to interview Jones prior to her testimony presumably because such an interview would have revealed this "critical” evidence. . It was never alleged at the original PCRA hearing that Jones was unavailable to testify or even that the defense was looking for Jones but unable to locate her. . Appellant submits that the intimidation tactics of the prosecution reached new heights during this hearing. Appellant points specifically to the fact that while testifying, Jones was arrested by New Jersey authorities on an outstanding warrant. Appellant does not argue, nor does it appear to be, that the warrant was not a valid one. In any event, this incident has no bearing on the merits of Appellant’s claim for relief since Jones did not alter her testimony as a result of that arrest. Thus, Appellant was not prejudiced thereby. . In conjunction with this finding, the court ruled that Jones’ testimony should not, therefore, be added as a supplement to the record of the PCRA proceedings. Appellant takes issue with this particular ruling, claiming that it flouts this court’s order which directed that such evidence be added to the record. Appellant's claim here is of no moment. While, indeed, there was no request by Appellant, nor a directive of this court, for the PCRA court to determine whether this allegedly "newly discovered evidence” should be added to the record, the court's ruling to that effect simply reflects the court's legal conclusion that the evidence does not constitute “after-discovered evidence.” In any event, the PCRA court properly complied with this court’s order and the testimony from this supplemental hearing has been made part of the record. . Appellant submits that the PCRA court applied the wrong legal standard here insofar as his claim regarding Jones was not that her testimony constituted "after-discovered evidence” but rather that this evidence of police coercion constituted undisclosed Brady materials. Appellant's application to this court requesting the remand indicated that Jones was a "newly available witness.” Thus, it seems apparent that Appellant's claim, at least originally, was, indeed, one of "after-discovered evidence.” In any event, the PCRA court did, indeed, analyze this claim under the rule of Brady, concluding that no Brady violation had been established since none of the accounts of the incident testified to by Jones qualified as material exculpatory evidence. . In any event, Appellant is unable to establish prejudice on this point, since the jury heard his testimony to the effect that he saw someone running prior to the time the other officers arrived and obviously found the evidence to the contrary to be more credible. . There was testimony presented at trial by Anthony V. Coletta, M.D., the treating physician at the hospital to which Appellant was transported after the shooting, to the effect that Appellant’s injuries to his face were not consistent with having been beaten with a blackjack or night stick. (N.T. 6/28/82 p. 28.100). Dr. Coletta testified that other than the bullet wound, Appellant suffered the following injuries: a laceration to his forehead of approximately four centimeters; swelling over the left eye; a laceration of his lip; and soft tissue swelling on the right side of . his neck and chin. (N.T. 6/28/82 p. 28.58). . We note that the time indicated in the log book apparently did not include a reference to either a.m. or p.m. However, the sheet was dated December 9, 1981 and since it is undisputed that Howard was interviewed following the shooting which occurred at approximately 4:00 a.m, we find that Judge Sabo’s conclusion that the time entries at issue necessarily refer to 12:30 p.m. and 2:30 p.m., is sound. . According to his PCRA testimony, Harmon did not testify at trial because his mother asked him not to become involved. He claimed to only now be testifying at the PCRA hearing because his mother had since died. . At the start of the hearing on August 10, 1995, defense counsel requested a further delay so that Harmon could refresh his recollection with photographs that the defense claimed would not be available for several days. Following the lunch recess, the court directed that subject photographs be produced. After giving the witness the opportunity to view those photographs, the court, over the continued objection of the defense, directed Harmon to testify. After the photographs had been produced, defense counsel requested another continuance, arguing for the first time that Harmon was too tired to testify as he had been afforded only a wooden bench to sleep on after his arrival the night before in Philadelphia. The court, in its findings of fact, determined that these tactics were designed solely for the purpose of delay. . While the defense claimed at the hearing that the death certificate for Cynthia White was not authentic, the defense acknowledged that it was unable to disprove the fact of her death. . At this second remand hearing, it was Appellant's contention that the inducements and/or coercion of Jenkins was at the behest of one,Officer Thomas Ryan. Jenkins testified that she met Officer Ryan approximately one year prior to the shooting when he stopped her for truancy while she was attending Simon Gratz High School. (N.T. 6/26/97 p. 82). Respecting the shooting, it was Jenkins' testimony that Officer Ryan escorted her to police headquarters the Saturday following the shooting where she was then placed in an interrogation room where Officer Ryan and another officer attempted to pressure her into incriminating Appellant. (N.T. 6/26/97 pp. 40-43). She also testified that Officer Ryan later paid her money to locate Cynthia White. (N.T. 6/26/97 p. 49). However, in rebuttal, the Commonwealth offered evidence that Jenkins could not have had these alleged contacts with Officer Ryan at the time's she testified they occurred. First, the Commonwealth offered evidence that Officer Ryan did not become a police officer until December 21, 1981. That date post-dates both the date of the alleged truancy stop and the date of the alleged interrogation. Also, the custodian of records for the Philadelphia School District, confirmed that Jenkins was enrolled at Simon Gratz between January 19, 1982 and December 6, 1982. . Respecting Appellant's claim that all of these witnesses and/or their PCRA proffered testimony constituted "after-discovered evidence,” we note that notwithstanding the above conclusions, there remains the following unequivocal testimony of Michael Scanlon and Albert Magilton, both of whom presented damaging testimony at trial, which testimony renders it unlikely that any of the above claims, either singularly or cumulatively, could compel a different verdict. Scanlon testified that he was stopped at a red light on Locust Street approaching 13th Street, when he observed an African American male engaged in a verbal altercation with a police officer. He then saw the male turn around and assume a “spread-eagle" stance. The male then swung back around, striking the officer in the face with his fist. He explained that as the officer was then trying to subdue the male, another African American man ran across the street from the parking lot and pointed his hands at Faulkner. Scanlon saw this second man raise his hand and he heard a gunshot. He heard another shot as the man was near the officer; he saw the officer fell; and then observed the man stand over the officer and shoot two more times. After witnessing this, Scanlon turned left onto 13th Street in pursuit of an officer to assist. (N.T. 6/25/82 pp. 8.5-8.12). Scanlon testified that he could not identify either the first or second man, but when presented with a jacket previously entered into evidence, he positively identified it as the one worn by the man who ran from the parking lot. (N.T. 6/25/82 pp. 8.12, 8.62-8.63). Magilton was walking east on Locust Street and, at the corner of 13th, stopped to watch because an officer pulled over a Volkswagen. As he proceeded to cross Locust Street, Magilton saw a man coming out of the parking lot with his hands behind his back, moving fast across the street toward the spot where the officer had stoped the Volkswagen. Magilton then turned and lost sight of the man. Magilton heard some shots, looked over, did not see the officer, went back across the street, looked down and saw the officer laying on the sidewalk and the other man sitting on the curb. The police then arrived, handcuffed the man and put him in the wagon. When taken to the wagon, he identified Appellant as the man he had seen crossing the street. (N.T. 6/25/82 pp. 2.76-2.80). At trial Magilton, via a stipulation necessitated by Appellant's absence from the courtroom, also identified Appellant as the man he saw running across the street. (N.T. 6/25/82 p. 8.79.). . The trial court noted at the time of voir dire that several of the potential jurors were obviously shaken by Appellant's questioning. Appellant also refused to adhere to proper procedure during this voir dire. . We note that while Appellant raised this theory in his amended PCRA petition, in support thereof he cited to a distinct section of the closing. Accordingly, the PCRA court addressed the theory on the basis of that distinct comment and did not touch on the comment recited above. Our review of Appellant's brief, together with his original PCRA petition, as well as the amended petition, reveals other instances of this type of misguidance. We do not countenance such tactics. However, for the sake of completeness, we shall nevertheless address his claims. . Immediately preceding the challenged remarks, the prosecution stated: Let me tell you this, let me make this clear, you have heard constantly, constantly you have heard about the facts that this Defendant is on trial for his life. You have heard this all the time. Let me also add this ... (N.T. 7/1/82 p. 147). . In a footnote, Appellant points to yet two more references wherein the prosecution commented specifically on the "arrogance” of the defendant, arguing that these comments as well were impermissible. After having the read the entire closing argument and, more particularly, in having read these challenged comments in the context in which they were made, we find them to be within the bounds of permissible comment and, in any event, not prejudicial to Appellant. Both comments were made as part of the prosecution's argument that the intent to kill was established. Such argument is permissible. Commonwealth v. D’Amato, 514 Pa. 471, 489-491, 526 A.2d 300, 309 (1987)(a prosecutor may always argue to the jury that the evidence establishes the defendant's guilt). . Appellant submits as well that the cumulative effect of all the allegedly improper comments of the prosecution requires that he be granted a new trial. Having determined that none of his individual claims have merit, we must also determine that this current claim is unavailing. See Commonwealth v. Williams, 532 Pa. 265, 276-280, 615 A.2d 716, 722-723 (1992). . The stipulation originally included reference to three individuals, not originally noted on the record as being African American, who would testify that they were, indeed, African Americans and were peremptorily challenged by the prosecution. Appellant later withdrew the name of one of those individuals from the stipulation. . In conjunction with this argument, Appellant asserts that the existence of this "Homicide Unit” also violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution because it results in the arbitrary and unequal imposition of the death penalty. Appellant has failed, however, to offer even a scintilla of proof to support this claim. . We are compelled, albeit reluctantly, to address another "subissue” presented by Appellant. Appellant submits that, although previously litigated on his direct appeal to this court, the issue of whether the prosecutor's improper comments to the effect that Appellant would have "appeal after appeal” should be considered in assessing the cumulative effect of the other improper arguments. (Brief of Appellant at p. 113, n. 140). Appellant explicitly states that such comment is violative of the holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Significantly, this court addressed this precise issue in great detail in our opinion on Appellant’s direct appeal from his sentence of death and concluded that this comment was not violative of Caldwell. Commonwealth v. Abu-Jamal, 521 Pa. at 207-212, 555 A.2d at 855-857. In light of our prior ruling, we cannot countenance Appellant's and/or his counsel’s audaciousness in now submitting a contrary legal conclusion as if this court's prior holding on this issue deserves no respect. . Although not stated as such, Appellant raises an additional argument here. Specifically, he contends that the prosecutor also interjected improper comment on the need to stop police killings because there will then be no one to protect the citizens. When read in context, these statements, too, were nothing more than fair response to the defense argument that the murder of a police officer should not be an aggravating circumstance and, thus, permissible. Commonwealth v. Williams, 539 Pa. 61, 76 n. 13, 650 A.2d 420, 428 n. 13 (1994). . In connection with this argument, Appellant further submits: "[t]he prosecutor went on to tell the jury that his mother told him that very morning: 'Joe, if you can come up and kill a police officer, who is going to protect me?’ and invoked the ‘constant battleground that we have during the course of every day in this City,' remarking ‘we are one step from the jungle without the opportunity of individuals to enforce the law.’ ” (See N.T. 7/3/82 pp. 65-66). These excerpts, obviously taken out of context, were made as part of the prosecution’s response to the defense claim that the murder of a police officer should not be an aggravating circumstance. When read in context they are fair response. Contrary to Appellant’s intimations, these remarks did not improperly attempt to persuade the jurors to sentence Appellant to death on the basis of any fact other than that he killed an officer; a factor which has clearly been recognized as worthy of the imposition of the death penalty given its status as an aggravating circumstance. LaCava, 542 Pa. at 192-194, 666 A.2d at 237. . At the penalty phase of Appellant's trial, Appellant himself presented a statement which has been referred to as a "plea in mitigation.” The prosecution was then permitted to cross-examine him. Counsel for Appellant then proceeded to give the closing argument for the defense. . Appellant submits that the PCRA court precluded expert testimony on this issue. Appellant here refers to the proffered testimony of one Professor John Lamberth who, according to the offer of proof, interviewed approximately thirty-five persons who had been jurors in death penally cases before one particular judge, Judge Jackson. The offer of proof further provided that, as a result of those interviews, Dr. Lam-berth had formed opinions about jurors in general. Apparently, it was proposed that he would testify regarding those opinions. The court precluded this testimony on the grounds that it was not only irrelevant, but also inadmissible. Not only was this proffered testimony irrelevant, but, as noted previously herein, a juror may not impeach or invalidate a verdict by his or her testimony. Patrick, supra. The court, thus, properly excluded this proffered testimony. . Further, counsel cannot be deemed ineffective for failing to predict changes in the law. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977). . The Prothonotary of the Supreme Court is directed to transmit the complete record of this case back to the Governor. 42 Pa.C.S. § 9711 (i).

CERCOME, Judge: This is an appeal from a final order granting summary judgment in favor of defendant/appellee, Checker Motors Corporation, as against all parties. We affirm. Appellant, Gaela O’Neill, commenced the personal injury action underlying the instant appeal in November of 1983. Represented by counsel, Ms. O’Neill alleged that on November 29, 1982, she was injured when the steering wheel on a taxicab she was driving collapsed causing the cab to go out of control and strike a guard rail. The complaint alleges that Checker Motors was negligent in failing to properly construct, inspect or warn of problems with the taxi, that Checker warranted the cab as being fit for its intended purposes, and that Checker is strictly liable under Restatement (Second) of Torts § 402A (1965). On November 29, 1988 the Honorable Samuel M. Lehrer entered an order granting summary judgment in favor of defendant/appellee Checker Motors as against all parties. After trial counsel was granted permission to withdraw from representation, appellant subsequently filed the instant timely pro se appeal contesting the grant of summary judgment. Appellee initially argues that we should quash this appeal pursuant to various rules of appellate procedure. We exercise our discretion by declining to take such action because effective appellate review has not been precluded by the deficiencies of appellant’s brief. Pa.R.A.P., Rule 105, 42 Pa.C.S.A. See Hatter v. Landsberg, 386 Pa.Super. 438, 563 A.2d 146 (1989) and Bolus v. United Penn Bank, 363 Pa.Super. 247, 267 n. 2, 525 A.2d 1215, 1225 n. 2 (1987), allocatur denied 518 Pa. 627, 541 A.2d 1138 (1988) (declining to quash where effective appellate review was possible despite deficiencies in briefs as filed). We are cognizant of the fact that Ms. O’Neill has prepared the appeal brief on a pro se basis. While this court is willing to liberally construe materials filed by a pro se litigant, we note that appellant is not entitled to any particular advantage because she lacks legal training. See, e.g., Mueller v. State Police Headquarters, 110 Pa.Commw. 265, 268, 532 A.2d 900, 902 (1987). As our supreme court has explained, “any layperson choosing to represent [herself] in a legal proceeding must, to some reasonable extent, assume the risk that [her] lack of expertise and legal training will prove [her] undoing.” Vann v. Commonwealth, Unemployment Compensation Board of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985). As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 103-04, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A.; Hatter v. Landsberg, supra, 386 Pa.Superior Ct. at 440, 563 A.2d at 147-48 (1989). See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). Appellant’s claims against Checker Motors stem from allegations that the taxicab she was driving at the time of the accident was improperly constructed and unfit for its intended purposes; that Checker Motors was negligent in failing to inspect or warn of problems with the taxi; and that Checker Motors is strictly liable under Restatement (Second) of Torts § 402A (1965). In her negligence action against Checker Motors as the manufacturer or seller of a product, appellant was required to prove that the product was defective, that the defect caused the injury sustained by appellant, and that in manufacturing or supplying the product, Checker Motors failed to exercise due care. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 53, 485 A.2d 408, 424 (1984) appeal dismissed 508 Pa. 643, 500 A.2d 428 (1985). To succeed on a malfunction theory, appellant had to present a case-in-chief evidencing the occurrence of the malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction. Rogers v. Johnson & Johnson Products, Inc., — Pa. ——, 565 A.2d 751, 754 (1989). A products liability plaintiff who asserts liability due to lack of warning must prove both that the lack of warning was unreasonably dangerous and that it was the proximate cause of the accident. Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 51, 527 A.2d 140, 147 (1987). To present a prima facie case of strict liability under § 402A, a plaintiff must establish that the product was defective and that the defect caused the plaintiffs injury. Rogers, supra, — Pa. at-, 565 A.2d at 754; Sherk v. Daisy-Heddon, 498 Pa. 594, 598, 450 A.2d 615, 617 (1982). In the instant case, we have carefully reviewed the parties’ briefs and the entire record before us. As an appellate court, we may consider only facts which have been duly certified in the record on appeal. Pa.R.A.P. 1921; Button v. Button, 378 Pa.Super. 142, 145, 548 A.2d 316, 318 (1988). It is the duty of the appellant to provide a record which is sufficient to permit meaningful appellate review. Fox v. Gabler, 377 Pa.Super. 341, 346, 547 A.2d 399, 401 (1988). Appellant’s case, as presented to the trial court, is heavily flawed. The record contains no history of what occurred between the time the vehicle was manufactured and when it was made available to Metro Transportation Company. The record does not inform us about the cab’s state of repair when appellant received it, nor can • we ascertain the amount of time in which appellant was in sole possession of the vehicle, and the service record or record of the mechanical condition of the cab during that time. In sum, the record on appeal simply does not contain the documentation necessary to substantiate any of appellant’s negligence claims. 5. Taxicab Operation During Lease Period a. Lessee, before taking possession of a Taxicab shall inspect the Taxicab including testing the brakes, both foot and emergency, lights, signal lights, .and all other equipment. Lessee shall not take possession of the Taxicab if any defects are noted and should immediately report same to Lessor. Lessee's taking possession of the Taxicab shall constitute conclusive evidence of Lessee's satisfaction therewith. The second problem with appellant’s case is that when Checker Motors filed its motion for summary judgment as against all parties, appellant failed to respond as she was required to do under Pa.R.C.P. No. 1035, 42 Pa.C. S.A. In pertinent part, Rule 1035 provides: (b) ... The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. (d) ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Checker Motors’ unopposed motion for summary judgment averred that after nearly five years of discovery, appellant had produced no facts of record upon which to base any allegation of negligence, breach of warranty, or strict liability. It appears that appellant elected to rest on her pleadings as she made no response to Checker’s motion. The mere fact that a party fails to submit countraffidavits does not automatically render summary judgment appropriate. Marchese v. Marchese, 457 Pa. 625, 326 A.2d 321 (1974). Nor does the failure to file affidavits, depositions, or other materials in opposition to the moving party’ motion guarantee that the motion will be granted. Wright v. North American Life Assurance Co., 372 Pa.Super. 272, 539 A.2d 434 (1988). However, a motion for summary judgment must be granted in favor of a moving party if the other party chooses to rest on the pleadings, unless a genuine issue of fact is made out in the moving party’s evidence taken by itself. Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 660 (1984); Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977). See First Mortgage Co. of Pennsylvania v. McCall, 313 Pa.Super. 54, 459 A.2d 406 (1983) (summary judgment should not be granted unless moving party’s evidence, viewed in light most favorable to non-movant, clearly dispels existence of any genuine factual issue). Our review of the instant case, in accordance with all the above outlined standards, has convinced us that the trial court properly granted summary judgment to Checker Motors as against all other parties. Order affirmed. . An order granting summary judgment to some, but not to all, defendants in a multiple defendant suit is a final appealable order as to those defendants released from litigation. French v. United Parcel Service, 377 Pa.Super. 366, 371-72, 547 A.2d 411, 414 (1988). . The Honorable Levan Gordon of the Court of Common Pleas of Philadelphia County, Civil Division, entered an order on December 8, 1988 granting a compulsory nonsuit in favor of defendants/appellees Metro Transportation Company t/a Yellow Cab Company and Cutco Leasing Corporation. A separate appeal has been filed pertaining to that order and it will not be discussed in connection with the instant case. . Appellee cites Pa.R.A.P., Rules 2101, 2111, 2114, 2116(a), 2117, 2118, and 2119, 42 Pa.C.S.A. . Section 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer. (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Restatement (Second) of Torts § 402A (1965). Our supreme court adopted this approach in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). . Appellant leased the taxicab in question from Metro Transportation Company t/a Yellow Cab Company. We note that the lease between the parties contains, inter alia, the following language:

The opinion of the court was delivered, by Woodward, C. J. In 1865 the register of Franklin county caused an appraisement to be made of the real and personal estate which the above defendants held under a devise from their father, and assessed it with a tax of $1262.50 under the Collateral Inheritance Tax Law, on the ground that the devisees were illegitimate sons of their father when the devise took effect. On appeal to the Register’s Court an issue was framed to try the legitimacy of the devisees, or, in other words, to try the question of fact, whether the parents were married before the boys were born. This was a question for the jury, but it is complained of that the court instructed the jury, on the authority of Thorndell v. Morrison, 1 Casey 326, that cohabitation of the parents was, alone, sufficient to establish their marriage. It appears from the charge that the learned judge did very distinctly negative the plaintiff’s point, that proof of cohabitation and reputation was necessary to ground a presumption of marriage, and did lay down the law, on the authority of the above case, that continued cohabitation for twenty years, without proof of reputation, was sufficient evi dence of the marriage. Herein we think there was manifest error. The doctrine of Thorndell v. Morrison, interpreted, as all reported judgments ought to be, by the facts of the case, is that reputation and cohabitation are sufficient evidence of marriage for civil purposes, and this doctrine is consistent with our antecedent cases. This was the proposition which the court decided in that case, and if incautious language fell from the judge appointed to express the opinion of the court, it should be received with the limitation imposed by the facts. Unless this rule be observed in interpreting and applying our decisions, injustice will be done to us, and the lav/ will rapidly fall into confusion. Reading that decision in the light of this rule, it does not sustain the instructions given to the jury in this case, but it should have led the learned judge to an affirmance of the plaintiff’s points. Nor was the error harmless. Had there been evidence of reputation as well as of cohabitation, it might have been presumed that the jury based their verdict upon it notwithstanding the mistake of the judge, but there was no such evidence except by the mother, and she was successfully contradicted on this point. Whether there was a marriage or not would be a fact peculiarly within her knowledge, but whether there was a reputation of marriage was a fact to be proved by neighbors and acquaintances rather than by her. A reputation that was known only to her would be no reputation at all. Reputation consists of the speech of the people who have an opportunity to know the parties, and when the people all deny knowledge of such reputation, and allege, as several witnesses did, that the reputation was that the parties were not married, it signifies nothing that the woman permitted herself to swear that she and Stump were “ known and reputed to be husband and wife in the community in which they resided.” Reputation and cohabitation at best are only presumptive proofs, and where either of these grounds fails, the court should not allow the presumption of marriage to be built upon the other. But che court put the case to the jury, not only on the presumptive evidence of cohabitation, but on the direct proof by the mother, Jane Stump, herself. If she and Abraham Stump were ever married, I do not mean in form by a minister or magistrate, but in fact, by a mutual contract which the law would account sufficient for civil purposes, she could have told the jury when, in what place, and in what words the contract was made, for her deposition was taken, and all objections to her competency were waived. Yet all she swore on this head was that “ about thirty-one years since she went to the house of said Abraham Stump, to live with and keep house for him, under a mutual promise and agreement that they would sustain towards each other the relation of husband and wife, and that they did thus live and cohabit together.” In our opinion, this was not proof of a marriage in fact. Marriage is in law a civil contract, and docs not require any particular form of solemnization before officers of church or state, hut it must be evidenced by words in the present tense, uttered with a view and for the purpose of establishing the relation of husband and wife, and, like all other civil contracts, should be proved either by the signature of the parties or by witnesses who were present when it was made. Eor the sake of public manners and morals and to avoid scandal, it is better that such contracts should be attested by some officers of religion or by a civil magistrate, but if parties will not respect the wholesome usages of society in this regard, they should at least save their issue from the reproach of bastardy by making a contract of marriage that shall be susceptible of proof. If the contract proved be a mere hiring of a housekeeper, the adding of concubinage does not make it a marriage. And what more is the proof in this case ? The woman says she went to Stump’s house to live with and keep house for him. That was a contract for housekeeping such as women often make with widowers. But she adds that it was under a mutual promise and agreement that they would sustain towards each tho relation of husband and wife. When was this promise and agreement made ? Not when she went there, for the witnesses say she did not sleep in the same room with Stump until after the birth of her first child. If they were to sustain the relation of husband and wife from the first they should have slept together — if that relation were subsequently established, in what words was the contract formed— when was it made, and who witnessed it? On these points there was an utter failure of proof. The evidence in Hantz v. Sealy, 6 Binn. 405, went much further than in this case, and yet it was adjudged insufficient. Not only did the direct proof fail to establish a marriage, but it tended strongly to disprove it. After the death of Abraham Stump, his reputed wife, by the advice of counsel, obtained an Act of Assembly, dated 28th April 1854, for legitimating these two defendants, who are described therein as “ illegitimate sons and only children of Abraham Stump and Jane, his wife, who were born before the marriage of their said named parents.” Now this declaration of the illegitimacy of the defendants would not conclude them unless it could be shown, which was not shown, that the legislature made it at their instance ; but it tends strongly to contradict the testimony of Mrs. Jane Stump. She says that after the birth of the sons the marriage ceremony between her and their father was performed, and that afterward, by advice of counsel, they had the Act of Assembly passed, legitimating the children. “ They,” that is, she and Abraham Stump, had the act passed. Then it was an admission by each of them that they were not married when the boys were born. And the marriage ceremony, openly performed after the birth of the sons, was a further admission to the same effect. And both facts were direct and conclusive contradictions of her pretence that the marriage relation had been established when she went to keep house for Stump or at any time prior to the birth of the sons. Though she was mistaken in attributing the act to her husband, as it did not pass till near a year after his death, yet that it was passed at her instance is no doubt true, which makes the admission more personal. Thus the direct, no less than the presumptive evidence, failed to establish the marriage of the parents before the birth of the sons, and if not born in lawful wedlock they were illegitimate. The Act of Assembly removed the taint from their blood for all ordinary purposes, but not so as to exempt their estate from the Collateral Inheritance Law, which in terms includes lineal descendants not born in lawful wedlock, as well as collateral heirs or devisees. Had the legitimating act been passed before the devise took effect, the devisees would, I take it, have held the estate exempt from the. Collateral Inheritance Law, for they would have been as capable in law of taking as if they had been born in lawful wedlock, but their estate vested at the death of the testator, which was in May 1853, and if illegitimate then, the Commonwealth’s right to the tax vested then also. The legitimating act passed the next year contains no word to release the Commonwealth’s vested right, and that it can have no such retroactive effect, proprio vigore, is shown by the case of Galbraith v. The Commonwealth, 2 Harris 258, where a similar act, passed the next day after the death of the decedent, was held insufficient to take the estate out of the Collateral Inheritance Law. The other assignments of error have not been sustained. I have discussed the case more fully than the precise questions upon the record would have required, but not more fully than was necessary to present it in all its aspects. The judgment is reversed, and a venire facias de novo is awarded.

The opinion of the court was delivered, February 7th 1870, by Sharswood, J. — The word “ issue” in a will means primá. facie the same thing as “ heirs of the body,” and in general is to be construed as a word of limitation, but this construction will give way, if there be on the face of the instrument sufficient to show that the words were intended to have a less extended meaning, and to be applied only to children, or to descendants of a particular class or at a particular time. There is less reluctance, indeed, to narrow the primff facie meaning of the word “ issue” than of the words “ heirs of the body;” because these latter words are proper technical words of limitation, while “issue” is not, when used in a deed; and accordingly, in a will it is to be construed as a word of purchase or of limitation, as will best effectuate the intention of the testator gathered from the entire instrument. This was well expressed long ago by Chief Justice Willes: “Why does the word ‘ issue’ in a will signify the same as ‘ heirs of the body ?’ Only because it may be supposed that the testator, who was ignorant of the law, intended it should have that construction. It does not, therefore, ex vi termini create an estate tail in a will as ‘ heirs of the body’ do in a deed, but only when it appears to be the intent of the testator that the word should have that construction, or, at least, that it does not appear that the intent of the testator was .otherwise:” Ginger v. White, Willes 348; Quiddington v. Kerne, 1 Lord Raym. 303; Doe on d. Cooper v. Collis, 4 Term Rep. 294; Slater v. Dangerfield, 15 M. & W. 263; Lessee of Findlay v. Riddle, 3 Binn. 139; Clark v. Baker, 3 S. & R. 470; Paxson v. Lefferts, 3 Rawle 59; Hoge v. Hoge, 1 S. & R. 144; Abbott v. Jenkins, 10 S. & R. 296. It is a position not open to dispute, then, that if it appears, either by expression or by clear implication, that by the word “ issue” the testator meant “ children” or issue living at a particular period, as at the death of the first taker, and not the whole line of succession, which would be included under the term “ heirs of the body,” it must necessarily be construed to be a word of purchase; and the rule in Shelly’s case can have no application. This does appear in the will now before us, both expressly and by clear implication. The testator gives to his wife and daughter, or in case of the death of one of them, to the survivor, all his real estate during their natural lives, and in case his daughter “ shall depart this life leaving lawful issue,” then his real estate to descend to such lawful issue, their heirs and assigns for ever. He immediately adds these words: “ And further, it is my will, that in case my daughter shall depart this life before her mother, leaving lawful issue, then such issue shall enjoy and inherit their mother’s right from the time of her death.” No declaration could well be more express to show that by issue he meant children; for they were to inherit and enjoy “their mother’s right” from the time of her death. The devise over, which is relied on as enlarging the estate of the joint devisee to an estate in tail, follows this clause: “ But in case my daughter shall depart this life not leaving lawful issue as aforesaid, it is then my will that my executors or the survivors of them shall sell, &c.” “Lawful issue as aforesaid,” can only mean such issue as by the clause immediately preceding were to enjoy and inherit “ their mother’s right” — of course, children. This clear expression of intention is abundantly confirmed when we examine the terms of the whole disposition. The remainder to the issue is with superadded words of limitation in fee, to their heirs and assigns for ever. This would certainly be insufficient if followed by a devise over after an indefinite failure of issue. But it is a very significant circumstance as bearing upon the question of intention, if we shall find that the testator contemplated that the devise over should take effect only on a failure of issue at a particular period — the death of tfie first devisee. Here was an estate in fee, with an alternative limitation over also in fee. This seems necessarily to be implied from the absolute direction to his executors or the survivor of them to sell and convert the estate into money in that event. It was to be done^durin^ the lifetime of his executors or the survivor, and as he expressly provides, not until after the death of his wife. They were to distribute the proceeds between the children of his own and his wife’s deceased sisters or their lawful issue. He certainly could not have had in his mind an indefinite failure of the issue of his daughter, which might be postponed to a very remote period. The nature of the devise over has always been looked at to ascertain whether a definite or indefinite failure of issue was intended: as where the ulterior devises confer estates for life only, or when they are only to take effect in case the devisee then be living: Pells v. Brown, Cro. Jac. 590; Roe and Sheerer v. Jeffery, Term Rep. 589. In the leading case of Eichelberger v. Barnitz, 9 Watts 450, Mr. Justice Sergeant states the same thing as an exception to the general rule that a devise over of land on death without lawful issue, or leaving no lawful issue, means an indefinite failure: “ If the devise over be of a life estate, which implies necessarily that such devisee over may outlive the first estate.” The reason is very clearly stated by Mr. Smith: “Because it is not likely in such ease, that the testator was contemplating an indefinite failure of issue, as that might, and most probably would not happen until many years after the death of the object of the ulterior limitation:” Smith on Executory Interests 559. “The same construction,” he adds, “ is adopted, when, on failure of issue, the property is devised in trust for the payment of debts, because it could not be supposed that the testator would provide for the payment of debts, on an indefinite failure of issue, which might not happen for two or three hundred years: Id. 560, for, which he cites French v. Caddell, 6 Bro. P. C. 58; and Wellington v. Wellington, 4 Burr 2165; Fearne 450, n. 6. An estate tail may, no doubt, be subject to an executory devise over on some condition or event, to take effect in abridgment or derogation of it: 1 Preston on Abstracts 401: though such an executory devise can be destroyed by a common recovery suffered by the tenant in tail, which enlarges his estate into a fee, and excludes all subsequent limitations, whether in remainder or by the way of springing use or executory devise: 2 Preston on Estates 460; 1 Preston on Abstracts 401; 3 Id. 130; 4 Kent’s Com. 13. This destructibility deprives any limitation after an estate tail of all objection on the score of tending to create a perpetuity, however remote may be the event on which it is limited to vest: Lewis on Perpetuities 663. A devise over after an estate tail on a definite failure of issue is not an executory devise, but a remainder; for it takes effect, not in derogation or abridgment of the preceding estate, but on its regular determination, though only in the event of the determination of the estate upon the death of the tenant. In this respect it resembles somewhat the remainder to trustees to support contingent remainders, which is limited only on the determination of the preceding life estate by forfeiture, or otherwise than by the death of the tenant. This remainder has been.authoritatively settled to be vested: Smith d. Dormer v. Parkhurst, 18 Viner’s Abr. 413; 4 Bro. P. C. 353; though the principle of that determination has been vei’y seriously questioned: Smith on Executory Interests 116. There is, however, not much importance in the distinction as to the limitation over after a definite failure of the issue of tenant in tail, since, call it what you will, executory devise, or vested or contingent remainder, it can be barred by a common recovery, or by a deed duly executed to dock the entail, under the Act of Assembly of January 16th 1790, 3 Smith 388. The fact, then, that the devise over is after a definite failure of issue, may not be sufficient to narrow the construction, where the words of limitation are “heirs of the body,” or where the word “ issue” is clearly used as a word of limitation, as in University of Oxford v. Clifton, Ambler 385; Doe d. Cannon v. Rucastle, 8 Common Bench 876. But when this is not the case, that it shall enlarge an express estate for life into an estate tail, seems opposed alike to reason and the decided cases. I am aware of what is said in Price v. Taylor, 4 Casey 95, but I think it must be regarded as an obiter dictum merely. The case did not call for it. It was a limitation worded in a vei’y peculiar manner: for life, provided the devisee had no issue, but if she did leave issue at her death, then in fee simple to her heirs for evex’, and in case she had no issue at her death it was to go over. An estate tail might well have been implied from the first clause standing by itself; for if she was only to have a life estate if she had no issue, and that could not be ascertained till her death, what other estate could she have in the meantime, but an estate tail or in fee ? That case, as an authority, must rest on its own circumstances — on the words of that particular will. Criley v. Chamberlain, 6 Casey 161, is relied on to sustain the same point, but there the first limitation was in fee, and the case has no application. On the ther hand I will cite a few of the decisions, confining myself to those which seem to be in point. Plunket v. Holmes, 1 Sid. 47, 1 Lev. 11, there was a devise to A. for life, and if he die without issue living at his death, remainder in fee. It was held to be an estate for life with contingent remainder over. Doe and Barnard v. Reason, cited 3 Wils. 242: Devise to A. for life, on her decease to such issue of her body, who shall be then living, and in case my said niece shall die without issue of her body then living, then over: held to be an estate for life in A. Bennett v. Lowe, 7 Bingham 535, devise to D., L., V. and S. (females), and in case any of them die leaving a daughter or daughters, the share to go to each daughter in seniority; but if any of them, D., L., V. and S., should die without issue, in the lifetime of M., C., A. and W., the shares of her or them so dying to go to F. and others in succession; all the rest and residue of the devisor’s estate to go to D.: Held, that D., L., V. and S., and their daughters, took estates for life, and D. a remainder in fee in the whole. Mr. Smith has well expressed the result of the cases in England: “ When the limitation over is to take effect, not on an indefinite failure of issue of the prior taker, but on a failure of children only, or on a failure of issue within a given time; then the limitation over will not raise an estate tail by implication in the prior taker, but he will have a life estate with a contingent remainder over, or a life estate with a limitation over of a springing interest, or a fee with a conditional limitation over, as the case may be:” Smith on Executory Interests 301. Our own cases, with the exception of Price v. Taylor, utter the same voice. We have the opinion of Edward Tilghman, a great authority upon such subjects, of whom Judge Duncan said, that “ he could untie the knots of a contingent remainder or executory devise as familiarly as he could his garter9 S. & R. 369. This opinion was not arguendo as counsel, but furnished by request as amieus curice in Lessee of Findlay v. Riddle, 3 Binn. 139. That was the case of a devise to John for life, if he dies leaving lawful issue, to his heirs as tenants in common and their respective heirs and assigns, and if he die without leaving lawful issue, then to his brother James. The devise over being without words of limitation, as the law then stood, was for life. Mr. Tilghman said: “It is fatal to the idea of an estate tail that indefinite issue of John were not contemplated by the testator — indefinite in point of time —on the contrary, issue at John’s death then alive.” The decision of the court was accordingly, that John had only a life estate. In Carter v. McMichael, 10 S. & R. 429, Chief Justice Tilghman said: “ There are no expressions, which limit the failure of heirs male of the body of Edwards to the time of his death. If there had been the case would have been different.” In George v. Morgan, 4 Harris 95, Bell, Justice, said: “The words relied on (default of such issue) used in a will in reference to an estate in land, operate as a further limitation, unless there be something in the context to show that the testator contemplated a failure of issue at a particular period, and not an indefinite failure.” And see Wynn v. Story, 2 Wright 166; Hoge v. Hoge, 1 S. & R. 144; Abbott v. Jenkins, 10 S. & R. 296; Caskey v. Brewer, 17 S. & R. 441; Langley v. Heald, 7 W. & S. 96; Turner v. Fowler, 10 Watts 825; Covert v. Robinson, 10 Wright 274. It seems to have been supposed, that even if the word “issue” was intended to be “ children,” still, as there were no children of the daughter living at the time of the devise, it shall be construed as a word of limitation, and Wild’s Case, 6 Rep. 1606, is cited and relied on. But this must have arisen from an entire misapprehension of that case. Land was devised to A. for life, remainder to B. and the heirs of his body, remainder to Rowland Wild and his wife, and after their decease to their children. Rowland Wild and his wife then having issue, a son and a daughter. It was resolved, that Rowland and his wife had only an estate for life, with remainder to their children for life, and no estate tail. In the course of the argument this diversity was resolved for good law, that “if A. devise his land to B., and to his children or issue, and he has no issue at the time of the devise, that this is an estate tail; for the intent of the devisor is manifest and certain, that his children or issue shall take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they shall not take, for this was not his intent, for the gift is immediate: wherefore, such words shall be taken as words of limitation.” But in the case before us the devise was to the daughter for life, and to her issue or children after her death. As Mr. Powell says: “ Where a limitation is to a parent for life, and to his children by way of remainder; there seems to be no ground whether there are children or not, for holding the parent to be tenant in tail:” 2 Powell on Devises, n. It was accordingly so held by this court in Cote v. Vonn Bonnhorst, 5 Wright 243; see Lantz v. Trusler, 1 Wright 482; Haldeman v. Haldeman, 4 Wright 29. Our conclusion then is, that Susanna Bonsall, the daughter of the testator, took an estate for life, with remainder to.her children in fee, with an alternative limitation over in the event of her dying without issue living at her death. Judgment reversed, and now judgment for the defendant on the case stated.

The opinion of the Court was delivered by Huston, J. Most clearly there was no authority to enter five judgments for the several instalments mentioned in said bond, whatever may be the meaning or effect of the words “ after filing one or more declarations to confess judgment or judgments” against me for the amount of the said bond. This cannot be tortured to mean that the conditions are what the judgments are to designate and for which judgments are to be entered. The bond is conditioned to saw a certain number of logs to be furnished by Bush at each period. Judgment might have been entered for the amount of 1800 dollars, that is the bonds and to that the warrant of attorney referred. But then no execution could issue until on a scire facias and trial a jury had found that Bush furnished the logs in proper time, and that Adams did not saw them; and further found what was the amount of damage to Bush on that account. There is no such bond as is recited in the several declarations and no such warrant of attorney as is recited in the confession of judgment. I admit that a judgment confessed by an attorney purports to be the act and decision of the court, and this though the court never heard of it. If it is suffered to remain unquestioned and execution issues, and defendant’s land is sold, the purchaser will, by an act of assembly, hold the land though judgment may be reversed on error. It is important then, for a defendant to make objection as soon as he knows of the judgments, and the courts in this state have always inquired into the regularity and validity of such judgment. Sometimes the judgment is opened, sometimes an issue is directed, and if necessary an amendment in form may be made where there is any thing by which to amend. But when no bond can be produced and no obligation, or when no warrant of attorney exists or none authorising such judgment, the court cannot amend; and a judgment entered without authority must be void and ought to be vacated. In this case the bond express^ states that the lien of this bond is to be only on the mill and mill privilege of said Adams. Now, on an execution issued for the instalment called 600 dollars, and issued on the praecipe of Bush himself, there was a levy on a tract .of land sold by Adams, after 13th March 1833, and before issuing said execution. This may have been mistake, or it may have been an attempt to do what was neither legal nor fair. The court had no right to order a judgment, if they did consolidate, to have a retrospective effect; they had no right to order a general judgment to bind all lands, when the agreement of the parties was, that it should be a lien only on specific property. This court does not generally sustain a writ of error unless on a final judgment of the common pleas.- But where that court makes an order or decision which does or may, if not redressed, operate to the injury of a party, error lies. 3 Binn. 273. 432. Now, here, if there be no interference of the court, the defendant and the purchaser from him, may be irreparably injured, if land not bound by the agreement of the'parties is sold under this illegal and unauthorised judgment. Another matter may be mentioned. Where several suits are brought by the same plaintiff on different bonds or notes, courts never have consolidated them at the instance of the plaintiff; consolidation is by consent or at the instance of the defendant; and then not of course; for it will not be directed if any injury is thereby done to the plaintiff. 1 Tidd (old edition) 441. 556. Consolidation of void suits is unknown in the law. The decree of the court in ordering these five judgments to be consolidated, and ordering one judgment to be entered on the whole penalty of the bond, as of 13th March 1833, is reversed; and -the judgment so ordered as well as the five separate judgments before mentioned, are declared null and void.. Judgment reversed.

Per Curiam. This, so far from being a case of retained possession, is one in which delivery'preceded the sale. Properly speakings; there was not a sale, but a contract to sell at a future day ; and th| delivery in the meantime was a loan subject to be turned into- a sal^ by compliance with certain conditions. The plaintiff had received the possession as a purchaser, and it cannot be denied that the property had been vested in him. The consideration of his contract to sell to his bailees was their assumption, as principals, to pay his debt contracted for the purchase money. He had, in fact, purchased for their accommodation. That, however, was an arrangement to which his own vendor was not a party, and did not extinguish the original liability to him. The plaintiff continued to be debtor as to his vendor, and why not owner as to his bailees and their creditors. He was so by his contract of purchase; and by his contract to sell he was to cease to be so only at a time named. There was no touch of fraud in this; and the title must be taken to have been according to the ostensible purport of the contract. The transaction was all bailment with a contingent contract to sell, on the principle of Myers v. Harvey, 2 Penns. Rep. 481. The plaintiff was, therefore, entitled to recover. Judgment affirmed.

Opinion by Henderson, J., Replevin is the appropriate action whenever a person claims goods in the possession of another, without regard to the manner in which the possession was obtained. The question is one of property, either general or special, and right of possession. The act of March 21, 1772, 1 Sm. L. 870, provided a new practice to work out the rights of landlords and tenants in the case of a replevin after a distress for rent, but this does not confer upon the court the power as to the action itself. The Act of April 19, 1901, P. L. 88, does not except from its operation any action of replevin distinguishable from others because of the particular facts out of which it arises. None of its sections suggests a substantial implication that it was not intended to apply to writs issued by tenants against landlords in cases of seizure for rent. The title; the provisions for giving a bond before the writ goes out; for the service; for the admission of intervening parties ; for the filing of a declaration under oath and an affidavit of defense clearly indicate that the statute was intended to provide a convenient practice under which the righfs of all parties interested in the property might be worked out. It is provided by the sixth section that the declaration and affidavit of defense shall constitute the issue under which the question of title and right of possession as between all the parties in interest shall be determined by a jury. The same section confers upon the court the power to take a conditional verdict where any party is found to have only a lien upon the goods and to enforce the same in accordance with equitable principles. The twelfth section authorizes courts of common pleas to make rules governing the proceedings under the act. These provisions are broad enough to cover actions between tenant and landlord and make possible an expeditious and practical determination of issues raised by the pleadings. If the mode of procedure and logical order of the introduction of the evidence be regarded, it will not be found to be more difficult to determine the rights of the parties in an action of replevin after a distress for rent than in a similar action where a bailment of the property is involved. What, then, must the plaintiff set forth and what is the order of procedure ? The statute requires that the declaration shall consist of a concise statement of the plaintiff’s demand, setting forth the facts on which his title to the goods and chattels is based. This has evident reference to the facts relating to his acquisition of the property and conditions which entitle him to its possession. Possession usually follows title and an affirmation of absolute ownership or a qualified property with the circumstances of such qualified proprietorship would ordinarily be sufficient to present a prima facie case in favor of the plaintiff. If the plaintiff’s title be clearly and fully set forth with an averment of wrongful dispossession the defendant must meet this prima facie showing by setting forth in his affidavit of defense facts sufficient to justify his retention of the property. This is not only the logical method of forming an issue and of developing the grounds upon which a verdict must be based but it is the express requirement of the act. Within fifteen days after the filing of the declaration the defendant must file an affidavit of defense setting up the facts, denying the plaintiff’s title and showing his own title. The burden is placed upon him of showing either that the ownership set up by the plaintiff does not exist or that if the plaintiff be the owner that he is nevertheless not entitled to possession by reason of a lien or other facts sufficient to justify the defendant’s possession. It is not necessary that the plaintiff anticipate the defense which may be set up and traverse it; to do so would tend to confusion and reverse the logical order of proof. The plaintiff may not, and is not bound to, know what justification will be presented by the defendant. If he set forth an absolute or qualified property and the facts upon which his title is based, the defendant must reply by averment of matters sufficient to establish his title or to justify his possession. An issue is thus made up under which the court and jury will determine the rights of the parties. If the plaintiff in his declaration suggest the reason for the defendant’s course of conduct in taking the property the order of proof is not thereby changed. He has gone further than the exigency of the situation required and it is not his duty to reply to the position which he believes the defendant will assume. By so doing the declaration would become an affidavit of defense to an affidavit of defense and the procedure prescribed by the act of 1901 would be reversed. The plaintiff has not admitted in his statement that the seizure was a distraint for rent. There is merely the averment that, so far as the plaintiff has been able to understand, the defendants justify their action on the ground that the plaintiff was a tenant and there was rent in arrear. The assumption of the demurrer that the proceeding was a distress for rent does not bring the fact of a seizure for rent into the plaintiff’s statement; nor can the sufficiency of the statement be thus attacked. There was nothing in the prsecipe or writ to show that the defendants were proceeding on a seizure for rent nor do the references to the acts of the defendants in the statement and amended statement amount to an assertion that the defendants had distrained the goods. They are at most expressions of surmise or belief that the defendants claim to have so acted. If it be conceded that the statement originally filed was defective in that it did not set forth the title under which the plaintiff claimed that objection was met in the amended statement where the title and the circumstances under which the property was held by the plaintiff were sufficiently set forth. Inasmuch, then, as a good title was averred and a wrongful seizure set forth, the plaintiff was entitled to an affidavit of defense presenting facts sufficient in law to entitle the defendant to a retention of the goods. This conclusion disposes of the case without a consideration of the effect of a payment by the plaintiff on the ground rent charge. The judgment is reversed, the demurrer is overruled and a procedendo awarded.

Opinion by Mr. Chief Justice Horace Stern, The jury having found defendant, Bichard J. Nasuti, guilty of the crime of arson, the trial court, and the Superior Court on appeal, in a unanimous opinion by Judge Hirt (180 Pa. Superior Ct. 279, 119 A. 2d 642), affirmed the conviction. For a conviction in an arson case three facts must be established: (1) that there was a fire; (2) that it was of incendiary origin; (3) that the defendant was the guilty party. The questions involved in the present appeal relate to the second and third of these requirements, appellant claiming that, as to the second, the court erred in admitting expert testimony to prove that it was an incendiary and not an accidental fire, and, as to the third, that the proof was insufficient to warrant a finding that the defendant had committed the crime. Defendant, together with his wife, operated a restaurant at 1338 West Columbia Avenue, Philadelphia, a small room 16 to 18 feet wide and 30 to 32 feet in length, being the easternmost of ten stores on the first floor in the Hardt Building at the Southeast Corner of Broad Street and Columbia Avenue. It was not apparently a profitable enterprise, at least defendant himself did not draw any salary, his wife took $50.00 a week out of the receipts, and that was the total they received from the business. Their lease was for five years dating from August, 1951; the fire occurred approximately seven months thereafter. Sergeant Walsh, a patrolman then on duty, walked past the restaurant at about 12:55 o’clock on the early morning of Monday, March 17, 1952. As he did so he almost collided with an unknown man who came out of the door carrying a small cardboard box. Walsh looked into the restaurant window and saw defendant and a woman standing there with their overcoats on. He positively identified defendant whom he had known as the proprietor and had seen off and on for several months in the restaurant; he did not identify the woman. Continuing on for a few blocks he heard fire engines and followed them back to the restaurant which he reached at about ten minutes or a quarter after one o’clock. It was then “a mass of flames — everything was aflame; flames were shooting out the side, flames were shooting a couple of stories high.” Captain Hassett was the commanding officer of an engine company which was called to the fire at 1:07 A.M. and arrived at the restaurant at 1:10 A.M. He testified that it took three other engine companies, two truck companies, and two battalion chiefs, with the use of 6 hose lines pouring 12,000 gallons of water on the fire during a period of twenty minutes merely to black out the visible flames, and it took a total of an hour and twelve minutes to finally put out the fire in these small premises. Hassett said that when he arrived the bulk plate glass window on the front had blown inward, the windows on the east wall had been broken out by the heat, “the entire inside of the restaurant was just one sea of flames” which “were shifting out those windows to a height of approximately 20 to 30 feet.” The only food contained in the place was a little ice cream in a container in the refrigerator, a 6-ounce piece of bologna, and half a pound of spareribs. After giving this testimony Hassett was questioned concerning his qualifications as an expert. It appeared that he had been in the fire department for 14% years except for three years’ service in charge of the Marine Corps Fire Department during the war. He had attended the Philadelphia Fire School, the Philadelphia Officers’ Class, and the Fire School of the City of Wilmington, North Carolina; he had also taken three semi nars in arson investigations at Purdue University and one at New York University. He was then asked the question: Considering that there was no fire at the restaurant at five minutes of one, that the alarm came in at seven minutes after one, that he arrived at the fire at ten minutes after one, that he then found the conditions as he had described them — the sea of flames, the plate glass window collapsed, the side windows broken out, the flames licking up the side of the building 20 to 30 feet, the fact that 12,000 gallons of water were required by three companies to blacken the flame, the extent of the damage within the restaurant, the fact that he found a rolling mass of flame in the center of the restaurant although there were no objects burning there — what in his opinion was the origin of the fire? The question was objected to by counsel for defendant but allowed by the court. The witness answered that in his opinion the fire had been “accelerated; it was not the normal type of fire for that sort of occupancy” and was of incendiary origin; he gave in detail the reasons which led him to this conclusion. He admitted that there was no physical evidence present of any incendiary or explosive material but stated that any such material would have been completely consumed in the fire as he observed it without leaving any trace detectable by smell or otherwise. Captain Gallagher, who had been on the force of the Fire Department of the City of Philadelphia for 39 years and was then an Assistant Fire Marshal in the Department, and whose function it was to investigate fires of undetermined origin, testified that he came to the restaurant at 8:30 o’clock on Monday morning, which was some seven hours after the commencement of the fire, and he carefully examined all the burned furniture and the various items of debris. He gave a graphic picture of the complete wreckage. He was asked, as an investigator for the Fire Marshal’s office and as a person of such long experience in fighting and investigating fires, what his opinion was as to the origin of this fire, taking into consideration his examination of the restaurant and the debris and, as he himself added, “the time element,” that is to say, the few minutes in which the fire got under way. The question was objected to by counsel for defendant but was allowed by the court. Gallagher answered that in his opinion the fire was of incendiary origin, that “a fire of this type could not get such an acceleration without some other process besides what was in there, . . . some material that would activate that fire, . . . material or flammable liquids.” This witness also testified that he had talked to defendant a few days after the fire and defendant had stated to him that there had been no inflammable goods on the premises that would create a fire, that the restaurant had been closed at three o’clock that Sunday morning, that they usually opened around four o’clock on Sunday afternoon but on this particular Sunday his wife was sick so he came there at about two-thirty or three o’clock in the afternoon and put a sign in the window stating he would not be there to open up at four o’clock; he claimed that the reason there was so little stock in the store was that the business had been good on Saturday night and also because he kept a lot of food in his home and took it back and forth to the restaurant as needed; he further told the witness that he had $6,000 of insurance on the contents of the restaurant. Defendant presented no testimony, but relied on a request for a directed verdict. His motions for a new trial and for arrest of judgment were denied by the court. In an arson case the corpus delicti consists of a willful and malicious burning, that is, a fire of incendiary origin. That the corpus delicti can always be proved by circumstantial evidence is unquestionable. As to whether the evidence in the present case was sufficient to establish the corpus delicti, little can be gleaned from other cases since each must depend upon its own facts. Here the circumstances all indicated that this was not an ordinary fire. It could not have commenced before five minutes of one, the alarm was given at seven minutes after one, and when Captain Hassett arrived on the scene at ten minutes after one the premises, although containing comparatively little equipment, were in an extraordinary state of blaze. It is not necessary to recite again the testimony of the witnesses in regard to the strange rapidity of the conflagration as well as all the other facts hereinbefore set forth. Two qualified experts testified that in their opinion the fire was of incendiary origin. Defendant objected to the admission of this expert testimony on the ground that it purported to answer the ultimate question which it was the function of the jury to decide. This is an obvious misconception in that the ultimate question for the decision of the jury was not whether the fire was of incendiary origin but whether defendant was guilty of the perpetration of the crime. No reason is or can be advanced why the introduction of expert testimony in connection with the proof of the corpus delicti in arson cases should be governed by any different rules than those which apply in prosecutions for other crimes (see 4 Am. Jur. 108, §52). Thus, in murder cases for example, it is common practice to receive expert medical opinion to establish that the death of the victim was the result, not of natural causes, but of a criminal act, as, perhaps, that the deceased died of suffocation caused by strangulation, or as the result of bullet wounds in vital areas. Expert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience. Certainly laymen could hardly be expected to have knowledge in regard to various types of fires and the difference in the nature, violence and intensity of flames resulting from the burning of inflammable liquids or other materials as contrasted with the burning of a wooden counter or hair upholstery, differences in the rapidity of such fires, sufficiency of the heat generated to cause the cave-in of a bulk window, the fact that where inflammable liquids are consumed or being burnt their presence cannot be detected by the sense of smell. Indeed, the very absence of any trace of inflammable liquids on the premises, which was one of the main points relied on by defendant, amply justified the introduction of expert testimony to establish that this did not overcome the significance of the other indications of the incendiary origin of the fire. In short, while in some arson cases the testimony may not need any supplementation by expert opinion, other such cases clearly justify its admission: 2 Wharton’s Criminal Evidence (12th ed.), 341, §517. The present is such a case, and it may be added that Captain Hassett and Captain Gallagher were extraordinarily well qualified by their unusually long experience in fighting fires and investigating their causes. Of course the jury were not obliged to accept the opinion evidence of these witnesses and the learned trial judge so told the jury, affirming a point submitted by defendant that “It is the exclusive function of the jury to determine under all the evidence whether this fire was of incendiary origin. The jury is not necessarily bound to believe the opinion of the fire marshal as to the cause of the fire in the absence of actual physical evidence of the incendiary origin of the fire.” This brings us to the question as to the proof of defendant’s guilt. Such proof, like that of the corpus delicti, may also be established by circumstantial evidence, especially in arson cases: Commonwealth v. DePetro, 350 Pa. 567, 577, 39 A. 2d 838, 842, 843; Commonwealth v. Margie, 165 Pa. Superior Ct. 84, 87, 68 A. 2d 194, 196. It was not necessary for the Commonwealth to produce direct evidence by an eye witness that defendant started the fire. He was the only person in immediate control of the premises; he was seen there in the wee hour of the morning when no object or duty of business could have called him there and within a very few minutes before the outbreak of the fire; customers had been warded off by the sign placed in the window; if, as the jury must have concluded, the fire was of incendiary origin, he alone could have had any interest in the occurrence. Of course it is possible that each and all of these circumstances might have been explained by defendant, but they were clearly sufficient to go to the jury on the question of his guilt. True, it does not appear that there was any over-insurance of the fixtures but the business apparently had not been a very profitable one, the lease still had over four years to run, and the conversion of the equipment into cash proceeds of the insurance policies might well have appeared desirable: cf. Commonwealth v. Mowad, 136 Pa. Superior Ct. 537, 545, 546, 7 A. 2d 596, 599. It is not necessary, however, to speculate as to a possible or even probable motive since it is elementary that, while motive may be an important factor, it is not incumbent on the Commonwealth, in order to make out a case, to prove the existence of any motive, much less of an adequate one: 14 Am. Jur. 786, §27. All that is required is that, the evidence being circumstantial, the circumstances proved should be such as reasonably and naturally to justify an inference of the guilt of the accused, and of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt: Commonwealth v. Marino, 142 Pa. Superior Ct. 327, 334, 16 A. 2d 314, 317; Commonwealth v. Bausewine, 354 Pa. 35, 41, 46 A. 2d 491, 493; Commonwealth v. Carey, 368 Pa. 157, 163, 164, 82 A. 2d 240, 242; Commonwealth v. Kloiber, 378 Pa. 412, 427, 106 A. 2d 820, 828. The evidence here, as the Superior Court properly held, adequately satisfied that requirement. The judgment of the Superior Court is affirmed. Commonwealth v. Sheffer, 218 Pa. 437, 67 A. 761; Commonwealth v. Gardner, 282 Pa. 458, 464, 128 A. 87, 90; Commonwealth v. Danarowicz, 294 Pa. 190, 194, 144 A. 127, 128; Commonwealth v. Lettrich, 346 Pa. 497, 502, 503, 31 A. 2d 155, 158; Commonwealth v. Smith, 111 Pa. Superior Ct. 363, 366, 170 A. 331, 332. Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A. 2d 95, 97; Commonwealth v. DePetro, 350 Pa. 567, 577, 39 A. 2d 838, 842; Commonwealth v. Wentzel, 360 Pa. 137, 143, 61 A. 2d 309, 312; Commonwealth v Margie, 165 Pa. Superior Ct. 84, 87, 88, 68 A. 2d 194, 196.

The opinion of the court was delivered by Armstrong, J. Henry L. Patterson was a common carrier on the Pennsylvania Canal and Railroad. In the fall of 1841 he received on board his canal boats 1577 blooms for Robert Moore, to be delivered at Pittsburgh. The next season, 1842, it was discovered that 430 of the blooms never reached the consignee of Moore, and were never delivered for him; but when at Patterson’s wharf, at Hollidaysburg, his clerk changed the manifest and forwarded them for Hileman & Hammond, who had no control over them. The law holds every common carrier intrusted with goods as responsible at all events for every injury arising in any other way but from the act of Providence or the common enemy. On the facts stated Patterson was unquestionably liable for the amount of blooms not delivered, from which he could only be relieved by a release or other sufficient discharge. In defence, the counsel of Mr. Patterson offered in evidence the deposition of William Nelson, his clerk. It was objected to by the plaintiff on the ground that he was the agent of Patterson, who was sued for negligence, and to whom he might be liable. The admission of this was the first error assigned. His situation as clerk merely, did not render him incompetent; and there was nothing in the evidenoe fixing such a liability on him as would justify his exclusion. This error is not sustained. The defence set up was that in the summer of 1842, Robert Moore paid the balance of freight due on the blooms actually delivered ; and that in that year an arrangement was made between defendant's clerk, and a minor son of Moore, and Hileman & Hammond, that Moore should have other blooms at Water Street in lieu of 430 missing. _ To make this proof the deposition of William Nelson, the clerk, was admitted. It was objected by the plaintiff that conversations between Joseph and Hammond, and the arrangement between them, were not evidence to affect Robert, unless a previous authority was shown in Joseph to act, or that his acts were afterwards ratified by his father. The act of an agent, within the scope of his authority, is the act of the principal. But “ 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 burden of the proof lies on him to establish the agency and the extent of it:” Hays & Wick v. Lynn, 7 Watts 525. Had Joseph been first proved to be the agent of his father for this purpose, then his acts, and the arrangement referred to with Hammond, might have exonerated Patterson, if made on proper consideration and carried out in good faith. “ But before such facts can be given in evidence, the fact of agency must be proved.” Yet, as courts cannot always direct the order in which evidence shall be offered, it may have been thought that proof of ratification would follow (and this remark may be applied to the second error assigned). Acts alone are not proof of agency. If they were, every man’s business might be interrupted or deranged by the interference of strangers. There is not a word in Nelson’s deposition to show that Robert Moore was cognisant of what, his son had said or done. The court say, in answer to plaintiff’s 2d point, “ There is not evidence to show that there was any authority in Joseph Moore to authorize a release, nor is there anything said or done by him to be treated or regarded as such release that would be binding on Robert Moore, unless the evidence satisfies you that Robert Moore afterwards ratified what Joseph did, and that he agreed to take the blooms at Water Street, as represented by Nelson in his deposition, and to release Patterson from his liability. Patterson was clearly liable for the 430 blooms when Joseph went to him. There is not evidence to show that he went with authority to release the liability. Does the evidence show that he afterwards ratified an act of his son releasing him ? This is a question for you.” This answer affirms the position taken by the plaintiff in this point, as to the authority of Joseph to release; and puts the whole on the question of subsequent ratification by his father. Now, where is the evidence of ratification ? It was proved that Robert Moore paid Patterson the freight on 1147 pieces which were delivered. This he had a right to do. It was at his option to set up the damage for non-delivery of blooms against the demand for freight, or to pay it, and make his claim for the blooms a distinct matter, to be adjusted afterwards. The receipt of Mr. Patterson for freight can have no effect one way or the other, beyond what is expressed on its face. Nelson says he “ never had any conversation with Mr. Moore, it was all with his son.” There was not only no proof of precedent authority to the son, but there was no evidence that the conversation between him and Hammond and Nelson was ever communicated to the father, nor of any action of the father pursuant to such conversation. And John T. Horrell proves that “ Joseph Moore did not claim any iron at Water street for his father when he came back, as left there for him by Hileman & Hammond, in place of the 430 lost — had no orders from them at any time to ship any blooms for Mr. Moore, lying (as they had told Joseph) at the lower end of our wharf. We had no blooms of theirs in the spring of 1842, but fifty-nine pieces and a lot weighed off of theirs before for the Messrs. Bell.” If the conversation with Hammond and Nelson, which was only executory, had amounted to a release of Patterson, it would have failed for want of consideration, if no blooms were at the place appointed to meet the arrangement. It has often been decided that, “ it is error to permit a jury to pass upon a matter of fact of which there was no evidence:" 8 Watts 385; 6 Watts 72, 487; 1 Barr 68. And in Stauffer v. Latshaw, 2 Watts 165, it was held that, “ to submit a fact, destitute of evidence, to the determination of a jury, as one that may nevertheless be found, is an encouragement to err, which cannot be too closely observed or unsparingly corrected.” The record before us presents no evidence which would authorize the court to submit to the jury as a matter of fact, the question whether Robert Moore ratified the acts of his son, which were alleged to be a release of Patterson. There was, therefore, error in this particular, in the answer to the plaintiff’s 2d point. The 4th and 5th errors assigned apply to the 3d and 4th points of plaintiff. I am not prepared to say that the answers to these points, as they were put to the court, were wrong. If Joseph was the agent of his father, as the 3d assumes, then there was some evidence, the effect of which was to be determined by the jury. The answer to the 3d point is not so indirect as to amount to error. The court say that if the arrangement' was made with authority from his father, but on condition that Hileman & Hammond had the blooms at Water Street for his father, and would furnish them there, and had not done so, Henry L. Patterson would still be bound. In this there is nothing to complain of, as it is rather an affirmance of the point. What has been said in relation to the 2d and 3d errors, will apply to the 6th. If Robert afterwards sanctioned and agreed to the arrangement made by his son, of course it would be binding according to its terms — if complied with. I have already said there was no evidence of such sanction or ratification. As there was some evidence before the jury, I do not think it safe to say that the 7th error is sustained. It was for them under proper instructions, rather than the court, to say how far the facts went to establish a release of Patterson, which after all would go for nothing if not ratified by Moore. Judgment reversed and venire de novo awarded.

Tilghman C. J. The provisions of the act of 14th March, 1814, placed the plaintiff on very different ground from that ' on which he stood when-he commenced his action; because it had been decided, that under the act “for the sale of vacant lands within this Commonwealth,” passed the 3d April, •1792, it was not necessary to prove, that a warrantee was individually prevented from making a settlement; it was sufficient to prove, that the danger from the Indians at war with the United States, was such, as to deter any prudent man from attempting a settlement, prior to General Wayne’s treaty-made at Fort Grenville, in the month of December, \797. The question will be then, whether this explanatory act of assembly extends to suits commenced before its■ passage. And that it does not, I am clearly of opinion, because nothing less than positive expressions would warrant the Court in giving a construction which would work manifest injustice. It must not be supposed, that the legislature meant to do injustice, and what but injustice would it be, to subject a man to the loss of his action, and the costs of suit, by a re*- • trospective law, although at the time when he commenced his suit, he was entitled by the established law, to recover Í This is not a new question. It has several times, happened, that acts of assembly have been made, prohibiting suits of a particular nature, and that suits of that nature were depending when the acts were passed. I have always declared my opinion, that such suits were not within the acts; and for this, I refer to the cases of The Commonwealth v. Duane, 1 Binn. 601. Moore (in error) v. Houston, 3 Serg. & Rawle, 169, and Duffield v. Smith, decided at Philadelphia, 3 Serg. & Rawle, 590. The same rule of construction was adopted by the Court of King’s Bench in England, in the case of Couch v. Jefferies, 4 Burr. 2460, by the Supreme Court of the United States, in Ogden v. Blackledge, 2 Cranch, 272, and by the Supreme Court of New York, in Dash v. Van Kleek, 7 Johns. 477; ánd indeed it is so con- ~ formable to the plain principles of justice, that were there no authorities, I should not.hesitat'e to be governed by it. Now so far have the legislature been from expressly declaring an. intention to extend this act to suits then depending, that a contrary intent may be deduced by reason irresistible. I have already cited that part of the act which prescribes the evidence, without which the person claiming under a war- ' rant shall not recover. The word recover may, without vio-' lence, be confined to suits commenced after the act; but a provision in the subsequent part of' the act, shews decisively, that such was the - meaning. I allude to the proviso, 44 that in case a warrantee shall, within two years from the 1st April, 1814, tender a conveyance of 150 acres, with the usual allpwances, including his improvement, clear of all expense, and the settler shall refuse to accept of the same, in such case the said settler, or those claiming under him, shall receive no benefit from this act.” This' tender ought, to be made be-. fore the commencement of the suit, otherwise injustice would be done to the settler, who had a right to defend himself under this law, as the case stood at the commencement of the-suit. The intent of the act being, then, to give the warrantee an opportunity of. recovering, by tendering a conveyance of 150 acres before he commenced his suit, it cannot extend to suits depending when the act was passed, because in those cases such previous tender would be impossible.' Whether we consider this case, then, upon the intention deducible from the words of the act, or upon principles of construction too strong to , be shaken, I am of opinion, that the Court of Common Pleas was mistaken in charging the jury, that the plaintiff was barred from recovering. The judgment must therefore be reversed, and a venire facias de novo awarded. Gibson J. It is not absolutely necessary to express an. opinion on the constitutional question, and I therefore decline it. To step out of our way to encounter a matter of this sort, were we ever so well convinced of the unconstitujtionality of the act, would, I apprehend, evince á culpable want of respect for á co-ordinate branch of the government. It is of no consideration that the question, will shortly arise, as it is said by counsel, on other acts of assembly, when this court will be bound to pronounce on it. When it does so arise, it will be met with due deference, as well to. the legislature, as to'a conscientious discharge of our own official duty; but until then,-propriety forbids.a decision. • Neither, do I think it requisite to decide whether the case of a patentee be within the act of 1814, or not. That is a question about which I may be “permitted to say, I entertain doubts; the consideration of which, demands more time than I can at present bestow; and from the great length of time this cause has been pending in this Court, justice requires it should be decided at the present term. The legislature, I am well persuaded, never intended the act in question should- be applied to, suits brought before it was passed.' I cannot impute to them, a deliberate intention to do injustice. By the proviso, it. is clear the legislature viewed the right of the warrantee as. the law then - stood, or at least under the construction then prevailing, as perfect and, complete. The whole act would seem to have been predicated on that notion. Could it then be any thing but rank, injustice, to compel a plaintiff, prosecuting those rights, which the law recognised as affording a good cause of action, to desist, pay costs, and begin again,. when those costs, were incurred at a time when he was in no default. But the case of a claim that would be barred by the statute of limitations, is decisive. Suppose an adverse possession for twenty-one years before the passing of the act; the plaintiff cannot.go on with the suit depending, not having tendered a deed for a. part of the land, before bringing his action, at,which time he never could have foretold, that it wo.uld be made a pre-requisite ; he cannot discontinue his' suit, perform the new con-, ditions, and begin, again; for the statute of limitations intervenes, and cuts him out, and thus, by the doctrine contended, for, he loses his land entirely. It is true; that in this case, the adverse possession commenced in 1796, and that therefore the plaintiff might have commenced a second action; after having made the conveyance required, and thus have, complied with the act, without being affected by the statute of limitations. But. in giving a construction to a statute, we must establish a general rule, equally applicable in all cases. We are fully warranted in giving this construction, by the cases cited; it is one, which the Courts, of this state have uniformly adopted, and.it has been held, almost against the ex~ press provisions of a statute, in a country where legislation is uncontrolled by any constitutional check. It seems clear to me, the legislature never, in fact, intended this act to be applied to actions depending. It pre-súpposes the existence of a.power in the plaintiff to comply with its requisitions v before a suit be brought. If the legislature had intended, that the progress of actions then existing, should be arrested, they ought to have said so; they would have said so. On this ground, I think the judgment should be reversed. Duncan J. This ejectment was brought to the term of February, 1814, and was tried in November, 1814. The lands lie north and west' of the rivers Ohio and Allegheny, and Conewango Creek. The plaintiff gave in evidence, a warrant in the name of J. Rea, for 400 acres, dated 18th March, 1794 ¡¡' a survey thereon, of Match, 1795 j and a patent to himself, dated 18th May, 1808. It was admitted by the defendants, that one of them, John. Thompson, under whom all claim, settled within the lines of this survey in 1796, and that he and they have ever since continued in possession. It was further admitted, that John Thompsonh&d obtained a vacating warrant, and a patent, dated 11th August, 1807; and the court gave it in charge to the jury, that the act of assembly, passed 14th March, 1814, was a bar to the plaintiff’s recovery. This opinion is excepted to, and the question now to be decided by this Court, is on the bar arising on the act of assembly. On the part of the plaintiff, it is contended : 1st, That the act does not extend to this case, inasmuch as the plaintiff claims not on a warrant, but derives his title from a higher source, a warrant consummated by a patent; a contract, not executory, but executed. 2d. That it extends not to suits theretofore commenced, and then pending. 3d. That if it did so extend, it is an act, unconstitutional, and void. The Court decide, that the act of 1814, is of itself, a flat bar to the plaintiff’s recovery; it is a bar per se, unlesá he prove certain facts. According to the law, as it stood when he commenced his action, it was not incumbent on him to prove these facts; other facts had been deemed and judged to amount either to a performance, or a suspension of the con ditxons on which his warrant had been granted. An individuai prevention by the enemies of the United States was not required; the just terror of savage hostilities, depredations of the Indians, the terror that might fall virum constantem under the proviso of the act of 3d April, 1792, had been settled to excuse the rion-performance of an act rendered highly dangerous, if not absolutely impracticable, by imperious circumstances over which the party had no contróul; not a personal interruption by a savage foe; not a wanton exposure to danger, or a sacrifice of lives; and though the- condition of actual settlement, improvement, and residence, had. not been absolutely dispenséd with, the forfeiture was suspended ; and when the real terror from the enemy had subsided, the party should still honestly persist in his endeavours. But other preventions than those of ehemies, had been held to dispense with the condition; for it had been settled, that if a person, under the pretence of an actual settlement, should seat himself on lands previously warranted and surveyed, within the period ■ allowed under a fair construction of the law to the warrantee, for making his settlement, and withhold the possession, and obstruct him from making his settlement, he should derive .no benefit from such unlawful, act. These principles were settled by the Supreme Court at Sun-bur y, under the act of 3d April, 1792, entitled, “ An act to settle the controversy arising from contending claims to lands within this territory,” in an issue to which the state was a party. The very matter was put in issue, in order to settle the controversy, and establish a judicial construction of the act of April, 1792. 4 Dali.-237. 2 Smith, 219. Attorney General v. The Grantees. The plaintiff,- after this decision, obtained his patent.. This act of March, 1814, has been endeavoured to be supported by the counsel for defendants in error, as an explanatory law; if it be so, it cannot be expounded by any strained construction, but must operate according to its express letter, since otherwise, if any construction could be made against the express letter of the exposition made by the legislature, there would be n© end of expounding. Powell on Dev. 129. Explanatory acts are to be construed only according to their words, and not with any equity or intendment, for if a con-' átruction should be made against the express letter of the exposition, exposition would he endless. The Court cannot vary the explanation further than is expressed in the statute. 3 Co. 33, Garth. 396. This act certainly introduces a new rule of evidence, and of law, and ought not to have a retrospective operation, in other cases than .where declared in the inost unequivocal manner. Dash v. Van Kleek, 7 Johns. 497. The letter of this act does not include the patentee “ before any person claiming by virtue of a warrant”’ Now the plaintiff claims, not only under a warrant, but something more. The warrant and survey are the inception of the legal title, and are considered as to many, yet not as to every purpose as the legal title. The warrant is but an executory contract with the state;•it is a contract executed by the patent. A line of distinction is drawn by the Courtin The Attorney General v. The Grantees, between persons holding under warrants, and by virtue of patents ; for á patentee, as is there held, led into error, and lulled into confidence by his patent that the conditions had been legally complied with, and therefore had remitted his endeavours therein, might be entitled to relief in equity. To this may be added, that the patentee has taken out his patent on the faith of this decision, at some expense. ■ The judges drew up their opinions .with just caution, subject to the provision in the 9th sect, of the act of April, 1-792; an act, declaring, that every man claiming by virtue of a warrant, should make entry, and bring his ejectment, within seven years, or should be barred from recovery. By no just construction could this be held to extend to persons claim-, ing by virttíe of a patent; for the plaintiff in ejectment need not introduce his warrant; his patent is prima facie evidence. As this act cannot be extended beyond its letter; cannot be taken by intendment, to include titles not included by name; and as the present plaintiff claims, not by virtue of a warrant alone, but under a warrant, and survey, and patent, this act does not interpose, as -a bar to prevent his recovery. Does the act extend to all cases, and prevent a recovery in suits commenced before its passage ? “ before any persons claiming by virtue of a warrant, shall recover.” Admitting the constitutional power to legislate retrospectively on contracts founded on prior legislative grants, does this act so retrospect on suits commenced ? The first principle in legislation is, that all laws are to commence in futuro. No thing but the most unequivocal expressions can justify a retrospective operation. Let us illustrate this by judicial decisions, on the construction given to the statute of frauds, 29 Gar. 2. ft enacts* that from aud after the 24th June, no action shall be brought, to-charge any person upon an ngreement, without note in writing. There was .a parol promise of marriage, prior to the statute j it was determined in Gilmore v. Shuter, T. Jones's. R. 108. 2 Show. 17. 2 Mod. 310, that notwithstanding these imperative words, after that day, an action would lie ; for that a construction ought not to take effect, destroying existing rights, prior to the passage of the law, and that the statute only extended to promises made after that day. Now the words are equal, “ shall bring no action”—“ before any person claiming by virtue of warrant, shall recover.” Unrestrained as the British legislature is, by any written constitution ; and notwithstanding the boasted omnipotence of the parliament, such there has been- the construction. So in 1 Ld. Raym. 1352, and in Couch v. Jeffries, 4 Burr. 2460, which was an action for a penalty, and a verdict obtained .by the plaintiff; motion to stay judgment, on the ground of payment of the duties having been made into the stamp office, before the 1st September, 1769, under an act of panliament, which says, if the duties before .neglected to be paid, shall be paid in, on or before 1st September, 1769, the person who has incurred the penalties, shall be discharged of and from the said penalties. The question was, whether the act related to actions brought before.- It was decided by the Court, that it did not, and it was said by Ld. Mansfield, here is a right vested, and it is not to be imagined, that the legislature could, by general words, mean to take it away from the person in whom it was vested, and .who had been at costs in prosecuting it. They certainly mean future actions. It never can be the true construction of this act, to take away this vested right, and punish the innocent pursuer of it with costs. So here, the plaintiff, if he does not recover, must by this judgment, not only lose his own costs, but pay the defendant his. The right of the plaintiff, to recover under the law as it was settled when he brought his action, was a vested right; a right of Vecoveiy. The Court admits this, but withdraws it from the jury, on the supposed bar created by t.he act of March,X814>. ' We will proceed to test this judgment'of the. Court, by decisions more applicable to our own government, viz. Livingston v. Livingston, 2 Caines, 300. It would require ex-preps words to take away a party’s existing rights. 4 Wash. 139, Turner v. Turner, Detinue for the recovery of two siavés, brought in 1783. Plaintiff offered in evidence, a parol gift of these slaves.- This, was admitted, and exceptions taken, and in the .Court of Appéals,- the judgment was reversed j the gift being subsequent to the act of 1758, which requires a deed, or will in -writing j and this, said the Court, although- the gift in this ease was such as was meant to be,declared valid by the acts of 1785, and 1787, yet, nevertheless the proof in the present case was inadmissible, and the gift void j these acts, being prospective^ and hot. retrospective of cases happening before, especially as to this gift on which the suit'was.-commenced in 1783. So in Elliott v. Lyell, in the same Court, 3 Call. 2.78. The question arose on a statute, enacting, that “■ the representatives of one joiqtly bound with another-for the payment of a debt, and dying in the life time of the latter, may be charged as if the obligors • had been bound severally, as well as jointlyit was decided not to embrace bonds given before the passing of the act. Roane j. said, 1 stand on this broad principle, that men ira regulating their contracts* shall have the benefit of existing laws, and not have , them overturned^, or affected," by future laws, which- they certainly could not foresee, or provide against. . Fleming J. Statutes, uve-prima facie prospective in.their operation; and retrospective laws, being odious in their nature, it ought never to be presumed the legislature intended to pass them, where the words will admit of any other meaning. Every construction, therefore, which goes to introduce a retroactive effect, and by- altering the engagements of men, to defeat justice,, is contrary to the principles of am enlightened jurisprudence j consequently, if the words be even doubtful, such construction ought to be made, as is most.consistent with, reason, and the rights of the parties to be affected. And Pendleton, . President, observes, that with-respect to binding retrospective.laws, in general, they merely vary the remedies on existing obligations, without addling to, or diminishing- their original force; and it must be acknowledged, that retrospective laws,- which either impair, or give force- to, existing obligations or contracts, contrary to their situation at the time they were entered into,. are against’the-principles of natural justice. Citizens contract, on a view of existing laws, without anticipating future regulations. The federal constitution has prohibited the state legislatures from passing any such laws. In the case of Ogden v. Blockledge, 2 Cranch, 272, the effect of atí-explanatory? statute was under consideration. In that case, as in this, the statute was passed after the commencement oF the suit, and it was urged by the counsel, that as the suit had been brought before passing the explanatory act, it would not alter the past law, and make that to be law, which was not law at the- time. To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative power. One of the fundamental principles of our government is, that the legislative power shall be separate from the judicial power; but, that at all events, the statute could not affect that - suit, which- was brought before the law was passed. The Coiirt stopped the counsel, considering the case too plain-to be urged. So in Gallego v. Quesnall's administrators, 1 Hen. & Munf. 204, an act, declaring, that in all cases where, hereafter, any. injunction shall be wholly dissolved, the bill shall stand dismissed of course, with costs, was by adjudication, confined to injunctions awarded since the act. In Dash v. Van Kleek, 7 Johns. 501, Ch. J, Kent observes, as this act was passed, not only after the escape, but after the suit brought, it-can apply to, and govern this case, but in one of two ways; it must be considered, either ás creating a new rule for the government of the past case, or, as declaring the interpretation of the former statutes, for the direction of the Courts. I should be unwilling to consider any act as so intended, unless that intention was made manifest by express words, because it would be a violation of fundamental principles, which is never to be presumed. The very essence óf a new law,, is a rule for future cases. The construction contended for on the part of the defendant, would make the statute operate unjustly. It would make it defeat a suit already commenced, or a right already,vested; it would be punishing an innocent party with costs, as well as divesting him of a right previously acquired, under existing Haws. In a very important and well considered case, The Commonwealth v. Beaumarchais, in the Court of Appeals, 3 Call. 168, the learned and venerable President of that Court, after defining the duties of the several departments, legisla tive, executive, and judiciary, proceeds to state, if a contract is entered into in behalf of the government, and a contest should arise about the-meaning of the contract, it belongs to the judiciary to decide what that contract was, and if the legislature decide that question, they invade the province of the judiciary, contrary to the constitution. Judge. Yeates, in delivering the opinion of the Court, in The Attorney General v. Grantees, &c. 4 Dall. 237, on the question to be settled under the act of 1792, observes, it is true; the act of 1802, in its preamble, expresses, that it appears from the act of 1792, that the .Commonwealth regarded a full compliance with these conditions of settlement, improvement, and residence, as an indispensable part of the .purchase, or consideration of the land itself; but the true test of title must be resolved into the legitimate meaning of the act of 1792, extracted ex visceribus suis> independent of any legislative exposition. He commences the opinion, by declaring, that it is obvious the validity of the claims of the warrant holders and the actual settlers, must depend on the true and correct construction of the actof 3d April, 1792, considered as a solemn contract between the Commonwealth and each individual, leaving every case to depen.d on, and be governed by, its own particular circumstances, and declaring that the warrants may, or may not, be .valid; and effectual in law, against the .Commonwealth, according to the several times and existing facts acr companying such warrants. I will only add, that the construction contended for by the defendants in error, would make this act the exercise of a judicial power by the legislature; an injunction on the Court, to restrain.a recovery, in a cause pending, unless the plaintiff conveyed to the defendant, a portion of the property in dispute. • On the grounds on which my opinion is founded, it is unnecessary to decide, whether, if this act did extend to this case, it would be unconstitutional and void; as I would not go out of my .way to court the discussion of a question of such delicacy and importance, so I would not fly from the inquiry, when it becomes necessary ; .when it is rendered so, it will be met in' this Court with all the respect due to every legislative act, but with a just regard to the constitutional rights of the people. • • •• The importance of this question-will afford me a justification for the time I have taken in delivering this opinion. I considered it my duty.to give the subject the fullest investigation; to state the grounds of that opinion ; the reasons and authority on which it is founded. It is for these reasons, arid these authorities, I have stated my opinion that the Court of Common Pleas erred, in withdrawing this case under its circumstances, from the jury, and in declaring that the act of 1.4th March, 1814, was a bar to the plaintiff’s recovery, as the act did not include the case then before the Court, and that judgment be reversed, and a venire facias de novo awarded. Judgment reversed, and a venire facias de novo awarded.

Opinion by Judge Blatt, Dr. Ned Baron (Dr. Baron) is a licensed physician who began his employment with the Commonwealth in 1963 at the Embreeville State Hospital (Embreeville), and by October, 1971, had risen to the position of Acting Superintendent at that institution. During the period of his Commonwealth employment, Dr. Baron was also engaged in private practice, and he was accused by the Department of Public Welfare (DPW), which is also his Commonwealth employer, of misusing its Medical Assistance Program in the course of his private practice. Specifically he was charged with billing the DPW Medical Assistance Program (1) for patients who were never seen or treated by Dr. Baron or his associates, (2) for visits in addition to those which actually occurred, (3) for patients actually seen by a physician other than Dr. Baron, and (4) for visits during which patients were given prescriptions but did not receive treatment. Based on these charges, DPW terminated Dr. Baron’s employment at Embreeville as a Psychiatric Physician II, regular status, his official civil service description, as of March 6, 1972. Dr. Baron appealed to the State Civil Service Commission (Commission) which handed down an adjudication on August 18, 1972, restoring him to his position but without back pay. The Commission found that the evidence presented by DPW was “not sufficiently substantial to sustain removal of appellant [Dr. Baron] from his position. . . .”, but it also found that: “The evidence of the appointing authority supports a misuse of the medical assistance program in a minor degree sufficient to justify a disciplinary action of suspension of appellant as Psychiatric Physician II.” Dr. Baron appealed to this Court from the Commission’s denial of back pay. No appeal was taken by DPW from the Commission’s order of reinstatement. Our scope of review in this matter is to determine whether or not the Commission’s actions in denying back pay to Dr. Baron amounted to an abuse of discretion or an error of law. Gibbs v. Civil Service Commission, 3 Pa. Commonwealth Ct. 230, 281 A. 2d 170 (1971). It is clear that the Commission is generally given a wide discretion as to whether or not to award back pay. Section 951(a) of the Civil Service Act, 71 P.S. §741.951 (a) provides: “If such final decision is in favor of the employe, the appointing authority shall reinstate him with the payment of so much of the salary or wages lost by him as the commission may in its discretion order.” This Court has stated, in Department of Transportation v. State Civil Service Commission and Desikachar, 5 Pa. Commonwealth Ct. 263, 269, 290 A. 2d 434, 437 (1972) : “As stated in Section 951 of the Civil Service Act, 71 P.S. §741.951 (a) . . . the Commission may order back pay at its discretion. It is under no requirement to do so; and here it did not choose to do so. We can find nothing in the record or in Desikachar’s argument which would support a finding that the Commission had abused its discretion in this regard.” (Emphasis in original.) The Commission, therefore, may clearly use its discretion in deciding whether or not to award back pay, but it may not abuse that discretion. It has not done so in thise case, although the terminology used in the adjudication is confusing. The Commission’s adjudication is confusing because, while it states that the evidence was insufficient to warrant a dismissal and while it clearly orders reinstatement, it also notes that the evidence would warrant a suspension. This reference to suspension is unfortunate in its possible implication that a suspension was being imposed, for, of course, the Commission has no authority to order a suspension in lieu of a dismissal. Warner v. Civil Service Commission, 5 Pa. Commonwealth Ct. 169, 289 A. 2d 519 (1972). The adjudication here, however, can be understood and affirmed without any such implication, for it clearly orders a reinstatement, not a suspension. And, although the accompanying denial of back pay imposes a penalty similar to that which would have accompanied a departmental suspension without pay, such penalty is within the Commission’s power to impose, especially when, as here, its imposition indicates no abuse of discretion. The evidence on the record clearly gave substance to the Commission’s apparent belief that Dr. Baron had, at the very least, been extremely careless in handling state funds in his private practice. This would surely not commend him as a state employe, charged with handling large sums of state money in his state employment. Dr. Baron has also argued that it is immaterial whether or not there was evidence of his abuse of the Medical Assistance Program in his private practice because, even if he was guilty of such activity, it would not have been a basis for dismissing him from his state position. Section 807 of the Civil Service Act, 71 P.S. §741.807, provides that “[n]o regular employe in the classified service shall be removed except for just cause,” and this Court has stated, in Corder v. Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 467, 279 A. 2d 368, 371 (1971) : “We are able to discern that the legislative intent relating to one’s relationship with the classified service turns upon a merit concept. This means that any personnel action’ carried out by the Commonwealth is to be scrutinized in the light of such merit criteria, as has the party failed to properly execute his duties, or has he done an act which hampers or frustrates the execution of same. The criteria must be job-related and in some rational a/nd logical manner touch upon competency and ability.” (Emphasis added.) Dr. Baron contends that the charges against him here were not job-related and that any punishment based thereon, including loss of pay, would consequently be improper. We disagree. Certainly, if activities outside of the job reflect upon the employe’s ability to perform his job, they can provide a basis either for removal or for a lesser punishment. See Lusane v. Civil Service Commission, 5 Pa. Commonwealth Ct. 642, 291 A. 2d 808 (1972). Dr. Baron’s actions here in administering Commonwealth funds and procedures under the Medical Assistance Program in his private practice might well suggest the possibility, or even the likelihood, that he might do the same as a hospital administrator. An abuse of one Commonwealth program could easily indicate that an offender might carelessly or otherwise abuse other such programs, and this reasoning seems to have been adopted by the Commission. We must hold, therefore, that, if the proof offered here was considered by the Commission insufficient to warrant dismissal but sufficient to warrant denial of back pay, the Commission did not abuse its discretion by reinstating Dr. Baron without back pay. For the above reasons, therefore, we issue the following Oedee Now, March 13, 1973, the Order of the Civil Service Commission reinstating Dr. Ned Baron to his position as Psychiatric Physician II, regular status, without back pay, is hereby affirmed. In its letter dismissing Dr. Baron, DPW incorrectly stated that the action was being taken under §804 of the Civil Service Act, Act of August 5, 1941, P. L. 752, 71 P.S. §741.804, which pertains to probationary employees, rather than under §807, 71 P.S. §741.807, which applies to regular employees such as Dr. Baron. This error was harmless, however, because DPW did attempt to support the removal on the basis of “just cause,” as §807 requires.

Opinion by Me. Justice Eagen, Appellant, Albert H. Swing, in 1957, was elected to a four-year term as treasurer of Radnor Township, a first class township located in Delaware County. He assumed the duties of said office in January, 1958, and holds this position at the present time having been re-elected to a second four-year term in 1961. In 1959, appellant was elected a county commissioner of Delaware County, a third class county, for a term of four years. He assumed the duties of that office in January 1960. Relator, Jacques H. Fox, District Attorney of Delaware County, filed a complaint in quo warranto against appellant in 1961, alleging that the offices of township treasurer and county commissioner which are held by appellant have functions, duties and responsibilities that are incompatible and that for this reason the positions are held illegally by appellant. Appellant filed preliminary objections to the jurisdiction of the court below, contending that under Article XII, §2, of the Pennsylvania Constitution of 1874, the power to determine whether or not two public offices are incompatible is vested exclusively in the legislature, and that the question of incompatibility cannot be decided by the courts. After argument, the preliminary objections were dismissed and appellant was given twenty days within which to file an answer. This appeal was taken. Before deciding the merits of the legal question presented, we must dispose of appellee’s motion to quash or dismiss the appeal. Appellee contends that the order of the court below overruling appellant’s preliminary objections challenging the court’s jurisdiction over the subject matter is interlocutory and not appealable. Suffice it to say that the Act of March 5, 1925, P.L. 23, 12 P.S. §672, was designed to permit an appeal in the present situation. As we stated in Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 57, 117 A. 2d 697 (1955), “Plaintiff has moved to quash the appeal on the ground that the court’s decree was interlocutory and not a final decree from which an appeal may properly be taken. It is true, of course, that the appeal is not from a final decree, but the very purpose of the Act of 1925 was to permit such an appeal in order that the question of jurisdiction might be preliminarily determined. The motion to quash is overruled.” Neither Guzek v. Empire Wholesale Company, 396 Pa. 78, 151 A. 2d 470 (1959), nor Fairchild Engine and Airplane Corporation v. Bellanca Corporation, 391 Pa. 177, 137 A. 2d 248 (1958), is applicable here. Turning now to the main point at issue, the Constitution of Pennsylvania, Article XII, §2, provides: “No member of Congress from this State, nor any person holding or exercising any office or appointment of trust or profit under the United States, shall at the same time hold or exercise any office in this State to which a salary, fees or perquisites shall be attached. The General Assembly may by law declare what offices are incompatible.” By virtue of this constitutional provision, the legislature of Pennsylvania has seen fit to declare many offices (other than federal and state offices mentioned in the first sentence of the constitutional enactment) incompatible. This is not so in reference to the offices here involved. They are not declared to be incompatible in any statute. Regardless, the lower court ruled that a court of common pleas has inherent authority to declare offices incompatible by the application of common law principles. It said: “While the Constitution provides that the legislature may declare what offices are incompatible this does not mean that the legislature alone has the authority and power to determine what offices are incompatible. In this Commonwealth public offices are incompatible either by reason of legislative enactment or under common law principles . . .” This conclusion is not legally correct. If the courts enjoyed such inherent power at common law, it was completely abrogated by Article XII, §2 of the Pennsylvania Constitution. In fact, this Court has previously so ruled. In Commonwealth ex rel. Schermer v. Franek, 311 Pa. 341, 166 A. 878 (1933), at 347, we said: “Inasmuch as the Constitution has provided a method of declaring what offices are incompatible, thereby announcing the public policy of this State in regard thereto, the courts are not permitted to hold offices incompatible merely because the Legislature has failed to act, even though other states may have held such offices incompatible where the duties of one conflict with those of the other. The Legislature of this Commo'nwealth has determined in several instances certain offices to be incompatible, and it would be a transgression of the power of this court to hold the offices of Mayor and Justice of the Peace incompatible when the Legislature has not seen fit to act in the matter.” This language is clear and unambiguous. See also, Duffy v. Cooke, 239 Pa. 427, 86 A. 1076 (1913). It is argued that the above quoted statement of Justice Kepiiakt speaking for a unanimous court was not decisional and is mere dicta. We cannot agree. A study of the record in that case discloses that the issue of the incompatibility of the offices involved therein and the court’s power to determine that question in the absence of pertinent legislative expression was squarely raised and at issue in the proceedings both in the lower court and in this Court. On appeal, this Court adjudicated that issue even though it quashed the appeal on other grounds. It was plainly an intricate embodiment of the court’s determination. This is not “dicta”! Where a decision rests on two or more grounds equally valid, none may be relegated to the inferior status of obiter dictum: Manley v. Manley, 193 Pa. Superior Ct. 252, 164 A. 2d 113 (1960). Moreover, in the ensuing twenty-nine years, the ruling in this respect has been consistently followed and recognized as the law of Pennsylvania by the lower courts of the Commonwealth. See, Commonwealth ex rel. Storb v. Ressler, 13 Pa. D. & C. 2d 175 (1957); Gregory v. Johnson, 88 Pa. D. & C. 250 (1954) ; Commonwealth ex rel. Orban v. Berkey, 75 Pa. D. & C. 353 (1950); and, Kurtz v. Steinhart, 60 Pa. D. & C. 345 (1947). It is argued that the word “may” in the constitutional provision, supra, was used only in a permissive sense and this, in itself, indicates that the legislature does not possess the exclusive authority to determine what offices are incompatible. As stated before, in Commonwealth ex rel. Schermer v. Franek, supra, it was decided to the contrary. Further, similar language (“may be removed”) in another section of the Constitution has been interpreted as meaning “exclu sively.” See, Commonwealth ex rel. Kelley v. McBride, 329 Pa. 41, 196 A. 80 (1938). Also, while the word “may” is generally interpreted to be used in a permissive sense, it does have the same connotation as the word “shall” in certain contexts and under certain circumstances. See, Commonwealth of Pa., Dep’t of Welfare v. Carland, 393 Pa. 45, 142 A. 2d 14 (1958). It is also argued that this Court has entertained jurisdiction in other instances wherein the incompatibility of public offices was involved. While this is true, the cases cited are inapposite. In not a single instance was the matter of common law incompatibility in issue. In some instances, the cases involved the constitutional prohibition contained in the first sentence of Article XII, §2 of the Constitution. In others, the facts involved misconduct in office by a public official. These cases are not controlling here. Finally, we may agree that the two positions involved should not be held by the same individual and factually is against public policy. However, while this Court has the power under certain well defined circumstances to determine what is against public policy, this does not hold true in this instance because of the constitutional enactment. “Judicial power, as contra-distinguished from the power of the laws, has no existence. Courts are mere instruments of the law and can will nothing. . . . Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.” Osborn v. President, Directors and Company of Bank of United States (Chief Justice Marshall), 9 Wheaton 738, 866, 6 L. Ed. 204. The situation complained of may only be cured by the legislature. It is not for us to legislate or by interpretation to add to legislation matters which the legislature saw fit not to include. See, Altieri v. Allentown Officers’ and Employees’ Retirement Board, 368 Pa. 176, 81 A. 2d 884 (1951). Order reversed. The action is dismissed. Emphasis supplied.

Opinion by Mr. Justice Eagen, This action in equity seeking specific performance of a written agreement was instituted in the Court of Common Pleas of Berks County. At the time, the corporate defendant had its business office in the county of suit. It has since been established in Lebanon County. Deputized service of the complaint was made on the individual defendant, Hyman S. Caplan, at his residence in Montgomery County. Deputized service of the complaint on the other individual defendant, Bernerd Caplan, was made at his residence in Lebanon County. Jurisdiction of the court of Berks County over the person of the defendants because of lack of valid service of the complaint was challenged through prelimi nary objections. Likewise, tbe question of proper venue was raised and a petition for a change of venue was filed. Tbe lower court sustained the objection to the validity of the service of process on the two individual defendants, but dismissed a similar objection as to the corporate defendant. The correctness of this action is not challenged here. However, the court acting pursuant to the authority given in Sections (d) and (e) in Buie 1006 of the Pennsylvania Buies of Civil Procedure ordered the action transferred to Lebanon County, Prom this order, the plaintiff appeals. An interlocutory order is not appealable unless expressly made so by statute. Adcox v. Pennsylvania Manufacturers’ Assoc. Casualty Co., 419 Pa. 170, 213 A. 2d 366 (1965). It is conceded that the order appealed from herein is interlocutory, but it is maintained that a question of jurisdiction is involved and, therefore, an appeal is authorized by the Act of March 5, 1925, P. L. 23, §1, 12 P.S. §672. We cannot agree. There is a distinct and important difference between “jurisdiction” and “venue.” County Construction Company v. Livengood Construction Corp., 393 Pa. 39, 142 A. 2d 9 (1958). For procedural purposes, however, objections to venue have been treated by this Court as raising a question of jurisdiction, and we have reviewed under the Act of March 5, 1925, supra, an order of a lower court ruling on the propriety of venue. County Construction Company v. Livengood Construction Corp., supra; Gaetano v. Sharon Herald Co., 426 Pa. 179, 231 A. 2d 753 (1967). But these cases all involved an order ruling upon the propriety of the venue chosen by the plaintiff. In other words, in such instances we recognized no difference procedurally between a claim that the action was instituted before the wrong tribunal and a claim that the action was brought before a court lacking competence to entertain it. But, this is not this case. In the pending case, the appeal does not question the jurisdiction of the court of Berks County where the suit was instituted, nor does it dispute that Berks County is one of proper venue. No initial question of jurisdiction or venue is raised. What is challenged is the action of the court below in exercising its discretion in making a choice between two courts, which it must be noted are of equal competence in this action. In short, the only contention is that the court below abused its discretion. This is not jurisdictional. Finally, we are unpersuaded that cases involving the application of the doctrine of “forum non conveniens” are analogous. In such instances, the appeal is entertained because the order involved is truly “final” and not interlocutory. Appeal quashed. Costs upon appellant. Mr. Justice Cohen dissents. flule 1006(d) and (e) provides as follows: “(d) For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought .... “(e) ... If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county . . . .”

Opinion by Mr. Chief Justice Bell, The defendant, Robert Commander, was indicted for murder and voluntary manslaughter, and, on another indictment, for involuntary manslaughter. The district attorney elected to try defendant only on the murder indictment. Defendant, while represented by counsel, waived a jury trial after the district attorney certified that defendant’s possible guilt would not rise higher than, murder in the second degree. While this was not binding on the Court—Com. ex rel. Hobbs v. Russell, 420 Pa. 1, 215 A. 2d 858; Com. ex rel. Ward v. Russell, 419 Pa. 240, 213 A. 2d 628; Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733; Com. ex rel. Johnson v. Rundle, 411 Pa. 497, 192 A. 2d 381—the trial Judge found defendant guilty of murder in the second degree, denied his motions for a new trial and for arrest of judgment, and imposed a sentence of from three to ten years’ imprisonment. Prom this judgment of sentence, defendant took this appeal. On May 10, 1968, at about 10 P.M., defendant, accompanied by James Barcley and an unnamed woman, entered a taproom in Philadelphia known as the Carolina Bar. Defendant was engaged in a conversation with the woman when Alton Page, the deceased, came over and slapped the woman on her buttocks. Page and defendant started arguing over Page’s action and a fight broke out between them. After the bartender asked them to leave, they continued their fist fight on the sidewalk in front of the barroom. After the fight was broken up by the patrons of the bar, Page announced that he was going home to get a “shiv,” which witnesses testified was a slang term for a knife. Barcley, who was in the barroom during the fight, testified that he did not see a weapon on the person of either man. Page and his common-law wife, Thelma Page, then returned to their home, but only remained there for about ten or fifteen minutes. They then left for the 918 Bar, which is two blocks from the Carolina Bar. When they arrived at the 918 Bar, Page ordered a couple of beers and Mrs. Page went to the ladies’ room. Page was seated on the first stool at the bar with his back to the door, drinking a bottle of beer, when defendant appeared at the door. According to the evidence, when defendant appeared at the door, Page made a motion “like he was going to his sweater” and within a few seconds, defendant, while standing only five feet away from Page, fired the fatal shot into a vital part of Page’s body. There is conflicting testimony as to whether Page actually pulled out a knife, either when defendant appeared at the door or when he put his hand in or near his sweater. John Carroll, who was seated a couple of bar stools from Page, testified that he saw defendant enter the bar and Page reach under his sweater, but he did not see him pull out a knife. Barcley, an eyewitness to the fight at the Carolina Bar, testified that he went to the 918 Bar only after the shooting, and therefore did not see the killing. William Christine, a professional investigator who was appointed by the Court for the defendant, testified that he interviewed both Carroll and Barcley prior to the trial, and both told him that they had seen Page pull out a knife before defendant shot him. The lower Court, sitting as the trier of fact, resolved this conflict of testimony in favor of the Commonwealth and relied on the direct testimony given in Court by Carroll and Barcley. The testimony established, we repeat, that there was at least five feet separating defendant and Page, and that defendant had his back to the open doorway. There was no evidence that Page ever got off the bar stool. Equally, if not more important, the lower Court found that Page was not facing the defendant when defendant shot him, but was only turned half-way around “since the bullet entered his back in his right loin or flank, slightly inward from and above his hip bone, then coursing right-to-left through and across his abdomen, piercing several vital organs.” There was testimony that Page customarily carried some kind of a knife, but Mrs. Page testified that he did not have one on the night of the murder. Carroll, who assisted Mrs. Page by driving Page to the hospital, testified that he did not see a knife in Page’s possession or on the floor after the shooting. The Commonwealth and defense counsel stipulated that no knife was found by the police in a thorough search (a) of the scene and (b) of Page’s clothing, and (c) of the hospital where Page was taken, or (d) at the morgue. Defendant makes two contentions in this appeal: (1) There was not sufficient evidence to sustain a verdict and conviction of second-degree murder because of lack of proof (a) that he killed Page with malice aforethought and (b) that the killing was not in self-defense; and (2) that we should abrogate and change the rule in Pennsylvania that a prior inconsistent statement of a witness may be used only to impeach the witness, and may not be used as substantive evidence on the basic issue at trial. Sufficiency of Evidence To Prove Malice Aforethought In Commonwealth v. Gooslin, 410 Pa. 285, 189 A. 2d 157, the Court reiterated the oft-repeated definition of murder (pages 288-289) : “ ‘Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15. “Murder”, Mr. Justice Stearns aptly said, in Commonwealth v. Buzard, 365 Pa. 511, 515, 516, 76 A. 2d 394, “is defined as an unlawful killing of another with malice aforethought, express or implied.” The legislature divided'murder into two classifications, murder in the first degree and murder in the second degree; and pro vided that (1) all murder perpetrated by poison or lying in wait; or by any other kind of wilful, deliberate or premeditated killing, or any murder which shall be committed in the perpetration of or attempt to perpetrate certain specified felonies [arson, rape, robbery, burglary, or kidnapping], is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of June 24, 1939 [P. L. 872, as amended, §701, 18 P.S. §4701]. “ ‘Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. [Accord: Commonwealth v. Chermansky, 430 Pa. 170, 242 A. 2d 237; Commonwealth v. Lawrence, 428 Pa. 188, 236 A. 2d 768; Commonwealth v. Carroll, 412 Pa. 525, 194 A. 2d 911.] “ ‘To summarize: If there was an unlawful killing with (legal) malice, express or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental: [citing thirteen Supreme Court of Pennsylvania cases]; 4 Blackstone, Commentaries 192-193; 40 C.J.S. §13 p. 857, §20 p. 866, §21 p. 868; Wharton, Homicide §2 p. 2, §92 p. 112 (3rd ed. 1907);. Maurer, Pennsylvania Criminal Law: Murder §3582 p. 915 et seq., §3689 p. 953 et seq.; I Warren, Homicide §74 (Perm. ed. 1938); Clark & Marshall, Crimes §245 (4th ed. 1940).’” Accord: Commonwealth v. Carroll, 412 Pa., supra (page 530); Commonwealth v. Finnie, 415 Pa. 166, 170, 202 A. 2d 85; Commonwealth v. Ahearn, 421 Pa. 311, 317, 218 A. 2d 561; Commonwealth v. Lawrence, 428 Pa., supra (at pages 193-194). The test for the sufficiency of evidence to support a murder conviction is likewise well settled. In Commonwealth v. Frye, 433 Pa. 473, 252 A. 2d 580, the Court affirmed a conviction of murder, and said (page 481) : “It is hornbook law that the test of the sufficiency of the evidence—irrespective of whether it is direct or circumstantial, or both—is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Finnie, 415 Pa. 166, 202 A. 2d 85; Commonwealth v. Burns, 409 Pa. 619, 634, 187 A. 2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A. 2d 861; Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968).” See also, Commonwealth v. Terenda, 433 Pa. 519, 252 A. 2d 635; Commonwealth v. Lawrence, 428 Pa., supra; Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A. 2d 884. In Commonwealth v. Finnie, 415 Pa., supra, we said (pages 171-172) : “ ‘In Commonwealth v. Tyrrell, 405 Pa. 210, 174 A. 2d 852, the Court said (pages 212-213) : “The essential difference in a non-felony murder-killing between murder in the first degree and murder in the second degree is that murder in the first degree requires a specific intent to take the life of another human being: Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Dorazio, 365 Pa., supra; Commonwealth v. Malone, 354 Pa., supra; Commonwealth v. Chapman, 359 Pa. 164, 58 A. 2d 433; Commonwealth v. Jones, 355 Pa. 522, 50 A. 2d 317; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.” “ ‘The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant’s words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being: Commonwealth v. Tyrrell, 405 Pa., supra; Commonwealth v. Moore, 398 Pa. 198, 157 A. 2d 65; Commonwealth v. Nelson, 398 Pa. 359, 152 A. 2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A. 2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A. 2d 317.’ ” With these important legal principles and standards to guide and govern us, we turn to defendant’s motion (a) in arrest of judgment and (b) for a new trial. Appellant-defendant argues that, because of the conflict in the testimony and the pretrial statements of Carroll and Barcley, there is insufficient evidence to prove beyond a reasonable doubt that he killed Page with malice aforethought. Considering the evidence in the light most favorable to the Commonwealth, as we must, there is abundant evidence to infer malice, and appellant’s contention on this point is utterly devoid of merit. Self-Defense Appellant-defendant next contends that there was sufficient testimony to establish self-defense as a complete defense to the murder indictment and, for this additional reason, his motion in arrest of judgment should be granted. The principle of self-defense is clearly enunciated and thoroughly reviewed in Commonwealth v. Lawrence, 428 Pa., supra (pages 192-193) : “One is legally excused from taking another’s life if it is necessary to do so in order to prevent a felony such as sodomy attempted by force or surprise. See Commonwealth v. Emmons, 157 Pa. Superior Ct. 495, 43 A. 2d 568 (1945) ; 40 C.J.S. Homicide §101 (1944). One is also legally excused if he takes another’s life where it is necessary to do so in order to protect his own life or to save himself from great bodily harm or under circumstances reasonably giving rise to fear of death or great bodily harm. See Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203 (1936), and Commonwealth v. Collazo, 407 Pa. 494, 180 A. 2d 903 (1962). And where one free from fault in bringing on the difficulty is dangerously assaulted in his own dwelling by one not a member of the household, he need not retreat, but may stand his ground and meet deadly force with deadly force to save his own life or to protect himself from great bodily harm, Commonwealth v. Wilkes, 414 Pa. 246, 199 A. 2d 411 (1964); Commonwealth v. Fraser, 369 Pa. 273, 85 A. 2d 126 (1952). However, this is not the rule in Pennsylvania, where one is attached outside of his own dwelUng. Under such circumstances, the controlling rule is enunciated in Commonwealth v. Collazo, supra, at 501-502, 180 A. 2d at 907, wherein we stated, quoting from Commonwealth v. Breyessee, 160 Pa. 451, 456, 28 A. 824, 825 (1894) : ‘Life may be lawfully taken in self-defense; but it must appear that he who takes it was in imminent danger of death or great bodily harm and that no other way of escape from the danger was open to him. It is the duty of one who is assailed to flee, if flight is possible; and it is only when he is persuaded that he must suffer death or grievous bodily harm at the hands of his assailant, or take the life of his assailant that he may save his own, that he can justify his act as done in self-defense.’ See also, Commonwealth v. Mitchka, 209 Pa. 274, 58 A. 474 (1904); Commonwealth v. McKwayne, 221 Pa. 449, 70 A. 809 (1908).” Appellant relies on the testimony that Page had been known for carrying a knife, and that their prior fight less than an hour before ended with Page hurling threats at him. He further relies on the testimony that as he appeared at the door of the 918 Bar, Page made a motion for his waist, where a weapon is ordinarily-carried. For each of several reasons hereinafter discussed, we find absolutely no merit in this contention. In Commonwealth v. Wilkes, 414 Pa., supra, the Court said (pages 249-250) : “Further, self-defense is an affirmative defense and the burden of proving it is upon him who asserts it by the preponderance of the evidence: Commonwealth v. Burns, 367 Pa. 260, 80 A. 2d 746 (1951), and Commonwealth v. Noble, 371 Pa. 138, 88 A. 2d 760 (1952). This burden never shifts. The Commonwealth is under no obligation to prove that the defendant did not kill in self-defense. See, Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823 (1935), and Commonwealth v. Updegrove, 413 Pa. 599, 198 A. 2d 534 (1964).” Whether or not defendant has met his burden of proof is strictly for the finder of fact to decide. See, Commonwealth v. Lawrence, 428 Pa., supra. Defendant did not prove by a preponderance of the evidence that Page had a knife and was threatening to use it. To the contrary, Carroll and Barcley each testified in Court that he never saw the deceased pull out a knife, and Page’s wife testified that he did not have a knife on him on the night in question. Moreover, it was stipulated that no knife was ever found anywhere, after a thorough search by the police. From a review of all the evidence, we agree with the lower Court that the appellant has clearly failed to establish by a preponderance of the evidence the essential elements of self-defense, or any legal justification for this homicide. Prior Inconsistent Statements The appellant urges this Court to change the long-established rule in Pennsylvania that prior inconsistent statements are admissible not as substantive evidence, but only for the purpose of impeachment. This question was not raised in the Court below and therefore will not be considered on appeal. Commonwealth v. Scoleri, 432 Pa. 571, 579, 248 A. 2d 295; Commonwealth v. Payton, 431 Pa. 105, 107, 244 A. 2d 644; Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 131, 216 A. 2d 57, cert. denied, 384 U.S. 966. Judgment of sentence affirmed. Mr. Justice Roberts concurs in the result. Christine testified that Carroll had told him that he saw Page draw from his belt a dagger eight to ten inches long and hold it in front of him before the shot was fired. Barcley’s purported statement to Christine was that from across the street he could see, through the open door of the 918 Bar, Page pull what looked to be a knife, something shining, just before the shot was fired. Italies throughout, ours. The writer of this Opinion, speaking for himself, finds no persuasive reason to change the long and well-established (by over a dozen cases) law of Pennsylvania concerning prior inconsistent statements, which we have recently reiterated. Wilson v. Pa. R. R. Co., 421 Pa. 419, 219 A. 2d 666; Bizich v. Sears, Roebuck & Co., 391 Pa. 640, 139 A. 2d 663; Dampman v. Pennsylvania R. R. Co., 166 Pa. 520, 31 A. 244; Commonwealth v. Deitrick, 221 Pa. 7, 70 A. 275; Scheer v. Melville, 279 Pa. 401, 123 A. 853; Zavodnick v. A. Rose & Son, 297 Pa. 86, 146 A. 455; Harrah v. Montour Railroad Co., 321 Pa. 526, 184 A. 666; Stiegelmann, Exrs. v. Ackman, 351 Pa. 592, 41 A. 2d 679; Kunkel v. Vogt, 354 Pa. 279, 47 A. 2d 195; Dincher v. Great Atlantic & Pacific Tea Company, 356 Pa. 151, 51 A. 2d 710; Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 50 A. 2d 742; Herr v. Erb, 163 Pa. Superior Ct. 430, 62 A. 2d 75. See, also, Wigmore on Evidence, III, Third Edition, §1018; Henry, Penna. Evidence, §801 (4th Ed. 1953).

Opinion by Mr. Justice Elkin, We agree with almost every proposition of law advanced by learned counsel for appellant in support of the contention that the valuations of the several tracts of coal lands involved in this proceeding were not made upon an equitable basis nor in conformity with constitutional requirements. But because we agree with the statement of the rules of law relied upon it must not be understood that we are convinced of error in the conclusions reached by the learned court below. The positions of appellant set forth in the argument will be considered and discussed in the following order, to wit: First, that the law governing assessments of land for the purpose of taxation is -statutory, and neither the assessors, county commissioners, boards of revision, nor the courts on appeal have authority to proceed in any other manner than is prescribed by the statutes. To state this proposition is to answer it. Taxation is an incident of sovereignty but the power to levy and assess taxes and the methods of making valuations and assessments depend upon legislative authority. There is no implied power to impose taxes. While the individual owner is vested with the absolute title to his property, he holds it subject to the sovereign power of the state, or of its municipal divisions when so empowered, to impose taxes for the purpose of meeting the public burdens. The demand for taxes on the individual owner must be based upon express legislative authority prescribing the method of determining his share of the burden, otherwise there would be no definite basis of fixing the proportion of that burden which his property should bear. We agree, therefore, that all authorities having to do with the valuation and assessment of lands and the levy and collection of taxes must look to the statutes dealing with the subject for their authority to act. Second, that the foot acre rule for ascertaining the valuation of the coal lands of appellant for the purpose of taxation is not a proper measure of their value and under existing local conditions should not be used as a basis of valuation. With this position we also agree. This court held in a recent case from Luzerne county that, “It may be stated as a general rule that the foot acre basis of ascertaining assessable value is exceptional, not of general application, and when applied to coal lands, the local conditions must be such as to give the whole coal area a present market value which can be ascertained upon some definite fixed basis:” Lehigh, etc., Coal Co.’s Assessment, 225 Pa. 272. The foot acre rule would reduce all valuations to a quantity basis which in the very nature of coal deposits would be in many instances no real measure of actual value. We entirely agree with the learned counsel for appellant that in the valuation of coal lands in the region where the properties in question are located due consideration must be given to actual conditions existing in the coal formations. Among the things to be considered are thickness of vein, stratification, depth, quality, quantity, pitch of vein, nature of top, character of separating rock formation, kind of overlying surface, location of the tract as to the strike of the vein, difficulty of mining, whether of a gaseous or nongaseous nature, and other matters of like character which by business experience are considered elements in determining the value of coal properties. As shown by the testimony the conditions in the coal formations of Northumberland county are very different from those existing in other parts of the anthracite coal fields of Pennsylvania and these conditions make mining more expensive and limit the amount of coal that can be mined from each acre. Of course these things affect the value of the lands and should be taken into consideration in making assessments for taxation purposes. But there is nothing in this record to show that the court below failed to consider these local conditions in ascertaining the assessed value of the different properties or that the foot aere rule was adopted as a basis of valuation.' Indeed, the tax commission expressly-stated that the foot acre cannot under our decisions be used as the unit of value except by agreement and as the parties did not so agree this method was not adopted. The opinion of the court is conclusive that no such method was in mind when the values were determined. This is a complete answer to the contention as to the foot acre basis. It was not used except incidentally as a means of making comparison of the quantity of coal in lands similarly situated. Third, that assessors and all other taxing authorities are required to assess, rate and value every subject of taxation for local purposes according to the actual value thereof, and at such rates and prices as the same would bring at a bona fide sale after due notice, This is the law. It is so provided in the acts of 1841 and 1842 under the authority of which the valuation and assessment of lands are made. The latter act prescribes the form of oath to be taken by assessors and requires each separate tract with the improvements thereon to be valued at the price which in the honest judgment of the assessor it would sell for if sold singly and separately at a bona fide sale after due notice. These statutes have thus declared the rule for the valuation of real estate and the courts as well as all other authorities having to do with the enforcement of the law are bound and limited by it. As has been well said by some of our lower courts the only measure of valuation recognized by law is market value as distinguished from actual value; or, differently expressed, actual value limited and defined by market value. It is true, as is contended for appellant that the general rule in Pennsylvania is that market value means the price or value of an article established or shown by sales, public or private, in the way of ordinary business. As applied to the valuation of real estate in a proceeding like the one at bar, if the evidence shows recent bona fide sales of the tracts under consideration, or of tracts similarly situated in the neighborhood and of like quality, the general selling price thus established would be the market value within the meaning of the law, that is, if all the conditions are the same.' But the market value of each tract necessarily depends very largely upon its particular location, improvements, quality, conditions and the environment peculiar to it. If, however, there have been no recent sales of the lands under consideration, or of other lands of like quality similarly situated, or no general asking or selling price in the neighborhood is shown, an assessor must of necessity use his best judgment in determining what he believes the land would sell for at a bona fide sale after due notice. The authority of an assessor to exercise his judgment based upon a belief of what he considers the bona fide selling price to be, is expressly conferred by the statutes above referred to. In the absence of evidence of actual sales the assessor as well as every other taxing authority should take into consideration all elements tending to appreciate or depreciate market value. This is what was done in the present case. There were no recent sales either of the lands in question or of others similarly situated and hence no evidence of this character could be produced. Appellant did not attempt to prove present market value upon the basis of selling price at a bona fide sale and appellees were unable to do so. Whenever it can be ascertained by sales of lands of like quality similarly situated, or by recent sales of the lands being assessed, the statutory rule contemplates this method of establishing market value. If, however, there were no sales from which the general selling price might be ascertained, the market value may be established by the testimony of persons acquainted with the property, and whose knowledge and experience qualify them to form an intelligent judgment as to its proper valuation. In such cases it is proper to adduce evidence upon all matters affecting probable selling price, such as location, condition, improvements, quality of land or coal, and any other element of value that would influence the mind of a purchaser: Pittsburg, etc., R. R. Co. v. Patterson, 107 Pa. 461; Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325. This rule is recognized in many cases as applied to condemnation proceedings and we see no reason why it should not be applied in the valuation of lands for assessment purposes. In the present case the market value was shown by the testimony of mining engineers and under the circumstances it was the best evidence available. Again, it should be remembered, that when the cases came into the court of common pleas on appeal the proceedings were de novo and a prima facie case was made out by the appellees when the valuation of each tract and the data affecting the same on record in the office of the board of revision, were offered in evidence. The burden was then on appellant to show by the weight of the evidence that the valuation was unjust, inequitable, not uniform in comparison with the valuation of other real estate in the district, and not made upon a proper legal basis. The court found against appellant on the contentions as to inequality and failure to value uniformly and no evidence was offered to establish present mai’ket value upon the basis of selling price. Under these circumstances we cannot say the court acted in a manner not warranted by the evidence and the record as it stood, nor that the conclusions reached are erroneous. Fourth, that the statutes under which assessments are made do not authorize the township assessors or the courts on appeal, to ascertain the market value of the several tracts of coal land by calculating the quantity contained in the different veins, the profits earned in mining, or in considering any uncertain and contingent conditions incident to mining operations, but does require them to assess and value such lands as real estate at such rates and prices as they in the exercise of an honest judgment believe the tracts would sell for if sold separately at a bona fide sale. This in the main is a correct statement of the law. It, however, does not mean that quantity may not be considered as an element of value, because in many instances it is a very important consideration in determining selling price in the minds of both owner and purchaser. It is true in many cases quantity would be an unjust, unfair and inequitable measure of value. Much depends upon the conditions and circumstances surrounding each particular case. Location, accessibility to markets, transportation facilities, cost of opening and operating, and quality with reference to commercial uses, are frequently more important in determining market value than mere quantity. In the present case the record does not show that quantity, estimated profits, contingent and speculative possibilities, were used as the basis of ascertaining the assessed value and therefore the learned court below cannot be convicted of error upon these grounds. The tax commission may have heard some testimony along these lines and perhaps adverted to some matters of this character in their report to the court but the valuations recommended were based upon what they believed was a fair market value of the lands under consideration after a personal investigation of the several tracts supplemented by the opinions of mining engineers with knowledge and experience. The court did not in every instance adopt the valuation of the tax commission but exercised its best judgment based upon the whole record presented for its consideration. It was its duty so to do. The power to hear and determine was lodged in the court and not in the tax commission which only acted as an aid to the court. Appellant complains that the court did not regard and accept the report of the tax commission as conclusive. It is stated that this was the understanding of the parties and they should be bound by it. The difficulty with this position is that the record does not sustain it. The record shows that the commission was appointed by consent of all parties for the purpose of ascertaining the facts for the information and guidance of the court. The court acted upon this assumption and we think properly so. The act of 1889 imposes the duty upon the court and does not authorize the appointment of a commission to determine valuations on appeal. Such a commission would be without authority to act except under the direction of the court to ascertain and report facts and conclusions. In the final analysis the court alone, having due regard to the valuation and assessment of other real estate in the district, had the power on appeal to fix the valuation of the several tracts of land involved. Fifth, that each tract should be assessed at its market value ascertained, not at any future period, but at the time of the assessment. There is no room for doubt as to this being the’ law. It is argued that in some of the hypothetical questions put to engineers called as witnesses the effort was made to ascertain the value of tracts-of virgin coal not being developed by first estimating the quantity of coal in all the veins underlying said tracts, then making allowances for the number and thickness of veins, mining conditions that might arise, the cost and' difficulty of operating, the water to be encountered and other like considerations, the present value would be represented by the quantity of coal remaining and available for market after making due allowance for all of these things. We fully agree that this method of determining assessable value of coal lands is too technical and is subject to too many contingencies to be of practical application in the administration of tax laws. If we were convinced that the conclusions of the court below were based upon such considerations it would be our duty to reverse the decree in this case. We are not so convinced, but on the other hand, are of opinion that the court did not base its conclusions upon contingencies and calculations of this character. In a recent case this court, in passing upon a somewhat similar question, said: “Its market- value is its fair selling value for cash, not payable as royalty, strung out through a long series of years, but payable at the time it was taken by the defendant, or as soon thereafter as the value could be determined:”' Baker v. Pittsburg, etc., Ry. Co., 219 Pa. 398. Such a method does not make allowance in undeveloped territory for the length of time the coal may lie in the ground unmined, undeveloped and unproductive. It is impossible to reduce to a scientific basis and to mathematical precision the elements of value entering into the present selling price of a tract of coal land. Common sense and practical every day business experience are the best guides for those intrusted with the administration of tax laws. Taxation is a practical and not a scientific problem. The question is not what earning or productive power coal lands may develop in the future but what they are actually worth on the market at present. This is the lawful method of valuation for taxation purposes. Departure from this statutory and practical method has given rise to confusion and is not to be commended. In the present case appellant did not offer any testimony to prove the present market value of its coal lands and upon the whole record we are of opinion that the court below did not unjustly or inequitably value these properties either as to their present market value or in comparison with the valuation of other real estate in the district. Sixth, that unseated coal lands should be assessed in, the district where located, and if a tract be divided by a township line, each part thereof should be valued and assessed upon the acreage in the respective townships. This rule is too well settled to need discussion. It is difficult for us to determine from the record whether this rule has been violated. If it has the correction can be easily made when the record is remitted. What we now decide is that the valuations made by the court below are sustained. If any of these lands have been doubly assessed in both townships, or if any tract divided by a township line has been assessed upon the entire acreage in one township, the court below is authorized and directed to make the correction when the facts are ascertained. Seventh, that in ascertaining the present market value of a tract of virgin coal land there should be taken into consideration facilities for transportation; how far the tract is located from a railroad; what the cost of putting it in operation will be; what is the quality as well as the quantity of the coal; what are the mining conditions in the region; how many years will be required to mine, remove and market the coal; how many years will the money invested be on interest, and all other matters which in the mind of a contemplating purchaser .would add to or detract from the value of the property. It may be conceded that all of these things do affect the value of an undeveloped coal property and in a general way should be taken into consideration by any one attempting to fix a value upon it. A property that may not be developed for fifty years and when operated may require 100 years to exhaust does not have the same present market value as one fully developed and productive. Of course these conditions influence market value and they should be taken into consideration by assessors and others having to deal with this subject. It is difficult to lay down any hard and fast rule defining in what manner and to what extent the value of a particular tract should be affected by such considerations. After all, much must be left to the honest judgment and intelligent discretion of the taxing authorities. At most the courts can only lay down general rules for their guidance. It will thus be seen that we agree with the learned counsel for appellant as to the law governing valuations and assessments, but it does not necessarily follow that error was committed by the court below in fixing the valuations in question. The weakness of appellant’s case is that while contending with marked ability for the rule making actual market value the standard of assessed value, it introduced no evidence to show present market value or to establish general asking or selling price of coal lands in the neighborhood. No attempt was made to inform the court as to appellant’s estimate of present-market value. Appellant was the best judge of the value of its own lands but failed to give the court the benefit of its knowledge. Without such information the court did the best that could be done under the circumstances. It had before it the assessor’s return, the valuation fixed by the board of revision, the report of the tax commission, the benefit of the personal investigation made by the commissioners, the testimony of many witnesses dealing with every phase of the subject and the conditions upon the ground, and had knowledge of the valuation of other real estate in the district of like character similarly situated. With all of these facts before it the court found the valuation fixed by the decree. We cannot say there was error in so doing. By agreement all of these appeals were presented and argued together. Therefore the decree entered in this case will be regarded as applicable to each separate appeal and may be so entered and recorded. Decree affirmed subject to such modification as the court below is directed to make in the event it shall be ascertained that tracts divided by township lines were improperly assessed. Costs of this appeal to be paid by appellant and in the court below as there directed.

Mr. Justice Trunkey delivered the opinion of the court, October 5th 1882. The Act of March 27th 1867, prohibits the issue of license to any person to sell spirituous, vinous, malt or brewed liquors, for drinking purposes, within the township of Derry, in the county of Westmoreland, and provides, that if any person shall, for the purposes aforesaid, sell any such liquors, within said township, he or she, upon conviction thereof, shall be fined not less than fifty dollars, nor more than two hundred dollars ; and, upon a second conviction thereof, in addition to the fine, shall undergo an imprisonment of not more than three months. It is admitted on the part of the Commonwealth that the alleged unlawful sale by the defendant was made in the township of Derry, and that the special prohibitory statute, except its penal provision, is still in force; and it is claimed that said provision is repealed and supplied by the general statute of April 12th 1875. The punishment prescribed for violation of the general Act materially differs from that for violation of the special. In strictness, a sale contrary to the provisions of the one, is not the same offence as a sale contrary to the provisions of the other. In the township of Derry no person can be licensed to sell intoxicating liquor for use as a beverage, and all sales for such use are prohibited. It is hardly correct to say of the offender that he sold without license, as such phrase implies that persons might be licensed to sell. But the general statute provides that licenses may be issued, and “ that any sale made of vinous, spirituous, malt or brewed liquors, contrary to the provisions of this law, shall be taken to be a misdemeanor.” The penalty is expressly denounced against those who violate this law, and the indictment may properly charge that the offender sold without license. The Act of 1875 declares that none of its provisions shall authorize the sale of intoxicating liquors in any municipality having special prohibitory laws, and in the entire Act there is no sign of intendment to repeal the vindicatory parts of such laws. Sometimes it has been held that a general affirmative statute will repeal a prior local one upon the same subject. This is not-the rule. To effect such result, the repugnancy must be strong, or the inconsistency irreconcilable. There is no repeal where the intendment of the general is not to supply the local. A general statute, without negative words, cannot repeal a previous statute which is particular, even though the provisions of one be different from the other. “ It is against reason to suppose that the legislature in framing a general system for the state, intended to repeal a special Act which the local circumstances of one. county had made necessary: ” Brown v. Commissioners, 21 Pa. St. 37; Bounty Accounts, 70 Pa. St. 92. Accordingly, it was decided that the 6th section of the Act of 1872, P. L. 843, relating to the sale of intoxicating liquors in the county of Allegheny, was not repealed by the 3d section of the general Act of 1875, although said sections widely differ as to the amounts to be paid for licenses for hotels, inns and taverns, and the uses of the moneys received therefor: Kilgore v. Commonwealth, 94 Pa. St. 495. From the ruling in that case it follows that the special Act for the township of Derry is not repealed. An indictment must be sufficiently precise to protect the defendant from a second prosecution for the same offence. Where the offence is statutory, and can bo committed only in a certain municipal division, Avliich is less than the county within the jurisdiction of the court, the name or description of such division, and the fact that the offence was committed therein, must be set forth in the indictment. This conviction would not be a bar to an indictment charging the defendant with having unlawfully sold spirituous, vinous, malt or brewed liquors, for drinking purposes, in the township of Derry, in the county of Westmoreland, contrary to the special statute: Commonwealth v. Keenan, 10 Phil. 194; State v. Hanly, 25 Minn. 429; Botto v. State, 26 Miss. 108. The defendant’s point should have- been affirmed. Judgment reversed, and the record, with this opinion setting forth the causes of reversal, is remanded to the Court of Quarter Sessions of Westmoreland . county for further proceeding.

Opinion by Mb. Chief Justice Bell, Thomas Winebrenner was shot and killed at approximately 7:00 o’clock on the night of Tuesday, August 20, 1968. A few hours after the killing, the victim’s spouse, Karen Elaine Winebrenner, was arrested and charged with the murder of her husband. Her trial by a Judge and jury resulted in a verdict of guilty of murder in the second degree. Defendant, through her attorneys, then filed a motion in arrest of judgment and a motion for a new trial, each of which was denied. Karen Winebrenner was sentenced to undergo imprisonment for a term not to exceed twelve years. From the judgment of sentence she took this appeal. Defendant contends (1) that the evidence was insufficient to prove her guilty of any crime charged, and (2) that the evidence was insufficient to prove malice, and (3) that her admissions proved that she shot in self-defense, and (4) that the Court committed reversible errors in its charge concerning self-defense. None of these contentions has any merit. Before discussing the evidence and the contentions of the defendant, we think it would be helpful if we first considered several pertinent principles of law. In Commonwealth v. Commander, 436 Pa. 532, 260 A. 2d 773, the Court said (pages 536, 537, 538-539): “ ‘ . ‘Murder ... is defined as an unlawful killing of another with malice aforethought, express or implied.’ . . . “ ‘ “Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. [Accord: Commonwealth v. Chermansky, 430 Pa. 170, 242 A. 2d 237; Commonwealth v. Lawrence, 428 Pa. 188, 236 A. 2d 768; Commonwealth v. Carroll, 412 Pa. 525, 194 A. 2d 911.] . . .” ’ “The test for the sufficiency of evidence to support a murder conviction is likewise well settled. In Commonwealth v. Frye, 433 Pa. 473, 252 A. 2d 580, the Court affirmed a conviction of murder, and said (page 481) : ‘It is hornbook law that the test of the sufficiency of the evidence—irrespective of whether it is direct or circumstantial, or both—is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Finnie, 415 Pa. 166, 202 A. 2d 85; Commonwealth v. Burns, 409 Pa. 619, 634, 187 A. 2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A. 2d 861; Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968).’ See also, Commonwealth v. Terenda, 433 Pa. 519, 252 A. 2d 635; Commonwealth v. Lawrence, 428 Pa., supra; Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A. 2d 884. . . . “ ‘ “The specific intent to kill which is necessary to constitute, in a nonfelony murder, murder in the first degree, may be found from a defendant’s words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being: Commonwealth v. Tyrrell, 405 Pa., supra; Commonwealth v. Moore, 398 Pa. 198, 157 A. 2d 65; Commonwealth v. Nelson, 398 Pa. 359, 152 A. 2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A. 2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A. 2d 317.” ’ ” Accord: Commonwealth v. Finnie, 415 Pa., supra. All other kinds of murder, except murder which is perpetrated by means of poison or by lying in wait or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration of or the attempt to perpetrate certain statutorily enumerated felonies, are murder in the second degree. Act of June 24, 1939, P. L. 872, §701, as amended, 18 P.S. §4701. See, Commonwealth v. Ahearn, 421 Pa. 311, 317, 218 A. 2d 561; Commonwealth v. Finnie, 415 Pa., supra; Commonwealth v. Carroll, 412 Pa., supra. Motion in Aebest of Judgment In Commonwealth v. Terenda, 433 Pa., supra, the Court said (page 523) : “In Commonwealth v. Tabb, 417 Pa. 13, 207 A. 2d 884, the Court said (page 16) : ‘In passing upon such a motion [in arrest of judgment] , the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in tbe light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove. See, Commonwealth v. Moore, 398 Pa. 198, 157 A. 2d 65 (1959), and Commonwealth v. Wright, 383 Pa. 532, 119 A. 2d 492 (1956). . . .’” Considered in the light of the above-mentioned standards, tests and principles, the salient facts are as follows: Mr. and Mrs. Winebrenner experienced marital difficulties prior to August 20, 1968, the day the homicide was committed. Four days before the shooting, the defendant stated to the check-out clerk at the local grocery store: “Oh, that Tom, I will kill him or something. I just can’t keep living like this.” On the night of the homicide, at approximately 7:30 p.m., Charles Rouch, the Chief of Police of the township where the Winebrenners lived, received a telephone call in which the caller, whom the Chief of Police identified as the defendant, said: “Charles, come quick! This is Butch [Karen] Winebrenner. Tom tried to kill me; I shot him ! And I think he is dead!” Thelma Seig, a neighbor of the Winebrenners, testified that she also received a telephone call from the defendant on the night in question, in which the defendant said: “Come quick, I need help. I shot Tom.” Mrs. Seig also testified that defendant told her that “[Tom] had threatened to kill her and she had shot him.” When the ambulance arrived, the medical personnel found the dead husband lying on his back behind the house occupied by him and the defendant. The victim’s feet were pointed in the direction of the house, with one foot resting on the lowest step. There was a hole in his abdomen, caused by a shotgun fired from close range. A State Police firearms expert testified that in his opinion the fatal shot was fired when the muzzle of the shotgun was approximately ten feet from the victim. No weapon, and nothing of any unusual nature, was found in the victim’s hands or near his body. The defendant was in the kitchen, inside the house. A shotgun with an odor of having been recently fired was on the sink counter and an expended shell was on the floor in the kitchen. Several shells were found in defendant’s jacket which were of the same type as the expended shell. A witness for the Commonwealth later testified that defendant was an experienced hunter. The aforesaid evidence was undoubtedly sufficient to support a finding or verdict that defendant shot and killed her husband and was guilty of murder in the first or second degree. Malice Defendant next contends that, even admitting she had unlawfully killed her husband, the Commonwealth failed to prove beyond a reasonable doubt that the killing was malicious. We disagree. It is true that malice is an absolutely essential ingredient of murder (cases supra). Legal malice may be inferred and found from the attending circumstances, and, like the specific intent to kill, may be inferred from the intentional use, without legal excuse or legal justification, of a deadly weapon on a vital part of another human body: Commonwealth v. Troup, 302 Pa. 246, 252, 253, 153 Atl. 337; Commonwealth v. Green, 294 Pa. 573, 581, 144 Atl. 743; Commonwealth v. Wucherer, 351 Pa. 305, 311, 312, 41 A. 2d 574. Cf. also, Commonwealth v. Ewing, 439 Pa. 88, 264 A. 2d 661 (1970); Commonwealth v. Drum, 58 Pa. 9 (1868). In Commonwealth v. Troup, 302 Pa., supra, the Court said (pages 252-253) : “The fifth assignment complains of the statement in the charge that a presumption of illegal hilling arises where death is intentionally inflicted by the use of a deadly weapon directed to a vital part of the body. Proof of such conduct raises no presumption of law that the murder is of the first degree, but justifies an assumption of fact that malice and the intention to Mil existed In Commonwealth v. Green, 294 Pa., supra, the Court said (page 581) : “ ‘. . . when a responsible person, without authority and under such circumstances as indicate deliberation without apparent provocation or necessity, wounds another in a vital part with a deadly weapon, then malice is to be inferredWharton’s Criminal Evidence, Vol. 2, 10th ed., section 764.” In Commonwealth v. Wucherer, 351 Pa., supra, the Court said (page 311): “. . . where a felonious homicide is proved, malice is presumed to have existed, not conclusively, not as a so-called 'presumption of law’ or irrebuttable presumption, but as a presumption of fact, which, as stated in Commonwealth v. Kluska, 333 Pa. 65, 69, 3 A. 2d 398, 401, ds but a prima facie inference which can be rebutted by testimony to the contrary’ either by the accused himself denying such malice or by any other appropriate evidence.” Cf. also, Comwealth v. Ewing, 439 Pa. 88, 264 A. 2d 661 (1970); Commonwealth v. Gibbs, 366 Pa. 182, 76 A. 2d 608; Commonwealth v. Gidaro, 363 Pa. 472, 70 A. 2d 359. The evidence, together with all reasonable inferences therefrom, was clearly sufficient to prove that defendant used a deadly weapon upon a vital part of her husband’s body and thereby raised a factual presumption that the homicide was both felonious and malicious, and the jury could believe that the evidence on behalf of the defendant did not overcome this presumption. Defendant’s Admissions The Commonwealth presented testimony from Police Chief Pouch and from Mrs. Seig of their telephone conversations with the defendant on the night of the killing, primarily to prove that the defendant was the person who shot and killed her husband, and that this shooting amounted to a felonious homicide. Although defendant did not testify, these telephone conversations also mentioned or indicated a possible defense, i.e., self-defense, and therefore defendant contends that they would wipe out the factual presumption of malice, and would absolve her of murder because they showed that she killed her husband in self-defense. In order to support this contention, she argues that the jury was required to accept as true the telephone conversations between herself and Pouch and Mrs. Seig in their entirety, or not at all. To support this contention, defendant relies upon Commonwealth v. Jackson, 362 Pa. 469, 66 A. 2d 841, which, she argues, holds that the jury could not accept as true a part of what defendant said to the two above-mentioned Commonwealth witnesses and reject the remaining parts of her conversations with them. Neither Commonwealth v. Jackson nor any other authority supports such a contention or principle. In Jackson, the defendant made two statements—one oral and the other written. The oral statement was es sentially that “he slapped me and I stabbed him.” The written statement, made almost contemporaneously with the oral one, was much more comprehensive and exculpated her from any guilt. The Court pertinently said (pages 474, 475) : “The foregoing quoted portions of the record constitute the sum and substance of the relevant evidence offered by the Commonwealth concerning the commission of the alleged crime. Plainly enough, it fell far short of tending to prove beyond a reasonable doubt the defendant’s guilt of the crimes charged in the indictment. Indeed, if the evidence be accredited (and the Commonwealth offered it as being credible), it establishes that the defendant acted justifiably in the circumstances in self defense and was not, therefore, guilty of any crime. If, however, the evidence be rejected, there is nothing left in the case but uncertain suspicion. . . . The shadowy inference which the district attorney draws from the one sentence in the defendant’s recounted oral statement was far from sufficient to establish her guilt of the crimes charged beyond a reasonable doubt. Because of the insufficiency of the evidence as a matter of law, the conviction cannot stand.” It is, therefore, apparent that neither Jackson nor any other authority supports defendant’s contention that a jury is compelled to believe the entirety of her statements, if they believe any part thereof. Moreover, what this Court said in Commonwealth v. Kirkland, 413 Pa. 48, 195 A. 2d 338, is particularly applicable here (page 58): “[I]t is well settled that a jury or a trial Court can believe all or a part of or none of a defendant’s statements, confessions or testimony, or the testimony of any witness: Commonwealth v. Melton, 406 Pa. 343, 178 A. 2d 728; Commonwealth v. Tyrrell, 405 Pa. 210, 174 A. 2d 852; Commonwealth v. Ballem, 386 Pa. 20, 123 A. 2d 728; Commonwealth v. Donough, 377 Pa. 46, 50, 103 A. 2d 694; Commonwealth v. Ho meyer, 373 Pa. 150, 153, 94 A. 2d 743; Commonwealth v. Phillips, 372 Pa. 223, 93 A. 2d 455.” In Commonwealth v. Chermansky, 430 Pa. 170, 242 A. 2d 237, the Court said (page 174) : “In arguing that the evidence was insufficient to convict, Chermansky apparently assumes that, since his explanation of the killing was not contradicted at trial, it must be accepted as true and the killing declared justifiable as a matter of law. This position is incorrect. “Firstly, the truthfulness of Chermansky’s testimony was for the jury to determine. Even though it was uncontradicted, the jury still had the right to accept it totally, to believe part of it or to reject it completely. Commonwealth v. Wilkes, 414 Pa. 246, 199 A. 2d 411 (1964).” The Order denying defendant’s motion in arrest of judgment is affirmed. Motion for a New Trial Defendant contends, in the alternative, that the lower Court committed fatal error when it instructed the jury that the defendant has the burden of proving her assertion of self-defense by a fair preponderance of the evidence. For this proposition, she overlooks the recent decisions of this Court and relies upon Commonwealth v. Bonomo, 396 Pa. 222, 151 A. 2d 441. In Bonomo, the defendant raised the defense of alibi to the various criminal charges lodged against him. The Court pertinently said (pages 231-232) : “Since the trial of the present case Mr. Justice Bell pointed out in Commonwealth v. Richardson, 392 Pa. 528, 140 A. 2d 828, after reviewing many prior decisions, that a practical rule ought to be evolved. Following that suggestion we deem it our duty to set forth explicitly the rule which shall be followed hereafter in this jurisdiction. The Commonwealth has the burden of proving every es sential element necessary for conviction. If the defendant traverses one of those essential elements by evidence of alibi, his evidence will be considered by the jury along with all the other evidence. It may, either standing alone or together with other evidence, he sufficient to leave in the minds of the jury a reasonable doubt which, without it, might not otherwise exist. It will be the duty of the trial judge to carefully instruct the jury as to the relationship of the evidence of the prosecution and the evidence of the defendant as each bears upon the essential elements of the crime charged.” Defendant argues that the Court, in and by its decision in Bonomo, intended to eliminate all affirmative defenses in the criminal law of Pennsylvania. We disagree. If, indeed, any doubt as to the scope of our decision in Bonomo does in fact exist, we now utilize this opportunity to resolve the confusion. In Bonomo, we clid not, nor did we intend to eliminate affirmative defenses in the criminal law of Pennsylvania, and we do not consider “alibi” as an affirmative defense. An analysis will demonstrate, we repeat, that an alibi is not an affirmative defense; an affirmative defense is one in which the defendant admits the commission of the hilling but seeks to justify or excuse it. When a defendant who is charged with a felonious homicide offers evidence of an alibi, he is not actually or practically attempting to excuse or justify his commission (or any participation in the commission) of the homicide. Instead, he is asserting and attempting to prove that he did not and could not have committed the homicide because he was not even present thereat, but was far away from the place or scene of the homicide, and for this reason did not commit or could not have committed this homicide. His defense, therefore, is not an excuse or justification for the killing or his participation therein. On the other hand, when a defendant who is charged with felonious homicide presents evidence that the killing was committed in self-defense, he admits that he killed (or participated in the killing of) the deceased but attempts to avoid criminal liability by contending that the killing was justifiable or excusable. When a defendant relies upon a defense which is accurately and realistically a true affirmative defense, such as, for example, self-defense, the law of Pennsylvania has been long and well established in a multitude of cases that the defendant has the burden of proving every actual and real affirmative defense by a fair preponderance of the evidence. Commonwealth v. Johnston, 438 Pa. 485, 263 A. 2d 376; Commonwealth v. Corbin, 426 Pa. 24, 27, 231 A. 2d 138; Commonwealth v. Wilkes, 414 Pa. 246, 199 A. 2d 411; Commonwealth v. Noble, 371 Pa. 138, 88 A. 2d 760; Commonwealth v. Burns, 367 Pa. 260, 80 A. 2d 746. In Commonwealth v. Wilkes, 414 Pa., supra, the Court said (pages 249-250) : “Further, self-defense is an affirmative defense and the burden of proving it is upon him who asserts it by the preponderance of the evidence: Commonwealth v. Burns, 367 Pa. 260, 80 A. 2d 746 (1951), and Commonwealth v. Noble, 371 Pa. 138, 88 A. 2d 760 (1952). This burden never shifts. The Commonwealth is under no obligation to prove that the defend ant did not kill in self-defense. See, Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823 (1935), and Commonwealth v. Updegrove, 413 Pa. 599, 198 A. 2d 534 (1964) In Commonwealth v. Burns, 367 Pa., supra, another unanimous Court, speaking through Mr. Justice (later Chief Justice) Horace Stern, said (page 263) : “The claim of self-defense has always been held to be a so-called ‘affirmative’ defense which admits the killing but attempts to justify it (Commonwealth v. Flori, 300 Pa. 125, 133, 150 A. 290, 293), and the burden is placed upon the defendant to establish it, not beyond a reasonable doubt, but by the fair weight or preponderance of the evidence.” Nevertheless, the defendant’s burden of proving self-defense by a fair preponderance of the evidence does not relieve the Commonwealth from proving, beyond a reasonable doubt, defendant’s guilt of the crime charged. Cf. Commonwealth v. Burns, 367 Pa., supra, at pages 263, 264; Commonwealth v. Green, 292 Pa. 579, 141 Atl. 624; Commonwealth v. Colandro, 231 Pa. 343, 80 Atl. 571; Commonwealth v. Palmer, 222 Pa. 299, 71 Atl. 100; Commonwealth v. Ferruchi, 219 Pa. 155, 68 Atl. 41; Commonwealth v. Wireback, 190 Pa. 138, 42 Atl. 542; Alexander v. Commonwealth, 105 Pa. 1; Coyle v. Commonwealth, 100 Pa. 573; Ortwein v. Commonwealth, 76 Pa. 414. See also, IV Blackstone, Commentaries §201. Considering the charge of the Court in its entirety, as we must, we find no reversible error. Judgment of sentence affirmed. Mr. Justice Jones and Mr. Justice Pomeroy concur in the result. Mr. Justice Cohen took no part in the consideration or decision of this case. Italics throughout, ours, unless otherwise noted. Italics in Commonwealth v. Commander. Italics in Commonwealth v. Tabb. The ambulance, responding to a telephone caU from Police Chief Rouch, arrived at the Winebrenner house prior to the police. Dr. Carl Johnson, the pathologist at Annie M. Warner Hospital, Gettysburg, testified that, in his opinion, “the cause of death would be gunshot wound of the abdomen with multiple perforations of the small and large intestines, and complete severing of the ileum; and the complete severing of the inferior vena cava and aorta.” In addition, he testified that “it was ... a fairly clean entrance wound without . . . ragged surfaces. . . .” In Commonwealth v. Wucherer, 351 Pa., supra, the Court said (page 310): “. . . felonious homicide, . . . according to Blackstone (4 Com. 188) is ‘the killing of a human creature . . . without justification or excuse.’ ” See also, Commonwealth v. Johnston, 438 Pa. 485, 263 A. 2d 376 (1970). Dean Bubton K. Daub, in Ms authoritative and very able Pennsylvania Trial Guide, states (1959-1969 Cumulative Supp., page 124) : “Since the decision in Commonwealth v. Bonomo, 396 Pa. 222, 151 A. 2d 441, which eliminated alibi as an affirmative defense, there is speculation whether the Supreme Court did not intend to eliminate all affirmative defenses in the criminal law of Pennsylvania. The Supreme Court’s criticism of the old practice of charging the jury in affirmative defense cases as to the shifting yet nonshifting burden of proof was sufficiently broad to indicate the court’s dissatisfaction with this type of instruction. On the other hand, alibi ought never to have been considered an affirmative defense and it may be that the Supreme Court was merely correcting this phase of the law without intending to dislodge true affirmative defenses such as self-defense, intoxication, etc.” Citing eleven decisions of this Court.

Mr. Justice Woodward delivered the opinion of the court, January 2d 1877. There was technical error in the answer to the first point of the defendants below. The declaration set out a contract on the part of Charles M. Reed to pay the plaintiff the sum of $10,000, if he “ would procure a purchaser of and effect a sale of what was known as the Erie canal, in which General Reed was the principal stockholder and largely interested.” This was followed by an averment that a purchaser had been secured, a sale effected, and his part of the agreement performed by the plaintiff. The point was in these words: “ If the jury believe from the evidence that some time in July 1870 there was an agreement between Charles M. Reed and the plaintiff, by which plaintiff was authorized to sell the Erie canal as the agent of General Reed, before the plaintiff is entitled to. recover he must show to the satisfaction of the jury that he made a sale or procured a sale to be made.” The answer was: “ Refused because no evidence of such a contract.” The disposition of the point thus made was entirely inadequate. The effect of it was to sever all connection between the case which the pleadings presented and the case which the evidence made out. The interpolation of the words “as the agent of General Reed,” into the point did not justify the answer, for the jury were told, in- another connection, that “ the plaintiff was in one sense of the word the agent of General Reed, at least to the extent of requiring from him perfect good faith towards the general in the whole proceedings;” In the general charge the relations of the parties were described with sufficient accuracy, but when the jury were told that there was no evidence of the contract averred in the declaration, the whole case was adrift, and thé grounds of the verdict for the whole amount of the plaintiff’s claim must have been chance and conjecture. In other respects the governing questions in controversy, so far as they were developed, were properly ruled. If the plaintiff acted upon the proposition made to him in July 1870, and procured parties to enter into a negotiation for the purchase of the canal, ahd while this was pending, five or six weeks were allowed to those ' parties to decide upon the offer of terms General Reed had made in answer to that which they had presented, a contract relation was created, which was violated by the sale to Scott within the time allowed. It is true that the agreement for the extension of time was without any consideration to support a contract which the parties proposing to purchase could assert. But the rights of the plaintiff -stood on different grounds. He had rendered service, in view of the inducement which had been offered him by General Reed, and when the sale to Scott made it impossible to carry the original agreement into effect, he became entitled to the stipulated compensation. In Edwards v. Goldsmith, 4 Harris 43, where a broker was to receive a definite commission for procuring a purchaser for certain lots of ground, and complied with his part of the contract, but the defendant, without good reason, failed to comply on his part, it was held that the broker could recover in indebitatus assumpsit the amount of compensation agreed upon. And in Keys v. Johnson, 18 P. F. Smith 42, it was decided that when a broker authorized to sell at private sale has commenced a negotiation, the owner cannot, pending the negotiation, take it into his own hands and complete it, either at or below the price limited, and then refuse to pay the commissions. This view of the rights of the parties disposes in substance of the first, third and fourth assignments of error. The failure of the plaintiff to protest against the sale of the canal to Scott, when he was informed it was about to be made, was not necessarily fatal to his right to recover. It is to be assumed for present purposes that General Reed was aware of all the facts on which the rights of the plaintiff rested. The court charged that the neglect to make objections to the sale was “ strong evidence that the plaintiff did not understand that any time was given, as testified by Mr. Metcalf,” and they referred to the fact that none of the parties proposing to- buy, except Mr. Metcalf, testified that they were to have five or six weeks to make their decision on General Reed’s offer. The effect of the plaintiff’s silence was rightly submitted to the jury. If the plaintiff acted openly and fairly in uniting with the other gentlemen who proposed to buy the canal, his right to recover was not affected by the fact that he was one of the intended purchasers. His name was signed to the paper containing the offer, and his participation was not sought to be concealed. The court held that the plaintiff could not recover if he acted adversely to the interests of General Reed, and this was as favorable an answer to their fifth point as the defendants were entitled to receive. The general principle of law is well established. An agent cannot act for each of two contracting parties. He cannot buy or sell, on behalf of his principal, property in which he is interested without making known to his principal all the facts which are known to himself: Taylor v. Salmon, 4 Myl. & Cr. 139. The case of Bollman v. Loomis, 41 Conn. 581, was that of a person acting as the friend and confidential adviser of a purchaser while at the same time he was secretly receiving compensation from the seller for effecting the sale. It was held that this was forbidden by the policy of the law, and that a contract for such compensation was void. Here the connection of the plaintiff with the purchasers was disclosed to General Reed, and he did not require the connection to be dissolved. In their ninth point the defendants asked the court to charge upon the whole evidence that the plaintiff was not entitled to recover, and the sixth error is assigned to the refusal of the point. In support of this assignment the counsel have subjected the whole of the testimony to elaborate review. Starting with the admitted principle that the plaintiff owed perfect fidelity and good faith to General Reed, the ground was taken in the first instance that this duty was violated by his failure to explain to-,the general the fact within his knowledge, that the parties proposing to purchase were willing to pay $250,000 for the canal at the time when the offer to pay $200,000 was made. This branch of the case was passed upon by the jury. The court said: “If the plaintiff knew that his party was willing to pay $250,000, it was not good faith to General Reed not to let him know that fact, and his failure to do so would forfeit all claim on his part to any compensation for what he had done, and in that case he cannot recover.” The verdict rendered under this instruction was decisive. In the next place it was alleged that the duty rested on the plaintiff promptly to disclose to his associates the counter-proposition of General Reed, and that this duty was wholly neglected. The general facts bearing on this subject, as gathered from the testimony, involve scarcely apparent conflict, and are capable of satisfactory reconciliation. At the meeting of the parties proposing to buy, on the 9th of August 1870, Mr. Rawle, Mr. Metcalf and the plaintiff were appointed a committee to present to General Reed a written offer to pay $200,000 for his interest in the canal. The offer was declined, and a counter-proposition was drawn up in pencil (formally written out and signed a week or two later) and given to Mr. Metcalf, by which the general’s interest was offered for $250,000, and some of the terms suggested by the purchasers were modified. It would seem that the agreement to give the purchasers five or six weeks for consideration must have been at this time made by General Reed. With the counter-proposition in Mr. Metcalf’s hands, the committee returned to the purchasers, and simply reported in the language of Joseph Walton, one of the witnesses, “ that the general was so poorly he could not give a definite answer at that time.” Not one word was said in reference to the terms that General Reéd had proposed. It does not appear that the agreement to give time was reported by the committee. Five witnesses, Messrs, E. A. Wheeler, Samuel Kimberley, James J. Bennett, Joseph Walton and-Thomas J. Burch-field, all testified that they never heard of the counter-proposition until after the sale of the canal to Scott, on the 15th of September 1870. With the facts fully within his knowledge as to the terms his principal was willing to make, it was contended on the argument here by the counsel for the defendants that, apart from the duty he owed to his associates, it was bad faith on the part of the plaintiff towards General Reed to withhold the facts from the purchasers, and permit them to separate with the vague understanding that a second meeting should be held after their return from a pleasure trip to the east, which they were about to make. It was claimed that the plaintiff’s action could only have been taken in order to subserve some selfish purpose of his own, in the acquisition of which the interests of his principal would be sacrificed. And this court were asked, in view of the evidence, to lay their hands upon this record, and to reverse the judgment on this ground. Such a disposition of the cause is impossible for every reason. The testimony was parol, and a jury alone are competent to. establish facts. No point was presented to the court below by which this question could have been brought to their attention, and they were not required to grope for subjects of controversy which the parties did not themselves present. Judgment reversed and a venire facias de novo awarded.

The opinion of the Court was delivered by Kennedy, J. The first error assigned in this case, which is that the taxes exceeded the amount of the sale and therefore the treasurer’s deed is void and vests no title in the purchaser, does not appear to exist in point of fact. Neither docs it appear that any such question was made upon the trial of the cause. On the contrary, it would seem, from the president judge’s charge, that the plaintiff in error had alleged on the trial, that there was a surplus of money arising from the treasurer’s sale of the land after paying the taxes and costs, and, because no bond was given, as required by the act of assembly in such case, for the alleged surplus, had requested the court below to charge the jury that the sale was void on that ground. The court however, believing from the evidence adduced that the amount of the money produced by the sale was just, equal to that of the taxes and costs, very properly refused to give this direction. The next and only remaining error complained of, is, that “the court erred in charging the jury that a tract of land with a man and his family residing upon it, is unseated except so far as the settler has actually cleared and occupied, unless he entered with title.” Now although I am clearly of opinion that the court erred in laying down this proposition thus broadly as law, yet I think it was unnecessary, as the case that was presented by the evidence given, did not require it. As soon as a person enters upon an unseated tract of land, whether as an intruder, or tenant under a lease from the owner, and becomes a resident upon it, or, without becoming a resident, improves and occupies it in such away as to furnish upon the land the means of making and levying the taxes by distress, it must be considered in law as seated, and no longer liable to be assessed with taxes, and sold for them if they remain unpaid. The commissioners or the assessors need not inquire, nor are they bound to know, by what authority he has entered upon and talren possession of the land. It is sufficient for them to see that he is there, and that he has sufficient personal property upon the land whereon to distrain and levy the amount of the taxes; and if so, they are bound to regard it as a seated tract of land. It is only those lands which are not occupied in such a manner as to afford the opportunity of levying the taxes assessed by distress, that the legislature intended should be sold; and the remedy of selling them was resorted to as a measure of absolute necessity, because it was found after full experience to be impracticable to collect the taxes otherwise. All this is in accordance with the doctrine laid down in the case of Erwin v. Helm, 13 Serg. & Rawle 154, 155. The case under consideration has been likened to that, and it has been urged that it rules the present. In the case of Erwin v. Helm, Van Gordon, who lived upon the land ’ at the time of the assessment, was there as a tenant, by agreement, under one of the owners of a tenancy in common.of the fee; the possession of any one of whom, either by himself in person or by his tenant, was the possession of the whole of-the land so held in common, and might be considered the possession of the others. And although Van Gordon, who'was thus in the actual possession at the time of the assessment, objected to being assessed for more than fifty-six acres, yet neither he nor his lessor, without the consent of the other owners in fee of the land, could have divided and set apart the fifty-six acres from the residue of the tract; nor does it appear in the case that any thing of this kind had been attempted. He was therefore considered, for the purposes of taxation, as a tenant of the whole tract. And it.is there said that it is “where the possession as well as the estates of the owners are distinct, that the tenant in the possession can in no event be liable in respect of more than he actually holds,” page 155. In the case before us, the land appears to have been patented to Samuel A. Otis upon a warrant to Bartholomew Wisiar, and a survey made in pursuance thereof containing four hundred and thirty-six acres and thirty-five perches. In 1814, the whole of the four hundred and thirty-six acres and thirty-five perches were assessed in the name of the warrantee, and in that same year a William Patterson came to live on the land in a house and improvement which he had made, claiming about fifty acres of the Bartholomew Wistar survey, with about as much more of other adjoining land without it. These hundred acres were assessed to him as the owner thereof, in that same year; and on the 26th of August of that year, the comznon wealth granted to him a warrant for them, under which he had a survey made on the 5th of January following. After this, down to 1819 inclusive, but three hundred acres were assessed in the name of Bartholomew Wistar the warrantee, and during the same period one h undred acres were assessed to William Patterson. Now, although the dwelling house oí-William Patterson was within the lines of the Wistar survey, yet Patterson did not, like Van Gordon, enter upon and claim the land as tenant to any one under that warrant, he took possession adversely, designating precisely the extent of his claim by metes and bounds; for otherwise, had he taken possession generally without such designation, he would and ought to have been considered a settler upon the Wistar survey,-and-as giving to it the character of a seated tract. But to prevent all misapprehension, as well in respect to the nature as to the extent of his claim, immediately upon taking possession of it, he returned it to the commissioners or the assessor as containing one hundred acres, and at the same time, or shortly after, obtained a warrant for it from the commonwealth. Under these circumstances I can see no objection whatever to the residue of the Wistar survey, which Patterson excluded from his survey, being deemed unseated, unless the improvement made by King or Campbell, the plaintiff in error, changed the character of it. King, it seems, in the year 1816, commenced clearing some of the land, and in the course of that and the following year cleared three or four acres without raising a house or living upon it. After him the plaintiff in error continued the clearing of the land to some small extent, till 1820, when he erected a house upon it and took up his residence there, without making known either the nature or extent of his claim. If the improvement of either had been made before the assessment of the taxes for which the land was sold, and of such a nature as to have afforded the collector of the taxes a chance of levying them by distress, in the manner prescribed by the act of assembly in such case, I would have considered the land seated, and the sale made of it for the taxe§ void; for I think the president judge of the court below mistook the law when he said, that the tract of land thus entered on by a person without title or colour of it, although he might have property sufficient at all times upon the land to enable the collector to make the taxes out of it by distress, that the land was, notwithstanding, still to be deemed unseated, so far as it was not actually improved and enclosed by him. In this his honour appears to have confounded the rule that is applied to possession, where the statute of limitations is set up by a mere intruder, to bar the claim of the owner to the land, with the principle that is to determine- and distinguish seated land from unseated, for the purposes of taxation. If the object be alike in both cases, to wit, to prevent an unnecessary sacrifice or forfeiture of men’s rights to their lands, the possession of the intruder must be extended to the whole tract in the latter case, for the same reason that it is limited to the pedis possessio in the former. If either King or Campbell had had improve ments on and possession of the land without a residence, but at the same time personal property there at all times sufficient to have satisfied the taxes by a distress and sale of it, from the time of the first assessment down, that would have been a matter to have been referred to the jury, upon which the direction of the court as to the law respecting it, might have been asked; but as it was probably thought that the testimony was not sufficient to raise this question, it does not appear to have been made. And although I think that the actual residence of a man upon the land will give it the character of seated land, and be sufficient to prevent it from being sold as unseated for the taxes assessed upon it during such residence, whether he have property on it or not sufficient to pay the taxes; for in contemplation of the acts of assembly, residence upon the land is deemed a sufficient security for the payment of the taxes; yet it does not appear from the evidence that either King or Campbell had at any time property enough on the land to pay the taxes; nor does it appear that Campbell, who is the plaintiff in error, even contended on the trial that ever either of them had, before he moved upon the land to reside, which was not until the year ,1820, one year at least after all the taxes, for which the land was sold, had been assessed. After a careful review of this case, and the evidence given on the trial of it, I think that part of the Wistar survey which was not included within Patterson’s one hundred acres was unseated land, and continued to be so, for aught that appeared, down to the time that the plaintiff in error went on it to live; that the sale of it for taxes was therefore valid, and that the judgment of the court below ought to be affirmed. Judgment affirmed.

Opinion by Mr. Justice Jones, This assumpsit action was instituted by Betty E. Gardiner and Henry G. Gardiner, her husband (Gar-diners), in the Court of Common Pleas of Philadelphia County against the Philadelphia Gas Works (Gas Works), for an alleged breach of “agreement, warranty and promise.” In their complaint, Gardiners averred a month-to-month oral agreement with the Gas Works for the sale by the latter of gas; that the Gas Works, impliedly and expressly, warranted that the gas would be transmitted to Gardiners in a safe manner through an underground conduit maintained by it; that the Gas Works was careless and negligent in (a) allowing the gas to escape from its underground conduit into Gardiners’ home and (b) permitting the gas conduit to become and remain in a defective and broken condition; that, as a result of the escape of gas, Gardiners sustained personal injuries. Allegedly, Gardiners’ injuries were sustained on January 7, 1961 and their assumpsit action was not commenced until January 15, 1963 — two years and eight days after the alleged “injury was done”. The Gas Works filed preliminary objections to the complaint, averring that, on the face of tbe complaint, the action was barred by tbe two-year statute of limitations imposed by the Act of 1895 for injuries wrongfully done to the person. Court of Common Pleas No. 4 of Philadelphia County sustained the preliminary objections and entered an order dismissing the complaint. From that order Gardiners have appealed contending that the four-year period of limitations contained in §2-725 of the Uniform Commercial Code (Code), is controlling. Prior to the enactment of the Code, it was held in this Commonwealth that the two year period of limitations imposed by the Act of 1895, supra, governed all actions for damages for personal injuries, whether arising out of contract or tort: Jones v. Boggs & Buhl, Inc., 355 Pa. 242, 49 A. 2d 379; Rodebaugh v. P. T. C., 190 Pa. 358, 42 A. 953; Bilk v. Abbotts Dairies, Inc., 147 Pa. Superior Ct. 39, 23 A. 2d 342. In Jones, supra, the buyer of a coat with a fur collar brought an assumpsit action for breach of a contract of sale claiming damages (a) for personal injuries arising from a painful skin disease acquired from the fur collar and (b) for the return of the down payment made on the purchase price of the coat. As to the claim for personal injuries, the Court held such claim was barred by the statute of limitations imposed by the Act of 1895 but, as to the claim for return of the down payment, the Court held such claim was not barred by the Act of 1895. At first blush, the result in Jones might appear anomalous, i.e., the application of different statutes of limitations to the same breach of contract. However, a reading of Jones clearly reveals its sound rationale, i.e., that the express language of the Act of 1895 should not be avoided or circumvented and that “courts should not extend that time [the two-year limitation under the Act of 1895] by allowing a party to keep alive the right to sue by electing to sue in one form of action [assumpsit] instead of another [tort]”: Jones, p. 246. Section 10-103 of the Code, 12A P.S. §10-103, provides that “. . . all acts and parts of acts are repealed in so far as they are inconsistent herewith”. Resolution of the present issue depends upon whether the Act of 1895 is inconsistent with §2-725 of the Code, 12A P.S. §2-725, so that §2-725 operates as a repeal of the Act of 1895 insofar as the latter act governs actions for personal injuries arising out of breaches of warranty. Even though the most superficial reading of both the Act of 1895 and. §2-725 of the Code reveals a clear inconsistency, it is not on that ground alone we bottom our decision. The legislature, in the Statutory Construction Act, §51, has instructed us that “[t]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the Legislature”. Pursuant to such instruction we have examined not only the language of §2-725 and other sections of the Act but we have considered the basic purposes underlying the promulgation of the Code itself. In §2-715 of the Act of October 2, 1959, P. L. 1023, 12A P.S. §2-715 (which amended the Code), it is provided that: “(2) Consequential damages resulting from the seller’s breach include ... (b) injury to person . . . proximately resulting from any breach of warranty.” In §1-102 of the Code, 12A P.S. §1-102, the legislature has directed a liberal construction of the Code to promote “its underlying purposes and policies”, i.e., simplification and modernization in the rules of “law governing commercial transactions” and uniformity of “the law among the various jurisdictions”. In connection with the latter, it may be noted that, although the rule enunciated prior to the enactment of the Code in Jones Avas that recognized in the majority of jurisdictions, there were several important jurisdictions in which the contrary obtained. Under the comment to §2-725 it is stated that, in line with the purpose to “introduce a uniform statute of limitations for sales contracts”, this Section “takes sales contracts out of the general laws limiting the time for commencing contractual actions and selects a four year period as the most appropriate to modern business practice”. Under the Pennsylvania Bar Notes to this Section it is stated, inter alia: “The four year period under the Code changes prior laAV” noting that there had been a limitation of 6 years on contract actions, a limitation of 2 years on personal injury actions and making reference to the ruling in Jones. In this Commonwealth we have always recognized that a personal injury claim based upon a breach of warranty is a distinct claim from a personal injury claim based on negligence: Cunningham v. Joseph Horne Co., 406 Pa. 1, 176 A. 2d 648; Loch v. Confair, 361 Pa. 158, 162, 63 A. 2d 24; Bonenberger v. Pittsburgh Mercantile Co., 345 Pa. 559, 561, 28 A. 2d 913. Under such circumstances, a holding that §2-725 controls in this instant situation will effect no change in the substantive law of the Commonwealth. Bearing in mind the language of §§2-725, 2-715 and 1-102 and the basic purposes underlying passage of the Code and the need for uniformity in this area of the law, we have no hesitancy in construing §2-725 to mean exactly what its language says. Furthermore, in departing, due to the language of the Code, from the rule enunciated in Jones, we are mindful that §91 of the Statutory Construction Act mandates that “whenever a general law purports to establish a uniform and mandatory system covering a class of subjects, such law shall be construed to repeal pre-existing local or special laws on the same class of subjects.” This appeal presents a question of first impression in the appellate courts of this Commonwealth. Our examination of §§2-725, 2-715 and 1-102 and the background of the Code indicates that it was the legislative intent that there be a four year period of limitation on all actions for breach of contracts for sale, irrespective of whether the damages sought are for personal injuries or otherwise. Order reversed. Costs on Gas Works. Act of June 24, 1895, P. L. 236, §2, 12 P.S. §34. Act of April 6, 1953, P. It. 3, §2-725, as amended, 12A P.S. §2-725. Section 2-725 of the Code provides: “(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. . . .” Section 2 of the Act of 1895 provides: “Every suit hereafter brought to recover damages for injury wrongfully done to the person . . . must be brought within two years from the time when the injury was done and not after-wards” :. Act of May 28, 1937, P. L. 1019, §51, 46 P.S. §551. See: 37 A.L.R. 2d 703. The Comments are those of the National Conference of Commissioners on Uniform State Laws and The American Law Institute. See, however: Engelman v. Eastern Light Co., 30 Pa. D. & C. 2d 38 which reaches the same result herein reached. It is undisputed that the supplying of gas to Gardiners’ home on a month-to-month basis falls within the definitions of a “contract for sale” or “sale” within §2-106 of the Code, 12 P.S. §2-106.

Opinion by Mr. Chief Justice Bell, Two local taxing authorities—the Borough of Philipsburg and the Philipsburg-Osceola School District— have appealed from the Order of the Court below, which ruled that a Home for the Aged operated by the appel lee (Presbyterian Homes) was a charity and thus qualified for exemption from real estate tax. Presbyterian Homes is a Pennsylvania nonprofit corporation affiliated with The United Presbyterian Church and was formed “for the purpose of establishing and maintaining homes for the aged or other dependent persons. . . In 1961, Presbyterian Homes acquired the former Hotel Philips located in the Borough of Philipsburg, which, following extensive renovation, has been used as a Home for the Aged. This property is the subject of the appeal. Article VI of the charter of Presbyterian Homes provides in part as follows: “The corporation has no capital stock; the income, revenue and support of the said corporation shall consist of voluntary offerings, gifts, donations, contributions, bequests and devises from the members thereof, and from any other person or persons, association or corporation, made or to be made in conformity to the laws of Pennsylvania, and the same is to be applied to promote the purposes for which the said corporation is formed. . . .” Presbyterian Homes was established by the Huntingdon Presbytery from gifts and contributions made by its members and friends. A fund-raising campaign raised in excess of $340,000. Admission to the Home is not restricted to members of any particular class (other than the aged), and admission is available (as will hereinafter more fully appear) to those who are unable to meet the usual charges of the Home as well as those who can afford to pay. Admission to the Home is generally limited to applicants who are at least 65 years of age, and admission is made under one of the following plans: 1. The Life-Care-Boarding Plan. Under this plan, the applicant agrees to pay for room, board, laundry, normal care and infirmary care in such amounts as may be fixed by the Board of Directors. The applicant further agrees to pay personal expenses, costs of special nursing care, doctor and dentist fees, hospitalization, etc. This plan presupposes that the applicant has sufficient assets to maintain himself for the remainder of his life. 2. The Life-Care-Trustee Plan. Under this plan, the applicant turns over to Presbyterian Homes all Gf his assets, which are placed in a special account for his benefit. Against this account all his expenses are charged until the fund is depleted, at which time he agrees to apply for old-age-assistance grants and a transfer to Plan 3. Should a person admitted under this plan die before all his assets are consumed by normal charges, the balance remaining in the fund becomes the property of Presbyterian Homes. 3. The Life-Care-Assistance Plan. An applicant who enters under this plan has insufficient assets to enter under Plan 2 and agrees to turn over to Presbyterian Homes any old-age-assistance grants to which he may be entitled. An admission fee is usually but not always required for admittance to the Home. At the time of the hearing in the Court below, there were 126 residents in the Home, 65 of whom were admitted under Plan 1, four under Plan 2, and 57 under Plan 3. Some of those included under Plan 3 were originally admitted under Plan 2. • The principal contention of the appellants is that the Home is not operated as a “purely public charity,” because (a) the Home is to a large extent self-supporting, and (b) many residents pay for their care and expenses completely. Appellants further contend that the Home is operated in competition with commercial homes for the aged, and is for this additional reason not entitled to a tax exemption under the applicable Act of Assembly. Article IX. §1, of the Constitution of Pennsylvania provides: . . [T]lie General Assembly may, by general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, institutions of purely public charity. . . The statute which provides for exemption from real estate taxes is the Act of May 21, 1943, P. L. 571, as amended, 72 P.S. §5453.202. It provides in pertinent part as follows: “(a) The following property shall be exempt from all county, borough, town, township, road, poor, county institution district and school (except in cities) tax, to wit: . . , . (3) All hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence or charity, including fire and rescue stations, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity: Provided, That the entire revenue derived by the same be applied to the support and to increase the efficiency and facilities thereof, the repair and the necessary increase of grounds and buildings thereof, and for no other purpose: Provided further, That the property of associations and institutions of benevolence or charity be necessary to and actually used for the principal purposes of the institution and shall not be used in such a manner as to compete with commercial enterprise.” Whether the Presbyterian Home for the Aged which is the subject of this appeal is an institution of “purely public charity” within the meaning of the Constitution is a mixed question of fact and law. Hill School Tax Exemption Case, 370 Pa. 21, 87 A. 2d 259 (1952). Consequently, prior cases have limited value as precedent. As this Court pointed out in Hill School Taw Exemption Case, a charitable use is not easy to define and the line is sometimes difficult to draw. In that case, we reviewed earlier definitions, and said (pages 24-25) : . “. . . ‘A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life. . . . The word “charitable”, in a legal sense, includes every gift for a general public use, to be applied, consistent with existing laws, for the benefit of an indefinite number of persons, and designed to benefit them from an educational, religious, moral, physical or social standpoint. In its broadest meaning it is understood “to refer to something done or given for the benefit of our fellows or the public” ’: Taylor v. Hoag, 273 Pa. 194, 196, 116 A. 826. ‘Charitable uses may be unlimited in number and are not to be determined by the application of any narrow criterion. Whether a purpose is charitable must be ascertained from a consideration of all surrounding circumstances. A design to achieve objects beneficial to the community is common to all charitable purposes. . . . The concept of a charity is continually broadening.’: Tollinger Estate, 349 Pa. 393, 397, 37 A. 2d 500, 502. . . . ‘There is no fixed standard to determine what purposes are of such social interest to the community; the interests of the community vary with time and place. ... As to what other purposes are of such interest to the community as to be charitable, no definite rule can be laid down.’: Restatement, Trusts, §368, comment b.” See also Pittsburgh Bible Institute v. Board of Property Assessment, 405 Pa. 297 175 A. 2d 82 (1961). We agree with the Court below that (1) the real estate in question is being put to a public charitable use, and (2) the expenses charged, the evidence and the findings demonstrate that it is not being operated in commercial competition with commercial homes for the aged. For centuries, and in nearly every civilized Country, the care of the aged has been considered charitable. Moreover, the social need of governmental and charitable caring for the aged, as well as the importance and necessity for such a benevolent public policy, have become widely recognized and accepted, as medical science in the United States constantly lengthens life expectancy with its resulting increase in the number of needy aged. The elderly, even those who are not completely incapacitated physically, suffer from loneliness, and from mental and physical infirmities which tend to increase as they grow older and their children leave the family home and their contemporaries move away or die. With each passing year, they usually become less and less able to cope with the day-to-day problems of life, including the management of their homes, their proper maintenance and support, and even, at times, their adequate nourishment; and they often live in fear and dread of illness or of some physical disability or possible poverty, or of just plain inability to adequately take care of themselves. It is certainly in the public interest and public welfare that homes and other facilities be established and maintained to relieve these worries and anxieties, these fears and sufferings, and this well-known inability of the aged to adequately care for themselves. Furthermore, it is a matter of common knowledge that pension plans, retirement benefits, and Government-supported programs for the support and care of the elderly greatly aid, but simply do not solve all of the underlying human problems of the aged. Moreover, it is a matter of wide common knowledge in which we gladly participate that the public or general welfare policy of Pennsylvania has been increasingly broadened to include greater and greater concern and care for the aged and the sick and the infirm, and consequently the words “charity” and “public charity” must be' given a liberal interpretation. Other appellate Courts have also wisely taken this view. In Fifield Manor v. County of Los Angeles, 188 Cal. App. 2d 1 (1961), the California District Court of Appeal aptly said (page 11) : “The courts have long recognized and declared that charity is not limited to giving alms, is not confined to relief of the poor, may extend to the rich in areas where they are not able to care for themselves, and extends to those social objectives which promote the general welfare and would be served by the government in the absence of philanthropic enterprises such as homes for the aged. Historically, and well-nigh unanimously, the courts have-found homes for the aged to be charitable institutions where conducted at cost or less. They have also recognized that man, especially the old, does not live by bread alone; that though he be able to pay for all material wants he nevertheless may be dependent upon his fellow man or the government to protect him from the haunting fear of loss of all his property with resultant poverty, fear of illness or other physical disability overtaking him with no one near to help, fear of - the loneliness arising from absence of social contacts, fear of any of the tragedies of old age where there is no one standing by to help.” We also agree-with the finding and conclusion of the Court below that the Home is operated as a “purely public charity” within the meaning of Article IX, §1, of the Pennsylvania Constitution. The words “purely public charity” have been held by this Court to mean that the institution is entirely free from the private profit motive: American Society for Testing & Materials v. Board of Revision of Taxes, 423 Pa. 530, 225 A. 2d 557 (1967). See also, West Indies Mission Appeal, 387 Pa. 534, 128 A. 2d 773 (1957) ; Salvation Army v. Allegheny County, 367 Pa. 373, 80 A. 2d 758 (1951). Moreover, a “purely public charity” is not limited to a charity controlled by the State, but extends to private charitable institutions which are not administered for individual or private gain. See Donohugh’s Appeal, 86 Pa. 306 (1878) ; Episcopal Academy v. Philadelphia, 150 Pa. 565, 25 Atl. 55 (1892). Although all fifteen members of the Board of Directors of Presbyterian Homes (who serve without compensation) are Presbyterian, neither the Articles of Incorporation nor the bylaws restrict the residents to members of the Presbyterian Denomination or Faith. On the contrary, the Home is open to all persons, and at the present time approximately nine religions are represented by the residents. Appellants further contend that since many residents pay their way completely and 80 per cent of the operational costs are paid by the residents, the Home is a profit-making institution. We do not agree. During the calendar year 1964, Presbyterian Homes spent $243,000 in operational costs and received $218,-000 from its residents. In 1965, $261,000 was spent in operational costs and $258,000 was received from its residents. However, sums spent for capital improvements in 1964 exceeded $21,000, and in 1965 such sums exceeded $36,000. Furthermore, the Home has never in any year realized a profit and, even more important, no profit, if there were any, would go to an individual or to a corporation operated for private profit. To adopt this argument of the appellants would require us to hold that whenever a nonprofit institution made a charge for its care or services to any resident or patient, the institution would be precluded from obtaining ' tax exemption. Consequently, hospitals which charge large sums for the care of and services to paying patients, and colleges and universities which charge tuition to countless students, would not be entitled to real estate tax exemption. This interpretation and result is not required by the language or spirit of the Constitution of Pennsylvania or of the legislation pertaining to tax exemption; nor is it required by the decisions of this Court. As this Court well stated in Hill School Tax Exemption Case (in which we held the institution exempt from real estate taxes), 370 Pa., supra (page 27) : “A purely public charity does not cease to be such where it receives some payment for its services. Thus a hospital may be such a charity where it maintains both private patient and ward service, its facilities being available to all: Cf. McConnell v. Williams, 361 Pa. 355, 357, 65 A. 2d 243. The dormitories of the Pittsburgh Salvation Army are not subject to tax merely because the institution makes a charge for the use of its facilities, at a figure which clearly is not commercial : Salvation Army v. Allegheny County, 367 Pa. 373, 80 A. 2d 758. And by the same reasoning, a university, school or educational institution which makes a tuition charge to its students, does not thereby alone release and relinquish its privilege to tax exemption.” Order affirmed. Mr. Justice Cohen concurs in the result. Mr. Justice Musmanno took no part in the consideration or decision of this case. Italics throughout, ours. The fact that the Board of Trustees is composed of members of a single Church would not disqualify an institution from being one of purely public charity: White v. Smith, 189 Pa. 222, 42 Atl. 125 (1899).

Opinion by Mr. Justice Eagen, Robert Thomas Reece was arrested in Chester County and charged with violating The Drug, Device and Cosmetic Act, specifically, the illegal possession of marijuana. Pretrial, Reece filed a timely motion to suppress certain evidence, i.e., a quantity of marijuana seized by the police in connection with his arrest. After a hearing, this motion was denied. Later, the challenged evidence was introduced at trial over objection. The jury returned a guilty verdict. Post-trial motions in arrest of judgment or for a new trial were dismissed, and a sentence was imposed. An appeal to the Superior Court resulted in an affirmance of the judgment by an equally divided court. We granted allocatur and now reverse. .The pertinent facts supported by the record are briefly these: The Tredyffrin Township Police Department in Chester County, acting on information received that a “pot party” would take place in a certain apartment in the township on December 9, 1967, secured a search warrant authorizing a search of the apartment. Pursuant to this warrant, police officers entered the apartment at approximately 7:30 p.m. on December 9, 1967, and proceeded to conduct a search of the premises. A thorough search revealed only a minute residue of amphetamine powder found in a small ball of cotton. During the course of the evening (between 8:00 p.m. and 12:30 a.m. of the following morning) approximately fifteen people arrived at the apartment—all of whom were searched by the police. Some were found to be carrying narcotic drugs, while others were not. Charges were preferred against those who were found to be in possession of such drugs. The critical minutes in this case began at 12:30 a.m. on the morning of December 10, 1967, with a knock on the apartment door. The door was slightly ajar and after the knock, Reece and a friend entered the apartment. A police lieutenant, dressed in street clothes, was standing directly inside the doorway. One of the two told him that they were looking for some friends who were supposed to be at the apartment. Thereupon, the lieutenant identified himself by name, rank and position in the police department, read to them from a printed card the “Miranda” warnings and asked them if they understood what he had said (while his words were addressed to both, we will focus hereinafter on what was said and done to Reece). Reece acknowledged that he understood his rights. The lieutenant next told him that his clothing and person would be searched. At this point, the lieutenant took possession of the coat Reece was wearing. (By his own testimony the lieutenant is uncertain whether he asked Reece to remove his coat or simply took it from him.) The police lieutenant then proceeded to search the coat while another officer searched Reece’s person. In a pocket of the coat a small amount of marijuana was found. Reece was immediately placed under arrest. On the basis of the marijuana found in the coat, a search warrant was subsequently secured authorizing a search of the apartment where Reece resided. In the course of a search of this apartment, additional marijuana was found and seized. The marijuana seized in the two searches, before related, was used as evidence against Reece at trial. The central question for decision is whether or not the searches and seizures were constitutionally valid, for if such were not the case, evidentiary use of the seized evidence would violate due process of law. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). It is established beyond question that as an incident to a. lawful arrest, the person of the individual arrested may be validly searched even in the absence of a search warrant. Commonwealth v. Ellsworth, 421 Pa. 169, 218 A. 2d 249 (1966). But an arrest without a warrant is lawful and constitutionally permissible only if the arresting officer has “probable cause” to make, the arrest. Ker v. California, supra; Commonwealth v. Ellsworth, supra. In our view the arresting officer lacked the réquired “probable cause” to make the arrest in this case, and hence, the incidental search of Reece’s clothing and person was likewise unlawful. The arresting officer had no information whatsoever about Reece before he entered the apartment involved. There was nothing about his demeanor or conduct which would in any way suggest that he was “on drugs”, or that he had drugs in his possession; in reality, the only possible basis for the arrest was his appearance on the scene, where a “pot party” was expected to occur. We have previously held that mere presence at the scene of a crime, coupled with a prior criminal conviction, does not constitute probable cause for an arrest. Commonwealth v. Coslee, 427 Pa. 403, 234 A. 2d 849 (1967). Here, we have only the former. But, even more pertinently, the element of “presence at the scene” is not of critical import in drug possession cases. Evidence of this fact is of some weight in proving substantive crimes where the inference might be drawn that an accused was in some way involved in the commission of the crime. But here, the crime which had been committed in the apartment was the possession of narcotic drugs. Reece’s appearance there could in no way implicate him in that crime since such a’crime by its very nature is unique to the individual; By definition, the possessor is the only person who could commit this crime. Guilt by association thus becomes the rationale of the arrest here. This is unacceptable. Such reasoning received a strong rebuff in Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968). In that case, the arresting officer had never seen the de fendant, Sibron, before and had no information concerning him. He had observed Sibron continually during an eight-hour period during which time he saw Sibron in conversation with six or eight known narcotics addicts. Toward the end of this eight-hour period, the officer observed Sibron enter a restaurant and converse with three more known narcotics addicts there. Sibron was subsequently arrested and searched. The United States Supreme Court (speaking through Mr. Chief Justice Warben) stated that the prosecution “quite properly abandoned the notion” that probable cause existed at the time of the arrest: “The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security. Nothing resembling probable cause existed until after the search had turned up the envelopes of heroin.” Sibron v. New York, supra, at 62-63, 88 S. Ct. at 1902. (Emphasis added.) The fruits of the search may not be used as the justification therefor. Sibron v. New York, supra. Nor can the search here involved be upheld as a permissible self-protective search for weapons within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). This conclusion is fortified by the arresting officer’s own testimony. In the first place, such a search is only justified 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; Commonwealth v. Hicks, 434 Pa. 153, 253 A. 2d 276 (1969). Moreover, an 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, supra, at 64, 88 S. Ct. at 1903. Here, there was nothing about Reece’s conduct or demeanor to warrant a reasonably prudent man in apprehending danger. As the arresting officer himself testified: “I did not give him . . . any opportunity to give me the impression that [he] would endanger me, physically.” (Emphasis added.) Since the unlawful search of Reece’s clothing was the basis for the issuance of the warrant and subsequent search of Reece’s apartment, the fruits of the latter search were equally proscribed as evidence, because it constituted merely an exploitation of the initial illegality. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963). The order of the Superior Court and the judgment of the court of original jurisdiction are reversed. Mr. Justice Jones concurs in the result. The Act of September 26, 1961, P. U. 1664, §4, 35 P.S. §780-4. The validity of the search warrant is not contested, nor is the legality of the search questioned on the ground that it occurred at 7 :30 p.m., rather than during the daytime as the warrant specifically authorized. But see, U. S. ex rel. Boyance v. Myers, 398 F. 2d 896 (1968). Although the exact wording of the card was not introduced into the record, the officer did testify that the “entire wording from the Miranda decision” was read to Beece. Taken literally, we would have to assume that the officer was reading from a very large card indeed. Yet, in reality, it seems reasonable to conclude that Beece was warned that he had a right to remain silent; that anything he said might be used in evidence against him; that he had a right to the presence of an attorney either retained or appointed; and, that if he was willing to give a statement he had a right to stop anytime he wished. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). “Probable cause” is said to exist where “the facts and circumstances within their [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or'was committing an offense”: Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225 (1964); Commonwealth v. Marino, 435 Pa. 245, 255 A. 2d 911 (1969); Commonwealth v. Brayboy, 431 Pa. 365, 246 A. 2d 675 (1968). In view of our disposition, we need not reach the question of whether or not the search was an “incident” to the arrest since it preceded it in time. But see, United States v. Boston, 330 F. 2d 937 (2d Cir. 1964); and, United States v. Skinner, 412 F. 2d 98 (8th Cir. 1969).

Opinion by Me. Justice Robeets, Following a collision with an uninsured motorist, appellee, Howard Johnson, instituted a proceeding in equity against Concord Mutual Insurance Company (Concord) and Temple Insurance Agency (Temple) seeking reformation of an insurance policy under which Johnson was the insured, Concord the insurer, and Temple, Concord’s agent. Appellee alleged that uninsured motorist coverage, as required by Act of August 14, 1963, P. L. 909, §1, 40 P.S. §2000, was not validly rejected and, therefore, was improperly excluded from the policy. On September 13, 1966, Johnson was advised by Ira Weeksler, an agent for Temple, that his automobile insurance policy would soon expire. At Johnson’s request, Weeksler met with Johnson to arrange for a renewal of insurance. At that time, a binder-application for an insurance policy with Concord was prepared by the carrier which contained a purported waiver of uninsured motorist coverage. Johnson signed the printed form in two places, one below the printed text of the application, the other below the challenged waiver of uninsured motorist coverage. The claimed waiver reads in fine print, “I hereby state that I do not desire UNINSURED MOTORIST COVERAGE IN MY AUTO LIABILITY policy.” The two dollar premium for such coverage was neither charged nor paid. Johnson testified that he was 69 years old at the time he applied for renewal of insurance and that he had a fourth grade education. He stated that nothing was said about uninsured motorist coverage and neither the terms of such coverage nor the waiver of that protection were explained. Rather, he was merely told to sign on the lines on which Wecksler had placed a check-mark. Wecksler, however, testified that he did discuss the uninsured motorist provision. The relevant portions of that testimony are set forth in the margin. On March 3, 1971, the trial court issued a decree nisi which ordered Concord to include uninsured motorist coverage in the policy and which required Johnson to pay two dollars, the cost of such coverage. (The action against Temple was dismissed.) The trial court found that Johnson was “misled” by Wecksler who did not call “Plaintiff’s attention to the waiver or rejection of 'uninsured motorist’ coverage statement which Plaintiff signed.” On this appeal appellant, Concord, contends that the insurance policy may not be reformed because there was no finding of fraud, accident, or mistake. Furthermore, it asserts that since there was no fraud, the parol evidence rule required the exclusion of certain testimony concerning the discussions between Johnson and Wecksler. We need not decide whether or not fraud was established. Even assuming, arguendo, that there was no fraud, we conclude that the purported waiver was ineffective; therefore, we affirm. The statute in effect at the time the policy was issued provided: “No policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of tbe ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of ‘The Vehicle Code/ act of April 29,1959 (P. L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom: Provided, however, That the named insured shall have the right to reject such coverage in writing: And provided further, That unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.” Act of August 14, 1963, P. L. 909, §1, 40 P.S. §2000 (emphasis added). Under the pro vision governing this controversy, all policies must contain uninsured motorist coverage unless the insured rejects such protection in writing. The purpose of this coverage is to “afford financial recompense to persons who receive injuries or the dependents of those who are killed, solely through the negligence of motorists, who, because they are uninsured and not financially responsible, cannot be made to satisfy a judgment.” 2 Long, The Law of Liability Insurance §2403 (1972). In Harleysville M. Cas. Co. v. Blumling, 429 Pa. 389, 241 A. 2d 112 (1968), we emphasized the purpose of such protection. There, we said: “In Pattani v. Keystone Ins. Co., 426 Pa. 332, 231 A. 2d 402 (1967), we quoted with approval the language of Katz v. American Motorists Ins. Co., 53 Cal. Rptr. 669 (1966), that such statutes are ‘designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others.’ We there declared for liberal construction of the statute in order to achieve the legislative intent, and we here adhere to that declaration.” Id. at 395, 241 A. 2d at 115 (emphasis added). Thus, our determination here is in harmony with the view that the “statute evolves from public policy considerations and must be broadly and liberally construed to accomplish this purpose. Conversely, that portion of the statute permitting rejection of uninsured motorist coverage detracts from the public policy considerations and must therefore be narrowly and strictly construed.” Weathers v. Mission Insurance Company, 258 So. 2d 277, 279 (Fla. Dist. Ct. App. 1972) (footnote omitted) (emphasis added). Recognizing these previously expressed public policy considerations, we must conclude that a waiver of uninsured motorist coverage is effective only if the waiver manifests the intentional relinquishment of this legislatively granted right of insurance protection. Accord, Dufresne v. Elite Insurance Company, 26 Cal. App. 3d 916, 103 Cal. Rptr. 347 (1972); Hagar v. Elite Insurance Company, 22 Cal. App. 3d 505, 99 Cal. Rptr. 423 (1971) ; Lichtenberger v. American Motorists Insurance Co., 7 N.C. App. 269, 172 S.E. 2d 284 (1970) ; Abate v. Pioneer Mutual Casualty Co., 18 Ohio App. 2d 73, 246 N.E. 2d 919 (1969), aff’d, 22 Ohio St. 2d 161, 258 N.E. 2d 429 (1970); Bohlert v. Spartan Insurance Company, 3 Cal. App. 3d 113, 83 Cal. Rptr. 515 (1969). We have previously held: “[a] waiver in law is the act of intentionally relinquishing or abandoning some known right, claim or privilege. See, Bell’s Estate, 139 Pa. Superior Ct. 11, 10 A. 2d 835 (1940); and, Sudnick v. Home Friendly Insurance Co., 149 Pa. Superior Ct. 145, 27 A. 2d 468 (1942). To constitute a waiver of a legal right, there must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it: Kahn v. Bancamerica-Blair Corporation, 327 Pa. 209, 193 A. 905 (1937); and Cole v. Phila. Co., 345 Pa. 315, 26 A. 2d 920 (1942).” Brown v. Pittsburgh, 409 Pa. 357, 360, 186 A. 2d 399, 401 (1962). We agree with the chancellor that appellant-insurer has not met its burden of proving that the insured intelligently and knowingly waived uninsured motorist coverage. See Lichtenberger v. American Motorists Insurance Co., supra (burden of proving rejection is on the insurer). The claimed waiver provision, on its face, is obviously not “conspicuous, plain and clear,” Kincer v. Reserve Insurance Company, 11 Cal. App. 3d 714, 720, 90 Cal. Rptr. 94, 97 (1970), and it does not contain language which would “clearly and specifically apprise the insured of the nature of the right he is relinquishing.” Dufresne v. Elite Insurance Company, supra at 620, 103 Cal. Rptr. at 352. Rather, the sixteen word, single line provision at the extreme end of the binder-application form merely reads in fine print that the insured does not desire the protection. No explanation of the coverage (or two dollar cost) appears within the rejection form prepared by the insurance carrier and printed at the foot of the application. It is evident that this claimed rejection is not affirmatively expressed in writing by the insured. The record fails to disclose an express agreement or acquiescence on the part of the insured to delete or relinquish this protection. The statutory mandate may be complied with only by including uninsured motorist coverage or by an affirmatively expressed rejection in writing by the insured. Nothing less will satisfy the statutory obligation. The single line on the carrier’s printed form is insufficient on its face to constitute a valid rejection. Additionally, the testimony does not reveal that Johnson knowingly and affirmatively rejected uninsured motorist coverage. Even accepting Wecksler’s testimony that he discussed the protection, an examination of his testimony reveals that he failed to properly explain the type of protection being rejected by the insured’s signature on the very last line. In these circumstances, the insured’s signature, is insufficient to establish an effective rejection of Ms statutory right of protection. Accord, Dufresne v. Elite Insurance Company, supra; Edgar v. Elite Insurance Company, supra; Bohlert v. Spartan Insurance Company, supra. In Hagar v. Elite Insurance Company, supra, the California court was confronted with facts very similar to those in the instant case. There, the California appellate court stated: “As we have said above, the public policy of this state requires an insurer to provide uninsured motorist coverage, even though the policy does not provide for it and even if no premium for such coverage is charged or collected. That coverage is imposed on the insurer as a matter of law . . . and it requires a clear and express agreement between the parties to delete it. “Neither the language of the purported agreement to delete nor the explanation given to plaintiff by Mr. Van Leeuwen [the agent] meets the test of clarity and specificity imposed by the cases above cited.” Id. at 510, 99 Cal. Rptr. at 426. Finally, appellant asserts that an insurance policy may not be reformed for a party who failed to read the language of the contract. This argument fails to recognize that the Legislature has mandated that all insurance policies must include uninsured motorist coverage. Moreover, appellant’s assertion ignores the fact that the insurance policy, itself, provides: “Terms of this policy which are in conflict with the statutes of the State wherein this policy is issued are hereby amended to conform to such statutes.” Thus, the insured’s failure to read the contract neither relieves insurer of its duty to include such protection nor adds validity to the claimed rejection. See Lichtenberger v. American Motorists Insurance Company, supra. We agree that “[b]ecause uninsured motorist coverage has been legislatively declared to be a matter of public policy, a deletion of coverage is not to be determined by traditional rules of waiver and estoppel.” Dufresne v. Elite Insurance Company, supra at 926, 108 Cal. Rptr. at 353. Decree affirmed. Each party to pay own costs. Appellee’s prior insurance policy contained uninsured motorist coverage. The following is a photostatie copy of the contested waiver provision as it appears on the binder-application. “Q. Did you at that time tell him what the uninsured motorist vehicle coverage was? A. Yes. I indicated the entire thing out, by the individual premiums as well as the total premiums. * * * Q. Did you discuss with him the various items that you were talking about as to the possibility of dropping? A. Certainly. Q. Did this include uninjured [sic] motor vehicle coverage? A. I usually go over every item to make sure—Mb. Rosen: Objection to the answer. The Court : I will sustain the objection. Answer your lawyer’s question. By Mb. Haviland : Q. You see, Mr. Wecksler, the objection is properly based because of what you are saying, namely, what you usually do. Did you go over them with Mr. Johnson? A. Yes, I did. Q. What did you tell Mr. Johnson concerning where lie had to sign the agreement? A. Well, when we discussed exactly what he was going to get, what I would include for the $190.—and he understood, exactly what I told him—Me. Rosen: Objected to, Your Honor. The Court : Well—Tute Witness : I did mention to him the items that I was going to give him, the items that I was going to include in the policy. And he understood—from what I understood—that he wasn’t going—to get the collision, I was going to drop off the personal effects, I dropped off the uninsured motorist protection, and gave him the bare necessities that-—to drop the figure to $190. By Mr. Haviland : Q. And did you advise him as to where he had to sign? A. Well, I indicated, yes, that he would have to sign the application as well as the rejection of the uninsured motorist protection.” Tbe statute was amended December 19, 1968, effective January 1, 1969. As amended, it permits rejection of uninsured motorist coverage only as follows: “(1) An owner or operator of (i) any motor vehicle designed for carrying freight or merchandise or, (ii) any motor vehicle operated for the carriage of passengers for hire or compensation, having in either instance been granted a certificate of public convenience or a permit by the Pennsylvania Public Utility Commission or been issued a certificate of public convenience and necessity or a permit by the Interstate Commerce Commission, and “(2) An owner or operator of any other motor vehicle designed for carrying freight or merchandise or operated for the carriage of passengers for hire whose employes are insured under the pro-' visions of ‘The Pennsylvania Workmen’s Compensation Act,’ act of June 2, 1915 (P. L. 736), as amended, shall have the right to reject such coverage in writing in which event, such coverage need not be provided in or supplemental to a renewal policy where such insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.” (Footnote omitted.)

Opinion by Mr. Justice Jones, The Secretary of Revenue, in an exercise of the authority conferred by Sec. 615 (b) (4) of The Vehicle Code of 1929, as amended (75 PS § 192 (b) (4)), suspended the defendant’s operator’s license. The basis for the action was the fact that the defendant was the operator of an automobile involved in an accident which resulted fatally to a person. The court below dismissed the defendant’s appeal and the matter is now before us, at the defendant’s instance, as on certiorari, our review being limited to determining whether the findings of the court below are supported by competent evidence and to correcting any conclusions of law erroneously made: see Commonwealth v. Cronin, 336 Pa. 469, 475, 9 A. 2d 408, and also Bureau of Highway Safety v. Wright, 355 Pa. 307, 309, 49 A. 2d 783, and cases there cited. We find reversible error in both regards. It is implicit in the opinion filed by the court below that the primary concern of the hearing judge was whether the action of the Secretary of Revenue was justified by the available evidence in the case. Such an approach to the problem was, of course, contrary to the intent of The Vehicle Code. The relevant provision of the Statute (Sec. 616, 75 PS § 193), as frequently and uniformly construed by this Court, means that the hearing on an appeal to a common pleas court from an order of the Secretary of Revenue suspending an operator’s license is to be de novo: see Bureau of Highway Safety v. Wright, supra, and cases there cited. In Commonwealth v. Cole, 350 Pa. 369, 371,39 A. 2d 361, Mr. Justice Patterson, speaking for this Court, said with respect to existing pertinent decisions, — “All of these cases hold that an appeal to the court is not for the purpose of reviewing the evidence taken before the secretary, and his action thereon, but to hear evidence and determine, in the exercise of the court’s sound discretion and in the furtherance of justice, whether the license should be suspended”. Nor was the error of the situation offset by the bald statement in the opinion, subsequently filed, that “The Court heard the ease de novo and at the conclusion of the testimony dismissed the appeal”. That expression was but a pro forma affirmation of the legal requirement in the circumstances which had not been followed in practice as will be seen. After treating with the evidence in the case and finding that the defendant was “not entirely free of negligence”, the court below dismissed the appeal because of the expressed feeling “. . . that the department has not abused the discretion which the law gives them in suspending the operator’s license of any person operating a motor vehicle in an accident resulting fatal to any person . . .”. Yet, the court’s duty in the premises was to determine independently, on the basis of the testimony adduced at the hearing on the appeal, whether the suspension was merited. One of the principal offices of the appeal, in obedience to constitutional requirements, is to furnish a judicial hearing on the merits. In no way does the appeal partake of the nature of a certiorari: see Commonwealth v. Funk, 323 Pa. 390, 397, 186 A. 65. In that case, it was held (p. 399) that the inclusion by the hearing court of the testimony taken before the Secretary on the license suspension, merely as a part of the record on the appeal, was error. The offense of the court in the present instance was even greater. In addition to failing to discharge the cognate responsibility in the manner contemplated by law, the lower court deliberately confirmed a very material finding of fact on the basis of unspecified complaints against the defendant by unidentified persons in other connections to which the court gratuitously alluded but which it did not attempt to have placed upon the record. Thus, the finding of the court below that the defendant “was not entirely free of negligence” was drawn not only from the testimony in the case but also, as the court itself avers, “. . . from the numerous complaints which the Court had had on other occasions on the reckless driving of the defendant . . .”. The court’s action in such regard amounted to a denial of the full, fair and impartial hearing which is an inherent and unalienable right of our Anglo-Saxon legal heritage and which our constitutional guarantees are designed to safeguard and protect. It may well be that the court’s findings that the defendant was “not entirely free of negligence” and that such negligence contributed in a measure to the sequent fatality would have to be affirmed under the limitations of our reviewing power, even though, concededly, the other operator involved in the accident was primarily at fault. It will be recalled that the crucial factor in the suspension of a license in the circumstances is that “the fatality resulted from the negligence” of the operator whose license is singled out for suspension. See Commonwealth v. Cole, supra. In the instant case, the evidence shows that the operator of the other automobile, while under the influence of intoxicating liquor, was driving at night on the wrong side of the highway and that his automobile struck the left front side of the defendant’s car, that impact turning it off the highway and causing it to roll over with fatal results to a pas senger on tbe front seat of the defendant’s car. Because of the fatality, both operators were indicted and tried for involuntary manslaughter. The defendant was acquitted by a directed verdict of the jury while the other operator was convicted. In the light of the errors herein cited, we have no alternative but to reverse the action of the court below. Order reversed and suspension vacated at the Commonwealth’s costs.

Mr. Justice Paxson delivered the opinion of the Court, Had there been any serious dispute as to the facts of this case we might, and probably would, have sent it back, or referred it to a Master to find the facts. There was no Master below, and there is no distinct finding of facts by the court. But inasmuch as a careful examination of the testimony as taken by the Examiner discloses no conflict, we have concluded to consider and dispose of the case as presented. The plaintiff is a citizen and taxpayer of the city of Williamsport. He complains that the city has assessed his “ occupation ” at $2,000, and that in doing so the said city has “ clearly violated the provisions of the Constitution of Pennsylvania, wherein it provides that all taxes shall be uniform upon the same class of subjects, in that assessing him with an occupation valued at $2,000 the said committee discriminated between him and the large majority of the taxpayers of the city of Williamsport by assessing him with an occupation based upon his alleged income, which rule or basis of assessment the said committee adopted neither as to the assessment made upon themselves, nor upon the large majority of the taxpayers. of the city of Williamsport, thereby levying a tax upon him far beyond the tax levied upon other individuals upon the same subject matter.” The principal questions presented for our consideration are : 1st. Has the city of Williamsport power to assess and levy a tax upon “ occupations? ” and 2d. If it possesses such power, was the power exercised in accordance with the mandate of the Constitution ? We will consider these propositions in the order in which they are stated. It was conceded that the city comes under the general Act of May 23d, 1874, P. L., 230, entitled “An Act dividing the cities of this State into three classes,” &c., clause 1 of § 20 of which authorizes cities of the third class “ To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar, in anyone year, on all the real,personal and mixed property within the limits of said cities, taxable according to the laws of the State of Pennsylvania,” &c. It is very certain that an “ occupation” is not real, personal or mixed property within the meaning of this Act. We must therefore look further for authority to levy this tax. It is said to be found in the supplement to said Act passed on March 18th, 1875, P. L., 15, the first section of which enacts : “That it shall be lawful for cities of the third class, in their corporate capacities, to provide by ordinance or ordinances for the assessment and collection of taxes not exceeding one per centum upon the assessed valuation, in any year, on all persons, real and personal property, and all other matters and things within said respective cities, taxable for state and county purposes,” &c. The terms of this Act appear sufficiently broad. It was contended, however, that as there is no state tax on “ occupa lions,” it is not enough to show that they are made by law taxable for county purposes. In other words, before the city can show that she can tax any species of property it must appear that such property is taxable both for state and county purposes. We regard this as a narrow view of the Act of 1875. It was evidently intended to authorize cities of the third class to levy a tax upon any species of property which is at the same time taxable for either state or county purposes. The state limits its taxation to few subjects. Real Estate is entirely exempt. If we sustain the contention of the appellants the city could not tax the real estate within its limits, and upon the same principle many other prolific sources of revenue would escape taxation altogether by the municipality. It could not raise revenue to light its streets or pay its policemen. We are in no doubt as to the first proposition. The second presents a more serious question. Before I proceed to its discussion it is proper to dispose of the preliminary question of jurisdiction. It was urged that a court of equity will not interfere to restrain the collection of taxes, but will leave the party aggrieved to his remedy at, law. This is true where the tax is lawfully assessed, or where the matters complained of are mere irregularities in the valuation or assessment; but where there is either a want of power to tax, or a disregard of the Constitution in the mode of assessment, we have no doubt of the power and the duty of a court of equity to interfere : St. Clair School Board’s Appeal, 24 P. F. S., 256; Wheeler v. The City of Philadelphia, 27 Id., 338; Kitty Roup’s Case, 32 Id., 211. In view of the importance of this question it is essential to have a thorough understanding of the facts. They will be stated with greater detail than would have been necessary had there been a finding by a Master. The bill avers and the answer of the city admits that the tax upon “occupations” was based upon the income from said occupations. The tax committee of councils in their circular addressed to the assessors enjoined them “ to assess all offices and posts of profit, professions, trades and occupations at what you shall believe to be the actual yearly income arising therefrom.” The tax appears to have been levied under that portion of the city ordinance which provides that a tax shall be assessed on “ all personal property, and all objects and things assessed as unclassified.” Under this general provision the assessors were directed, as before stated, “ to assess all offices and posts of profit, professions, trades and occupations,” according to the income derived from them. There appears to have been no attempt to divide these several subjects of taxation, but all were included under the general term of “ occupation.” Nor was there any attempt at classification. Just how it was done fully’ appears in the testimony taken by the Examiner. William Norris, one of the assessors, was examined and said :— “Where I knew what a man’s salary was I assessed him eighty per cent, of it. That was done by authority of the tax committee, who instructed me to assess salaries at eighty per cent, of their amount, and not in any case to assess an income, whether derived from dividends, money at interest or mortgages. In the case of persons not receiving salaries, merchants, manufacturers, and the like, I assessed them, with the exception of professional men, such as attorneys and physicians, at a sum equal to what they could employ a person to do their work for them. I did not assess merchants, manufacturers and the like upon the basis of their incomes in any case ; I was positively directed not to do so. Laboring men I assessed at not less than $100. I was obliged to assess them that much ; none less than $100. If not that, nothing at all. I did not observe the same rule in assessing laboring men that I did in assessing salaried men, to wit, at eighty per cent, of their salaries. Laboring men averaged from $100 to $200. .....I made a distinction between income and occupation. I considered as income the result of some investment in real or personal property the principal of which paid tax. I considered as occupation what a man received as salary or earnings during the year.” William Tallman, assessor, said :— “ In making my assessment on occupations I considered that laboring men would be able to work 100 days in the year at $1 a day; so I assessed them at $100......Mechanics, and those who I considered earned more than $1 a day’, I assessed at $200. I did not assess laborers and mechanics at eighty per cent, of what I considered they earned. I observed no such basis with them. In the ease of men who received monthly’ or yearly salaries, if I knew what they’got, I assessed them at eighty per cent, of such amount. Those persons who received no salary or wages I also assessed with an occupation. Such persons I assessed upon no basis at all...... If a man had $50,000 in business, which I knew brought him a return of $10,000 a year, I would assess him at $8,000. .....I assessed John H. Burrows, hatter, $500 ; I assessed him at that amount as being what I thought he could earn, and what his occupation would be worth; D. H. Troxell, grocer, $200 ; I thought he could make that amount in his business, so I assessed him with an occupation of $200; John Kurtz, shoe merchant, $200; E. M. D. Levan, stoves, $500 ; Hie committee reduced it to $800 : I guess lie was on the committee ; Thomas Polleys, wholesale grocer, $300; I put him at $300 and the committee raised it to 8600 ; I thought $300 was about what he was worth ; he was old and could not do much.” Frederick Graeff, another assessor, said:— “ 1 have men in here from $25 up to $1,200 ,or $1,400, and some men I did not assess at all. I will explain it. Old men or crippled, and not able to work, I did not assess at all. Men who earned $100 I assessed at $25, and so on. Laborers who earned from $300 to $400, I assessed at $100. Mechanics I generally assessed at $150 to $200. Merchants, and those who had stores, I ascertained as nearly as possible how mucb, after paying all expenses of their business, not including family expenses, their profit would be, and I then assessed them accordingly, deducting a certain percentage, so as to equalize them with salaried men. I deducted their living expenses from their profits. In the case of salaried men I ascertained the amount of salary they received, and then deducted as near as possible their living expenses for themselves and tlieir families. Suppose a man received a salary of $1,000. I deducted say $200 or $300 for living expenses. I made no difference in cases where the family was larger than in others.” It is needless to multiply these extracts from the testimony. A number of other assessors were examined, with like result. Each appears to have had his own crude notions of bis dutjp and to have made Ms assessments iiecording to bis ideas of equity. So fixed rule seems to have prevailed among them. The assessment upon “occupations” is hopelessly, incurably vicious. The plain mandate of the Constitution has been wholly ignored. It is in direct violation of § 1, Article IX., which requires that “ All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax,” &c. The learned Judge of the court below failed to see in the evidence anything like want of uniformity in the assessment of this tax. This, however, is more in the nature of a conclusion of law upon the testimony than as a finding of fact. He says : “ It has not been shown that any occupations have been exempted from the assessment of a tax under the Act of March 18th, 1875, nor that there has been any discrimination in the mode of assessment. If the tax had been restricted to only certain kinds of occupations, or to a particular class, and others had been exempted therefrom, the inequality and want of uniformity would be manifest. But nothing of tlic kind appears in the evidence.” These views of the learned court are well enough as far as they go, but they So not come to the proper standard of uniformity. However they might have been regarded prior to the adoption of the present Constitution, they do not conform to the requirements of the organic law as it exists at the present time. That requires not merely that there shall be no exemption of persons or classes, but that upon persons and classes the tax shall be uniform. Thus in levying a tax upon “ occupations,” a tax of $100 upon every person having a known occupation would be uniform. But what uniformity is there in laying an “ occupation ” tax of $100 upon A. and a like levy of $200 upon B., the occupation of each being similar ? The answer, and the-only one that can be urged is, that B. earns double the amount that A. does. This brings us at once to a vice underlying the whole case. Under the guise of an “ occupation ” tax, the city of Williamsport has levied, and is seeking to collect, an income tax. Of all forms of taxation this is the most odious to the American people. It was submitted to during the war from a feeling of patriotism in view of the great financial strain to which the country was subjected. But when no such cause exists there is little excuse for imposing such an obnoxious burden; still less ought it to be permitted without authority of law, and under the cloak of a tax upon occupations. The tax we are considering is especially odious from the fact that it assumes to tax the income derived from labor and exempts the income derived from capital. This will be understood by a reference to the testimony which I have cited, from which it appears that in assessing the value of a laboring man, a. clerk, a lawyer, a physician, or a clergyman, the value of his occupation was fixed by reference solely to the income he derived, or was supposed to derive, from it; while upon the banker, the merchant, or the manufacturer, no such rule was adopted; he was assessed at what it would cost to hire a clerk to perform his duties. Yet so crudely was the matter done, that there appears to have been no uniformity even in the want of uniformity. This will appear by an examination of Mr. Graeff’s testimony. The power to levy an occupation tax gave the city no right to levy an income tax. It gave the assessor no authority to inquire into the income of any one, nor to base anything upon a refusal to answer such questions. The inquiry itself was impertinent and unlawful. It maj'- be asked how an occupation is to be assessed,, and how is the constitutional mandate to be complied with ? The answer is not difficult. A tax of $100 upon all occupations would be uniform. We are.at once confronted with the objection that it would be unjust to tax the occupation of a laborer the same amount as a merchant, a physician, or a lawyer. The injustice of sucli an exercise of the taxing power may be conceded, without in any degree impairing the force of the argument. The objection is one that appeals more to the legislative than to tbe judicial department of the government. The proper result may possibly be reached by classification. Tims, it may be that physicians, lawyers, clergymen, merchants, bankers, manufacturers, mechanics, &c., may be classified, and a uniform occupation tax assessed upon eacli class. But it will not do to tax one member of a class @100 and another member of the same class @1,000, upon the supposition, or even upon the fact, that the one earns more than the other. An “ occupation ” tax is peculiar in its character. It is not a tax upon property, but upon the pursuit which a man follows in order to acquire property and support bis family. It is a tax upon income in the sense only that every other tax is a tax upon income ; that is to say, it reduces a man’s clear income by the precise amount of the tax. But it is an income tax in no sense. It will be time enough to assess an income tax when the legislature authorizes it; at present no such authority exists. The decree is reversed, and it is ordered that the record be remitted to the court below with instructions to issue an injunction as prayed for in the bill; the costs in this court and in the court below to be paid by the city of Williamsport, appellee.

Opinion by Mr. Justice Mitchell, The first assignment of error we are obliged to sustain. The general effect of Lytle’s testimony was that Warfel said he had told the chief of police to notify Mrs. Long about her pavement in the fall of 1889, and yet it is conceded that Warfel was' not elected burgesfe of defendant until 1890. Lytle did not attempt to explain this discrepancy, and the learned judge should either have struck out the testimony as requested, or at least have called the jury’s attention to it, and instructed them distinctly that no notice or knowledge imputable to Warfel before he became burgess could in any way bind the borough. Instead of so doing however, he said, in refusing the motion to strike out, that such notice or knowledge in the fall of 1889 might “ bear upon the question whether or not as chief burgess he knew,” etc. This is contrary to the settled law. “ It is only during the agency that the agent represents and stands'in the shoes of the principal. Notice to him is then notice to his principal. Notice to him twenty-four hours before the relation commenced is no more notice than twenty-four hours after it ceased would be. Knowledge" can be no better than direct actual notice.” Sharswood, J., in Houseman v. Girard Ass’n, 81 Pa. 256. In referring to Lytle’s testimony, the learned judge in his charge did not instruct the jury on this point, and hence they maj'- well have supposed that if Warfel knew of the defect in 1889 his knowledge would continue and bind the borough after he became burgess. But the most important error in the case is embodied in the fifth assignment. The learned judge calling the jury’s attention to the testimony that a pavement of hemlock boards such as this was, would not' last ordinarily over four to six years,. said that the chairman of the street committee and the chief of police (whose duty it was by ordinance to look after the sidewalks) were presumed to know this fact, and “ it was their duty to exercise proper supervision or make proper examination of this pavement by going upon and testing it to discover, if by the eye they could do so, whether the pavement was defective or not.” This was holding the borough to too stringent a rule of responsibility. It was in fact applying to it the measure of duty laid down for an employer in not only furnishing safe tools to his workmen, but in knowing their liability to decay, and in replacing them at the proper time : Baker v. R. R. Co., 95 Pa. 211. But there is a clear distinction to be taken between the duties in the two cases. That of the master is primary and absolute, to know and to do, while that of the borough, or of any municipality, as to sidewalks, is secondary and supplemental, to see that the property owner makes and maintains a safe pavement, and its breach of duty is not in failing to do the work, but in failing to compel the owner to do it. It is entitled therefore to notice, actual or implied, of the existence of the defect. This is the settled rule even as to defects in the street, where the duty to keep in repair is primary and mandatory. The charge of the learned judge would require the borough to know how long every pavement had been laid, and to keep informed of what repairs the owner had made upon it, in short, to seek for defects. The law only requires that it shall be vigilant to observe them when they become observable to an officer exercising reasonable supervision. The difference is not one of mere words, but one of great practical importance, for it is always .easy to show, after an accident, how the defect might have been found if it had been sought for; and to tell a jury that it is the duty of the municipality to seek, is to give them an opportunity, which few will hesitate to take, to make municipalities insurers against accidents of all kinds in the streets. In the recent case of Burns v. Bradford City, 187 Pa. 361, our brother McCollum: said: “ A municipal corporation is not an insurer against all defects in its highways, but it is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or neglect, it is not liable, unless it has express notice, or the defect be so notorious as to be evident to all passers.” It was accordingly held in that case that although “ it is a fact well known to the inhabitants of all our municipalities that sidewalks are liable in the winter to be thrown out of level by the action of the frost,” yet the plaintiff, who was injured, very much in the same manner as the present plaintiff was, by the stringers of a plank walk being raised higher on one side than the other, could not recover without proof that the defect was observable by all passers. So here, the proper instruction to the jury should be that the borough was bound to keep a reasonable supervision over the condition of its sidewalks, but it was not liable for negligence unless it had actual notice or knowledge of the defect complained of, or it was so plain to observation and had existed so long a time that officers exercising a reasonable supervision ought to have observed it. No case has been brought to our attention which holds any stricter rule than this. In Rapho Township v. Moore, 68 Pa. 404, it was held that when a bridge is old and has stood as long as the timbers usually last, it is negligence to omit proper precaution to ascertain its true condition. But there the duty to maintain the bridge was primarily and absolutely on the township, and the same element runs through all the other cases cited by appellee. Judgment reversed, and venire de novo awarded.

Opinion by Mjr. Justice Mitchell, No particular material is necessary to constitute a pavement. It may be made of anything which will produce a hard firm smooth surface for travel. But that with which we are specially concerned in the class of cases to which this belongs, is a pavement which marks the ^conversion in a legal sense, of a common road into a street, for that is the only kind for which under the settled line of authorities from Hanmiett v. Philadelphia, 65 Pa. 146, down, an abutting property owner can be compelled to pay. As said by the present chief justice in Harrisburg v. Segelbaum, 151 Pa. 172, “the controlling consideration is not so much whether the prior improvement of Market street by macadamizing was in the strict sense of the word a paving thereof, as whether by said improvement the street was changed from an ordinary clay road into a good, reasonably smooth and substantial artificial highway, practically equivalent to an ordinarily well improved street, paved with cobble stone or other materials then used for paving.” But as on the one hand it is only the first pavement, whatever it be composed of, converting the road into a street, for which the city can charge the property owner, so on the other hand, as the city has the exclusive right to determine in the public interest when, how and with what material such conversion into a street shall take place, it is essential to such a first pavement as shall exonerate the abutting owner from further charge for improvement, that it shall be laid or adopted by the municipal authority. Not necessarily by formal-ordinance declaring the change, for it is not always convenient or even possible to make such documentary proof, but municipal recognition of the pave,ment of the street, as such, must appear, either by action in the first instance or by acquiescence and adoption subsequently. The other questions which usually arise as to the kind of pavement, whether by wood, or cobble stones or macadamizing or otherwise, and who paid for it, are subordinate, and are only material or relevant as bearing on the main issue of municipal recognition. They have been treated therefore by this court not as questions of law but as questions of fact whose weight and bearing depended on the other evidence and the circumstances of each ease. There is no conflict in the decisions, but as their exact effect has not always been clearly understood it may be worth while to review them so as to settle any existing doubts. The cases may for convenience be grouped into those in which wood or macadam was held to be a street pavement, and those in which they were held not to be such pavement. First. In Alcorn v. Philadelphia, 112 Pa. 494, the point was not directly raised, but was distinctly foreshadowed by the language of Tetjnkey, J.: “ There is no evidence that councils did anything in obedience to that provision. Neither ordinance nor contract is proved. And the oral testimony is too meager to warrant submission to the jur}' to find whether the said part of Broad street had been macadamized under and in pursuance of an ordinance of the city,” thus implying that if it had been, it would have been a sufficient paving by municipal authority. In Williamsport v. Beck, 128 Pa. 147, it appeared that the street had been paved with wood by the city under an ordinance, and it was held that a property owner could not be charged for a subsequent pavement, the change to a paved city street having already been made by the municipal authority, and the question who paid for it being therefore immaterial. . In Greensburg v. Laird, 138 Pa. 533, the affidavit of defense averred among many other things, that the street in question was a great public thoroughfare, one of the principal streets in the borough, and had been macadamized for many years and for at least thirty had been kept up and repaired at the public expense. This court held that the facts set up were sufficient to go to the jury as evidence of municipal adoption of the macadamized road as a borough street. , In Harrisburg v. Segelbaum, 151 Pa. 172, it appeared that Market street had been a macadamized highway in the central built-up part of the city for more than half a century, and had been kept in repair as such at the corporate expense. The court below declining to say that macadamizing and paving were always identical, nevertheless directed a verdict for defendant on the ground that the whole evidence and circumstances of that case showed it was a pavement under the municipal authority, and this was affirmed. Boyer v. Reading, 151 Pa. 185, was very similar to the last case. It was a bill to enjoin a contract by'the city for an asphalt pavement at the cost of the property owners, averring that the street in question was a street in the built-up portion of the city, maintained as such at the public expense for a hundred years, turnpiked in 1805, and after abandonment by the turnpike company, torn up and reconstructed, “spalled” or macadamized, by the city. The answer admitted the foregoing facts, and that the paving was of the same character as the other streets of the city of Reading. It was held that the property owners could not be charged for the new asphalt pavement. In Philadelphia v. Ehret, 153 Pa. 1, it appeared by case stated that a strip in the center of Allegheny avenue, then in a suburban district of the city, had been macadamized in 1869 under the authority of an ordinance of councils, and paid for by the property owners. It was held that the owners could not be charged with the cost of a new paving of this strip with asphalt in 1891, when Allegheny avenue was within the built-up portions of the city, with gas and water pipes, sewers, etc. in front of defendant’s property. Secondly; the class of cases in which macadamizing has been held not to be a street pavement. In Philadelphia v. Baker, 140 Pa. 11, the claim was for paving with vitrified brick, and the affidavit of defense averred that the street had been macadamized at the cost of the property owners, and “ said macadamizing was in the style universally adopted for years past in the twenty-second ward where said property is situated.” The court below gave judgment, and it was affirmed on the distinct ground that there was “ no averment that the city in any way recognized the kind or quality of pavement which the defendant alleges was placed on Miller street.” In Philadelphia v. Dibeler, 147 Pa. 261, at the trial of a claim for paving Woodlands avenue, an old county road, with vitrified brick under an ordinance of councils, defendant offered to prove that the city liad previously appropriated a very large sum for the repair of the street, under which a contract for macadamizing had been made and carried out, and further to show the substantial nature of the work done thereunder. The^ court excluded this evidence, and was sustained on the ground that an appropriation for repairs although extensive and of a reasonably permanent character did not amount to a municipal recognition of the road as a paved street. Philadelphia v. Hill, 166 Pa. 211, was another claim on the same street, Woodlands avenue, and under the same facts as Phila. v. Dibeler, and was decided on the authority of that case. Leake v. Philadelphia, 150 Pa. 643, is not unfrequently cited as one of this class of cases, but it simply decided that the court below was right in refusing a preliminary injunction. The subject of paving was learnedly discussed by the court below, but this court as is the usual practice in such cases refrained from passing on the merits of any of the questions involved until final hearing. The case has no material bearing on the present inquiry. These are all the cases upon the subject, and bringing them thus together in review shows that although they have sometimes led to diverse conclusions on the varying facts and circumstances they are all governed by one single principle, the municipal recognition of a change from an ordinary road to a village or city street. A first pavement therefore, in the legal sense, which exempts the abutting property owner from liabilitj1- for any subsequent improvement, may be defined generally as one that is put down originally or adopted or acquiesced in subsequent^, by the municipal authority, for the purpose and with_the intent of changing anurdinary road into a street. It ma3r be of macadam or of anything else. That is a matter of evidence only. If the purpose and intent be wanting, a mere surfacing of the road, however carefully or expensively done, will not be a paving, but if the intent and purpose are present, or to be fairly inferred, then there is a paving whatever the material may be. It may perhaps be safely stated as a corollary that, prima facie, macadamizing is not a street paving in Philadelphia or probably in other large cities, while on the other hand there may be a presumption the other way in smaller cities or towns, as indicated in Greensburg v. Laird, Harrisburg v. Segelbaum, and Boyer v. Reading. Some illustrations of the legislative use of the word in relation to paving will be found in the opinion of WILLSON, J., quoted in Leake v. Phila., 150 Pa. 643, 649, 650, and in some of the other cases cited, supra. ' But Philadelphia v. Ehret, 158 Pa. 1, shows that there is no hard,and fast rule on the subject of the kind of paving. It is a question of fact in each case, and’the governing consideration is the nature of the municipal action with regard to it. When the boundaries of the city of Philadelphia were made coterminous with the count, by the consolidation act of 1854, certain rural and suburban districts, with their roads, were brought under the municipal jurisdiction. Some of these were mere township roads, while others were main arteries of travel and trade, built up closely for considerable distances so as^to be practically streets. Radiating from the old city were several principal thoroughfares such as Moyamensing and Passyunk roads to the south, Erankford, Old York, Germantown and Ridge roads to the north. These the c^ might continue as ordinary though important and much traveled roads, and keep in repair as such until the proper time should arrive for the change, or on the other hand might recognize or adopt as streets sufficient^ well paved for all the requirements of the present or near future. And if the latter cour&e was adopted as to any road or any portion thereof, no matter how or with what material it was paved, then it became a street as a result of such action, and the future growth of the city, and necessity of a different pavement would not change its character or subject the abutting owners to charge for new paving. The case of Allegheny Avenue, Philadelphia, v. Ehret, 153 Pa. 1, is an illustration of this result. The present claim is for paying with Belgian blocks a part of Ridge avenue, one of the main thoroughfares above referred to, leading northwest from the old city. The affidavit of defense sets forth that the road was macadamized by the Ridge Turnpike Company in 1811, and so maintained until it was acquired by the city in 1873; and since 1873 the city “has maintained the said road or turnpike as a public highway, and has repeatedly repaired and repaved the same with macadam.” There is nothing here to show that Ridge avenue, where appellant’s property is situated, has ceased to be a road and become a street, still less that it has become so by municipal action or acquiescence. The Ridge turnpike by the charter of 1811 (P. L. 167) began at Tenth and Vine streets in Philadelphia, and extended to Perkiomen bridge in Montgomery county. In fact it was made to begin at Ninth and Vine. We might assume'from our general knowledge of the localities that in 1890 it had certainly become a street at Ninth and Vine, and almost certainly had not become a street at Perkiomen bridge. But its status as a road or a street at the intermediate point in Roxborough does not appear, and the affidavit showing that down to 1873 it was not a paved street, the burden was on appellant to show that its character in that respect had changed. This the affidavit fails to do. Mere maintenance as a highway, and repairs and repavings for the purpose of such maintenance, are all that are averred, and 'these are not sufficient: Phila. v. Dibeler, 147 Pa. 261. Judgment affirmed.

Opinion by Me. Justice Walling, Arthur E. Shaw, the defendant, resided in German-town and kept his automobile or car about four blocks away on the premises of Wm. E. Volz, who occasionally acted as defendant’s chauffeur. While so engaged on January 4, 1914, he drove the defendant home and then obtained his permission to take the car and bring home the chauffeur’s family from where they were visiting in another part of the city. While so doing he ran down and injured the plaintiff. The occupants of the car then being the chauffeur, his wife and their four children. On hearing that an accident had occurred, defendant with the chauffeur, went to the place, admitted his ownership of the car, and that Mr. Volz was his chauffeur, took plaintiff to the hospital, and offered other assistance. There is some evidence that Mr. Volz stated in effect that defendant had sent him for his family. And, while defendant may have been present at the time, it does not appear that he ratified such statement. Mr. Volz’s evidence is that defendant gave him permission to take the car; and the testimony would not justify a finding that defendant s.ent Mr. Volz after the latter’s family. The trial judge directed a verdict for defendant because the proof failed to show that the chauffeur, at the time of the accident, was engaged in the master’s business. This was affirmed by the Superior Court. In our opinion no error was thereby committed. In an action to recover damages for injuries resulting from an automobile accident, it is necessary for plaintiff to prove not only that defendant was the owner of the car and that the driver was his servant, but that such servant was at the time engaged in the master’s business: Lotz v. Hanlon, 217 Pa. 339; Curran v. Lorch, 243 Pa. 247; Sarver v. Mitchell, 35 Pa. Superior Ct. 69. “He (plaintiff) must show that the relation of master and servant existed between the defendant and the person in charge of the car at the time of the accident, and that the servant was engaged in his master’s business and was acting within the scope of his employment at the time the tortious act was committed resulting in the injury to the plaintiff. The servant must not only be engaged in and about his master’s business, but must be acting within the scope of his employment in operating the machine, to impose liability upon the master. The test of liability is whether the servant at the time of the plaintiff’s injury was acting within the scope of his authority in furtherance of his master’s business”: Luckett v. Reighard, 248 Pa. 24, 31. Herein plaintiff’s case fails, for at the time of the accident the chauffeur was engaged in his own business, to-wit, in the transportation of his family, a matter of no concern to defendant. And from the time the chauffeur started for his family until he arrived home with them, he was not engaged in the master’s business. The location of the garage is not controlling, for the work in hand which took the chauffeur to the place of the accident was the transportation of his family,-and not the putting away of the car. In Moon v. Matthews, 227 Pa. 488, and Hazzard v. Carstairs, 244 Pa. 122, the facts are different. Theré in each case, the chauffeur was acting in the general line of his duty and in obedience to directions given him by a member of defendant’s family, and not to serve any purpose of his own. And the rule stated in Moon v. Matthews, supra, that where the servant is operating the car in such manner as machines are usually operated, it naturally raises a presumption that he is doing so in the master’s service, does not apply here, because in carrying his own family the chauffeur was employing the master’s car for an unusual purpose, and the master is not liable merely because he gave the servant permission so to do. The efforts of the owner of a car to relieve the sufferings of one injured thereby cannot be made the basis of a legal liability, unless by reason of some agreement or admission. And the declarations of the servant made after an accident are not evidence against the master unless ratified by him. In view of the comprehensive opinion of Judge Kephart, we are spared further discussion. The assignment of error is overruled and the judgment of the Superior Court is affirmed.

Opinion by Me. Chief Justice Hoeace Steen, A petition filed by defendant for the allowance of an appeal from the judgment of the Superior Court (176 Pa. Superior Ct. 219, 107 A. 2d 739) affirming his conviction and sentence on the charge of armed robbery seemed to us to establish a reasonable doubt whether he had had a fair and proper trial and therefore we allowed this appeal. On the early morning of March 12, 1952, one Saul, a resident of Butler, went, together with three friends, Fratta, Mendocini and Yergili, to a hotel in Pittsburgh, where they indulged in a drinking orgy that apparently continued on during that entire day. In the late evening they started to return to Butler in Saul’s automobile, Mendocini driving. The Commonwealth produced evidence to the effect that instead of pursuing a direct route the automobile was driven to a point near Rankin where it was stopped by defendant, Fred Burdell, who was, and for 20 years had been, a policeman and was then in uniform; that defendant asserted that the car had been driven through a stop sign and charged also that the occupants were numbers writers; that he threatened he would confiscate the car but suggested that he would accept a bribe to “fix” the case; that Saul offered him §100 but on defendant’s indicating that he wanted more Saul took out his wallet and Fratta extracted from it §2,600 which he handed to defendant; that defendant then ordered them to get out of the district and stay out. A witness testified that oh the morning of the following day, March 13, he saw five men in the Court House in Butler, one of whom was being asked such questions as “Did you find the safe?” and “Did you bring the money?” He claimed to identify one of those men as Yergili and another as the defendant; the others were unknown. On the afternoon of March 14, while Saul’s wife was in their home in Butler but Saul himself apparently absent, three armed men entered the house. Two of them tore out the telephone, took Mrs. Saul to the upstairs hall, struck her and cut her face. Meanwhile the third man opened the safe which was on the first floor and extracted over $100,000 in cash and bonds. The three then joined a fourth man who had remained outside, entered an automobile and drove away. Mrs. Saul, a few days later, identified defendant from a photograph shown her in the Detective Bureau, and again in person when he was stood up before her, as being one of the men who had been engaged in the robbery and had assaulted her. At first she also identified Vergili, Fratta and Mendocini but subsequently retracted her identification of Vergili and Mendocini. Defendant, Yergili, Fratta and Mendocini were indicted in Allegheny County for the alleged crime committed at Rankin on the evening of March 12, but they have never been tried on that indictment. Defendant alone was indicted and tried in Butler County on charges of armed robbery and assault and battery allegedly committed at the Saul house on March 14. He was found guilty and his conviction and sentence were, as already stated, affirmed by the Superior Court. There were, in our opinion, several errors committed in the course of the trial which we shall briefly note hereafter, but one of them impresses us as having been particularly flagrant and in itself necessitates the granting of a new trial. We refer to the fact that the court allowed the Commonwealth, under objection, to put in evidence testimony of Saul in regard to the crime allegedly committed by defendant on March 12 of extorting money from him under the threat of confiscating his automobile. One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant. It is held that such evidence is admissible only where the former alleged crime or crimes are of the same nature as the one under trial and indicate a general intent or design on the part of the accused to conduct, for example, a series of similar robberies, or murders, or sex offenses, or poisonings of persons in order to obtain their insurance money, or the like; in other words, the prior criminal act or acts are evidential only if clearly constituting part of a chain, system, composite plan or scheme. This is all so well established that it would be but a work of supererogation to point out the many authorities enunciating these principles; merely as examples may be cited the discussions in such characteristic cases as Shaffner v. Commonwealth, 72 Pa. 60, 65; Commonwealth v. Williams, 307 Pa. 134, 147, 148, 160 A. 602, 606, 607; Commonwealth v. Chalfa, 313 Pa. 175, 177, 178, 169 A. 564, 565; Commonwealth v. Bardolph, 326 Pa. 513, 521, 522, 192 A. 916, 921; Commonwealth v. Strantz, 328 Pa. 33, 43, 44, 195 A. 75, 81; Commonwealth v. Petrillo, 338 Pa. 65, 79, 80, 81, 12 A. 2d 317, 325, 326; Commomoealth v. Krolak, 164 Pa. Superior Ct. 288, 290, 64 A. 2d 522, 523, 524; Commonwealth v. Ransom, 169 Pa. Superior Ct. 306, 312, 313, 314, 82 A. 2d 547, 549, 550. Applying the principles thus stated to the present case it is clear that, since the crime alleged to have been committed at Rankin on the evening of March 12 was that of extortion, or the levy of blackmail, while the crime committed in Butler on the afternoon of March 14 was that of armed robbery, the two have no relation to one another for they are wholly dissimilar in nature. In robbery the taking of property is against the will by means of force or violence, while in extortion the taking is with the consent of the victim, induced, as it may be, by the threat of some exposure or the making of some criminal charge whether false or otherwise: People v. Peck, 43 Cal. App. 638, 642, 643, 185 P. 881, 882, 883; State v. Casto, 120 Wash. 557, 207 P. 952; People v. Anderson, 59 Cal. App. 408, 426, 211 P. 254, 261, 262; McKeown v. State, 34 Okla. Cr. 381, 246 P. 659; 77 C.J.S. 447, §1. A person who would be apt to commit the crime of blackmail or extortion is a very different type from the one who would burglarize a house, commit a vicious assault, and rob at the point of a gun. Indeed the Commonwealth, in the present case, evidently realizing that there must be some special basis shown to justify the introduction in the robbery trial of testimony relating to the extortion charge, contends that both crimes were committed as the result of a general plan to obtain Saul’s money in one way or another, and that there was a conspiracy entered into between defendant, Fratta, Vergili and Mendocini for that purpose; as phrased by the special prosecutor who represented the Commonwealth, there was “a general conspiracy on the part of Burdell and the three alleged associates of the witness [Saul] to cheat, defraud and steal from the witness,” and the robbery was a part of this “general scheme.” It must be immediately apparent that the Commonwealth is hopelessly inconsistent when it makes this contention. For not only has it failed and refused to indict Fratta, Vergili and Mendocini for the robbery but, on the contrary, it has withdrawn the charges against them with the consent of the District Attorney because of its deeming the evidence against them insufficient. Certainly if there was the broad conspiracy it claims, including in its scope the robbery of Saul’s safe, Yergili, Fratta and Mendocini were equally guilty with the defendant of the perpetration of that robbery whether they actually participated in it or not. It is hornbook law that a conspirator is criminally responsible for the acts of his co-conspirators which are committed in furtherance of the common design even though he was not present when the acts were committed: Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75, 79; 15 C.J.S. 1105, §74. It was said by Chief Justice Gibson in Rogers v. Hall, 4 Watts 359, 361, that “the least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all.” How, then, can the Commonwealth in one breath say that it has withdrawn the charges against these three other persons because of apparently admitted inability to establish a case against them as far as the robbery is concerned, and in another breath contend that it has proved the existence of a conspiracy between the defendant and the other three which included tlie plot to rob the safe? In fact the testimony does not establish the existence of a conspiracy of that range. To prove a criminal conspiracy the evidence must rise above mere suspicion or possibility of guilty collusion: Ballantine v. Cummings, 220 Pa. 621, 630, 631, 632, 70 A. 546, 550; Commonwealth v. Benz, 318 Pa. 465, 467, 468, 178 A. 390, 391; Commonwealth v. Bardolph, 326 Pa. 513, 521, 522, 192 A. 916, 920; Novic v. Fenics, 337 Pa. 529, 535, 11 A. 2d 871, 874; Commonwealth v. Goldberg, 130 Pa. Superior Ct. 252, 261, 196 A. 538, 542. Assuming, arguendo, that the testimony here might be found sufficient to establish that the three men who caroused with Saul at the hotel in Pittsburgh planned among themselves to extort money from him on the journey home to Butler, that Mendocini telephoned to defendant from the hotel to intercept the car enroute (although there is no evidence to that effect), and that in pursuance of such a plot defendant did stop the car, and, by threatening to make a false charge against him, succeeded in obtaining the money from Saul, there is no evidence whatever that any such agreement, scheme or understanding between the parties embraced any design or project to enter Saul’s house and rob his safe. It is true that there was the vague and loose testimony of the witness to an alleged conversation on March 13 between defendant and some other person which referred to a safe and to “getting the money,” but this was far from establishing any pre-existing agreement or collusion on the part of these “conspirators” for the purpose of effecting an armed robbery. Clearly, therefore, there was no justification for admitting in evidence at defendant’s trial the testimony concerning the event that took place two days before at Rankin on the ground that the two alleged crimes formed part of a general scheme, plot or conspiracy. As previously stated, we are of opinion that there were other errors committed in the course of the trial here under review. The court admitted evidence, through a tape recording, of a conversation between defendant and Yergili while they were both confined in the State Police barracks at Butler. This conversation did not contain any admissions of guilt by defendant or any matters tending to establish such guilt, but the offer was merely for the purpose of contradicting testimony he had given on cross-examination in regard to purely collateral matters. It is well established that a witness cannot be contradicted on collateral matters to test credibility: Hester v. The Commonwealth, 85 Pa. 139, 157; Commonwealth v. Petrillo, 341 Pa. 209, 223, 224, 19 A. 2d 288, 295; Commonwealth v. Truitt, 369 Pa. 72, 80, 85 A. 2d 425, 429. While it is true that counsel for defendant allowed the tape recording to be admitted the result was undoubtedly damaging to defendant because the conversation was marked by vulgar language which naturally would prejudice the jury against him. The Commonwealth offered in evidence a photograph of defendant taken several years previously as being the one from which Mrs. Saul originally identified him. It was a Bertillon or police picture and it showed a card or plate attached to his coat lapel with an inscription thereon disclosing that the photograph came from the Allegheny County Detective Bureau. To make the matter worse, the District Attorney and county detectives were allowed to explain that defendant was under arrest “charged with some crime” at the time the picture was taken. Even if there was any proper purpose in the offer of the photograph into evidence it was certainly improper not to delete the matter printed thereon, because the jury would necessarily be prejudiced by disclosure of the fact that defendant had been charged years before with the commission of another crime. It is true that here also defendant’s counsel did not object to the introduction of the picture or to the other evidence in connection therewith, but at another trial, and in the absence of such con sent by counsel, such errors in the admission of evidence should not be repeated. It may also be noted that a reading of the trial judge’s charge to the jury reveals several assumptions of fact not justified by the evidence, as, for example, that the other “conspirators” conveyed information to defendant regarding Saul’s safe and its contents; there was no evidence to that effect nor indeed any testimony as to any conversations between them or any of them on any subject whatever. Because of the improper admission into evidence of the events that allegedly took place at Rankin on the evening of March 12 defendant is entitled to a new trial. The judgment of the Superior Court is reversed. The conviction and sentence of defendant in the Court of Oyer and Terminer of Butler County and the conviction of the defendant in the Court of Quarter Sessions of Butler County are set aside, and a new trial is granted. Incidentally, even Fratta has not been indicted although identified by Mrs. Saul as one of the robbers.

Opinion by Mr. Justice Allen M. Stearne, The question presented by the appeal is whether under a zoning ordinance the operation of a beauty shop in a residential classification constitutes an ac cessory professional use. The court below decided that it did not. Appellants, Frank A. Bonasi and Delia 0., his wife, are owners of a three story semi-detached dwelling located at 2813 Haverford Road, Ardmore, Haverford Township, Delaware County. The property is in a neighborhood zoned “B” Residential. Delia C. Bonasi, the wife, is a hairdresser and beautician. She holds a certificate as a beauty culture operator issued by the State Board of Cosmetology of the Department of Public Instruction. She also is a holder of a certificate of registration as the owner of a beauty shop at this address. Mrs. Bonasi has been conducting a beauty salon in a room in the basement of the residence, rendering services to customers during the day and night. The shop is equipped with dryers, permanent wave machine, manicure table, plumbing and various types of chairs. The Township Building Inspector notified appellants that the premises were being used contrary to the applicable Zoning Ordinance and ordered the discontinuance of its use as a beauty shop. Appellants appealed to the Board of Adjustment which dismissed the appeal. The applicable Zoning Ordinance is No. 785 of May 2, 1949, which amended Ordinance No. 260 of July 29, 1925. Under its terms structures or lots in “B” Residence Districts may be used or occupied for any use permitted in “AA” Residence Districts which, under Section 301, provides for single-family detached dwellings with, under subsection 8, an “accessory use . . . [which] shall not include a business use but shall include: ... (b) professional office.” (Italics supplied) Appellants contend that the wife’s operation of a beauty shop or salon, in connection with her services as a licensed hairdresser and beautician, constitutes the practice of a “profession” and hence she is using the property as a “professional office”. The learned court below, after considerable research and consideration, discussed the pivotal question of-whether or not the vocation of a hairdresser and beautician constitutes the practice of a profession. The Ordinance, it is true, does not define the terms “profession” or “professional office”. But in judicially construing the enactment in question we are not concerned with abstract or theoretical definitions. We are required to “construe” the meaning of the words employed as intended, used in, and evidenced by the Ordinance. It is a principle of statutory construction that-in construing a legislative enactment the court must ascertain and give effect to the legislative intention as expressed .in the language employed: Statutory Construction Act of May 28, 1937, P. L. 1019, 46 PS §533, 551, 552. In Sterling v. Philadelphia, 378 Pa. 538, 106 A. 2d 793, Chief Justice Stern said (p. 542) : “A legislative body may, in a statute or ordinance, furnish its own definitions of words and phrases used therein in order to guide and direct judicial determination of the intendments of the legislation although such definitions may be different from ordinary usage; it may create its own dictionary to be applied to the particular law or ordinance in question.” See also Hughes v. Pittsburgh, 379 Pa. 145, 108 A. 2d 698. A reading of the Zoning Ordinance makes it crystal clear that the term “professional office”, as used in the enactment in relation to “B” Residence Districts, was not intended to include a beauty shop. The Ordinance, in Article XII, H Business Districts, section 1201' (4), provides for “Personal service shop, tailor, barber, beauty, shoe repair, dress making shop and other personal service shop or store”. (Italics supplied) Since the use of a beauty shop, described mter alia as a “per sonal service shop”, is specifically permitted as a business use, it is inconceivable that a similar use was intended as an accessory professional use in a “B” Residence District. It is plain that the Ordinance did not so intend. Appellants’ other contentions do not merit discussion. Order affirmed at cost of appellants.

Opinion by Mr. Justice Roberts, Under traditional concepts of zoning the task of determining the type, density and placement of buildings which should exist within any given zoning dis trict devolves upon the local legislative body. In order that this body might have to speak only infrequently on the issue of municipal planning and zoning, the local legislature usually enacts detailed requirements for the type, size and location of buildings within each given zoning district, and leaves the ministerial task of enforcing these regulations to an appointed zoning administrator, with another administrative body, the zoning board of adjustment, passing on individual deviations from the strict district requirements, deviations known commonly as variances and special exceptions. At the same time, the overall rules governing the dimensions, placement, etc., of primarily public additions to ground, e.g., streets, sewers, playgrounds, are formulated by the local legislature through the passage of subdivision regulations. These regulations are enforced and applied to individual lots by an administrative body usually known as the planning commission. This general approach to zoning fares reasonably well so long as development takes place on a lot-by-lot basis, and so long as no one cares that the overall appearance of the municipality resembles the designed achieved by using a cookie cutter on a sheet of dough. However, with the increasing popularity of large scale residential developments, particularly in suburban areas, it has become apparent to many local municipalities that land can be more efficiently used, and developments more aesthetically pleasing, if zoning regulations focus on density requirements rather than on •specific rules for each individual lot. Under density zoning, the legislature determines what percentage of a particular district must be devoted to open space, for example, and what percentage used for dwelling units. The task of filling in the particular district with real houses and real open spaces then falls upon the planning commission usually working in conjunction with an individual large scale developer. See Chrinko v. South Brunswick Twp. Planning Bd., 77 N.J. Super. 594, 187 A. 2d 221 (1963). The ultimate goal of this so-called density or cluster concept of zoning is achieved when an entire self-contained little community is permitted to be built within a zoning district, with the rules of density controlling not only the relation of private dwellings to open space, but also the relation of homes to commercial establishments such as theaters, hotels, restaurants, and quasi-commercial uses such as schools and churches. The present controversy before this Court involves a frontal attack upon one of these zoning districts, known in the trade as a Planned Unit Development (hereinafter PUD). Spurred by the desire of appellant developer to construct a Planned Unit Development in the Borough of New Hope, in December of 1964 borough council began considering the passage of a new zoning ordinance to establish a PUD district in New Hope. After extensive consultation with appellant, council referred the matter to the New Hope Planning Commission for further study. This body, approximately six months after the project idea was first proposed, formally recommended to council that a PUD district be created. Council consulted with members of the Bucks County Planning Commission on the text of the proposed ordinance, held public hearings, and finally on June 14, 1965 enacted ordinance 160 which created the PUD district, and ordinance 161 which amended the borough zoning map, rezoning a large tract of land known as the Rauch farm from low density residential to PUD. Pursuant to the procedural requirements of ordinance 160, appellant presented plans for a Planned Unit Development on the Rauch tract to the borough planning commission. These plans were approved on November 8, 1965, and accordingly four days later two building permits, known as. zoning permits 68 and 69, were issued to appellant. (Some question exists as to the current status of these permits, see text infra.) Subsequently, permit number 75 was issued. Appellees, all neighboring property owners opposing the issuance of these permits, appealed to the zoning board of adjustment. The board,: after taking extensive testimony, upheld ordinances 160 and 161 and accordingly affirmed the issuance of the permits. Appellees then appealed to the Court of Common Pleas of Bucks County. That tribunal took no additional testimony) but reversed the board, holding the ordinances invalid for failure to conform to a comprehensive plan and for vesting too much discretion in the New Hope Planning Commission. This Court granted certiorari under Supreme Court Buie 68%. The procedural posture of this case is identical to that of National Land & Investment Co. v. Easttown Twp. Bd. of Adjustment, 419 Pa. 504, 523, 215 A. 2d 597, 607 (1965). Our scope of review may thus be stated by reference to that decision: “The zoning enabling act being silent as to a right of appeal,, we consider this case on broad certiorari, reviewing the testimony, the evidence, and the entire record. Keystone Raceway Corp. v. State Harness Racing Comm’n, 405 Pa. 1, 173 A. 2d 97 (1961); Schmidt v. Philadelphia Zoning Bd. of Adjustment, 382 Pa. 521, 114 A. 2d 902 (1955). Because the court below took no additional testimony, we will look at the decision of the board- of adjustment to determine if, in upholding . . . [ordinances 160 and 161], the board committed an abuse of discretion or an error of law. Upper Providence Twp. Appeal, 414 Pa. 46, 198 A. 2d 522 (1964).” Applying this standard, we hold that no error of law or abuse of discretion was committed by the New Hope Board of Adjustment, and that therefore the Court of Common Pleas of Bucks County must be reversed. I. ■ Approximately one year before the PUD seed was planted in New Hope, borough council had approved the New Hope Comprehensive Plan. This detailed land use projection clearly envisioned the Rauch tract as containing only single family dwellings of low density. The court below therefore concluded that the enactment of ordinance 160, and more specifically the placing of a PUD district on the Rauch tract by ordinance 161 was not “in accordance with a comprehensive plan,” as required by the Act of February 1, 1966, P. L. (1965) 1656, §3203, 53 P.S. §48203. See also Eves v. Zoning Bd. of Adjustment, 401 Pa. 211, 164 A. 2d 7 (1960). The fallacy in the court’s reasoning lies in its mistaken belief that a comprehensive plan, once , established, is forever binding on the municipality and can never'be amended. Cases subsequent to Eves haye made it clear, however, that these plans may be changed by the passage of hew zoning ordinances, provided the local legislature passes the new ordinance with some demonstration of sensitivity to the community as a whole, and the impact that the new ordinance will have on this community. As Mr. Chief Justice Bell so artfully stated in Furniss v. Lower Merion Twp., 412 Pa. 404, 406, 194 A. 2d 926, 927 (1963): “It is a matter of common sense and reality that a comprehensive plan is not like the law of the Medes and the Persians; it must be subject to reasonable change from time to time as conditions in an area or a township or a large neighborhood change.” This salutary rule that comprehensive plans may be later amended by the passage of new zoning ordinances has been approved not only in Furniss, but also in Donahue v. Zoning Bd. of Adjustment, 412 Pa. 332, 194 A. 2d 610 (1963). and Key Realty Co. Zoning Case, 408 Pa. 98, 182 A. 2d 187 (1962). Given this rule of law allowing post-plan zoning changes, and the presumption in favor of an ordinance’s validity, see National Land, supra at 521-22, 215 A. 2d at 607, we are not in a position, having reviewed the record in the present case, to say that the zoning board committed an abuse of discretion or an error of law when it concluded that ordinances 160 and 161 were properly passed. Presented as it was with evidence that the PUD district had been under consideration by council for over six months and had been specifically recommended by the borough planning commission, a body specially equipped to view proposed ordinances as they relate to the rest of the community, we hold that the board, within its sound discretion, could have concluded that council passed the ordinances with the proper overall considerations in mind. The PUD district established by ordinance 160 is not the type of use which by its very nature could have no place in the middle of a predominantly residential borough. It is not a steel mill, a fat rendering plant, or a desiccated egg factory. It is, in fact, nothing more than a miniature residential community. Closely tied to the comprehensive plan issue is the argument raised by appellees that ordinances 160 and 161 constitute spot zoning outlawed by Eves, supra. Given the fact situation in Eves, however, as well as the post -Eves cases, we do not believe that there is any spot zoning here. In Eves, the municipality created a limited industrial district, F-l, which, by explicit legislative pronouncement, was not to be applied to any particular tract until the individual landowner requested that his own tract be so re-zoned. The obvious evil in this procedure did not lie in the fact that a limited industrial district might be placed in an area previously zoned, • for example,- residential. The evil was the pre-ordained uncertainty fas-to where the F-l districts would.. crop up. The ordinance all but invited spot zoning-where , the legislature could respond to private entreaties from .landowners and:.rezone tracts F-l without regard to the surrounding community.. In Eves, it was. almost impossible for .the F-l districts to conform to. a comprehensive plan since tracts would be re-zoned on a strictly ad hoc basis.; ' ■ : Quite to "the contrary,'no such, “floating zone” exists in the present case.. On the very day that the PUD-¿district' was created by ordinance 160, it was brought to earth by, .ordinance 161; and, as discussed supra, this was: done “in accordance with • a ■ comprehensive: plan.”. Speaking of' a similar procedure ,in Donahue v. Zoning Bd. of Adjustment, 412 Pa. 332, 194 A. 2d 610- (1963), this Court faced squarely an attack based'upon Eves and responded thusly: “It was this case by case review, [in Eves] which' demonstrated -the absence- dfv a .comprehensive plan and which sought to enable the board of .supervisors. [the local legislative body] to exercise powers, they did not-statutorily'posses's.." ‘ -" “In the instant case, the new classification- .was. established and the zoning map amended within a very short period of time ,[in the case at bar,- on the. same day]: Under the rules of statutory construction which are' likewise' applicable to ordinances, see Cloverleaf Trailer Sales Co. v. Pleasant Hills Borough, 366 Pa. 116, 76 A. 2d 872 (1950); Philadelphia v. Phillips, 179 Pa. Superior Ct. 87, 116 A. 2d 243 (1955); these ordinances should be read together as one enactment. See Statutory Construction Act, May 28, 1937, P. L. 1019, §62, 46 P.S. §562. ■ So construed,- ordinances 151 [creating new zone] and 155 [amending zoning map] do not create the ‘floating zone’, anchored only upon case by case application -by landowners, which we struck down in Eyes. While it is true that the change here was made upon request, of a particular landowner,, this does not necessarily create the evils held invalid in Eves where the defects were specifically created by the very terms of the ordinances. It is not. .unusual for. a zoning change to be made on request of a. landowner, and such change is not invalid if made in accordance with a comprehensive plan.” 412 Pa. at 334-35, 194 A. 2d at 611. We think Donahue is completely controlling on the issue of alleged spot zoning .and compels the conclusion, that ordinances 160 and 161 do hot fall on that ground. See also the excellent discussion of Eves and its progeny in Krasnowiecki, Legal Aspects of Planned Unit Development, Technical. Bull. 52, Urban Land Institute, pp, 20-22 (1965).- ■ ■ II. The court below next concluded that even if the two ordinances, were properly passed, they must, fall as vesting authority in the planning commission greater than that permitted under Pennsylvania’s zoning enabling legislation. More specifically,, it is- now contended by appellees that complete project approval J)y the planning commission under ordinance 160 requires that commission to encroach upon legislative territory whenever it decides where, within a particular PUD district, specific types of buildings should be placed. In order to appreciate fully the arguments of counsel on both sides it is necessary to explain in some detail exactly what is permitted within a PÚD district, and who decides whether a particular landowner has complied with these requirements. Admittedly the range of permissible uses within the PUD district is greater than that normally found in a traditional zon ing district. Within a New Hope PUD district there may be: single family attached or detached dwellings; apartments; accessory private garages; public or private parks and recreation, areas including golf courses, swimming pools, ski slopes, etc. (so long as. these facilities do not produce noise, glare, odor, air pollution, etc., detrimental to existing or prospective adjacent structures);. a municipal building; a school; churches; art galleries; professional offices; certain types of signs; a theatre (but not a drive-in); motels and hotels; and a restaurant. The ordinance then, sets certain overall density requirements. The PUD district may have a maximum of 80% of the land devoted to residential uses, a maximum of 20% for the permitted commercial uses and enclosed recreational facilities, and must have á minimum of 20% for open spaces. The residential density shall not exceed 10 units per acre, nor shall any such unit contain more than two bedrooms. All structures within the district must not exceed maximum height standards set out in the ordinance. Finally, although there are no traditional “set back” and “side yard” requirements, ordinance 160 does require that there be 24 feet between structures, and that no townhouse structure contain more than 12 dwelling units. The procedure to be followed by the aspiring developer reduces itself to presenting a detailed plan for his planned unit development to the planning commission, obtaining that body’s approval and then securing building permits. Of course, the planning commission may not approve any development that fails to meet the requirements set forth in the ordinance as outlined above. We begin with the observation that there is nothing in the borough zoning enabling act which would prohibit council from creating a zoning district with this many permissible uses. The applicable section of The Borough Code is the Act of February 1, 1966, P. L. .(1965) 1656, §3201, 53 P.S. §48201. Under this section, council is given the power to regulate and restrict practically all aspects of buildings themselves, open spaces, population density, location of structures, etc.) the .only limitation on this power being that it be exercised so as to promote , the “health, safety, morals or the general welfare” of the borough. Under the same act, §1601, 53 P.S. §46601, empowers council to adopt ordinances to govern the use of public areas, such as streets, parks, etc., again with the only limitation being that such ordinances create “conditions favorable to the health, safety, morals and general welfare of the citizens.” Thus, if council reasonably believed that a given district could contain all types of structures, without. any density requirements whatsoever, so long as this did not adversely affect health, safety and morals, such a district could be created. In fact, it is common knowledge that in many industrial and commercial districts just such a wide range of uses is permitted. Given such broad power to zone, we cannot say that New Hope Borough Council abrogated its legislative function by creating a PUD district permitting the mixture of uses outlined supra, especially given the density requirements. We must next examine the statutory - power of the borough planning commission to determine whether such an administrative body may regulate the internal development of a PUD district. The Act of February 1, 1966, P. L. (1965) 1656, §1155, 53 P.S. §46155 requires that all plans for land “laid out in building lots” be approved by the planning commission before they may be recorded. Thus, the traditional job of the commission has been to examine tract plans to determine whether they conform to the applicable borough ordinances. The ordinances most frequently interpreted and applied by the planning commission are those dealing with streets, sewers, water and gas mains, etc., i.e., the so-called public improvements. However, the statute contains no language which would prohibit the planning commission from approving plans with reference to ordinances dealing with permissible building uses as well. The primary reason that planning commissions have not traditionally interpreted this type of ordinance is that such regulations do not usually come into play until the landowner wishes to bégin the actual construction of a particular building. By this time, the relevant subdivision plan has already been approved by-the commission; thus the task of examining the plans for a particular structure to see whether it conforms to the regulations for the zoning district in which it will be erected, devolves upon the local building inspector who issues the building permit. However, in the case of PUD the entire development (including specific structures) is mapped out and submitted to the administrative agency at once. Accordingly, the requirements set forth in a PUD ordinance must relate not only to those areas traditionally ad: ministered by the planning commission, but also to areas traditionally administered by the building inspector. Therefore, quite logically, the job of approving a particular PUD should rest with a single municipal body. The question then is simply which one:Borough Council (a legislative body), the Planning Commission (an administrative body), or the Zoning Board of Adjustment (an administrative body)? There is no doubt that it would be statutorily permissible for council itself to pass a PUD ordinance and simultaneous zoning map amendment so specific that no details would be left for any administrator. The ordinance could specify where each building should be placed, how large it should be, where the open spaces are located, etc. But what would be the practical effect of such an ordinance? One of the most attractive features of Planned Unit Development is its flexibility; the chance for the builder and the municipality to sit down together and tailor a development to meet the specific needs of the community and the requirements of the land on which it is to be built. But all this would be lost if the Legislature let the planning cement set before any developer could happen upon the scene to scratch his own initials in that cement. Professor Krasnowieeki has accurately summed up the effect on planned unit development of such legislative planning. The picture, to be sure, is not a happy one: “The traditional refuge of the courts, the requirement that all the standards be set forth in advance of application for development, does not offer a practical solution to the problem. The complexity of pre-established regulations that would automatically dispose of any proposal for planned unit development, when different housing types and perhaps accessory commercial areas, are envisaged, would be quite considerable. Indeed as soon as various housing types are permitted, the regulations that would govern their design and distribution on every possible kind of site, their relationship to each other and their relationship to surrounding properties must be complex unless the developer’s choice in terms of site, site plan, and design and distribution of housing is reduced close to zero. It is not likely . . . that local authorities would want to adopt such a set of regulations.” Krasnowieeki, Planned Unit Development: A Challenge to Established Theory and Practice of Land Use Control, 114 U. Pa. L. Rev. 47, 71 (1965). Left with Professor Krasnowiecki’s “Hob-son’s choice” of no developer leeway at all, or a stag gering set of legislative regulations sufficient to cover every idea the developer might have, it is not likely that Planned Unit Development could thrive, or even maintain life, if the local legislature assumed totally the role of planner. The remaining two municipal bodies which could oversee the shaping of specific Planned Unit Developments are both administrative agencies, the zoning board of adjustment and the planning commission. As this Court views both reality and zoning enabling act, the zoning board of adjustment is not the proper body. The Act of February 1, 1966, P. L. (1965) 1656, §3207(g), 53 P.S. §48207(g) specifically sets forth the powers of a borough zoning board of adjustment. These powers are three in number, and only three. The board may (1) hear and decide appeals where there is an alleged error made by an administrator in the enforcement of the enabling act or any ordinance enacted pursuant thereto; (2) hear and decide special exceptions; and (3) authorize the grant of variances from the terms of existing ordinances. ■ These powers in no way encompass the authority to review and approve the plan for an entire development when such plan is neither at variance with the existing ordinance nor is a special exception to it; nor does (1) above supply the necessary power since the board would not be reviewing an alleged administrative error. Moreover, from a practical standpoint, a zoning board of adjustment is, of the three bodies here under discussion, the one least equipped, to handle the problem of PUD approval. Zoning boards are accustomed to focusing on one lot at a time. They traditionally examine hardship cases and unique uses proposed by landowners. As Professor Krasnowiecki has noted: “To suggest that the board is intended, or competent, to handle large scale planning and design decisions is,. ■I think, far fetched” Technical Bulletin 52, Urban Land Institute, p. 38 (1965). We agree. Thus, the borough planning commission remains the only other body both qualified and statutorily permitted to approve PUD. Of course, we realize that a planning commission is not authorized to engage in actual re-zoning of land. But merely because the commission here has the power to approve more than one type of building for a particular lot within the PUD district does not mean that the commission is usurping the zoning function. Indeed, it is acting in strict accordance with the applicable zoning ordinance, for that ordinance, No. 160, permits more than one type of building for a particular lot. To be sure, if the commission approved a plan for a PUD district where 30% of the land were being used commercially, then we would have an example of illegal re-zoning by an administrator. But no one argues in the present case that appellant’s plan does not conform to the requirements of ordinance 160. Nor is this Court sympathetic to appellees’ argument that ordinance 160 permits the planning commission to grant variances and special exceptions. We fail to see how a development such as appellant’s that meets every single requirement of the applicable zoning ordinance can be said to be the product of a variance or a special exception. The very essence of variances and special exceptions lies in their departure from ordinance requirements, not in their compliance with them. We therefore conclude that the New Hope Planning Commission has the power to approve development plans submitted to it under ordinance 160. III. One further matter remains for discussion. Technically, we are faced today with five separate appeals. Although the procedural posture of some of them- is practically impossible to unravel, we shall nevertheless attempt to do so. Chronologically, the case has proceeded in the following manner. Appellees originally commenced two proceedings in equity to enjoin the issuance of building permits 68 and 69. Appellant filed preliminary objections to. these actions in the nature of a demurrer, contending that a bill in equity will not lie to contest the application of a zoning ordinance. In response to these preliminary objections, the court below issued two of its five orders of May 1, 1967 stating that the equity actions may have become moot by virtue of the court’s holding that ordinances. 160 and 161 are invalid. The order therefore recited that further action on appellant’s preliminary objections would be deferred pending the finality of the court’s orders vis-a-vis ordinances 160 and 161. Appellant has appealed these orders of May 1, arguing that the court bélow should have sustained the preliminary objections, rather than deferring decision on them. The appeals are docketed in this Court- as Nos.' 110 and 111. The court below was, of course, correct in concluding that the equity actions would have become moot had this Court sustained its finding that ordinances 160 and 161 were invalid. However, since we hold that' these ordinances are valid, some disposition of the equity actions must now be made. In this regard we believe that the proper forum to resolve the grant or denial of appellant’s preliminary objections is the court below, for the simple reason that, as to this Court, the appeals are from interlocutory orders and must be quashed. The orders entered below in the two equity cases were merely orders deferring any decision on preliminary objections. Thus, the effect of both orders was to suspend the proceedings temporarily, pending the outcome of three related appeals. We have clearly held that “a suspension of proceedings for a temporary period is not an appeal-able order.” Keasbey’s Trust Estate, 342 Pa. 439, 445, 20 A. 2d 281, 283 (1941); cf. Reynolds Metals Co. v. Berger, 423 Pa. 360, 223 A. 2d 855 (1966). ■ . Nor does the fact that the preliminary objections went to equity’s jurisdiction alter the appealability vel non of the orders below. Although the Act of March 5, 1925, P. L. 23, §1, 12 P.S. §672 makes appealable all preliminary determinations as to the jurisdiction of a lower tribunal, it cannot fairly be said that orders deferring .'the preliminary determination of jurisdiction .fall.within the statutory language. Finally, while we note that no motion to quash was presented, this Court may take such action on its own motion. Steel v. Levy, 282 Pa. 338, 127 Atl. 766 (1925); Kennedy v. Banbury Equipment Corp., 202 Pa. Superior Ct. 242, 195 A. 2d 832 (1963). Accordingly, we shall quash appeals Nos. 110 and 111. . ■ Subsequent to the filing of the two equity actions, appellees went before the zoning board of adjustment to contest the issuance of building permits 68. and 69. On January 17, 1966 the board, sustained both permits. On January 26, 1966 and February 2, 1966, respectively, appeals from the board’s decision were taken to the court of common pleas. However, before the court could render a decision, both permits were allegedly revoked on February 14, 1966. On April 11, 1966 a third building permit, number 75, was issued and its issuance appealed to the zoning board of adjustment. As with permits 68 and 69, the- board upheld the issuance of permit 75 on July 1, 1966. Finally, on July 27, 1966 the board’s decision on permit 75 was appealed to the court of common pleas. In addition to its two May 1, 1967 orders on the equity cases, the court below, on May 1, also entered three separate orders de daring permits 68, 69 and 75 null and void as issued pursuant to invalid ordinances. Appeals from. these orders appear on our docket as Nos. 112, 113 and 114. We find ourselves both confused and troubled by the orders of the court below invalidating permits 68 and 69, for it is contended by appellees that these permits had been revoked by borough council prior to the decision of that court. If this be true and if borough council has power to revoke permits, then permits 68 and 69 should never have been before the court below. If, as alleged, permits 68 and 69 were properly revoked on February 14, 1966, appellant’s remedy would have been an appeal, within a reasonable time, to the zoning board of adjustment. Act of February 1, 1966, P. L. (1965) 1656, §3207(d), 53 P.S. §48207(d). No such appeal was ever taken. (The only appeals to the zoning board in this case were taken by the present appellees from the original issuance of permits 68, 69 and 75.) The only faint explanation of what really occurred here is found on page 571a of the record. During the zoning board’s hearing on permit 75, counsel for appellant stated that he did not appeal the revocation of permits 68 and 69 since, in his view, these permits were never legally revoked. He claimed that the purported act of revocation was made by council, whereas only the building inspector or the board of adjustment was empowered to perform this act. Neither the board nor the court below has ever ruled on this contention. Nor, in fact, have the parties explained the current status of these permits to this Court. With the record in such utter confusion as to whether permits 68 and 69 were revoked and by whom, this Court must remand the case for further proceedings. If the court below finds that the building permits 68 and 69 were legally revoked on February 14, 1966, as appellees contend, then today’s decision as to ordinances 160 and 161 would have no effect on the status of these permits. If, however, they were not legally revoked, then they must be allowed to remain in existence, along with permit 75, as issued pursuant to valid ordinances. The appeals from the orders of the Court of Common Pleas of Bucks County in appeals No. 110 and No. Ill are quashed. The orders of the court in appeals No. 112 and No. 113 are vacated and the records remanded for further proceedings consistent with this opinion. The order of the court in appeal No. 114 is reversed. Mr. Chief Justice Bell took no part in the consideration or decision of this case. The Act of February 1, 1966, P. L. (1965) 1656, §3207(d), 53 P.S. §48207(d) apparently contemplates that only the zoning “administrative officer” (the building inspector) is empowered in the first instance to revoke buiíding permits.

Opinion by Mr. Justice Jones, Julia Collins, suffering from an extreme nervous condition, entered Hahnemann Hospital, Philadelphia, on October 27, 1959, on the service of Dr. J. B. Donaldson. Dr. Donaldson, deciding that her condition required psychiatric care, called in Dr. B. Marvin Hand, a Board certified psychiatrist and neurologist. After an examination of Miss Collins, Dr. Hand concluded that she was suffering from agitated depression and he recommended that she submit to electroshock treatments. Since Hahnemann Hospital was not equipped to administer these treatments, Miss Collins was transferred upon Dr. Hand’s suggestion, to Eugenia Memorial, Incorporated (Eugenia), a private psychiatric hospital. Miss Collins was admitted to Eugenia on October 30, 1959. The first electroshock treatment was administered the next day with no untoward incidents occurring. However, during the next treatment, ad ministered November 2, 1959, “there was a cracking sound of [her] lower extremities”. It was later determined that Miss Collins suffered bilateral fractures of the acetabulae. These injuries have resulted in considerable limitation in her hip necessitating use of a cane. Later, Miss Collins, while at her niece’s home, sustained an ankle injury from a fall allegedly caused by this limited hip movement. Miss Collins instituted this trespass action in Court of Common Pleas No. 6 of Philadelphia County against Dr. Hand and was awarded a verdict in the amount of |40,000. Motions for judgment n.o.v. and for a new trial having been denied by the court en banc, judgment was entered on the verdict and this appeal followed. Dr. Hand’s liability is predicated on two alternative theories: (1) that he was guilty of personal negligence or (2) that he was responsible for the negligence of Eugenia’s employees in administering the electroshock therapy. Dr. Hand contends that the evidence presented at the trial is totally insufficient to hold him liable upon either of these bases. Within the background of Dr. Hand’s appeal, we must remember that in disposing of a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom must be considered in the light most favorable to the verdict winner and the grant or refusal of a new trial will not be reversed on appeal, absent an abuse of discretion or error of law which controlled the outcome of the case. See: Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 216 A. 2d 60 (1966) ; Schwegel v. Goldberg, 209 Pa. Superior Ct. 280, 228 A. 2d 405 (1967). Personal Negligence of Dr. Hand Considerable case law of onr Court has dealt with the standard of care required of a physician. In the absence of a special contract, a physician is neither a warrantor of a cure nor a guarantor of the result of his treatment. The plaintiff in a malpractice action must prove either that (1) the physician did not possess and employ the required skill and knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like cases and that the injury complained of either (1) resulted from the failure on the part of the physician to possess and employ the required skill and knowledge, or (2) resulted from his failure to exercise the care and judgment of a reasonable man in like circumstances. See: Donaldson v. Maffucci, 397 Pa. 548, 156 A. 2d 835 (1959) ; Hodgson v. Bigelow, 335 Pa. 497, 7 A. 2d 338 (1939); Wohlert v. Seibert, 23 Pa. Superior Ct. 213 (1903); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A. 2d 303 (1966). As a matter of proof in malpractice cases, there is no presumption or inference of negligence merely because a medical procedure terminated in an unfortunate result which might have occurred despite the exercise of reasonable care. This is especially so where the treatment and injury involved are such that common knowledge or experience of laymen is not sufficient to form the basis for passing an intelligent judgment. In such cases, expert testimony in support of the plaintiff’s claim is an indispensable requirement to establish a right of action. Robinson v. Wirts, 387 Pa. 291, 127 A. 2d 706 (1956); Hodgson v. Bigelow, 335 Pa. 397, 7 A. 2d 338 (1939) ; Demchuk v. Bralow, 404 Pa. 100, 170 A. 2d 868 (1961). In dealing with the problem of the cause of fractures during electroshock therapy, courts from other jurisdictions have consistently held that res ipsa loquitur is not applicable. This is attributed to the fact that fractures are a recognized risk of electroshock therapy. See: Johnston v. Rodis, 102 U.S. App. D.C. 209, 251 F. 2d 917 (1958); Farber v. Olkon, 40 Cal. 2d 503, 254 P. 2d 520 (1953) ; Quinley v. Cocke, 183 Tenn. 428, 192 S.W. 2d 992 (1946). Miss Collins first claims that Dr. Hand was negligent in failing to take or read X-rays which would have disclosed to him that she suffered from osteoporosis. This condition and its extent can be determined through the use of an X-ray of the chest or dorsal region of the spine. Prior to administering electroshock therapy, a “routine workup” is prepared, usually by an interne, to determine the patient’s physical fitness to undergo the therapy and part of this workup consists of X-rays. In Miss Collins’ case, X-rays were taken at Hahnemann and a report furnished to Dr. Hand which indicated Miss Collins was suffering from emphysema but there was nothing, it appears, in the report that Miss Collins suffered from osteoporosis. Dr. Hand admitted he did not read the X-rays. Appellee thus argues that Dr. Hand failed to avail himself of the scientific means at his disposal and, as a result, failed to fully apprise himself of the risks which would accompany the use of electroshock therapy- It is reasonably clear that Dr. Hand acted improperly in this situation. He was bound to use the skills he possessed or should possess as a psychiatrist and, in these cases, a pre-therapy routine is normally involved which consists of proper appraisal of the patient’s physical condition. However, assuming Dr. Hand’s negligence in this respect, something more is required before he may be held liable for the fractures and other injuries resulting therefrom. In these cases as well as in other negligence cases the principle is established beyond question that the alleged negligence must have caused the injuries complained of before recovery may be had. See: Fye v. Sharp, 319 Pa. 545, 181 A. 510 (1935); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A. 2d 303 (1966) ; Donaldson v. Maffucci, 397 Pa. 548, 156 A. 2d 835 (1959) ; Wohlert v. Seibert, 23 Pa. Superior Ct. 213 (1903). See also Barber v. John C. Kohler Co., 428 Pa. 219, 237 A. 2d 224 (1968). An examination of the record fails to disclose any adequate basis for the conclusion that Dr. Hand’s failure to take or read X-rays to determine the existence of the osteoporotic condition of Miss Collins caused the bilateral acetabular fractures. Moreover, appellee’s own expert witness testified “when the machine is used with the glissando6 and there is no restraint, then even in the case of a person who has osteoporosis, the possibility of a fracture is very small. The possibility of a bilateral fracture is almost impossible.” It is to be noted that this witness did not testify that it was improper medical practice to have electroshock therapy administered to Miss Collins. He further stated that the osteoporosis in this patient was “the average of what is usually seen at the age of seventy-three.” Dr. Tomasco and Dr. Klinghoffer, both testifying for appellee, expressed the opinion that the extent of her osteoporosis was normal for her age. Dr. Samuel B. Hadden, Board certified psychiatrist and neurologist, testified for Dr. Hand that electroshock therapy is recognized treatment for manic-depression, that fractures are a recognized risk of such therapy and that neither old age nor osteoporosis contraindicates the administration of such therapy. Dr. Deichelmann, also testifying for Dr. Hand, opined that the acetabular fractures occurred as a result of equal bilateral muscular reaction which pulled the hip bones on either side with such force that the acetabulae were fractured. He stated his experience was such that fractures did occur and it is impossible to predict when the muscles will react in such a manner as to cause fractures. Appellee relies heavily on Dr. Deichelmann’s testimony that this muscle contraction can be prevented if a muscle relaxant is used. However, Dr. van der Meer testified that the muscle contraction caused by application of electrical impulses is itself part of the treatment.8 Summarizing the foregoing testimony, while we find disagreement as to the real cause of the fractures, one thing is very evident: none of the experts testified that the mental condition of Miss Collins did not warrant electroshock therapy nor did any expert testify that her osteoporotic condition mitigated against nse of such therapy. Indeed, it is fairly obvious that appellee’s whole theory of the cause of the acetabular fractures was the application of too much restraint on her legs during the electroshock therapy by the shock team at Eugenia and the testimony elicited from her own witnesses was calculated to minimize the effect of the osteoporosis. On this state of the record, then the verdict, if based on Dr. Hand’s alleged negligence in having electroshock therapy initially administered, would have to be mere guess or conjecture. Cf. Barber v. John C. Kohler Co., 428 Pa. 219, 237 A. 2d 224 (1968). Secondly, the alleged personal negligence of Dr. Hand is based on the fact that Dr. Hand failed to order X-rays of Miss Collins to discover the fractures until November 5, 1959, three days after the second electroshock treatment was administered. The X-rays were taken November 6 and an X-ray report dated the same day. However, Dr. Hand was not notified until November 11, 1959. Appellee argues that complaints by Miss Collins put Dr. Hand on notice that fractures may have occurred and he should have ordered X-rays immediately, and, further, after the X-rays were taken he should have sought to apprise himself of the results instead of waiting for hospital personnel to notify him. On this specific issue there was no expert testimony that it was improper medical practice for Dr. Hand to have failed to have X-rays taken. In Smith v. Yohe & Gailey, 412 Pa. 94, 194 A. 2d 167 (1963), we held that failure to take X-rays as an aid in diagnosis was negligence under the particular facts of that case absent expert testimony. Smith is somewhat similar to the case at bar. In Smith, the plaintiff was a seventy year old man convalescing from a stroke when he slipped and fell; the defendant doctor was summoned but he failed to order X-rays; X-rays were finally taken eleven days later but by that time the patient’s leg was completely paralyzed. But, in the instant case, as Dr. Hand very aptly points out, X-rays would be helpful only as an aid to diagnosis. Dr. Hand, suspecting fractures, manipulated Miss Collins’ legs to determine the existence of any paralysis but found none. He ordered robaxin and tofranil on Novem ber 5. Dr. Tomasco, who later treated Miss Collins for the fractures, testified that this was proper treatment. He also said: “A. As I tried to explain, in this particular type of fracture, we were mostly interested in the soft tissues that surround the hip joints. We were not too interested — I found there was no locking, or there were no lockings into the hip joints that would require surgery, so that all the treatment was diverted to the soft tissue. This woman showed she had motion in her hip joints, and when it developed that she had muscle spasm, it was mostly training her to walk. We were not too interested in the callus formation.” Dr. Tomasco also testified that there was no indication her condition worsened from the time the fractures were sustained until he was called into the case. We must conclude, then, as a result of the testimony and the applicable principles of law, that the evidence was totally insufficient to support the verdict against Dr. Hand on the basis of Ms own negligence. Vicarious Liability of Dr. Hand Appellee’s success under this theory of liability requires initially, proof of negligence on the part of the shock team at Eugenia in its administration of the second electroshock treatment. The only proof of negligence on the part of the shock team was the opinion expressed by Dr. van der Meer that too much restraint had been applied to Miss Collins’ legs during the treatment and that such restraint was improper medical practice in 1959. An examination of the record, however, discloses not even a scintilla of evidence that Miss Collins’ legs were restrained during the course of the second electroshock treatment. An expert cannot base Ms opinion upon facts which are not warranted by the record. No matter how skilled or experienced the witness may be, he will not be permitted to gness or to state a judgment based on mere conjecture. Small v. Flock, 407 Pa. 148, 180 A. 2d 59 (1962) ; Murray v. Siegal, 413 Pa. 23, 195 A. 2d 790 (1968). Cf. DeFrank v. Sullivan Trail Coal Co., 425 Pa. 512, 229 A. 2d 899 (1967). In Dreher v. Order of United Commercial Travelers of America, 173 Wis. 173, 180 N.W. 815, 817 (1921), the Court stated: “It is the function of opinion evidence to assist the jury in arriving at a correct conclusion upon a given state of facts. To endow opinion evidence with probative value it must be based on facts proven or assumed, sufficient to enable the expert to form an intelligent opinion. The opinion must be an intelligent and reasonable conclusion, based on a given state of facts, and be such as reason and experience have shown to be a probable resulting consequence of the facts proved. The basis of the conclusion cannot be deduced or inferred from the conclusion itself. In other words, the opinion of the expert does not constitute proof of the exist ence of the facts necessary to support the opinion.” (Emphasis added). In the case at bar Dr. van der Meer’s opinion assumes (1) that restraints were applied to Miss Collins’ legs and (2) that “this” restraint was “too much”. On the state of the record this testimony can only be classified as mere guess or conjecture and “would be to build a presumptioTi on a presumption, which would build a smoke ladder into the skies of irresponsible speculation, which, fortunately, the law prohibits.” Auerbach v. Philadelphia Transportation Co., 421 Pa. 594, 602, 221 A. 2d 163 (1966). Lacking evidence of negligence on the part of Eugenia’s shock team, no support can be found for a finding that Dr. Hand is vicariously liable for Miss Collins’ injuries. Since the admission of Dr. van der Meer’s opinion was error and would warrant a new trial, we will assume for the purposes oí Dr. Hand’s motion for judgment n.o.v. that Eugenia’s shock team was guilty of negligence in the course of the electroshock treatment of November 2, 1959. We, then, reach the question whether Dr. Hand can properly be held liable under the doctrine of respondeat superior for negligence of Eugenia’s shock team. This Court has many times considered and held applicable the principles of respondeat superior to physicians even in situations where the alleged servant was an employee of a hospital and even where the servant was of the same profession. See: McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243 (1949) ; Yorston v. Pennell, 397 Pa. 28, 153 A. 2d 255 (1959); Rockwell v. Stone, 404 Pa. 561, 173 A. 2d 48 (1961); Rockwell v. Kaplan, 404 Pa. 574, 173 A. 2d 54 (1961). In McConnell, this Court speaking through Mr. Justice (later Chief Justice) Horace Stern, espoused the “captain of the ship” doctrine and applied it to operating surgeons. In holding the operating surgeon liable for an interne’s negligence in applying a solution to the eyes of a newborn child causing loss of one eye and severe injury to the other, we said (p. 362) : “And indeed it can readily be understood that in the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of the operation, ... he is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board, and that such supreme control is indeed essential in view of the high degree of protection to which an anaesthetized and unconscious patient is entitled . . . .” In Yorston, supra, a physician was held liable for the acts of certain hospital employees and a resident physician which resulted in the administering of penicillin to a patient who was allergic to the drug. Rockwell v. Stone involved the personal and vicarious liability of an anesthesiologist for injuries caused by the improper administration of anesthesia. Appellee as well as the court below places primary reliance upon Rockwell v. Kaplan, supra, which presented the same identical factual background as in Rockwell v. Stone. Rockwell sought to fasten liability upon the operating surgeon, Dr. Kaplan, for the negligence of the anesthesiologist, Dr. Stone, on the theory of respondeat superior and this Court found Dr. Kaplan liable. Appellee argues that Dr. Hand arranged for Miss Collins’ transfer from Hahnemann Hospital to Eugenia; that he was the only attending physician and the only doctor who wrote orders for drugs and other care; that it was on his order that electroshock therapy was initiated and stopped; that he was notified of the fractures and the hospital waited his orders; that he was qualified to give electroshock therapy; and received an economic benefit from his relationship with Eugenia. On those facts appellee claims our prior case law, especially Kaplan, dictates holding that Dr. Hand is vicariously liable for any negligence of the shock team. We cannot agree with appellee. Kaplan involved a situation where this Court found the operating surgeon was the “boss” of the operation and that administration of the anesthesia was an integral part of that procedure. The Court, quoting from McConnell v. Williams, supra, said: “ ‘But for the period of the operation itself the situation is entirely different, and, if operating surgeons were not to be held liable for the negligent performance of the duties of those then working under them, the law would fail in large measure to afford a means of redress for preventable injuries sustained during the course of such operations.’ ” McConnell and Kaplan very clearly proceed upon the ground that complete control by an operating surgeon is indispensable if a high degree of protection is to be accorded to the anesthetized patient and he must be held liable for the negligence of those assisting him in performing the operation. In this case we are faced with a totally different situation. Dr. Hand suggested Eugenia as a place where electroshock treatments could be administered to Miss Collins since they were not available at Hahnemann Hospital. At Eugenia, a group of employees headed by one specially experienced in shock treatments administered the therapy to Miss Collins. Dr. Hand did not choose the doctor who was to administer the therapy, as the defendant doctor did in McConnell, supra; nor did he hire, compensate nor could he discharge any of these persons. It is important to note that Dr. Hand had not administered electroshock therapy since about 1946. Because of this fact and because of new techniques and Ms own position, he did not feel expert in the administration of electroshock treatments and he was not present when the treatments were given. The crucial test in determining whether an employee furnished to another becomes the servant of the one to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also as to the manner of performing it. Mature v. Angelo, 373 Pa. 593, 97 A. 2d 59 (1953). It becomes very important to determine whether one has the right to control the manner of performance of the specific act in question which causes the injury and it is not sufficient to show merely that electroshock therapy was ordered and stopped by Dr. Hand. “Of course, anyone who engages the service of a technician or specialist for the performance of a particular job must of necessity indicate to him from time to time the work that he wishes done and for which he has engaged him; in accordance, however, with the foregoing statement of the applicable legal principle, the giving of such directions does not bring the hired servant into his employ and make him responsible for the performance of the work.”: Mature v. Angelo, 373 Pa. 593 at pages 600-601. Dr. Hand sought to obtain individuals skilled in the administration of electroshock therapy. He had not personally administered such treatments for a considerable length of time. He had referred patients to Eugenia for such therapy previously and, as in the case of Miss Collins, was not present nor directed the ac tual performance of these treatments. He had no control over the wages nor other terms of employment of the employees at Eugenia who administered the therapy. As a result, we cannot conclude he had any effective degree of control or the right to control the manner of performance of these treatments. Moreover, the type services herein involved brings this case squarely within the ruling of Powell v. Risser which held that a physician was not liable for the alleged improper acts of hospital employees in the application of wet packs to a mental patient. It was considered that such services were part of the normal nursing procedures rendered by the hospital for which the latter was exclusively responsible. In the case at bar, Eugenia, a private psychiatric hospital, had provided electroshock treatments which were not available at Hahnemann Hospital, as a normal part of its business. Miss Collins sustained her fractures during the administration of such services by a shock team provided by the hospital. It is clear that the shock team was acting exclusively on behalf of the hospital and not as servant of Dr. Hand. From a consideration of the whole record, we are constrained to conclude that the evidence is totally insufficient to support the verdict against Dr. Hand either for personal malpractice or on the theory of respondeat, superior. As a result the lower court erred in refusing to grant appellant’s motion for a judgment n.o.v. In light of this result we need not consider the various trial errors assigned by Dr. Hand as support for a new trial. Judgment reversed. Mr. Justice Mtjsmanno dissents. Miss Collins was diagnosed as a manic depressive. Electroshock therapy at Eugenia is normally administered by a shock team under the supervision of three doctors each working alternately. The first treatment was administered to Miss Collins under the supervision of Dr. H. W. Lohmuller and the second treatment under Dr. H. F. Boerner, Jr. The acetabulum is tbe socket located in the hips into which the ball-like head of the femur fits. Fractures were sustained in both sockets. Osteoporosis is a demineralization of the bone structure causing a concomitant weakening of the hones and is a condition normally found in aged people. Miss Oollins was approximately 74 years of age at the time she underwent the electroshock therapy at Eugenia. The testimony of the various physicians indicated that osteoporosis would make the bones more susceptible to fractures. Dr. Herman Kurt van der Meer, a Board certified psychiatrist, testified on behalf of Miss Collins that the fractures were caused by improper restraint of her legs during the second electroshock treatment. The glissando is part of the electroshock equipment and is used to cause slow application of electricity to the patient’s body in order to prevent a sudden jolt of the body. This device was part of the equipment at Eugenia when the therapy was administered to Miss Collins. Dr. Deichelmann is a psychiatrist, although not board certified, and at the time of trial had been administering electroshock treatments since 1940. Specifically Dr. van der Meer stated: “Then, to follow through, if it were possible to administer electroshock treatment without any contraction, it would be an advantage if the same effect could be obtained by applying an electric current and no convulsions or tonic contractions would occur and nevertheless the depression would be cured. It would even be an advantage; so, I mean the physical manifestation of clonic contraction in itself is part of the treatment.” Dr. Hand testified that two principal reasons for advising electroshock therapy in Miss Collins’ ease was because her mental condition could cause an elevation in her blood pressure which he found to be high and which could have resulted in a vascular accident; secondly, he felt that in her depressed state she may have attempted suicide. It is argued that Miss Collins’ blood pressure wras only taken three times showing no real concern on this iwint and when she was admitted to Eugenia her pressure actually lowered. However, at the time of her admission to Eugenia, the reports show two different blood pressure readings, one of which was very high. At any rate, Dr. Hand explained that Miss Collins’ high blood pressure was only one of the factors he considered in deciding upon her course of treatment. As to the risk of suicide, appellee argues from the testimony of Dr. van der Meer that suicide is only a risk to a manic-depressive who is psychotic and nowhere is there any testimony that Miss Collins was psychotic. Further, it is argued that Dr. Hand admitted there was no immediate risk of suicide. We agree that there was no showing of immediate risk of suicide, but this was not the problem. Concern was over the possibility of suicide. Furthermore, manic depression actually is a psychosis. See: Hinsie and Campbell, Psychiatric Dictionary, 3d ed. (1960). Moreover, Dr. van der Meer himself testified that electroshock would considerably shorten the hospitalization of a manic-depressive and, as previously noted, Dr. Hadden also testified that electroshock treatment is standard treatment for a “manic-depressive state, agitated.” Robaxin is a musele-relaxant and is administered to prevent spasm of the muscles. Tofranil is an anti-depressant drug. Dr. Boerner described the normal procedure involved when electroshock therapy is given at Eugenia: “Q. You say you are sta tioned behind the head of the patient or top of the head? A. Ves, I am at the head of the bed, and there is an attendant on either side approximately at the chest of the patient . ... Q. What do the aides do? What are they directed to do? A. One of the aides is directed to insert the rubber mouthpiece and hold the jaw firmly so that the mouthpiece cannot be pushed out and also to hold cotton on the arm, where I have injected the medication. The other aide has her hand on the shoulder and the other hand on the hand or head of the patient, depending.” Mrs. Laura Succino, a registered nurse in charge of the electroshock treatment room at Eugenia in 1959, testified: “Q. When the patient, particularly Julia Collins, was on the bed, was she strapped down by any straps or anything like that? A. No. We never applied any straps, Q. Were there any canvas straps or restraints upon her person? A. No straps were applied. Q. With respect to her extremities, were they held down or restrained in any fashion? A. No.” Rockwell v. Kaplan, 404 Pa. 574, at page 579. Yorston v. Pennell is clearly inapposite. Although the doctor held liable in that ease was not present during the whole operative procedures, the operating surgeon was lacking a surgical license and was required by law to be under the control and supervision of the defendant doctor. Also, consultations were held between both doctors, as to pre and post-operative procedures. Cf. Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal. App. 2d 560, 317 P. 2d 170 (1957), where the court refused to impose liability on a physician for acts of members of the hospital staff who performed an aortography upon his order. 375 Pa. 60, 99 A. 2d 454 (1953). Since Dr. Hand is not liable for the condition of Miss Collins’ hips, no recovery can be had for any damages resulting from her fall in 1962 even if the condition of her hips proximately caused the fall. Evidence of a subsequent injury is probative only if it relates back to a negligently caused injury. See: Restatement 2d, Torts, §460. Cf. Bender v. Welsh, 344 Pa. 392, 25 A. 2d 182 (1942).

OPINION OF THE COURT HUTCHINSON, Justice. We granted appellant leave to appeal Superior Court’s en banc order, 299 Pa.Super. 211, 445 A.2d 529, affirming Luzerne County Common Pleas’ judgments of sentence after a Luzerne County jury found appellant guilty of unlawful restraint and criminal conspiracy to commit rape. One codefendant, Gerald Nickol, was also convicted of unlawful restraint and criminal conspiracy, while a third codefendant, Richard Nickol, was convicted of these crimes as well as rape and indecent assault. Common Pleas sentenced appellant to a term of 6 to 23V2 months on the criminal conspiracy charge, and suspended sentence on the charge of unlawful restraint. Appellant filed timely post-trial motions, which were denied. A divided Superior Court, en banc, affirmed by a majority of one. At issue is the proper interpretation of Pennsylvania’s Rape Shield Law. 18 Pa.C.S. § 3104. Appellant argues that the trial court erred in refusing to allow Richard Nickol, the codefendant whom the complainant accused of the rape, to introduce evidence of an act of consensual intercourse between Richard and the complainant said to have occurred some two hours before the alleged rape. The trial court and a majority of Superior Court held that the proffered evidence was evidence of “past sexual conduct” which did not raise the issue of consent and thus was barred by the statute. For the reasons which follow, we reverse and remand, holding that our Rape Shield Law does not bar the admission of evidence, such as that offered by appellant, which is directly relevant to negate the act with which the defendant is charged. Evidence of acts of intercourse, which show that they, and not a rape, caused the objective signs of intercourse is relevant. Considering current knowledge and notions of human sexuality, such use violates the rule of res inter alios acta underlying judicial relevance, which precludes use of a past act to show present conduct. Admitting such evidence for the limited purpose of denying the act charged properly balances the laudible goals of the statute and an accused’s fundamental right to present in defense his own version of the facts under both the Sixth Amendment to the Federal Constitution and Article I, Section 9 of our Pennsylvania Constitution. At trial the victim, Carol, testified that she had attended a dance in Wilkes-Barre on January 22, 1978, with a girlfriend. At about 10:40 P.M. she left. She saw defendant Richard Nickol standing beside a car owned by appellant. She asked Richard if he had seen her girlfriend. He replied that she had gone home, took her by the arm and put her in the back seat of the car, which drove off. Appellant drove. Gerald Nickol was in the front seat, and Carol and Richard in the back seat. Carol testified that Richard raped her while Gerald held her down; that Gerald tried to climb over the seat in order to rape her, but that she managed to push him away; that she was finally released about midnight, after which she went home and then to a hospital. Tests taken there revealed the presence of semen and live sperm in her vagina. During the trial, defense counsel offered at sidebar to call Richard Nickol to testify that he and Carol went for a walk and had consensual intercourse in a nearby packing garage about two hours earlier. The Commonwealth objected on the ground that the evidence was inadmissible under the Rape Shield Law, 18 Pa.C.S. § 3104, particularly in view of defendant’s failure to file a written motion under Section 3104(b). The trial court sustained the Commonwealth’s objection to any testimony about either Carol’s prior sexual relationship with Richard or the events of the day in question, limiting the defense to evidence of what happened in the car. In excepting to the court’s ruling, appellant’s counsel stated that Richard’s testimony was not offered to attack the victim’s reputation for chastity, but to explain the presence of sperm and semen in the victim’s vagina shown by medical tests. Thereafter, no evidence of any sexual activity by the victim was introduced at trial, with the exception of Gerald Nickol’s testimony that his brother Richard had said he was having sexual relations with Carol. The Commonwealth objected to that remark and the court instructed the jury to disregard it. Thus, the evidence at trial amounted to Carol’s testimony to her rape in the car, the medical evidence showing recent intercourse and the defendants’ testimony denying that any act of intercourse took place in the car. In rejecting appellant’s contention that the trial court improperly interpreted the Rape Shield Law, a majority of Superior Court held that appellant’s offer involved evidence of prior sexual conduct which the statute generally prohibits, not falling within the statutory exception permitting evidence of prior sexual activity with the defendant for the purpose of showing consent. The majority stated: What Richard said occurred (in his proffered, but excluded testimony) and what Carol said occurred are not the same event. They are two separate incidents, whether both, either, or neither in fact occurred. Richard says that at one point in the evening Carol and he went for a walk and had sexual intercourse in a parking garage. Carol says that Richard put her in the car and, while James drove the car and Gerald held her down, Richard raped her. The charges were specifically for an act in the car. The prosecution was required to prove beyond a reasonable doubt that Carol was raped in the car. As testimony of a prior and separate incident Richard’s testimony was barred by the Rape Shield Law unless the defendants placed consent at issue and filed the § 3104(b) motion. 299 Pa.Superior Ct. at 216, 445 A.2d at 531. The majority also held that insofar as the evidence was offered to explain the presence of semen and sperm in Carol’s vagina, that too would be the result of a prior consensual act to which the requirements of the Rape Shield Law would apply. The majority, after stating that “[t]he raison d’etre of rape shield statutes is partially to correct the manner in which our criminal justice system has approached the victim of a sexual assault,” concluded by saying: Accordingly, we hold that Richard’s proposed testimony of the consensual intercourse in the parking garage earlier on in the evening was evidence of prior sexual conduct within the meaning of the statute, and is barred. Had the defendants chosen to place consent at issue, the statute sets forth the procedure for so doing. 18 Pa.C. S.A. § 3104(b). However, as the defendants chose merely to deny the act complained of, and not to follow the statutory procedure, the statute applies in this situation to bar the admission of this testimony altogether. 299 Pa.Superior Ct. at 218, 445 A.2d at 532. In first limiting the act or occurrence with which appellant was charged to what occurred in the car and then concluding that the evidence of what occurred a short time before was a denial of the act, Superior Court begged the question. Evidence which directly contradicts the act or occurrence at issue is not barred by this statute. We cannot on the one hand exclude a time period for the purpose of applying the general statutory prohibition against evidence of prior specific sexual conduct and then determine that what is called evidence of a prior act is also a denial of the act in question. The sad history of our criminal justice system’s treatment of complaining rape victims is by now well-known and well-documented. Thus, as recently as 1940 the recognized American authority on evidence could state: The admissibility, on a rape charge, of the complainant’s character for chastity or unchastity is generally conceded; and her habits as a prostitute are usually regarded as equivalent to a general trait of character. The same doctrine should apply to a charge of enticement for prostitution, because the question is whether the woman went of her own impulses or yielded to persuasion. It should also apply in rape where the woman is under the age of consent, and in a charge of mere assault with intent to commit rape, or of indecent assault, or the like, not because it is logically relevant where consent is not in issue, but because a certain type of feminine character predisposes to imaginary or false charges of this sort and is psychologically inseparable from a tendency to make advances, and its admissibility to discredit credibility under § 924a, post, cannot in practice be distinguished from its present bearing. I Wigmore on Evidence § 62 (3rd ed., 1940) (emphasis in original) (footnotes omitted). He goes on to state: [Mjodern psychology warns us to be liberal in investigating the moral attributes of women who make complaints of sexual outrages. The prudence and the necessity of examining thoroughly the past conduct of the woman-complainant in such cases, in order to protect the accused against false charges, is now amply understood by the medical profession, and should be conceded by the law of Evidence. Id. at § 200. We totally reject such notions. The automatic admissibility of evidence concerning a complainant’s past sexual activities or general bad character for chastity has been nearly universally, if belatedly, changed in the United States. It is a sad commentary that this change came about almost entirely by legislation instead of by the development of common law. In an enlightened age a complaining witness’s prior consensual sexual activity is simply not relevant to show present consent. As Judge Price said in Commonwealth v. Strube: Instantly, neither the traditional rules of evidence regarding the admission of such testimony, nor the question of whether there does indeed exist a causal connection between prior sexual activity and subsequent voluntary consent in light of contemporary sexual mores need detain us. The arguments are persuasive that the logical underpinnings of the character doctrine are dubious in the extreme. The rape shield laws are legislative recognitions of the minimal probative value of sexual history and are designed to prohibit, to varying degrees, the travesty of presenting a noisome stream of defense witnesses testifying to the sexual propensities, often sordid and sometimes fanciful of the complaining witness. 274 Pa.Superior Ct. 199, 207-208, 418 A.2d 365, 369 (1979) (footnote and citations omitted). Pennsylvania designed its statute to rectify these abuses by employing a two-stage process. First, evidence of specific instances of the complainant’s past sexual conduct, opinion evidence as to that conduct, and reputation evidence as to that conduct is generally inadmissible. An exception is created for “evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.” 18 Pa.C.S. § 3104(a). The second stage (18 Pa.C.S. § 3104(b)) requires a defendant who seeks to introduce evidence of past sexual conduct under the consent exception in Section 3104(a) to “file a written motion and offer of proof at the time of trial” at which time the court will determine “if the motion and proof are sufficient on their faces.” If so, the court will hold an in camera hearing and “make findings on the record as to the relevance and admissibility of the proposed evidence.” However, as we said earlier, evidence which directly contradicts the act or occurrence at issue is not barred by this statute. Such is the situation in this case. As the dissenting members of Superior Court stated: A difference of two hours, in the context of the facts of this case, does not ... render Richard’s account a past act. The doctor’s testimony established that Carol did in fact have sexual intercourse sometime that evening. Both Richard’s and Carol’s accounts include an act of sexual intercourse. Both accounts occurred generally under the same circumstances. Richard’s proposed testimony was not to be used to show that Carol was inclined to consent to having intercourse at a later time, but as a rebuttal to her version of the act of intercourse and as an explanation for the existence of the sperm in her vagina. 299 Superior Ct. at 220, 445 A.2d at 533 (emphasis in original). The dissenters correctly concluded that this case involves a single event described in two differing accounts by the protagonists and the Rape Shield Law is, therefore, inapplicable. We do not believe the legislature intended to prohibit relevant evidence which directly negates the act of intercourse with which a defendant is charged. Where, as here, a defendant offers evidence of intercourse close enough in time to the act with which he is charged that it is relevant to explain the presence of objective signs of intercourse, the protections afforded to the complainant by the Rape Shield Law do not apply. Such evidence should be admitted, subject to the usual rules of admissibility of evidence, in particular the balancing of probative value against prejudicial effect. Such an interpretation is consistent with the goals of the Rape Shield Law in protecting the victim’s reputation and does not deny the defendant’s right to introduce relevant evidence in his own defense. Cases where consent is genuinely “at issue” are treated according to the exception set forth in the statute. However, in cases such as that which we have here, where denial of the act, not consent is at issue, evidence of consensual intercourse between defendant and complainant is limited to evidence of an act close enough in time to account for the objective signs of intercourse and is further limited to the purpose of explaining the presence of those objective signs. However, a defendant cannot engage in the wide-ranging and harassing cross examination the statute legitimately prohibits. Thus, the Rape Shield Law does not preclude appellant from explaining the presence of semen and sperm in the victim’s body. The act offered in explanation was not a prior “separate incident” but an alternative account of the events of that evening offered to counter the prosecution’s medical testimony. For that limited purpose it was admissible. To hold otherwise would deny appellant the chance to defend by presenting a denial of the prosecution’s case. The order of Superior Court is reversed and the record remanded for a new trial. McDERMOTT, J., files a concurring opinion. NIX, J., concurs in the result. LARSEN, J., files a dissenting opinion. . Neither Gerald Nickol nor Richard Nickol are parties to this appeal. . 18 Pa.C.S. § 3104 provides: § 3104. Evidence of victim’s sexual conduct (a) General rule. — Evidence of specific instances of alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence. (b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a). . If this evidence were truly evidence of a prior unrelated act, it could be offered and admitted as evidence of past consent for the purpose of showing consent to the present act, subject to the procedural requirement of Section 3104(b). It would be irrelevant and could not be offered or admitted to show the victim’s poor reputation for chastity. . Article I, Section 9 provides in relevant part: In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, ... . All defendants joined in the motion to introduce this evidence, as well as the exception to the court’s ruling barring the evidence. This issue was presented in written post-trial motions by appellant’s counsel and briefed and argued below. It is thus properly before us. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (plurality opinion); Pa.R.Crim.P. 1123(a). . See, e.g., Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 546-551 (1980), and Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 7-32 (1977), detailing the history. . As of 1979, 45 states by legislation, and one by appellate court ruling, as well as the United States Congress, had created some form of rape shield law. See Tanford and Bocchino, supra, note 6 at 1, 591-602. See also the 1980 Supplement to I Wigmore on Evidence § 62 (3rd ed., 1940), which lists the legislation by jurisdiction.

Opinion by Mr. Chief Justice Jones, Gerasimos and Mary Lykiardopoulos were married on June 15, 1950. While they were married they purchased two parcels of x-eal estate in the City of Pittsburgh, wMch they held as tenants by the entireties. The parties separated in January of 1967. It appears from the pleadings that Mary (hereafter referred to as the appellant) retained beneficial enjoyment of both properties from the date of the separation until the present. The appellant used one parcel as a combination dwelling and coffee shop, and the other as a rental property from which she received all the income. It also appears that the appellant has been responsible for all the expenses necessary to preserve the properties since 1967. On July 1, 1969, the parties were divorced and on December 7,1970, Gerasimos (hereafter referred to as the appellee) filed a complaint in equity seeMng an accounting for the profits derived from the use of the properties by the appellant and the partition and sale of the properties, in accord with the provisions of the Act of May 10, 1927, as amended. The appellant filed an answer to the complaint and a counterclaim in which she sought to have the following items credited to her and set off against any interest of the appellee in the properties: (1) child support payments from the date the appellee deserted the appellant and two minor children until February, 1971, when the appellee began paying child support under a court order; (2) support for herself from the date of the separation until the date of the divorce; (3) all money she had invested in the properties as part of the initial purchase price; (4) all money spent to preserve the properties including mortgage payments, taxes, insurance, utilities and upkeep. According to the appellant, the value of the combined items claimed in the counterclaim exceeds the value of appellee’s one-half interest in the properties. Therefore, the appellant requested the court to order the appellee to convey his record interest in the properties to the appellant, in lieu of paying her the money she claimed was owed to her. The counterclaim was not endorsed with a notice to plead and no answer was filed thereto. After a hearing the court below found that the ownership of the real estate, which was held by the entire-ties during the marriage, was converted to a tenancy in common by operation of the Act of May 10, 1927, as amended, and should be partitioned in accordance with the provisions of that Act. In disposing of the appellant’s counterclaim, the court held that the claims for support were personal obligations of the appellee not connected with the real estate and therefore not proper matters for consideration in the partition proceedings. The court appointed a trustee to sell the properties and account for the proceeds and denied without prejudice the appellant’s counterclaim for support. The appellant filed exceptions to the decree, which were argued before tbe court below and denied. This appeal is from the denial of the exceptions. The appellant’s first contention is that the appellee has no standing to seek partition of this property because it was his desertion of the appellant that led to the divorce. The appellant argues that the doctrine of clean hands should prevent the appellee from prevailing in a court of equity. There is no merit in the appellant’s argument. The action in partition following divorce is specifically authorized by statute. The Act of May 10, 1927, as amended, 68 P.S. 501 et seq. provides a complete procedure to be followed when parties who have been divorced partition property formerly held as tenants by the entireties. There is nothing in the statute to indicate that recourse to the provisions of the statute is limited to the non-eulpable party to the divorce proceedings. Indeed, the language of the statute is to the contrary: “Whenever any husband and wife . . . shall be divorced . . . either of them may bring suit. . . against the other to have the property sold and the proceeds divided between them.” Act of May 10, 1927, P. L. 884, as amended, 68 P.S. 501. Cf. Hornak v. Hornak, 309 Pa. 281, 163 A. 512 (1932). Concerning the appellant’s claim for support for herself and her minor children, the court below was correct in holding that these personal obligations of the appellee cannot be considered as part of the partition proceedings in this case. Section 3 of the Act of May 10, 1927, as amended, provides: “The proceeds of any sale had under the provisions of this act. . . shall be equally divided between tbe parties, subject, however, to tbe deduction therefrom, of tbe amount of any lien entered of record jointly against both of tbe respective parties . . . and tbe amount of any liens entered of record against either of such parties .. . shall be deducted from tbe share of tbe party against whom such lien is filed . . . .” 68 P.S. 503. (emphasis added) Tbe statutory language is clear—only liens of record may be deducted from tbe proceeds of tbe partition sale. At common law, property which was held in tenancy by tbe entireties during marriage remained entire-ties property even after a divorce. O’Malley v. O’Malley, 272 Pa. 528, 532, 116 A. 500 (1922). Tbe Act of May 10, 1927, as amended, which converts a tenancy by tbe entireties into a tenancy in common after a divorce and permits either party to partition tbe property, is in derogation of tbe common law and must be strictly construed. Lazare v. Lazare, 365 Pa. 591, 594, 76 A. 2d 190 (1950). While tbe Act provides for tbe satisfaction of all recorded liens, there is no provision in tbe Act which will permit tbe appellant to charge her unliquidated and unrecorded support claims against tbe appellee’s share of tbe proceeds. The statute provides for tbe payment of recorded liens out of tbe proceeds of the partition sale and they are tbe only charges permissible. See, e.g., Leavy v. Leavy, 16 D. & C. 2d 698 (Lycoming C. P. Ct. 1958); Wilson v. Wilson, 4 D. & C. 2d 152,153 (Pbila. C. P. Ct. 1955). Finally, tbe appellant contends that, since tbe date of tbe separation in 1967, she has paid all tbe expenses necessary to preserve and protect tbe property, including mortgage payments, taxes, insurance premiums and general repair expenses. Tbe appellant seeks a credit for one-half of all money spent in preservation of tbe property since tbe separation. This claim must also be denied. In Hunsberger v. Bender, 407 Pa. 185, 187, 180 A. 2d 4, 5 (1962), where we interpreted the Act of May 13, 1925, P. L. 619, we stated: “This [statute] requires an equal division of the sale proceeds after the payment of expenses of the sale. . . . The statute makes no exception, moreover, for those cases where an equal division would unjustly enrich one tenant at the expense of the other because of expenditures made either before or after the divorce.” (emphasis in original). We hold that the only deductions which may be made from the proceeds of a partition effected under the provisions of the Act of May 10, 1927, as amended, are liens entered of record at the time of the sale. In so holding we are not making any determination about possible substantive legal rights which may exist between the parties arising out of their ownership of the properties in question. Since the properties have not yet been partitioned, either party is free to seek legal redress including the creation of a lien against the properties in question which would be honored at a later date. The decree of the court below is affirmed and the case remanded for further proceedings consistent with this opinion. Appellee is to pay his own costs. Mr. Justice Roberts concurs in the result. Section 1 of the Act provides: “Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit in the court of common pleas, sitting in equity, of the county where the property is situate, against the other to have the property sold and the proceeds divided between them. The summons in such suit shall be served in the same manner and with like effect as in cases of partition at law.*’ Act of May 10, 1927, P. L. 884, §1, as amended, May 17, 1949, P. U. 1394, §1, 68 P.S. 501. Rulo 1557 of the Pennsylvania Rules of Civil Procedure provides that, in actions for the partition of real property, exceptions may be filed by any party to an order directing partition and, that an appeal may be taken from the ruling of the court en banc on the exceptions within thirty days from the date of the ruling. Pa. R. C. P. 1557. The Act of May 13, 1925 was? the immediate predecessor of the Act of May 18, 1927, which is involved in this case. Section 3 of the Act of May 13, 1925 provided: “The interest of each of the respective tenants by entireties shall be conclusively deemed to bo one-half of the value of the property. The proceeds of any sale had under the provisions of this act after the payment of the expenses thereof shall be equally divided between the tenants by entireties.” Similar language was included in the Act of May 10, 1927, which replaced the 1925 Act. The present statutory language, supplied by the 1919 amendment to the Act of May 10, 1927, provides for equal division of the proceeds subject only to recorded liens and is set out abova

Opinion by Mr. Justice Nix, This appeal presents the narrow issue of whether, under the applicable Pennsylvania Rules of Civil Procedure, the appellee is entitled to pretrial discovery of the extent of automobile liability insurance carried by appellant. On May 11, 1970, appellee Joseph Szarmack instituted this action against Wilbert C. Welsh, Jr. by way of a complaint seeking compensatory and punitive damages for injuries allegedly sustained as the result of appellant’s negligent operation of Ms motor veMcle. During the course of pretrial discovery proceedings, appellee served appellant with the following written interrogatories to wMch appellant objected: “1. Was the defendant insured by a policy of liability insurance on the date of the accident herein involved? 2. If the answer to the preceding interrogatory is yes, state: (a) The name of the insurance carrier, (b) The limits of liability for bodily injury.” After a hearing, the trial court granted appellee’s motion to compel answers to the interrogatories and, when appellant refused to comply, appellee moved for sanctions. The trial court then entered a default judgment in favor of the appellee. On appeal, the Superior Court affirmed, Szarmack v. Welch, 220 Pa. Superior Ct. 407, 289 A.2d 149 (1972), and we granted allocatur. The issue presented here has divided the commentators, the lower courts of this state, courts of other states, and, before the promulgation of F. R. Civil P. 26(b)(2), the Federal courts. The scope of written interrogatories used in pretrial discovery is limited by Pa. R. C. P. 4005 and 4007 to “. . . any matter, not privileged, which is relevant to the subject matter involved in the action and will substantially aid in the preparation of the pleadings or the preparation or trial of the case.” In construing the above language, we must also accommodate Rule 4011 which forbids discovery which “is sought in bad faith; causes unreasonable annoyance . . ., [or] relates to any other matter which is privileged.” Thus, while our rules do not explicitly decide the issue presented here, they provide the following guidance: (1) the material must be relevant to the subject matter involved in the action; (2) the material must substantially aid in the preparation or trial of the case; (3) the material must not be privileged, or otherwise prohibited by Rule 4011. In our view, the discovery sought here would foster the general objectives set forth in our procedural rules. Realistically, the plaintiff and his attorney must have some assurance that there can be recovery in the event of a favorable verdict to justify the time, effort and expense in the preparation of the case for trial. As the court noted in Groce v. Hile, supra, at 93: “Whether a substantial verdict can be recovered is of prime concern, not after judgment is obtained, but from the time that the suit is commenced. It continues through pretrial negotiations and influences the manner of preparation and trial of the case. An example of this might well be that plaintiff would expend additional money to obtain medical experts, surveys and diagrams or other evidence favorable to his cause if he knows there is ample coverage. All of this has great practical relevancy in the preparation and evaluation of the case.” The extent of insurance coverage is not only valuable to plaintiff’s counsel in determining how to prepare his case, but also in evaluating offers of settlement. A paper judgment is obviously meaningless to the plaintiff, People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 238, 145 N.E. 2d 588, 593 (1957) and Ellis v. Gilbert, 19 Utah 2d 189, 429 P.2d 39 (1967), and he will keep his settlement demands within policy limits if he is aware of those limits. As Judge Mansfield of the Southern District of New York observed in Clauss v. Danker, 264 F. Supp. 246, 248 (S.D. N.Y. 1967): “This court has witnessed the dismal waste of time and effort, both on the part of the parties and the court, in cases where an early disclosure of limited policy limits would have led to prompt settlements that were not reached until the eve of the trial, when such information was first revealed after needless pretrial discovery and preparation for trial. Aside from such unnecessary consumption of time and effort resulting from inability to learn such crucial information until the very last minute, the effect frequently is to disrupt the court’s schedule and cause loss of trial time for many needy prospective litigants.” In this way, discovery of a policy of relatively low limits will be a very effective in centive to settlement and will further the general purpose of all procedural rules: “The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa. R. C. P. 126. Appellant counters by suggesting that discovery of high policy limits will frustrate settlement by encouraging the plaintiff to seek an excessive recovery. First, we cannot assume, as appellant does, that settlement is a game whereby the defendant is entitled to crucial information not possessed by the plaintiff. “The liberal rule thus does not upset the natural bargaining position of the parties. Instead, the effect of discovery of insurance coverage is to equalize the knowledge of both parties, with the result that settlements will be based more upon a fair evaluation of plaintiffs claim and less upon ignorant conjecture concerning the depth of defendant’s pocket. Courts cannot forever hold themselves, as if unknowing, above that stage of litigation wherein negotiation and settlement occur. It would contravene the liberal policy of the federal rules to encourage the knowledgeable resolution of disputes at one point and discourage it at another.” Landkammer v. O’Laughlin 45 F.R.D. 240, 241 (S.D. Iowa 1968). Second, it is the insurance company, not the named defendant, who seeks to withhold such information. In so doing, the company may well be gambling on a verdict of non-liability where the only one who stands to lose from that gamble is the policyholder. See, Gray v. Nationwide Mutual Ins. Co., 422 Pa. 500, 223 A.2d 8 (1966). Such a situation is hardly conducive to the just, speedy and inexpensive determination which our rules are designed to foster. Moreover, appellant’s assertion that disclosure of high coverage will discourage settlement and inflate claims ascribes to the members of our bar a degree of irresponsibility or lack of integrity that we will not accept. “Plaintiffs will not hold ont for a larger figure simply because there is adequate insurance, the real factors in their determination are what they believe a jury will ultimately decide as to liability and damages, the availability of the parties, witnesses, both liability and medical, who the parties are, the kind of witness they will make, extent and duration of the injury, the expense of trial, the possible delay, and what they think the insurance company will pay. Plaintiffs must consider the insurance company’s appraisal of the case and the fact that it also must take into account the same considerations. It would be the novice indeed who would hold out on the simple hope that some stroke of luck will deliver him a jury which would return a verdict far in excess of the range of what his case was worth, then holding it on appeal.” Muschar v. University & City Ministries, 118 P.L.J. 409, 413 (1970). See also, Ash v. Farwell, 37 F.R.D. 553 (D. Kan. 1965); Ellis v. Gilbert, supra. Appellant also raises the argument that the extent of insurance coverage is privileged. Basically, he asserts that insurance coverage is no different from other private financial information which determines the defendant’s ability to pay a potential judgment. We cannot agree. Insurance coverage is not in the same category with the defendant’s other assets. The worth of such coverage is contingent on recovery by the plaintiff, and its sole purpose from the defendant’s point of view is to protect his other assets. This is not to require disclosure of the private financial status of an individual but merely to reveal the extent of pi'otection which was purchased specifically for such eventuality. As we have noted, the defendant (presumably the person whose privacy would be violated) is not the party resisting disclosure since such disclosure would tend to dispose of claims within policy limits and relieve defendant of personal exposure. Additionally, this state’s financial responsibility provision evidences a strong public policy to protect those injured as a result of automobile accidents by encouraging the acquisition of adequate insurance coverage. See, The Vehicle Code, Act of April 29, 1959, P. L. 58, §§1401 et seq., as amended, 75 P.S. §1401 et seq. It would be anomalous to require the victim to remain in the dark as to the existence of and extent of coverage until after the entry of judgment. Johanek v. Aberle, 27 F.R.D. 272 (D. Mont. 1961) ; Superior Ins. Co. v. Superior Court 37 Cal. 2d 749, 235 P.2d 833 (1951). For all of the reasons noted, we agree with the courts below that the information which plaintiff sought is discoverable. While entry of a default judgment is one of the permissible sanctions in such cases, we feel that the interests of justice would be served best by giving the appellant an opportunity to comply with the discovery in light of this opinion. This is so because of the considerable split of authority that existed in this state (see n.1, supra), and because the only way in which appellant could obtain appellate resolution of that issue was by refusing to supply the requested information. Since up to this time this Court has not resolved this dispute, it would be unjust to permit the default judgment to stand in this case. Judgment is vacated and the matter is remanded to proceed in accordance with this opinion. Mr. Justice Pomeroy concurs in the result. Those permitting discovery being: Hum v. Orr, 84 York 205 (1971); Muschar v. University & City Ministers, 118 P. L. J. 409 (1970, Allegheny County) ; Harrison v. Nichols, 49 D. & C. 2d 217 (1970, Delaware County) ; Senneca v. Bird, 53 D. & C. 2d 613 (Northampton County, 1970) ; Dashem v. Morehead, 46 D. & C. 2d 563 (1969, Centre County) ; Groce v. Hile, 46 D. & C. 2d 89 (1969, Mercer County) ; Berek v. Smock, 46 D. & C. 2d 221 (1969, Mercer County) ; and Waksman v. Walker, 44 D. & C. 2d 1 (1968, Philadelphia County). Those denying discovery being: Common v. Tate, 21 Cumb. L. J. 69 (1971) ; Michael v. VanBilliard, 34 Lehigh L. J. 388, 54 D. & C. 2d 129 (1971) ; Russler v. Covert, 53 D. & C. 2d 37 (Mifflin County, 1971) ; Roth v. Serfass, 52 D. & C. 2d 663 (Monroe County, 1971) ; Patts v. Yancey, 53 West. L. J. 147 (1971) ; Rayman v. Sanner, 26 Sommerset L. J. 157 (1970) ; Broennie v. Stitt, 47 D. & C. 2d 644 (1969, Armstrong County); Sperath v. Thomas, 48 D. & C. 2d 309 (1969, Bucks County) ; Toogood v. Watkins, 46 D. & C. 2d 365 (1969, Phila. County) ; Cipparone v. Kosloski, 46 D. & C. 2d 628 (1969, Phila. County) ; Howell v. Spatz, 14 D. & C. 2d 295 (1958, Montgomery County) ; and Covert v. Cingolani, 1 Butler L. J. 65 (1956, Butler County). That rule became effective on July 1, 1970 and provides: “Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.” For a comprehensive list of cases and commentators dealing with this issue, see, Davis, Pretrial Discovery of Insurance Coverage, 16 Wayne L. Rev. 1047 (1970). See also, Anno., 13 A.L.R. 3d 822. There are alternative methods of sanctioning the practitioner who illegally inflates claims. See, Pennsylvania Supreme Ct. Rule 17.

Tilghman O. J. In this case two points are to be decided. 1. Whether a writ of error lies. 2. Whether the judgment is good so far as it respects the costs. 1. The reason assigned against a writ of error is, that the act of assembly gives no remedy, but by appeal to the Court of Common Pleas. The case does not stand exactly on the footing of an award filed in the office of the prothonotary with no farther proceedings on it, because the matter was taken up on motion in the Court of Common Pleas, and that court have expressly given a judgment for the amount of the debt and costs awarded by the arbitrators. But even if it rested on the filing of the award, it is considered, as a judgment on which a writ of error lies, as was lately decided by the court at Lancaster in the case of Ebersoll v. Krug, 8 Binn. 528. 2. On a consideration of the several acts of assembly on the subject of costs on appeals from the judgment of a justice, or the award of arbitrators, it appears, that in ease of an appeal by the defendant, he shall not be subject to costs where less is recovered against him on the appeal, than the amount of the judgment or award appealed from, unless he produced new evidence on the appeal. No new evidence was produced in this case; by what authority then did the arbitrators award costs to the plaintiff? I think it will hardly be contended that arbitrators are not bound by acts of assembly, especially when it is considered that they may be appointed, on the application of either party, without the consent of the other. They have power, it is true, to determine both the law and the fact in the first instance, because not being assisted by a jury, nor by judges, they must either determine both law and fact, or not decide at all. But it by no means follows that they are placed above the law. Such a construction would be monstrous; it would lessen the *security of property, and almost dissolve the bonds of society. Where it manifestly appears, on the face contrary to law, it cannot But it is said, that granting that the arbitrators have no power to control the law, yet they have power to give such damages as they think reasonable, and they might in this instance, have given the amount of the costs by way of damages. It is true they might, but such does not appear to have been their intention; they ascertained the amount of the debt, separate from the costs. Now, after fixing the amount of the debt, according to the evidence, how could they with a good conscience have increased that amount, not because it was really due, but solely with a view of throwing the costs on the defendant contrary to law. I do not believe that the arbitrators had any design to contravene the law, or knew that the defendant was not liable to costs; on the contrary, I must suppose that they would not have given costs had they been told that the law forbad them. There never would have been a doubt on the subject, had it not been decided in the construction of an act of parliament, which enacts that in case of slander, if the plaintiff recovers less damages than 40s., he shall have no more costs than damages, that the jury may give full costs though they give less damages than 40s. The law has been so construed, and therefore in that case, it must not be departed from. The reason assigned is that the jury meant to give the whole as damages. There may be some ground for this reason in cases of slander, or of torts in which there is no fixed standard of damages; but that reason would not apply to an action for the recovery of a debt, because there the debt with interest on it is a fixed standard. I am free moreover to confess that I was never thoroughly satisfied with the construction given to the statute in case of slander, and therefore though bound by it in that case, I think myself at liberty in other instances, to adopt a mode of construction more agreeable in my opinion to the intent of the legislature. What is more difficult to be got over is the case of M’Laughlin v. Scott, 1 Binney 61. From the known accuracy of the reporter, I make no doubt but that what fell from the court is faithfully set down. It appears however that the case was decided without argument, on the thought of the moment. Under such circumstances, it would be going too far, to say, that the subject is *not open to more mature consideration. We have on the record in the case before us, the opinion of the president of the Court of Common Pleas, who declares, that nothing but the authority of M’Laughlin v. Scott induced him, contrary to his own opinion, to give judgment for costs. I am so well satisfied, that the power of awarding costs is in .opposition to the law, that I must give my opinion for reversing the judgment of the Court of Common Pleas.' Yeates J. The question in this case is, whether under the last supplement to the arbitration law passed on the 29th March 1809, the arbitrators have a discretionary power to award costs, in matters of contract? The action originated before a justice of the peace of Centre county, and was referred. The arbitrators awarded forty-eight dollars and thirty-six cents to the plaintiff below with costs, upon which judgment was rendered by the justice. An appeal was regularly entered by the defendant below, and the suit was referred to arbitrators under the act above mentioned, who awarded to the plaintiff twenty dollars and costs. No appeal was entered hereon, but the defendant obtained a rule of the Court of Common Pleas on the plaintiff to show cause why the defendant should not be discharged, upon payment of the debt awarded and interest thereon .without costs. The court upon argument discharged this rule with considerable reluctance in January term 1810, and directed judgment to be entered for the twenty dollars and costs, as found by the last arbitrators: Whereupon error is brought in this Court. Tke counsel for the defendant in error have insisted, that under the law in question, the only mode of redress which the party aggrieved by an award has,is by appeal; that the arbitrators have an incontrovertible power over the law and fact of each case submitted to them, absolutely conclusive unless where an appeal has been brought; and that in fact, the very matter in the controversy has been determined in this Court in M’Laughlin v. Scott 1 Binn. 61. As to appeal being the only remedy, and as to the controlling superintending power of this Court, in cases of real and substantial errors apparent on the record, I have delivered my sentiments at the last term of the Lancaster district in *Ebersoll v. Krug et Ux. which I will not now repeat. An additional argument presents itself under the circumstances of this case. The defendant below has had the benefit of one appeal from the decision of arbitrators; can he claim a second appeal? If he can, I know not where he is to stop, and the suit would be converted into a mathematical circle, without end, under such privilege. I do not mean to impeach the accuracy of the report of McLaughlin v. Scott. But the argument therein must have been very slight, and the decision made on little consideration. Not a single member of the court has the smallest note of it, which I have scarcely known ever to have happened before, where a point of law has been seriously debated. It was said in a late case of Stuart v. Harkins, in the Eastern district at the late December term, to require reconsideration. It is not stated in the report, whether the action was removed from the Common Pleas into this Court, or whether it originated here. Prom the objection made by the defendant’s counsel, it would seem that the original process issued from this Court. I have not the immediate power of recurring to the record; but it appears to me clearly, that in either mode, the determination cannot be reconciled to the words of the laws. By the act of 20th May 1767, sec. 8,1 Dali. St. Laws 480, it is provided, that if a plaintiff shall remove his cause from “ the Court of Common Pleas into the Supreme Court, the debt or damages whereof, which shall be found due by default, confession, verdict, or report of referees, shall not amount to 501. he shall not recover any costs of suit.” And by the act of 25th September 1786, giving the Supreme Court original jurisdiction in the city and county of Philadelphia, it is likewise provided by sect. 5, 2 Dali. St. Laws 472, that “if any plaintiff shall bring any suit or action in the Supreme Court, unless where the title of land or other real estate may come in question, and shall not recover thereupon more than 50i. such plaintiff shall not be allowed any costs of suit.” It is a settled rule, that statutes giving costs, being considered as penal in their nature, are always construed strictly. 2 Stra. 1105; 3 Burr. 1287. But that case was within the letter of both laws. It does not to be a wherein *the defendant made a set-off, for there it is wholly in the defendant’s power and knowledge, whether he will insist upon and prove his set-off at the trial; consequently the reducing of the plaintiff’s demand at the option of the defendant ought not to impair the plaintiff’s right to costs. 1 Barnes 161, Scott v. Ferrall; 2 Stra. 1191; 1 Wils. 19; 2 Wils. 68. The court have no discretionary right over costs; by law the costs must follow the verdict. 1 Wils. 324. Under the “act for defalcation,” passed in 1705, sect. 3. 1 Dali. St. Laws 66, the award of referees mutually chosen, and made according to the submission of the parties, approved of by the court and entered on the record, shall have the same effect, and be deemed, and taken to be as available in law, as a verdict given by twelve men. The power of the court in M’Laughlin v. Scott, to withhold their confirmation of the report will not be denied; nor can it be said, that the referees were not bound by the known laws of the commonwealth. Their power cannot justly be assimilated to those of arbitrators on a bond of submission, whose award cannot be impeached at law, on grounds of the grossest partiality. Nor can it be insisted, that it was the intention of the act of 29th March 1809, to vest arbitrators with powers of deciding according to their caprice, or mere will and pleasure, and absolve them from all obligations to fixed and settled rules. Why else was an appeal granted, wherein those rules must necessarily be the guides of the tribunals, which should ultimately settle the controversy? ' Under the 10th sect, of the act, “the arbitrators were to be sworn or affirmed justly and equitably to try the matters in variance, to examine proper, disinterested, and competent witnesses, to judge of the credibility of their testimony, and to decide on the law, and the facts, that may be involved in the cause to them submitted.” They sit without legal aid, and the powers granted were indispensably necessary to carry into execution the plan of reform of judicial proceedings adopted by the legislature. So far from showing any design to vary the known and established rights of individuals, or to impair the energy of the laws, these powers evince in a forcible manner, the strongest intention to the contrary. To a certain extent, the court have a controlling power over the cause in which the award is made; and a variety of cases may be *put to show the absolute necessity of such right, and the salutary influence arising from the discreet exercise of it. It is true, that in Browne v. Gibbons, 1 Salk. 207, it was said to be the resolution of all the justices of the King’s Bench and Common Pleas, that in an action upon the case for slander, though the court are bound by the Stat. 21 Jac. 1 c. 16, and cannot increase the costs where the damages are under 405. yet the jury are not bound by that statute, and therefore they may give 10?. costs where they give but 10c?. damages. The English statute runs in the same words as our act of 27th March 1713, sect. 4, 1 Dali. St. Laws 97; that if in actions of slander the damages are found or assessed under 40s. the plaintiff shall have and recover only so much costs as the damages so given or assessed do amount to, without any further increase of the same. It is not perfectly accurate to say, that the jury are not bound by that statute ; because all men are equally bound to obey the laws of their country. The correct ground of that decision is, that the true finding of the jury shall be carried into effect; and when it appeared to be their real intention to find damages above 40s. as was evidently the case, when they find 101. costs in addition to the 10d. damage, (or which must necessarily be presumed, when they give the costs of suit in a trial in a court of record) the court may mould their verdict into legal form, so as to effectuate their intent, and give the plaintiff his costs. It is well known that damages and costs are frequently used in our books as synonymous expressions. The courts of this state have adopted the same rule of decision in actions of slander, and where the jury have found, in such a suit, damages under 40s. with full costs, judgment is always rendered accordingly. At Nisi Prius and in the Circuit Courts, it has been common in such suits, where damages under 40s. have been found with six cents costs, to inquire of the jury, whether they meant to find full costs or not, and to enter the verdict according to their answer. But where the entry is made with six cents costs, the plaintiff' gets no more costs than damages. Frederitze v. Odenwalder, was an action of slander, removed by the plaintiff into this Court from the Common Pleas of Northampton county; a verdict passed for the plaintiff for twenty-five cents damages with six cents costs, and the Court in banc in March term 1799, were *of opinion, that he was not entitled to costs. And in Stuart v. Harkins, before cited, where referees in slander found one dollar damages with costs, we were of opinion, upon full argument, that the plaintiff should recover no more costs than damages, and affirmed the judgment of Mr. President Rush given to the same effect. I well recollect the cause of M’Kissom v. Steel et al., wherein I was of counsel with the plaintiff, tried at York Nisi Prius. It was trespass and false imprisonment against a justice of the peace, constable and plaintiff below, for confining the plaintiff above in a cause not within the jurisdiction of the justice. We had removed the cause from the Common Pleas, and urged to the jury upon the trial, that the plaintiff after sustaining a gross injury, might be subjected to the payment of the costs, if he did not recover 501. damages. The plaintiff' was a poor man and had been hardly dealt with. M’Kean C. J. charged the jury, that damages were their peculiar province, and should they think proper to find a sum in damages under 50i., they might protect the plaintiff by finding full costs ; which they found accordingly with 100 dollars damages. Mr. Sergeant for the defendants, afterwards in April term 1791 contended, that judgment should be entered for the plaintiff for the damages without the costs. But the court denied his motion, and compared the suit to an action of slander, and judgment was entered agreeably to the verdict. But the striking difference between all those cases and the present one is this. In causes of action of a vindictive nature, which arise peculiarly ex delicto, there cannot in the nature of the thing be any settled measure of damages. The jurors or referees estimate the injury from their own individual feelings, and the consequences of such acts in social life; and they may deem it eligible to assess a particular sum in damages, beyond the costs, which may be deemed an adequate compensation for the wrong done. On such subjects, there may be great diversity of opinion in well informed minds. But here the cause of action arose ex contractu ; and there was a settled measure of damages, which might be calculated with the utmost accuracy and precision. It becomes no prudent man to overstep the line, which the wisdom of the community has drawn in order to repress a state *of litigation. The jury are to give costs where they are recoverable. If they do not, the court will on motion order the costs to be taxed, and endorsed on the postea. Hull. Law of Costs 623. But to permit jurors, referees or. arbitrators, to alter and change the municipal code of laws, and substitute therefor, their, own idea of the hardship of particular cases, tends to confusion and uncertainty. Let them judge of facts according to the suggestion of their judgments and consciences; when these facts are found, let the language of the law be the rule as to the costs. In Walker et al. v. Smith, in the Circuit Court of the United States for this district, the jury found for the plaintiffs 468 dollars 44 cents; but conceiving it to be a hard case, added, that the plaintiffs should pay the costs. But this was at once abandoned by the defendant’s counsel, on general principles ; and the court declared, that the plaintiffs were clearly entitled to costs, 4 Ball. 390. And in Guier v. M’Faden, 2 Bin. 587, where a report was found for the plaintiffs for fifteen dollars and the costs, the court determined that the sum found would not carry costs, unless there was an agreement in the rule, that the referees should have a power over the costs, or the plaintiff had made affidavit before bringing the suit, that he believed the debt was beyond the sum. within a magistrate’s jurisdiction. The court were clearly of opinion, that the legislative restriction with respect to costs, was equally binding on courts, juries, and referees; and that neither tribunal could fly in the face of the law and say, the defendant shall pay the costs, in a precise case, where the legislature had declared in express terms, the plaintiff' shall pay them. The supplement to the arbitration law of 9th April 1807, s. 2, 8 St. Laws 178, has enacted, that where the defendant has appealed from a judgment of a justice of the peace, and on such an appeal procures an abatement of the same judgment, he shall be allowed his daily pay of fifty cents and costs, where he does not exhibit new evidence. Here the defendant below has obtained a deduction of 28 dollar’s 36 cents from the judgment of the justice, without exhibiting new evidence; and he and not the plaintiff' is entitled to costs. I am therefore of opinion, that the judgment rendered in the Court of Common Pleas of Centre county be reversed.

Opinion by Me. Justice Fell, The right contested is that of the plaintiffs to recover damages forthe opening by the city of Rúan and Leiper streets. By reason of their purchase of lots bounded by the streets the plaintiffs claim ownership of the land to the middle thereof. For many years stone has been quarried by them and their grantors from these lots, and from the beds of the streets, and at the time of the commencement of these proceedings the quarry had been worked to a depth varying from f orty to eighty feet. The streets as filled in by the city are not as high as the original surface of the ground. In 1847 the land in question was part of a tract of five and a half acres owned by Peter and Rudolph Bucldus. In that year they made a plan dividing the land into lots and streets. This plan was recorded November 6,1847, and in January, 1848, the lots were sold at public sale. They were sold and. conveyed according to the plan and described as bounded by Rúan and Leiper streets, and these streets were mentioned in the deeds as having been “ laid down on said plan for the accommodation of this and other lots.” It is not disputed that the sale and conveyance of the lots passed the fee to the middle of the streets on which they fronted. Indeed it could not be under the decisions in Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Baker v. Chester Gas Co., 73 Pa. 116; Falls v. Reis, 74 Pa. 439; Firmstone v. Spaeter, 150 Pa. 616. It is claimed however by the city that these streets were dedicated to public use in 1847, and that consequently no damages can be recovered for their opening. The sale of lots according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to the use of the public, and operates as a dedication of them to public use. The right passing to the purchaser is not the mere right that he may use the street, but that all persons may use it: Dovaston v. Payne, 2 Sm. L. C. 154; McCall v. Davis, 56 Pa. 431; Davis v. Sabita, 63 Pa. 90; Transue v. Sell, 105 Pa. 604; In re Opening of Pearl Street, 111 Pa. 565. In the case last cited it was said that when one “sells and conveys lots according to a plan which shows them to be on streets he must be held to have stamped upon them the character of public streets. Not only can the purchaser of lots abutting thereon assert this character, but all others in the general plan may assert the same. The proprietor is in no condition to afterwards revoke this dedication.” Such a dedication was said in Heckerman v. Hummel, 19 Pa. 64, to be a contract with the public. The distinction between the sale of lots according to a plan made by the owner upon which streets are laid out and the mere reference in aid of description to streets projected by the municipality is manifest. In the former case the inference of dedication arises, in the latter it does not. The dedication by the plaintiffs’ grantors in 1848 operated as a relinquishment of all claims for damages for the use of the land within the lines of the streets for street purposes, and no claim for damages can be sustained unless by reason of the act of May 9, 1889, P. L. 173. The language of the act is: “ That any street, lane or alley laid out by any person or persons in any village or town plot or plan of lots on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after tbe laying out of the same, shall be and have no force and effect and shall not be opened without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.” The purpose of the act is to relieve land upon which streets have been laid out by the owner, but not opened or used for twenty-one years, from the servitude imposed. To what extent it may affect the rights of those who by purchase of lots within the tract have acquired the right of the use of all the streets marked on the plan we need not now inquire. We have before us only the question of the right of the municipality to open the streets without compensation by reason of the dedication in 1848. As against this right the act establishes a limitation of time where none before existed. The streets were laid out forty-four years before the commencement of these proceedings. They have not been opened to, or used by, the public. During the whole of this time the beds of the streets have been in the possession of the abutting owners, and used by them for the purpose of quarrying stone. No possession or use was claimed by others. The case, we think, comes within the meaning of the act of 1889, and it is now too late for the city to assert the right founded upon the dedication in 1848. It follows that the cases should have been submitted to the jury. The judgment in each case is reversed with a venire facias de novo. '

The opinion of the court was delivered, May 17th 1873, by Williams, J. The only question worthy of consideration in this case is presented by the 14th assignment. The action was brought to recover the price paid for certain oil-stocks which the plaintiffs alleged that they had been induced to purchase upon the fraudulent representations of the defendants as to the cost of the land; and a recovery was sought to be had on the footing of the plaintiffs’ rescission of the contract and a tender of the stocks to the defendants before bringing the action. The evidence shows that the plaintiffs bought the stocks in April 1864; that they were informed by the defendants, in October or November 1865, of the price paid for the lands; and that, on the 2d of March 1866, they tendered the stocks to the defendants and demanded back the money they had paid for them. Between the discovery of the alleged fraud and the tender of the stocks the assets of the company had been exhausted in boring unsuccessfully for oil, and the stocks had consequently depreciated in price. The court charged the jury that if they found that the plaintiffs were informed of the price of the lands by Mr. Wise in October, or early in November 1865; that the plaintiffs did not offer to return to the defendants the stocks in question for one or more months after such information was given; (the date is given, the evidence is March 2d 1866;) that the price of the stocks had fallen between the time of the receipt of the information and the time of the tender, or that any other unfavorable circumstances appearing from the evidence occurred in the interval, so that the defendants would be in a worse condition by taking back the stocks at the time of the tender, than they would have been if the stocks had been previously tendered at the time the information was given, then their verdict must be for the defendants. The objection made to the charge is, that mere delay in making the tender, after discovery of the fraud, is not in itself a defence to the action ; and whether it is such, as to amount to a confirmation of the sale, or a loss of the right to rescind it, is a question of fact for the jury. If the defendants were guilty of the alleged fraud, the plaintiffs, on discovering it, had the undoubted right to rescind the contract, and, upon a tender of the stocks, to demand back the price paid for them. But it was their duty to do it within a reasonable time. They were not at liberty to await the result of the experiments the companies were making to obtain oil, and to rescind the contract after their efforts had proved to be fruitless. If they intended to rescind the contract it was their duty to act promptly and to return or tender the stocks at the earliest convenient moment after discovering the fraud. If they unduly delayed to return them and demand back the price they affirmed the validity of the contract: Pearsoll v. Chapin, 8 Wright 9 ; Negley v. Lindsay, 17 P. F. Smith 217. What is reasonable time or undue delay, when the facts are not disputed, is, as is well settled, a question of law to be determined by the court. Quam longum esse debet non definitur in jure sed pendet ex discretions justiciariorum: 1 Tho. Co. Litt. 644, (52 b.) Here the delay was for four months, and no evidence was given to explain or excuse it. Under the circumstances we have no hesitation in saying that it was unreasonable. The inference is pregnant that if, in the meantime, oil had been found in large quantities, there would have been no rescission of the contract, or offer to return the stocks. The plaintiffs could not take the chance of the speculation, and at the same time repudiate the contract if it turned out to be a losing bargain. Besides, the instruction complained of was not predicated of the mere fact of the plaintiffs’ delay in offering to return the stocks, but of the delay coupled with the fact that the price of the stocks had fallen in the interval between the discovery of the alleged fraud and the date of the tender. The verdict of the jury establishes both of these facts, and we are clearly of the opinion that they are sufficient to bar the plaintiffs’ right to rescind the contract. There was then no error in the instructions of the court, and they were as favorable to the plaintiffs as they had any right to ask or expect. There is nothing in the other assignments requiring special notice. The evidence complained of had more or less bearing upon the question in issue, and there was no error in its admission that calls for a reversal of the judgment. Judgment affirmed.

Opinion by Mr. Justice Bell, This is an appeal in. a mandamus proceeding from an order of the Court of the Common Pleas of Delar ware County. Petitioners (appellees) requested the Board of Adjustment to grant a special exception or ■variance — they erroneously used the terms interchangeably and synonymously — changing, reclassifying or re-designating “Business” 1.66 acres of their 20 acre tract of real estate, known as Tract No. 1, “now classified ‘A residence’ in part and ‘B residence’ in part”; and approximately .29 acres, known as Tract No. 3, “noAV classified as ‘A residence’ in part and ‘B residence’ in part”; and approximately .74 acres, known as Tract No. 4, “now classified as ‘B residence’ ”; and approximately .28 acres of their 21 acre tract, known as Tract No. 5, “now classified as ‘B residence’ ”; and changing, reclassifying or redesignating “ ‘C residence’” 16 acres of their 20 acre tract of improved ground known as Tract No. 2, and “now classified as ‘A residence’ .in part, ‘B residence’ in part, and ‘C residence’ in part.” These changes or reclassifications were requested, because “the present zoning restrictions . . . are confiscatory”;* and in violation of the Constitution of the Commonwealth, of Pennsylvania and of the Constitution of the United States; and “bear no reasonable relation to the health, safety, morals or general welfare of the' community and constitute a gross and excessive exercise of the police power -. . . and are unreasonable, unconstitutional, and unlawful.” The Board ruled it had no jurisdiction and refused to consider the owners’ petition. Thereupon the owners filed a complaint in mandamus to compel the Board to consider their application. After answer was filed, the court sustained relators’ motion for judgment on the pleadings and directed the Board of Adjustment of the Township of Ridley to hold a public hearing sur relators’ petition to the Board. Has the Board of Adjustment jurisdiction under the facts in this case, and, if so, will mandamus lie to compel the Board to consider, the petition? It will be noted at the outset that this application was an original petition and not an appeal to the Board; and there is no .specific averment of unnecessary hardship or other statutory conditions. required for a variance (although. this latter point was not raised by appellant). , . . Pursuant to The First Class Township Code enacted May 27, 194.9, P. L. 1955 sec. 59, 53 PS §19092-3107, the Township of Ridley passed a zoning ordinance, Ordinance No. -237, which inter alia classified the location and use of all lands in the township; established a comprehensive plan, and adopted a zoning map for the entire township. The zoning ordinance set up a Board of Adjustment and following the Act,.of As sembly virtually verbatim granted, tbe Board of Adjustment tbe following powers: “(a) To hear and decide■ appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative Official in the enforcement of said Act and tbis Ordinance. “(b) To bear and decide special exceptions to tbe terms of tbis Ordinance in such cases as are herein expressly provided for in harmony with tbe general purpose and intent of this Ordinance, with power to impose appropriate conditions and safeguards. “(c) To authorize, upon appeal, in specific cases, such variances from tbe terms of tbis Ordinance as will not be contrary to tbe public interest, where, owing to special conditions, a literal enforcement of the provisions of tbis Ordinance will result in unnecessary hardship and so that tbe spirit of tbis Ordinance shall be observed and substantial justice done.” Tbe succeeding paragraph of tbe Act or Code goes on to provide: “In exercising tbe above-mentioned powers, such board may, in conformity with tbe provisions of tbis article, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and may make such order, requirement, decision, or determination as ought to be made, and, to that end, shall have all tbe powers of tbe officer from whom the appeal is tahen ...” It is clearly apparent that paragraphs (a) and (c) specifically provide for and require an appeal in order for tbe Board of Adjustment to have power or jurisdiction. Paragraph (b), which deals with special exceptions, omits the provision or requirement for an appeal and permits an application to be filed in tbe first instance with tbe Board. Under tbe Ordinance, tbe words a “special exception or variance” which the petitioners use interchangeably are not synonymous but entirely different. The difference is well illustrated in Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A. 2d 744, where Mr. Justice Steen said (page 483) : “An cexception’ in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist. But zoning ordinances usually provide, as does the present one, for another kind of dispensation, also permitted by the statute, by which a ‘variance’ from the terms of the ordinance may be authorized in cases where a literal enforcement of its provisions would result in unnecessary hardship.” By the language of both the Act and the Ordinance, the special exceptions relate only to such cases as are expressly provided for under the terms of the Ordinance —in this Ordinance twenty-one specific exceptions, none of which, as we have seen, has any application to this case. It is clear, therefore, that the question or problem of a “special exception” does not arise in this proceeding. The Board of Adjustment refused to consider the application or grant a hearing because it believed it had no jurisdiction for the twofold reason (1) that this petition for a variance was not an appeal from any order and (2) because the petition was really an apr plication for a re-.zoning. So far as the variance is concerned, we agree with appellant’s contention that the only authority'the Board has is statutory; that the statute, being in derogation of property rights which have. been recognized for centuries, must be strictly construed and pursued: Cf. White’s Appeal, 287 Pa. 259, 266, 267, 134 A. 409; Kline v. Harrisburg, 362 Pa. 438, 450, 451, 68 A. 2d 182; 36 Vale Pa. D., Statutes §239. It follows that under the Act and the Ordinance passed pursuant thereto the Board has jurisdiction to grant a variance only upon appeal from an order, requirement, decision or determination theretofore made, and only where the specific case involved unnecessary hardship and other special conditions more particularly set forth in the statute. “Where a remedy or method of procedure is provided or a duty enjoined by any act of assembly, the directions of such act shall be strictly pursued, and we have held that such remedy or procedure is exclusive:” Taylor v. Moore, 303 Pa. 469, 473, 154 A. 799. The First Class Township Code of May 27, 1949, supra, and the Ordinance passed pursuant thereto must therefore be strictly pursued, and the Board of Adjustment has jurisdiction to consider a petition for a variance only when it avers facts adequate for a variance and when it is presented upon an appeal. The Board of Adjustment was likewise correct in holding that a re-zoning and a variance are fundamentally different; and that it has jurisdiction only when the petition is for a variance and not where it is for a re-zoning under the guise of a variance. The legislature expressly vested the power to zone in the Board of Township Commissioners (Act of May 27, 1949, P. L. 1955, Sec. 59, 53 P.S. §19092-3101 et seq.) and did not "empower a board of adjustment to set at naught the zoning statute and ordinance under the guise of a variance”: Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 485, 41 A. 2d 744. It appears that the Board of Adjustment would have the power and jurisdiction to consider, on appeal, a properly prepared petition for a variance in 1.66 acres in Tract No. 1, .29 acres in Tract No. 3, .74 acres in Tract No. 4 and .28 ácres in Tract No. 5. A petition to change and reclassify approximately 16 acres in Tract No. 2 appears, be cause of the large acreage involved, to be an application for re-zoning and not for a variance, and if so, the application should be made to the Township Commissioners and not to the Board of Adjustment. Lindquist Appeal, 364 Pa. 561, 73 A. 2d 378, is cited by appellees as holding that no appeal is necessary where a variance is applied for. The case is not authority for such a principle. While an application for a variance may have been filed with the Board of Adjustment in that case without any appeal, the question of whether the application was proper without an appeal was not raised or considered in this Court. What that case decided is that the Board of Adjustment must, under the Act of Assembly, take jurisdiction of (and exercise a judicial discretion in granting or refusing) a petition for a variance where the “ 'conditions specified by the enabling Act and the ordinance, exist, namely; special conditions, unnecessary hardship and etc., and when these conditions do not exist, the only remedy of an applicant for a variance is through legislative action. . . .’ ” Petitioners raised in their brief, the broad general question of the. constitutionality of the zoning acts. We may aptly repeat what this Court said in the leading case of Taylor v. Moore, 303 Pa. 469, 472, 154 A. 799: “Nor can the validity of the Zoning Acts of assembly as structural or general legislation be questioned. They have been held constitutional as have the ordinances passed under them: Euclid v. Ambler Realty Co., 272 U. S. 365; White’s App., 287 Pa. 259, and a host of cases since that time. The effect of certain parts of zoning ordinances, however, as they operate on specific property or pieces of land, may, as to such property or pieces of land, be confiscatory of property rights where there has been an unreasonable exercise of power. Such ordinance as to that exercise may be unconstitutional: White’s App., supra. .. Suffice it to say that no facts were alleged by petitioners to support their conclusion that the zoning ordinance was confiscatory or unconstitutional as to the portions or pieces of land set forth in their petition, and the constitutional questions were not pressed or argued in this Court. It is unnecessary to decide whether or when mandamus will lie. We have considered all of the other contentions of the petitioners and believe they warrant no further discussion. Judgment reversed at appellees’ costs. Italics throughout,- ours. - The Ordinance granted the Board of Adjustment original jurisdiction in 21 specific cases, none of which has any applicability to the petition or facts of this ease. Cf. Taylor v. Moore, 303 Pa. 469, 154 A. 799; Grime v. Commonwealth, 324 Pa. 371, 188 A. 337; Hotel Casey Company v. Ross, 343 Pa. 573, 23 A. 2d 737.

Opinion by Mr. Justice Bell, The Court below sustained preliminary objections to a complaint in assumpsit on the ground that the complaint failed to set forth a legal cause of action. Three reasons were given for this conclusion: (1) since the action was for the balance of purchase price of a business, it was in legal effect a bill for specific performance and was governed by equitable principles pertaining to specific performance; (2) since a part of the goods in question had been sold, plaintiffs were unable to perform their part of the contract and consequently were not entitled to any relief; (3) the pleadings failed to give particular facts to show the basis for the damages claimed. We do not agree with the lower Court. We approach this case in the light of the well settled principles set forth in Gardner v. Allegheny County, 382 Pa. 88, 94, 114 A. 2d 491: “. . . ‘preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders’ conclusions or averments of law’: Narehood v. Pearson, 374 Pa. 299, 302, 96 A. 2d 895. Moreover, when the sustaining of defendants’ preliminary objections will result in a denial of plaintiffs’ claim, or a dismissal of plaintiffs’ suit, preliminary objections should be sustained only in cases which are clear and free from doubt: London v. Kingsley, 368 Pa. 109, 81 A. 2d 870; Waldman v. Shoemaker, 367 Pa. 587, 80 A. 2d 776.” Plaintiffs and defendants entered into a written agreement dated November 15, 1948, for the sale by plaintiffs to defendants of tbe “business, stock, fixtures and equipment of the business venture known as tbe ‘Sherbrook Farms Mkt.’ ”, final delivery of title and ownership of said business to be conditioned upon tbe prompt payment by defendants of 39 promissory notes plus interest at 3% per annum. Tbe full consideration was $5850.00, exclusive of interest. Defendants paid tbe first four notes. They then advised plaintiffs that they were leaving the premises where tbe business was conducted and would not pay tbe remaining notes. Until defendants defaulted defendants bad possession of and bad been conducting tbe aforesaid business. Plaintiffs, subsequent to tbe aforesaid notice, made repeated demands on defendants “to retake possession of the goodwill, fixtures, trade name, stock and business known as Sherbrook Farms Market, and to pay tbe aforesaid notes as they came due, but the defendants refused and failed to do so. “After the Defendants refused and failed as aforesaid, Plaintiffs sold those fixtures which were capable of being sold by them, for tbe sum of Two Hundred Forty Dollars ($240.00). “Wherefore, there is due and owing from tbe Defendants to tbe Plaintiffs, tbe sum of Five Thousand Two Hundred Ten Dollars and 00/100 ($5,210.00), with interest from tbe 15th day of January, 1954, for which sum tbe Plaintiffs demand judgment against tbe Defendants.” Tbe complaint stated a good cause of action. Plaintiffs bad a legal right under tbe particular breach in this case to sue in assumpsit for tbe balance of tbe purchase price less tbe amounts paid them by defendants and less tbe market value of the fixtures which plain tiffs sold. Plaintiffs’ sale of certain fixtures did not have the legal effect, ascribed to it by the lower Court, of nullifying plaintiffs’ right to damages. Plaintiffs’ complaint sufficiently averred the necessary facts to support their action and the damages which they claimed. In Restatement, Contracts, §329, the law is thus stated: “Compensatory Damages for Substantial Injury.” Where a right of action for breach exists, compensatory damages will be given for the net amount of the losses caused and gains prevented by the defendant’s breach, in excess of savings made possible, .... “Comment: a. In awarding compensatory damages, the effort is made to put the injured party in as good a position as that in which he would have been put by full performance of the contract, at the least cost to the defendant and without charging him with harms that he had no sufficient reason to foresee when he made the contract.” In Taylor v. Kaufhold, 368 Pa. 538, 84 A. 2d 347, the Court said (page 546) : “Where one party to a contract, without any legal justification, breaches the contract, the other party is entitled to recover, unless the contract provides otherwise, whatever damages he suffered, provided (1) they were such as would naturally and ordinarily result from the breach, or (2) they were reasonably foreseeable and within the contemplation of the parties at the time they made the contract, and (3) they can be proved with reasonable certainty: Macchia v. Megow, 355 Pa. 565, 50 A. 2d 314; Lambert v. Durallium Prod. Corp., 364 Pa. 284, 72 A. 2d 66; Clyde Coal Company v. Pittsburgh & Lake Erie R.R. Co., 226 Pa. 391, 75 A. 596; Billmeyer Dill & Co. v. Wagner, 91 Pa. 92; Spiese v. Mutual Trust Co., 258 Pa. 422, 102 A. 121; Raby, Inc. v. Ward-Meehan Co., 261 Pa. 468, 104 A. 750; Restatement, Contracts, §§[329] 330, 331; 15 Am. Jur. §151, p. 561.” The preliminary objections should have been overruled with leave granted defendants to file an answer. The order and judgment entered by the Court below in favor of defendants is reversed with a procedendo.

Opinion by Mb. Chief Justice Jones, •The appellant was found guilty of involuntary manslaughter for the death of his competitor in the course of an automobile race between them on a highway. The trial court overruled the defendant’s demurrer to the Commonwealth’s evidence and, after verdict, denied his motion in arrest of judgment. On appeal from the judgment of sentence entered on the jury’s verdict, the Superior Court affirmed. We granted allocatur because of the important question present as to whether the defendant’s unlawful and reckless conduct was a sufficiently direct cause of the death to warrant his being charged with criminal homicide. The testimony, which is uncontradicted in material part, discloses that, on the night of the fatal accident, the defendant accepted the deceased’s challenge to engage in an automobile race; that the racing took place on a rural 3-lane highway; that the night was clear and dry, and traffic light; that the speed limit on the highway was 50 miles per hour; that, immediately pri- or to the accident, the two automobiles were being operated at varying speeds of from 70 to 90 miles per hour; that the accident occurred in a no-passing zone on the approach to a bridge where the highway narrowed to two directionally-opposite lanes; that, at the time of the accident, the defendant was in the lead and was proceeding in his right-hand lane of travel; that the deceased, in an attempt to pass the defendant’s automobile, when a truck was closely approaching from the opposite direction, swerved his car to the left, crossed the highway’s white dividing line and drove his automobile on the wrong side of the highway head-on into the oncoming truck with resultant fatal effect to himself. This evidence would of course amply support a conviction of the defendant for speeding, reckless driving and, perhaps, other violations of The Vehicle Code of May 1, 1929, P. L. 905, as amended. In fact, it may be noted, in passing, that the Act of January 8, 1960, P. L. (1959) 2118, §3, 75 PS §1041, amending The Vehicle Code of April 29, 1959, P. L. 58, 75 PS §101 et seq., makes automobile racing on a highway an independent crime punishable by fine or imprisonment or both up to $500 and three years in jail. As the highway racing in the instant case occurred prior to the enactment of the Act of 1960, cit. supra, that statute is, of course, not presently applicable. In any event, unlawful or reckless conduct is only one ingredient of the crime of involuntary manslaughter. Another essential and distinctly separate element of the crime is that the unlawful or reckless conduct charged to the defendant was the direct cause of the death in issue. The first ingredient is obviously present in this case but, just as plainly, the second is not. While precedent is to be found for application of the tort law concept of “proximate cause” in fixing responsibility for criminal homicide, the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept connoted a much more direct causal relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and is still undergoing, a marked extension. More specifically, this area of civil law has been progressively liberalized in favor of claims for damages for personal injuries to which careless conduct of others can in some way be associated. To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death. In this very case (Commonwealth v. Root, 191 Pa. Superior Ct. 238, 245, 156 A. 2d 895) the Superior Court mistakenly opined that “The concept of proximate cause as applied in tort eases is applicable to similar problems of causation in criminal cases. Commonwealth v. Almeida, 362 Pa. 596, 603, 611, 68 A. 2d 595 (1949).” It is indeed strange that the Almeida case should have been cited as authority for the above quoted statement; the rationale of the Almeida case was flatly rejected by this Court in Commonwealth v. Redline, 391 Pa. 486, 504-505, 137 A. 2d 472 (1958), where we held that the tort liability concept of proximate cause is not a proper criterion of causation in a criminal homicide case. True enough, Commonwealth v. Redline was a murder case, but the distinction between murder and involuntary manslaughter does not rest upon a differentiation in causation; it lies in the state of mind of the offender. If one kills with malice aforethought, he is chargeable with murder; and if death, though unintentional, results directly from his unlawful or reckless conduct, he is chargeable with involuntary manslaughter. In either event, the accused is not guilty unless his conduct was a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law. The instant case is one of first impression in this State; and our research has not disclosed a single instance where a district attorney has ever before attempted to prosecute for involuntary manslaughter on facts similar ¡to those established by the record now before us. The closest case, factually, would seem to be Commonwealth v. Levin, 184 Pa. Superior Ct. 436, 135 A. 2d 764 (1957), which affirmed the defendant’s conviction of involuntary manslaughter. In the Levin case two cars were racing on the streets of Philadelphia at speeds estimated at from 85 to 95 miles per hour. The defendant’s car, in the left-hand lane, was racing alongside of the car in which the deceased was a passenger when the defendant turned his automobile sharply to the right in front of the other car, thereby causing the driver of the latter car to lose control and smash into a tree, the passenger being thrown to the road and killed as a result of the impact. It is readily apparent that the elements of causation in the Levin case were fundamentally different from those in the present case. Levin’s act of cutting his automobile sharply in front of the car in which the deceased was riding directly forced that car off of the road and into the tree. The defendant’s reckless and unlawful maneuver was the direct cause of the crucial fatality. In the instant case, the defendant’s conduct was not even remotely comparable. Here, the action of the deceased driver in recklessly and suicidally swerving his car to the left lane of a 2-lane highway into the path of an oncoming truck was not forced upon him by any act of the defendant; it was done by the deceased and by him alone, who thus directly brought about his own demise. The Levin case was properly decided but it cannot, by any ratiocination, be utilized to justify a conviction in the present case. Legal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law’s encompassing concept of proximate cause is too harsh to be just. A few illustrations should suffice to so demonstrate. In Mautino v. Piercedale Supply Co., 338 Pa. 435, 13 A. 2d 51 (1940), — a civil action for damages — we held that where a man sold a cartridge to a person under 16 years of age in violation of a State statute and the recipient subsequently procured a gun from which he fired the-cartridge injuring someone, the-injury was proximately caused by the act of the man who sold the cartridge to the underage person. If proximate cause were the test for criminal liability and the injury to the plaintiff in the Mcmtino case had been fatal, the man who sold the bullet to the underage person (even though the boy had the appearance of an adult) would have been guilty of involuntary manslaughter, for Ms unlawful act would, according to the tort law standard, have been the proximate cause of the death. In Schelin v. Goldberg, 188 Pa. Superior Ct. 341, 146 A. 2d 648 (1958), it was held that the plaintiff, who was injux*ed in a fight, could recover in tort against the defendants, the owners of a taproom who prior to the fight had unlawfully served the plaintiff drinks wMle he was in a visibly intoxicated condition, the unlawful action of the defendants -being held to be the proximate cause of the plaintiffs injuries. Here,-again, if proximate cause were the test for criminal liability and the plaintiff had been fatally injured in the fight, the taproom owners would have been guilty of involuntary manslaughter, for their unlawful act would have been no less the proximate cause of death. In Marchl v. Dowling & Company, 157 Pa. Superior Ct. 91, 41 A. 2d 427 (1945), it was held that where a truck driver had double parked his truck and the minor plaintiff was struck by a passing car when she walked around the double parked truck, the truck driver’s employer was held liable in tort for the plaintiff’s injuries on the ground that the truck driver’s act of double parking, which violated both a State statute and a city ordinance, was the proximate cause of the plaintiff’s injuries. Here, also, if proximate cause were the test for criminal liability and the plaintiff’s injuries had been fatal, the truck driver would have been guilty of involuntary manslaughter since -his unlawful act would have been the proximate cause of the death for which his employer was held liable in damages under respondeat superior. To be guilty of involuntary manslaughter for double parking would, of course, be unthinkable, yet if proximate cause were to determine criminal liability, such a result would indeed be a possibility. Even if the tort liability concept of proximate cause were to be deemed applicable, the defendant’s conviction of involuntary manslaughter in the instant case could not be sustained under the evidence. The operative effect of a supervening cause would have to be taken into consideration: Commonwealth v. Redline, supra, at p. 505. But, the trial judge refused the defendant’s point for charge to such effect and erroneously instructed the jury that “negligence or want of care on the part of . . . [the deceased] is no defense to the criminal responsibility of the defendant. . . .” The Superior Court, in affirming the defendant’s conviction in this ease, approved the charge above mentioned, despite a number of decisions in involuntary manslaughter cases holding that the conduct of the deceased victim must be considered in order to determine whether the defendant’s reckless acts were the proximate (i.e., sufficiently direct) cause of his death. See Commonwealth v. Amecca, 160 Pa. Superior Ct. 257, 260-263, 50 A. 2d 725 (1947); Commonwealth v. Hatch, 149 Pa. Superior Ct. 289, 292, 27 A. 2d 742 (1942); Commonwealth v. Aurick, 138 Pa. Superior Ct. 180, 187, 10 A. 2d 22 (1939). The Superior Court dispensed with this decisional authority (see Commonwealth v. Root, supra, at p. 252) by expressly overruling Commonwealth v. Amecca, supra, and by impliedly overruling each of the other cases immediately above cited. It did so on the ground that there can be more than one proximate cause of death. The point is wholly irrelevant. Of course there can be more than one proxi mate cause of death just as there can also be more than one direct cause of death. For example, in the so-called “shield” cases where a felon interposes the person of an innocent victim between himself and a pursuing officer, if the officer should fire his gun at the felon to prevent his escape and fatally wound the person used as a shield, the different acts of the policeman and the felon would each be a direct cause of the victim’s death. If the tort liability concept of proximate cause were to be applied in a criminal homicide prosecution, then the conduct of the person whose death is the basis of the indictment would have to be considered, not to prove that it was merely an additional proximate cause of the death, but to determine, under fundamental and long recognized law applicable to proximate cause, whether the subsequent wrongful act superseded the original conduct chargeable to the defendant. If it did in fact supervene, then the original act is so insulated from the ensuing death as not to be its proximate cause. Under the uncontradicted evidence in this case, the conduct of the defendant was not the proximate cause of the decedent’s death as a matter of law. In Kline v. Moyer and Albert, 325 Pa. 357, 364, 191 Atl. 43 (1937), the rule is stated as follows: “Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tortfeasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause.” See, in accord, DeLuca v. Manchester Laundry and Dry Cleaning Company, Inc., 380 Pa. 484, 491, 112 A. 2d 372 (1955); Jeloszewski v. Sloan, 375 Pa. 360, 365, 100 A. 2d 480 (1953); John son v. Angretti, 364 Pa. 602, 606-607, 73 A. 2d 666 (1950). In the case last above cited, while Angretti was driving his truck eastward along a highway, a bus, traveling in the same direction in front of him, stopped to take on a passenger. Angretti swerved his truck to the left into the lane of oncoming traffic in an attempt to pass the bus but collided with a tractor-trailer driven by the plaintiffs decedent, who was killed as a result of the collision. In affirming the entry of judgment n.o.v. in favor of the defendant bus company, we held that any negligence on the part of the bus driver, in suddenly bringing his bus to a halt in order to pick up a passenger, was not a proximate cause of the death of the plaintiff’s decedent since the accident “was due entirely to the intervening and superseding negligence of Angretti in allowing his truck to pass over into the pathway of the westbound tractor-trailer . . . .” In the case now before us, the deceased was aware of the dangerous condition created by the defendant’s reckless conduct in driving his automobile at an excessive rate of speed along the highway but, despite such knowledge, he recklessly chose to swerve his car to the left and into the path of an oncoming truck, thereby bringing about the head-on collision which caused his own death. To summarize, the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction: Commonwealth v. Redline, supra, at pp. 504-505. In the instant case, the defendant’s reckless conduct was not a sufficiently direct cause of the competing driver’s death to make him criminally liable therefor. The judgment of sentence is reversed and the defendant’s motion in arrest of judgment granted.

NO. 90. Opinion, Me. Justice Williams: This case was first brought into this court several years ago by the plaintiff, against whom a compulsory nonsuit had been entered in the court below. The judgment of nonsuit was reversed, and the case sent back for trial: Rummel v. Dilworth, 111 Pa. 343. On the next trial a verdict was rendered in favor of the plaintiff. The pending writ of error was sued out by the defendants, who- complain, not that the court below failed to follow the rule laid down by this court, but that the rule should be reconsidered and modified. We were so much impressed by the importance of the subject, and so desirous to correct any error into which we might have fallen, that a re-argument was ordered by this court of its own motion. That re-argument has taken place, and we have had the benefit of a dear and able discussion of the questions on which we are asked to modify the opinion expressed when the case was here before. These questions are two in number: 1. Was not the danger of injury from the cog-wheels in which the plaintiff’s leg was crushed, a danger incident to his employment, the risk from ■which he assumed when he entered upon his work ? 2. If the first question is not answered affirmatively, then was not the injury received in the performance of an act which it was not his duty to perform, and the risk from which was for that reason self-imposed? We will consider these questions in their order. The general rule that a workman assumes the risks incident to his employment when he enters upon it is well settled, but its application is subject to certain qualifications. He certainly has the right to expect his employer to provide machinery, tools, and appliances that are reasonably safe for his use, and he assumes no risks growing out of their defective character, unless he has been fully advised that they are defective and dangerous. He has the right to suppose that his employer has provided such guards and means of protection from injury, in the use of the machinery, tools, and appliances, as are usual and reasonably necessary for his safety; and he cannot be held to assume the risks attendant on their absence, unless such absence is apparent, or his attention has been called to it. If the business is one with which he is not familiar, he has a right to expect that its dangers will be pointed out to him, and that he will be instructed in those things necessary for him to know in order to his own safety. He cannot be held to assume the risk of dangers of the existence of which he has no knowledge. In the case of young persons, it is the duty of the employer to take notice of their age and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they should not be exposed. The dutjr in such cases to warn and instruct grows naturally out of the ignorance or inexperience of the employee, and it does not extend to those who are of mature years, and who are familiar with the employment and its risks. In the present case, Rummel was a lad of about seventeen years, with very little acquaintance with the business or its dangers. He went into the employ of the defendants on Tuesday. He left on Friday of the same week, with a leg so crushed that immediate amputation was necessary. He was employed as a “ drag-down,” but was hurt while performing the duties of a “roller,” in opening and closing the gate between the first and second pairs of rollers. The cog-wheels by which the rollers were moved were covered along the whole length of the train, except at the point over which Rummel had to reach to open and close the gate. If they had been covered at that point the accident could not have happened. In view of the youth and want of experience in the business on the part of Rummel, it was necessarily a question for the jury whether his employer had sufficiently warned and instructed him about the dangers of the employment, and how to avoid them, or had done all that was reasonably necessary to protect him from injury. This is what is meant by the passage from the opinion of this court found in Rummel v. Dilworth, 111 Pa. 343, to which exception is. taken. It was not meant to assert that the dangerous character of a piece of machinery, a bridge, or an effort to cross a railroad track in front of a moving train, should be determined by the result of an experiment in each case, but that a workman must know the dangers of his employment by actual experience in the employment, or by the instructions-of his employer, before he can be held to have assumed them. In other words, it is not just to the employee to hold him to have assumed dan gers of which he has no knowledge by experience in the business, or by the warning and instruction of his employer. Such risks cannot be estimated, because they are not known to exist, or, because their real character and extent can only be known by familiarity with the business, or information from one who has such familiarity. The court could not declare, therefore, as matter of law, on the facts of this case, that the danger from which Itummel suffered was one the risk of which he assumed when he accepted employment as a drag-down. Our second question grows out of the answers complained of in the fifth and sixth assignments of error. As we have already had occasion to remark, Hummel was employed as a drag-down.' He was hurt while in the discharge of the duties of a roller, and the court was asked to say that, in attempting that for which he was not employed, he voluntarily assumed the risk incident to his unnecessary undertaking. If the facts presented a case such as is thus assumed, it may be that the rule invoked should have been given to the jury; but the learned judge of the court below well said that “ the scope of duty within which a servant is entitled to protection is to be defined by what he was employed to perform, and what, with the knowledge and approval of his employer, he did perform, rather than by the verbal designation of his position.” If, in the absence of the roller, he was permitted and expected to open the gate in case the billet stuck fast, he was entitled to instruction and protection in the same manner as though he had been employed as a roller. Whether he was permitted and expected to manage the gates in the absence of the roller was a question of fact. If the jury found that he was, then the defendants were not entitled to the instruction asked for in their third point, and the answer complained of was right. On examination of the whole case, we are of opinion that the judgment must be affirmed. no. 91. Opinion, Me. Justice Williams: The judgment in this case is affirmed. Judgment affirmed.

The opinion of the Court was delivered by Rogers, J. The value of the article, at or about the time it is to be delivered, is the measure of damages in a suit by the vendee against the vendor, for a breach of the contract. This principle is ruled in Meason v. Philips, (Addison 346); is recognised in Edgar v. Boies, (11 S. & R. 452); and is, in effect, affirmed by all the authorities cited. Indeed, the general principle is not denied, but it is contended that this is an exception; that the rule holds good only when the purchase money has not been paid; but that when the purchase money has been advanced by the vendee, the measure of damages is the sum paid, or the value of the article which forms the consideration of the contract. But, for this distinction, no authority has been cited except a dictum (doubtless entitled to great respect) of Chief Justice Marshall, in Shepherd v. Hampton, (3 Wheat. 204). After affirming the general principle, he adds, “ for myself only I can say, that I should not think the rule would apply to a case where advances of money had been made by the purchaser under a contract; but I am not aware what would be the opinion of the court in such a case.” Taking the remarks of the Chief Justice in the broadest sense, and supposing them to be directly applicable to the case in hand, (of which there is some room to doubt), it is very evident that he failed to advert to the difference between a suit on the contract itself, and a suit grounded on the recision of the contract. But this distinction, which pervades all the authorities, governs the whole case; for the purchaser may declare specially for the breach of the contract, or simply for money had and received, to recover back the deposit, if any be made, or the purchase money if it be paid; or he may join both causes of action in the same declaration. And when this is done, it is granted that, under the money count, the money advanced may be recovered back; or where a specific article has been given in satisfaction, the purchaser may, when default is made, elect to consider the contract at an end, and recover the article itself, or its value, from the vendor. But, on the other hand, where the purchaser declares specially for breach of the contract, and thereby affirms it, the only rule of damages is the value of the article at or about the time it is to be delivered. The point we are now considering is virtually decided in 1 Dyer 82, h. The case was this: One is to pay at such a day'five quarters of wheat; at the day of the contract they were worth fifty pounds, at the day of payment five pounds. ‘ The judgment shall be that he recover five quarters of wheat, or five pounds. And the defendant may deliver the wheat, if' he pleases; but the sum of money ought of necessity to be referred to the day; for if the twenty pounds are to be paid, they cannot be paid but as they are at the time, for money is its own measure; otherwise it is of corn. Although it is not expressly said, yet it is evident from the report of the case, that the money had been paid, or other satisfaction made, for the wheat by the vendee; yet it did not occur to the court, or any other person, that this altered the rule of damages. Where the vendor fails to deliver the article bought, the purchaser may elect to rescind the contract and recover back the money paid, or he may bring suit on the agreement, and recover the value at or about the time it ought to have been delivered. And this is a just rule; for if it has risen in value, he has the advantage of the increased price; if it has decreased, why should he, when he adheres to the contract, recover .more from the vendor than for the injury he has sustained by the non-performance of the agreement'( And the vendee has the less reason to complain, because he may, as before stated, rescind the bargain, and place himself in the same situation as before it was made. It is said that the vendor is, in the case supposed, in default; and this is true; but where there is any circumstance of aggravation, (which is rarely the case), the jury may do justice by a liberal estimate of the value of the goods. It has been suggested that the contract, on failure of the vendor to perform his part of it, is ipso facto rescinded; but this is a novel idea, for it can be rescinded only with the assent of the vendee, who may, in a given case, elect to consider the agreement at an end. And in the latter case, that is, where the purchaser agrees that the contract be rescinded, the remedy against the guarantor is gone; for it is only on the footing of subsistence of the contract between the vendor and vendee, which he guarantees, that he is liable. This is so plain, as not.to need the aid of argument. It is very true that a deposit, or even the interest on a deposit, may in certain cases be recovered on a special count against the vendor. But these cases form rather the exception than the rule. Usually, the damages sustained are much less than the deposit; and besides, this is necessary, for otherwise it could not be recovered at all against the vendor, who has not received the money—the deposit being in the hands of the auctioneer, and he alone is liable for money had and received. Besides, the cases cited are on sales of lands by auctioneers, and the same rules cannot hold as on the sale of chattels ; for lands, unlike stocks, &c., have no market value. There is nothing in the suggestion that the agreement takes the case out of the general rule. The suit is brought for breach of an agreement, the performance of which the defendant agreed to guarantee. It is, therefore, from necessity, a suit in affirmance of the contract. The defendant agrees, in effect, that if the vendor fails to perform the agreement, he will pay the value of the trees at the time they ought to have been delivered. Judgment reversed, and a venire de novo awarded.

Per Curiam. There is no feme sole trading by a married woman, with us, but such as is licensed and regulated by the sta tute of 1718. In Burke v. Winkle, the action was sustained on the statute alone, the fact that the wife was within it being admitted by the demurrer; and it was ruled that she had power to bind herself by specialty, which she could not have done by the custom of London. In the case before us, the character of the wife, as a feme sole trader, is the very matter put in issue; and on that head the statute is sufficiently explicit. The framers of it had in view the case of a wife left to shift for herself by a husband gone to sea; and it is indifferent whether she get her living by shopkeeping or any other employment, or whether he be a mariner or a passenger. It is her being left to contract debts for which his person cannot be reached by process, that gives her the credit, and subjects her to the responsibility of a feme sole. In the case under consideration; the husband was proved, by the plaintiffs themselves, to be resident in the same city with her when the debt was contracted, and; what' is as decisive against them, living separate from her. If the husband, knowing that his wife carries on a trade, resides with .her and receives the profits, he gives room for a legal presumption that she conducts the business as his agent, and he is liable for articles furnished in the course of it; as was ruled in Petty v. Anderson, (2 Car. & P. 38, S. C. 3 Bingh. 170). And in Bowyer v. Peake, (2 Freem. 215), it was held that payment of money borrowed by a wife to carry on a business with the husband’s consent, would be decreed against him. But the presumption of his assent will not arise from occasional and stealthy cohabitation. In Smallpiece v. Dawes, (7 Car. & P. 40), a bankrupt fruiterer, who had absconded, was not held liable for the price of fruit furnished to his wife, who continued the business, though it was proved that he had attended the marriage of his daughters at church, and had eventually been arrested at the shop: but Mr Baron Parke remarked, that he would have been liable had the goods been necessaries. Here, it is not pretended that the goods were supplied for consumption; and even if the husband were liable, as for necessaries, the wife could not be joined with him. Judgment affirmed.

The opinion of the Court was delivered by Gibson, C. J. This is a question depending on intention rather than on any controverted rule of law, and one without any apparent difficulty. The plaintiffs insist that these limitations present a case of concurrent remainders dependent on a contingency with a double aspect: while the defendant insists that the general and paramount intent was to secure the estate to the children of Tobias at all events, and without regard to the time of their birth; that to effectuate this intent, it is necessary either to imply the existence of an estate in tail male in Tobias himself, or to sustain the limitation to his children as an executory devise, supposing the estate to have descended at the death of the widow to the testator’s right heirs, in order, to await the expected contingency which was to happen, if at all, within the lifetime of Tobias and the usual period of gestation afterwards. Granting that subordinate objects must yield to the general intent, and that to effect it an estate may be enlarged, restricted or implied, yet it is evident that to strain the limitation to the children of Tobias so as to give their father an estate tail, would dislocate every joint and articulation of what seems to have been the general and para mount design. An adequate provision had been made for Tobias, it is to be presumed, in the devise to him of the mansion-house and farm though burthened with a pecuniary charge; and the object to be accomplished by the limitation in question, was evidently to secure the land in contest to his children or the children of John, without subjecting it to his debts, or exposing it to the accidents that might befall it as his property. That the precaution taken to effect this might have been eluded, had there been an estate tail in him, by turning it into a fee, is too obvious to need remark. Without having children of his own, he could by the same means have disappointed another principal object of the testator in the further limitation to the children of John, who wére intended to take certainly in any other event than the existence of children born to Tobias himself. The object was not so much to vest the estate in these children at all events, as to protect it from the acts or disposition of their father. What if Tobias had suffered a common recovery, and the present were a contest between the plaintiffs and a purchaser under a judgment against him, or, to make the case more glaring, between such a purchaser and his own children ? The construction contended for, fatal as it must have proved to the testator’s whole plan, would have been thought a monstrous one. But his children were directed in express terms to take a fee; which would have been inconsistent with the derivation of an estate tail from him. To imply an estate in him, then, that would be subversive of the leading objects of the will, could be justified on no principle of construction. So that the question is whether the limitation to his children can be supported as an executory devise; and the decision of it must be governed by the testator’s intent in respect to the time of its vesting. If it be found that the estate was to go over at the death of the widow, to whom an estate of freehold was given, we shall have one of the plainest cases in the world, of concurrent remainders limited to take effect on the happening of a contingency-with a double aspect—much more so than that presented by the limitations in Dunwoodie v. Reed. The devise over is so expressed in this will as to indicate what has been supposed an apparent intent that it should take effect after and not at the death of the widow—a difference of little account in common parlance, and absolutely worthless in the expression of an intention accidentally suffered to rest in the loose memoranda of a scrivener, intended at the time to be but the material of a more precise and formal declaration of the testator’s will. Were it important to ascertain the exact sense in which this word “ after” was used by the scrivener, it might be done by adverting to the clause in which the testator directs the other land devised to the children of John to be valued “ after” the. death of their mother, to whom it was given for their support during her life by way of exception out of the fee; and there it was used incontrovertibly to denote the very point of time when her interest should cease. It is supposed, however, that as the testator’s widow followed him in little more than a month from the date of the will, he could scarce have supposed it probable that Tobias would marry and procreate within the apparently short compass of her life; and that he never could have meditated a disposition which, according to the plaintiffs’ interpretation of it, would, on any calculation of the chances, almost certainly prove abortive’. We are left without information, by the verdict, of the widow’s constitution and age; but the testator has nowhere intimated that the probable duration of her life was, in his opinion, such as to preclude a reasonable expectation of children from Tobias before its termination. The estate was to be taken by the children at a valuation of it to be made by the testator, or men appointed by him; and if the latter, he could not have supposed it probable that all the men would survive Tobias, without which the purpose to be effected by their appointment would have been frustrated. If it be said that he contemplated a valuation to be made presently, the remark is open to this objection that, familiar as he must, have been with the changes in the price of land that are perpetually taking place, he would scarce have expected it to be a just or reasonable one at the period of his son’s death. It would, therefore, seem fair to conclude, that the making of this valuation, and the consequent vesting of the successful limitation over, were coupled in his mind with the death of the widow. But the consequence of postponing them till the possibility of children by Tobias should have become extinct, would be inconsistent with any reasonable presumption of intent in another view. No presumption of an intent to die intestate as to any part of the estate, is to be made, where the words of the testator will carry the whole ; and certainly no such intent is apparent here. Yet, according to the hypothesis of the defendant, the estate descended to the testator’s right heirs at the death of the widow, and was paitable during the interval between that event and the happening of the contingency, as in the case of a common intestacy, by the orphan’s court. Can it be supposed that such a partition was thought of % Had a temporary descent been contemplated, a temporary valuation would doubtless have been directed, and to be made by the men who, according to the defendant’s construction, were to' appraise the portions of the children at the death of Tobias or the sooner happening of the contingency. But putting all this aside, the inflexible rule which demands that no limitation be deemed an executory devise if it may by any practicable construction be sustained as a contingent remainder, overbears all implications of an intention inconsistent with it, and is decisive of the question. This, too, for the all-sufficient reason that these executory devises, being inconsistent with the policy of the common law, which, on account of its abhorrence of estates commencing in futuro, requires all the precedent parts of the fee to pass out of the grantor at the same instant, are barely tolerated, and only in favour of the explicit declaration of one who may have been compelled to dispose of his estate when unassisted by counsel. They are therefore to be sustained but in clear cases of absolute necessity ; and nothing remains but to inquire whether the present is such. In the first place, then, there was a sufficient particular estate of freehold in the widow ; next there were limitations after her death, to the male heirs of Tobias, if he should have any, in fee ; or in default of such heirs, to the males of John; and finally these limitations were concurrent and in defeasance of each other. What more was necessary to give effect to all the practicable parts of the testator’s plan? As contingent limitations of a remainder, they would have been effectual to preserve the estate for all the children of Tobias, had any been born in time to take ; for their remainder having vested in some of them, would undoubtedly have opened to let in the rest though subsequently bom. But in the succession of the events that have taken place, the limitation to them having been passed by, is gone for ever; and the estate is irrevocably vested in those who answered the description in the posterior limitations at the death of the particular tenant. Judgment affirmed.

Opinion by Judge Blatt, Orrin R. Everhart (petitioner) appeals here from an order of the Montgomery County Court of Common Pleas upholding suspension of his driving privileges by the Department of Transportation (DOT) under Section 1547(b)(1) of the Motor Vehicle Code (Vehicle Code), 75 Pa. C. S. §1547(b)(l). The suspension was based on his refusal to take a breathalyzer test at the time of his arrest for operating a motor vehicle while under the influence of alcohol in violation of Section 3731(a)(1) of the Vehicle Code, 75 Pa. C. S. §3731(a)(1). The petitioner testified that he was asked by the arresting officer during booking if he wanted to take the breathalyzer test, and that he responded, “Do I have to?” He said that the officer replied that, if he did not, he “could” lose his license. The police officer testified that he had asked the petitioner while in the patrol vehicle if he would consent to a breathalyzer test and that the petitioner had refused. At the police station, he again asked the petitioner if he would take the test, and after unsuccessfully attempting to contact his attorney, the petitioner had again refused. While stating that he had told the petitioner that he “would possibly” or “could” lose his license, the officer also testified that he had read the implied consent law to the petitioner. Under the implied consent law, Section 1547 of the Vehicle Code, 75 Pa. C. S. §1547, any person who operates a motor vehicle within the Commonwealth is deemed to have given consent to a chemical breath test to determine the alcoholic content of his blood if a police officer has reasonable grounds to believe that the person was driving while under the influence of alcohol. Section 1547(b)(2) of the Vehicle Code, 75 Pa. C. S. §1547(b)(2) provides that: “It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended or revoked upon refusal to submit to a chemical test.” (Emphasis added.) The petitioner argues that by using the words “could” or “would possibly” rather than “will”, the police officer failed to comply with the statutory requirement of Section 1547(b)(2), as a result of which the petitioner was unable to make an informed decision in the matter. The court below concluded that the police officer had substantially complied with the statute and that the petitioner had been sufficiently informed of the consequences of refusal. Noting that such a suspension will occur only upon notice by the arresting officer to the Secretary of Transportation and that it is the Secretary rather than the arresting officer who is empowered to effect the suspension, the court held that the police officer’s use of the word “could” in warning the petitioner of the consequences of his refusal was not unreasonable. At the time it rendered its decision, the court below did not have the benefit of our subsequent opinions in Moran v. Commonwealth, 44 Pa. Commonwealth Ct. 105, 403 A.2d 637 (1979) and Peppelman v. Commonwealth, 44 Pa. Commonwealth Ct. 262, 403 A.2d 1041 (1979). In Moran, supra, we found the statutory requirement of Section 1547(b) (a) to have been met and the driver to have been properly informed when, although the driver was only advised that his license “could” be suspended, he requested and read a copy of Section 1547. While the petitioner here did not read that section, the arresting officer has testified that it was read to him. Whether the reading encompassed the section in whole or in part is unclear from the record. In Peppelman, supra, we strictly construed the language of Section 1547(b)(2) in holding that the police officer’s use of the word “could” instead of “will” in informing the driver of the consequences of refusal of a breathalyzer test constituted inadequate performance of the officer’s statutorily mandated duty, necessitating setting aside suspension of the driver’s operating privileges. Under Section 624.1(a) of the former Vehicle Code, 75 P.S. §624.1(a) the provisions of which are similar to the present Section 1547, driving privileges were snspendable for refusal to submit to a breathalyzer test upon factual determination that the driver was (1) placed under arrest for driving while under the influence of alcohol; (2) was requested to submit to a breathalyzer test; and (3) refused to do so. Department of Transportation v. Quinlan, 47 Pa. Commonwealth Ct. 214, 408 A.2d 173 (1979). Under that section the police officer was not required to give a warning that license suspension or revocation would result from refusal, but the new section now mandates such a warning. Thus, under the new statute as construed in Peppelman, supra, a precisely enunciated warning that a driver’s license will be revoked is now an additional prerequisite to suspension or revocation of driving privileges for refusal to consent to a breathalyzer test. We believe, therefore, that a factual determination of exactly what the arresting officer said and/or read to the petitioner is required. While the court below made reference in its opinion to the police officer’s having read the informed consent law to the petitioner, the court did not make a finding of fact that Section 1547 had been read, in whole or in part. We will remand the case for a factual determination as to this point upon which a conclusion can then be made as to whether or not the police officer gave a proper warning to the petitioner that his license ‘ ‘will” be revoked for refusal to submit to a breathalyzer test. Order And Now, this 22nd day of September, 1980, the order herein dated September 18, 1980 is amended to read, in its entirety, as follows: The above-captioned order of the Court of Common Pleas of Montgomery County (Civil Action No. 79-1299), dated March 7, 1979, upholding the Department of Transportation’s suspension of the petitioner’s operating privileges is reversed, and the record is remanded for further proceedings in accordance with this opinion. 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.

OPINION Justice CASTILLE. This Court granted review to determine whether a Pennsylvania-licensed driver who has been convicted of driving while intoxicated in Indiana, a sister state which, like Pennsylvania, is a signatory of the Drivers License Compact of 1961 (the “Compact”) , can avoid the one-year suspension of his Pennsylvania driving privileges otherwise required under the Compact because it was not clear that the Indiana proof of the conviction, which consisted of a court abstract, was forwarded by the Indiana driver’s licensing authority. The lower courts dismissed the administrative suspension of appellee’s Pennsylvania driving privileges because they deemed the Indiana court abstract defective under the Compact, absent proof from the Pennsylvania licensing authority that the abstract had been issued from Indiana’s driver’s licensing authority. For the reasons set forth below, and consistently with this Court’s decisions in Commonwealth, Dept. of Transp. v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000), and Harrington v. Commonwealth, Dept. of Transp., 563 Pa. 565, 763 A.2d 386 (2000), we hold that the perceived defect in the origin of the Indiana conviction report is immaterial to Pennsylvania’s home state power of driver’s license suspension. Accordingly, we reverse the order of the Commonwealth Court and remand to the trial court for consideration of any remaining properly preserved issues. On May 21, 1998, appellee John W. Siekierda, a licensed Pennsylvania driver, was arrested in the State of Indiana and charged with operating a vehicle while intoxicated (“OWI”), in violation of Section 9-30-5-2 of the Indiana Code. Appellee submitted to chemical testing at the time of his arrest, which revealed a blood alcohol concentration (“BAC”) level of 0.18%. On July 28, 1998, appellee was found guilty of OWI in the Hancock Superior Court in Indiana. He was sentenced to a one-year term of probation and was directed to pay a $1,000 fine and costs. The Court also suspended appellee’s Indiana driving privileges for 30 days, but granted him probationary driving privileges. Indiana and Pennsylvania are party states to the Compact. See Ind.Code §§ 9-28-1-1 through 9-28-1-6; 75 Pa.C.S. §§ 1581-1586. The Compact is an interstate agreement, adopted by statute, designed to coordinate law enforcement efforts against intoxicated drivers and other serious traffic offenders, and to increase uniformity among member states in exchanging information on convictions, records, licenses, and other pertinent data. See Driver License Compact Administrative Procedures Manual 1994, preface, § 1.1. Article I of the Compact includes a declaration of policy which makes clear that it is intended to “promote compliance with the laws, ordinances and administrative rules and regulations relating to the operation of motor vehicles” in each of the party states, and to make the “reciprocal recognition” of the license to drive “more just and equitable” by considering compliance with the rules of the road as a “condition precedent” to the issuance or continuance of the license to drive. Article IX of the Compact, which addresses “construction and severability,” directs that “[t]his Compact shall be liberally construed so as to effect the purposes thereof.” The Compact addresses both the reporting obligation of a party state when a qualifying conviction occurs in that state, as well as the obligation of a party state when it is the home/licensing state in receipt of a report that one of its drivers has been convicted in another state of a qualifying offense. Article III of the Compact sets forth the reporting obligation as follows: The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered or the conviction was a result of forfeiture of bail, bond or other security and shall include any special findings made in connection therewith. 75 Pa.C.S. § 1581 (Art. III). Article IV delineates the home state’s responsibility upon receipt of a report of a qualifying conviction pursuant to Article III, as follows: Effect of Conviction. (a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to Article III of this compact, as it would if such conduct had occurred in the home state in the case of convictions for: (1) manslaughter or negligent homicide resulting from the operation of a motor vehicle; (2) driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle; (3) any felony in the commission of which a motor vehicle is used; or (4) failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another. 75 Pa.C.S. § 1581 (Art. IV(a)). Thus, appellant Pennsylvania Department of Transportation, Bureau of Driver Licensing (“PennDOT”), as the Pennsylvania “home state” licensing authority, is required to treat a qualifying out-of state conviction for driving under the influence (“DUI”) as if the driver had been convicted of DUI in Pennsylvania. See also McCafferty, 758 A.2d at 1160. As a practical matter, this means that PennDOT is required to suspend for one year the operating privileges of any person who is convicted of DUI. See 75 Pa.C.S. § 1532(b)(3). See also Crooks v. Commonwealth, Dept. of Transp., 564 Pa. 436, 768 A.2d 1106 (2001); McCaffer ty, supra; Sullivan v. Commonwealth, Dept. of Transp., 550 Pa. 639, 708 A.2d 481 (1998). Pursuant to its reporting obligation, Indiana reported appellee’s OWI conviction to PennDOT by way of a court abstract which the trial court determined was forwarded to PennDOT by the convicting court. Following receipt of the report, PennDOT determined that the Indiana conviction was substantially similar to the offense set forth in Article IV(a)(2) of the Compact, and accordingly, treated appellee as if he had been convicted of DUI in Pennsylvania. Thus, by official notice dated and mailed February 10, 1999, PennDOT notified appellee that it was suspending his operating privileges for one year, effective March 17,1999. On March 10, 1999, appellee filed a statutory appeal from the one-year suspension with the Court of Common Pleas of Chester County. A de novo hearing was held before the Honorable Howard F. Riley, Jr., President Judge, on April 22, 1999. At that hearing, PennDOT entered into evidence a packet of documents that had been certified by both the Pennsylvania Secretary of Transportation and the Director of the Pennsylvania Bureau of Driver Licensing. Included in the packet were copies of the Indiana report of appellee’s OWI conviction, which were generated by the convicting court in Indiana, rather than by the licensing authority in that state. President Judge Riley sustained appellee’s appeal on December 20,1999. PennDOT appealed to the Commonwealth Court, but then filed an application to transfer the appeal to this Court, which was granted on May 8, 2000. By per curiam order dated December 22, 2000, this Court reversed and remanded the matter to the trial court for further proceedings consistent with the intervening decisions in McCafferty and Harrington. Siekierda v. Commonwealth, Dept. of Transp., 563 Pa. 521, 762 A.2d 1085 (2000). On February 15, 2001, a remand hearing was held before the Honorable Michael Joseph Melody, Jr. On November 21, 2001, the trial court again sustained appellee’s statutory appeal. The court held that the report of appellee’s Indiana OWI conviction did not comply with the requirements of Article III of the Compact because the conviction report was a court abstract and was not transmitted by the actual “licensing authority,” i.e., the Indiana BMV. Assuming that it was bound by the Commonwealth Court’s decision in Boots v. Commonwealth, Dept. of Transp., 736 A.2d 64 (Pa.Cmwlth. 1999) (licensing authority of convicting state must be reporting body), appeal denied, 564 Pa. 722, 766 A.2d 1242 (1999), the trial court held that the judicial report of conviction was insufficient to satisfy PennDOT’s burden of proving a basis for suspension under the Compact. The trial court failed completely to address McCafferty and Harrington, as ordered by this Court. PennDOT appealed to the Commonwealth Court, arguing that Boots and similar cases, such as Tripson v. Commonwealth, Dept. of Transp., 773 A.2d 195 (Pa.Cmwlth.2001), appeal denied, 568 Pa. 690, 796 A.2d 320 (2002), lacked vitality in light of McCafferty and Harrington, and unduly restricted its efforts to enforce the Commonwealth’s drunk driving statutes. PennDOT further argued that the notice it had received from the Indiana court in this case was sufficient to satisfy the requirements of Article III of the Compact and that, for purposes of Pennsylvania home state enforcement, conviction reports may come from reliable sources other than the licensing authority of the convicting state. On May 22, 2002, a Commonwealth Court panel affirmed the trial court in a published opinion, relying primarily upon Boots and Tripson. The panel dismissed the relevance of the decisions in McCafferty and Harrington, noting that this case involved the identity of the state actor in the reporting state which forwarded notice of the conviction, and not the content of the report, as in those cases. In the panel’s view, the requirement that conviction reports originate with the out-of-state licensing authority “is more than a mere technicality^] [r]ather, it is a substantive and fundamental requirement of the Compact” since it “provides the very foundation for DOT’s reciprocal suspension.” Siekierda v. Commonwealth, Dept. of Transp., 798 A.2d 840, 844 (Pa.Cmwlth.2002). In further support of this proposition central to its disposition, the panel cited to the dissenting aspect of the concurring and dissenting opinion which was filed in this Court’s McCafferty decision. The panel erroneously determined that that dissent was a straight concurrence. Id. The panel also deemed it significant that this Court had denied allocatur in Boots and Tripson. In the panel’s view, Boots and Tripson did not “conflict with McCafferty and Harrington,” and thus, there was no reason to depart from that precedent. Applying its own precedent, the panel recognized that PennDOT had argued in the trial court that it was “more likely than not” that the Indiana court abstract had indeed been forwarded by the Indiana BMY but, the panel found, PennDOT had offered “no proof’ of this contention before the trial court. Accordingly, the panel affirmed the order below, finding that PennDOT had “failed to meet its burden to produce a conviction report from a licensing authority under Article III.” 798 A.2d at 843-44. This Court granted further review in part to examine the validity of the Commonwealth Court’s distinction of McCafferty and Harrington in this context, where it was successfully argued below that PennDOT lacks authority to enforce the Compact if the out-of-state conviction report does not track the letter of Article III—i.e., the report consists of a court abstract rather than a document issuing from the licensing authority. This Court has noted that, in a license suspension appeal, the only issues are whether the driver was in fact convicted of the offense giving rise to the suspension and whether PennDOT complied with applicable law in suspending Pennsylvania operating privileges. Commonwealth, Dept. of Transp. v. Tarnopolski, 533 Pa. 549, 626 A.2d 138, 140 (1993). The question presented in this appeal is primarily one of statutory construction, which is a pure question of law; hence, this Court’s review is plenary and we owe no deference to the lower courts’ legal conclusions. E.g., McCafferty, 758 A.2d at 1158. We emphasize at the outset that the Compact serves the important public purpose of increasing highway safety. See Harrington, 763 A.2d at 391. This Commonwealth grants Pennsylvania drivers the privilege of operating motor vehicles here and in our sister states without requiring separate licensure elsewhere. Along with that privilege comes the concomitant responsibility to abide by the rules of the road. The Commonwealth has a compelling interest in protecting its citizens, and the citizens of our sister states, from the dangers posed by Pennsylvania-licensed intoxicated drivers. See McCafferty, 758 A.2d at 1161; Occhibone v. Commonwealth, Dept. of Transp., 542 Pa. 588, 669 A.2d 326, 328 (1995) (citation omitted). By driving while intoxicated in another state, a Pennsylvania driver has violated important interests of this Commonwealth. McCafferty, 758 A.2d at 1161. PennDOT argues that the Commonwealth Court decision below, like the decision in Boots and Tripson and similar cases, relies upon a construction of Article III of the Compact that this Court rejected in McCafferty and Harrington. PennDOT notes that McCafferty and Harrington teach that party states to the Compact have different responsibilities depending on whether they are acting as the home/licensing state or the reporting/convicting state. As a result of that distinction, the literal provisions of Article III affect Penn- DOT’s authority and obligation only when PennDOT is acting in the capacity of a convicting state forwarding a report to a home state. PennDOT argues that these provisions do not apply with the same force when PennDOT (which has no control over how other states may interpret their duties under Article III) is discharging its task as a home state, ie., when its task is to determine whether a report of an out-of-state conviction requires it to suspend a Pennsylvania driver’s operating privileges under Article IV of the Compact. PennDOT also notes that, in deeming Article III to impose mandatory requirements, the Boots case had relied upon the earlier decision in Mazurek v. Commonwealth, Dept. of Transp., 717 A.2d 23 (Pa.Cmwlth.1998). PennDOT then notes that Mazurek was summarily reversed by this Court in the wake of McCafferty. See 563 Pa. 343, 760 A.2d 848 (2000) (per curiam) (granting allocatur and reversing and remanding for proceedings consistent with McCajferty). Thus, in Penn-DOT’s view, Boots and its progeny begin with an interpretive premise which this Court has rejected. PennDOT is correct. PennDOT argues that McCafferty and Harrington teach that the requirements of Article III do not prohibit a home state from relying upon a conviction report that does not satisfy all of the literal and/or technical requirements which Article III would impose upon PennDOT when it is acting as the reporting state. PennDOT states that the essential substantive inquiry when Pennsylvania is the home state in receipt of a conviction report is simply whether the driver was in fact convicted in a party state of an offense that requires a suspension of Pennsylvania operating privileges under Article IV of the Compact. PennDOT argues that requiring it to provide extrinsic evidence that the reporting state’s conviction report was originally generated from the licensing authority of that state adds nothing to the truth-determining process or the administration of justice under the Compact, and ignores the presumption in law that public officials have faithfully performed their duties. See Albert v. Lehigh Coal & Navigation Co., 431 Pa. 600, 246 A.2d 840, 845 n. 5 (1968) (“There is a prima facie presumption of the regularity of the acts of public officials which exists until the contrary appear”); see also Kennedy v. Upper Milford Township Zoning Hearing Board, 575 Pa. 105, 834 A.2d 1104, 1123 (2003) (same). With respect to the latter point, PennDOT notes that the conviction report it submitted in this case illustrates how the presumption of a faithful discharge of executive duties, which has been ignored by Commonwealth Court in this line of cases, should work. The conviction report here is a “certification of Indiana abstract of court record” which, PennDOT notes, is the form by which an Indiana court certifies a driver’s conviction to the Indiana BMV. Above the judge’s signature line, the form specifies that “[t]his abstract is a certification of record to the Commissioner of the Indiana Bureau of Motor Vehicles as prescribed by Indiana Code 9-25-6-8.” Thus, PennDOT notes, the form exists to satisfy the requirement under Indiana law that courts certify convictions for traffic offenses such as OWI to the Indiana BMV. Penn-DOT further notes that Indiana law imposes no requirement upon Indiana courts to provide these reports to a sister state’s licensing authority, in addition to forwarding them to the Indiana BMV. Instead, the duty to forward conviction reports falls only upon the Indiana BMV. From these facts, and applying the presumption that public officials faithfully discharge their duties, PennDOT argues, the courts below should have presumed that “the Indiana Bureau of Motor Vehicles, the recipient of the certification of court abstract under Indiana law and the entity with the statutory duty to report [appellee’s] OWI conviction to [PennDOT], is the entity [which] forwarded that conviction report.” Brief for Appellant, 27-28. PennDOT argues that the burden should have been upon appellee to rebut a presumption that the report was not forwarded by the Indiana licensing authority. PennDOT also argues that the Commonwealth Court’s approach to PennDOT’s discharge of its administrative obligations under Article IV of the Compact is unworkable because it assumes a non-existent power in PennDOT to regulate the conduct of the Compact states which report convictions to Pennsylvania. PennDOT accurately notes that Common wealth Court decisions in this area have progressed to a point where they now require that the out-of-state court abstracts indicate on their face that they were forwarded by the licensing authority of the reporting state before they may be considered as sufficient proof of the conviction. See, e.g., Snyder v. Commonwealth, Dept. of Transp., 808 A.2d 318, 321 (Pa.Cmwlth.2002). Thus, PennDOT notes, the Snyder panel refused to deem the credited testimony of Bureau of Driver Licensing employees regarding the origin of out-of state conviction reports—i.e., testimony to the effect that the envelopes in which such reports were forwarded unfailingly bore the return address of the convicting states’ licensing authorities, and not the convicting court—sufficient to satisfy Article III of the Compact. PennDOT notes that there is nothing in the Compact which requires that the conviction report itself state that it has been forwarded by the licensing authority; rather, “Commonwealth Court’s strict and unreasonable construction of Article III of the Compact in essence amounts to a unilateral judicial amendment to the Compact which ... imposes additional duties upon the other party states without their consent.” Brief for Appellant, 31. Finally, PennDOT argues that Commonwealth Court’s approach allows many drivers who have unquestionably been convicted for impaired driving offenses in other states to escape the Pennsylvania sanction the General Assembly has mandated, thereby lessening the effectiveness of the Compact as a tool for promoting national highway safety. PennDOT submits that, in its experience, at least half of the party states to the Compact, including Pennsylvania, utilize court abstracts or the equivalent as the conviction reports they forward to licensing states under Article III. PennDOT asserts that in no other jurisdiction have the courts required the home state, as a precondition to fulfilling its duties under Article IV, to prove that the report of conviction was sent directly by the licensing authority of the reporting state. PennDOT posits that the licensing authorities in those states believe, consistently with the 1990 Administrative Procedures Manual published by the United States Department of Transportation, that court abstracts are sufficient under Article III. See Driver License Compact Administrative Procedures Manual 1994, § 2.4.3 (the form of the report of conviction may be a copy of the abstract of court record). PennDOT notes that it has no power to require the licensing authorities of other party states to provide different documentation. Brief for Appellant, 40. Appellee responds first by disputing PennDOT’s argument that requirements under the Compact have different force depending upon whether Pennsylvania is acting as the home state or the convicting state. Appellee submits that all of the Compact’s requirements apply to all party states, and that the “shall” language employed in Article III means that it is mandatory for conviction reports to be forwarded by the licensing authority of the reporting state before they may serve as the basis for a reciprocal license suspension. Appellee argues that PennDOT’s construction of the statute is mistaken because it disregards the plain language of the statute in order to pursue its spirit. Appellee also distinguishes McCafferty on the same ground cited by the courts below: i.e., by noting that that case did not specifically pass upon the question of whether the home/licensing state could accept a report of conviction absent affirmative proof that it originated from the licensing authority of the convicting state. Appellee further argues that it is settled law, under the Boots line of cases, that the licensing authority of a party state must report a conviction to PennDOT before PennDOT may act upon the report to suspend Pennsylvania operating privileges. Finally, appellee disputes PennDOT’s claim that the decision below prevents the Commonwealth from participating as a full party state in the Compact and compromises highway safety. Appellee submits that Penn-DOT has presented no evidence to support its argument to that effect and counters that PennDOT may satisfy the procedural requirements of the Compact merely by asking reporting states to ensure that the required record of conviction emanate from their licensing authority, which should be an easy task. The Commonwealth Court line of cases relied upon below takes a formulaic approach to the Compact, while at the same time recognizing no distinction between the duties and powers of a licensing authority depending upon whether it is acting as a reporting state or a home state. Those cases thus assume that a home state licensing authority’s powers under Article IV are circumscribed by defects in a reporting state’s compliance with Article III of the Compact. In so doing, the cases ignore the admonition in Article IX that the Compact “shall be liberally construed so as to effectuate the purposes thereof,” one of which, as set forth in Article I, is to promote compliance with the laws relating to the operation of motor vehicles in each of the party states. In concluding that the Commonwealth Court cases which adopted this strict approach retained full vitality notwithstanding this Court’s decisions in McCafferty and Harrington, the panel below clearly failed to appreciate the significance of our teachings in McCafferty and Harrington. McCafferty involved a group of consolidated cases where motorists had appealed reciprocal suspensions of their Pennsylvania licenses following out of state convictions for DUI. The motorists prevailed in the courts of common pleas upon constitutional grounds, which in turn vested appellate jurisdiction in this Court. In addition to reversing the determinations on the constitutional questions presented, this Court addressed a claim, raised by one appellee, that the conviction report forwarded by authorities in New Jersey (the reporting state in his case) was deficient because it did not strictly comply with New Jersey’s obligation under Article III. Specifically, the New Jersey report had failed to identify the court in which action was taken and to indicate the appellee’s plea and whether the conviction was the result of a forfeiture of bail, bond or other security—specifics which Article III requires the convicting state to report. 758 A.2d at 1164. In rejecting the appellee’s argument that the failure of the report to comply with the command of Article III rendered his license suspension erroneous, this Court began by noting that “[n]one of this [missing] information would have shed any light on the conduct underlying [the] conviction; it is the conduct underlying the conviction that triggers PennDOT’s duties under the Compact.” Id. We then emphasized that there is a distinction in what the Compact requires of PennDOT when it is the convicting/reporting state versus its duties as the home/licensing state: Article III is clearly mandatory for a party state reporting a conviction within its jurisdiction. Article III therefore imposes an obligation on PennDOT only when it is the state reporting the conduct, not when it is the home state. It does not prohibit PennDOT, as the licensing authority in the home state, from relying on the information contained in the report even if the report lacks certain information specified in Article III. Nor does anything in Article III render the New Jersey report of conviction inadmissible if defective .... Thus, we fail to see how the technical, immaterial defects in the report here rendered PennDOT’s suspension of appellee’s license erroneous. 758 A.2d at 1164-65 (footnote, brief citation and statutory citations omitted) (emphasis original). In a similar vein, this Court emphasized in a footnote that the fact that a reporting state fails to follow the mandates of Article III does not operate to preclude license suspension by the home state pursuant to Article IV. Id. at 1165 n. 13. Finally, this Court cited to the 1998 amendments to the Pennsylvania Compact provisions, where our General Assem bly added the following language to Section 1584, which concerns information forwarded by other Compact states: The omission from any report received by the department from a party state of any information required by Article III of the compact shall not excuse or prevent the Department from complying with its duties under Articles IV and V of the compact. 75 Pa.C.S. § 1584. Although the McCafferty Court recognized that this amendment was enacted after the appellee’s conviction, we noted its tangential significance in that it “explicitly recognizes what is implicit in the structure of the Compact: states play different roles depending upon whether they are the home states or the convicting states.” 758 A.2d at 1165. Harrington involved the reciprocal suspension of a motorist’s Pennsylvania driver’s license following a New Jersey conviction for DUI. The New Jersey report was deficient under Article III in that it failed to describe the appellee’s plea or state whether the conviction resulted from a forfeiture of bail or security. 763 A.2d at 390. Unlike McCafferty, the 1998 amendment to Section 1584 applied in Harrington. The trial court sustained the motorist’s appeal notwithstanding Section 1584, finding that it violated Article III of the Compact as well as due process precepts. This Court reversed. Preliminarily, the Harrington Court noted that the Commonwealth Court cases which had construed Article Ill’s technical reporting requirements as mandatory in cases where PennDOT was acting as the home/licensing state under Article IV were based upon statutory construction, and not due process precepts. The Court then noted that McCafferty had since concluded that full compliance with Article III on the part of a reporting state was not necessary to the performance of a licensing state’s obligation concerning licensing suspension: “[t]hus, McCafferty effectively overruled the holding of the Commonwealth Court that full compliance with Article III is a mandatory prerequisite to license suspension.” 763 A.2d at 391 & n. 7. Harrington then went on hold, inter alia, that the notice provided to the appellee in that case did not violate due process. Obviously, the Commonwealth Court panel below was correct that McCafferty and Harrington are factually distinguishable from the case sub judice in that they involved deficiencies in the conviction report, while this case involves a challenge to the failure to offer affirmative proof that the conviction report emanated from the reporting state’s licensing authority. Nevertheless, the significance of this Court’s analysis and rationale in McCafferty and Harrington should not have been so casually dismissed. In McCafferty, this Court stressed that PennDOT’s duty and authority under the Compact differed depending upon whether it was acting as the reporting state or the home state. The approach in McCafferty was very different from the approach taken in Commonwealth Court cases such as Boots and Mazurek, and the Commonwealth Court should have recognized as much. Although the Compact is a multi-state effort and agreement, for practical purposes, Pennsylvania courts are called upon to assess the performance only of Pennsylvania’s licensing authority, and 'not the performance of executive authorities in other states. Articles III and IV of the Compact speak to the different powers and duties of a licensing authority depending upon whether it is the convicting/reporting state or ’the home/licensing state, respectively. We reiterate our conclusion from McCafferty that the provisions of Article III are clearly mandatory where PennDOT is acting as the convicting state reporting that Pennsylvania conviction to the sister state which licensed the driver. McCafferty, 758 A.2d at 1164. For that matter, the provisions of Article IV are mandatory upon PennDOT when it is acting as the home state in receipt of a report of an out-of-state conviction. But there is. nothing in the plain language of Article III—much less in the overall structure and purpose of the Compact—which - suggests that Article III serves as some form of sub silentio restriction upon PennDOT’s powers where it is in the opposite posture, i.e., when it is called upon under Article IV to act after receipt of a conviction report from a sister Compact state. In that instance, the statute directs PennDOT to determine if “suspension, revocation or limitation of the license to operate a motor vehicle” is required. 75 Pa.C.S. § 1581 (Art. rV(a)). In making this evaluation, PennDOT is directed to focus upon the “conduct reported” pursuant to Article III and to give it “the same effect” as it would have if the conduct had occurred in the home state. There is nothing in Article TV which obliges PennDOT to reject, or precludes it from relying upon, a sister state’s report of conviction because of a perceived defect in proof of the origin of the reporting state’s certification. Consistently with the purpose of the Compact, PennDOT should be deemed free to proceed with a substantive analysis of the matter. In this regard, it is significant that the type of report relied upon by PennDOT in this and like cases was not some mere rumor or unproved accusation: it was a court abstract originating from the convicting court. See Harrington, 763 A.2d at 393 (noting significance of administrative interpretations and assurances which guard against arbitrary and erroneous suspensions). The court abstract in this case was the very document that was forwarded to the Indiana licensing authority as proof of appellee’s conviction. A licensing authority does not generally possess first-hand knowledge of a conviction: it must rely upon such proof of conviction from the court which rendered the conviction. Thus, even in a situation where there was affirmative “proof’ that it was the licensing authority of the reporting state which forwarded the court abstract, or a report of the abstract, the fact that the authority forwarded the actual proof would add little of substance. To require PennDOT to ignore all such abstracts from sister states unless they also contain a rubber stamp from the out-of-state licensing authority would elevate a pointless form (and one which is not specifically required in Article IV) over substance, and defeat the salutary purposes of the Compact. This is not to say that PennDOT’s reciprocal suspension determinations under Article IV are unreviewable or that the documentary evidence upon which PennDOT relies when acting pursuant to Article IV is not subject to substantive chai lenge. Challenges may always be raised as to the accuracy or reliability of a particular court abstract or other report of conviction. The driver facing suspension, having been the subject of the out of state conviction, is in a solid position to recognize and litigate any actual substantive deficiency. But, the notion that, for purposes of PennDOT’s duty under Article IV, the essence of the report is the entity which forwards it, rather than its substance, is absurd. In rejecting a due process challenge to an allegedly defective Article III notice in McCafferty, this Court noted that: “[t]he due process clause does not create a right to be deliberately obtuse as to the nature of a proceeding. Appellees here knew exactly what was happening to them and why.” 758 A.2d at 1163. Similarly, in discharging its administrative duty under Article IV, PennDOT should not be required to be deliberately obtuse when it is in receipt of a report of an out-of-state conviction. It can determine what happened and proceed accordingly. For the foregoing reasons, we reverse the order of the Commonwealth Court and again remand the matter to the trial court for proceedings not inconsistent with this decision. Former Justice LAMB did not participate in the decision of this case. Chief Justice CAPPY files a concurring opinion. . The Compact has been incorporated into the Pennsylvania Motor Vehicle Code at 75 Pa.C.S. §§ 1581-1586. . In his brief, appellee raises and argues a number of alternative issues in addition to those which were the subject of this Court's grant of discretionary review. Appellee argues that he raised these claims below but they were not reached, given the lower courts’ disposition in his favor. In anticipation of appellee’s attempt to raise these additional issues, appellant filed an "Application to Limit Issues on Appeal,” arguing that the appeal should be confined to the issues appellant had raised in its allocatur petition, and noting that appellee would be free to litigate his additional issues upon remand, should appellant prevail. This Court granted the application in a per curiam order. Accordingly, we will not address the additional issues appellee has briefed. . Much of the Indiana Motor Vehicles Code was amended in 2001. At the time of appellee’s 1998 conviction, Section 9-30-5-2 of the Code provided that a person who operates a vehicle while intoxicated "commits a Class A misdemeanor.” Section 9-13-2-86 of the Code defined "intoxicated" as meaning "under the influence of,” inter alia, alcohol, controlled substances, drugs, or a combination of alcohol, controlled substances or drugs, "so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties to an extent that endangers a person.” . Article IV(c) further provides that, if the laws of a party state do not describe these enumerated offenses in "precisely the words employed in subdivision (a),” Article IV still applies so long as the offenses are of a “substantially similar nature.” Defendants commonly challenge whether the out-of-state offense is substantially similar to the driving under the influence offense set forth in the Compact, and appellee apparently intends to forward such a challenge upon remand here. But, for purposes of the narrower issue presented on this appeal, we assume that the Indiana OWI was a qualifying offense for Compact purposes. . At the time of appellee's offense in Indiana, the Pennsylvania DUI provision stated as follows: (a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances: (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving. (4) While the amount of alcohol by weight in the blood of: (i) an adult is 0.10% or greater; or (ii) a minor is .02% or greater. 75 Pa.C.S. § 3731. Section 3731 was repealed effective February 1, 2004, but similar language now appears at 75 Pa.C.S. § 3802. . The licensing authority in Indiana for Compact purposes is the Indiana Bureau of Motor Vehicles ("Indiana BMV"). Ind.Code § 9-28-1-2. . The concurring and dissenting opinion in McCafferty was filed by Mr. Justice (now Chief Justice) Cappy and joined by then-Chief Justice Flaherty and Justice Zappala. The opinion concurred in the result only with respect to one appellee in the case. In all other respects, including the proper construction of Article III of the Compact, the opinion was in a dissenting posture. Notably, in Harrington, then-Justice Cappy filed a concurring opinion explaining that he joined the Harrington Majority Opinion, notwithstanding his expressed view in McCafferty, because he recognized the stare decisis effect of the decision. . See Snyder v. Commonwealth, Dept. of Transp., 808 A.2d 318 (Pa. Cmwlth.2002) (conviction report insufficient where PennDOT failed to show its origin was North Carolina licensing authority); Gallant v. Commonwealth, Dept. of Transp., 805 A.2d 1 (Pa.Cmwlth.2002) (en banc) (same for Illinois conviction). . PennDOT identifies Florida, Illinois, Indiana, Maine, New Hampshire, North Carolina, Virginia, West Virginia, and Wyoming as examples of other states that employ such abstracts. . PennDOT also claims that both the Commonwealth Court and appellee are mistaken to the extent they rely upon this Court’s denials of the petitions for allowance of appeal in Boots and Tripson as an endorsement of the reasoning in those cases. PennDOT is correct in this regard. This Court's denial of a request for discretionary review suggests no position on the merits and carries no precedential weight. It is only where this Court has granted review and entered an order affirming a decision on the basis of an opinion of the lower court that the Court's action may be construed as adopting the rationale employed by the lower court. Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898, 903-04 (1996).

OPINION OF THE COURT HUTCHINSON, Justice. This is an appeal by allowance from a Superior Court panel’s per curiam order, 311 Pa.Super. 602, 458 A.2d 267. The panel affirmed an order of the Orphans’ Court Division of the Court of Common Pleas of Philadelphia. Orphans’ Court entertained the appeal of George A. Butler, Jr. from a decree of Philadelphia’s Register of Wills, reversed the Register and directed him to admit to probate testator Joseph C. Pedrick’s September 27, 1979 will written by appellee George A. Butler, Jr. That will distributed the testator’s entire estate to appellee and his brother, Edmund B. Butler. It also named appellee executor. The sole question before us is the effect of appellee’s conduct as attorney-scrivener-beneficiary on his right to use Orphans’ Court process to secure a benefit under the will from conduct which, while not illegal, is not only far below those standards acceptable in the legal profession, but additionally plainly frustrates full equitable inquiry into the substantive issues presented. On the undisputed facts of this case, we hold that appellee, proponent of the September 27, 1979 will, came into equity with unclean hands. Thus, the Orphans’ Court erred in granting him affirmative relief. Therefore, we reverse. The testator, Joseph C. Pedrick, unmarried and childless, one time Clerk of the United States Court of Appeals for the Third Circuit, made at least four wills in his lifetime. The first two were prepared in 1959 and 1972 by his long time personal attorney, appellee’s father. In them he left his modest estate to that attorney. In the course of time the father was joined in his legal practice by his sons, this appellee and Edmund, appellee’s brother. Still later, in 1975, death came to the father, but his two sons continued the family law firm. In August of 1977 testator came one day to the law firm his dead friend had founded. That he did so is undisputed. Whether he and appellee quarreled is unclear. However, about one month later he sought the services of Thomas Mettee, Esquire. Mr. Mettee prepared a third will in which Mr. Pedrick left his entire estate to a boy he had raised, John Gregory, the appellant here. On September 27, 1979, Mr. Pedrick, old and sick, lay in St. Mary’s Hospital. On that day he learned from his doctor that the cancer which now invaded his prostate, spine, liver and lung would kill him and that he should prepare for death. Along with this terminal process he then suffered from acute congestive heart failure, acute dyspnea, arteriosclerosis, diverticulosis and hernia. These maladies had visited his mind and body with a downhill course over the two years since his last will. Impending death medically confirmed, he asked a nursing sister to call the Butler law firm to see to his will. The nurse, Sister Catherine Joseph, called appellee to come to the hospital. In response to that call appellee went to the hospital although he found it most inconvenient. There, on that day, in that condition, while alone with the son and namesake of his dead friend and attorney, testator signed his fourth will leaving his still modest estate to the scrivener and the scrivener’s brother. No witness, disinterested or otherwise, attested that will. That will was not re-executed or republished in the presence of any witness whatsoever when appellee returned alone two days later to have testator name appellee himself beneficiary on testator’s federal pension. The Register had a hearing and denied appellee’s will probate. Appellee then sought the aid of the Orphans’ Court Division, a court in which equitable principles apply. That court noted appellee’s “unfortunate and inexcusable” conduct, but nevertheless opened its halls to aid him because it could not find undue influence under our governing case law. However, it did ignore the maxim that he who asks the sovereign, in its conscience, to support him, must put out hands undirtied in the matter where he seeks the sovereign’s aid. The Code of Professional Conduct to which members of appellee’s profession were held at the time he did this “unconscionable” act does not have the force of substantive law. To the extent Estate of Younger, 314 Pa.Superior Ct. 480, 461 A.2d 259 (1983), holds otherwise, it is disapproved. See infra, at 541-542. Thus, appellee’s failure to live up to that Code, standing alone, would not invalidate this will. Here, however, we have not only a clear departure from ethical standards, but other conduct which plainly frustrates a determination based on untainted disinterested evidence as to whether this testator freely willed his worldly goods to appellee and appellee’s brother. Appellee’s failure to secure any witness to what transpired between him and the testator, despite the second opportunity created when he came back two days later to effect a beneficiary change in his own favor, effectively insulated the will he prepared to his own benefit from any acceptable inquiry into the very issue before the court, undue influence. A court applying equitable principles is not open to such a supplicant. To better understand our holding in this case a full recital of the record on which the lower courts acted is necessary. Because there were no witnesses to the execution of the will or to the conversation between Mr. Butler and Mr. Pedrick, appellee gave the only testimony as to what took place between him and Mr. Pedrick on September 27. He testified that he and Mr. Pedrick had exchanged pleasantries. He also testified that although Mr. Pedrick did not know he was George Butler, Mr. Pedrick recognized him as one of the Butler brothers and asked him about his brother’s family. N.T. 140-43. He said that Mr. Pedrick then told him he wanted to make a will. When Mr. Butler asked Mr. Pedrick “what do you want in your will,” he gestured and said “I want you to take it.” Appellee said he replied, “... Joe, that’s very kind of you, thanks for that, but is there anybody else you want to consider?” The decedent was said to answer, “No. I want you to take it.” Appellee continued by stating that he then thanked the testator and asked, “... since you are giving it to me ... would you have any objection if I would divide that and give part of it away to my brother?” The testator is said to have answered that he had no objections and to again have stated that he wanted appellee to have everything. N.T. 143-44. According to Butler, he then asked Mr. Pedrick whom he wanted to name as his executor and Mr. Pedrick replied “you are taking it ... you act.” N.T. 144. Appellee then hand drafted the will and Mr. Pedrick executed it. Appellee said they then talked about mutual friends and appellee’s father. By his own admission, appellee made no effort to obtain subscribing witnesses to the will because, in his experience, medical personnel are reluctant to become involved in preparation of such documents and he did not “think” there were any ambulatory patients around. N.T. 168-69. Appellee admitted that he was familiar with Ethical Consideration 5-5 of the Code of Professional Responsibility which provides: A lawyer should not suggest to his client that a gift be made to himself or for his benefit. If a lawyer accepts a gift from his client, he is peculiarly susceptible to the charge that he unduly influenced or over-reached the client. If a client voluntarily offers to make a gift to his lawyer, the lawyer may accept the gift, but before doing so, he should urge that his client secure disinterested advice from an independent, competent person who is cognizant of all the circumstances. Other than in exceptional circumstances, a lawyer should insist that an instrument in which his client desires to name him beneficially be prepared by another lawyer selected by the client. Emphasis added. However, he stated that he did not have someone else draft the will because “the call I received from Sister Catherine placed emphasis on the fact that he wanted to see me that night.” Most experienced practitioners would find such an explanation not implausible. Indeed, in the case of a testator in extremis, or one who dies without further opportunity to republish his will, the need for immediate preparation may well render execution in this manner wholly ethical, despite a testamentary disposition to the receiver. However, that explanation fails in the face of appellee’s own testimony that he returned to the hospital on September 29 to obtain Mr. Pedrick’s signature on a change of beneficiary form naming appellee himself beneficiary. Although he did not believe that Mr. Pedrick was dying appellee thought it “prudent” to execute the change of beneficiary form immediately because he expected to be away from Philadelphia for six weeks. He excused his failure to have someone else draft a will before that second visit by his belief that the will was valid and because “it was a busy time at the office and time was of an absolute premium.” There was no evidence that he made any effort to have the will benefitting him and his brother re-executed and republished in the presence of disinterested subscribing witnesses. Mr. Pedrick died six months after he executed this fourth will. The Register of Wills admitted the third will to probate over the caveat of appellee who thereafter submitted the fourth will for probate. That will was also admitted to probate. The Register of Wills then held an evidentiary hearing at which he considered John Gregory’s challenge to the fourth will on alternative grounds of undue influence at the hands of appellee and Mr. Pedrick’s lack of testamentary capacity at the time he executed the fourth will. After that hearing, the Register entered a decree admitting, the third will to probate and denying probate of the fourth will appellee had prepared. Mr. Butler appealed to Common Pleas’ Orphans’ Court Division. After a series of hearings on the same questions raised before the Register of Wills, the Court held that the fourth will was not obtained by undue influence, vacated the Register’s decree and ordered him to admit the fourth will to probate. Orphans’ Court Division and Superior Court each affirmed en banc. This appeal followed. The Orphans’ Court considered only the issues of testamentary capacity and undue influence. No question is raised before us with respect to its finding that the testator had the capacity to make a will. Indeed, that determination is amply supported on this record. In dealing with the undue influence issue the court considered only the issues of burden of proof and determined that once a proponent of a will establishes a formal execution, the burden shifts to the contestant to show undue influence. If the contestant then shows by clear and convincing evidence that a stranger to the blood of the testator in a confidential relationship receives the bulk of an estate from a testator of weakened intellect, a presumption of undue influence arises and the burden of proof shifts back to the proponent to prove affirmatively the absence of undue influence. Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); Re Quein’s Estate, 361 Pa. 133, 62 A.2d 909 (1949). Moreover, purporting to follow this Court’s decisions in Re Estate of Paul, 407 Pa. 30, 180 A.2d 254 (1962), and Re Estate of Gold, 408 Pa. 41, 182 A.2d 707 (1962), the Orphans’ Court held that the fact that the attorney who drafted the will was also a beneficiary under it, coupled with the fact that he failed to advise the testator to seek independent counsel, does not shift the burden of proving undue influence to the attorney-scrivener-beneficiary. In so doing the court seemed to ignore the difference between the general debilitation that so weakens the intellect as to make the old and the sick peculiarly subject to influence and the markedly more serious loss of faculties which deprive a testator of the capacity to make a will. See supra at 218, n. 3. So treating the matter the hearing judge first concluded, based on appellee’s testimony, that appellants had failed to produce clear and convincing evidence that Joseph Pedrick’s intellect was weakened and, therefore, that they retained throughout the burden of persuading him of undue influence. The hearing judge then determined that appellants had not proved by clear and convincing evidence that appellee exercised undue influence over Mr. Pedrick. Alternatively, the hearing judge stated that even if the burden of proof with respect to undue influence had shifted to appellee under the medical and other evidence, appellee’s own testimony clearly and convincingly showed that he had not exerted undue influence. We note, however, that the hearing judge relied heavily on Mr. Pedrick’s previous wills as evidence of an unfettered intention to confer a benefit on the Butlers. In so doing he emphasized the long years of service which Mr. Butler, Sr. had provided to Mr. Pedrick. Although the Orphans’ Court en banc affirmed these findings, it did conclude that appellee, who, “over the years had earned the confidence of this court,” here “engaged in unfortunate and inexcusable” conduct. The court en banc stated appellee’s failure to advise the testator to seek the advice of independent counsel violated Ethical Consideration 5-5 of the Code of Professional Responsibility. Appellee does not dispute that finding. Appellant John Gregory argues here, relying on a Superior Court panel decision, Estate of Younger, 314 Pa.Superior Ct. 480, 461 A.2d 259 (1983), that an attorney who drafts a will under which he is a beneficiary in violation of Ethical Considerations 5-5 and 5-6 of the Code of Professional Responsibility, shifts the burden of proof to himself to show by clear and convincing evidence that the gift arose from the will of the testator and not from the attorney’s improper influence. Appellant further argues that the testimony of the attorney-scrivener-beneficiary should be deemed incompetent as a matter of law. See Kraynick v. Hertz, 443 Pa. 105, 109, n. 2, 277 A.2d 144, 146, n. 2 (1971). Cf. In Re Wertman Estate, 462 Pa. 195, 340 A.2d 429 (1975). Appellant finally argues that the Orphans’ Court was constrained to apply these rules of law based on its obligation to enforce the Code of Professional Responsibility which our Court adopted by rule on February 27, 1974 and which have the effect of statutory rules governing all attorneys. See Estate of Younger, 314 Pa. at 492, 461 A.2d at 265-66 (citing American Dredging Co. v. City of Philadelphia, 480 Pa. 177, 183, 389 A.2d 568, 571 [1978]). We reject these arguments in the form presented. Moreover, we disapprove of the broad implications of Superior Court’s holding in Estate of Younger. There, Superior Court purporting to overrule Paul Will and Gold Will, concluded that the Orphans’ Court, in the first instance, has the power to regulate the conduct of attorneys practicing before it. It does not have such general power by virtue of our Code of Professional Responsibility. However, this Court has held in several cases that counsel can be disqualified for violations of the Code where disqualification is needed to insure the parties receive the fair trial which due process requires. See American Dredging Co., supra; City of Philadelphia v. AFSCME, 503 Pa. 498, 469 A.2d 1051 (1983). See also Commonwealth v. Eastern Dawn Mobile Home Park, Inc., 486 Pa. 326, 405 A.2d 1232 (1979) (plurality opinion); Slater v. Rimer, Inc., 462 Pa. 138, 338 A.2d 584 (1975). In several other cases we have sua sponte referred instances of apparent attorney misconduct to the Disciplinary Board. We have not, however, heretofore used such misconduct as a basis for altering the rules of law, including evidentiary rules, presumptions and burdens of proof, which would otherwise apply to a case. We decline to do so here. Thus, while it may be appropriate under certain circumstances for trial courts to enforce the Code of Professional Responsibility by disqualifying counsel or otherwise restraining his participation or conduct in litigation before them in order to protect the rights of litigants to a fair trial, we are not inclined to extend that enforcement power and allow our trial courts themselves to use the Canons to alter substantive law or to punish attorney misconduct. This view is consistent with both Article V, Section 10(c) of our Constitution which places disciplinary power in us, and the preamble to the Model Rules of Professional Conduct adopted by the American Bar Association in August of 1983 and recommended to this Court for adoption, with amendments, by the Pennsylvania Bar Association House of Delegates on October 28, 1983: The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to argument any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty. 14 Pa. Bulletin 8 (January 7, 1984). Here, however, an attorney whose conduct the record shows was “unfortunate and inexcusable” comes into a court applying equitable principles to secure a benefit from the very conduct which the accepted standards of the profession preclude. Such conduct may constitute “unclean hands” which bars relief in equity. We hold it does on the facts in this case for the following reasons. In the exercise of the limited jurisdiction conferred on it by statute, it is plain that the Orphans’ Court must apply the rules and principles of equity. Estate of Hahn, 471 Pa. 249, 369 A.2d 1290 (1977); Estate of Freihofer, 405 Pa. 165, 174 A.2d 282 (1961); Re Douglas’ Estate, 303 Pa. 227, 154 A. 376 (1931). Thus, the familiar equity maxim “he who comes into a court of equity must come with clean hands” applies to matters within the Orphans’ Court’s jurisdiction. Re Cross’ Estate, 319 Pa. 1, 179 A. 38 (1935); Re Hays’ Estate, 159 Pa. 381, 28 A. 158 (1893). See also Weber Estate, 15 Fid.Rep. 464, 57 Berks 163 (1965). The maxim itself “is derived from the unwillingness of a court to give relief to a suitor who has so conducted himself as to shock the moral sensibilities of the judge, and it has nothing to do with the rights or liabilities of the parties. Public policy not only makes it obligatory for the court to deny relief, once a party’s unclean hands are established, but to refuse the case.” Gaudiosi v. Mellon, 269 F.2d 873, 881 (3d Cir.), cert. denied, 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157 (1959). This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief____ That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. Thus while “equity does not demand that its suitors shall have led blameless lives” ... as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue____ Shapiro v. Shapiro, 415 Pa. 503, 506-507, 204 A.2d 266, 268 (1964) (quoting Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814-15, 65 S.Ct. 993, 997-998, 89 L.Ed. 1381 [1945]). Thus, the clean hands doctrine does not bar relief to a party merely because his conduct in general has been shown not to be blameless; the doctrine only applies where the wrongdoing directly affects the relationship subsisting between the parties and is directly connected with the matter in controversy. Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976) (opinion by Eagen, J.); Spring City Foundry Co. v. Carey, 434 Pa. 193, 252 A.2d 666 (1969); Shapiro v. Shapiro, 415 Pa. 503, 204 A.2d 266 (1964); McLaughlin v. McLaughlin, 410 Pa. 1, 187 A.2d 905 (1963). It does not apply to collateral matters not directly affecting the equitable relations which exist between the parties. Shapiro v. Shapiro, 415 Pa. at 507, 204 A.2d at 268, McLaughlin v. McLaughlin, 410 Pa. at 5, 187 A.2d at 907. In the instant case, the Orphans’ Court was plainly right in finding the conduct of appellee in drafting the Pedrick will unconscionable. Putting aside any violation of Ethical Consideration 5-5 of the Code of Professional Responsibility, appellee Butler’s conduct in dealing with the testator in private and thus through his own conduct insuring against appellant’s ever knowing what actually took place between appellee and Mr. Pedrick, precludes him from using a court applying equitable principles to obtain the benefit of that conduct. His unconscionable conduct surrounding the September 27, 1979 matter is directly related to the matter at issue.and directly affects the equitable relations between the parties. Having concluded that appellee’s conduct not only violated Ethical Consideration 5-5 but was otherwise “inexcusable,” the Orphans’ Court abused its discretion when it failed to bar Mr. Butler from relief in equity under the “clean hands” doctrine. We base our holding not on Mr. Butler’s violation of an Ethical Consideration of the Code of Professional Responsibility; rather, we find that Mr. Butler’s conduct in this matter, when viewed on the whole record, shocks the conscience of this Court. Reversed and remanded to the Orphans’ Court for proceedings consistent with this opinion. NIX, C.J., files a concurring opinion, in which LARSEN, J., joins. ZAPPALA, J., files a dissenting opinion in which McDER-MOTT, J., joins. . Appellant John Gregory testified that decedent visited appellee because appellee had refused to help Gregory cash decedent’s pension check and to make a deposit despite the fact that decedent had requested Mr. Gregory to do so. He further testified that decedent and appellee quarreled. Appellee testified that he remembered decedent visited his office in August of 1977 but that he did not remember what the visit was about. . "With the exception of those wills which are signed by mark or by another person acting by the express direction of the testator, subscribing witnesses are not required in Pennsylvania although most wills drawn by professional hand provide for such attestation____" 1 Remick’s Pennsylvania Orphans’ Court Practice § 3.05, at 98 (revised ed. 1975). . It would appear that Mr. Butler’s conduct also implicates Ethical Consideration 5-6 of our Code of Professional Responsibility which provides: A lawyer should not consciously influence a client to name him as executor, trustee, or lawyer in an instrument. In those cases where a client wishes to name his lawyer as such, care should be taken by the lawyer to avoid even the appearance of impropriety. . Appellee also testified that the family law firm had performed substantial' legal services for testator for which they had received only nominal payments. He further testified that at the time the fourth will was executed in 1979 testator "owed” the firm several thousand dollars. . This Court has defined undue influence sufficient to void a will as: [I]mprisonment of the body or mind, frauds or threats or misrepresentations, or circumstances of inordinate flattery, or physical or moral coercion to such a degree as to prejudice the mind of the testator, or destroy his free agency or to operate as a present restraint upon him in the making of a will. Re Quein’s Estate, 361 Pa. 133, 145, 62 A.2d 909, 915 (1949). . The hearing court chose not to believe testimony of Dr. De and Dr. Connor, Mr. Pedrick’s treating physicians, to the effect that as a result of organic brain syndrome and arteriosclerosis he was forgetful, disoriented and depressed. Dr. De, who was treating Mr. Pedrick for arteriosclerotic heart disease, congestive heart failure and cardiomegaly, described Mr. Pedrick as “quite forgetful, depressed” and withdrawn and stated Mr. Pedrick’s memory was grossly impaired and that he frequently lost his train of thought. The hearing judge erroneously stated that Dr. Connor’s testimony was “vague" and "ambiguous.” Dr. Connor specifically testified that decedent was “not capable of physically or mentally taking care of himself’; that decedent was at times "cognizant” but would then “go off on a tangent”; and that his arteriosclerosis affected his mental capability. The only “vague" or ambiguous testimony was on the issue of "testamentary capacity" not "weakened intellect.” Moreover, the hearing judge disregarded the testimony of contestant Gregory and a social worker regarding Mr. Pedrick's deteriorating mental state. The hearing judge also determined Dr. De's statements were vague and contradictory because he had also testified that depression and withdrawal were normal responses of terminal cancer patients. The hearing judge stated that Mr. Pedrick's difficulty in following directions and answering questions "could as easily be attributed to Dr. De's heavy and pronounced Indian accent as to any supposed mental weakness of decedent." The hearing court instead relied heavily on Sister Catherine Joseph’s testimony as to Mr. Pedrick’s mental state on September 27, 1979. Under our decision in Re Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975), this over-emphasizes the testator’s mental state on the date he executed the will. In Clark we stated: [Wjeakened mentality as relevant to undue influence need not amount to testamentary incapacity____ In other words, the particular mental condition of the [testator] on the date [he] executed the will is not as significant when reflecting upon undue influence as it is when reflecting upon testamentary capacity. More credence may be given to the ... remote mental history. 461 Pa. at 65, 334 A.2d at 634. As stated, slip op. at 10-11, the hearing judge apparently did not clearly distinguish between testamentary capacity and weakened intellect. “Where a person has testamentary capacity, but is so weak physically or mentally as to be susceptible to undue influence, and a substantial part of his estate is left to one occupying a confidential relation to him, the burden is upon the latter to show ... ho improper influence____” Williams v. McCarroll, 374 Pa. 281, 296, 97 A.2d 14, 20 (1953) (quoting Re Phillips’ Estate, 244 Pa. 35, 43-44, 90 A. 457, 460 (1914)). On this record it is clear that the chancellor applied an erroneous legal standard and that his findings on the testator’s mental state are not supported by the record. . The proposed Model Code of Professional Responsibility more explicitly prescribes the conduct barred by Ethical Consideration 5-5 of the present Code. We note it without implying our position on it. Rule 1.8(c) of the proposed Code states: A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling or spouse any substantial gift from a client including a testamentary gift, except where the client is related to the donee. 14 Pa. Bulletin 17 (January 7, 1984). . The Younger holding is inconsistent with Paul and Gold. It is sometimes justified as following the majority view. 314 Pa.Superior Ct. at 494, 461 A.2d at 266 (citing Bookstaver, Execution and Validity of Wills and Inter Vivos Trusts, 24 U.Pitt.L.Rev. 404, 408-09 (1975)); Annot., 19 A.L.R.3d 575, 585-92. We do not find that view persuasive. In Younger, however, Superior Court accurately notes that at the time we decided Paul and Gold the American Bar Association Canons of Professional Ethics which governed the conduct of attorneys did not proscribe an attorney from drafting an instrument under which he takes as a beneficiary. Canon 11 merely admonished a lawyer "to refrain from any action whereby for personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.” For the reasons noted in the text, at 541, we disapprove the Younger court’s holding that an attorney-scrivener-beneficiary’s violation of the Code of Professional Responsibility provides a basis for shifting the burden of proof on the issue of undue influence to him. . This Court has adopted a comprehensive set of rules for enforcing the Code of Professional Responsibility. See Pa.R.D.E. 101-219. . Because of that public policy the court may raise sua sponte the doctrine of unclean hands. See id. at 881. Although the parties did not directly present appellee’s conduct in such terms, the arguments here and below centered on the effects of his misconduct and clearly implicate that doctrine. . [T]he principle was established from the earliest days, that while the court of chancery could interpose and compel a defendant to comply with the dictates of conscience and good faith with regard to matters outside of the strict rules of the law, or even in contradiction to those rules, while it could act upon the conscience of a defendant and force him to do right and justice, it would never thus interfere on behalf of a plaintiff whose own conduct in connection with the same matter or transaction had been unconscientious or unjust, or marked by a want of good faith, or had violated any of the principles of equity and righteous dealing which it is the purpose of the jurisdiction to sustain. While a court of equity endeavors to promote and enforce justice, good faith, uprightness, fairness, and conscientiousness on the part of the parties who occupy a defensive position in judicial controversies, it no less stringently demands the same from the litigant parties who come before it as plaintiffs or actors in such controversies. This fundamental principle is expressed in the maxim, He who comes into a court of equity must come with clean hands; and although not the source of any distinctive doctrines, it furnishes a most important and even universal rule affecting the entire administration of equity jurisprudence as a system of remedies and remedial rights. 2 Pomeroy’s Equity Jurisprudence § 398, at 739-740 (Fourth Ed.1918) (footnotes omitted) (emphasis in original). . Under these circumstances, such conduct appears to go beyond a mere appearance of impropriety and constitutes actual impropriety. This Court is particularly shocked by Mr. Butler’s admissions regarding his efforts to have Mr. Pedrick cremated. Appellee testified: After the will had been prepared I asked Joe if he would — if he ever — if he had ever considered the matter of cremation. He said no, sir, that is against the rules of the Catholic Church. I said Joe, if I told you that it is not the rules of the Catholic Church, would you have any objection to it. And he looked at me and he said are you sure it is not against the rules. I said I am positive it is not against the rules of the church, Joe. He questioned me quite extensively on this, and then he said well, he said are you are sure of this, and he questioned me two or three times about it again. I said yes, there is no objection to cremation in the Catholic Church. I said it [sic] used to be some objection to it, but that has been removed. He said as long as you promise me that you will check and make sure that there is no objection to it, it’s all right by me. N.T. 179-80. Appellee said he did not change the will at that point, "[bjecause it was quite late and I had already written the will out once, and after that point I didn’t pursue it any further.” N.T. 180. However, he admitted that he called the funeral director and told him "as far as I know, I am named as the executor and there has been verbal instructions about cremation.” N.T. 181. The hearing judge then sustained an objection on relevancy grounds to a question as to whether Mr. Butler remembered stating to Mr. Gregory he would not pay for a ground funeral. Appellee’s conduct at the hospital with respect to the funeral arrangements certainly supports a finding of undue influence. Coupled with his conduct in drafting this will without witnesses, it shocks the conscience of this Court. . The doctrine of undue influence, which was expressly raised by contestant John Gregory, is a particular type of constructive fraud. It is an equitable remedy which may be pleaded in all cases where there is no coercion amounting to duress, but where a transaction is the result of a moral, social, or domestic force exerted upon a party controlling the free action of his will and preventing any true consent. See 2 Pomeroy’s Equity Jurisprudence (Fourth Ed.) § 951, at 2023-26. . It is apparent from a review of this record that the Orphans’ Court en banc was disturbed by this conduct but was influenced in its result by George Butler, Sr.'s excellent reputation as well as by the fact that "over the years" Mr. Butler had earned “the confidence of this Court.” While Mr. Butler’s reputation would be relevant in any disciplinary proceeding arising from the drafting of this will, it cannot stand as an acceptable excuse for unconscionable conduct in a court governed by equitable principles. . The Prothonotary is directed to furnish a certified copy of this Opinion to the Disciplinary Board for further proceedings as may be appropriate.

OPINION OF THE COURT CAPPY, Justice. This is an appeal by allowance from the Superior Court order reversing the PCRA court’s dismissal of Appellee Charles Kenney’s petition for post-conviction relief and remanding the case for trial. We reverse. Appellee was charged in three separate criminal informations with various felonies arising from three separate incidents occurring during a twenty-four hour period spanning December 14 and 15, 1985. The first incident involved a forcible entry into an apartment where he raped a woman then stole various items after she fled. This incident was the basis for charges of burglary, rape, involuntary deviate sexual intercourse, and theft. Appellee was charged with robbery in connection with the second incident, in which he entered a retail establishment and forced an employee to give him cash from a register. Finally, Appellee robbed a gas station, repeatedly shooting at an attendant, striking him in the chest and back, for which he was charged with robbery, aggravated assault and violating the Uniform Firearms Act. Appellee, represented by privately retained counsel Louis Coles, Esq., pleaded nolo contendere to each of the charges. Before accepting the plea, the trial court conducted a colloquy during which Appellee was informed of the maximum penalty for each charge but not of the fact that those sentences could be imposed consecutively. Appellee was then ordered to undergo a psychological and psychiatric evaluation at Fairview State Hospital for purposes of sentencing. He was discharged from the hospital in July, and on September 5, 1986, appeared for sentencing. Appellee was sentenced to five to ten years imprisonment on the charges stemming from the robbery and shooting at the gas station; six to twenty years imprisonment for the burglary, rape and theft; and two and one-half to five years imprisonment for the remaining robbery conviction. The sentences on the three informations were imposed consecutive to each other resulting in an aggregate term of thirteen and one-half to thirty-five years incarceration. After sentencing, Mr. Coles filed a motion to withdraw the nolo contendere plea and to withdraw as counsel, alleging his own ineffectiveness in failing to investigate possible defenses and failing to keep abreast of developments in the case. The trial court granted Mr. Coles’ motion to withdraw and appointed John H. Corbett, Jr., Esq., of the Allegheny County Public Defender Office to represent Appellee. The trial court denied the motion to withdraw the plea and Mr. Corbett filed a timely appeal in the Superior Court. Mr. Corbett raised two issues on appeal: whether the trial court erred in denying Appellee’s motion to withdraw his plea, and whether Mr. Coles was ineffective in failing to move to withdraw Appellee’s plea prior to sentencing. The Superior Court found no merit in either claim and affirmed the judgment of sentence in February 1988. Three years after his conviction became final, Appellee filed a 'pro se petition under the Post Conviction Relief Act (PCRA). The PCRA court appointed Robert Barrett, Esq., to represent Appellee, who filed a pleading indicating his intention to amend the petition, but took no further action in the ensuing two and one-half years. The PCRA court then appointed new counsel, Elizabeth Beroes, Esq., who filed an amended petition on Appellee’s behalf. The amended petition made several specific allegations of trial counsel’s ineffectiveness, dealing with his failure to properly investigate and litigate Appellee’s competence to assist in his defense, and the failure to challenge the legality of the sentence imposed. The PCRA court dismissed the petition, finding all the claims waived, and Ms. Beroes filed an appeal to the Superior Court. The Superior Court panel entered an order on May 15, 1995, indicating that it had received a brief from Ms. Beroes challenging the propriety of the PCRA court’s dismissal of the petition and subsequent motion for reconsideration without holding a hearing on either. The order concerned the court’s subsequent receipt of a pro se brief filed by Appellee challenging Ms. Beroes’ performance as PCRA counsel and affirmatively requesting her removal. The order was directed to the Superior Court Prothonotary instructing that office to forward the pro se brief to Ms. Beroes in accordance with Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990)(en banc), aff'd 534 Pa. 176, 626 A.2d 1137 (1993). On August 18, 1995, the Superior Court issued another order remanding the case to the PCRA court to conduct a hearing to “determine whether [Appellee] wishes to proceed pro se, with the assistance of a newly appointed counsel, privately retained counsel or not at all.” The order was issued in response to Appellee’s positive expression that he no longer desired to be represented by Ms. Beroes and the court’s view that the appellate brief filed by Ms. Beroes was “insufficient to facilitate substantive review of the issues before the PCRA court.” On remand, the PCRA court appointed Steven R. Tabano, Esq., who filed an appellate brief on Appellee’s behalf. In his brief to the Superior Court, Mr. Tabano raised five claims including the claim that counsel at trial and on direct appeal were ineffective in not objecting to the plea colloquy on the grounds that Appellee was not informed that the sentences on each information could be imposed consecutively. See Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992). This claim was not raised in the amended PCRA petition. Nevertheless, the Superior Court concluded that this ineffectiveness claim was meritorious and that prejudice must be presumed from such an error. The Superior Court remanded the case for a new trial, whereupon the Commonwealth filed the instant appeal. The Commonwealth first argues that this ineffectiveness claim was waived by virtue of Mr. Tabano’s failure to assert that PCRA counsel was ineffective for not raising this claim. “In order to preserve claims of ineffectiveness of counsel under the PCRA, the claims must be raised at the earliest stage in the proceedings at which the allegedly ineffective counsel is no longer representing the claimant.” Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167, 1170 (1994). Instantly, this rule was not observed since Appellee had two different attorneys appointed to represent him in the PCRA court. Neither of these attorneys raised the claim under Commonwealth v. Persinger, supra, upon which the Superior Court granted relief. This claim of trial and direct appeal counsels’ ineffectiveness regarding the Persinger claim was therefore waived in the PCRA court. In his appeal to the Superior Court, Appellee did not overcome this waiver by asserting PCRA counsel’s ineffectiveness in waiving the claim. See Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980). The Superior Court sidestepped this waiver with the observation that Ms. Beroes’ performance was “so clearly lacking as to not even constitute representation of appellant.” Memo Op. at 5 n. 2. This finding is conspicuously absent from the court’s August 18, 1995, Judgment Order pursuant to which Mr. Tabano was appointed. That order was clearly based upon the limited finding that Ms. Beroes’ appellate brief was deficient, as reflected by the order which envisioned the filing of a new brief in that court. Appointment of new appellate counsel is the appropriate remedy where PCRA appellate counsel’s deficient performance deprives one of the right to appeal. See Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (1989). Even accepting the accuracy of the Superior Court’s after-the-fact justification for addressing the merits of the instant claim, respectfully, we find that the court erred in addressing the merits of the Persinger claim. An indigent petitioner has the right to appointment of counsel to assist in prosecuting a first PCRA petition. Pa.R.Crim.P. 1504(a). Where that right has been effectively denied by the action of court or counsel, the petitioner is entitled to a remand to the PCRA court for appointment of counsel to prosecute the PCRA petition. Commonwealth v. Duffey, 551 Pa. 675, 713 A.2d 63 (1998); Commonwealth v. White, 449 Pa.Super. 386, 674 A.2d 253 (1996); Commonwealth v. Mosteller, 430 Pa.Super. 57, 633 A.2d 615 (1993). The remand serves to give the petitioner the benefit of competent counsel at each stage of post-conviction review. In reaching the merits of the instant claim by disregarding the proceedings in the PCRA court, the Superior Court acted as a secondary PCRA court. This was error. The Superior Court has no original jurisdiction in PCRA or other proceedings; therefore, its consideration of the claims raised by Mr. Tabano could only be achieved in furtherance of its appellate jurisdiction. See 42 Pa.C.S. §§ 741-42. An appellate court is limited to reviewing the record of the proceedings below for error. The actions of Ms. Beroes remain a part of that record, and the Superior Court’s consideration of this appeal has necessarily burdened Appellee with the task of seeking relief in the face of PCRA counsel’s deficient performance. Appellee clearly attacked the legal effectiveness of Ms. Beroes’ representation in the PCRA court in his pro se brief to the Superior Court. Yet, the Superior Court limited its remand order to the appointment of new counsel to prosecute the appeal, without regard to Appellee’s allegations regarding the crippling effect that Ms. Beroes’ shortcomings in the court below had on his ability to proceed with his claims at the appellate stage. As indicated, if the Superior Court agreed with Appellee that he had been wholly deprived of meaningful assistance of counsel in the PCRA court it should have directed the PCRA court to appoint new counsel to assist Appellee in prosecuting his claims in the lower court in furtherance of his right to competent appointed PCRA counsel under Pennsylvania Rule of Criminal Procedure 1504(a). If the court considered the record insufficient to adjudicate Appellee’s allegations against PCRA counsel, it should have remanded the case to the PCRA court to conduct further inquiry into the matter. For the foregoing reasons we reverse the order of the Superior Court and remand the case to that court to address the remaining issues raised in this appeal. Justice SAYLOR did not participate in the consideration or decision of this case. Justice ZAPPALA concurs in the result. Justice NIGRO files a Dissenting Opinion. . Appellee was involuntarily committed to Fairview State Hospital in the interim between sentencing and the filing of the motion to withdraw his plea due to severe depression and suicidal ideation. . Two appeals from the judgment of sentence had previously been filed on Appellee’s behalf by Mr. Coles and Mr. Corbett, respectively. The Superior Court dismissed these appeals, presumably because the trial court retained jurisdiction in the case. . 42 Pa.C.S. § 9541 etseq. . In this brief, Appellee stated: Elizabeth A. Beroes ... is and was ineffective. Her failure to recognize, properly brief and preserve the relevant issues during her representation, caused meritorious issues to be overlooked. Resulting in prejudice to appellant’s case and a promotion of a miscarriage of justice so blatant that, any meaningful opportunity for review of all the facts, issues, their underlying claims ... has been foregone or inadvertently waived as a result of P.C.R.A. and all prior counsel’s dereliction of duty. Order, dated May 15, 1995, at 1-2. . In Ellis, the Superior Court declared: If a pro se brief is filed in a counseled appeal, we direct the prothonotary to send the pro se brief to counsel who is best able to determine in her professional judgment which of the pro se’s issues should be presented for our review. Counsel may argue such pertinent issues in her brief to the court, or if the appellate brief has been filed, she may file a supplemental brief addressing those same issues. If the pro se brief alleges ineffectiveness of appellate counsel or an affirmative desire to be heard pro se, we direct counsel to petition this court to remand the case to the trial court so that it may conduct a full hearing in order to determine appellant’s knowing and intelligent waiver of his right to appellate counsel, and of his desire to proceed pro se, or in the case of ineffectiveness, an appointment of new counsel. Ellis, 581 A.2d at 600-01. This court recently clarified that an appellant has a constitutional right to dismiss appellate counsel, before a brief has been filed on his behalf, and prosecute the appeal pro se. Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

Opinion by Mr. Justice Mestrezat, We are of opinion that the learned judge of the court below was in error in withdrawing this case from the jury, and in not submitting to them to determine the negligence of the defendant as well as the concurring negligence of the plaintiff. The testimony produced at the trial and which we must assume to be true, tends to establish the following facts : John Reese, the plaintiff, was a puddler and for many years worked at his occupation in the rolling mills at Cleveland, Ohio. In October, 1886, he and other workmen were engaged in wrecking and tearing down furnaces at one of these mills. He was employed by, and was working for and under the immediate orders of, the defendant. The furnaces were erected in pairs, with the rear plates within eight inches or a foot of each other and resting on the same foundation, which is wider than the front foundation. The front, rear and sides were of cast iron plates bolted together, and were supported by a brick foundation about one foot and a half wide. The distance between the front and rear foundation walls was about five or six feet. The interior of the furnace was lined with brick, and the top was oval, also of brick. The front and rear plates were held together by connecting rods at the top and bottom of the furnace. At the time of the accident, the plaintiff had been engaged three weeks assisting in tearing down the furnaces, in removing the connecting rods, cutting the bolts which held the plates together, and in doing such other work as was necessary to completely dismantle the furnaces. He and another employee were at work removing brick from the front foundation of furnace No. 20, on October 30, 1886, when he was seriously injured by the rear plate of that furnace falling upon him. This plate consisted of four plates held together by bolts, weighed at least 1,800 pounds and stood six feet above the foundation. When, the day before the accident, it was disconnected from the front plate by cutting the rods which held them together, it was laid or inclined against the back of the furnace immediately in its rear. This was the only support it then had. The back plates of the two furnaces when perpendicular were three or four inches apart. Shortly before the plate fell the plaintiff was absent about half an hour at a blacksmith’s shop having a chisel sharpened. When he returned he found the plate shifted some from its former position. The defendant then told him to go and pick the brick out of the furnace, to hurry up about it, that he did not want the team to stand there. To this order the plaintiff said, “ I will, but the best wayis to take them plates down first.” The defendant then said, “ Go and do what I tell you to do, the plates is all right, I’m looking after them.” He received similar instructions from the defendant before he went to the blacksmith shop. At the last interview between the parties in regard to the plate, which was three or four minutes before the plate fell, the defendant was also told by another person that he ought to have the plates down, to which he replied that the plate was all right. His attention was also called to the plate by Eugene McCaffrey a short time before it fell, with the suggestion that it was dangerous to the men working on the furnace, and that if he, McCaffrey, had some lashing he could lash the plate so it would not fall. The defendant very emphatically told McCaffrey to attend to his own business, and that he would attend to the plate. Two years after the accident the defendant also said to McCaffrey that if he had taken his advice, the accident would not have happened. At the time the plaintiff was injured he was working with his back to the plate removing brick from the front foundation. This work had no effect, however, on the rear foundation on which the plate was resting. The plate fell on the plaintiff’s back and he fell forward on his face, receiving very severe injuries. It was resting on an old foundation, the top of which gave way and caused it to fall. The learned judge of the court below assigned no reason, so far as the record discloses, for granting the nonsuit, or for refusing to take it off. The appellant’s argument suggests that it was because the court thought the evidence in this case was substantially the same as that in Reese v. Clark, 146 Pa. 465. We have therefore stated the facts more fully than we otherwise would have done, so that the difference between the cases may be readily observed. We do not intend to question the doctrine announced by the court when the case was here before; we are merely applying the well settled principles of law to the facts as disclosed in the present case. It must be apparent from the most superficial view of the testimony in this case that the defendant’s action was the proximate cause of the accident to the plaintiff. The work of wrecking the furnaces was done under the immediate orders and supervision of the defendant. He was, therefore, familiar with the work as it progressed, and knew the dangers to which the workmen were subject. He knew the size of the plate in question, that it had been placed in a position very slightly reclining on an old brick wall the day before the accident. He was not only cognizant of these facts which might well have put him on inquiry as to the dangerous place in which he compelled his employees to labor, but he was distinctly notified of the peril to which he was subjecting the plaintiff and the other laborers engaged in dismantling the furnace. Unless, therefore, the plaintiff’s negligence contributed to his injury, the defendant should respond in damages for his negligent conduct. The plate was laid against the roar plate of another furnace the day before the accident, and the plaintiff knew this fact and the position the plate occupied. It is, therefore, contended by the defendant that if there was danger in working in front of it, the plaintiff knew it and assumed the risk. It is undoubtedly true that a servant assumes the risks naturally and reasonably incident to his employment. It will be conceded, also, as determined by all the authorities, that a servant who voluntarily undertakes a perilous employment, the dangerous character of which he is acquainted with or has the opportunity to learn, assumes the risks naturally and reasonably incident thereto. This doctrine is weil settled and generally recognized. But the difficulty here is that these principles are not applicable to the case in hand. Here we have an employee cognizant of an anticipated danger, it is true, but we also have the additional and most material fact that the employer not only knew the danger but in the face of it peremptorily commanded his servant to perform the service with the assurance that the alleged dangerous object was all right, and that he would look after it. The defendant therefore with a full knowledge of the facts, gave the plaintiff to understand that the plate was not dangerous by reason of the position it occupied, and that, by proper precautions, he would protect him from it. The plaintiff had seen this plate standing in this leaning position for more than a day, when the defendant commanded him to continue his work with assurances of protection. The danger therefore was not inevitable or imminent, and hence the plaintiff had a right to engage in the service and assume that the defendant would take the necessary care to protect him. As said by the court in Wagner v. Jayne Chemical Co., 147 Pa. 480, “When the superintendent assured him that they would not hurt him, he had the right to rely on that assurance and return to his work.” Instead of performing his duty in this respect by complying with his promise, the defendant had no sooner directed the work to proceed than he left his employees engaged in dismantling the furnace and went to his store. In either of two ways he could easily and readily have prevented the injuries to the plaintiff. The plate could have been thrown down before the plaintiff and his companion were put to work picking out the brick, as suggested by plaintiff, or it could have been made fast to the back plate of the other furnace, as McCaffrey thought should be done. The reason the former course was not pursued is found in the defendant’s declaration to Reese to “ Hurry up, I don’t want that team to wait all day.” McCaffrey’s advice was not taken, as in the opinion of the defendant the matter did not concern him. We think the facts in this case bring it within the well recognized rules laid down in the text books and in our own decisions. In Shearman & Redfield on Negligence (5th ed.), sec. 186, it is said: “ The true rule in this as in all other cases is, that if the master gives the servant to understand that he does not consider the risk one which a prudent person should refuse to undertake, the servant has a right to rely upon his master’s judgment, unless his own is so clearly opposed thereto that, in fact, he does not rely upon his- master’s opinion. ... A servant is not called upon to set up his own unaided judgment against that of his superiors; and he may rely upon their advice and still more upon their orders, notwithstanding many misgivings of his own. . . . The servant’s dependent and inferior position is to be taken into consideration; and if the master gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably or imminently dangerous.” In Patterson v. Pittsburg & Connellsville R. R. Co., 76 Pa. 398, Mr. Justice Gordon, delivering the opinion of the court, says: “ It is true the master is not responsible for accidents occurring to his servant from the ordinary risks and dangers which are incident to the business in which he is engaged ; for in such case the contract is presumed to be made with reference to such risks. But on the other hand where the master voluntarily subjects his servant to dangers such as in good faith he ought to provide against, he is liable for any accident arising therefrom (citing cases). ... In both these cases the defects from which the accidents arose were known to the employees, but as they were injured in the discharge of duties imposed upon them by their employers, such knowledge was adjudged not to raise a presumption of concurrent negligence. This doctrine is obviously just and proper. The servant does not stand on the same footing with the master. His primary duty is obedience and if when in the discharge of that duty he is damaged, through the neglect of the master, it is but meet that he should be recompensed. The general principle as recognized by our own cases, inter alia, Caldwell v. Brown, 53 Pa. 453, and Frazier v. Penna. R. Co., 2 Wright, 104, is that the employer is bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employees, and failing in this he is liable for any damages flowing from such neglect of duty. . . . But where the servant in obedience to the requirement of the master incurs the risk of machinery, which though dangerous is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill, the rule is different. In such case the master is liable for a resulting accident.” Mr. Justice Trtjnkey, delivering the opinion of the court in Lee v. Woolsey, 109 Pa. 127, says: “ When the plaintiff was hurt he was working under the eye and voice of his employer who was urging speed, and saying, ‘ All right.’ He might have looked to see whether the planks were removed, and he might have taken time to have placed the jack rafter at the foot of the gin pole before starting the horse; but is it reasonable to exact such care of a laborer when his employer suddenly comes into the place of a foreman, personally directs the work, and gives empathic orders to move quickly? The care to be exacted of the plaintiff is just that which laborers of ordinary prudence would exercise under like circumstances, and if the plaintiff did exercise it, his action shall not be defeated on the ground of concurrent negligence.” Applying these principles to the case in hand, we think the learned court should have submitted to the jury defendant’s negligence and the plaintiff’s contributory negligence. It may be, as urged by the defendant, that the plaintiff’s testimony in this case in some important particulars is different from what it was in the former case in which his right to recover for his injuries was denied; but if so, the remedy is with the jury, under proper instructions from the court below. We must determine the rights of the parties as disclosed by the testimony brought up with this record. The other assignments relate to the rejection by the court below of the opinions of certain witnesses called by the plaintiff. The testimony was properly excluded on the authority of Graham v. Penna. R. Co., 139 Pa. 149, and numerous other cases which follow it. In Graham v. Penna. R. Co., it was held that “in those matters where mere descriptive language is inadequate to convey to the jury the precise facts or their bearing on the issue, a witness may be allowed to supplement his description by his opinion, to put the jury in position to determine the facts in issue. But when the circumstances are such that they can be fully and accurately described to the jury, and their bearing on the issue estimated by persons without special knowledge, or training, opinions of witnesses, expert or other, are inadmissible.” There was no difficulty whatever in the witnesses in this case describing the conditions prevailing at the place and time of the accident so as to enable the jury to determine the facts sought to be elicited by the opinions of the witnesses. The second, third, fourth and fifth assignments are overruled and dismissed; the first assignment is sustained and the judgment is reversed with a venire facias de novo.

Opinion bt Mr. Chief Justice Mitchell, It appears by the case stated that the husband and wife were registered owners by entireties of the lot in question when the municipal lien was filed against the wife alone. Judgment on it was entered against her only, and though' the levari facias avérs that it is issued “with notice to John P. Reis” (the husband), yet, as said by the learned judge below, it does not appear that any such notice was given. As against the husband, therefore, the lien was a nullity, and the sale under it passed no title: Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337. There is no question involved about attacking a judgment collaterally, as the record shows the want of jurisdiction in the court to render: such judgment. When, therefore, the wife bought at the sale she bought nothing that she did not have before, her own right of survivorship. But even if the whole title-had been divested by the sale she would have bought under an obligation as trustee for her husband as cotenant, and could not have ousted him in that way. She therefore acquired nothing as against him by the sale. Coming now to the main question in the case, we are of opinion that the court below erred in holding that the estate by entireties was severed by the subsequent divorce of the husband and wife. The subject is very bare of authorities. The law as to divorce prevented this question from arising in the earlier English cases, and in the few cases reported in this country the decisions, all more or less affected by statutes, are at variance, with no clear' preponderance in either way. Lewis’s Appeal, 85 Mich. 340, may be regarded as the best discussion in favor of the view that the nature of the estate is not changed, and Ames v. Norman, 36,Tenn. 683, as the best on the other side. The question has not previously come before this court, and we are left to decide it on general principles. An estate by entireties is one held by husband and v\7ife by virthe of title acquired by them jointly after marriage. Be-/ ing regarded as one person in law they take not in parts or shares, like joint tenants or tenants in common, but each takes the whole, or in the ancient phrase they are seized, not per mie et per tout, but per tout only. Incident to this estate as to joint tenancy is the right of survivorship, with this difference, that on the death of husband or wife the survivor takes no new title or estate; he or she is in possession of the whole from its inception. It was early held that our act of March 31, 1812, 5 Sm. L. 395, abolishing survivorship in joint tenancy, did not affect estates by entireties: Robb v. Beaver, 8 W. & S. 107 (111); and the same view has been taken of the married women’s Acts of April 11, 1848, P. L. 536, and later: Diver v. Diver, 56 Pa. 106; Bramberry’s Est., 156 Pa. 628. The general subject of estates by entireties is learnedly discussed by Lewis, C. J., in Stuckey v. Keefe’s Exrs., 26 Pa. 397, our leading case. It was there held that a conveyance to husband and wife, their heirs and assigns, “ as tenants in common and not as joint tenants ” created an estate by entireties, and the opinion was strongly expressed that the estate arose by virtue of “ a rule of law founded on the rights and incapacities of the matrimonial union ” and therefore that the intention was immaterial. No subsequent case has gone so far, and in Merritt v. Whitlock, 200 Pa. 50, it was said that it may be considered as still an open question whether husband and wife may not, since the married women’s property acts, take as well as hold in common if that be the clear actual intent, notwithstanding the presumption to the contrary. /The argument for the change by divorce from an estate by entireties to a tenancy in common rests on the assumption that as the basis of the estate is the unity of person, a severance of that unity carries with it a severance of the estate; that as after divorce an estate by entireties could not be created between the parties it cannot be continued./ But this view fails to give due weight to the rule that £he quality of the estate is determined at its inception. It arises not out of unity of person alone, but out of unity of person at the time of the grant. “ If an estate be made to a man and woman and their heires, before marriage, and after (wards) they marry, the husband and wife have moities between them: ” Coke Litt. 187b; and see 2 Cruise’s Digest, 494 and 2 Plowden, 483, cited in Stuckey v. Keefe’s Exrs., 26 Pa. 397. No stronger illustration could be given. /If subsequent unity of person cannot change a tenancy in common to one by entireties, e converso a subsequent severance of the unity of person ought not to change a tenancy by entireties to one in common. In entire accordance is our latest case, Hetzel v. Lincoln, 2Í 6 Pa. 60, where a conveyance to husband and wife “ jointly ” was held to create an estate by entireties which continued with its incident of survivorship, although the husband had conveyed his interest to the wife as “ the undivided one half ” and they had subsequently executed a mortgage in which the conveyance by the husband was referred to. A creditor had obtained a judgment against the husband and after his death sought to revive it against his administrator, with notice to the wife as terre-tenant, on the ground that they had become tenants in common, but it was held that he could take nothing. “ Whatever may have been the intention of the husband ” said our Brother Brown, “ the right of the wife was fixed by the deed from Reed. By it each held an entirety and upon the death of either the estate would vest absolutely in tbe other as the survivor. The husband conveyed nothing to the wife that she would not have enjoyed if she survived him, which she did.” The decisions and the statutes, referred to antea, go to show that in regard to the nature and qualities of an estate by entireties the general rule of law applies that they are determined at the inception of the estate. In the present case, therefore, the parties took an estate by entireties at the time of the grant. By it the husband took a vested estate' to which was incident a right of survivorship. That estate could not be divested, or stripped of any of its incidents except by express statutory provision existing at tbe time of its inception. The divorce severed the unity of person for the future but it could not avail retrospectively to sever the vested unity of title and possession. The learned court below gave much weight to the judgment of rule absolute to bring ejectment. But the rule was a nullity. By the terms of the statute it was a rule to bring ejectment or “ show cause why the same cannot be so brought.” The petition for the rule disclosed that the parties held by entireties, and that the petitioner had no other or better title than the husband upon whom the rule was asked. "Without regard to actual occupation the husband was in legal possession and could not bring ejectment against his cotenant; Martin v. Jackson, 27 Pa. 504; and the court could not make a vain order requiring him to do what the law determined he could not do. The petitioner’s occupation could not be adverse, because no matter how long continued it was in entire accordance with her husband’s title as well as her own. The act of 1889 is an act to facilitate the settlement of disputed or disputable claims to land. But it was not intended to overturn the settled principles of law. As the petition showed that the rule asked for, even if granted, would have to be discharged the rule should not have been granted. Ordinarily questions of title await the return of the rule for disposition: Titus v. Bindley, 210 Pa. 121; Pearl v. Johnstown, 216 Pa. 205. But in the present case that was unnecessary and the default providéd for in the statute, the failure to appear and answer, was immaterial, because the face of the record already answered the requirement of the rule by showing “ cause why the ejectment cannot be so brought.” Judgment reversed and judgment directed to be entered for defendant.

Opinion by Mr. Justice Linn, This appeal is from a declaratory judgment that the petitioning trustees have the right to invest trust property in common and preferred stock of corporations. Testator died November 13, 1927, leaving a will dated December 29, 1925. He gave two-thirds of the residue of his estate to trustees to pay the income to certain persons for life and then to distribute the principal. While the entire fifth article of the will must be considered in dealing with the powers vested by the testator in his trustees, it will be sufficient for present purposes to quote paragraph 3 of that article : “3. To invest and reinvest, alter, vary and change investments and rein-vestments from time to time, at discretion, without confining my Trustees to what are known as Legal Investments. I authorize my Trustees, in their discretion, to retain without liability, any of my investments in the form in which they may be at the time of my decease.” The account of the executors was adjudicated November 7, 1928, and $494,442.52 in cash and property was awarded to the trustees. On June 15, 1936, they filed this petition for a declaration that they were authorized to invest in shares of stock. It contained the following averments: “4. By reason of the fact that at this time there are very few good first mortgage loans available for investment and other forms of investment, such as government and municipal bonds, by reason of their low rate of interest or the high premium that must be paid, produce a very low rate of income, it is the desire and intent of your petitioners from time to time as occasion may warrant, and out of funds properly available for the purpose, to invest a portion of the corpus of the estate in such high grade stocks either common or preferred of sound corporations as they may deem proper for such investment. “5. Because of the fact, however, that there is no specific or direct authority or instruction under the terms of the Will thus to invest any of the estate in such stocks, and in order to protect your petitioners in the future from any claim of surcharge that might arise merely from the fact of such investment, it is the desire of your petitioners to obtain from your Honorable Court a judgment declaratory of their rights and powers in the premises in accordance with the provisions of the ‘Uniform Declaratory Judgments Act’ of June 18, 1923, P. L. 840, as amended by the Act of April 25, 1935, P. L. 72, and supplemented by the Act of May 22,1935, P. L. 228. “6. . . . “7. The said guardian and trustee ad litem [now the appellant] by writing hereto annexed has acknowledged receipt of notice of the intended presentation of this petition, admitted the facts set forth, but denied the rights of your petitioners thus to invest as aforesaid. “8. Wherefore a substantial dispute exists between the parties interested in this estate as to the rights of your petitioners to invest any portion of the corpus thereof in the common or preferred stocks of corporations.” We think the petition should have been dismissed, as not presenting a case justifying the declaration made. The measure of care or standard of duty required of a testamentary trustee is well settled. “Common skill and common prudence, as is said in the many cases cited, are all that the law demands of a trustee; that is, the common skill and prudence of an investor of money to be safely kept with such reasonable income as is commensurate with safety of the principal”: Hart’s Estate, 203 Pa. 480, 486, 53 A. 364. See also Detre’s Estate, 273 Pa. 341, 350, 117 A. 54; Taylor’s Estate, 277 Pa. 518, 121 A. 310; Drueding et al. v. Tradesmens B. & T. Co., 319 Pa. 144, 147, 179 A. 229. If a trust investment is properly questioned, the burden of showing the wisdom or propriety of his conduct in making it is on the trustee. It is at that time and in that proceeding that the discretion exercised by him will be scrutinized in the light of the will and of the Fiduciaries Act. The primary inquiry will be whether he has performed according to the recognized standard applied to the facts that existed at the time of the investment. In considering the matter, a subordinate question may in some cases be involved, whether (as petitioners claim here) the will shows that the testator enlarged the field of investment and to that extent relieved his trustees from the restrictions imposed by the statute. But it is when the court deals with the principal question that the subordinate one will be decided. Petitioners now desire a decision of what in some future proceeding may or may not be a subordinate question. It is easy to see that in some circumstances such a question cannot arise, and that in others in which it may arise, the facts on which it may then be presented cannot be anticipated. The contingent character of the circumstances presented by petitioners takes the case out of the class in which the court will enter declaratory judgments. The court is not vested with jurisdiction to give advice merely: Cryan’s Estate, 301 Pa. 386, 391, 152 A. 675. In Kariher’s Petition, 284 Pa. 455, at p. 471, 131 A. 265, it is said: . .in all jurisdictions where declaratory-judgment practice obtains, the rule is established that it is a matter of judicial discretion whether or not jurisdiction will be taken of any particular case.” Section 6 of the Act, as amended April 25,1935, P. L. 72, says that a declaration may be made: “Relief by declaratory judgment or decree may be granted in all civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree will serve to terminate the uncertainty or controversy giving rise to the proceeding.” Before granting a petition the court must be satisfied, that is, must reach a conclusion in the exercise of judicial discretion. We think there is nothing on this record to sustain a declaration; there is no actual controversy; there may be one some day if the trustees fail in the measure of their duty with resulting loss; but the circumstances cannot be anticipated, and without them there is no “actual controversy” on the point; the record does not present antagonistic claims indicating “imminent and inevitable litigation.” The parties may differ on what the will means, but that is not enough to support the declaration made. The contingent character of what is proposed by the trustees appears in their petition. Paragraph 4, quoted above, shows they have not made up their minds that such investments are necessary or desirable or that they would be made if the declaration were granted; their averment that “it is the desire and intent of your petitioners from time to time as occasion may warrant, and out of funds properly available for the purpose, to invest a portion of the corpus of the estate in such high grade stocks either common or preferred of sound corporations as they may deem proper” contain several contingencies, any one of which, happening might reduce the decree, if granted, to mere advice; they may never find the shares of stock in which they would invest, or, if they find them, may not then have the funds available. Moreover, if the desired declaration were made and acted on and the investment were subsequently challenged for resulting loss, the trustees would still be required to justify the wisdom and propriety of their selection. Generally a cause of action may not be split into parts; until a trustee has acted, has exercised his powers by investing, the court has nothing from which to determine whether his act as a whole shall be confirmed or whether he must bear the loss; there must be a real controversy. Compare Straus’s Estate, 307 Pa. 454, 457, 161 A. 547. The judgment appealed from is reversed and the petition is dismissed, costs to be paid out of the principal of the estate. The entire article will be found in the opinion of the court below, 28 D. & C. Rep. 66. On this subject see Sterrett’s Estate, 300 Pa. 116, 150 A. 159; Reese v. Adamson, 297 Pa. 13, 146 A. 262; Pittsburgh's Consolidated City Charter, 297 Pa. 502, 147 A. 525; Wagner v. Somerset Co., 96 Pa. Superior Ct. 434; Heller v. Shapiro, 208 Wisconsin 310, 242 N. W. 174. In comments u and v to Section 227, Restatement, Trusts, it is said “An authorization to invest in securities, however, does not of itself empower the trustee to make an investment which would not be made by a prudent man dealing with his own property and having primarily in view the preservation of the trust estate and the amount and regularity of the income to be derived. “v. An authorization by the terms of the trust to invest in a- particular type'of security does not mean that any investment in securities of that type is proper. The trustee must use care and skill and caution in making the selection. Thus, if the trustee is authorized by the terms of the trust to invest in railroad bonds, he is guilty of a breach of trust if he invests in bonds of a railroad company in which a prudent man would not invest because of the financial condition of the company.”

Opinion by Senior Judge Rogers, This is an appeal from an order of the Insurance Commissioner (Commissioner) affirming the Insurance Departments determination upholding State Farm Mutual Automobile Insurance Company’s (Company) decision not to renew the automobile insurance policy of Daniel M. Samilo. After a hearing, the Commissioner made the following pertinent findings of fact: 1. On July 19, 1984, State Farm mailed to Samilo a Notice of Nonrenewal advising him that his automobile insurance policy, No. 581 3561-C03-38D, would not be renewed effective September 3, 1984 at 12:01 a.m. Standard Time. 2. The reasons set forth in the Notice referred to above in Finding of Fact No. 1 for State Farm’s nonrenewal of Samilo’s auomobile insurance policy were: Use of alcoholic beverages to the extent that it materially increases the probability of loss. 12/2/83 Accident—Hit a parked car—drinking involved—PD # 1869, Collision # 6473. 3. On August 6, 1984, Samilo requested the Pennsylvania Insurance Commissioner to review State Farm’s nonrenewal. 4. On September 6, 1984, the Insurance Department upheld State Farm’s nonrenewal of Samilo’s automobile insurance policy, and by letter dated September 11, 1984, Samilo requested a formal administrative hearing. . . . 6. At the hearing on November 29, 1984, Samilo admitted that he did have an automobile accident on December 2, 1983, . . . and that the amounts listed in the Notice as payment of claims by State Farm appear to be correct. 8. Samilo admitted at the November 29, 1984 hearing that his drinking of alcoholic beverages was involved in the December 2, 1983 accident. Samilo argues that the Commissioner committed an error of law in upholding the nonrenewal in violation of the Act of June 5, 1968 (Act 78), P.L. 140, as amended, 40 P.S. §§1008.1—1008.11. Samilo claims that the Company relied solely on his December 2, 1983 accident in its decision not to renew the policy in violation of Section 3(b) of Act 78, 40 P.S. §1008.3(b), which provides: No insurer shall cancel or refuse to renew a policy of automobile insurance on the basis of one accident within the thirty-six month period prior to the upcoming anniversary date of the policy. The Company claims that its nonrenewal action was not based upon the occurrence of a single accident, but rather upon the feet that Samilos drinking of alcoholic beverages was involved in the December 2, 1983 accident. The nonrenewal notice mailed to Samilo stated that the use of alcoholic beverages and an accident involving drinking were the reasons for the insurers decision not to renew. The decision clearly was not based merely on the occurrence of the accident, but rather on the feet that Samilo was drinking alcohol while driving. Section 3 of Act 78 lists specific reasons which may not be used by an insurer to refuse to renew a policy of automobile insurance. Drinking while driving is not among those listed. Where some things are specifically designated in a statute, things omitted should be understood as hav ing been excluded; this principle is that expressed by the maxim “expressio unius est exclusio alterius.” Latella v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 14, 459 A.2d 464 (1983). Any good reason not specifically stated in Section 3 of Act 78 as a reason for refusing to renew a policy may be considered by the insurer in its determination regarding renewal. At the hearing Samilo testified that drinking was involved in the December 2, 1983 accident. A witness for the Company testified that Samilos drinking of alcohol while driving represented a materially increased risk of loss which the insurer did not wish to continue to insure. The Company was entitled to refuse to renew Samilos policy based on his concession that he had an accident while under the influence of intoxicating drink. Order affirmed. Order And Now, this 17th day of June, 1986, the order of the Insurance Department in the above-captioned matter is affirmed. Samilo was charged with driving under the influence of alcohol. He was placed in an Accelerated Rehabilitative Disposition program and the charges against him were dismissed. The charges against Samilo were not listed as a reason for nonrenewal on the notice and were not considered by the insurer in its decision not to renew.

Opinion by Mr. Justice Brown, By the Act of May 31, 1907, P. L. 329, the salaries of real estate assessors in counties having a population of 1,000,000 or over were fixed at $3,000 per annum. At the time of the approval of this act the appellant was one of the real estate assessors of the county of Philadelphia, to which the act applied, having been appointed on December 31, 1903, to serve for a period of five years from the date of his appointment. His salary, as fixed by the act of April 12, 1873, was $2,000 per annum, and the court of common pleas, sustained by the Superior Court (Richie v. Philadelphia, 37 Pa. Superior Ct. 190), denied him the increase claimed under the act of May 31, 1907, on the ground that its provisions did not extend to him in view of sec. 13, art. Ill, of the constitution, which prohibits the increase of the salary or emoluments of any public officer after his election or appointment. Two reasons are assigned why the judgment of the Superior Court should not be sustained. The first is that the clause in the constitution prohibiting the increase of the salary of a public officer after his election or appointment applies only to public officers who hold constitutional offices. A real estate assessor is not such an officer, for his office is not one of those named in the constitution, and a clear distinction is recognized by our cases between a constitutional office enjoying exemption from legislative interference and control and one wholly legislative, created and abolished at the legislative will. This distinction, however, is not the real question before us. What we are again called upon to decide is whether the thirteenth section of the third article of the constitution is broad enough, and was so intended by the framers of the constitution, to extend to all public officers (except those saved by the constitution itself) upon whom grave and important duties are imposed for a fixed term, and who, for the proper performance of the same, have, during the term of their election or appointment, delegated to them some of the functions of government. The third article of the constitution is, throughout its thirty-three sections, a restraint upon the powers of the general assembly, and if its thirteenth section was intended to apply only to the comparatively few offices created by the constitution, with which alone state, county and municipal government could not be administered, such intention- would certainly have found expression somewhere in the article upon legislation. That the narrow construction for which the learned counsel for the appellant contend is not to be placed upon the thirteenth section we have distinctly ruled in two cases, and substantially so in others. In Brooke v. Commonwealth, 86 Pa. 163, the suggestion upon which the writ of quo warranto issued averred that on July 8, 1875, Downing, a member of select council from one of the wards of Philadelphia, had resigned; that by the laws in existence at the time of his election his term of office would have expired on the first Monday of January, 1877; that by virtue of the act of March 10, 1875, passed after his election, his term of office had been extended to the first Monday of April, 1877. The answer of respondent was that Downing’s term had not been affected by the act of March 10, 1875, because of the constitutional provision that no law shall extend the term of any public officer after his election. The demurrer to the answer having been overruled by the court below and a writ of error taken to this court, we said in sustaining the demurrer: “Under the law in force at his election, Downing’s term expired in January, 1877. The constitution of 1874 forbade his extension by legislative enactment.” Subsequently, in Houseman v. The Commonwealth, 100 Pa. 222, in answer to the contention that municipal officers were not intended to be embraced in the term “officer” as used in sec. 4, art. VI, of the constitution, which provides that all officers shall hold their offices during good behavior, and appointed officers, other than judges of the courts of record and the superintendent of public instruction, may be removed at the pleasure of the power by which they are appointed, we said, through Green, J., that the words “office,” “officers” and “any public officer” mentioned in sec. 13, art. Ill, of the constitution, “are used with a generality of expression which plainly includes those of the state, county and municipality;” and it is to be regarded as settled that an office is a public one within the meaning of the constitution if the holder of it exercises grave public functions and is clothed at the time being with some of the powers of sovereignty. The second reason urged why the appellant should have judgment is that, even if the constitutional prohibition is not limited to constitutional officers, he is not a public officer. In every case in which the question arises whether the holder of an office is to be regarded as a public officer within the meaning of the constitution, that question must be determined by a consideration of the nature of the service to be performed for the incumbent and of the duties imposed upon him, and whenever it appears that those duties are of a grave and important character, involving in the proper performance of them some of the functions- of government, the officer charged with them is clearly to be regarded as a public one. In the performance of his statutory duties this appellant fixed, in the first instance, the values of properties as the basis upon which they were to be assessed for the purpose of raising revenues for the maintenance of the city and county governments and the support of the public schools. In passing judgment upon these values it may be said that he exercised semi-judicial functions, the proper exercise of which was of the gravest importance to the entire community. By the proper test he was held by both the common pleas and Superior Court to have been a public officer in commission at the time of the passage of the act of 1907, and, in vindication of the judgment of the Superior Court nothing is to be added to the following from its opinion: “The second contention is that even if the constitutional prohibition is applicable to legislative as well as constitutional officers, nevertheless, a real estate assessor cannot be properly considered a public officer. It is no doubt true that there are many persons engaged in the public service in subordinate positions exercising functions of such an inferior character that they could not be properly considered public officers within the meaning of the constitution; this much is indicated in Com. v. Black, 201 Pa. 433, and Houseman v. Com., 100 Pa. 222, in the latter of which the court expressed the opinion that policemen, firemen, watchmen and superintendents of public property under the orders of the municipal department were subordinate ministerial agents or employees, at the most, petty officers not intended to be embraced in the constitutional provision, and, therefore, subject to appointment and removal according to legislative regulation. Where, however, the officer exercises important public duties and has delegated to him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a public officer. The powers and duties attached to the position manifest its character. A consideration of the duties imposed upon real estate assessors leaves no doubt in our minds that the relation which they sustain to the maintenance of government is of such consequence that they should be considered public officers. The functions which they perform are of prime importance. Their duties are designated by statute; they serve for a fixed period; act under oath, the duties they perform are semi-judicial in character and theii; services are indispensable in the fiscal system as established by the state. It was decided in Williamson’s Est., 153 Pa. 508, that assessment is primarily the work of the assessors, axxd the powers of the board of x’e vision extend only to the work of revision. If the assessor neglect to put a valuation on any property he has listed the board may supply the omission, and where property that should have been assessed has been overlooked by the assessor the boai’d may place it on the list and fix its value. Their only authority, to make a valuation exists where the assessors have omitted to make it. The assessors alone are invested with power to list the property and fix its value in the first instance. A proper discharge of their duties is a matter of great consequence to the taxable inhabitants and involves judgment, intelligence, integrity and a wide knowledge of values. That the office was considered important is shown by the limited number of such officials in the city of Philadelphia and the considerable compensation accorded, to them. The duties imposed place them in a position of such dignity and responsibility that they may well be considered public officers and as such subject to the operation of sec. 13 of art. III of the constitution.” No one of the cases cited in support of appellant’s contentions conflicts with the foregoing views. It may be proper to refer to two of them upon which great reliance seems to be placed. In Kilgore v. Magee, 85 Pa. 401, the question whether the appellant was a public officer within the meaning of sec. 13, art. III, of the constitution was not discussed in the opinion of the court overruling the five specific objections to the constitutionality of the act under consideration. The decrees were on demurrers to the bills, from the face of which it evidently did not appear to the court that Kilgore was a public officer. At all events, it was said of him that he was filling the place of a mere public servant of the municipality. In the very next volume of the reports, Brooke v. Commonwealth, supra, a member of council — a municipal officer, but one clothed with legislative functions — was held to be a public officer within the terms of the constitution. The question in Com. v. Weir, 165 Pa. 284, was not as to the extension of the term of the chief burgess, but as to its curtailment. The constitutional restriction is not upon the abridgment or abrogation of a non-constitutional public office, but upon the extension of the same. Weir’s office was abridged, and, in abridging, it, the legislature violated no constitutional prohibition. “If the provision were 'no law shall abridge the term of any public officer,’ it might well be contended that what cannot be curtailed cannot be abrogated, but the instrument contains no such language. The salary 'may not be increased or diminished,’ but what is declared of the term is simply that it 'shall not be extended.’ To say that this means that the office shall not be abolished, or its duration shortened, would be to wrest the words of the organic law to a purpose which it does not disclose: Hare, J., in Donohugh v. Roberts, 11 W. N. C. 186. For the reason thus given by this very learned judge the constitutional prohibition was not violated in the Weir case. The assignment of error is overruled and the judgment for the appellee is affirmed.

Opinion by Me. Chief Justice Jones, These appeals grow out of a viewers’ proceeding instituted by the plaintiff as owner of land neighboring the Greater Pittsburgh Airport to recover damages from the County of Allegheny, the owner and operator of the airport, for an alleged appropriation of the plaintiff’s land because of a substantial interference with the use and enjoyment of it caused by flights of aircraft at low altitudes, through the air space above the land, when taking off or landing at the airport. The Greater Pittsburgh Airport was opened for commercial air travel on June 1, 1952. At that time, Thomas N. Griggs, the plaintiff, was the owner of a nearby tract of land containing 19.161 acres improved with a house, two cottages, a four-car garage with liv ing apartment overhead, and certain outbuildings. Part of the Griggs property lay under an “approach area” for the airport’s northeast-southwest runway. On May 29, 1958, Griggs petitioned the Court of Common Pleas of Allegheny County for the appointment of viewers to assess the damages caused by an alleged taking of his land by the County of Allegheny on June 1,1952. The petitioner averred that, since the opening of the airport for commercial use, aircraft of several air lines, upon taking off and landing at the airport, have frequently and continuously flown through the air space above his land at an elevation of less than 500 feet; that as the result of such flights, “the use and enjoyment of [his] property have been interfered with by reason of the possible danger of the low flights, the noise and vibrations which they cause, their lights pointing at the premises at night time and interference with sleep and rest”; and that the property has been thereby “greatly damaged and depreciated in value.” The court appointed a board of view which sat for the purpose of its appointment, heard testimony offered by the claimant, and awarded him damages in the sum of §12,690. Griggs filed exceptions to the viewers’ report alleging that the viewers had unlawfully disregarded the expect testimony adduced by him as to the damages to his property which was the only testimony offered before the viewers on that issue. He also appealed the award to the Court of Common Pleas of Allegheny County where the question of damages would be heard de novo. The county, contending that it was not liable for any damage allegedly suffered by the claimant, offered no testimony before the board of viewers on the issue of property value. The county filed exceptions to the viewers’ award to Griggs setting forth therein that, based upon the viewers’ findings of fact, there was no taking of Griggs’ property by the County. The court below dismissed all exceptions of both parties from which action each of the parties took an appeal to this court pursuant to Section 2628 of the Second 'Class County Code of July 28, 1953, P. L. 723, 16 PS §5623. It is clear that a property owner may petition the court for the appointment of viewers to assess and award .damages against an entity clothed with the powér of eminent domain where such entity effects a “taking” of the petitioner’s property whether or not the appropriator has followed the statutorily provided condemnation procedure. Rosenblatt v. Pennsylvania Turnpike Commission, 398 Pa. 111, 126-127, 157 A. 2d 182; Philadelphia Parkway, 250 Pa. 257, 264-265, 95 Atl. 429; Barron’s Use v. United Railway Co., 93 Pa. Superior Ct. 555, 557-558. A “taking” occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property. Miller v. Beaver Falls, 368 Pa. 189, 196-197, 82 A. 2d 34; Creasy v. Stevens, 160 F. Supp. 404, 410-412. Paragraph 12 of Griggs’ petition for the appointment of viewers admits that the county has not condemned his land by way of the statutorily authorized procedure. What the claimant attempted to show at the hearing before the viewers was that the county had substantially deprived him of the beneficial use and enjoyment of his property. Assuming, for present purposes, that he has shown a substantial deprivation of the beneficial use and enjoyment of his property, we shall proceed at once to a consideration of the basic question raised by tbe county’s appeal as to whether such deprivation was, as a matter of law, caused by the County of Allegheny. The county, relying on findings of fact by the viewers that no flights of aircraft were shown to be in violation of any regulation of the Civil Aeronautics Administration and that no flights were shown to be lower than necessary for a safe landing or take-off, contends that all of the complained of flights were through air space which the United States Congress placed within the public domain and that, therefore, any taking of Griggs’ property was by the federal government and not by the County of Allegheny. Section 10 of the Air Commerce Act of May 20, 1926, 44 Stat. 568, as amended, 49 U.S.C.A., §180, provides as follows: “As used in this Act, the term ‘navigable airspace’ means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority, and such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation in conformity with the requirements of said sections.” Section 3 of the Civil Aeronautics Act of June 23, 1938, 52 Stat. 973, 49 U.S.C.A., §403, states that “There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce through the navigable air space of the United States.” (Emphasis supplied) Section 1 (24) of the Act, 49 U.S.C.A., §401(24), defines “navigable air space” as follows: “ ‘Navigable air space’ means air space above the minimum altitudes of flight prescribed by regulations issued under this Act.” Pursuant to authority granted by the Civil Aeronautics Act of 1938, the Civil Aeronautics Board issued Civil Air Regulations (14 C.E.R., Parts 1-190). Among these Regulations, Section 60.17, Part 60 (Air Traffic Rules), which establishes minimum safe altitudes of flight at 1000 feet over congested areas and 500 feet over other than congested areas, is prefaced with the following: “Except when necessary for takeoff or landing, no person shall operate an aircraft below the following altitudes:”. The County of Allegheny contends that this exception means that minimum safe altitudes of flight for take-offs and landings have been established at the heights necessary for these purposes. The county concludes, therefore, that the “navigable air space” which Congress placed within the public domain includes all air space needed by an airplane for take-off or landing. While the conclusion has the rationale of reality to support it, we are precluded from adopting it by the Supreme Court’s interpretation of similar regulations in United States v. Causby, 328 U. S. 256 (1946). The decision in that case upheld the claimant’s right to damages from the United States for a taking of certain of his property located near an airport because of a substantial interference with his use and enjoyment of it by low flights of U. S. military planes, when taking off from or landing at the airport. In answer to an argument similar to that which the County of Allegheny makes here, the Supreme Court said (at pp. 263-264), “The fact that the path of glide taken by the planes was approved by the Civil Aeronautics Authority does not change the result. The navigable airspace which Congress has placed in the public domain is 'airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.’ 49 U.S.C., sec. 180. If that agency prescribed 83 feet [the height at which the planes passed over Causby’s land] as the minimum safe altitude, then we would have presented the question of the validity of the regulation. But nothing of the sort has been done. The path of glide governs the method of operating — of landing or taking off. The altitude required for that operation is not the minimum safe altitude of flight which is the downward reach of the navigable airspace. The minimum prescribed by the Authority is 500 feet during the day and 1,000 feet at night for air carriers {Civil Air Regulations, Pt. 61, sections 61.7400, 61.7401, Code Fed. Reg. Cum. Supp., Tit. 14, ch. 1), and from 300 feet to 1,000 feet for other aircraft, depending on the type of plane and the character of the terrain. Id. Pt. 60, sections 60.350-60.3505, Fed. Reg. Cum. Supp., supra. Hence, the flights in question were not within the navigable airspace which Congress placed within the public domain. If any airspace needed for landing or taking off were included, flights which were so close to the land as to render it uninhabitable would be immune. But the United States concedes, as we have said, that in that event there would be a taking. Thus, it is apparent that the path of glide is not the minimum safe altitude of flight within the meaning of the statute. The Civil Aeronautics Authority has, of course, the power to prescribe air traffic rules. But Congress has defined navigable airspace only in terms of one of them — the minimum safe altitudes of flight.” Thus, the Supreme Court has held that the navigable air space which Congress placed in the public domain does not include the path of glide for an airplane’s take-off or landing. As we are, of course, bound by the Supreme Court’s interpretation of the federal statutes involved, we are, perforce, required to reject the County’s contention that navigable air space, as employed by Congress, includes the area necessary for an airplane’s take-off or landing in safety. But, even though the complained of flights were not through air space which was part of the public domain, the record does not show that the County of Allegheny was the efficient legal cause of any damage resulting from the flights. Griggs testified at the hearing before the viewers that the airplanes of several commercial air lines flew over his land at low altitudes. But, he offered no proof that any of these planes were owned by the County of Allegheny or operated by its agents. Indeed, the viewers found as a fact that “There is no evidence of any control exercised over any aircraft by the County of Allegheny.” That finding, supported as it is by the record, precludes the claimant from recovering against the County in this proceeding. In unwarrantedly awarding damages to Griggs, the viewers relied upon a finding of fact that the County, in compliance with rules and regulations of the Civil Aeronautics Authority, drafted a “Master Plan,” showing an “approach area” over part of Griggs’ property, which plan was submitted to and approved by the Civil Aeronautics Authority. But the drafting, submission, and approval of the plan did not give the County an easement of avigation over Griggs’ property, nor was any evidence offered to show that such action deprived Griggs of any use and enjoyment of Ms property, substantially or otherwise. It is true that in United States v. Causby, supra, the United States was held to have effected a taking of certain property neighboring an airport. But there the United States owned and its agents operated the aircraft which caused the deprivation of the owner’s use and enjoyment of the neighboring property. The airport itself was owned by the Greensboro-High Point Municipal Authority, which had leased to the United States Government the right to use the field “concurrently, jointly, and in common” with other users. The Supreme Court in the Gausby opinion did not indicate who actually maintained and operated the airport, evidently considering this point irrelevant. For Griggs to make use of United States v. Causby, supra, as a precedent, it would seem that he should look for relief to the owners or operators of the aircraft which have made the complained of flights through the air space above his land. Such relief is contemplated by Section 403 of the Aeronautical Code of May 25, 1933, P. L. 1001, 2 PH. §1469, which provides, in part, as follows: “The owner and the pilot, or either of them, of every aircraft which is operated over the lands or waters of this Commonwealth, shall be liable for injuries or damage to persons or property on or over the land or water beneath, caused by the ascent, descent, or flight of aircraft, or the dropping or falling of any object therefrom, in accordance with the rules of law applicable to torts on land in this Commonwealth.” Commercial air lines are not, of course, clothed with the power of eminent domain and cannot, therefore, be proceeded against by a complaining land owner through a viewers’ proceeding for the assessment of damages for a taking of his property. In view of our conclusion herein that there has been no taking of the plaintiff’s property by the County of Allegheny in the particulars complained of, and that, consequently, the County is not liable to the plaintiff for any deprivation of the use and enjoyment of his property by airplanes utilizing the Greater Pittsburgh Airport, the question raised by the plaintiff’s appeal has become moot. The order dismissing the County’s exceptions to the viewers’ report on appeal at No. 155 is reversed with directions that the viewers’ report be vacated and set aside. Plaintiff’s appeal at No. 158 is dismissed. Section 14 of the Airport Zoning Act of April 17, 1945, P. h. 237, 2 PS §1563, confers upon political subdivisions the power to condemn air avigation easements and other estates in property for the purpose of providing approach protection for aircraft. This is now the position of the Civil Aeronautics Board. Civil Air Regulations, Interpretation 1, 19 F.R. 4602, July 27, 1954. The Supreme Court of Washington recently rejected the identical argument, based upon Section 60.17, Part 60, of the Civil Air Regulations, that the County of Allegheny is now pressing upon us, quoting this paragraph from United States v. Causby, supra. Ackerman v. Port of Seattle, 348 P. 2d 664 (1960). Congress moved to counteract the effect of the decision in United States v. Causby, supra, by enacting the Federal Aviation Act of August 23, 1958, Pub. L. 85-726, 72 Stat. 731, 49 U.S.C.A., §1301 et seq., Section 1401(b) whereof repealed the Civil Aeronautics Act of 1938. Section 104 of the later Act, 49 U. S. C. A., §1304, provides that, “There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States.” And, Section 101 (24), 49 U.S.C.A., §1301(24), declares that (as used in the Act), “‘Navigable airspace’ means airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, <md shall include airspace needed to insure safety in tahe-off and landing of aircraft.” (Emphasis supplied.)

The opinion of the Court was delivered by Kennedy, J. The first and second errors assigned will be considered together, as they relate to the question, whether James Blaine had such an interest or estate in the land in controversy as was liable to be taken in execution, and sold under a judgment against him in his own right? It is admitted, that whatever interest or estate he had in the land, he derived it from the will of his father, Colonel Ephraim Blaine, which contains the following clause, to wit: “ All the residue of my estate, real and personal, I order to be sold by my executors herein to be named, or by the survivor of them; and I do hereby empower them, or the survivor of them, to convey the same in fee simple; and all the moneys arising from such sales, I do give and devise to be equally divided between my two sons, James and Robert, or to their representatives, if they or either of them should die before me: my just debts, and the legacies hereinbefore made, being first paid; and I do hereby appoint my two sons, James and Robert Blaine, and my friend David Watts, executors of this my last will and testament.” Upon the death of the testator, Mr Watts renounced his executorship; and the two sons, James Blaine, from whom the defendant derives his claim to the iand, and Robert Blaine, made probate of the will, and took out letters testamentary. The land in dispute forms a part of the residuum disposed of by the above clause. And though given to his two sons, James and Robert, yet it cannot be said to be given to them absolutely, nor even positively, as real estate. For it is only in the event of its not being wanted for the payment of the testator’s debts, that it is given to them for their own use; but whether required for the payment of the testator’s debts or not, it is given to his executors in the first place, under a direction to be sold by them, or the survivor of them, and couveited into money; so that whatever is thereby given to his two sons is given in money after the conversion shall have been made. Then according to the decisions upon this subject, this, without something more being done than appears to have been done in this case, would not give to the sons such an interest in his residuary real estate as could be taken in execution, and sold for the payment of their respective debts. But there is a further objection that appears to be insuperable, which is, that they were not to have any of the money which should arise from the sale of the land, (and consequently could have no interest in the Iand itself,) until all the testator’s debts, and the previous legacies given by him in his will, were first paid; so that it depended upon there being a surplus after the payment of the debts and the previous legacies, whether they would derive any benefit whatever from the residuary bequest. Now it appeared on the trial of the cause, that the debts were not all paid, and that the land in question was sold by the sheriff to the plaintiff for the very purpose of paying a debt of the testator; and so far as any thing was shown in regard to the residuary estate being sufficient for the discharge of all the debts, there is, perhaps, little or no reason to conclude that they ever will be fully paid out of it. Hence it would be the height of injustice to permit the land to be appropriated to the payment of the debts of the legatees, to the exclusion of the creditors of the testator. But be this as it may, I do not consider it necessary to rely on it in order to decide the present controversy in favour of the plaintiff. It is said, however, that it was competent for James and Robert Blaine to elect to take the land included within the residuary bequest to them as land, instead of the money which was directed to be raised by a sale of it. But certainly this could not be allowed without their first paying the debts and legacies charged upon it by the testator in his will. Surely it cannot be pretended that they had a right to do so, and to hold the land afterwards for their own use, without paying off the debts and previous legacies. This would be in direct violation of the terms of the will and the trust thereby created and committed to them as executors, which was the first office they were to perform. Upon no ¡principle of justice or equity, therefore, could it be tolerated, to permit them to take the land as such, without discharging the charges expressly imposed upon it by the testator. But, again, under this alleged right to elect it is argued, that the partition made between them, as executors of the testator on the one part, and the heirs of Alexander Blaine on the other part, of the land in dispute, as a portion of a larger quantity embraced in the partition, and holden by the testator at the time of making his will, and also at the time of his death, and his brother, Alexander Blaine, as tenants in common, amounted to an election on the part of James and Robert Blaine to take the land in dispute as land, because it was assigned and set apart to them as land; but then the record of partition shows it was not assigned to them as land which they claimed in their own right, nor even as devisees under the will, but as executors thereof. The court below, it would seem, entertained the notion of its being an election on their part to take the land to themselves as land, and so instructed the jury. Here, we think, the court below fell into an error. Because, whether James and Robert Blaine intended to make such election or not, their having a partition made of the land was altogether proper, as preparatory to their making a sale of it, as executors, for the purpose directed by the will. It was no doubt highly expedient to have partition made with a view to advance the price that should be obtained thereafter for it upon such sale; as it is reasonable to suppose that it would be likely to bring a higher price when sold in severalty, and set apart by metes and bounds, than as an undivided interest held in common with others. Mr Watts having renounced his executorship, James and Robert Blaine were the only executors of the will at the time of making the partition of the land with the heirs of Alexander Blaine; and being invested with the legal title of their testator to the land under the act of assembly, by virtue of the authority contained in the will to sell it, had the right, therefore, to have partition made of it, as preparatory to a sale thereof. Had James and Robert Blaine, after having made partition as the executors of Ephraim Blaine with the heirs of Alexander Blaine, gone on and made a partition between themselves of the allotment set apart and asigned to them, as the executors of Ephraim Blaine, there might have been some show of reason, at least, for having inferred thence that they had determined to take it as land for their own use under the will; but it has been shown above that, without payment of the debts and legacies charged upon the land, it was not competent for them to do this. But, in the partition made, we cannot perceive the least ground for such an inference. And this brings us again to the conclusion that James Blaine had no such interest or estate in the land in controversy, as could be taken in execution by his creditors, and sold for the payment of his debts; and, therefore, John M’Murry took nothing by his purchase at the sheriff’s sale made at the suit of James E. Breding. This disposes of the two errors first assigned, and shows that the court below erred in their direction to the jury. The remaining error assigned is, that the court erred in charging the jury that the plaintiff did not acquire the interest of Ephraim Blaine, the testator, in the laud by virtue’of the sheriff’s sale made thereof, under the judgment of William Morris'obtained against the executors. We also think that the court below erred in charging the jury to this effect. This case is distinguishable from Penn v. Hamilton, 2 Watts 53, and the other cases cited on the argument in favour of the defendant. The land, in the case of Penn v. Hamilton, was not given in trust to the testator’s executors, and charged by him in their hands as a fund for the payment of his debts, as is done here. The land taken in execution there, was not intended by the testator to be held liable for the payment of his debts; it was specifically devised, and consequently was held discharged from the liens created by law merely, in favour of those debts for which judgments had been obtained against the executors after the death of the testator, but had not been prosecuted to execution with reasonable diligence, so as to keep the liens so created by law alive. Here, however, the land in question was given by-the testator in charge to his executors for the purpose of being sold by them; and out of the moneys arising therefrom, in the first place, to pay his debts and the legacies previously given in his will; thus creating and confiding to them a trust which they, by taking out letters testamentary from the register, undertook to perform and execute. In order to have discharged the trust thus undertaken by them, they ought to have sold the lands intrusted to them for the payment of the debts and legacies, within a year after the testator’s death, and to have paid the debts and legacies with the money arising there from. Neglecting, however, as it would seem, to proceed in this way, they were sued by William Morris, a creditor of the testator, before the year expired, and a judgment obtairied for the amount of his claim within less than three months after the commencement of the suit. The executors, however, notwithstanding this early and complete notice of Morris’s debt, which the testator had expressly made a charge upon the land in dispute, still neglected to raise money by a sale thereof, as was their duty, to pay this debt. Ultimately, after the judgment obtained for it had been revived in 1S08, and again in 1S14, and various executions sued out thereon without being able to levy the amount of the debt, the land in contest was taken in execution and sold under it by the sheriff to the plaintiff in 1831. Thus, it would appear that the plaintiff in the judgment was never paid his debt, but was desirous to recover it; and that there was such remissness on the part of the executors, as may fairly be considered a violation and abuse of their trust, in not having sold the land and applied the proceeds thereof to the payment of the debt long before it was levied on. But upon no principle, either of justice or sound policy, can it be allowed to trustees, who have at most only a contingent or resulting interest for themselves in the trust property, such as the executors had in.this instance, to claim it as long as it appears that the object of the trust remains unexecuted, and it can not, therefore, be known whether they have any certain interest therein or not. The executors, or, more properly speaking, James and Robert Blaine, who took upon themselves the offices of executors and trustees, were merely entitled to the surplus of the residuary estate, if any should remain after paying the debts and previous legacies; and it is not to be tolerated that any lapse of time should operate in their favour, so as to give them an interest, or to increase it beyond what they would have a right to upon a faithful execution of the trust, short of that which would raise a presumption of the debts and legacies having been all satisfied. It is perfectly clear, however, no such presumption can arise here, for the commencement and prosecution of the suit by Morris for his debt to judgment, and the subsequent proceedings thereon, all repel it most completely, and show that the debt still remained unpaid when the land in question was taken in execution and sold for the purpose of paying it. To hold a different doctrine might tend to encourage trustees to delay the execution of the trust as long as possible, in hopes of gaining thereby, and thus permit them to profit or take advantage of their own neglect, or worse—of their wilful abuse of the trust and confidence reposed in them. Having shown that the executors had no positive interest in the land, it follows, as a necessary consequence, that their creditors could not set up a right for them, which they had not and could not sustain themselves. I do not wish, however, to be understood as insinuating that the default of the executors arose from design on their part; on the contrary, I am well satisfied, in my own mind, from my personal knowledge of them, that it proceeded entirely from negligence and the difficulty and inconvenience of attending to it; and that they never intended to claim or to appropriate the residuary estate to their own use, until the debts of the testator •were first paid out of it. There is no evidence that they ever did do so, or intended it; nor is there any reason to believe now, they both being dead, that their -heirs or representatives pretend any claim to it, in opposition to the unpaid creditors of the testator. The objection, in this instance, to the land in question being applied to the payment of the debts of the testator, in discharge of the trust expressly created by him in his will for that purpose, has not come from the executors or their representatives, but has grown out of the mistake of a creditor of one of the executors, in supposing that the executor had such an interest in it as might be levied-on and sold for his debts. Under the trust, then, created by (he testator in the residuary clause of his will, in favour of his creditors, we are of the opinion that they ought to be considered as having such a lien upon the estate thereby set apart for the payment of his debts, as gave them the right at any subsequent period, however late, as long as the trust remained unexecuted in their favour, through the neglect of the executors to perform it by converting the estate into money and paying the debts, to proceed against it by execution and levy the amount of their debts out of it, if sufficient for that purpose. Hence the levy and sale of the land in dispute under the Morris judgment, passed to the plaintiff, as the purchaser thereof, all the interest and estate which the testator or his executors, as such, had at any time in it. Judgment reversed, and a venire, de novo awarded.

OPINION BARRY, Senior Judge. Charles K. King (King) appeals an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a decision of a referee denying King’s review petition. King suffered a work-related myocardial infarction in 1981 while in the employ of the Wendell H. Stone Co. and began collecting benefits for total disability. In 1985, he began experiencing problems with his heart. A number of tests were conducted and King eventually underwent a cardiac catheterization. The bills for these tests were submitted to the employer which refused to pay them, alleging that said tests were not related to King’s compensable injury. King filed a review petition, seeking payment of the bills. King introduced the medical testimony of Dr. Richard Lind, his treating physician, who opined that a causal relationship existed between the work-related myocardial infarction and the testing under dispute here. Dr. Barry Uretsky testified that he could not state with the requisite degree of medical certainty that the 1985 testing was caused by either the myocardial infarction or the pre-existing coronary artery disease. Dr. Thomas Generalovich, the employer’s expert, testified that the 1985 testing was related to the pre-existing heart disease, and not the myocardial infarction. The referee specifically found Dr. Generalovich to be credible and denied King’s review petition. The Board affirmed and this appeal followed. Our scope of review is limited to determining whether King’s constitutional rights have been violated, whether an error of law has been committed and whether all necessary factual findings are supported by substantial evidence. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988). Mindful of our scope of review, we will address the allegations of error propounded in King’s brief. King first argues that the referee erred in failing to give special credence to King’s treating physician, especially when the contradicting medical evidence from the employer was from a doctor who never examined King. In support of this argument, King cites Workmen’s Compensation Appeal Board v. Czepurnyj, 20 Pa.Commonwealth Ct. 305, 340 A.2d 915 (1975) and Pare v. Workmen’s Compensation Appeal Board (Fred S. James & Co.), 97 Pa.Commonwealth Ct. 435, 509 A.2d 1361 (1986). Neither of those cases mandate that a treating physician’s testimony must be accepted over the employer’s medical expert retained specifically for litigation. As we stated in Czepurnyj, “Although attending physicians are preferred as witnesses in workmen’s compensation cases, the fact that their treatment of a claimant versus the limitation of their involvement to a diagnosis for the purposes of litigation goes only to the weight of their testimony....” Id., 20 Pa.Commonwealth Ct. at 311-12, 340 A.2d at 919. As the referee is still the ultimate arbiter of credibility, he committed no error in accepting the testimony of Dr. Generalovich over that of Dr. Lind. King next argues that even if the tests done here were not causally connected to his work-related myocardial infarction, the employer is nonetheless responsible for payment until there is a determination that the problem is unrelated to work. King bases this argument on a number of factors, none of which, in our view, require a reversal of the Board in the present case. King first argues that the tests conducted here were necessary and even Dr. Generalovich testified that the tests had to be performed. While King’s argument has a certain initial appeal we must reject it. In the present case, King’s pre-existing medical condition and the work-related disability both involved his heart. To show the fallacy in King’s reasoning, we give the following example. Assume for the moment that a claimant has pre-existing coronary artery disease but, unlike King, was disabled because of a broken leg which refused to heal. No one could argue persuasively that the employer there should be responsible for treatment of the heart condition. While the testing was necessary, we believe that the employer in a workmen’s compensation case is responsible for paying only those expenses related to the work related disability. We know of no workmen’s compensation cases where an employer is responsible for paying any expenses not related to the accident or injury at work. King cites a number of cases, arguing that they support his position. He first relies upon Deremer v. Workmen’s Compensation Appeal Board (R.J. Glass, Inc.), 61 Pa. Commonwealth Ct. 415, 433 A.2d 926 (1981). In that case, we did state, “[T]he fact that the claimant’s injury was no longer compensable does not in and of itself preclude him from obtaining reimbursement expenses.... ” Id., 61 Pa. Commonwealth Ct. at 420, 433 A.2d at 929. Claimant’s reliance upon this case is misplaced for two reasons. First, the referee here did not decide the expenses were not reimbursable because King was no longer disabled; he held that the expenses incurred were not related to the work-re lated disability. In Deremer, there was no question that the expenses there were causally connected. Second, this language upon which King relies was necessitated because of an amendment to Section 306 of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531. Before 1978, language in the Act was such that we had held that a claimant must be suffering a compensable injury to obtain payment for medical expenses incurred. That language was amended so that the existence of a compensable injury was no longer required and Deremer was our first opportunity to recognize that change. Deremer does not stand for the proposition that an employer can be responsible for non-work related medical expenses. King next cites Schroeder v. Workmen’s Compensation Appeal Board (City of Reading), 116 Pa. Commonwealth Ct. 130, 541 A.2d 410 (1988), arguing that we held therein that “medically accepted treatment for a cardiac insufficiency which required hospital stay and sufficient tests were compensable even though it was determined that pre-existence of heart disease was the problem.” (Petitioner’s brief, p. 13). While Schroeder does so hold, it is factually inapposite to the present case. In Schroeder, a fireman suffered chest pains while driving to the scene of a fire. When the pains did not abate, a paramedic drove the fireman to the hospital. He received treatment which relieved the pains; the doctor admitted the fireman to the hospital for a series of tests. Within five days, the tests showed that the fireman had not suffered a heart attack but was diagnosed as suffering from cardiac insufficiency. A cardiac catheterization was scheduled approximately seven weeks later. After that test was done, the fireman was diagnosed as having pre-existing coronary arteriosclerosis and angina. Shortly after the test was completed, the claimant was released from the hospital. He returned to work five weeks later. He applied for benefits. Both the claimant’s medical expert and the employer’s agreed that the treatment and testing done were the accepted form of treatment at that time for cardiac insufficiency. The employer’s doctor noted that since that time, accepted treatment is to do the catheterization almost immediately; he stated that if the incident had occurred at the time his testimony was taken, the claimant would have been diagnosed and out of the hospital much sooner. The referee denied the claimant’s petition, holding that he suffered a disabling work-related coronary insufficiency but that the disability ended the same day. The referee, therefore, held that the disability did not exceed seven days as required by Section 306(e) of the Act, 77 P.S. § 514. When the Board affirmed, an appeal was taken to this Court. We held that the referee’s crucial finding, i.e., that the disability’s onset and cessation occurred the same day, was not supported by substantial evidence. In spite of the referee’s fact-finding power, we held that the testimony of the employer’s medical expert established that the treatment and its timing were accepted at that time. As we stated, “Having to remain in a hospital and undergo tests and treatments for a work-related cardiac insufficiency necessarily resulted in a loss of income to Mr. Schroeder. Thus, we conclude that the work-related disability began [at the onset of the chest pains] and continued until the completion of the cardiac catheterization....” 116 Pa. Commonwealth Ct. at 134, 541 A.2d at 412. In our view, Schroeder is distinguishable for two reasons. First, the cardiac insufficiency requiring the testing occurred while on the job. In the present case, King’s insufficiency occurred while he was disabled from working. Furthermore, in Schroeder, both of the experts agreed that the cardiac insufficiency was work related. In the present case, Dr. Generalovich, the employer’s expert, testified that the problem requiring the tests was not work related. For both of these reasons, we do not believe that Schroeder supports King’s arguments. Finally, King relies upon Farquhar v. Workmen’s Compensation Appeal Board (Corning Glass Works), 515 Pa. 315, 528 A.2d 580 (1987), for support of his argument that he is entitled to benefits. That case provides no such support. There, a worker suffered from a pre-existing condition which was aggravated whenever she attempted to do her job. While the claimant there established the necessary causal connection between the injury and her job, King, in the present case, has failed to prove to the fact finder the necessary causal connection. King finally relies upon the well established principle that the Act is remedial in nature and is to be interpreted liberally in favor of injured workers. While we cannot argue with that proposition, we must note that even the most liberal construction of the Act cannot do away with the need of establishing a causal connection between the injury and the job. Affirmed. ORDER NOW, March 30, 1990, order of the Workmen’s Compensation Appeal Board, dated May 9, 1989, at No. A-95439, is affirmed. . Even King's medical expert, Dr. Lind, admits that King was suffering from coronary artery disease when he experienced the heart attack in 1981.

OPINION OF THE COURT EAGEN, Justice. On September 20, 1972, the appellant, Kenneth Tervalon, was convicted by a jury of murder in the first degree and of conspiracy to commit murder. Motions for a new trial and in arrest of judgment were denied on September 27, 1973. Thereafter, on February 2, 1974, a motion for a new trial was filed on grounds of after-discovered evidence and a hearing for the purpose of taking testimony on the motion was held on March 11, 1974. On August 16, 1974, the motion for a new trial on grounds of after-discovered evidence was dismissed and a sentence of life imprisonment was imposed on the murder conviction. This direct appeal then followed. The prosecution emanated from the fatal shooting of Phillip Wormley in Philadelphia on the evening of November 22, 1970. The shooting, carried out by a group calling itself the “Black Liberation Army”, was apparently in retaliation for Wormley’s retention of proceeds obtained by the group during an earlier robbery of a Gino’s restaurant. At trial, the Commonwealth’s case against Tervalon rested primarily on the testimony of Kevin Hall, Willie Williams and Willene Eason. Both Hall and Williams testified that Tervalon was a member of the Black Liberation Army. Williams further testified that, on November 20, 1970, both he and Tervalon were present at and participated in a vote of the Black Liberation Army to execute Wormley. Miss Eason, Wormley’s girl friend, testified that on the night of the shooting, Tervalon, with whom she had had previous contact, came to the door of the apartment she shared with Wormley and asked Wormley to go outside. Shortly after the two departed, she heard four gunshots coming from the direction of the driveway behind the apartment building. The police later found Wormley’s lifeless body in this driveway. Tervalon initially contends the trial court erred in refusing to grant him a new trial on the basis of after-discovered evidence. The law is well-settled that “[i]n order to justify the grant of a new trial on the basis of after-discovered evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result: [cites omitted]”. Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960), cert. denied, 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961). See also Commonwealth v. Cooney, 444 Pa. 416, 417-418, 282 A.2d 29 (1971); Commonwealth v. Bulted, 443 Pa. 422, 428-429, 279 A.2d 158 (1971); Commonwealth v. Mount, 435 Pa. 419, 423, 257 A.2d 578 (1969). Moreover, unless there has been a clear abuse of discretion, the refusal of the trial court to grant a new trial on the basis of after-discovered evidence will not be disturbed. See Commonwealth v. Mosteller, 446 Pa. 83, 89, 284 A.2d 786 (1971); Commonwealth v. Swanson, 432 Pa. 293, 298, 248 A.2d 12 (1968). A review of the record reveals that Richard Stewart, an indicted co-defendant, was at large in Canada during the time of Tervalon’s trial. Stewart was apprehended on October 7, 1972, and returned for trial. Thereafter, both at his own trial and at the trial of Richard Alston, another co-defendant, Stewart testified that he [Stewart] had planned and carried out the Wormley killing and that Tervalon did not participate in any way. Subsequently, at a hearing on the motion for a new trial, Stewart repeated his story, directly contradicting the testimony of the Commonwealth witnesses. He denied Tervalon was ever a member of the Black Liberation Army. He admitted that a vote to kill Wormley had been held, but maintained that Tervalon was not present. And he indicated that two revolutionaries, Hasson and Abdul, not Tervalon, had been detailed to Wormley’s apartment to bring Wormley down to the street. The trial court, while recognizing that Stewart’s testimony was after-discovered and could not have been discovered in time for Tervalon’s trial by reasonable diligence, nevertheless denied Tervalon the requested relief. It concluded, after a careful review of Stewart’s testimony and the testimony given by the Commonwealth witnesses at trial, that there was no likelihood the presentation of Stewart’s testimony would compel a different result upon retrial. We agree. Although. Stewart did admit his participation in the Wormley killing, this admission was not new evidence. Williams, in his trial testimony, stated that Stewart had participated in the vote to kill Wormley and a dying declaration of Ronald Murray introduced into evidence named Stewart as being among those who shot him and Wormley. Therefore, this portion of Stewart’s testimony was merely corroborative of and cumulative to evidence already adduced at trial and was not, in itself, likely to compel a different result. Cf. Commonwealth v. Schuck, supra; Commonwealth v. Green, 358 Pa. 192, 56 A.2d 95 (1948). In addition, Stewart stated that Tervalon was not involved in the Wormley killing. However, by the time Stewart testified on Tervalon’s behalf, he had already been tried for participation in the Wormley killing and had been found guilty of murder in the first degree. Therefore, his testimony was not unlike that of “a co-conspirator who is already in prison and realistically has little to lose by attempting to free his partner”, Commonwealth v. Mosteller, supra at 91, 284 A.2d at 789, which testimony has traditionally been examined and considered with great caution. Cf. Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). Moreover, it is striking, that while Stewart exonerated Tervalon and fingered Hasson, Abdul and Che as having participated in the Wormley killing, he indicated he would not cooperate in their apprehension or testify against them. In addition, Stewart’s story could not be corroborated by the law enforcement authorities. Furthermore Stewart, upon questioning by the trial court, expressed his utter contempt for the law and the judicial system under which it operates. When Stewart’s testimony is contrasted with the trial testimony of the three Commonwealth witnesses, including that of eyewitness identification, we can find no abuse of discretion in the trial court’s determination that its presentation was not likely to compel a different result upon retrial. Tervalon next contends the trial court improperly permitted the Commonwealth to introduce in rebuttal, evidence of a statement he made to the police on the night of his arrest. At trial, Tervalon’s wife, Barbara, testified that she and Tervalon were at home all evening on November 22, 1970, except for a short period when he went out to buy her a special kind of cupcake. In rebuttal, to impeach this alibi testimony, the Commonwealth introduced Tervalon’s statement in which he admitted being with a friend named Roger for part of the evening in question; in addition to going to the store in search of his wife’s desired cupcake. Tervalon claims this rebuttal was improper and his statement could properly have been used to cross-examine only his testimony or to rebut evidence presented by him personally. Therefore, he argues, the evidentiary use of his statement to impeach his wife’s testimony was hearsay and should not have been permitted. However, Tervalon is able to point to no authority which would support this proposed limitation upon the use of a defendant’s extrajudicial statement, and we find this claim devoid of merit. As a general rule voluntary, extrajudicial statements made by a defendant may be used against that defendant although they contain no admission of guilt. Commonwealth v. Wentzel, 360 Pa. 137, 150, 61 A.2d 309 (1948); Commonwealth v. Tenbroeck, 265 Pa. 251, 254, 108 A. 635 (1919). See generally, McCormick Law of Evidence § 144 (2d ed. E. Cleary 1972). These extrajudicial statements, which differ from confessions in that they do not acknowledge all essential elements of a crime, are generally considered to qualify for introduction into evidence under the admission exception to the hearsay rule. McCormick, supra, § 262; 4 Wigmore, Evidence § 1048 (Chadbourn rev. 1972). While Tervalon’s prior statement might properly have been received as part of the Commonwealth’s case in chief, this fact does not necessarily exclude its use in rebuttal. Evidence is admissible in rebuttal to contradict that offered by a defendant or his witnesses, even though by doing so the Commonwealth supplies previous omissions from its case in chief. Commonwealth v. Hickman, 453 Pa. 427, 432, 309 A.2d 564 (1973); Commonwealth v. Libonati, 346 Pa. 504, 511, 31 A.2d 95 (1943); 2 Henry, Pennsylvania Evidence, § 730 (1953). We have previously stated that the order of presentation of evidence is a matter of sound discretion for the trial court. Commonwealth v. Hickman, supra; Common wealth v. Koch, 446 Pa. 469, 478, 288 A.2d 791 (1972). Instantly, the introduction into evidence of Tervalon’s statement to the police during the Commonwealth’s case in chief would have served little purpose as, standing alone, it contained little which was incriminatory. However, it served a vital evidentiary purpose when used to impeach the testimony of Tervalon’s wife. Under these circumstances, we find no error in the trial court allowing the Commonwealth to use Tervalon’s prior statement for the purpose noted. Tervalon further contends the trial court erred in not instructing the jury as to the limited effect of prior inconsistent statements; that they may be used only to impeach credibility and not as substantive evidence of the crime charged. The record reveals that Tervalon failed to request such an instruction nor did he take a specific exception to its omission from the charge. Therefore, this assignment of error has not been properly preserved for appellate review. Commonwealth v. Carr, 459 Pa. 262, 328 A.2d 512 (1974); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). See also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). It is next urged the trial court erred in its supplemental instructions to the jury. After four and one-half hours of deliberation the jury asked the trial court whether a defendant could be found guilty of conspiracy and not guilty of murder. The trial court responded, without further explanation, that a defendant “may be guilty of conspiracy and not of murder, if a murder in fact did not result as a result of the conspiracy.” Tervalon now asserts the mere answering of the jury’s particular question was error as it resulted in a conflicting, confusing and unbalanced charge. He claims the trial court should have informed the jury that the supplemental instructions were only a portion of the entire charge, to be considered in conjunction with the earlier charge. The feasibility and scope of any supplemental instructions to the jury is a matter residing within the discretion of the trial court and, as we noted in Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), the trial court is not obligated to give further instructions beyond those requested by the jury. Cf. United States v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970); United States v. Salter, 346 F.2d 509 (6th Cir. 1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1196, 16 L.Ed.2d 206 (1966); Apel v. United States, 247 F.2d 277 (8th Cir. 1957); Wright, Federal Practice and Procedure, § 502 (1969). But cf. United States v. Sutherland, 428 F.2d 1152 (5th Cir. 1970); Babson v. United States, 330 F.2d 662 (9th Cir. 1964), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1045 (1964). Therefore, it follows that Tervalon’s contention is without merit, particularly so, since Tervalon made no request for the additional instruction he now maintains should have been given. Tervalon next contends the trial court erred in refusing a request to instruct the jury that the testimony of Hall and Miss Eason, as accomplices of Tervalon, comes from a corrupt source and is to be carefully scrutinized and accepted with caution. While the requested instruction is undoubtedly a correct statement of the law, Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969), there was no evidence presented at trial to indicate that either Hall or Miss Eason had any role or participation in the Wormley killing. • A trial court is not obliged to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at trial. Commonwealth v. Bighum, 452 Pa. 554, 559, 307 A.2d 255 (1973); Commonwealth v. Coleman, 402 Pa. 238, 242, 166 A.2d 525 (1961). Tervalon next contends that, in accordance with the rationale mandating that defense counsel be permitted wide latitude in its cross-examination of an accomplice, prejudicial error occurred when defense counsel was restricted in his cross-examination of Miss Eason’s attorney, Arthur L. Gutkin. We need not reach the merits of this contention for, as we have previously stated, there is nothing in the record to indicate that Miss Eason was an accomplice of Tervalon in the Wormley killing. Tervalon further alleges that an outburst by the mother of the deceased during defense counsel’s summation prejudiced the jury against him and requires the granting of a new trial. He also contends an evidentiary hearing must be held to determine if the Commonwealth knew, in advance, of the likelihood of such an outburst and failed to divulge such information to the defense in procuring its assent to her presence in the court room. The record, however, reveals that no objection was entered by defense counsel at the time of the outburst, nor was a motion for a mistrial made. As issues not properly raised in the court below are deemed waived for purposes of appeal, this issue is not properly before us. Commonwealth v. Thomas, 460 Pa. 442, 333 A.2d 856 (1975); Commonwealth v. Glenn, 459 Pa. 545, 330 A.2d 535 (1974). See also Commonwealth v. Clair, supra. Finally, it is contended the district attorney exceeded the bounds of proper cross-examination of Tervalon’s father, Alfred. The elder Tervalon was called as a witness by the defense to testify in support of his son’s alibi defense. The district attorney, while questioning the elder Tervalon regarding his activities when he went to visit his son at the Police Administration Building, asked, “You, of course, advised Kenneth not to say anything further to the police?” An immediate objection to this question was interposed by the defense, but this objection was overruled by the trial court. The elder Tervalon then responded, “Not in those words, no sir.” Tervalon now contends the district attorney committed reversible error by attempting to create an impermissible adverse inference in the minds of the jurors regarding the exercise of his Fifth Amendment rights at trial. While it is fundamental that the Fifth Amendment forbids comment by the prosecution on the accused’s silence at trial, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973), the cross-examination complained of did not either expressly or by reasonable implication indicate that an adverse inference could be drawn from the failure of Tervalon to testify nor did it draw attention to his failure to do so. The district attorney did not remark that Tervalon failed to testify nor did he state the Commonwealth’s evidence was uncontroverted. See Commonwealth v. Davis, supra; Commonwealth v. Reichard, 211 Pa.Super. 55, 233 A.2d 603 (1967). Rather, the cross-examination pertained to activities which occurred long before the trial took place. Judgment of sentence affirmed. NIX, J., did not participate in the consideration or decision of this case. ROBERTS, J., filed a dissenting opinion in which MANDERINO, J., joins. . Ronald Murray, also a member of the Black Liberation Army, was slain along with Wormley. . In Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), three members of this Court (Mr. Justice Roberts joined by Mr. Chief Justice Jones and Mr. Justice Manderino), in determining the trial court properly excluded from evidence an extrajudicial confession as not a declaration against penal interest, recognized the inherent unreliability of a confession exculpating possible accomplices at no cost to the declarant. . Tervalon contends we need not speculate as to the effect which Stewart’s testimony would have upon retrial because Stewart’s similar exoneration of Richard Alston, who was on trial for the murder of Ronald Murray, led to a jury acquittal of Alston. It is true that both Williams and Miss Eason testified for the Commonwealth in the Alston case, just as they did at the Tervalon trial. However, their testimony merely named Alston as a member of the Black Liberation Army and did not indicate that Alston participated in the vote to kill Murray or that he was present at the shooting. The only evidence directly implicating Alston was the dying declaration of Murray who had initially told ■ the police he did not know who had shot him. Clearly, the evidence against Tervalon was much stronger than the Commonwealth’s case against Alston and the jury’s acquittal of Alston can, in no way, mandate a new trial for Tervalon. . Tervalon did not testify in his own behalf at trial. . Like confessions, admissions may only be introduced into evidence against a criminal defendant if the limitations of voluntariness and the observance of all constitutional requirements have been satisfied. See, e. g., Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Tervalon also argues that his prior statement was the product of an unnecessary delay between arrest and arraignment in violation of Rule 118 (now 130) of the Pennsylvania Rules of Criminal Procedure and, hence, its evidentiary use at trial should not have been permitted. See Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Tervalon was arrested at his residence at approximately 2:30 a. m, on November 23, 1970, and transported to the Police Administration Building. He was placed in an interview room where he remained alone until 3:05 a. m., at which time he was advised of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He was then questioned about the shooting and within forty five minutes made the oral statement which was used at trial by the Commonwealth. Even assuming, there may have been an “unnecessary delay” between the arrest and Tervalon’s oral admission, see Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358 (1974), the evidentiary use of this statement was not proscribed under Rule 118 because this evidence was not reasonably related to the delay. Commonwealth v. Palmer, 463 Pa. -, 342 A.2d 387 (1975); Commonwealth v. Davis, 460 Pa. 644, 334 A.2d 275 (1975). . Tervalon contends that our decision in Commonwealth v. Di-Pasquale, 424 Pa. 500, 230 A.2d 449 (1967), indicates that in certain situations the trial court has an obligation, sua sponte, to give such a limiting instruction. Because Commonwealth v. Di-Pasquale, supra, decided prior to the effective date of Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure which provides, “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”, its determinations, in this regard, can be of no effect. . Section 5.3(b) of the ABA Project on Standards for Criminal Justice, Standards Relating to Trial by Jury (Approved Draft 1968) provides: “The court need not give additional instructions beyond those specifically requested by the jury, but in its discretion the court may also give or repeat other instructions to avoid giving undue prominence to the requested instructions.” . Tervalon also contends the trial court erred in instructing the jury that the guilt or innocence of a defendant may be predicated upon the uncorroborated testimony of an accomplice. However, this is a correct statement of the law in Pennsylvania and, therefore, a proper jury instruction. See, e. g., Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972); Commonwealth v. Bruno, 316 Pa. 394, 175 A. 518 (1934). . We note that Tervalon did not raise the issue of whether this cross-examination would have led the jury to infer that he refused to make a statement at the time of his arrest. See Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). Therefore, we need not address ourselves to this question.

CAVANAUGH, Judge: Dr. Thomas M. D’Auria appeals from the order of August 30, 1984 entered in the Court of Common Pleas of Fayette County denying his motion for summary judgment and entering judgment in favor of appellees. The sole question in this appeal is whether three insurance companies had a duty to defend the appellant in a malpractice suit filed against him. We hold they did not. In 1981, Dr. D’Auria, who practiced pediatric medicine in Uniontown, Pennsylvania, was sued for malpractice by a former patient, Mr. Gregory Egnot. Egnot was a patient of Dr. D’Auria’s from the time of his birth in 1957 until 1963. In Egnot’s complaint against Dr. D’Auria, he alleged that D’Auria was negligent and careless both during and after the time he was D’Auria’s patient and avers that this negligence was a cause of the renal failure he suffered in 1979. Each of the three insurance companies involved in this dispute did not insure appellant until long after he treated Egnot. Hartford insured him from 7/22/73 to 7/22/76. Argonaut insured him from 7/22/76 to 1/1/78. PMSLIC insured him from 1/1/78 to 6/30/82. All three provided “occurrence” type policies. “An ‘occurrence’ policy protects the policyholder from liability for any act done while the policy is in effect, whereas a ‘claims made’ policy protects the holder only against claims made during the life of the policy.” St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531 n. 3, 98 S.Ct. 2923 n. 3, 57 L.Ed.2d 932 (1978). According to appellant, all three policies stated: “[T]he company shall have the right and duty to defend any suit against the insured seeking such damages, even if any of the allegations of the suit are groundless, false or fraudulent____” II] The duty to defend is separate from and greater than the duty to indemnify. Pacific Indem. Co. v. Linn, 590 F.Supp. 643 (E.D.Pa.1984) aff'd. 766 F.2d 754 (3d Cir.1985). In purchasing insurance, the appellant here purchased not only the insurer’s duty to indemnify when claims which fall within the policy’s coverage are successful, but also protection against those groundless, false or fraudulent claims regardless of the insurer’s ultimate liability to pay. Zeitz v. Zurich General Accident & Liability Ins. Co., 165 Pa.Super. 295, 67 A.2d 742 (1949). Not all claims asserted against an insured, however, activate the insurer’s duty to defend. In analyzing whether the insurer has a duty to defend, we must first look to the complaint filed against the insured. St. Paul Surplus Lines Ins. Co. v. 1401 Dixons, 582 F.Supp. 865 (E.D.Pa.1984). “It is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” Springfield Tp. et al. v. Indemnity Ins. Co. of North America, 361 Pa. 461, 64 A.2d 761 (1949). See also Vale Chemical Company v. Hartford Acc. & Indem., 340 Pa.Super. 896, 490 A.2d 896 (1985). East Coast Equipment Co. v. Maryland Casualty Co., 207 Pa.Super. 383, 218 A.2d 91 (1966). After discerning the facts alleged in the complaint, we then must decide whether, if those facts were found to be true, the policy would provide coverage. If it would, then there is a duty to defend. The much quoted language of Judge Learned Hand clearly delineates the well-settled principle. “[I]f the plaintiff’s complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the defendant to undertake the defence, until it could confine the claim to a recovery that the policy did not cover.” Lee v. Aetna Casualty & Surety Company, 178 F.2d 750, 752 (2d Cir.1949). See also Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959). If the factual allegations of the complaint on its face states a claim to which the policy potentially applies, the insurer must defend. Pacific Indem. Co. v. Linn, supra; Brugno-li v. United Nat. Ins. Co., 284 Pa.Super. 511, 426 A.2d 164 (1981); Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 188 A.2d 320 (1963); and Seaboard Industries, Inc. v. Monaco, 258 Pa.Super. 170, 392 A.2d 738 (1978). Even though the insurance policy states that the insurer must defend against allegations which are groundless, false, or fraudulent, this does not mean that the insurer has a duty to defend any suit filed against the insured. The duty to defend is limited only to those claims covered by the policy. Warner v. Employers’ Liability Assurance Corporation, 390 Pa. 62, 133 A.2d 231 (1957); Wilson v. Maryland Casualty Company, 377 Pa. 588, 105 A.2d 304 (1954). Thus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true. It does not matter if in reality the facts are completely groundless, false or fraudulent. It is the face of the complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend. See Warner v. Employers’ Liability Assurance Corporation, supra; Wilson v. Maryland Casualty Company, supra. In the instant case, Egnot’s complaint against the doctor alleged that when the doctor treated him from 1957 to 1963, he was negligent or careless in failing to diagnose and have treated a medical condition that was a consequence “of a lower urinary tract obstruction secondary to posterior urethral valves.” This kidney condition was surgically treated in December of 1962 or January of 1963 by another physician. After 1963, Egnot was never again treated by D’Auria. Egnot experienced renal failure in March of 1979. He attributes the cause of his renal failure to 1) D’Auria’s failure to diagnose and have treated the aforementioned condition which was eventually treated by surgery in December of 1962 or January of 1963, and 2) appellant’s failure to provide appropriate follow-up care and treatment after Egnot’s release from the hospital in January, 1963. The complaint states: “As a combination of the foregoing occurrences, Plaintiff suffered loss of renal tissue which results in renal failure, which loss of renal tissue could have been avoided or minimized if Plaintiff had received appropriate diagnosis, care and treatment throughout the course of his renal condition.” We must determine if the facts alleged on the face of the complaint state a claim which is covered by any of the three policies. If so, there is a duty to defend. Because these policies were “occurrence” policies, we must decide whether the facts allege an “occurrence” that falls within any of the policies’ coverages. We will refer to and rely upon occurrence cases which deal with indemnity. We believe that these cases may be appropriately used in a duty to defend context. The major difference between indemnity and duty to defend cases is that in the latter, the complaint is the sole guide to the facts. As such, we shall use the complaint as our sole guide. The “time of the occurrence” has spawned numerous reported decisions and a fair amount of confusion. See Annot., 37 A.L.R. 4th 382 (1985). We find no Pennsylvania state court decision directly on point, but have sought guidance from well-reasoned opinions in other courts. In determining whether the facts allege an “occurrence” that falls within any of the three policies’ coverages, we must ascertain what is the “occurrence” alleged, and when it happened. The three insurance policies at issue insured Dr. D’Auria from 7/22/73 to 6/30/82. If an “occurrence” is alleged to fall anywhere within that time period, one or more of the insurance companies has a duty to defend. We must first determine how many “occurrences” are present in Egnot’s complaint. “The general rule is that an occurrence is determined by the cause or causes of the resulting injury. ‘[T]he majority of jurisdictions employes [sic] the ‘cause theory’.....Using this analysis, the court asks if ‘[t]here was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage.’ ’ ” Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3d Cir.1982). In Appalachian, an employer adopted certain employment policies in 1965 which, according to several female employees, discriminated against women over the next several years. The court of appeals affirmed the lower court and held that despite the fact that there were multiple injuries of different magnitudes which extended over a period of time, there was but one occurrence. “The injuries for which [the employer] was liable all resulted from a common source: [the employer’s] discriminatory employment policies.” We adopt the “cause of the loss” test in the instant case to determine the number of “occurrences” present in Mr. Egnot’s complaint. Even if completely true, we find that Egnot’s complaint alleges only one occurrence. The cause of Mr. Egnot’s alleged renal failure was the alleged mistreatment of his condition by Dr. D’Auria. We note that the complaint superficially states two causes for the renal failure: 1) Dr. D’Auria’s pre-1963 failure to diagnose and have treated the condition that was eventually treated in January 1963, and 2) his post-1963 failure to adequately follow up and care for Egnot. Nevertheless, we believe that the substance of the complaint alleges only one cause. The complaint indicates that the doctor mishandled Egnot’s treatment in not diagnosing or acting quickly enough to treat the condition that contributed to the renal failure, and also in not recognizing the severity of that condition and treating it accordingly. We do not think that it is appropriate to examine the doctor’s alleged mishandling of a case in minutia in order to single out individual instances of want of care and to label them as separate “causes”. Nor do we think it appropriate to label the doctor’s failure to follow-up on a misdiagnosed case after the patient has left his care as a separate and distinct cause of an injury which later befalls the former patient. Appellant alleges that the three policies cover injuries which arise out of the failure to render professional services. This does not alter our conclusion. Mr. Egnot left Dr. D’Auria’s care in 1963 and developed renal failure in 1979. We believe that if the doctor’s neglect was a cause of Egnot’s renal failure, it would be because of his mishandling and misdiagnosis of the case while Egnot was a patient of his. The commonly accepted nature of the practice of medicine commends this result. In every instance in which a doctor mistreats a patient, whether by misdiagnosis or other negligence, the patient may leave the doctor’s care only to later experience consequent injury and losses due to the mistreatment. In such a case, it would forsake common sense to say that there are multiple causes of the injury, the mistreatment and the doctor’s repeated failure to follow up. Certainly, one trained in medicine might possess the acumen to single out myriad mistakes in a doctor’s treatment of a patient and to label each as a “cause” of resulting injury. We believe, however, that to divide the doctor’s mistreatment into multiple causes here would be an artificial and arbitrary division. The substance of Egnot’s complaint alleges one cause, Dr. D’Auria’s mistreatment of his renal condition. Having determined that there was one “occurrence”, we must now determine when it took place. An occurrence happens when the injurious effects of the negligent act first manifest themselves in a way that would put a reasonable person on notice of injury. In Appalachian Ins. Co. v. Liberty Mut. Ins. Co., supra, the court stated that “[wjhile the ‘cause’ test is appropriate for determining whether there is a single occurrence or multiple occurrences, it is not applicable in determining when an occurrence takes place. We hold that the determination of when an occurrence happens must be made by reference to the time when the injurious effects of the occurrence took place.” Id. at 61-62. The party alleging the negligence need not have actually discovered the injurious effects at the time they first manifested themselves. See e.g., Silver Eagle Co. v. National Union Fire Ins. Co., 246 Or. 398, 423 P.2d 944, 40 A.L.R.3d 1432 (1967). The court in Eagle-Picher Industries, Inc. v. Liberty Mut. Ins., 682 F.2d 12 (1st Cir.1982) cert. den. 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 held that an “occurrence during the policy period” takes place when both the accident and the resulting injury occur in the policy period, but that actual medical diagnosis is not necessary. The court noted that although actual diagnosis of the disease would promote certainty and ensure that coverage is easily ascertainable, it found that the policy language in question required that exposure to asbestos result in bodily injury during the policy period, not that it be medically diagnosed. In Transamerica Insurance Company v. Bellefonte Insurance Company, 490 F.Supp. 935 (E.D.Pa.1980), the court found two separate “occurrences”. In that case, drugs were ingested by pregnant women during the time insurer A insured the drug manufacturer, and deformed children were born during the time insurer B provided coverage. In deciding when the injuries occurred, the court held that it was reasonable to conclude that the injuries to the children certainly occurred while they were still in the womb, and insurer A was liable for their damages. On the other hand, the parents’ damages, including increased medical and child rearing expenses resulting from the births plus the emotional trauma caused by the births, occurred only at the time of the children’s births and so insurer B was liable for these damages. Thus, an “occurrence” happens when injury is reasonably apparent, not at the time the cause of the injury occurs. The cause and the injury may happen at very distinct time periods. In Gulf v. Dolan, Fertig, and Curtis, — Fla. —, 433 So.2d 512, 37 A.L.R.4th 373 (1983), the court wrote: “An occurrence policy is a policy in which the coverage is effective if the negligent act or omission occurs within the policy period, regardless of the date of discovery or the date the claim is made or asserted.” Id. at —, 433 So.2d at 513. And, “[occurrence policies are built around an insurer who is liable for the insured’s malpractice, no matter when discovered, so long as the malpractice occurred within the confines of the policy period.... The occurrence insurer, then, is faced with a ‘tail’ that extends beyond the policy period itself.” Id. at —, 433 So.2d at 515. Turning to the instant case, we must decide at what point in time the injurious effects of the doctor’s negligence first manifested themselves in a way that could be ascertained by reasonable diligence. We hold that the effects of the negligence first manifested themselves prior to the coverage periods of any of the three policies. Therefore, none of the appellee insurance companies had a duty to defend. Mr. Egnot’s complaint avers that his renal failure in 1979 was the culmination of ongoing renal deterioration which should have been diagnosed in 1963. While he does not aver that total renal failure was apparent in 1963, we nevertheless believe that, according to Egnot’s complaint, the injury due to the doctor’s negligence was first manifested in a way that could be ascertained by reasonable diligence well before any of the three policies took effect in 1973. The allegation of ongoing renal deterioration which should have been diagnosed and treated in 1963 seems to us to be a definite injury. Decisions from other courts indicate that an “occurrence” cannot happen until the injury or damage is irremediable. See e.g., Bartholomew v. Insurance Company of North America, 502 F.Supp. 246 (D.R.I.1980) Aff'd. 655 F.2d 27 (1st Cir.1981). In the instant case, Egnot’s injury appears to have been definite in 1963 and, although it would continually worsen, it appears to us to be a sufficient manifestation of injury to satisfy the test of an occurrence. We can see no reason in waiting to pinpoint the time of the “occurrence” until such time as ultimate injury becomes a certain proposition. Moreover, we think that as a matter of policy, the three appellee insurance companies should not be forced to defend for an injury which was, at least in embryonic form, reasonably apparent thirteen years before any of them undertook to provide occurrence coverage. “[A]n insured cannot insure against something which has already begun.” Appalachian Insurance Co. v. Liberty Mut. Insurance Co., supra. Judgment affirmed. . The rights of the other appellee, Zurich Insurance Company, are not affected by our decision, and we need not include it in our discussion. . Egnot also alleged that another doctor’s negligence was also a cause of his renal failure. This allegation is not pertinent to our discussion. . It is unclear whether Dr. D’Auria treated Egnot after his release from the hospital. Dr. D’Auria did not treat Egnot after 1963.

The opinion of the Court was delivered by Gibson, C. J. In this instance we are to take the law of the case from the Supreme Court of the United States, the constitutional expositor of federal legislation, whether ordinary or fundamental; and haply the reports of its decisions fui’nish us with principles which go far to rule the point in contest. We are to determine whether our Act of 1842, .which prohibits for a time sheriffs’ sales of property for less than two-thirds of the appraised value, impinges on the tenth section of the first article in the federal constitution, so far as it modifies the remedy to enforce contracts which existed when it was enacted. The statute of Illinois, which was the subject of discussion in M’Cracken v. Hayward, (2 Howard’s R. 608), differed from it in the cardinal feature that its prohibition of execution was perpetual; and if such were the provision before us, we would not hesitate to pronounce it void. Its duration, however, is limited. The Act directs land taken in execution to be appraised, and it ordains that if it be not bid to two-thirds of the appraised value, the execution shall be stayed for a year, at the expiration of which the creditor may proceed with it as if it had not been suspended. The statute of Illinois had no such limitation. Its denial of execution was perpetual, except on terms not originally contemplated; and it not merely impeded the remedy, but changed the conditions of the right. The statute of Pennsylvania suspends the remedy only; still, it may be asked, if it can constitutionally do so for a year, why not for a thousand years, or any other period, amounting in effect to perpetuity ? It has been shown by Chief Justice Taney, in Bronson v. Kinsie, (1 Howard’s R. 317), that the remedy is parcel of the right, and that the obligation of a contract may not be impaired by acting on the remedy more than it may by acting directly on the contract itself. He adopted, at the same time, the language of Mr Justice Story in Green v. Biddle, (8 Wheat. 17), affirming that acts of State legislation, which, while professing to regulate the remedy, and not to modify the right, “ so change the nature and extent of existing remedies as materially to impair the rights and interests of the owner, are'as much a violation of the compact as if (hey directly overturned his rights and interests.” It would be impossible to find a rule precisely adapted to every case, and the Chief Justice illustrated his principle by examples which show that he held no more than the essentials of the contract to be inviolable. He admitted that to exempt articles of the first necessity from execution, or to accelerate the bar of the Statute of Limitations, is not to modify the remedy so as to impair the obligation-of the contract. Yet, as such modifications cramp the creditor’s freedom of action, and decrease the fund from which he is to obtain satisfaction, they act on the contract to at least an inconsiderable extent. He seems to put the question on the degree of their action, though Mr Justice Story had said in Green v. Biddle that some strong cases put by him for purposes of illustration, differed from the one before him only in the degree; whence it might be inferred that he went for the absolute integrity of the constitutional principle. So far as I am at liberty to choose, I prefer the doctrine of the Chief Justice as better suited to a federative system like ours, whose complexity is'such that the bodies which revolve in it would not perform their functions if they were straitened in their orbits. If regulation of the remedy were prohibited whenever it might affect the fruition of the right in any imaginable degree, much wholesome legislation would be shut out, and even the instances put by the Chief Justice would not be licensed. But perhaps there is no real discrepance in the opinions of the Judges. In Jackson v. Lamphire, (3 Peters’s R. 290), Mr Justice Baldwin, speaking for the whole court, said that it is within the undoubted power of State Legislatures to pass recording Acts by which a grant in existence at the time of the enactment may be postponed, or Acts of Limitations restrictive of the remedy. “Reasons of sound policy,” he said, “ had led to the adoption of general laws of both descriptions, and their validity cannot be questioned. The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the Legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur where the provisions of a law on these subjects may be so unreasonable as to amount to a denial of right, and call for the interposition of the court; but the present is not one.” This doctrine, pregnant with good sense, is the only one which will enable the State and federal governments to perform their functions without collision; yet a recording Act which postpones a conveyance in default of performance of asuperadded condition, impairs the obligation of the contract as much as does a law to stay for a time the execution of it. But, taking the principle as we are able to collect it, rather from dicta of the judges than from points decided by them, we are to decide whether the temporaiy restraint of a remedy necessarily impairs the right in an unreasonable degree. I lay out of the case those considerations arising from the form of the security, which seem to have weighed with the court in Bron son v. Kinsie. Did the statute cut the mortgagee off from recovering on his legal title in ejectment, it would doubtless be unconstitutional in that particular aspect; but proceeding by scire facias to recover his debt by execution of the land, he stands as would any other judgment creditor. Though unlimited in its duration, this statute was evidently produced by the emergency which arose from collapse of the credit system; and taking from it the right to sell for two-thirds the value, reserved for the benefit of the creditor, it becomes an unconditional law to suspend the enforcement of the contract for a year. Is such an exercise of the sound discretion spoken of, so unreasonable as materially to impair the remedy, and amount to a denial of the right? To hold that a State Legislature is incompetent to relieve the public from the pressure of sudden distress by arresting a general sacrifice of property by the machinery of the law, would invalidate many statutes whose constitutionality has hitherto been unsuspected. An indefinite prohibition of execution in default of compliance with new and arbitrary terms, would be a denial of the remedy contemplated in the contract, not a regulation of it; but there are laws for a temporary suspension which have not been thought so. Such is our statute to stay for three weeks execution of a judgment on demurrer, special verdict or case stated, in order to give the unsuccessful party a supersedeas by writ of error. True it is that a statute which gives time for something to be done in respect to the determination of the right, is more decisively superior to exception than one which gives time for the sake of procrastination merely; but we have stay laws enacted in 1836, and operating in actions on contract for periods graduated to the amount of the debt, whose validity has not been contested; and they certainly modify the remedy no further than does a statute of limitations which contingently cuts off all remedy whatever, or one which narrows the creditor’s recourse to the debtor’s property. I believe, too, that laws imposing military service on apprentices, or dissolving the contract of marriage for causes not declared at the time of its solemnization, have not been resisted; and practical cotemporaneous usage goes far to settle a question of construction. Suspensions of execution for a reasonable time have not been unfrequent in some of our sister States, and creditors have submitted to them as regulations depending, in the language of Mr Justice Baldwin, “on the sound discretion of the Legislature, according to the emergency which led to their enactment.” I have found no trace of a question raised on their validity in the reported decisions of the tribunal of the last resort. On the whole, therefore, the Act before us appears not to be so unreasonable as to call, for judicial interposition. Yet the case is by no means a clear one; and as the decision of it involves the validity of other Acts of the same stamp, it is worthy of being brought before the Supreme Court of the nation. To put the case in train for that, it would be ne cessary for us to sustain the statute at all events; for the appellate jurisdiction of that court extends no further than to cases in which the judgment is in favour of the legislation or authority to which the federal constitution, or an Act of Congress, is supposed to be repugnant; in other words, it extends no further than is necessary to maintain the supremacy of federal legislation. As an erroneous judgment adverse to the authority of the State Legislature would be irremediable, we have deemed it our duty, in cases of difficulty or doubt, to put the judgment in such a shape as would make it the subject of a writ of error. In this instance, however, the judgment falls in with the current of our opinion; and if it is erroneous, it will give us pleasure to have it corrected by the constitutional guardian of federal authority. Judgment reversed, and rule absolute.

Opinion by Mr. Justice Green, This case comes before us on appeal from the order or decree of the lower court refusing to grant a distiller’s license to the appellant. Upon examination of the petition, bond and other papers filed by the appellant, we find that they are in exact accordance with the requirements of the act of ninth June, 1891, under which the application is made. No remonstrance or objection of any kind was filed or made against the granting of the license. The petition asserted that the applicant was a citizen of the United States of temperate habits and of good moral character. An additional petition was filed, signed by a large number of the qualified electors of Wharton township, certifying to the good moral character of the applicant and to his fitness to be intrusted with such a license. There were no allegations or proof upon the record impeaching or questioning in any way the truth of these declarations. Jhe only entry upon tiie record showing the action of the court upon the application is as follows: “ Now the 10th day of April, 1893, license' is refused. Per Curiam.” Of course we cannot know why this order was made. So far as we can judge by the record it appears to be a refusal without a reason. We considered very fully the whole subject of the grant of this class of licenses in the two cases of Pollard’s Petition, 127 Pa. 507, and Prospect Brewing Company’s Petition, lb. 523, and upon the rulings there made we are of opinion that it was error to refuse the license in the present case. It is true that the act of 1891 does give the court power to consider the questions of the necessity of the license for the accommodation of the public, and the iitness of the applicant for the grant of the license. But the act only authorizes the court to refuse a license for either of these reasons, “ whenever in the opinion of the said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public, or that the applicant or applicants is or are not lit persons to whom such license should be granted.” The refusal upon either of these grounds is not to be a mere arbitrary refusal, but only such a refusal, as is the result of an opinion to be formed after a due regard has been given “ to the number and character of the petitioners for and against such application.” As there were no petitioners against the granting of the license there was no question at issue upon either of these subjects, and as the court has not stated that they had any opinion upon these questions or either of them, the case comes precisely within the reasoning of the opinion in the case of Prospect Brewing Co.’s Petition, supra, which it is not necessary to repeat here. We are therefore of opinion that the appellant’s petition for a license should have been sustained and the license granted. The order of the court below refusing a license is reversed, and a procedendo awarded.

The opinion of the court was delivered, January 5th 1874, by Mercur, J. — That the goods of a stranger found on the demised premises are liable to distress’ for rent, is a well-settled principle of the common law. To this general rule there are many exceptions in fact, but few in principle. The goods of a third person placed in the way of trade on storage, in the warehouse of one who received goods on storage, are not liable to distress for rent for such warehouse, although found on the premises : Brown et al. v. Sims et al., 17 S. & R. 138; Briggs et al. v. Large et al., 6 Casey 287; nor are the goods of a guest’ for rent due by the innkeeper, nor those of a boarder for rent due by the keeper of the boardinghouse : Riddle v. Welden, 5 Whart. 9; nor grain sent to a mill, nor cloth in a tailor shop, nor goods on a wharf, nor goods of the principal in the hands of a factor for rent due from the one temporarily having the possession of the goods. Nor are goods in the custody of tlie law liable: Pierce v. Scott, 4 W. & S. 344; nor property of a tenant bolding by a renewed lease, for the payment of arrears of rent due from a previous tenant: Clifford v. Beems, 3 Watts 246; Beltzhoover v. Whitman, 1 W. & S. 416. The principle covering these cases during the tenancy, except when the goods are in the custody of the law, is this: where the tenant, in the course of his business, is necessarily put in possession of the property of those with whom he deals, or of those who employ him, such property, although on the demised premises, is not liable to distress for rent due thereon from the tenant: Brown et al. v. Sims et al., supra. If the property of the defendant was not liable to distress, it was saved therefrom by the protection of this rule only. What are the facts? The demised premises contained about twelve ac.vs. There was a steam saw-mill, a brick and frame dwelling-house, blacksmith shop, boat-yard, stable, &c., thereon. The property in question was upon the demised premises when it was distrained. It consisted of one coal-barge and lot of barge timber, and plank sufficient for another barge upon the boat-yard; a quantity of iron, spikes, bolts and oakum in the blacksmith shop; and a lot of oak streamers, pine scantling, boards, plank and timber at the sawmill. All the lumber had been manufactured at this saw-mill, by Porter, Wylie & Agnew, while they were in the^ employ of Porter-field, and under an arrangement with him. The evidence wholly fails to show in what manner Porterfield used the boat-yard, whether in building boats himself upon it or permitting others to build; or whether he or they furnished the materials. It also fails to show that the defendant’s possession of the boat was with the permission or even knowledge of Porterfield. It appears that Porter, Wylie & Agnew gave the defendant permission to build the barges upon the boat-yard, but their authority so to do is not shown. Whether the defendant was a tenant or a trespasser, he was in actual possession of the yard. He sent his employees there to build the barges. He also procured and sent there the iron, spikes, bolts and oakum necessary to be used in building the barges. The boat-yard was separated from the mill by a creek. The defendant had taken possession of all this lumber lying in that yard. He set about working it up, he mingled it with the other materials which he brought upon the ground. Those materials had never been in the possession of the plaintiff. The defendant had progressed so far with the work as to have completed one barge before the property was distrained. At this time Porterfield had no possession of this property. It was in the exclusive possession of the defendant. He established a business there in which it is not shown that Porterfield was engaged. With what propriety, then, can the defendant invoke the rule which exempts from distress the property of a third person, while it is necessarily in the possession of the tenant in the course of his business ? He had established upon the boat-yard an independent business; a business in which the tenant Porterfield is not shown to have had any interest, or over which he had any control. The possession and exclusive control had been maintained by the defendant for several weeks prior to the distress. Neither Porterfield nor the persons from whom the. defendant purchased the lumber set up any claim to possession. The defendant held the property and the possession by his independent right. The situation of the property, then, did not admit of the application of the rule which the defendant invokes. That portion of the property of which the defendant thus had the possession was liable to distress, and thus qualified, the third assignment is sustained. ■We think the learned judge erred in admitting the evidence covered by the eighth assignment. Whether the distress was excessive or whether other property not replevied was “sufficient to satisfy the said rent or a large portion thereof,” was irrelevant in the issue being tried. The pleas were “ rent in arrear, warrant for distraint, &c.” The replication interposed three obstacles to the distress, to wit: First, a denial of tenancy. Secondly, an averment that no rent was in arrear; and thirdly, that the goods in question were not liable to distress. If any rent was in arrear, it mattered not how much, in this action, the right to distrain existed. If there was none, this evidence could not aid the defendant. If any rent was due the landlord had the right to enter and to distrain. The entry and distress then being lawful in Tact, the plaintiffs were not liable as trespassers for an excessive' distress. The proper remedy in such case is by action on the case founded on the Statute of Marlbridge: McKinney v. Reader, 6 Watts 41. The other assignments of error are not sustained. Judgment reversed, and a venire facias de novo awarded.

Opinion by Me. Justice Mush anno, In 1947 the School Board of the Borough of Ephrata, which has 8,000 inhabitants, 2 elementary schools and a high school, ordered a school census for the purpose of determining its future school building requirements. From this census it was calculated that by the beginning of the 1952-53 term, another school building containing three rooms for three grades and accommodating from 60 to 65 students would be required. For the 1953-54 term 3 more rooms would be needed. On July 10, 1950, the School Board met and decided to purchase the land of the plaintiffs, known as the Winger Farm, for the school building intended, and to this end offered the owners of the farm, the plaintiffs in this case, |22,500, which the plaintiffs declined. On December 4, 1950, the School Board met again in this matter and adopted a resolution authorizing the acquisition by condemnation proceedings of the property in question, which embraced 54.894 acres. The plaintiffs filed a bill of complaint in the Lancaster County Court of Common Pleas for an injunction restraining the School Directors of the School District of the Borough of Ephrata and the School District of the Borough of Ephrata, more conveniently referred to herein as the School Board, from initiating eminent domain proceedings against the Winger Farm. The Bill of Complaint was dismissed and an appeal to this Court followed. The Public School Code of 1949, P. L. 30, Art. VII, sec. 703 (24 P.S. sec. 7-703) provides inter alia that: “. . . the board of school directors of each district is hereby vested with the necessary power and authority to acquire, in the name of the district, by . . . condemnation . . . any and all such real estate, either vacant or occupied,... as the board of school directors may deem necessary to furnish suitable sites for proper school purposes for said district. . .” The appellants do not question, and indeed cannot question, that the School Board has the power by this statute and under the Constitution of the Commonwealth itself, to take private property for school building purposes. They do, however, challenge the extent of that power, and properly so. There is no authority under our form of government that is unlimited. The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders, commands or directives are not subject to review. The power of eminent domain, next to that of conscription of man power for war, is the most awesome grant of power under the law of the land. Article 1, Section 10 of our Pennsylvania Constitution, declares: “. . . nor shall private property be. taken or applied to public use, without authority of law and without just compensation being first made or secured.” It is to be emphasized, however, that the restriction in this clause is not limited to the guarantee of just compensation. The condemnation may not take place at all without authority of law. Did the School Board of Ephrata have authority of law to take 55 acres of land for a school building which would accommodate 65 pupils? Although the Board here proceeded vigorously in the assumed interests of the people of the borough, the zeal exercised in the execution of its duties was as excessive as its knowledge of the law applicable to the situation was lacking. One witness testified, for instance, that the vice president of the Board said that the Board could take more land than it needed for the school building and then sell what remained over. Obviously no school board can, even in this indirect fashion, go into the real estate business. The record shows quite clearly that the Board moved precipitately and without adequate preparation for the exercise of so solemn a power as that of eminent domain. No definite plans had been formulated as to the use to be made of the 55 acres. Although the Board knew that so vast an acreage could swallow up one building and many more, no specifications as to the proposed building had yet been indicated; no architect had been retained, and no surveys of the property had been made. Nor had any definitive location on the tract been designated for the intended structure. A bond issue of |150,0Q0 had been approved at the election of November, 1950, for the purpose of purchasing land and constructing a school building, but no estimate of construction costs was yet available. The darkness in which the directors moved in this most serious business of condemnation of private property was further evidenced by the fact that, although it was generally admitted 55 acres was excessive acreage for the public use intended, the directors were prepared to condemn 71 acres for that purpose had they known the plaintiffs owned an additional tract of 16 acres, title to which was not recorded at the time. Director R. Y. Grube testified: “Q. Would you have voted for that resolution if you had known there was an additional 16 acres, I am talking about the condemnation resolution? A. I don’t think anyone knew. Q. Would you have voted for all of the farm? A. I would have. Q. To take 71% acres? A. I would have, you can never get too much land”. (Italics supplied) This statement was made despite the general knowledge that the City of Lancaster had constructed a school building of 22 classrooms, administrative offices, health and music departments, library, gymnasium, locker and shower rooms, club room, lunch room, kitchen and auditorium on a plot of land covering only 12 acres. The members of the Ephrata School Board envisaged a vaguely formed program for the future which would encompass additional rooms to the building to be erected, a junior high school and a football field. But there was no money in the treasury or even in thought for such a program. The Lancaster School Building hereinbefore referred to cost $850,000. The State Council of Education had approved the condemnation of the 55 acre tract, but this is no evidence of necessity for the condemnation since, as Dr. Bowman, who had been with the Department of Education for 33 years and now occupies an important post in that department, testified, the Council never denied approval of a site because it was too large. He further stated that the minimum requirement established by the State Council of Education as to the size of school sites for elementary schools was two acres for a two-room school and one additional acre for each additional fifty students, and that he would have approved the erection of the Ephrata proposed school on a 10 acre tract. Although there is a presumption that school directors perform discretionary acts in the interests of public welfare and that their decisions have been reached by the exercise of intelligent judgment and in a legal manner after suitable investigation (Hibbs v. Arensberg, 276 Pa. 24, 119 A. 727), the evidence in this case overcomes that presumption and leads inevitably to the conclusion that the action of the School Board of Ephrata constituted an abuse of discretion in its exercise of the power of eminent domain. It was very early held by this Court in Lance’s Appeal, 55 Pa. 16, 25, that: “The right of the Commonwealth to take private property without the owner’s assent on compensation made, or authorize it to be taken, exists in her sovereign right of eminent domain, and can never be lawfully exercised but for a public purpose — supposed and intended to benefit the public, either mediately or immediately. The power arises out of the natural principle which teaches that private convenience must yield to the public wants. This public interest must lie at the basis of the exercise, or it would be confiscation and usurpation to exercise it. This being the reason for the exercise of such a power, it requires no argument to prove that after the right has been exercised the use of the property must be held in accordance with and for the purposes which justified its taking. Otherwise it would be a fraud on the owner, and an abuse of power. . . . The exercise of the right of eminent domain, whether directly by the state or its authorized grantee, is necessarily in derogation of private right, and the rule in that case is, that the authority is to be strictly construed: Dwarris on Stat. 750; 2 Casey 355; 3 Id. 339; 7 Harris 711. What is not granted is not to be exercised. In the celebrated case of Pennsylvania Mutual Life Ins. Co. v. Philadelphia, 242 Pa. 47, 56, 88 A. 904, this Court declared unconstitutional an Act of the General Assembly which empowered the City of Philadelphia to condemn certain lands which it could then resell to private persons with certain easement conditions. Justice Mestrezat, speaking for the Court, said: “Holding, as Ave do, that the use to be made of property located outside a public highway is not a public use for which private property may be taken by the city against the consent of the owner, the effect of the Act of 1907 authorizing the appropriation of property for such purpose is to permit by the exercise of eminent domain the taking of the property of one citizen without his consent and vesting the title thereto in another. No court in this country has yet sanctioned such action by the State or its representative exercising the power of eminent domain.” What the Legislature cannot do, a, fortiori a school district may not do. This decision is not intended to restrict the defendants in taking such action, not inconsistent with this opinion, as may be necessary to meet the needs of the School District of the Borough of Ephrata. Decree reversed, costs to be paid by appellees.

Opinion by Mr. Justice Bell, Defendant was found guilty by a trial Judge, sitting without a jury, of operating a motor vehicle while under the influence of intoxicating liquor. The Judg ment and Sentence of the Court of Quarter Sessions was affirmed by a unanimous Superior Court, and this Court allowed an allocatur. On January 22, 1957, at approximately 1:00 a.m., John McKnight was driving his automobile accompanied by his wife and three children, south on A Street in Philadelphia. A Street is a one-way street south. Defendant was driving his automobile west on Clearfield Street — the wrong way on a one-way street. When McKnight’s automobile was half-way across the intersection of A Street and Clearfield Street, it was struck on the left rear side by the front of an automobile driven by defendant. Defendant knocked McKnight’s automobile completely around and his three children were thrown into the street; his car ended up on the west side of the pavement about 25 yards down A Street. Officer Kinsella arrived at the scene of the accident very shortly after it occurred. After McKnight and his wife and their children, who were bleeding very badly, were placed in a patrol car to be taken to the hospital, the officer asked defendant where he thought he was going. Defendant did not answer the question. Officer Kinsella testified that defendant had the odor of alcohol on his breath, “that his face was kind of bloated, like, and his eyes looked kind of funny”. Officer Hinchcliffe arrived at the scene of the accident about 1:30 to investigate the accident. He interrogated defendant at 2:15 a.m. when defendant was in the cell block of the 30th District Station. Hinchcliffe testified that defendant “had an odor of alcohol on his person, his face was flushed, his eyes blood-shot and his speech was thick, and he was under the influence of intoxicating liquor”. He further testified that defendant told him that he knew he was on a one-way street, but did not know he was going the wrong way because he was not familiar with the neighborhood, although he said he traveled this route home every night on his way back to his home at Levittown; that he was going about 15 to 18 miles an hour, and that he saw MeKnight’s car when he was about 30 feet from the intersection of A Street, and put on his brakes but could- not stop. Defendant also said that it was a misty, foggy night. Notwithstanding this fact, the weather report showed that visibility was good for an entire city block. Defendant took the witness stand and told what the trial Judge described as a “cock-and-bull story”, a story that “reflected not only- a lack of candor but almost improvisation as the case went along ... in weighing the testimony of the witnesses the Court’s observation of defendant’s demeanor led it to reject his testimony as unworthy of belief.” A reading of the record amply supports the trial Judge’s finding that defendant’s testimony was unworthy of belief. Defendant seeks a new trial for two main reasons: (1) the testimony of the police surgeon which was favorable to him, and (2) the statements of the trial Judge which he contends were so prejudicial as to deny, him a fair, trial. When the Commonwealth concluded its case, the District Attorney announced there were two other witnesses named on the bill of indictment — John McKnight, an ill child aged 6, and Dr. Squillace, the police and fire surgeon, who examined defendant at about 2:30 or 2:35 a.m. The District Attorney then stated that the Commonwealth “does not choose to call Dr. Squillace but he is available to either the Court or the defendant”. Defendant then requested the Court to direct the District Attorney to call Dr. Squillace and the Court directed the Commonwealth to call him. Assuming, arguendo, that this was error, the error was prejudicial to the Commonwealth, not to the defendant. There is no duty on the Commonwealth to call witnesses whose names appear on a bill of indictment or even eye witnesses, if it believes after examination or investigation that their testimony is unreliable, or unworthy of belief, or surplusage or irrelevant. The law in such a case merely requires a District Attorney to notify the Court and defense counsel that he does not intend to call certain persons whose names appear on the bill of indictment as Commonwealth witnesses: Commonwealth v. Palermo, 368 Pa. 28, 81 A. 2d 540; Commonwealth v. Deitrick, 221 Pa. 7, 14, 15, 70 A. 275. See also: Commonwealth v. Danz, 211 Pa. 507, 522, 60 A. 1070; Commonwealth v. Giacobbe, 341 Pa. 187, 195, 19 A. 2d 71. In Commonwealth v. Palermo, 368 Pa., supra, the Court sustained the refusal of the District Attorney “to . . . call the only eye witness to the shooting”. The Court said (pages 32-33) : “It is a settled principle of law that the Commonwealth must try a case fairly and that the district attorney is not a ‘vindictive seeker for vengeance.’ Commonwealth v. Karamarkovic, 218 Pa. 405, 408, 67 A. 650 (1907). However, it is equally well established that the district attorney is not obliged to call all of the eye witnesses, ‘nor a particular eye witness where he has reason to- believe that the witness is unreliable.’ Commonwealth v. Thurman, 167 Pa. Superior Ct. 642, 647, 76 A. 2d 483 (1950). The calling of witnesses is within the discretion of the district attorney under the general supervision of the trial judge: Commonwealth v. Karamarkovic, supra; Commonwealth v. Deitrick, 221 Pa. 7, 14-15, 70 A. 275 (1908); Commonwealth v. Giacobbe, 341 Pa. 187, 196, 19 A. 2d 71 (1941)____” After Dr. Squillace was sworn, the trial Judge took over his examination. Dr. Squillace testified that defendant had an odor of alcohol about him but it was not very strong, his face was slightly flushed but there was no evidence of any staggering gait; he was well dressed and well oriented. Defendant’s temperature and pulse rate were normal. Defendant stated to him and to others that he had had two or three glasses of beer at 7 o’clock that night. Dr. Squillace then testified that in his opinion defendant was not under the influence of intoxicating liquor “to such an extent that he was not fit to drive an automobile safely in traffic.” This is not a sufficient or all-inclusive test to absolve defendant. The statute does not require that a person be drunk, or intoxicated, or unable to drive his automobile safely in traffic, but merely that the Commonwealth prove beyond a reasonable doubt that defendant was operating his automobile while under the influence of intoxicating liquor. It is very difficult to define “drunk”, or “intoxicated” or “under the influence of intoxicating liquor”. Intoxication is. a matter of common observation and knowledge, and because of observation, knowledge or experience, the opinions of laymen are admissible and medical opinion, while of course admissible, is not required: Commonwealth v. Eyler, 217 Pa. 512, 66 A. 746; Commonwealth v. Smith, 174 Pa. Superior Ct. 533, 102 A. 2d 243; Turner v. Penna. Liquor Control Board, 161 Pa. Superior Ct. 16, 53 A. 2d 849. The statutory expression “under the influence of intoxicating liquor” includes not only all the well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of drinking alcoholic beverages and (a) which makes one unfit to drive an automobile, or (b) which substantially impairs his judgment, or clear ness of intellect, or any of the normal faculties essential to the safe operation of an automobile. Cf. Commonwealth v. Smith, 174 Pa. Superior Ct. 533, 102 A. 2d 243; Commonwealth v. Schutzman, 169 Pa. Superior Ct. 72, 82 A. 2d 317; Commonwealth v. Phillips, 169 Pa. Superior Ct. 64, 82 A. 2d 587; Commonwealth v. Buoy, 128 Pa. Superior Ct. 264, 267, 193 A. 144. Courts cannot say as a matter of law how many drinks an individual can take without becoming under the influence of intoxicating liquor. The reasons for this are so well known as not to require recitation. Defendant complains that the trial Court committed reversible error in examining or cross-examining Dr. Squillace, although he requested the Court to order the police surgeon to be called by the District Attorney and took no exception to his examination by the Court. In Commonwealth v. Watts, 358 Pa. 92, 56 A. 2d 81, the Court said (page 96) : “It is always the right and sometimes the duty of a trial Judge to interrogate witnesses, although, of course, questioning from the bench should not show bias or feeling nor be unduly protracted.” See also: Commonwealth v. Myma, 278 Pa. 505, 123 A. 486; Commonwealth v. Del Giorno, 303 Pa. 509, 154 A. 786. Dr. Squillace’s testimony was exceptionally favorable to defendant, so it is obvious, for each of the above mentioned reasons, that there is no merit in this contention. Defendant also is in error in treating the evidence in the light most favorable to himself. “Defendant, like most defendants, proceeds on the assumption that a part of or none of a defendant’s [or a witness’s] statements, confessions or testimony”: Commonwealth you must believe all of his statements or confessions; of course, that is erroneous; a jury can believe all or v. Homeyer, 373 Pa. 150, 153, 94 A. 2d 743. The trial Judge based his findings, conclusions and decision to a large extent on thé credibility of the witnesses whom he saw and heard; he believed the Commonwealth’s witnesses but did not believe Dr. Squillace or the defendant; and on this basis the evidence was sufficient to justify the verdict of the trial Judge. Defendant further contends that he was deprived of a fair trial by the manner and statements of the trial Judge. Judge Woodside, speaking for a unanimous Superior Court, aptly said: “It is customary for arguments by counsel directed to a trial judge sitting without a jury to be far less formal than the arguments made to a jury. The trial judge frequently enters into a discussion with counsel concerning both the facts and the law. The informality of these arguments, through the discussion method, not only saves time, but also frequently enables the counsel to discover the court’s predilections on particular issues. This gives counsel an opportunity to direct the trial judge’s attention to evidence which he may have overlooked on such issues, to argue reasons for the trial judge to believe or disbelieve certain evidence bearing on them, and to emphasize reasons why the court should draw favorable inferences from certain evidence. This, it seems to us, is an advantage to the defendants which would be lost to them if trial judges were required to avoid stating their thoughts during an argument made after all the evidence had been presented . . . .” Without discussing in detail the statements of the trial Judge which defendant believes were highly preju dicial, it will suffice to say that several of them appear to be too impulsive, unwise and lacking in judicial restraint, but they were not sufficient to warrant a new trial on the ground of bias or prejudice or a violation of defendant’s Constitutional right to a fair trial. The Judgment of the Superior .Court affirming the Judgment and Sentence of the Court of' Quarter Sessions of Philadelphia County is affirmed. Tbe trial Judge, because be believed be did not permit adequate cross-examination, did not consider tbe testimony of McKnight, wbo testified defendant staggered as be got out of bis ear, or tbe testimony of Officer Garvin wbo testified that as be picked up McKnigbt’s children be noticed a very strong odor of alcobo1 on defendant’s breatb.

Opinion by Mb. Justice Eagen, In a trespass action brought by her husband for injuries and pecuniary losses allegedly sustained by him, as an occupant of an automobile, because of the alleged negligence of the defendants (operators of two vehicles which figured in the intersection collision), Mrs. Neuberg has joined as plaintiff and seeks recovery for the resultant loss to her of his “society, services and sexual companionship.” Preliminary objections filed on behalf of one of the defendants, in the nature of a demurrer and a motion to strike from the complaint the paragraph setting forth the prayer of the wife, were sustained by the court below. This appeal is from that ruling. Thus is there raised directly, for the first time in an appellate court of this Commonwealth, a question much litigated in other jurisdictions of this Union and of England. Does a married woman have a cause of action in Pennsylvania for the loss of her husband’s consortium caused by the negligent act of a third party? The authorities elsewhere are many and conflicting. Reasons assigned for the respective positions taken are similarly numerous and divergent. While, concededly, there are no intra-jurisdictional cases directly in point, there are, in our reporters, cases which shed varying degrees of light on this Court’s past attitude toward similar attempts to assert related causes of action. Undoubtedly contained in the concept of consortium is the element of services. This Court in Kelley v. Mayberry Township, 154 Pa. 440, 26 Atl. 595 (1893), when defining “services”, referred to Cooley on Torts as follows: “Speaking of the origin, etc., of the term ‘services/ the same learned author says the word as now understood in connection with claims by husbands for damages, etc., ‘implies whatever of aid, assistance, comfort and society the wife would be expected to render to, or bestow upon, her husband, under the circumstances and in the condition in which they may be placed, whatever those may be.’ ” In Quinn v. Pittsburgh, 243 Pa. 521, 90 Atl. 353 (1914), the charge of the trial court in an action in trespass by a mother, suing for personal injuries sustained by her ten year old daughter and for her own loss of the child’s services, was to the effect that the jury could award to the mother damages for “the companionship which she (the daughter) would (otherwise have given) her mother.” There would appear to be no distinction between the words “companionship” and “society”. In reversing the judgment in favor of the mother, this Court, at page 525, made the following significant comment: “The right to recover for loss of companionship is confined to cases where a husband sues for injuries to his wife. The law does not recognize loss of companionship as an element of damage in any other relation.” In Donoghue v. Consolidated Traction Co., 201 Pa. 181, 50 Atl. 952 (1902), we said at 183: “There is no natural right in one person to damages for injury to another. At common law the husband had an action for damages for injury to the wife whereby he lost her services, because he had the right to her services, including her earnings. The right arose from the common law relation of unity of person, the husband as to personal property and services being the person. But marriage is a civil contract involving rights under the control of the lawmaking power. The legislature may sever the unity of person, and as to property, the right to separate earnings of the wife, and the damages for personal injury to her, it has already done so to a very great extent. It would be but a step farther in the same direction to take away altogether the husband’s action for loss of services of the wife.” Before passing nn to our review of out-of-state authority, we note that the same question presented here has been ruled on by our lower courts in Stedman v. Phillips, 36 Lack. Jur. 128 (1935); Dupe v. Hunsberger, 58 Pa. D. & C. 483, 62 Montg. 315 (1946); Faust v. Kunselman, 30 Wash. 106 (1948) ; Chomko v. Butchabitz, 53 (No. 2) Lack. Jur. 180 (1952); Hayes v. Swenson, 106 Pitts. 141 (1958) ; and Mlynek v. Yarnall, 19 Pa. D. & C. 2d 333 (1959), in only one of which cases, Hayes, was this issue decided favorably to the wife-plaintiff. The Hayes decision was caused to turn on the theory that “[w]hat is sauce for the gander is sauce for the goose.” Even without a painstaking research into the “Game Laws” of this state, we will venture to say that, accepting the analogy, there can be no quarrel with that conclusion as a general proposition. But it is only after an historical inquiry is made into the ancient origins of the gander’s sauce, as it were, and as it is applied to the situation at hand, that one can conclude, as we do, that either 1) the sauce was never a proper ingredient of the diet or 2) however indispensable it may have been in decades past, it has no place in that diet today. Be that as it may, it is in our opinion, today more than ever, just that: sauce. We are advised that the trend of the hour is toward the complete and universal emancipation of women and that this end is, to a large extent, now an accomplished fact. Of that we have been aware. The roots which at one time, if ever, gave nurture and a legitimate birth to the husband’s right to assert a claim for loss of consortium have long since wizened and died. They owe their origin to a seed of thought which, when viewed by the eyeglass of the present day, none should accept, much less implant anew. In St. Matthew’s Gospel, Chapter XIX, we find the precept that “a man shall leave [his] father and mother, and shall cleave to his wife and they twain shall be one flesh.” The lawyers at early common law seem to have developed this into the legal principle that “by marriage the husband and wife are one person and the husband is that one.” Sir William Blackstone declared that “Upon this principle of a union of person in husband and wife depend almost all the legal rights, duties and disabilities that either of them acquire by the marriage” and that “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband under whose wing, protection and cover she performs everything” : Book I, Chap. 15, Blackstone’s Commentaries, 1 Lewis 411. In effect, the woman spouse was her husband’s chattel, his property. She owed him duties much the same as did a servant his master. If he by injury to her suffered a loss of some feudal service owing to him by her, he and he alone — for she was too inferior a subject to have any such right, much less the privilege to assert it — was allowed to sue to recover, just as he would sue for injuries done to his cattle. He, for all technical purposes, owned her at common law and, consistent with that now universally rejected theory, he was accorded the right to recover for “loss of consortium”. That the woman today is not regarded as she was at common law is too obvious for comment. The husband’s right to recover on this theory is without present day justification. The historical fictions have been shattered. The pillars which for decades had been regarded as lending support to this monument to the lord are today so effectively undermined by remedial legislation which recognizes the status of the wife as equal to that of her spouse that, in an increasing number of jurisdictions, they are being razed rather than looked to for further and extended service. As stated in Kaczorowski v. Kalkosinski, 321 Pa. 438, 444, 184 Atl. 663 (1936), in speaking of the long established legal prohibition of tort actions between spouses, “When the policy behind a rule no longer exists, the rule should disappear.” In this connection we note the following language of the Court of Appeals of New York in Kronenbitter v. Washburn Wire Co., 4 N.Y.2d 524, 151 N.E. 2d 898, 176 N.Y.S.2d 354, 355 (1958) : “To decide otherwise would be contrary to principle . . . The argument that equality of the sexes calls for a change overlooks that the husband’s right to damages for loss of consortium is based on outworn theory.” .Then, quoting from 18 Law & Contemp. Prob. 219, 229, the court adopting the language of Professor Jaffe continued : “ ‘More persuasive is the argument that since the husband has an action, so should the wife. But his action is a fossil from an earlier era. It is one of a group of archaic actions based on the notion that the paterfamilias was alone competent to sue for losses suffered by the family unit . . . When to the husband’s action there is now added the wife’s action for negligent injuries (which being emancipated she is .entitled to bring) there is a danger of duplicating elements of damage. Ingenious efforts must be made to disentangle from the wife’s recovery the constitutents of the husband’s cause of action. Indeed, the emancipation argues for the restriction or abolition of these actions rather than their extension. Some courts have been bold enough entirely to abolish the husband’s action ...,’” citing a list of cases to which can now be added West v. City of San Diego, 346 P. 2d 479 (1959) and Alsop v. Eastern Air Lines, Inc., 171 F. Supp. 180 (E.D. Va. 1959), the latter of which construes a Virginia statute which disposes of the problem in a rational and commendable manner. Nor has the doctrine as applied to the husband’s right to sue for loss of consortium been free from increasing areas of “sore spots” in our own jurisdiction. It is feared that absurd results, already promised by the following cases, would but spread epidemically were we to create in the wife a right which we have already seen she never had at common law. In the very recent case of Anderson and Wheeler v. Rogers, 21 Pa. D. & C. 2d 13 (1959), we see this anomalous situation. A married woman was injured on April 21, 1956. She sued on March 5, 1957. She was divorced very shortly thereafter. She was remarried in June of 1957. On April 11, 1958, a motion was made to amend the complaint so as to plead a cause of action in favor of her former husband who the attorneys and court believed was still married to her. This was allowed after her divorce and remarriage. Later, on August 4, 1959, a petition was made to amend the amended complaint so as to substitute the name “Barnes” (the name of her second husband) wherever the name “Wheeler” had appeared, thus seeking to afford the second husband recovery for his loss of consortium. This was denied on the sole ground that the Statute of Limitations had barred his claim. The following interesting discussion appears in that opinion: “The case at bar presents the possibility of a unique circumstance. Had Pearline Wheeler informed counsel of the change in her marital status at the time when it occurred or prior to the expiration of the Statute of Limitations, both the former and present husbands might have appeared in this case as parties-plaintiff with separate causes of action for medical expenses and loss of consortium suffered by each while married to the plaintiff-wife and resulting from her alleged injuries caused by the alleged negligence of the defendants. There does not appear to be any reason preventing such an inclusion of parties plaintiff if each of their actions were to be filed timely.” This case relied on Orga v. Pittsburgh Railways Company, 155 Pa. Superior Ct. 82, 38 Atl. 391 (1944). There a woman was injured five weeks before her marriage to plaintiff. The lower court had charged the jury that the husband was entitled to damages, present negligence, for loss of consortium and the jury so found. No objection to this charge was made at the trial and the issue was held improperly raised for the first time on appeal to the Superior Court. But that court, referring to the husband’s right to recover under those circumstances had timely objection been made, said at 85: “As to compensation for the loss of his wife’s services, there is very respectable authority in other jurisdictions to support a verdict for that, too.” This bit of dictum in Orga was specifically rejected by a court of inferior jurisdiction in Donough v. Vile, 61 Pa. D. & C. 460 (1947). We hesitate the longer to reincarnate the right to sue for loss of consortium in the form for which contention is made here when we see this confusion raised, seemingly, to the third power by the following even more involved, complexities. A determination of what is meant by “consortium” is itself a problem, as evidenced by the fact that, as late as 1951, in the English case of Best v. Samuel Fox & Co., Ld., [1951] 2 K.B. 639, 657 Lord Justice Birkett, after reviewing the decision of the United States Court of Appeals in Hitaffer v. Argonne Co., Inc., 183 F. 2d 811 (D.C. Cir. 1950), (the first and leading American case recognizing the right asserted in the instant case), was compelled correctly to state: “The term ‘consortium’ is nowhere defined with complete precision.” There is great conflict also with respect to its application. Some courts hold there can be no recovery for an alleged loss of consortium unless there is a loss of services; that a mere loss of society is not sufficient. Russell v. Marboro Books, 183 N.Y.S. 2d 8, 18 Misc. 2d 166 (1959) ; Best v. Samuel Fox & Co., Ld., supra. Some rule that there can be no recovery for a mere impairment of the other spouse’s capacities but that recovery is only for the loss, temporary or permanent of the elements of consortium. In Pennsylvania, however, the fact “ ‘That services in the ordinary sense were not rendered at all would be immaterial and irrelevant, except as the fact might, under some circumstances, tend to show a want of conjugal regard and affection and thereby mitigate the damages.’ ” Kelley v. Mayberry Township, supra; Platz v. McKean Twp., 178 Pa. 601, 36 Atl. 136 (1897) ; Delaware, etc., R. Co. v. Jones, 128 Pa. 308, 18 Atl. 330 (1889). Thus, the fact of marriage to the injured spouse is itself apparently enough to support a finding for recovery, because “in such cases jurors, endowed with at least a modicum of common sense, may be supposed to have some knowledge of ordinary affairs of life.” Kelley v. Mayberry Township, supra, at 448. Even, then, among the authorities which have always recognized the right as applied to the husband, there are irreconcilable differences as to the very definition of the cause of action itself, its application in practice, and its interpretation generally. It is, at best, a vague, undefinable and embarrassing left-over from another day and age. We have reviewed the cases cited to us by appellant from the jurisdictions allowing recovery under circumstances similar to the situation here. Our research has uncovered still other cases favorable to appellant: Hoekstra v. Helgeland, 98 N.W. 2d 669, S.D. (1959); Montgomery v. Stephan, 359 Mich. 33, 101 N.W. 2d 227 (1960). It is enough, without more, to say that we are unpersuaded by those opinions, each of which is an exhaustive treatise on the subject. Rather do we feel, as did Lord Porter in Best v. Samuel Fox & Co., Ld. [1952], A.C. 716, 728 when he said: “Even if it be conceded that the rights of husband and wife (in this respect) ought to be equalized, I agree with the Lord Chief Justice that today a husband’s right of action for loss of his wife’s consortium is an anomaly and see no good reason for extending it.” We cannot assent to the argument that since the status of a married woman is now, in all other respects, so improved as to render her equal with her husband, that this, in itself, establishes her right to a cause of action for loss of consortium. Rather do we share President Judge Henninger’s thoughts as expressed in Mlynek v. Yarnall, supra, in the following language: “If, as contended, the husband’s right to recover for loss of consortium is based upon the wife’s lowly status as a servant or as a chattel, then to grant the wife a right to so recover does not lift the wife to the status of her husband, but it reduces the husband to the outworn concept of the wife’s lowly status. Rather than grant to the wife the right to damages for loss of consortium, the logical solution would be to terminate the husband’s claim on the theory that the wife is no longer the servant and chattel.” Appellee argues that if we should grant the right to the wife there would follow attempts by others in an intimate relationship to assert similar causes of action. In short, it is contended that if a wife can recover for injuries to her husband, then others— children, dependent members of households, possibly even business partners — should perhaps also be allowed to sue to recover for the inconveniences to which they were put by the injury. Indicative of the efforts made by others to recover on this theory are the following cases: Hill v. Sibley Memorial Hospital, 108 F. Supp. 739 (D.C. 1952); Halberg v. Young, 41 Hawaii 634 (1957) ; Meredith v. Scruggs, 244 F. 2d 604 (9th Cir. 1957); Gibson v. Johnston, 166 Ohio St. 288, 144 N.E. 2d 310 (1956) ; Erhardt v. Havens, Inc., 330 P. 2d 1010 (1958); Turner v. Atlantic Coast Line Railroad Company, 159 F. Supp. 590 (N.D. Ga. 1958); Jeune v. Del E. Webb Construction Company, 77 Ariz. 226, 269 P. 2d 723 (1954) ; Eschenbach v. Benjamin, 195 Minn. 378, 263 N.W. 154 (1935); Sisk v. Pressley, 81 F. Supp. 16 (E.D. S.C. 1948); Pinson v. Southern Ry., 85 S.C. 355, 67 S.E. 464 (1910); and, Pleasant v. Washington Sand & Gravel Company, 262 F. 2d 471 (D.C. Cir. 1958). Recovery was allowed in none of the above cases. It would appear, however, that, with few exceptions, the arguments used on behalf of a married person in a consortium suit against the negligent third party could be urged with no less validity in actions against responsible tortfeasors brought by or on behalf of infant children of an injured party. The fact that recovery is allowed in trespass to a wife against a defendant for criminal conversation or alienation of affections presents a situation which is not analogous to the matter here at issue and has not deterred courts from denying relief in cases of the type now before us. In Karchner v. Mumie, 398 Pa. 13, 156 A. 2d 537 (1959), this Court recognized for the first time the right of a wife to recover damages for criminal conversation. That right is preserved to the wife in many jurisdictions which disallow recovery by her as against a negligent defendant for loss of consortium. Said Cohen, L. J., in Best, supra, “. . . in the enticement cases intentional infringement of the rights of the consort is an essential ingredient in the cause of action. The remedy in that case may therefore be treated as a natural extension of the principle. . . . Moreover, no injustice can be done to the defendant since, ex hypothesi, his action was malicious. . . In cases such as the one before us, however, it is impossible to suggest any malice against the wife on the part of the defendant or any intentional interference with her right of consortium. . . It seems to me, therefore, that it would be an extension of a line of decisions in itself anomalous if we were, in such cases as the present, to recognize a right of action in a wife corresponding to that which the courts have recognized as vested in the husband. . . . True it is . . . that this involves the recognition of a distinction between the respective rights of a husband and of wife which is contrary to current opinion; but it has never been held that the wife has any right of servitium from the husband, and an extension of the principle to actions by the wife seems to me to involve real hardship on a defendant who will have already paid damages to the husband, in assessing which, allowance will, I think, have been made for the impairment of his ability to perform his obligation to support his wife.” The opinion of another Justice sitting in the same case reads, in part, as follows: . . if the husband’s own right had first come in question as res integra today, it would probably have been negatived. As it is, the husband’s right being deeply entrenched in authority and the wife’s, never having been affirmed, I think that the intervention of the legislature would be needed to produce equality either by abolishing the husband’s cause of action or by retaining it and conferring a similar cause of action on the wife. I do not believe that at present the wife has such a cause of action as is claimed. Whether she ought to is, of course, quite another question.” Our thinking is in accord with this approach to the question presented. Believing the cause of action for “loss of consortium” to be an anachronism, we are unwilling to extend the rule allowing it to another line of cases. Accordingly, we hold that a married woman has no cause of action in Pennsylvania in trespass for the loss of her husband’s consortium caused by the negligent act of a third party. The order of the court below is affirmed. Mr. Justice Bell concurs in the result.

Opinion by Mr. Justice Roberts, In May 1964, appellants, B. Price and Barook Masuda, instituted an action in equity to enjoin appellee, the Philadelphia Parking Authority, from proceeding under separate negotiated agreements for the development of two projects, hereafter referred to as the Academy House Project and the Rittenhouse Square Project, and to have such agreements declared null and void. The Philadelphia Parking Authority is “a public body corporate and politic, exercising public powers,” created by the City of Philadelphia pursuant to enabling legislation for the purpose of establishing a coordinated system of off-street public parking facilities. Purporting to act under the powers granted by the enabling act, the Authority entered into the challenged projects: the Academy House Project with National Land and Investment Company and the Rittenhouse Square Project with Jack Wolgin and Ephraim Prankel. Due to the nature of the action and the issues presented, it is necessary that we set out the essential terms of the contested agreements. I. Academy House Project The Philadelphia Parking Authority presently operates an open-air facility of a 100 car capacity on the southern half of the block bordered by Broad, Watts, Spruce, and Locust Streets in the City of Philadelphia. National Land and Investment Company is the record owner of the remaining portion of the block, the situs of a vacant structure formerly the John Bartram Hotel. In the Fall of 1963, National Land and the Parking Authority entered into a negotiated agreement for the development of the Academy House Project. In essential terms, the agreement provided that tbe Authority was to purchase that portion of the block owned by National and to acquire the remainder from the City of Philadelphia. The Authority further agreed to demolish the existing structure and to finance and construct an eight-story public parking garage on the site. The proposed garage, estimated to cost between $8,000,000 and $9,000,000, was to provide space for approximately 862 automobiles and was to be leased to National for operation as an Authority parking facility. The term of the lease with National for the garage was to be co-terminous with the life of the bonds issued by the Authority to finance land acquisition and construction costs. National, however, was granted an exclusive option to renew the lease “if, and whenever and to the extent that, the life of the Authority is extended . . . .” In addition to the garage, the Authority also agreed to lease for a like term the air space over the proposed facility to the private developer for the construction of a high-rise apartment complex. The contemplated structure was to consist of two apartment towers rising 22 floors above the garage, containing in excess of 1000 apartment units. The developer was to be permitted to allocate space on the ground and concourse levels of the garage for its own use or for lease to commercial tenants. This area was to occupy approximately 74,000 square feet and was to be sublet to private commercial tenants for offices, shops, a bank, and a restaurant. National’s financial commitments under the lease agreement called for three separate rental payments: (1) “debt-service rentals” which were to consist of an amount sufficient to meet the amortization and interest on the bonds issued by the Authority to finance the acquisition of the situs and construction of the garage j (2) “Authority rentals” which were to consist of payments for the use of air space over the garage in the following sequence and amounts: $5,000 for the first year of the lease term, $10,000 for the second, $15,000 for the third, $20,000 for the fourth, $25,000 for the fifth and every year thereafter, except for the last 10 years of the lease term, for which the payment was to be $30,000 annually; and (3) “excess rentals” which were to consist of a percentage of the gross receipts over a given amount received by the developer from the operation of the garage and the lease of commercial space therein. Neither the percentage nor the level of gross receipts at which excess rental payments become due is stated in the written agreement or has as yet been fixed by the parties. Under the agreement, title to the project was to be in the name of the Parking Authority. The developer, however, obtained an exclusive option to acquire the entirety, including the land, garage and apartment structure tliereon, at the end of the lease term for an amount based upon the cost of the garage or its appraised value at the time of purchase. Thus, no actual payment was to be required for the acquisition by National of title to the structure to be constructed by it over the garage facility. As an aspect of the lease, the developer agreed to operate the proposed garage “as a public parking facility of the Authority . . . .” The rates and other charges for use of the garage by the public were to be determined by the Authority subject to the proviso that the fees could not be reduced below the amounts initially set without the lessee’s consent. II. Rittenhouse Square Project At approximately the same time the negotiations took place between the Authority and National, the Authority also entered into a construction and lease agreement with Jack Wolgin and Ephraim Frankel. The agreement provided for the lease of air rights over a parking facility owned and operated by the Authority at 1815-27 Walnut Street, Philadelphia, Pennsylvania. Under this agreement, the tenant-developers, Wolgin and Frankel, were empowered to construct a 19 story office building over the Authority’s parking garage. The tenants were also to be permitted to “improve and occupy space within the Garage for access to and support of the Office-Building, and... [to] construct ... [stores] in the basement and on the ground level of the Garage . . .” to be used for their benefit or sublet to other private commercial tenants. The tenant-developers, under the agreement, were obliged to pay the Authority for the spaee within and above the garage a rental averaging approximately $25,-000 annually. The term of the lease was to extend for the life of the Authority, including any extension thereof, but was not to exceed 99 years. During the lease term, the parking facilities and improvements thereto made by Wolgin and Frankel, including the office building to be constructed, were to be owned by the Authority. However, the developers were given an exclusive option to purchase the entire project, land, parking facilities, and all improvements, for a sum ranging from $1,000,000 to $1,318,000, exercisable after January 1993, or after the retirement of all outstanding revenue bonds, whichever occurred later. III. Grounds of Challenge In their complaint, Price and Masuda challenge the legality of both projects alleging essentially that the Authority, by employing negotiated agreements rather than competitive bidding, had exceeded its statutory authority; that the Authority was not authorized to engage in the projects because as envisioned they were primarily and predominantly private in nature; and that, as to the Academy House Project, there was no demonstrable present or anticipated future public need for the parking facility proposed. The Parking Authority filed an answer to the complaint which put the essential facts in issue, and the parties presented testimony. At the start of the trial, at the conclusion of appellants’ case, and again when the record was closed, the Authority moved to dismiss on the ground that Price and Masuda lacked standing to challenge the transactions and that they had failed to establish that they were entitled to the relief sought. Treating the complaint as averring two separate causes of action, the chancellor granted the Authori ty’s motion to dismiss with respect to the Rittenhouse Square Project on the ground that the complaining parties lacked standing to challenge the transaction. He denied the motion as to the Academy House Project and proceeded to make an adjudication, with findings of fact and conclusions of law. The chancellor concluded that the Parking Authority, by entering into the Academy House Project without competitive bidding, had not violated the provisions of the enabling act. He further concluded that the project was a public endeavor and that appellants had failed conclusively to establish the lack of public need for the proposed construction. And, although he had previously dismissed that portion of the complaint seeking to enjoin the Rittenhouse Square Project, the chancellor proceeded to make findings of fact and conclusions of law on the merits in order to provide a record in the event that his determination that Price and Masuda lacked standing to challenge it be reversed. On the merits, he concluded that the Authority had not acted contrary to the enabling act. IV. Standing to Sue Price and Masuda are citizens and taxpayers of the City of Philadelphia. In sustaining their standing to challenge the Academy House Project, the chancellor found that Price and Masuda fell within the ambit of the well-defined rule that a taxpayer may challenge the “wrongful expenditures of tax monies and the wasting of assets.” Loewen v. Shapiro, 389 Pa. 610, 613, 133 A. 2d 525, 527 (1957). Although the Authority is not a traditional governmental body, it is created to perform essential public services through the medium of a publicly owned enterprise and is not subject to taxes or assessments upon any property acquired for or devoted to such purposes. Act of June 5, 1947, P. L. 458, §15, as amended, 53 P.S. §355, enacted pursuant to Pa. Const., Art. IX, §1; see Pittsburgh Public Parking Auth. v. Bd. of Property Assessment, 377 Pa. 274, 279, 105 A. 2d 165, 166 (1954); McSorley v. Fitzgerald, 359 Pa. 264, 267, 59 A. 2d 142, 144 (1948); cf. Moon Township Appeal, 387 Pa. 144, 127 A. 2d 361 (1956); West View Borough Municipal Auth. Appeal, 381 Pa. 416, 113 A. 2d 307 (1955). Thus, if permitted to proceed, the Academy House Project will presumably result in the removal of a large tract of real estate from the tax rolls because of the location thereon of an Authority parking facility. Cf. Pittsburgh Public Parking Auth. v. Bd. of Property Assessment, 377 Pa. 274, 105 A. 2d 165 (1954); Moon Township Appeal, 387 Pa. 144, 127 A. 2d 361 (1956). Based upon appellants’ allegation that real estate would be illegally exempted thereby, the chancellor reasoned that the project was amenable to challenge by one whose tax burden would be affected. We agree with this conclusion. As the chancellor stated, “to the extent that real estate tax revenues will be diminished by an illegal exemption, and hence be unavailable for future use, . . . [Price and Masuda] as contributors to that fund will have suffered a pecuniary loss.” In Mayer v. Hemphill, 411 Pa. 1, 6, 190 A. 2d 444, 446 (1963), this Court reiterated the well-settled rule that a taxpayer may seek to enjoin the wrongful or unlawful expenditure of public funds even though he is unable to establish any injury other than to his interest as a taxpayer. See Smith v. Gallagher, 408 Pa. 551, 185 A. 2d 135 (1962) ; Scudder v. Smith, 331 Pa. 165, 200 Atl. 601 (1938); Harris v. Philadelphia, 299 Pa. 473, 149 Atl. 722 (1930); Page v. King, 285 Pa. 153, 131 Atl. 707 (1926). The court below correctly reasoned that the reduction of tbe tax base which results from the exemption of property from taxation has, for all practical purposes, the same effect upon the taxpayer as an expenditure of funds. If the latter is challengable by a taxpayer, as has been repeatedly held, so therefore must be the former. Cf. Bernstein v. Pittsburgh, 366 Pa. 200, 77 A. 2d 452 (1951). Proceeding to that portion of the complaint dealing with the Rittenhouse Square proposal, the chancellor concluded that Price and Masuda lacked standing to challenge that project. In distinguishing that transaction from Academy House, the chancellor reasoned that since the Authority presently enjoys a tax exemption on its existing facility, the mere lease of commercial space within and above the building, even if improper, did not threaten appellants with any pecuniary injury. He concluded, therefore, that appellants could not invoke equity jurisdiction to attack the Rittenhouse Square Project. In this, the chancellor erred. As has previously been noted, under tbe agreement between the Authority and tbe developers of tbe Rittenbouse Square Project, tbe latter were given an exclusive option to purchase tbe existing garage facility and land. Thus, tbe Rittenbouse Square Project involves not merely a lease transaction but also envisions tbe sale of publicly owned and financed facilities to private developers. In considering tbe Authority’s claim that tbe Rittenbouse Square Project is not subject to tbe instant challenge, it is significant to note that tbe existence of tbe Parking Authority is limited to a term of fifty years, subject to the power of tbe City of Philadelphia to extend its life for an additional like term. Act of June 5, 1947, P. L. 458, §5, as amended, 53 P.S. §345(b)(1). Upon tbe termination of its existence, tbe assets of tbe Authority will pass to tbe City of Philadelphia. Act of June 5, 1947, P. L. 458, §14, as amended, 53 P.S. §354. Thus, within tbe foreseeable future, tbe City of Philadelphia is destined to acquire the assets of tbe Authority. And, an alleged improper diversion of this property, following its acquisition by tbe City, would be subject to judicial scrutiny at tbe behest of a taxpayer. Yet, in tbe instant case, if Authority property is improperly diverted, Price and Masuda, as citizens and taxpayers of tbe City of Philadelphia, will sustain a similar pecuniary injury. Under such circumstances, we are led to conclude that Price and Masuda, as representatives of tbe taxpayers of tbe City of Philadelphia, possess the requisite pecuniary interest in the Rittenhouse Square Project to challenge the transaction. Our conclusion is reinforced by a recognition of the need to subject the activities of public authorities to judicial scrutiny. As public bodies, they exercise public powers and must act strictly within their legislative mandates. Moreover, they stand in a fiduciary relationship to the public which they are created to serve and their conduct must be guided by good faith and sound judgment. See Schwartz v. Urban Redevelopment Auth., 411 Pa. 530, 536, 192 A. 2d 371, 374 (1963); Heilig Bros. Co. Inc. v. Kohler, 366 Pa. 72, 77-78, 76 A. 2d 613, 616 (1950). The mushrooming of authorities at all levels of government and the frequent complaint that such bodies act in an arbitrary and capricious manner in violation of existing law dictate that a check rein be kept upon them. Schwartz v. Urban Redevelopment Auth., 411 Pa. 530, 536, 192 A. 2d 371, 374 (1963); Keystone Raceway Corp. v. State Harness Racing Comm., 405 Pa. 1, 5, 173 A. 2d 97, 99 (1961). These considerations dictate that the independence of authorities from some of the usual restrictions on governmental activity not be extended so as to insulate them from judicial scrutiny through the medium of taxpayers’ suits. Having concluded that appellants have standing to seek to enjoin the Rittenhouse Square Project as well as the Academy House Project, we now proceed to a consideration of the merits of their challenge. Y. Academy House Project Appellants first urge that the chancellor erred in concluding that the enabling act did not impose upon the Authority the duty to utilize competitive bidding in the leasing of the air rights over the proposed Academy House construction. While we are in agreement with the chancellor’s conclusion that the Authority was free to negotiate the lease o'f the proposed garage facility, we do not agree that it was free to dispense with competitive bidding in the leasing of air rights. The enabling act grants the Authority broad general powers to operate, own, and lease — both as lessee or lessor — facilities in the fulfillment of its statutory purpose of providing public off-street parking. Act of June 5, 1947, P. L. 458, §5, as amended, 53 P.S. §345 (a) (Supp. 1965). In order to assist in defraying its expenses, the Authority is also empowered by the enabling act “to lease portions of the street level or other floors of . . . parking facilities for commercial use . . . .” Ibid. However, leases of such commercial space within Authority facilities are subject to the explicit statutory requirement that they be entered into “on a fair competitive basis.” Ibid. Thus, the enabling act distinguishes between the leasing of facilities for operation as an Authority parking garage and the leasing of commercial space for incidental, revenue producing purposes, explicitly mandating that the latter commercial leases be granted only on the basis of competitive bidding. Ibid. In 1961, the Legislature added the following proviso to §5 of the Act: “Nothing herein contained shall be construed to prohibit the sale or leasing by the Authority of the right to occupy and use the space above any parking facilities for commercial uses other than parking . . . .” Act of June 5,1947, P. L. 458, as amended, Act of September 2, 1961, P. L. 1229, §1, 53 P.S. §345(a) (Supp. 1965). This amendment merely granted the Authority the power to lease air space for non-parking commercial uses just as the Act had previously authorized the Authority “to lease portions of the street level or other floors of . . . parking facilities for commercial use . . . .” It is clear, therefore, that the power to lease air rights is an aspect of the Authority’s power to lease non-parking commercial space and only incidental to its primary purpose of providing parking facilities for the general public. This Court has previously expressed the policies underlying the requirement of competitive bidding, noting that the resulting competition guards against favoritism, improvidence, fraud, and corruption in the awarding of public contracts. Yohe v. Lower Burrell, 418 Pa. 23, 28, 208 A. 2d 847, 850 (1965); Corcoran v. Philaelphia, 363 Pa. 606, 609, 70 A. 2d 621, 623 (1950); see also 10 McQuillin, Municipal Corporations §29.29 (3d ed. 1950). Giving recognition to these policies, the Legislature explicitly mandated the use of competitive bidding both with respect to the leasing of non-parking commercial space and the letting of construction and repair contracts. The language of the 1961 Amendment to the Act providing for the leasing of air space neither specifically nor impliedly exempts such leases from the requirement of competitive bidding. Nothing there contained suggests an intent on the part of the Legislature to alter its policy of requiring competitive bidding in the leasing of commercial space so as to exclude the leasing of air rights from the requirement of such bidding and to deny the public the protection thereby afforded. Absent a clear expression of such an intent, we are compelled to conclude that such leases are subject to the same requirement as all non-parking commercial leases, that they be granted “on a fair competitive basis.” We hold, therefore, that the agreement between the Parking Authority and National for the lease of air rights over the Academy House Project, entered into by private negotiation rather than by competitive bidding, was unauthorized and void. Accordingly, Price and Masuda were entitled to the relief which they sought below and the action of the chancellor in dismissing their complaint must be reversed. However, in light of the importance of the public issues raised by the challenged transaction, we find it appropriate to discuss another aspect of the litigation which also mandates reversal of the court below. Price and Masuda attacked the Academy House Project not only on the ground that it was entered into without competitive bidding but also on the ground that any benefit to be derived therefrom would be predominantly private, not public in nature and that the project was therefore beyond the scope of the powers statutorily conferred upon the Authority. Our consideration of the transaction in its entirety leads us to conclude that they must prevail on this ground as well. The Parking Authority, as a public corporation, exercises public powers. Act of June 5, 1947, P. L. 458, §5, as amended, 53 P.S. §345 (Supp. 1965). Its engagements are public in nature, and its facilities, whether operated by the Authority or leased to private parties, are public property. See Pittsburgh Public Parking Auth. Petition, 366 Pa. 10, 76 A. 2d 620 (1950). Empowered to act only for the public benefit, the Authority may not employ its resources for the primary and paramount benefit of a private endeavor. An engagement essentially private in nature may not be justified on the theory that the public will be incidentally benefited. In determining whether the instant project is essentially public or private in nature, we are confront ed with, an issue analogous to that frequently presented in eminent domain proceedings. We have said in that context that such power may not be employed for the purpose of devoting the property so acquired for merely private benefit. See Belovsky v. Redevelopment Auth. of Philadelphia, 357 Pa. 329, 340, 54 A. 2d 277, 282 (1947). Although there may be an incidental benefit to private parties without invalidating the taking, the power of eminent domain may not be employed unless the public is to be the primary and paramount beneficiary of its exercise. Ibid. And while we do not deal here with eminent domain, we are confronted with the purported exercise of powers statutorily subject to the same limitation. The Parking Authority Law confers no power on the Authority to act other than for the public benefit in providing off-street parking facilities. Accordingly, the Academy House Project may not be permitted to proceed unless as presently envisioned it will result predominantly in public benefit through the creation of additional off-street public parking facilities commensurate with the public investment in the project. In considering the validity of the agreement between the Authority and National, we examine first the benefits to be derived by the private developer from the Academy House Project. Under the agreement, the Parking Authority will purchase land from the developer for the situs of the project, demolish the existing structure, and construct the garage thereon. National will lease and operate the garage and also construct and operate thereover a high-rise apartment building containing in excess of 1000 units. The developer will also be permitted to devote substantial portions — approximately 71,000 square feet — of the ground and basement levels of the garage to its own purposes and to sublet other portions to private commercial enterprises. In addition, National will have an exclusive option to acquire the land and public garage. By what is essentially a sale and lease-back arrangement, National will be able to finance its site costs through the medium of long term public financing, with all the benefits which attend such an arrangement, not generally available to other private commercial developers. Moreover, were National to embark on the proposed apartment construction absent reliance on Authority provided parking, it would be required to make provision for its tenants to the extent of approximately 500 car spaces in order to comply with the Philadelphia Zoning Code. By advantaging itself of the Authority’s commitment to construct and to lease a public parking facility to it, National is able to avoid the initial investment required to comply with the requisite zoning provisions. And by the use of its exclusive option to acquire the garage facility in the future, National is able to defer such major capital investment to a much later date and to accumulate revenues generated by the parking facility and the concourse and ground level commercial rentals for the cost of acquisition. To this extent, the Academy House Project involves substantial public financing of a private endeavor. Ir respective of any benefit that tbe public may ultimately derive, it cannot be denied that a significant ingredient of tbe transaction is tbe use of tbe Parking Authority as a conduit by wbicb a private developer is able to lighten substantial burdens, both economic and regulatory, wbicb would otherwise devolve upon it. There is therefore presented on this record a substantial degree of public involvement and investment in a private profit making venture, not only with respect to tbe operation of tbe garage facility itself, but in tbe overall commercial aspects of tbe complex as well. And although certain such benefits may necessarily flow from tbe Authority’s power to lease air rights, whether a particular project is within the ambit of the enabling act is dependent upon the public being accorded benefits sufficiently substantial in nature as to justify the Authority’s involvement in the endeavor. Hence, the totality of private benefit accruing to National must be considered in determining whether the project as proposed reflects the required predominant public benefit. In the instant ease, in the face of the numerous and substantial benefits accruing to the private developer from the Academy House Project, the record fails to disclose any benefit to the public of more than a limited and incidental nature. The parking facility presently operated by the Authority at the situs of the project has a capacity of 100 cars. The proposed garage will have a capacity of approximately 862 cars. The chancellor made a finding that the Academy House apartment development would require 356 car spaces for residential tenants and 80 car spaces for commercial tenants, a total of 436 spaces. He concluded that the proposed project would provide an excess of 426 spaces for the public and an increment of 326 spaces over that presently available at the Authority’s open air facility. In arriving at his conclusion that the apartment complex would only generate a daily demand for 436 car spaces, the chancellor relied upon a report prepared for National in September 1963 by Wilbur Smith and Associates, traffic consultants. However, although the Smith Report repeatedly discusses the parking demand to be generated by guests and business visitors to apartment residents, its conclusion that the Academy House apartment development would only utilize 356 car spaces fails to account for this demand. It is obvious that an apartment house of the size con template*! will, as the Smith Report indicated, generate a significant demand beyond that created by the tenants themselves. The failure of the Smith Report to include such demand in its projection of the space to be required by the apartment development renders that report of limited utility. Under such circumstances, reliance on the Smith data that the Academy House complex will require only 436 car spaces was unjustified and unreasonable. In the absence of another, more reliable index of demand, we think the appropriate reference for projection should have been the requirements of the zoning code. Under the code, as previously noted, a minimum of 500 car spaces would have been required. Taking into account the 80 spaces found by the Smith Report to be required by the commercial tenants, it could reasonably be anticipated that a total demand for 580 spaces will be generated by the Academy House Project. Since, however, the Parking Authority presently provides 100 car spaces on its open-air facility, the situs of which will be taken up by the complex, the net gain to the public upon the completion of the project will be approximately 180 car spaces. This net increment to the public, in light of the magnitude of the garage project and the substantial benefits accruing to public therefrom, is not sufficient to warrant the public involvement here proposed. In weighing the benefits to the respective parties, the record compels the conclusion that the Academy House Project, as envisioned, results in the subordination of the public interest to that of a private developer. In the face of the limited and, to a great extent, conjectural gain in the number of parking spaces which will be made available to the general public by the Academy House Project, the private developer is assured of very substantial and significant benefits. As a result of the Authority’s engagement in the project, National will be the beneficiary of a large scale public investment in a garage facility to be utilized primarily by its own tenants. The enabling act does not contemplate that the resources of the Parking Authority shall be employed to secure to private activities the means to carry on a private enterprise whose primary objective and purpose is private gain and not the satisfaction of public need. Cf. City & County of San Francisco v. Ross, 44 Cal. 2d 53, 60, 279 P. 2d 529, 533 (1955). In weighing the relative benefits to be accrued, we are compelled to conclude that the facility contemplated in the present case appears to be narrowed to such an enterprise. Cf. ibid. The totality of these circumstances leads us to conclude that the public is not the primary and paramount beneficiary of the Academy House Project. In the absence of such prospective public benefit, neither the public participation nor the grant of governmental benefits to private parties here proposed may be permitted. In reaching this conclusion we are not unmindful of the suggestion which has been advanced that the Academy House Project represents a contribution to the development of center-city Philadelphia. However, the Authority is limited by the enabling act to engagements which will result in the fulfillment of its statutory mandate of providing off-street public parking. Such assistance to a private developer as is here eon templated is beyond tbe scope of the Authority’s statutory powers. Moreover, a careful consideration of the effect of the Authority’s participation in the instant project casts grave doubt on its ultimate contribution to center-city renewal. By reason of the Authority’s involvement in this venture, National will be placed at a competitive advantage over existing comparable facilities privately financed and properly taxed. But more importantly, the competitive advantages accorded National as a result of the Authority’s participation will have the effect of discouraging wholly private investment in similar center-city development. To permit the instant project to proceed would establish an unwise and dangerous precedent under which all such future development would require and seek similar Parking Authority assistance in order to equalize the advantages accorded National. Furthermore, under such precedent the Authority could employ its other public powers, including the power of eminent' domain, for the primary benefit of private developers. For the reasons heretofore stated, we hold that the Parking Authority may not cloak a private interest, as is here proposed, with benefits so grossly disproportionate to the benefits accorded the public. The challenged agreement, therefore, was beyond the Authority’s power and appellants were entitled to injunctive relief. VI. Rittenhouse Square Project In light of our previous conclusion that the Parking Authority is not free to lease air rights by private negotiation, we are compelled to conclude that the chancellor erred in denying appellants injunctive relief with respect to the Rittenhouse Square Project as well. Óur conclusion that this project must be enjoined because of the Parking Authority’s failure to comply with the competitive bidding requirements of the enabling act is reinforced by a consideration of certain aspects of this transaction not present in the Academy House Project. Under the terms of their agreement with the Authority, the developers of the Rittenhouse Square Project were authorized to “construct, lease and maintain certain commercial areas ... in the basement and on the ground level of the Garage [sic] along the Walnut Street frontage thereof . . . .” Accordingly, the negotiations between the parties envisioned not only the lease of air space, but also the lease of commercial space within the garage facility. As to the lease of the latter, no possible construction of the enabling act would remove the obligation of the Authority to proceed by competitive bidding, since the Act specifically requires that the leasing of such commercial space be done only “on a fair competitive basis.” Act of June 5, 1947, P. L. 458, §5, as amended, 53 P.S. §345(a) (Supp. 1965). This statutory mandate having been disregarded, the agreement between the Authority and Wolgin and Frankel was beyond the scope of the Authority’s powers and thus invalid. Accordingly, the decree of the court below dismissing tbe complaint must be reversed and the record remanded for further proceedings consistent herewith. Costs upon appellee. Parking Authority Law, Act of June 5, 1947, P. L. 458, §5, as amended and supplemented, 53 P.S. §345 (Supp. 1965). Ibid, §§1-16, as amended and supplemented, 53 P.S. §§341-56. Ibid, §5, as amended and supplemented, 53 P.S. §345. The City of Philadelphia is the record owner of the situs of this facility, having purchased the land for $1,000,000, and leases it to the Parking Authority. An ordinance was passed by the City, and approved by the Mayor on December 5, 1962, authorizing the sale of the land to the Parking Authority for $1,100,000. The agreement was embodied in a “Letter of Intent” from National to the Parking Authority. This letter contained the es sential terms of the agreement and was approved and accepted by vote of the members of the Authority. The price to be paid by the Authority to National for the land to be acquired from it has not been determined. The record reveals, however, that $1,500,000 has been suggested by National. The record reveals that the Chairman of the Parting Authority testified that the cost of building the garage was estimated by the builder and architects to be between $8,000,000 and $9,000,-000. However, it is not indicated whether this estimate included land acquisition and demolition costs. If such amounts are not included, the overall investment in the garage could run well over $10,000,000. However, the aggregate of the initial lease term and the extension term could not extend beyond the year 2059. The “Letter of Intent” does not provide for or limit the use to which National may put its air-rights leasehold. The record in dicates that National contemplates the construction here described. Exhibit P. 24, p. 2. Ibid. incóme produced by the parking garage facility, both from parking and from the lease of commercial space will be available for such rental payments. The garage at this location had been constructed by the Authority in 1953. Since the agreement resulted in a reduction of the capacity of the garage, the lessees agreed to add a fifth tier to the existing four tier structure to replace the space diverted. While the chancellor recognized that appellants had established a prima facie case that no present need existed for the proposed garage, he concluded that the Authority could have reasoned otherwise, both with respect to present and reasonably anticipated future need, and therefore had not acted arbitrarily. Given the ultimate basis of taxpayers’ litigation as a means of mobilizing the self-interest of individuals within the body politic to prevent illegal and unwarranted governmental action. Notes, Taxpayers’ Suits: A Survey and Summary, 69 Yale L.J. 895, 904-06 (1960), the public interest would not be served by dismissing the instant suit on the ground that the Authority may be denied an exemption for the garage. Cf. Pittsburgh Public Parking Auth. v. Bd. of Property Assessment, 377 Pa. 274, 105 A. 2d 165 (1954). The construction presumably will be funded in reliance on the exemption of the garage facility from taxation. Were the exemption to be denied following its completion on the ground that the project was unauthorized and illegal, the security of the bond issue would be threatened and the public interest in the credit of the Authority impaired. It is appropriate, therefore, that the transaction be subject to review at this juncture rather than at some later date under circumstances which may prevent the public interest from being vindicated. Cf. Morris, Evading Debt Limitations with Public Building Authorities: the Costly Subversion of State Constitutions, 68 Tale L.J. 234, 245-46 (1958). See Bernstein v. Pittsburgh, 366 Pa. 200, 77 A. 2d 452 (1951) ; Harris v. Philadelphia, 299 Pa. 473, 149 Atl. 722 (1930) ; Wolff Chemical Co. v. Philadelphia, 217 Pa. 215, 66 Atl. 344 (1907). Cf. Bernstein v. Pittsburgh, 366 Pa. 200, 77 A. 2d 452 (1951) ; Harris v. Philadelphia, 299 Pa. 473, 149 Atl. 722 (1930). Cf. Davis, “Judicial Control of Administrative Action”: A Review, 66 Colum. L. Rev. 635, 659 (1966) ; Davis, Standing to Challenge Governmental Action, 39 Minn. L. Rev. 353, 391-96 (1955) ; Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265 (1961). See Morris, Evading Debt Limitations With Public Building Authorities: the Costly Subversion of State Constitutions, 68 Yale L.J. 234 (1958) ; Shestack, The Public Authority, 105 U. Pa.. L. Rev. 553 (1957). A taxpayer’s suit, as an alternative to reliance on public prosecutions to prevent and redress wrongful conduct, serves an important public interest: “[T]he availability of such litigation is insurance against the instances in which the responsible prosecutors, usually political officers, are themselves allied with the action challenged or are overly burdened to identify and rectify every . . . illegal practice.” Notes, Taxpayers’ Suits: A Survey and Summary, 69 Yale L.J. 895, 911 (1960) ; see also Jaffe, Standing to Secure judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1280, 1282 (1961). See Seligsohn v. Philadelphia Parking Auth., 412 Pa. 372, 194 A. 2d 606 (1963) ; Clark v. Public Parking Auth., 372 Pa. 481, 94 A. 2d 576 (1953). We deem the statutory phrase “on a fair competitive basis” to impose the requirement of competitive bidding, since any other construction would render the direction meaningless. See Whitemarsh Twp. Auth. v. Elwert, 413 Pa. 329, 196 A. 2d 843 (1964) ; Commonwealth v. Sitkin's Junk Co., 412 Pa. 132, 194 A. 2d 199 (1963); Daly v. Hemphill, 411 Pa. 263, 191 A. 2d 835 (1963). The Authority has the inherent duty to act to advance the public interest. This duty would necessarily dictate that leases be entered into in a fair, open and reasonable manner. We must conclude therefore that the Legislature, by its explicit statutory direction, intended that the Authority utilize competitive bidding in entering into such leases. Act of June 5, 1947, P. L. 458, §5, as amended, 53 P.S. §345(a) (Supp. 1965). lbid, §11, as amended, 53 P.S. §351 (Supp. 1965). Our conclusion that the duty to employ competitive bidding is- imposed by the Act is reinforced by a consideration peculiar to air right leaseholds. Due to their recent advent, standards by which such leaseholds may be valued have not yet evolved. By requiring competitive bidding, the Legislature has established a method by which the “market-place” will operate to ensure that such leases are not entered into in an arbitrary and capricious manner, whether by reason of favoritism or good faith mistakes in valuation. Cf. City & County of San Francisco v. Ross, 44 Cal. 2d 52, 279 P. 2d 529 (1955) ; Denihan Enterprises v. O’Dwyer, 302 N.Y. 451, 100 N.Y.S. 2d 512, 99 N.E. 2d 235 (1951) ; McClelland v. Mayor and Council of Wilmington, 159 A. 2d 596 (Del. 1960) ; Wilmington Parking Auth. v. Ranken, 105 A. 2d 614 (Del. 1954) ; Note, State Constitutional Limitations on the Power of Eminent Domain, 77 Harv. L. Rev. 717, 724-25 (1964). Phila. Zoning Code §§14-1402(2) (a) (.1), 14-1403. Even though National agrees to pay for the garage facility upon the exercise of its option, its ability to defer any capital investment in the facility to some date years in the future supports the characterization of the transaction as one involving public financing. It should also be noted that were National to embark upon the Academy House Project without the benefit of the Authority parking facility, its real estate taxes would be significantly higher. The garage which it would be required to construct in order to comply with zoning requirements would not be exempt from realty taxes. The potential savings under the challenged arrangement may be illustrated as follows: Assuming an $8,000,000 facility, a 69.6% assessment, see Schenley Land Co. v. Allegheny County Bd. of Property Assessment, 205 Pa. Superior Ct. 577, 581, n.1, 211 A. 2d 79, 82, n.1 (1965), would produce $5,568,000 of taxable realty aside from land. When taxed at the current Philadelphia rate of $4.37 per $100 of valuation, the annual tax on the garage would be $243,-321.60. Assuming for purposes of illustration a constant assessment and tax rate, the potential savings when projected over a thirty year period would rise to $7,299,648, an amount approximating the initial cost of the facility. Any increase or decrease in the market value of the facility, the assessment, or the tax rate would, of course, affect the actual result. Other provisions obtained by the private developer which must be considered in determining whether the project as envi sumed embodies a permissible balance of public and private benefit include: tbe inability of tbe Authority to reduce rates below that initially set without the consent of National; the exclusive options obtained by National to renew its lease and to purchase the garage facility; and the absence of any provision in the written agreement for the posting of a performance bond or security deposit. It should be noted that by reason of the lease and option provisions, the Authority has, in practical effect, created a limited and private market for the lease and sale of the garage facility by establishing National as the sole and exclusive operator and potential purchaser. Another limitation of the specific report which the chancellor relied upon in concluding that the Academy House apartment complex would only require 436 car spaces was the failure of the report to indicate the data or criteria upon which its projections were based. Of. Note, State Constitutional Limitations on the Power of Eminent Domain, 77 Harv. L. Rev. 717, 724-25 (1964). Act of June 5, 1947, P. L. 458, §5, as amended, 53 P.S. §345 (b) (12). In light of the disposition we make, we find it unnecessary to reach the issue of whether the Authority had acted unreasonably in concluding that present and anticipated future public need in the locale of the proposed garage facility were sufficient to warrant its construction. Assuming arguendo the existence of such need, the Authority may not propose to meet it through the medium of a project which results in an overwhelming and predominate benefit to private developers. We take note of the fact that the Parking Authority, in acquiring the site for the Rittenhouse Square parking facility, agreed to a restriction which prohibits construction higher than 70 feet above ground level. It has been suggested that the private developers, Wolgin and Prankel, control that restriction and, as a result, are the only parties with whom the Authority could nego tiate respecting the air rights over the facility. This contention does not merit serious consideration and may be disposed of without reaching the issue of the propriety of the Authority’s action in binding itself in this manner. The Authority, as a public body, is specifically empowered by the enabling act to use eminent domain in the furtherance of its public purpose. Act of June 5, 1947, P. L. 458, as amended, 53 P.S. 345(b) (12). Thus, so long as the Authority is acting within its statutory powers, the deed restriction is no more an impediment to further development of the Rittenhouse Square facility than the presence of the John Bartram Hotel is an impediment to the development of the Academy House project. In both instances, the Authority is empowered to acquire by eminent domain any private interest which inhibits the exercise of its public purpose.

On this day the judges delivered their opinions. Yeates J. On the first question argued in this case, I have no doubt whatever, that this court is vested with the legitimate power of deciding on the constitutionality of an act of the legislature. The judicial authority of this state comprehends the exercise of this right as well on principle as precedent. The constitution, being the act of the people, and the compact according to which they have agreed with each other that the government which they have established shall be administered, is a law to the government; and a sacred reverence for it is an indispensable requisite in the character and conduct of every public agent. 1 Tuck. app. to Black. Comm. 29. It cannot be denied that an anxious desire is expressed by the people in the formation of the constitution of the United States, and of this state, to keep the powers of the legislative, executive, and judicial departments, distinct and independent of each other. They are separate and coordinate branches of the government, and are expressly recognised as such, by a special enumeration of their respective powers and rights. By the 6th article of the constitution of the United States, “ the “ senators and representatives in congress, and the members of “ the several state legislatures, and all executive and judicial “ officers both of the United States and of the several states, shall “ be bound by oath or affirmation to support the constitution.” This is further enforced by a law of the United States passed on the 1st June 1789. 1 U. S. Laws 26. By the 8th article of the constitution of this state, “ members of the general assem- “ bly, and all officers, executive and judicial, shall be bound by “ oath or affirmation to support the constitution of this com- “ monwealth, and to perform the duties of their respective “ offices with fidelity.” On what grounds are these provisions made,unless, as j udge Tucker observes,the constitution regards the judicial exposition of that instrument, as the bulwark provided against the undue extension of legislative power? 1 Tuck. app. 288. The judiciary power, far from being an emanation from the executive, is intended by the American constitutions as a counterpoise-or check to its excesses, and those of the legislature. 3 Tuck. Black. 24. note 2. See Federalist, No. 78. The 10th section of the 1st article of the constitution of the United States provides, among other things, that u no “ state shall pass any bill of attainder, ex post facto law, or law “ impairing the obligation of contracts;” and the 17th section of the 9th article of the state constitution expressly directs, that “ no ex post facto law, nor any law impairing contracts shall be made;” and the 18th section'asserts that “no person shall be attainted of treason or felony by the legislature.” Put a strong ca'se, which for the honour of human nature we can scarcely suppose the possibility of: that the legislature should, under very peculiar circumstances, (as in the case of sir John Fenwicke in England) pass an act of attainder against an obnoxious citizen for treason, and the attorney general should demand of the court to award execution. Will it be said that we are compellable to pass such sentence, against the express words, and plain meaning of both constitutions, and the tenor of our oaths of office? Would it not be our bounden duty to refuse to pass the sentence, and to put the party on his trial according to the ordinary course of law, as was done by the judges of the general court in Virginia, on an Act passed to attaint Josiah Phillips in May 1778, unless he should render himself to justice within a limited time? 1 Tuck. Black, app. 293. The obligation of an oath imposed upon us to support both constitutions would be nugatory, if it were dependen t upon either of the other branches of the government, or in any manner sub - ject to their control; since such control might operate to the destruction instead of the support of either constitution. Nor can it escape observation, that to require such an oath on the part of the judges on the one hand, and yet suppose them bound by acts of the legislature which may violate the constitution, they have sworn to support, carries with it such a degree of impiety as well as absurdity, as no man who pays any regard to the obligations of an oath, can be supposed either to contend for pr defend. 1 Tuck. Black, append. 355. My idea of the obligations arising from the oath to support the constitutions of the United States and this state, prescribed by each of those solemn instruments, is plainly this: Whether the party moves in the sphere of the legislative, executive, or judicial department, he is bound to maintain and uphold those compacts made with the people. Possessed of a portion of the lawmaking power, he is interdicted from exercising his legislative right in such a manner, as may injure or impair the sources from which his authority is derived. In the executive branch, he shall carefully avoid every act which may have that injurious tendency. In the judiciary, he shall fairly and patiently compare legislative acts with both constitutions, and honestly pronounce upon them as his judgment and conscience shall dictate, without regarding consequences. A due conformity to the oath of office in a judge, creates duties beyond those of passive obedience. It requires the active energies of the mind to determine on the constitutionality of those laws, which may be brought before him in judgment; and in his decisions he shall protect those paramount laws which he has sworn to support. Every one can readily see that the judges may be thrown into a delicate situation by the exercise of this constitutional right. They are subjected to the lawmaking power by impeachment, or by removal for causes which do no-t furnish ground of impeachment; and may therefore in one sense be supposed to owe their existence to the lawmakiug power, I can only answer, the constitution of this state contemplates no wilful perversion of the power of impeachment or removal; and it is to be hoped, for the honour of human nature, that such instances will seldom occur. WheneveE it does happen, the judge must derive consolation from the integrity of his own mind, and the honest feelings that he has discharged his duty with fidelity to the government. When he accepted his commission he knew the tenure of his office; and it is much better that individuals should suffer a private inconvenience, than the community sustain a public injury. Posterity sooner or later will do him complete justice. The power of the judiciary branch to pronounce against the validity of the laws of the union and of individual states', is taken for granted by the act of congress of Sept. 24fth 1/89, sec. 25. In certain cases where is drawn in question the validity of a treaty or statute of, or an authority exercised under5 the United States, and the decision is against their validit)'; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the tide, right, privilege, or exemption, specially set up or claimed by either party under such clause of the said constitution, treaty, statute, or commission, the final judgment or decree in any suit in the highest court of law or equity of a state, may be reexamined and reversed or affirmed in the supreme court of the United States, upon a writ of error. 1 U. S. Laws 64. On this point there is no dearth of precedents, either in the courts of the union, or of our own state. In the case of the Invalid pensions, the judges of the supreme court of the United States in 1/91 refused to execute an act of congress. 2 Dall. 410. 1 Tuck. Black, app. 5. In Hylton, plaintiff in error, v. The United States, the sole point in question was the constitutionality of the law of congress passed June 5th 1/94, laying a duty on carriages for the conveyance of persons. 3 Dall. 171. In Vanhorne's lessee v. Dorrance, Judge Patterson determined the confirming act of Pennsylvania of 28th March 1/8/ to be unconstitutional and void. 2 Dali. 304. In the courts of this state, in Austin’s Lessee v. The Trustees of the University of Pennsylvania, a law of this state passed on the 6th August 1/84 was adjudged to be unconstitutional, in April term 1/93. In Respublica v. Cobbett, December term 1798, Respublica v. Duguct, December term 1799, on a case stated respecting the wooden buildings in the city, the constitutionality of certain laws was fully argued; and in Respublica v. Franklin and Jenkins, the constitutionality of the intrusion Act of the 11th April 1/95 was debated at great length, both in the circuit court, and here in December term 1802. Indeed until lately there was but one opinion on this subject; it being uniformly conceded by the bar, and held by the bench, that the courts of justice must necessarily possess and exercise the power of judging of the constitutionality of all laws, brought.. before them judicially. At the same time I readily admit that the judicial authority ought not to declare a law to be unconstitutional, unless in cases perfectly plain and clear. It cannot be denied that the entertaining an argument on the constitutionality of a legislative act by the judiciary, implies necessarily in itself a power to judge and determine on its validity, on a fail-comparison of it with the powers granted to the former branch of the government, by a solemn act of the people, sanctioned by the oaths of those who are delegated to act in the three branches. The opinion of the supreme court of the United States between Marbury v. Madison, on the motion for a rule on the secretary of state of the United States to shew cause why a mandamus should not issue, commanding him to cause to be delivered to the plaintiff his commission as j ustice of the peace in the district of Columbia, has been published in 1 Cran. 137. since I drew up this opinion. The act to establish the judicial courts of the United States, authorized the supreme court “ to “ issue writs of mandamus, in cases warranted by the principles “ and usages of law, to any courts appointed, or persons holding “ office, under the authority of the United States.” 1 U. S. Laws 58. sec. 13. The court adjudged that this was a plain case for a mandamus either to deliver the commission or a copy of it from the record. 1 Cran. 173. But the power of the supreme court being limited by the constitution, in point of original jurisdiction, “ to cases affecting ámbassadors, other “ public ministers and consuls, and those in which a state “ shall be a party,” it was adjudged that the clause in the act of congress was unconstitutional, and could not be executed by the supreme court. The chief justice has demonstrated that ££ courts as well as other departments are bound by the consti- “ tution, and that the essential principle of all written constitu- ££ tions is that a law repugnant to that instrument is void.” p. 180. “ It is emphatically the province and duty of the judi- ££ cial department to say what the law is. Those who apply the ££ rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts “ must decide on the operation of each.” p. 177. I feel that I should be guilty of injustice to the elaborate argument of the. chief justice, were I to quote detached parts of his system of reasoning on this subject. I have no hesitation in saying for myself, that his observations have strengthened and confirmed "the sentiments I have ever entertained of the indispensable obligation of written constitutions upon judiciary characters. See 1 Wils. 460. When the convention declare in the 5th section of the bill of rights, that “trials by jury shall be as heretofore, and the “ right thereof shall remain inviolate,” I do not conceive that any restriction is thereby laid on the legislative authority, as to erecting or organizing new judicial tribunals in such manner as may be most conducive to the general weal, on a change of circumstances effected by a variety of causes. This appears plain to me from the 5th article of the constitution, which vests the judicial power of the state “ in a supreme court, courts of oyer and “ terminer, and sessions of general gaol delivery, common pleas, “ orphan’s court, register’s court, sessions of the peace, justices “ of the peace, and in such other courts as the legislature may “ from time to time establish.” But it is equally obvious to my understanding, that the legislature cannot constitutionally impose any provisions substantially restrictive of the right of trial by jury. They may give existence to new forums; they may modify the powers and jurisdiction of former courts, in such instances as are not interdicted by the constitution from which their legitimate powers are derived. Still, the sacred inherent right of every citizen, atrial by jury, must be preserved. “Ji shall remain inviolate, as heretofore.” When the present state constitution was formed, the 10/. act which passed on the 5th April 1785 was in full force, and must be presumed to have been in the contemplation of the convention, who by the words “ as heretofore” virtually confirmed it. The law now in question was enacted at a subsequent period on the 19th April 1794; and is therefore subject to legal discussion. It extended the jurisdiction of justices of the peace to 20/. With the wisdom, sound policy, or expedience of that law, this ■court have nothing to do. These are matters purely of legislative deliberation and cognisance. I cannot avoid lamenting that the original jurisdiction of suits embraced by the act is exclusively assigned to a single justice, and only an appellate jurisdiction reserved to a jury. But it must be admitted that the right of trial by jury is not taken away, though the party may be subjected to some inconvenience in making his election. The law therefore appears to me not to' be that plain and clear case, in which I should feel myself authorized to pronounce on its invalidity, as a deviation from the constitution; and therefore I find myself bound to give judgment for the plaintiff. Smith J. concurred. Brackenridge J. began by saying that the case involved two questions, 1. Whether this court had authority to decide upon the unconstitutionality of an act of assembly; and 2. Whether the particular law in question was against the constitution. He said that the first was a vexata qucestio, very delicate and embarrassing in its nature; that he had made out his observations at a considerable length, in which the difficulties of the question were stated; but that at present he did not think it necessary to read them. He then proceeded upon the second question as follows: Assuming it as a principle, that a case may occur where it may be the duty of the judiciary to pronounce upon an act of the legislature as contrary to the constitution, and where they may be called upon, as in the present instance, to arrest the execution of it, we come to inquire whether the act in question is of that nature. By the constitution, art. 10. sect. 1., “ the judicial power of “ this commonwealth shall be vested in a supreme court, in “ courts of oyer and terminer and general gaol delivery, in a “ court of common pleas, orphan’s court, register’s court, and “ a court of quarter sessions of the peace for each county, in 11 justices of the peace, and in such other courts as the legis- “ lature may from time to time establish.” From a specification of the different tribunals, it would seem to be inferible, that the distribution of the jurisdiction shall be according to the nature of the forum. That of justices of the peace did not originally extend to civil cases. But by an early act of the legislature of the province, in the year 1700, civil jurisdiction was given under the title of “ An act for determining debts under 40i.” This act continuing five years was repealed, but supplied in 1715. From the jurisdiction of the justices, under this act, was excepted “ debts for rents, or contracts for real estates.” By an act of March 1st 1745 the jurisdiction was extended to “ actions for debt, or other demand for the value of 40s. and “ upwards, and not exceeding 5/.” with an appeal under certain regulations to the court of common pleas. This appeal has been construed to extend only to demands above 40.?. Under this act there is an exception “ of debt for rent, debt upon bond for performance of covenants, actions of replevin, or upon any real contract, actions of trespass on the case for trover and conversion or slander, actions of trespass for assault and battery or imprisonment, actions where the title of lands shall anywise come in question. ” Such was the jurisdiction exercised at the framing of the constitution under the commonwealth in 1776; in which constitution, there is nothing that has a direct reference to the powers of the justices of the peace, or from which we can collect, that the jurisdiction which has been given by these acts of assembly, and exercised under the province, was provided against; unless it be in that article of the declaration of rights, “ that in “ controversies respecting property, and in suits between man “ and man, the parties have a right to trial by jury, which ought “ to be held sacred;” or in that clause of the constitution “ trials “ shall be by jury as heretofore.” Under this constitution, by an act of the legislature, Jan. 28th, 1777, entitled “ an act “ to revive and put in force such and so much of the late laws “ of the province as is judged necessary to be in force in this “ commonwealth,” we find no exception of those laws giving jurisdiction to the justices of the peace in controversies respecting property, and in suits between man and man; whence it is inferible, either that the legislature did not attend to the nature of these laws, giving jurisdiction to the justices “ in “ suits between man and man;” or that they did not consider them as inconsistent with the provisions of the constitution. These provisions are the same, in substance, with those of the charter of liberties granted by William Penn to the first settlers of the province, in which it is declared “ that all trials shall be “ by twelve men, and, as near as may be, peers, or equals, and “ of the neighbourhood, and without just exception;” the laws agreed upon in England in 1682. And yet in the face of this provision, jurisdiction to the justices in civil matters had been originally given, and continued. Under the constitution of the commonwealth, by an act of the 23d September 1784, supplied by an act of the 5th April 1785, the jurisdiction of the justices in civil matters was extended to debts and demands not exceeding 10/.; subject to like appeals, and under similar regulations, restrictions, and exceptions as in the preceding act of March 1745. The framers of the present constitution had these acts before them, and the exercise of this jurisdiction within their knowledge; and yet we find no direct exclusion of this jurisdiction, and nothing more than what may be collected from the like words with those before used: “ trials shall be by jury as here- “ tofore.” For it would not seem that the variation in the words “ trials shall be by jury as heretofore,” as in the constitution of 1776, and “trials by jury shall be as heretofore,” as in the constitution of 1790, would warrant the conclusion that a change of meaning was intended; or that any exclusion ean be drawn from the one expression more than the other, with a reference to the jurisdiction of the justices. It is under this constitution (1790) that we come to the act before us, of April 1794, by which the jurisdiction is extended to 20/., subject to an appeal in matters above 5/.; and with exceptions as in the act preceding. The most material particular in this act, is the taking away the appeal in a demand above 40s., and not exceeding 5/. By an act of the 23d September 1784, extending the jurisdiction of the justices of the peace to actions of debt or demand of the value of Si. and not exceeding 10/., as in the case of debts of the value of 40s. and not exceeding Si., an appeal was excluded. This by an act of the 5th April 1783 was repealed, with a preamble, “ that whereas the act entitled, &c. “ in not allowing trial by jury in suits or actions for debts, and “ other demands, cognisable under the samé by one justice of the peace, is contrary to the spirit of the constitution of this “ state f &c. It might be said on the same ground, that the talcing away the appeal in the act before us in demands above 40s. and not exceeding Si., in which case it was before allowed^ is contrary to the spirit of the constitution. It is of less moment that under this act the jurisdiction of the justices is extended to a demand of 20/.; yet it may be said to be “ contrary to the spirit of the constitution.” For though an appeal is saved in debt or demand above Si., yet there is in the first instance a privation of the trial by jury. It is true there is weight in the consideration expressed in the preamble of the act, “ the lessening in the value of money.” But it cannot be in the spirit of the constitution, but contrary to it, to extend the jurisdiction of the justices of the peace, ad libitum, and to any" extent, even allowing the appeal. Yet it is one thing to be contrary to the spirit of the constitution, and another thing to be in direct violation of it. “ Trial by jury shall be as heretofore.” But trial by jury heretofore, had not been known in the forum of the justice. And it could not be with a view to secure the jury trial in this forum, that the provision was introduced. It must have been to secure the trial in the courts where it had existed; or to secure it in those courts which “ the legislature “ may from time to time establish.” But in the distribution of judicial power to the justices of the peace where the trial by jury does not exist, what is given more to the cognisance of the justice, is making less the jurisdiction of the courts where the jury trial does exist; and is indirectly^ taking away the trial by jury from the subject of the jurisdiction given to the justice. Yet this is but an indirect invasion; and the difficulty is to say where it may begin to be an invasion, unless it is assumed as a principle that it cannot be extended beyond what it was at the time of framing the constitution; and this, taking into view the history and progress of the jurisdiction, would seem to be assuming more than is justifiable. If then we are not arrested at the precise point where the matter stood at the framing of the constitution, with respect to an enlargement of the jurisdiction of the justice of the peace, how far shall we go? Where shall we stop? Is it competent to the judiciary to fix this point? Is it not in the nature of it, a matter of discretion, a question of expediency? And must it not be left to the legislature? What might be done in an extreme case which might be imagined,, an accumulation of jurisdiction in a justice of the peace far beyond any thing like what had before existed, it is not necessary to say; for the present would not appear to me to be such a case, nor can it warrant the judiciary to exercise an act of such paramount and delicate authority as to interfere. My opinion therefore must be for the plaintiff in the suit before the justice. It will be observed that I have confined myself to the act giving jurisdiction to the justice of the peace in demands not exceeding 20/., under which the jurisdiction in the case before us arises; and which act, being of the 19th April 1794, is an extension of the act of March 1745, and subject to, and under every regulation, restriction and exception in that act. The exceptions in that act with respect to the subject of contro versy, debt for rent, debt upon bonds for performance of covenant, actions of covenant, replevin, &c. have been stated, and the jurisdiction in the act in question being subject to the like exceptions, it has not come in my way, in considering the case before us, to take notice of what might be the question in a case where the subject of jurisdiction was enlarged as to the cause of action, as well as to the quantum of the demand; or as to the cause of action itself. I take it to be of more moment that the jurisdiction be confined as to the subject of controversy, than as to the quantum of demand, or at least as much; for the principle of law, which may come in view and be disposed of by the justice, may be of as much consequence as the value of the property. I should feel myself under more difficulty to the enlarging the jurisdiction as to cause of action, than as to quantum of demand. But there is nothing in the act before us which goes beyond debt, or contract, or actions not excepted in the act of March 1745. Tilghman C. J. gave no opinion, not having been upon the bench when the cause was argued. But he said he had from the late chief justice Shippen, that he agreed with the other members of the court. J udgment affirmed.