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The opinion of the Court was delivered by Kennedy, J. We think that the plaintiff ought to have been permitted to have given the evidence contained in his first offer, so far as it tended to prove that at the time the agreement was made and entered into between the plaintiff and the defendants, which the latter have pleaded as a bar to this proceeding of the former, the line or route of the canal was then laid out and designated by stakes set up through the plaintiff's land, and that the written agreement which has been set out by the defendants in their plea, was made in reference to that line, and that the land lying between it and the river is the same land that is described in the said agreement; and that the defendants instead of confining themselves to this line as there staked out, in constructing and making the canal, or at least keeping between it and the river, extended the canal beyond the line, and further from the river, into the other land of the plaintiff, and thus cut off a greater quantity of land from the main body of his farm than was agreed on, or embraced in the agreement set out by the defendants in their plea. So far as the plaintiff offered to give evidence to this effect, we think it was admissible, because it cannot properly be considered testimony which would go to contradict, alter, add to, or detract from the written agreement between the parties; but tended to explain the same by giving locality and identity to the subject-matter and applying the contract to it, which is every day’s practice. See 13 Petersdorf’s Abr. 108, note. As often as written agreements fail to describe by metes and bounds the lands contracted for, and to give a precise locationto them, the omission is always supplied, and the application of the agreements made to the lands by the introduction of parol evidence, which has ever been considered competent; otherwise, in most cases the agreements could never be carried into effect. The evidence which the plaintiff offered to give, to show that the defendants agreed to build two locks upon that part of the canal which passes through his land, as a part of the consideration he was to receive for parting with his land to the defendants, was of a different character, and went to establish a very different agreement be tween the parties from the one reduced to writing and set forth by the defendants in their plea. This evidence we think was properly rejected by the court; ior to have received it, would have been in direct violation of that rule so well established, that parol evidence is not admissible to contradict, alter, add to or diminish, a written instrument. The other testimony offered by the plaintiff, and rejected by the court, was not admissible ; some of it, because it did not fall within the provisions of the third section of the act to improve the navigation of the river Lehigh, which is the section under which this complaint was originated and must be sustained if at all. It would rather seem to be within the terms of the fourth section of that act; and as to the residue of the evidence rejected, it appears to me that it was not admissible upon any ground of complaint. If the plaintiff did sustain any such damage as he alleged for the introduction of it, I am inclined to think it was damnum sine injuria. As this cause is to go back to the Circuit Court for a new trial, it is proper to notice the opinion which was delivered by that court in respect to the mode of proceeding in this case to which the plainiff has resorted after having made an agreement with the defendants which they have set forth in their plea. The judge in the Circuit Court was of opinion that this course of proceeding could only be adopted and pursued under the provisions of the act already referred to, where the parties could not agree upon a compensation. In this we think his Hon-our was right. But we also think that where an agreement has been made between the company and the owner of the land for compensation, as in this case, that if the company should afterwards, without regard to such agreement go on and make their canal through the land of the owner, on ground contrary to, and different from that which was agreed on, as is alleged was done here, the owner of the land would thereby be at liberty to rescind the agreement. Beside, it is quite obvious, if what he proposed to give evidence of, be true, that an action brought by him against the company for a breach of their covenant could not afford him adequate redress, because the land occupied by the canal and cut off from the main body of his farm, is not all included and bargained for in the agreement. If, however, the plaintiff upon the next trial should fail to make sufficient proof to convince the jury that the company violated their agreement in departing from the ground agreed on for the line and course of the canal, he must fail entirely to recover anything in this proceeding. He must then look to his agreement, and be content with the compensation provided for by the terms of it. If it was fairly made, and has been observed and kept on the part of the company, the plaintiff is bound by every principle of honour, law and justice to abide by it on his part, whether it was a bad or a good bargain for him. The judgment of nonsuit set aside, the cause reinstated, and remanded to the Circuit Court.

OPINION ZAPPALA, Justice. We granted allocatur in the case sub judice to address two issues. The first issue is whether the Commonwealth Court erred in failing to address Lash v. WCAB (General Battery Corp.), 491 Pa. 294, 420 A.2d 1325 (1980), and instead treated this claim as one relying on a theory of mental disability. We also sought to address, as a matter of first impression, the standard of proof to be applied in cases where a psychological/mental disability arises within the context of a physical/mental association. Because the referee’s finding of physical injury is not supported by substantial evidence and the lack of evidence that abnormal working conditions caused the psychic injury, we now affirm the order of the Commonwealth Court. Claimant John Yolterano filed two Claim Petitions on February 27, 1985, alleging that he experienced an injury on August 20, 1984, to his left shoulder and that he contracted severe occupational lung disease while in the employ of Appellee, Allied Corporation (Allied). Claimant was employed by Allied for more than forty years — first as a millwright, and then, since 1980, as a toolroom attendant. While employed by Allied, the Claimant was frequently exposed to asbestos. In seeking treatment for his shoulder injury, Claimant had an arthrogram performed on December 11, 1984, in anticipation of surgery. Dr. Cohen, who examined the arthrogram, made an incidental finding of the presence of considerable interstitial disease (asbestosis) throughout the lungs. Claimant then sought medical attention for asbestosis. It was subsequently determined that the arthrogram had been misread and the diagnosis of asbestosis was erroneous. In an initial examination of Claimant on January 16, 1985, Dr. Cantagallo heard bilateral rhonchi in Claimant’s lungs. However, upon referral for pulmonary and cardiac evaluations, no signs of cardiac disease or active asbestos were seen. Despite the fact that he was advised that the arthrogram report was in error, Claimant continued to believe that he suffered from asbestosis. Dr. Cantagallo concluded that Claimant’s disability, i.e., shortness of breath, was the result of Claimant’s belief that he had a severe pulmonary disease. Dr. Sokas, Claimant’s consulting physician, examined him on April 10, 1985, and indicated on her report that Claimant appeared plethoric and anxious. Her examination of Claimant’s lungs revealed fine crackles at the right base. Radio-graphic films of Claimant’s chest revealed significant bilateral pleural thickening and calcification with very minimal, if any, signs of interstitial fibrosis (asbestosis). A study of arterial blood gases and a ventilation scan yielded normal results. Dr. Sokas opined that Claimant had become fixed on the erroneous arthrogram and that his resulting anxiety precluded him from returning to his prior duties. Dr. Swartz, whose deposition was introduced on behalf of Allied at the hearings before the referee, and who did not examine Claimant, opined that Claimant has asbestos-related pleural disease but does not have asbestosis. He noted that although Claimant has pleural thickening and pleural plaques caused by exposure to asbestos, the asbestos-related pleural disease would not impose any functional limitations on Claimant or require any specific treatment. Following the hearings on Claimant’s petitions, the referee specifically found persuasive and credible the testimony of Dr. Cantagallo, Dr. Sokas and Claimant. The referee also relied in his adjudication upon the portion of Dr. Swartz’s testimony where that doctor conceded that Claimant has bilateral pleural plaque thickening with minimal interstitial disease (asbestosis) caused by exposure to asbestos. For these reasons, the referee determined that Claimant experienced a severe emotional reaction as a result of a physical injury to the pleura of his lungs, precluding his ability to perform his work duties beginning January 12, 1985, and awarded total temporary disability benefits. Simultaneously, the referee rejected Claimant’s argument that he sustained a work-related shoulder injury. That conclusion was not challenged on appeal. Finally, the referee declined to assess counsel fees and penalties. Cross appeals were taken. The Workmen’s Compensation Appeal Board (Board) reversed the referee on the issue of disability, stating that an improper burden of proof had been employed by the referee. The Board reasoned that because no physician testified that Claimant was physically disabled from any work-related injury or trauma, Claimant’s case is one actually involving a mental cause and a mental disability— the classic mental/mental association. However, the Board determined that Claimant failed to show that his injury was caused by actual objective abnormal working conditions, as opposed to subjective, perceived, or imagined employment events. The Board concluded, therefore, that the referee erred in failing to apply the burden of proof necessary to prove a mental/mental condition and failing to find that Claimant never offered the objective evidence necessary to support this burden of proof. The Commonwealth Court (Doyle, Friedman, JJ. and Lederer, SJ.), in an order and opinion, affirmed the order of the Board. The court found that Claimant’s pleural thickening, which was found to have been work-related, was (1) unknown to Claimant at the time of his viewing the erroneous report and (2) not the basis for having the arthrogram. The court held on these facts that recovery is not possible. 149 Pa. Commw. 222, 613 A.2d 61 (1992). Claimant petitioned for review in this Court, and we granted allocatur. 534 Pa. 651, 627 A.2d 182 (1993). Claimant argues that the Commonwealth Court erred in failing to find a work-related pulmonary physical injury in accordance with Lash, supra. Claimant states that the referee correctly awarded compensation to him based upon substantial and undisputed evidence that Claimant suffered from the aforementioned physical injury due to his continuous work-life exposure to asbestos for over 43 years while employed at Allied. Furthermore, Claimant argues that he cannot return to work to perform his prior duties where he would continue to be exposed to asbestos, and Allied has failed to present testimony of alternative work within Claimant’s retained physical, emotional, and vocational capacities. Allied argues, conversely, that the evidence as accepted by the referee does not support a physical disability under the rationale of the Lash case. Allied contends that no disability can be shown by the fact that if Claimant continued to work, he would have placed himself at an increased risk of further injury because unrebutted evidence was presented that Claimant was not exposed to asbestos at his last job with Allied in the toolroom from 1980 to 1985. Allied claims that before Allied must prove job availability, the Claimant must prove that he was disabled. The standard of review applicable to such cases has been firmly established by this Court and is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or any findings of facts are not supported by substantial evidence. City of Harrisburg v. WCAB (Gebhart), 532 Pa. 592, 616 A.2d 1369 (1992), and Bethenergy Mines v. WCAB (Skirpan and Consolidated Coal Co.), 531 Pa. 287, 612 A.2d 434 (1992). Where, as here, the Board takes no additional evidence, the ultimate factfinder is the referee whose findings of fact, if supported by substantial evidence, must be accepted. Croll v. WCAB (Dorr-Oliver, Inc.), 511 Pa. 79, 84, 511 A.2d 1311, 1313 (1986). In reviewing this matter, the Commonwealth Court erred by not considering whether the referee’s finding of physical injury was supported by substantial evidence. However, Claimant’s reliance on Lash is misplaced. In Lash v. WCAB (General Battery Corporation), we addressed the issue of whether employees who had been 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, due to their lead exposure, they had become lead absorbers. General Battery moved Lash and Jablonski to lower-paying non-lead hazard positions in 1975 as a preventive matter on the recommendation of the company physician because they had become lead absorbers, i.e., they had begun to absorb lead into their bloodstreams at an abnormally high rate, making further lead exposure hazardous. Because these positions were less remunerative than their former lead hazard positions, Lash and Jablonski sought occupational disease benefits. The referee concluded as a matter of law that they had failed to prove by sufficient competent evidence that they sustained a work-related injury or occupational disease within the meaning of the Act. The referee’s denial of compensation was affirmed by the Board and, in turn, by the Commonwealth Court. In reversing the order of Commonwealth Court, we stated that the fact that appellants’ health had not yet deteriorated to the advanced stages of lead poisoning did not mean that they were not suffering from a compensable injury. To require appellants to remain exposed until their condition had progressed to the advanced stages of lead poisoning in order to qualify for partial disability benefits would be unconscionable. We also indicated that in the interpretation of the Workmen’s Compensation Act, the word “disability” is to be regarded as synonymous with loss of earning power. Accordingly, we found that the claimants were entitled to an award of partial disability benefits because, having become abnormally fast absorbers of lead after eight years of job-related exposure, they suffered a loss of earning power when forced to accept lower-salaried non-lead hazard positions. Although Commonwealth Court failed to consider our decision in Lash, we find that Lash is factually distinguishable from the case sub judice. The referee made no specific findings of fact relative to Claimant’s physical injury. Instead, the referee made the following findings related thereto: 4. The referee specifically finds that in the course of his employment for the Defendant, the Claimant was exposed on a frequent basis to asbestos. 11. The testimony offered by the Claimant of working with asbestos and that his pulmonary and emotional pathology precludes return to prior duties as of January 12, 1985, is deemed persuasive and credible. 13. The finds and conclusions of Drs. Sokas and Cantagallo are deemed persuasive and credible. 14. The Defendant has not offered testimony of alternative work that the Claimant could perform with his retained physical, emotional, and vocational capacity. (R.R. 7a-8a.) Based upon these findings of fact, the referee concluded the following as a matter of law: 2. The referee finds that the Claimant has met his burden of proving that he sustained a physical and emotional disability as a result of his work-related injury and occupational disease, precluding his ability to perform his prior occupation for the Defendant as of January 12,1985. However, the nature of the Claimant’s disability is limited solely to lung and emotional pathology. (R.R. 13a.) We must conclude, however, based upon a thorough review of the record, that the referee’s findings of fact are not supported by substantial evidence. The referee’s determination that Claimant sustained a physical and emotional disability as a result of his work-related injury and occupational disease is undercut by the findings and conclusions of Drs. Cantagallo and Sokas, which the referee deemed persuasive and credible. Although Dr. Cantagallo heard bilateral rhonchi in Claimant’s lungs, pulmonary and cardiac evaluations disclosed no signs of cardiac disease or asbestosis. Dr. Cantagallo concluded that Claimant’s disability, i.e., shortness of breath, was the result of Claimant’s own interpretation of having a severe pulmonary disease. Dr. Sokas’ examination of Claimant’s lungs revealed fine crackles at the right base. X-rays of Claimant’s chest revealed significant bilateral pleural thickening and calcification with very minimal, if any, signs of interstitial fibrosis (asbestosis). A study of arterial blood gases and a ventilation scan yielded normal results. Dr. Sokas opined that Claimant had become fixed on the erroneous arthrogram and that his resulting anxiety precluded him from returning to his prior duties. Contrary to the referee’s finding, pleural thickening is not an occupational disease. See 77 P.S. § 27.1. Rather, it is an indication that a person has been exposed to asbestos. Furthermore, we do not find that pleural thickening is a physical injury for purposes of establishing entitlement to workers compensation benefits because Drs. Sokas and Cantagallo did not state that pleural thickening, in any manner, impaired the functioning of the Claimant’s lungs. As to the referee’s finding that Claimant was exposed on a frequent basis to asbestos while employed for Allied, the Claimant’s own testimony revealed, however, that he only worked with material from boxes labelled asbestos prior to 1980, when he was a millwright. In 1980, the Claimant, according to the referee’s finding, was transferred to the toolroom, where, for the next four years as a toolroom attendant, he repaired and distributed work tools. The testimony of both Claimant and William Belter, Allied’s manager for maintenance construction, reveals that the toolroom was an asbestos-free environment. In fact, all asbestos had been removed from Allied’s plant prior to 1980, according to Mr. Belter’s testimony. Because Claimant was working as a toolroom attendant in an asbestos-free environment, we can find no reason why Allied would have had to offer evidence of alternative work that Claimant could perform with his retained physical, emotional, and vocational capacity. Unlike Lash, the Claimant did not have an occupational disease. Furthermore, the Claimant could have remained in the same hazard-free environment of the toolroom instead of moving to an alternative work environment as the claimants were forced to do in Lash. Finally, Claimant argues that the Commonwealth Court erred in imposing the burden of proof required in a “mental/mental case” when substantial evidence shows that Claim ant sustained a work-related pulmonary physical injury that produced a psychosomatic overlay, causing total disability. Allied contends, however, that Claimant has failed to establish that his psychic injury was related to work under either the physical/mental or the mental/mental association. It is Allied’s position that Claimant’s knowledge of pleural thickening did not cause his psychic injury. Instead, the psychic injury was attributable to the misread arthrogram which had occurred three months prior to the discovery of the pleural thickening. Allied also argues that Claimant has offered no proof of abnormal working conditions. Disabilities caused by psychological/mental elements may be considered to be injuries under the Act and therefore compensable if the other elements needed to establish a claim are met. The influence of the psychological or mental element can be broken down into three discrete areas: (1) psychological stimulus causing physical injury (the mental/physical association), Krawchuk v. Philadelphia Electric Co., 497 Pa. 115, 439 A.2d 627 (1981); (2) physical stimulus causing psychic injury (the physical/mental association); and (3) psychological stimulus causing psychic injury (the mental/mental association), Martin v. Ketchum, Inc., 523 Pa. 509, 568 A.2d 159 (1990). Although we granted allocatur to address the standard of proof to be applied in cases involving physical/mental association, we must leave this issue for another day because, as determined above, Claimant has not sustained a work-related physical injury. We also agree with Allied’s position, which is supported by Drs. Cantagallo and Sokas, that Claimant’s psychic injury is attributable to the misreading of the arthrogram. We decline, however, to find that a misdiagnosis is a physical stimulus such as could be the basis for an award of benefits. The Commonwealth Court therefore did not err by imposing on the Claimant the burden of proof required in a mental/mental case. In a mental/mental case, work-related stress must be caused by actual objective abnormal working conditions, as opposed to subjective, perceived, or imagined employment events. Martin v. Ketchum, supra. For objective employment events to be considered abnormal, they must be considered in relation to the specific employment. Williams v. WCAB (Philadelphia National Bank), 120 Pa. Commw. 551, 548 A.2d 1344 (1988). Objective evidence which is corroborative of an employee’s perception is necessary in determining the existence of abnormal working conditions. An employee’s testimony alone on this issue is not sufficient. Andracki v. WCAB (Allied Eastern States Maintenance), 96 Pa.Commw. 613, 508 A.2d 624 (1986). A review of the record discloses that Claimant did not identify any abnormal working condition as triggering the psychological disturbance or show that his psychic injury was caused by actual objective abnormal working conditions, as opposed to subjective, perceived, or imagined employment events. The order of the Commonwealth Court is therefore affirmed. LARSEN, J., did not participate in the decision of this case. MONTEMURO, J., who was an appointed Justice of the Court at the time of argument, participated in the decision of this case in his capacity as a Senior Justice. . Allied contends that Claimant failed to address the issue before the Commonwealth Court as to whether Claimant sustained a physical disability under the rationale of the Lash case. Therefore, Claimant, according to Allied, has waived this issue. Our review of the Claimant’s brief to Commonwealth Court reveals that Claimant’s argument was implicitly incorporated into the questions presented for review, and for that reason, Allied's claim of waiver is meritless. See Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

Opinion by Mr. Justice Roberts, In this consolidated appeal, we are asked to review a May 20, 1971 decree of the Commonwealth Court dismissing three separate complaints in equity challenging the constitutionality of the recently enacted Personal Income Tax provided by Article III of the Tax Reform Code of 1971, adopted March 4, 1971, Act No. 2, 72 P.S. §7107 et seq. The various plaintiff-appellants advance four arguments in support of their claims that the Personal Income Tax is repugnant to the Pennsylvania Constitution. First, it is contended that the tax violates Article VIII, Section 12(a) by virtue of its enactment without the Governor’s submission to the General Assembly of a balanced operating budget. Second, it is urged that the tax constitutes an illegal delegation of legislative power in contravention of Article II, Section 1. Third, it is claimed that the tax illegally exempts property from taxation in violation of Article VIII, Section 5. And finally, it is argued that the tax ignores the mandate of Article VIII, Section 1 that “[a] 11 taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, . . . .” After careful and considerable study, we conclude that the tax in question offends the constitutional requirement of uniformity and that it is for this reason invalid. Preliminarily, it is noted that we are not unmindful of the fiscal problems and difficulties besetting the Commonwealth. We must at the same time, however, emphasize that our awareness and full appreciation of these problems cannot in any way enlarge or otherwise affect our limited constitutional role in this adjudication. The selection of subjects for taxation, their classification, and the method of collection are legislative matters. Jones & Laughlin Taw Assessment Case, 405 Pa. 421, 175 A. 2d 856 (1961). Thus, this Court may not consider the wisdom of a challenged tax or the purpose of its enactment. Blauner’s, Inc. v. Philadelphia, 330 Pa. 342, 198 Atl. 889 (1938). So long as a statute is constitutional, the Legislature is the sole judge of its necessity or expediency and a court cannot refuse to enforce it on any ground that it is unjust, unwise, inexpedient, obsolete or contrary to any supposed policy or custom. Olin Mathieson Chemical Corporation v. White Cross Stores, Inc., 414 Pa. 95, 98, 199 A. 2d 266, 267 (1964) ; Lurie v. Republican Alliance, 412 Pa. 61, 65, 192 A. 2d 367, 370 (1963); Commonwealth ex rel. Kelley v. Cantrell, 327 Pa. 369, 193 Atl. 655 (1937) ; Commonwealth ex rel. Kelley v. Clark, 327 Pa. 181, 193 Atl. 634 (1937); Harris v. Mercur, 202 Pa. 313, 51 Atl. 969 (1902); Journeay v. Gibson, 56 Pa. 57 (1868); Steiner v. Coxe, 4 Pa. 13 (1846) ; see also Commonwealth v. Life Assurance Company of Pennsylvania, 419 Pa. 370, 377-78 n. 11, 214 A. 2d 209, 215 n. 11 (1965), appeal dismissed, 384 U.S. 268, 86 S. Ct. 1476 (1966). Conversely, however, we cannot deem a legislative enactment constitutional merely because it may seem in our view to be just, expedient, necessary or wise, or because it enjoys unanimous popular support. The Constitution is in matters of state law the supreme law of this Commonwealth to which all acts of the Legislature and of any governmental agency are subordinate, Pittsburgh Railways Co. v. Port of Allegheny County Authority, 415 Pa. 177, 202 A. 2d 816 (1964) ; Cali v. Philadelphia, 406 Pa. 290, 177 A. 2d 824 (1962), and it is our duty and responsibility to consider only whether the legislation meets or violates constitutional requirements. Stander v. Kelley, 433 Pa. 406, 250 A. 2d 474 (1969). Accordingly, quite aside from the instant tax’s possible social, economic or other merit, we must determine whether it satisfies the constitutionally mandated standard of uniformity. The Personal Income Tax contained in Article III of the Tax Reform Code of 1971 operates as follows: Section 305 of the Code purports to impose a tax “[f]or the privilege of receiving, earning or otherwise acquiring income from any source whatsoever . . . .” However, the annual tax of 3%% is levied not upon all income “from any source whatsoever” but rather only upon “the taxable income of the taxpayer”. “Taxable income” is defined in Section 302(q) to mean with a few specific variations “the same as 'taxable income’ as defined in the Internal Revenue Code . . . .” The concept of taxable income in the Internal Revenue Code is of course an artificial construct, in many ways far removed from the common and ordinary meaning of the term income. For example, income derived from gifts and inheritances, interest on the obligations of a state or political subdivision, contributions by employers to employee health and accident plans, and the first one hundred dollars received by a taxpayer as dividends from domestic corporations is all specifically excludable from taxable income. In addition, the Internal Revenue Code permits the deduction of myriad items from actual or gross income in order to compute taxable income. 5Some of the more common and well known examples of such deductions are real estate taxes, interest on real estate mortgages and other personal financing, alimony payments, and various other state and local taxes. The structure of the Pennsylvania Personal Income Tax may be alternatively illustrated and perhaps clarified by consideration of the following schematic summary of Internal Revenue Service Form 1040, the officially prescribed form for individual federal income tax returns. TABLE I FORM 1040 Lime No. Description 12 WAGES, SALARIES, TIPS 13 -¡-DIVIDENDS 14 -¡-INTEREST 15 -¡-OTHER INCOME (business income; capital gains; pensions and annuities, rents and royalties, partnerships, estates or trusts, etc.; farm income; miscellaneous income) 16 TOTAL (LINES 12-15) 17 —ADJUSTMENTS (sick pay; moving expenses; employee business expense; self-employed retirement plan) 18 ADJUSTED GROSS INCOME 47 —DEDUCTIONS (medical and dental expenses; taxes; contributions; interest; mise.) 49 —PERSONAL EXEMPTIONS 50 TAXABLE INCOME In other words, the Pennsylvania Personal Income Tax is tied directly to “line 50” of IES Form 1040, the amount appearing on that line being subject to the 31/2% annual tax. As is readily apparent from an examination of Table I, most of the discrepancies between an individual’s actual total income “from any source whatsoever” and his Pennsylvania “taxable income” arise as a consequence of the subtraction of the various adjustments, deductions, and exemptions appearing between lines 16 and 50. As to some taxpayers, however, even line 16 does not reflect all income from whatever source. As stated above, the Internal Revenue Code provides that certain species of income are altogether excludable from taxable income. Thus, for example, a person whose only income is in the form of interest received from state or municipal bonds (tax exempts) need not report any of such income on any of the lines prior to line 16 with the result that the amount entered on line 16 will be zero. After defining taxable income in terms of the federal tax base, the Tax Reform Code of 1971 provides four types of tax credits. Section 316 allows a credit for income taxes imposed by another state, Section 317 provides a similar credit for 30% of certain local taxes, and Section 318 deals with a credit for taxes paid by a trust on accumulated income. Finally, Section 319 sets out a variable schedule of “vanishing tax credits” for the benefit of individuals whose state taxable income does not exceed $9,900. Does then the foregoing scheme of taxation conform to the requirements of the Uniformity Clause? The constitutional imperative of uniformity in the imposition of taxes has remained unchanged since its first adoption in the Pennsylvania. Constitution of 1874. Article IX, Section 1 of that constitution directed without qualification that: “All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Legislative proposals to amend the Uniformity Clause were rejected by the electorate in 1913 and 1928, and the May, 1967 referendum submitted to the people of Pennsylvania concerning whether a constitutional convention would be called specifically provided that the convention would not revise that portion of the constitution. Likewise, the constitutional convention enabling act stated in no uncertain terms that “. . . nor shall that part of Article TX, Section 1 of the Constitution providing that: ‘All taxes shall be uniform . . .’ be modified, altered or changed in any respect whatsoever.” Act of March 16, 1967, P. L. 2, §7, [1967] Pa. Laws 7. (Emphasis added.) In addition to its unbroken historical continuity, the constitutional standard of uniformity also possesses widespread and far reaching application. While some other jurisdictions adhere to the view that uniformity applies only to property taxes, our particular constitutional mandate that “[a]ll taxes shall be uniform . . .” is quite clear, and it is settled that this mandate applies to all species of taxes. As was stated in Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 196 A. 2d 664 (1964) : “The question of whether or not the constitutional requirement of uniformity applies to a particular kind of tax depends upon the peculiar wording of the requirement itself. The Pennsylvania Constitution specifically states that ‘All taxes shall be uniform, upon the same class of subjects.’ (Emphasis supplied.) This language is as broad and comprehensive as it could possibly be and must necessarily be construed to include all kinds of taxes, be they in the nature of property or excise levies. The Pennsylvania constitutional provision is all inclusive and is clearly not limited to requiring uni formity on property taxes alone. See Banger’s Appeal, 109 Pa. 79 (1885); Cope’s Estate, 191 Pa. 1, 43 A. 79 (1899); Kelley v. Kalodner, supra [320 Pa. 180, 181 Atl. 598 (1935)]; Com. ex rel. v. A. Overholt & Co., Inc., 331 Pa. 182, 200 A. 849 (1938); and 51 Am. Jur., Taxation, §157.” Id. at 319, 196 A. 2d at 666. It is thus quite clear that the instant tax must satisfy the requirement of uniformity. The substantive content of the Uniformity Clause is of course less susceptible to precise definition than is the scope of its application. However, certain general principles are well established. As this Court declared in the Allentown School District Mercantile Tax Case, 370 Pa. 161, 87 A. 2d 480 (1952) : “[The Uniformity Clause] means that the classification by the legislative body must be reasonable and the tax must be applied with uniformity upon similar kinds of business or property and with substantial equality of the tax burden to all members of the same class: Commonwealth v. Girard Life Insurance Co., 305 Pa. 558, 158 A. 262; Knisely v. Cotterel, 196 Pa. 614, 46 A. 861; Dufour v. Maize, 358 Pa. 309, 56 A. 2d 675; Commonwealth v. McCarthy, 332 Pa. 465, 3 A. 2d 267; Dole v. Philadelphia, 337 Pa. 375, 11 A. 2d 163____ “Uniformity requires substantial equality of tax burden: Com. v. Overholt & Co., Inc., 331 Pa. 182, 200 A. 849; Com. v. Repplier Coal Co., 348 Pa. 372, 35 A. 2d 319; Moore v. Pittsburgh School District, 338 Pa. 466, 13 A. 2d 29. While taxation is not a matter of exact science and perfect uniformity and absolute equality in taxation can rarely ever be attained (Wilson v. Philadelphia, 330 Pa. 350, 352, 198 A. 893), the imposition of taxes which are to a substantial degree unequal in their operation or effect upon similar kinds of business or property, or upon persons in the same classification, is prohibited: Cf. Com. v. Overholt & Co., Inc., 331 Pa. 182, 190-191, 200 A. 849; Pollack v. Farmers’ Loan and Trust Co., 157 U.S. 429, 599. Moreover while reasonable and practical classifications are justifiable, where a method or formula of computing a tax will, in its operation or effect, produce arbitrary or unjust or unreasonably discriminatory results, the constitutional provision relating to uniformity is violated: Turco Paint & Varnish Co. v. Kalodner, 320 Pa. 421, 184 A. 37; Hans Rees’ Sons v. North Carolina, 283 U.S. 123. “We may aptly repeat what was said by (former Chief) Justice Maxey in Com. v. Overholt & Co., Inc., 331 Pa., supra, page 191: ‘A tax to be uniform must operate alike on the classes of things or property subject to it. . . Id. at 167-68, 170, 87 A. 2d at 483, 484. In addition to these general principles, two prior decisions of this Court are particularly pertinent to our disposition of this appeal. The first of these, Kelley v. Kalodner, 320 Pa. 180, 181 Atl. 598 (1935), involved a 1935 Pennsylvania statute imposing an annual tax upon the entire net income of Pennsylvania residents and upon net income received by nonresidents from property owned or from any business or occupation carried on in the Commonwealth. That act authorized many exemptions for purposes of calculating “gross income” and numerous deductions for the computation of “net income”. It likewise sought to enact a standard deduction for living expenses ($1,-000 in the case of single persons and $1,500 in the case of married persons and heads of households), and an additional $400 deduction for each dependent under the age of eighteen. The tax was then imposed upon net income at a graduated rate: incomes under five thous- and dollars were taxed at 2%; incomes between five and ten thousand dollars at 2y2%; incomes between ten and twenty-five thousand dollars at 3%; etc. Reason ing as follows, this Court declared the tax invalid: “The question then arises, does the act fulfill the rule of uniformity prescribed by the Constitution. Plaintiffs contend it does not and for several reasons. The first is that the provision exempting from taxation those persons whose incomes fall below $1,000 or $1,500, depending upon whether they are single or married, shows upon its face a lack of uniformity. There can be no doubt that these exemptions were inserted for the purpose of putting the burden of the tax upon those most able to bear it, but it results in taxing those whose incomes arise above a stated figure merely because the legislature believes their incomes are sufficiently great to be taxed. It is obvious that the application of the tax is not uniform. . . . Moreover, the tax is in violation of the uniformity clause in its application to the persons whose incomes fall within the various brackets designated in. the act. . . .” 320 Pa. at 188-89, 181 Atl. at 602 (emphasis added). The Kelley decision, in other words, clearly involved an alternative holding: the tax was deemed constitutionally deficient both because of the personal exemptions and because of the graduated rate. The second of the two decisions most significant to the instant case is Saulsbury v. Bethlehem Steel Company, supra, decided in 1964. In that case we ruled then an “occupation and occupational privilege tax” which exempted individuals with an annual income of less than $600 transgressed the limits of uniformity. In so holding, this Court reaffirmed the rule of Kelley v. Kalodner and largely on the basis of that decision concluded that: “If a tax is levied on an occupational privilege, it must apply to all who share the privilege. Part of this class may not be excused, regardless of the motive behind the action.” 413 Pa. at 320, 196 A. 2d at 666 (emphasis added). It is true that the challengers of the constitutionality of state or local taxation bear a heavy burden in their efforts to overturn such legislation. See, e.g., Commonwealth v. Life Assurance Company of Pennsylvania, supra, at 376-77, 214 A. 2d at 214. Nevertheless, in comparing the taxing scheme in Kelley and Saulsbury with that involved in the instant case, the conclusion is unescapable that the personal income tax presently challenged violates uniformity. Although the Tax Reform Code of 1971 purports to impose a flat 3%% tax upon “taxable income”, the concept of “taxable income” already reflects the federal personal exemptions for the taxpayer and his qualified dependents. (See Table I, supra, lines 49 and 50.) Thus, built-in to the Tax Reform Code of 1971 are exactly the same elements of nonuniformity as were condemned in both Kelley and Saulsbury. A further noteworthy feature of inequality is the instant tax’s exclusion from taxable income of all interest received on the obligations of the Commonwealth or any of its political subdivisions. The Tax Reform Code of 1971 imposes in its own terms a tax “[f]or the privilege of receiving, earning or otherwise acquiring income from any source whatsoever . . . .” The holder of tax exempt Pennsylvania securities certainly enjoys this privilege of receiving income yet is not taxed for the privilege but instead is given a tax preference. This situation is manifestly contrary to our holding in Saulsbury that a tax upon a privilege “. . . must apply to all who share the privilege.” In addition, despite the existence of a legislative policy favoring this type of tax preference for state and local obligations of this Commonwealth, such a legislative policy cannot prevail over a clear constitutional mandate of uniformity. We need not, however, limit our present analysis to these particular inequalities, for the Personal Income Tax is replete with other commonly occurring instances of nonuniformity, many of which can be conveniently illustrated in the following tables. The examples contained in these tables have been consciously chosen to reflect the state income tax liability of typical taxpayers claiming representative exemptions and deductions. TABLE II Taxpayers “receiving, earning or otherwise acquiring [$10,000] income from any source whatsoever” (Sec. 305) ABC SELF WAGE WAGE EMPLOYED EARNER EARNER Home: $20,000 $20,000 Renter Mortgage: $10,000 $10,000 None INCOME DEDUCTIONS: $10,000 $10,000 $10,000 Medical Insurance 150 150 Other 200 200 Tames Real Estate (30 mills) 600 600 1% Local Income Tax 100 100 Pa. 3.5% Income Tax 180 210 (Standard Pa. Sales Tax 100 100 deduction) Gasoline Tax 80 80 Oontrlbutions 3% Contributions 300 300 Interest Mortgage (7%%) 750 750 Auto Loan 180 180 Special Self Employment Plan 1,000 TOTAL DEDUCTIONS 3,640 2,670 1.300 Exemptions (2) 1,300 1,300 1.300 DEDUCTIONS FROM INCOME 4,940 3,970 2,600 PA. TAXABLE INCOME 5,060 6,030 7,400 3.5% PA. INCOME TAX 177.10 211.05 259.00 ACTUAL EFFECTIVE RATE ON INCOME RECEIVED, EARNED, OR OTHERWISE ACQUIRED “FROM ANY 1.77% 2.11% 2.59% SOURCE AVHATSOEVER” TABLE III Taxpayers “receiving, earning, or otherwise acquiring [§20,000] income from any source whatsoever” (Sec. 305) A B C D Self Wage Wage Wage Employed Earner Earner Earner Home: $40,000 $40,000 Renter Renter Mortgage: $20,000 $20,000 None None INCOME DEDUCTIONS: $20,000 $20,000 $20,000 $20,000 Medical Insurance 150 150 150 Other 400 400 400 Tawes Real Estate (30 mills) 1,200 1,200 1% Local Income Tax 200 200 200 3.5% Pa. Income Tax 410 480 570 (Stand- Pa. Sales Tax 200 200 200 ard Gasoline Tax 100 100 100 deduction) Contributions 3% Contributions 600 600 600 Interest Mortgage (7%%) 1,500 1,500 Auto Loan 270 270 270 Special Self Employment Plan 2,000 TOTAL DEDUCTIONS 7,030 5,100 2,490 1,500 Exemptions (2) 1,300 1,300 1,300 1,300 DEDUCTIONS PROM INCOME 8,330 6,400 3,790 2,800 11,670 13,600 16,210 17,200 PA. TAXABLE INCOME 408.45 476.00 567.35 602.00 3.5% PA. INCOME TAX ACTUAL EFFECTIVE RATE ON INCOME RECEIVED, EARNED, OR OTHERWISE ACQUIRED “FROM ANT SOURCE WHATSOEVER" 2.04% 2.38% 2.83% 3.01% For present purposes, the most significant feature of the above tables is the fact that each taxpayer in Tables II and III, respectively, enjoy the same privilege, to wit: that of “receiving, earning or otherwise acquiring” the same dollar amount of annual income “from any source whatsoever.” Yet no two taxpayers are required to pay the same dollar amount of taxes, nor are any two taxpayers required to pay the same effective percentage rate of taxation upon their respective total incomes. (The range of rates extends from a low of 1.77% to a high of 3.01%.) Thus, the effect of the Personal Income Tax in these illustrative situations is entirely nonuniform by imposing differing tax burdens upon persons enjoying identical privileges. These inequalities result, of course, from the manifold tax preferences afforded taxpayers depending among other things upon whether a particular taxpayer is a wage earner or self-employed, renter or home owner, etc. Thus, for example, in Table II, A enjoys a substantial tax preference over B merely because of Ms $1,000 deduction for a self-employment retirement plan, a deduction wholly unavailable to B who is a wage earner. B, in turn, enjoys an even greater tax preference over C merely because he, unlike C, owns his own home and can profitably itemize his deductions in the sum of $2,670. Because C is a renter who cannot avail himself of substantial deductions for real estate taxes and mortgage interest, his only recourse is to claim the much smaller standard deduction of $1,300. Similar inequalities are contained in Table III dealing with typical taxpayers earning twenty rather than ten thousand dollars per year, and countless other examples could be just as easily constructed. Whether or not these or any or all of the myriad other tax preferences implicit in Article III of the Tax Reform Code of 1971 might be thought to serve some useful social policy, the fact remains that unequal burdens are being imposed upon similar privileges in violation of the Uniformity Clause. These pervasive and impermissible discriminations between similarly situated taxpayers render Article III invalid. We cannot agree with the Commonwealth’s contention that since the Pennsylvania Corporate Net Income Tax Act, Act of May 16, 1935, P. L. 208, as amended, 72 P.S. §3420a et seq., has been held constitutional, see Turco Paint & Varnish Co. v. Kalodner, 320 Pa. 421, 184 Atl. 37 (1936), the Personal Income Tax imposed by the Tax Reform Code of 1971 is likewise permissible. In passing upon the validity of the corporate net income tax, this Court emphasized that it was “. . . not considering an income tax, but an excise tax for the privilege of doing business in the Commonwealth. . . .” Commonwealth v. Warner Bros. Theatres, Inc., 345 Pa. 270, 271, 27 A. 2d 62, 63 (1942) (emphasis added), and any attempted analogy between the instant tax and the corporate net income tax is unpersuasive. Corpora tions are artificial legal entities created with the permission of the state for the purpose of maximizing profits for shareholders, and the corporate net income tax is imposed upon a tax base which . . is the net income attributable to this state.” Turco Paint, supra at 426, 184 Atl. at 40. Natural persons, on the other hand, cannot be likened to profit-maximizing entities. Individuals spend their resources for an infinite variety of reasons unrelated to the making of a “profit”. Thus, unlike the corporate context, it would be exceedingly difficult, if not impossible, to create a personal income tax designed to take into account the “cost” of producing individual income. Certainly the instant tax does not even attempt to do so, and the corporate net income taxes are accordingly inapposite. In light of our decision that Article III of the Tax Reform Code of 1971 creates widespread tax preferences and thus is in direct conflict with the mandate of the Uniformity Clause, we need not pass upon the other issues presented in this appeal, namely, the validity of the vanishing tax credit provision, the validity of the thirty percent local tax credit, or whether the tax is invalid because the Governor failed to submit a balanced operating budget prior to recommending additional sources of revenue. For the foregoing reasons, the decree of the Commonwealth Court is reversed. Each party to pay own costs. Mr. Chief Justice Bell joins in this opinion and files a concurring opinion. The decision was rendered by a divided Commonwealth Court. Judge Wilkinson filed an opinion in support of the Court’s decree in which three other judges joined. President Judge Bowman filed a dissenting opinion in which Judge Menceb joined. Judge Menceb filed a separate dissenting opinion and Judge Kramer filed a concurring and dissenting opinion. Section 302(q) provides in full: “ ‘Taxable income.’ Except as otherwise provided herein, ‘taxable income’ means the same as ‘taxable income’ as defined in the Internal Revenue Code and will include the sum of the following tax preference items as defined in section 57 of the Internal Revenue Code, as amended, (i) excess investment interest; (ii) accelerated depreciation on real property; (iii) accelerated depreciation on personal property subject to a net lease; (iv) amortization of certified pollution control facilities; (v) amortization of railroad rolling stock; (vi) stock options; (vii) reserves for losses on bad debts of financial institutions; (viii) depletion; and (ix) capital gains which is required to be returned to and ascertained by the Federal Government pursuant to said code, subject to the following adjustments: (1) Subtraction of interest income derived from obligations of the United States Government to the extent included in adjusted gross income. (2) Addition of interest income derived from obligations of states, political subdivisions, instrumentalities and public authorities thereof other than Pennsylvania or its political subdivisions, instrumentalities or public authorities to the extent not included in adjusted gross income. (3) In the case of a nonresident individual, estate or trust estate or trust ‘taxable income’ and the adjustments required by subsections (a) and (b) above shall include only income derived from sources within this Commonwealth. (4) The respective shares of an estate or trust and its beneficiaries in the additions and subtractions to taxable income shall be in proportion to their respective shares of distributable net income of the estate or trust as defined in the Internal Revenue Code. If the estate or trust has no distributable net income for the taxable year, the share of each beneficiary in the additions and subtractions shall be in proportion to his share of the estate or trust income for such year, under local law or the terms of the instrument, which is required to be distributed currently and any other amounts of such income distributed in such year. Any balance of the additions and subtractions shall be allocated to the estate or trust. (5) In the case of a nonresident estate or trust, the respective shares of the estate or trust and of its beneficiaries shall be determined in the manner set forth by this subsection (q) ; however, in determining the taxable income of a nonresident estate or trust or of any nonresident beneficiary thereof, there shall be taken into account only the income of the estate or trust, or the beneficiary’s share thereof, derived from sources within this Commonwealth.” See Int. Rev. Code of 1954, §§102,103,106,116. See Int. Rev. Code of 1954, §§141-217. Many of the deductions and exemptions allowed by federal tax law are unrelated to considerations of revenue raising or equal ization of the tax burden; they pertain instead to the furtherance of various national non-tax policies. See, e.g., United States v. Pleasants, 305 U.S. 357, 59 S. Ct. 281 (1939) (charitable deductions) ; Helverimg v. Bliss, 293 U.S. 144, 55 S. Ct. 17 (1934) (exclusion of income derived from state and municipal bonds) ; E. F. Fox v. United States, 397 F. 2d 119 (8th Cir. 1968) (same). Senator William Proxmire, Chairman of the Joint Economics Committee of the United States Congress, has just made public statistics compiled by the Treasury Department indicating that the special consideration to certain groups and types of activity afforded by various Federal tax provsions result in total Federal tax preferences amounting to approximately 40 billion dollars annually. A copy of these statistics is on file in the office of the Prothonotary of this Court. See Treas. Reg. §601.602 concerning §6011 (a) of the Code: “Forms and instructions are developed by the Internal Revenue Service to explain the requirements of the internal revenue laws and regulations and are issued for the assistance of taxpayers in exercising their rights and discharging their duties under the internal revenue laws. . . .” The Regulation continues by stating that copies of all necessary forms and instructions may be obtained from district directors and also that Publication No. 481, Description of Principal Federal Tax Returns, Related Forms, and Publications may be purchased from the Superintendent of Documents, U. S. Government Printing Office, Washington, D. O. 20402. As mentioned earlier, the concept of taxable income in the Pennsylvania tax does vary somewhat from the concept of federal taxable income. Whereas the Internal Revenue Code generaUy includes in taxable income interest on obligations of the United States and excludes interest on the obligations of states or their political subdivisions, the instant tax excludes interest on the obligations of the United States and includes interest on the obligations of states and political subdivisions other than Pennsylvania and its political subdivisions. Compare Int. Rev. Code of 1954, §108 with the Tax Reform Code of 1971, §§302 (q) (1), (2). In addition, the Pennsylvania tax does not give any tax preference to the “items of tax preference” contained in Int. Rev. Code of 1954, §57. See Tax Reform Code of 1971, §302(q). Finally, the Pennsylvania tax mates certain adjustments with respect to nonresident individuals and with respect to estates or trusts. See Tax Reform Code of 1971, §§302(q) (3), (4), (5). Prior to 1874 there had been no express state constitutional provision on the power to tax other than the BUI of Rights with its implication “against all unjust, unreasonable and palpably unequal exactions under any name or pretext.” Washington Avenue, 69 Pa. 352, 363 (1871) ; Hammett v. Philadelphia, 65 Pa. 146 (1869) ; see Note, The Pennsylvania Constitutional Requirement of Uniformity in Taxation, 87 U. Pa. R. Rev. 219 (1938). Kelley v. Kalodner, 320 Pa. 180, 192, 181 Atl. 598, 603 (1935) ; see Callendar, The Constitution—Should It Be Revised?, 29 Pa. B.A.Q. 205 (1958). Cooley on Taxation, §267 (4th ed. 1924). Act of July 12,1935, P. Jj. 970, formerly 72 P.S. §3402-1 et seq. The hypothetical deductions included in this table closely approximate the average annual deduction taken in these general categories according to the most recent statistics available. See Internal Revenue Service, Individual Income Tax Returns: Statistics of Income 1968 at 65 (Table 2.4—Itemized Deductions by Type and by Adjusted Gross Income Classes.) See notes 3 and 4, supra.

Mr. Justice Williams delivered the opinion of the court, This was a bill to restrain the defendants from boring for oil, and to account for the damage done to plaintiffs’ leasehold, and for all oil obtained on the premises. The master found that the well bored by the defendants was within the “protection” stipulated for in the plaintiffs’ lease, and that the damages occasioned thereby to the plaintiffs’ leasehold amounted to one-half the entire production of the well from August 20th 1872 to July 19th 1873, the market price or value of which was $9388.89, and accordingly he recommended that a de'cree be entered in favor of the plaintiffs for the amount so found, and that an injunction be granted against the defendants to prevent further damage to the leasehold of the plaintiffs. The court below, on exceptions filed by the defendants to the master’s report, ordered a perpetual injunction to restrain the defendants from further operations upon the premises in dispute, and dismissed the bill as to plaintiffs’ claim for damages without prejudice. Both parties have appealed from the decree; the defendants from the order awarding the injunction, and the plaintiffs from the order dismissing the bill. The question presented by the defendants’ appeal will be 'first ’considered. Are the plaintiffs then entitled to the injunction ? If the stipulation in the lease, on which the right to the injunction depends, is to be strictly construed according to the literal meaning of the language, the defendants’ well cannot be regarded as within the protection for which it provides, and if so, the plaintiffs have no legal or equitable right to the relief asked for in the bill. But the agreement must be construed with reference to the subject-matter, and so as to effectuate, if possible, the purpose for which it was intended. The lease was “ for the sole and only purpose of mining and excavating for petroleum coal, rock or carbon oil ” in the tract described therein. The parties probably knew that if oil was found in the demised premises, a well bored within a short distance would draw off more or less of the oil, and that for the same reason a well on the border or side of the tract would draw part of its supply from the adjoining ground. The object of the agreement was therefore twofold: to prevent the lessor or any one under him from mining or boring wells within eight rods of the north and ten rods of the east line of the tract described in the lease, and to give the lessors more ground for the supply of any wells they might drill or bore pn the demised premises in proximity to these linos. Is it then a reasonable supposition, that the parties intended to leave a gap at the corner where these lines intersect which would render the “protection” valueless and defeat the purpose for which it was intended ? If the north and east lines were to be protected, then every point in these lines must be protected; and if so, why should the parties leave at the corner, when they meet an open area ten rods long and eight rods wide, in which a well could be bored, as it was by the defendants, to the great damage and waste of the leasehold? The master and the court below were of the opinion that it was the intention of the parties to secure the same protection to the corner as to the sides of the demised tract, and that the agreement should be so construed as to carry out their intention. This, as it seems to us, is its reasonable inter pretation; and if so, the defendants had no right to construct buildings and machinery and to put down a well within a few feet of the corner of the plaintiffs’ leasehold, and pump therefrom, as they did, large quantities of oil. Nor can there be a doubt that the plaintiffs have a sufficient title to enable them to obtain redress by injunction of the wrong done by the defendants. The trespass of which they complain is of a permanent nature, and, under the facts found by the master, destructive of their leasehold. It is clear then that, under the equitable powers conferred by the statute, the court below had jurisdiction for its prevention or restraint: Stewart’s Appeal, 6 P. F. Smith 413 ; Smith’s Appeal, 19 Id. 474 ; Masson’s Appeal, 20 Id. 26. The defendants’ appeal must therefore be dismissed. We come now to the question presented by the plaintiffs’ appeal. Are they entitled to a decree for the damages found by the master ? The court below refused to make such decree, on the ground that the plaintiffs’ remedy was in a court of common-law jurisdiction, and not in a court of equity. But it is well settled, as a general principle, that where a court of equity has obtained jurisdiction for one purpose it may retain it generally for relief. This seems to be the rule, not only when the jurisdiction attaches for discovery in cases of fraud, accident, mistake and account, but where it attaches for injunction in-cases of continuing trespass and waste. In such cases the course is to sustain a bill for the purpose of injunction, connecting it with the account, and not compel the plaintiff to go into a court of law for damages: Thomas v. Oakley, 18 Vesey 184. To prevent multiplicity of suits, the court will decree an account of the damages or waste done at the same time with an injunction, and proceed to make a complete decree, so as to settle the entire controversy between the parties. This is the doctrine not only of courts of equity having general chancery jurisdiction, but of this court, under the equitable powers conferred by the legislature. The principle was asserted and applied in McGowin v. Remington, 2 Jones 56, and it has been recognised and reaffirmed in subsequent cases: Souder’s Appeal, 7 P. F. Smith 498; Coleman’s Appeal, 25 Id. 441; Masson’s Appeal, 20 Id. 26. Why then should we hold that the power of the court for relief ceased with the injunction ? If the statutes giving chancery powers in injunctions and matters of account do not, as contended, expressly give the power to decree damages against tort-feasors, they give, in express terms, “ power and jurisdiction of courts of chancery so far as relates to the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the rights of individuals.” If, incident to the right of injunction in such cases, courts of chancery decree an account of the damages or waste done, is it an unreasonable construction of the statute to hold that the legislature, in giving the power and juris diction which it confers, intended that it should be exercised as fully and with the same incidents as it is by courts of chancery in like cases ? There is no more difficulty in taking an account of the damages in cases of waste and continuing trespass, than there is in settling a partnership or other account or claim of which equity has jurisdiction. The court below was therefore in error in deciding that it had no jurisdiction in equity of the plaintiffs’ dam-. ages, and dismissing their bill so far as it asks for an account, and in this respect the decree must be reversed. And now, October 11th 1875, it is ordered, adjudged and decreed, that the defendants’ appeal be dismissed, and that so much of the decree in this case as orders a perpetual injunction to issue to restrain the defendants from further operations, &c., and that they pay the costs of this case, he affirmed; and that the residue of the said decree, dismissing the bill as to the plaintiffs’ right to recover damages for the money complained of, be reversed and set aside. And it is further ordered, adjudged and decreed, that the defendants pay to the plaintiffs the sum of $9388.89, being the amount of the damages to the plaintiffs’ leasehold by the defendants’ well, as found by the master, with interest thereon from the 24th of November 1873, the date of filing his report; and it is further ordered, that the defendants pay the costs of their own and of the plaintiffs’ appeal, to be taxed by the prothonotary, and the record be remitted to the court below for the purpose of enforcing and executing this decree.

OPINION OF THE COURT NIX, Justice. This is an appeal from the denial of two petitions filed under the Post-Conviction Hearing Act. This Court consolidated these appeals for argument and disposition. Clarence Fiero was indicted for a murder which occurred on August 19, 1973. Subsequently a plea of guilty was entered to the charge of murder in the second degree and conspiracy to commit armed robbery. Sentence was imposed on February 25, 1974. No post-trial motions were submitted and appellant failed to file a direct appeal. On March 8, 1974, appellant filed a PCHA petition in propria persona alleging several grounds for relief. Most critical was the absence of any allegation charging that he was denied his right to a direct appeal. See, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971). This omission would normal ly preclude review of any ground that was cognizable on direct appeal. Act of January 25, 1966, P.L. (1965) 1580, § 4, eff. March 1, 1966, 19 RS. § 1180-4 (Supp. 1974-75); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974). However, the present procedural posture makes this general rule inapplicable. We have held that a theory of waiver or finally litigated cannot be predicated upon an uncounseled proceeding. Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969). Moreover, in this jurisdiction a first post-conviction hearing petition should not be dismissed where the petitioner is indigent and has requested counsel, without affording him representation in that proceeding, Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967); Commonwealth v. Richardson, 426 Pa. 419, 233 A.2d 183 (1967); Commonwealth v. Hoffman, 426 Pa. 226, 232 A.2d 623 (1967); Pa.R.Crim.P. 1504, 19 P.S. Appendix. These considerations were explored in Commonwealth v. Mitchell, supra, where we stated: “We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner’s claims. Counsel’s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967) [approved draft 1968] : ‘It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se. . . . Exploration of the legal grounds for complaint, investigation of the under lying facts, and more articulate statement of claims are functions of an advocate that are inappropriate for a judge, or his staff.’ ” (Citations omitted). Id. at 148. Clearly this rule is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation. A review of this record reveals that the first petition was filed pro se and that after counsel’s appointment there was no attempt to file an amended petition. Further, the petition was dismissed without an evidentiary hearing and the record is barren of any indication of oral argument before that decision was rendered or that counsel filed a brief to set forth the legal principles upon which his client relied. These facts compel the conclusion that the proceeding was in fact uncounseled. Under such circumstances the mandate of section 12 of the Post-Conviction Hearing Act as interpreted by this Court has not been met. See, Commonwealth v. Mitchell, supra; Pa.R.Crim.P. 1503, 1504. The events surrounding the filing of the second petition are similarly devoid of any evidence of meaningful participation by counsel. Here again the petition was pro se and a decision was rendered without a hearing, the submission of briefs, or oral argument. In neither instance did this appellant have the opportunity of legally trained counsel to advance his position in acceptable legal terms. Unquestionably, this is the type of situation that this Court addressed in Commonwealth v. Mitchell, supra and sought to avoid. The reasoning of that case which we now reaffirm, compels us to vacate the order of the hearing court and remand these causes to the court below for proceedings consistent herewith. Accordingly, the order of the court below is vacated and the matter is remanded to that court with instruc tions to appoint counsel to represent appellant in the filing of an amended post-conviction petition and any further proceedings thereon. It is so ordered. POMEROY, J., concurs in the result. . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., eff. March 1, 1966, 19 P.S. § 1180-1 et seq. (Supp.1974-75). . Act of December 6, 1972, P.L. 1482, No. 334, § 1(b), 18 Pa.C.S. § 2502(b), eff. June 6, 1973. Under former practice we have stated that it was improper to accept a plea to murder in the second degree. See Commonwealth v. Stokes, 426 Pa. 265, n. 1, 232 A.2d 193, n. 1, (1967); Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 340-41, 223 A.2d 699, 701 (1966). However, we noted that the accused is not prejudiced provided the plea was knowingly entered. Under the former Penal Code, the crimes of murder in the first and second degrees were set forth in the same section, June 24, 1939, P.L. 872, § 701; December 1, 1959, P.L. 1621 § 1, 18 P.S. § 4701 (1964). Under the New Crimes Code as it appeared when the instant act was committed, section 2502 sets forth murder in the first degree in subsection (a) and murder in the second degree in subsection (b). Whether this would justify an altering of former procedure is questionable. In any event, appellant has not raised the issue, thus we need not here consider the wisdom of continuing the former practice of entering the plea to murder generally. . Act of December 6, 1972, supra at § 903, 18 Pa.C.S. § 903.

CIRILLO, Judge: This breach of contract case is really two cases, which were consolidated for trial, because they relate to the same factual situation and legal conflicts among the parties. In the Spring of 1980, Twin Oaks Coal Company (hereinafter “Twin Oaks”) instituted an action in trespass and assumpsit in the Common Pleas Court of Allegheny County against Daset Mining Corporation, Jacobs Contracting Corporation, Tased Coal Sales, Inc., Armstrong Land Company, Inc., Seven Sisters Mining Company, Inc., Jacobs, Jacobs & Jacobs; a partnership composed of Seaborn Jacobs, Terrence S. Jacobs, Darryl M. Jacobs, and Martha Jacobs (hereinafter all referred to collectively as “Daset”). On June 3, 1980, Daset filed in Westmoreland County, a complaint in Assumpsit and Trespass against Twin Oaks, Industrial Fuels Corporation (“IFC”), and Peoples Energy Company (hereinafter “Peoples”). The case in Westmoreland County was subsequently transferred to Allegheny County and the two were consolidated. B.H. & H., Inc. was brought in as an additional defendant by Daset. Greatly simplified, the basic facts underlying the controversy are that Twin Oaks purchased the coal-related assets of Daset, which were mainly a large number of coal leases and some strip mining equipment. The sale was consummated with a lengthy integrated agreement dated April 11, 1979. The contract stipulated that Twin Oaks was to pay Daset $3,405,026.00 and assume some of Daset’s outstanding obligations. These included the reclamation of some stripped land, which had not yet been performed by Daset and the remaining payment owed by Daset to B.H. & H. The greater part of the equipment and many of the coal leases had been previously acquired by Daset from B.H. & H. At the time that the agreement was executed, Twin Oaks paid $2,405,026.00, and gave Daset a note for the remaining million, which was payable a year later. Shortly before the due date of the note, Twin Oaks refused to pay Daset and B.H. & H. because of a number of legal grievances against Daset. Subsequently, Twin Oaks filed suit on the basis that there was a breach of the important warranty given by Daset in the agreement of April 11, 1979; namely, that the lands assigned to Twin Oaks by Daset, contained not less than four million (4,000,000) tons of recoverable bitminous coal. Daset filed suit for non-payment of the note and took the position that there was no such breach; but brought B.H. & H. into the case on the theory that if there was such a breach, it would be partly the responsibility of the latter because a number of the coal leases had been acquired from it. At the trial, Twin Oaks did not elect to prosecute any claim against Daset except this important alleged breach of the warranty of four million (4,000,000) tons of coal. In addition, it alleged that this breach created a right to recover for the loss of tonnage and for its great expenditures for reclamation of stripped land. After a lengthy jury trial, the judge submitted interrogatories to the jury. The jury found that the lease-holds sold to Twin Oaks by Daset contained four million (4,000,000) or more tons of recoverable bituminous coal as defined in the agreement. This resulted in verdicts against Twin Oaks and in favor of Daset in the amount of $1,394,892.86, and in favor of B.H. & H. in the amount of $598,701.60. Twin Oaks filed a motion for a new Trial, and Daset filed a limited motion for a new trial on the ground that the court should not have restricted its claim for interest to six percent (6%). B.H. & H. settled and has discontinued. The motions of the parties were denied and both parties appealed. We will address their claims seriatim. As a foundation for the discussion of the parties’ claims, we turn our attention to the contract. This comprehensive agreement, which embodies the rights and obligations of the parties, is a lengthy document, which was thoroughly negotiated prior to its execution on April 11, 1979. However, the controversy now before us revolves around only those certain passages, which deal with the warranty made by Daset, which state as follows: That on, in and under the lands described in those leases listed in Section 1 of Exhibit I to the Assignment Agreement (Schedule G hereto), and which leases are effectively assigned to Buyer on the date hereof in the title condition required by this Agreement (and not subject to those exceptions or conditions that may be specified on Schedule L attached hereto), there are not less than Four Million (4,000,000) tons of recoverable bituminous coal. In addition, the definitions section of the agreement defines the term “recoverable bituminous coal” as follows: Whenever used in this Agreement, the term “recoverable bituminous coal” shall mean bituminous coal that, as of the date hereof, can be mined and removed with the use of modern mining methods considering the generally accepted maximum stripping ratios in the area in which Sellers have conducted their mining operations. Admission of Evidence. The appellant, Twin Oaks’, initial contention concerns the admission of various documents and other evidence, which it asserts were irrelevant and prejudicial. More specifically, Twin Oaks alleges that the admission of any testimony beyond the scope , of the issue of whether there were four million (4,000,000) tons of “recoverable bituminous coal”, as defined in the agreement, is grounds for reversal because it tended to divert the jury from the issue and confused or misled them. A trial court may properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury. U.S. v. Hively, 547 F.Supp. 318 (M.D.Pa.1982); Belmont Industries, Inc. v. Bethlehem Steel Corp., 62 F.R.D. 697 (1974), affirmed 512 F.2d 434 (3 Cir.1975); Short v. Allegheny Trust Co., 330 Pa. 55, 198 A. 793 (1938); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 433 A.2d 40 (1981). However, “prejudice” for the purposes of this rule, does not mean detrimental to a party’s case, but rather, an undue tendency to suggest a decision on an improper basis. Whistler, supra. In Pennsylvania, the trial judge has broad discretion regarding the admission of potentially misleading and confusing evidence. Bowers v. Garfield, 382 F.Supp. 503 (E.D.Pa.1974), affirmed 503 F.2d 1398 (3 Cir.1974). Appellant alleges error in the admission of three documents. The first document was a memorandum, dated March 27, 1979, from the Treasurer of Peoples to the chairman of the Board of Peoples. A portion of it entitled Reserves stated, “In place reserves of bituminous seam coal are estimated to exceed 6,000,000 tons.” A second memorandum, dated February 26, 1979, stated, “I concur with their reserve [Daset’s] estimate of 5.5 million raw tons in place contained in a total of 4,107 surface acres ...”. The court also admitted another document which showed that the appellant allocated the write off of the mineral rights of the coal leases using a figure of six million two hundred thousand (6,200,000) tons. Appellant argues that because these documents all mentioned amounts of coal in excess of that warranted, they were highly prejudicial and as such had a tendency to compel an improper decision. Further, Twin Oaks asserts that this testimony was irrelevant because neither estimates of coal reserves or in place coal nor “write off figures” are germane to the warranty of the amount of “recoverable bituminous coal”, as defined in the agreement. Twin Oaks further contends that these figures all included “deep mined coal”, which the trial court ruled was not included in the warranty made by Daset. Regarding the admission of these documents, we fail to see how they prejudiced the appellant’s case. The trial judge clearly ruled that the amount of coal that was being warranted was no less than four million (4,000,000) tons. He also ruled that coal reserves that could be mined by deep mining methods were excluded, as is evidenced by the following discussion: MR. MCGINLEY: Judge, what about coal that could be deep mined as well as stripped? THE COURT: What I have said I don’t think has anything to do with that. A person may elect .to mine coal by the deep mining method but for the purposes of the warranty and shall I say this sale of coal, I’m ruling that it was contemplated a minimum of four million tons of coal susceptible of being mined by stripping. MR. MCGINLEY: As long as I understand the Court to beholding (sic) that the danger in the case, Judge, and what we’re just trying to set forth was that if some of these mines which could have been stripped had been deep mined, that coal would have accounted for the warranties. THE COURT: Well, it didn’t happen. So, we’re not faced with that. MR. SMITH: But as I understand your ruling, Your Honor, if that particular coal that Mr. McGinley is referring to could not be stripped, then that coal which could on the other hand been deep mined, that coal is not included in the warranty; is that correct? THE COURT: That’s correct. Further, when the estimates of coal reserves were introduced, Judge Weir overruled appellant’s objections on the basis that they were admissions of the appellant that were relevant “to how much [coal] is there”. At no time was this evidence purported to be estimates of the amount of coal reserves covered by the contract warranty. This testimony did not indicate the amount of “recoverable bituminous coal”, which could be obtained by strip mining, but only established that the appellant estimated that there was a certain amount of coal contained in, on and under the lands in question. As to the testimony which concerned the figure used by the appellant in preparing its taxes; at no time during the testimony was there any suggestion that the figure used for depletion of these coal reserves had any correlation to. the amount of coai warranted. In addition, when the jury was charged, the judge reiterated that the figure to be considered in determining breach of the warranty was four million (4,000,000) tons and provided the jury with a copy of the definition of “recoverable bituminous coal” to use during its deliberations. Therefore, we fail to see how, under the circumstances, any confusion could have resulted from the admission of this testimony. Appellant next contends that it was improper to permit testimony concerning Twin Oaks’ financial condition and operations after the agreement was executed by the parties. The trial court permitted this testimony because it determined that it was relevant to the appellant’s motive for not paying the monies owed. Asserting that evidence of motive is irrelevant in an action for breach of warranty, appellant cites Seneca Falls Machine Co. v. McBeth, 246 F.Supp. 271 (W.D.Pa.1965), vacated and remanded 368 F.2d 915 (3 Cir.1966); Otto v. Imperial Casualty & Indemnity Co., 277 F.2d 889 (8 Cir.1960); and Lane v. Bisceglia, 15 Ariz.App. 269, 488 P.2d 474 (1971). In Seneca Falls Machine Co., the Federal District Court, applying Pennsylvania law, held that the reasons for terminating an oral contract were irrelevant when no provision was made in the contract for termination. The court then concluded that the contract could be terminated by either party at will or after a reasonable time. In Otto the appellant-agent attempted to recover punitive damages from the appellee-insurance company in an action for breach of contract. The court held that, under Missouri law, punitive damages are not recoverable in a breach of contract action. The appellant had attempted to circumvent this rule, by alleging that appellee’s termination of the contract was malicious and willful. The court held that, “... [T]he motive of one who has the right to terminate a contract at any time is immaterial ...” Id. at 893, 894. (Emphasis supplied). In Lane, the parties entered an agreement for the sale of a property, which was conditioned upon the purchasers being able to assume the existing mortgage at a six percent (6%) interest rate. When the mortgagee would only permit the assumption at a six and three-quarter percent (6%%) interest rate, the buyers refused to purchase the property and the seller retained the $5,000.00 earnest money on deposit. The purchasers then brought suit to recover the money. The court held that the seller materially breached the contract by not providing the purchasers with the mortgage at the agreed rate. Thus, the purchasers’ motive for rescinding the contract was immaterial. As the appellee, Daset, correctly counters in its brief, these cases are inapposite to the case at bar because they concern the exercise of a contractual right; not the breach of a duty to pay. In the instant case, Twin Oaks neither had a contractual right to terminate the contract nor to refuse to pay the monies owed. In fact, its refusal to pay was in derogation of the terms of the contract, which did provide the remedy in the event that the amount of recoverable bituminous coal was less than the four million (4,000,-000) tons warranted. This remedy, which was properly alleged at trial, was provided in Article VII, paragraph two, which states: 2. With respect to the representations and warranties set forth in paragraph 17 of Article IV above [recoverable bituminous coal], it is acknowledged and agreed by the parties hereto that the truth and accuracy thereof is of the essence of this Agreement and that the damages that would be incurred by Buyer in the event that said representations and warranties were untrue in any respect would be extremely difficult to measure and determine. Therefore, the parties hereto agree that, to the extent there are less than Four Million (4,000,000) tons of recoverable bituminous coal, Sellers and Warrantors jointly and severally agree to promptly reimburse Buyer in the amount of One Dollar ($1.00) per ton for each ton less than Four Million (4,000,000) tons of recoverable bituminous coal existing on in and under the lands described in the leases listed in Section 1 of Exhibit I to the Assignment Agreement (Schedule G hereto). It is agreed by Buyer and Sellers that such sum shall be paid as liquidated damages (“Liquidated Damages”) for the breach of the representations and warranties set forth in said paragraph 17 of Article IV. As stated previously, the trial judge has broad discretion regarding the admission of potentially misleading and confusing evidence. Bowers, supra. This trial was a lengthy proceeding with a great number of witnesses, many exhibits and extensive testimony. In reviewing the entire record, we can neither say that the trial judge erred in admitting any of this evidence nor that its admission constituted an abuse of discretion such that the court’s judgment was manifestly unreasonable or the result of partiality, prejudice, bias or ill will. Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981); Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980). Also in the aggregate, we cannot say that if this testimony had been excluded, it would have changed the outcome of the case. See, Redevelopment Authority of City of Chester v. Bosacco, 46 Pa.Cmwlth. 242, 406 A.2d 1163 (1979), appeal after remand 53 Pa.Cmwlth. 550, 417 A.2d 1350 (1980). Parol Evidence Appellant next contends that the trial court erred by permitting the introduction into evidence of prior negotia tions and agreements. Twin Oaks argues that the admission of such testimony was highly prejudicial and improper; and was in violation of the parol evidence rule because the agreement contained an integration clause. The Restatement (Second) of Contracts § 213 explains the effect of such a clause as follows: § 213. Effect of Integrated Agreement on Prior Agreements (Parol Evidence Rule) (1) A binding integrated agreement discharges prior agreements to the extent that it is inconsistent with them. (2) A binding completely integrated agreement discharges prior agreements to the extent that they are within its scope. (3) An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement. But an integrated agreement, even though not binding, may be effective to render inoperative a term which would have been part of the agreement if it had not been integrated. However, Section 214 of the Restatement (Second) also ennumerates the limited circumstances in which evidence of prior or contemporaneous agreements and negotiations may be admitted as follows: § 214. Evidence of Prior or contemporaneous Agreements and Negotiations Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish (a) that the writing is or is not an integrated agreement; (b) that the integrated agreement, if any, is completely or partially integrated; (c) the meaning of the writing whether or not integrated; (d) illegality, fraud, duress, mistake, lack of consideration, or other invalidating cause; (e) ground for granting or denying rescission, reformation, specific performance, or other remedy, (emphasis supplied) Comment b. states as follows: b. Interpretation. Words, written or oral, cannot apply themselves to the subject matter. The expressions and general tenor of speech used in negotiations are admissible to show the conditions existing when the writing was made, the application of the words, and the meaning or meanings of the parties. Even though words seem on their face to have only a single possible meaning, other meanings often appear when the circumstances are disclosed. In cases of misunderstanding, there must be inquiry into the meaning attached to the words by each party and into what each knew or had reason to know. See § 201. (emphasis supplied) It is well settled in Pennsylvania law that in the absence of fraud, accident or mistake, parol evidence as to preliminary negotiations or oral agreements is not admissible in evidence if it adds to, modifies, contradicts or conflicts with the written agreement between the parties. Servomation Mathias Pa., Inc. v. Lancashire Hall, Inc., 442 Pa. 602, 276 A.2d 547 (1971); Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968); Keyser v. Margolis, 422 Pa. 553, 223 A.2d 13 (1966). However, it is equally well settled that this general rule does not apply where the agreement is ambiguous. In such a situation parol evidence is admissible to explain the agreement and resolve ambiguities to ascertain the meaning of the parties. Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (1980 3rd Cir.); Silver v. Gene K. Kolber Advertising, Inc., 518 F.Supp. 939 (E.D.Pa.1981); In Re Fessman’s Estate, 386 Pa. 447, 126 A.2d 676 (1956); Pavlich v. Ambrosia Coal Co., 441 Pa. 210, 273 A.2d 343 (1971); Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350 (1976). In addition, our Supreme Court has held that, “[T]he parol evidence rule does not apply in its ordinary strictness where the existence of a custom or usage to explain the meaning of words in a writing is concerned.” Electric Reduction Co. v. Colonial Steel Co., 276 Pa. 181, 186, 120 A. 116, 118 (1923). "... [W]here terms are used in a contract which are known and understood by a particular class of persons in a certain special or peculiar sense, evidence to that effect is admissible, for the purpose of applying the instrument to its proper subject-matter.” Id., 276 Pa. at 188, 120 A. at 118. Accord, Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957). In Carter v. Edwin J. Schoettle Co., 390 Pa. 365, 134 A.2d 908 (1957), the court held that where there is an integrated agreement, evidence of prior negotiations is inadmissible to show an intent at variance with the language of the written agreement, but is admissible to show local usage, which would give a particular meaning to the language. Appellant concedes in its brief that an agreement may be interpreted in accordance with “relevant usage” and cites the Restatement (Second) of Contracts § 220, which states as follows: § 220. Usage Relevant to Interpretation (1) An agreement is interpreted in accordance with a relevant usage if each party knew or had reason to know of the usage and neither party knew or had reason to know that the meaning attached by the other was inconsistent with the usage. (2) When the meaning attached by one party accorded with a relevant usage and the other knew or had reason to know of the usage, the other is treated as having known or had reason to know the meaning attached by the first party. As the learned Judge Weir stated in his opinion, unless an individual had prior exposure to strip mining, it would be impossible to understand the correct meaning of such a simple term as “stripping ratios”. Thus, without explanatory testimony the jurors would be unable to determine what if any meaning the parties attached to various terms. Testimony in the record revealed that both parties accorded the same meaning to the term “generally accepted maximum stripping ratios”. However, Twin Oaks contends that the admission of other extrinsic evidence concerning prior negotiations or drafts of the agreement to define local usage was improper. We disagree. The contract in the case at bar concerns an industry that is highly technical in nature and the attendant terms employed by the parties have no meaning to individuals who are not acquainted with coal mining and therefore have no understanding of the terminology employed by those involved in the business. Moreover, because of the significance attached to various pivotal phrases in the agreement it was of great importance for the jury to hear testimony on how the terms were negotiated. This testimony would then provide sufficient background for evaluation of the intent of the parties in employing the particular language used. Furthermore, the Restatement (Second) of Contracts § 212 provides for the interpretation of an integrated agreement as follows: § 212. Interpretation of Integrated Agreement (1) The interpretation of an integrated agreement is directed to the meaning of the terms of the writing or writings in the light of the circumstances, in accordance with the rules stated in this Chapter. (2) A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence. Otherwise a question of interpretation of an integrated agreement is to be determined as a question of law. c. Statements of intention. The rule of Subsection (1) permits reference to the negotiations of the parties, including statements of intention and even positive promises, so long as they are used to show the meaning of the writing. In support of its argument, Twin Oaks cites a number of cases in which prior drafts and negotiations were ruled inadmissible. However, these cases are inapposite to the case at bar because they all involve situations where the proffered testimony contradicted or attempted to add terms to the agreement. In both Carter, supra and National Cash Register, supra, the parties attempted to introduce evidence which would have contradicted or changed the terms of the agreements. In Fischer & Porter Co. v. Porter, 364 Pa. 495, 72 A.2d 98 (1950), the Supreme Court held that it was improper to admit testimony, which would create an ambiguity where none existed. The situations in these cases are not at all analagous to that in the case at bar. None of the disputed testimony contradicted or varied the terms of the finalized agreement, but only served to illuminate the intent of the parties in utilizing the specific language which was finally incorporated into the contract. Mr. McGinley, the lawyer who had been involved in negotiating the contract on behalf of Daset, testified about terms that had been rejected and the reasoning behind the language actually used as follows. Q. All right. So, that eliminated the language of economically marketable; is that correct? A. Yes. Q. Okay. A. In the context of the negotiations, it was defined further in that there was a handwritten note, “minable and merchantable bituminous coal shall mean bituminous coal that when reached in the course of mining operations, can be mined and removed with the use of modern mining methods and sold at a reasonable profit under then current market conditions.” Q. And was there further language negotiated between the parties? A. Yes. We again negotiated that language and the following draft stated, "That on, in and under the lands described in the leases listed on the attached Schedule A, there are not less than 4,000,000 tons of marketable and merchantable bituminous coal,” and again that was the typed version where the definition stated, “shall mean bituminous coal that can be reached in the normal mining operations and can be mined and removed with the use of modern mining methods and sold at a reasonable profit under then current market conditions.” Q. Did you object to those definitions? A. We negotiated them, yes. Q. And what was the problem with that language as far as your client was concerned? A. It was subjective and dependent upon the success of the Twin Oaks mining operation. Q. And was this whole business deal to rest upon the success or failure of the Twin Oaks mining operation? A. It was not. Q. Then what happened? A. From that definition we evolved to the definition of recoverable bituminous coal as defined in the agreement with reference to maximum stripping ratios in the area. Q. And that final agreement the language of merchantable and selling them at market price and the economic factors that were negotiated out during the negotiations; is that right? A. Yes. Q. And therein lies the basis for your opinion with regard to the final definition, being the generally accepted maximum stripping ratio in the area at the time of the agreement. A. Yes. Q. As to govern the extent of the warranty of coal. A. Yes. MR. FAWCETT: All right. MR. SMITH: Mr. Pietragallo. MR. PIETRAGALLO: No, thank you. RECROSS EXAMINATION Appellant contends that the above testimony created an ambiguity where none had previously existed. Twin Oaks also asserts that this testimony removed the economic element, which others had testified was an important component of the contract. Appellant’s analysis of the testimony is overbroad and not precisely correct. Mr. McGinley’s testimony regarding the negotiation of the terms only showed that Daset did not want the warranty of the amount of recoverable bituminous coal to rise or fall on the expertise or lack of same, on the part of Twin Oaks. In other words, the economic factor in the contract was not to be pegged to Twin Oaks’ ability or inability to successfully mine the coal in an economically feasible manner. Rather, the standard, which was finalized in the contract, was that which would be “generally” accepted in the area. Accordingly, if Twin Oaks operation was not efficient and could not successfully mine these leases, there could be no assertion on its part that there was not the amount of coal warranted. Therefore, we do not agree with Twin Oaks that the economic element was removed from the contract. What was removed was the subjective standard of the appellant. The final negotiated contract was based on an economic standard, which would be acceptable to others engaged in a similar business in the area. Therefore, we hold that the trial judge did not err by permitting testimony of prior negotiations and agreements. Appellee’s only contention on appeal is that the trial court erred in not awarding more than the legal interest rate, in prejudgment interest, on the monies due Daset on the note. Appellee asserts that to restrict the interest rate to six percent (6%), when market interest rates are greatly in excess of that amount, only encourages non-payment of obligations and protracted litigation. Furthermore, Daset argues that Twin Oaks has engaged in tactics, which unjustly enriches itself to the financial detriment of appellee. Appellee concedes that the trial judge’s decision is historically correct, but posits that the dramatic change in the economic situation and the correlating high market interest rates render this decision manifestly unjust. The legal rate of interest in Pennsylvania is fixed at six percent (6%) by statute 41 P.S. § 202 as follows: § 202 Legal rate of interest Reference in any law or document enacted or executed heretofore or hereafter to “legal rate of interest” and reference in any document to an obligation to pay a sum of money “with interest” without specification of the applicable rate shall be contraed to refer to the rate of interest of six percent per annum. Traditionally, Pennsylvania has followed the Restatement (Second) of Contracts § 354 which states as follows: § 354. Interest as Damages (1) If the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled. Comment: a. Scope. This Section deals with an injured party’s right to interest as damages in compensation for the deprivation of a promised performance. Had the performance been rendered when it was due, the injured party would have been able to make use of it. Interest is a standardized form of compensation to the injured party for the loss of that use, in the absence of agreement to the contrary. It is payable without compounding at the rate, commonly called the “legal rate, ” fixed by statute for this purpose. (Emphasis supplied). In contract cases, prejudgment interest is award-able as of right. Eazor Express, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 520 F.2d 951 (3rd Cir.1975), cert. denied; Gold & Co. Inc. v. Northeast Theatre Corp., 281 Pa.Super. 69, 421 A.2d 1151 (1980). In claims that arise out of a contractual right, interest has been allowed at the legal rate from the date that payment was wrongfully withheld, where the damages are liquidated and certain, and the interest is readily ascertainable through computation. Paul Revere Protective Life Ins. Co. v. Weis, 535 F.Supp. 379 (E.D.Pa.1981); Girard Bank v. John Hancock Mutual, 524 F.Supp. 884 (E.D.Pa.1981); Formigli Corp. v. Fox, 348 F.Supp. 629 (E.D.Pa.1972); Miller v. City of Reading, 369 Pa. 471, 87 A.2d 223 (1952). Moreover, in contracts concerning payment of a sum of money, which bear an interest rate higher or lower than the legal rate; if the parties do not contract that it shall be the rate after the debt becomes due; then, the interest rate fixed by law attaches for the detention of the principal sum. Ludwick v. Huntzinger, 5 Watts & S. 51 (1841); Weinberger v. Wickert, 5 Berks 36 (1912); 41 P.S. § 202; 11 Williston, Contracts § 1416 (3rd Ed.1968). However, contract provisions for non-payment of money due, which provide for a specific rate of interest have been upheld. See, O'Brien & Gere Engineers, Inc. v. Taleghani, 525 F.Supp. 750 (E.D.Pa.1981) (amount not paid by stipulated date, simple interest of 12% per annum). A review of the case law reveals that the trend of the courts has been to take an equitable approach in determining interest as an element of damages. See, E.I. Du Pont de Nemours & Co. v. Lyles & Lang Construction Co., 219 F.2d 328 (4th Cir.1955) (interest to be awarded not at legal rate, but at rate plaintiff would have had to pay upon loan of similar amount in view of state money market); Davis Cattle Co. v. Great Western Sugar Co., 544 F.2d 436 (10th Cir.1976) (interest awarded at 11.5% per annum, not statutory rate of 6%); Peterson v. Crown Financial Corp., 553 F.Supp. 114 (E.D.Pa.1982) (interest awarded at rate of 2V2% above prime rate); Nedd v. United Mine Workers of America, 488 F.Supp. 1208 (M.D.Pa.1980) (no interest awarded where union did not benefit from breach of trust). But see, Traffic Safety Co. Inc. v. Horan, 21 B.R. 669 (Bkrtcy.Pa.1982) (former trustee of estate only liable for interest at legal rate, not rate which estate would have earned if money invested). The Pennsylvania courts have also adopted this approach, and in equity cases, the award and rate of interest allowed is at the discretion of the chancellor. Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980); decided after remand 495 Pa. 100, 432 A.2d 971 (1981). Our Supreme Court in Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 410, 276 A.2d 542, 545 (1971), stated as follows: An examination of the cases dealing with the charge and allowance of interest will disclose many difficulties, but the decided trend of courts of law and courts of equity has been ‘to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case’. * * * Unless a case be found, which is a conclusive precedent, the safest and at the same time the fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing. quoting McDermott v. McDermott, 130 Pa.Super. 127, 130, 196 A. 889, 890 (1938). See also, In re Kenin’s Estate, 343 Pa. 549, 23 A.2d 837 (1942) (court reduced interest rate from 6% to 21h%)] Barale v. Barale, 282 Pa.Super. 213, 422 A.2d 1082 (1980) (no interest on partition sale of property). In the tort area, the Supreme Court has promulgated Pa.R.Civ.Pro., Rule 238, which provides as follows: Rule 238. Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq. shall (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded which shall become part of the award, verdict or decision; While these “delay damages” are not termed prejudgment interest as such, they are most certainly a contract prejudgment counterpart. The purpose behind this rule was explained by the Supreme Court as follows, “[T]his rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). See also, American Enka Co. v. Wicaco Machine Corp., 686 F.2d 1050 (1982) (applying Pennsylvania law, damages awarded under Rule 238). Appellee urges that in light of the above, it is obsolete for the award of prejudgment interest to be limited to the legal rate of six percent (6%). It also contends that with the present high interest rates, it is to a debtor’s advantage to withhold payment and litigate. In the event of loss, the money unjustly withheld, if properly invested will generate sufficient income to pay for all costs and interest. This unjust enrichment of the debtor, is in derogation of the principles of equity and is in contravention of the concept underlying the award of interest. Appellee submits that 41 P.S. § 202 does not prevent the recovery of interest at a rate greater than six percent (6%) where the principles of restitution are utilized. In Peterson v. Crown Financial Corp., 661 F.2d 287 (3rd Cir.1981), the Court of Appeals held that the appellant’s claim sounded in restitution. However, in Peterson, the court determined that a situation where money was extracted and unjustly withheld was not analogous to a case where a promise to pay money or render a service had been breached. The court reasoned that the appellant’s claim was removed from the purview of the Restatement of Contracts and sounded in restitution. In so doing, Judge Adams stated, ... [I]t is difficult to draw a logical distinction between the present case — a wrongful demand and acceptance of a sum paid under protest — and the refusal to pay funds due under a contract. It may be inequitable to require debtors to pay only six percent under present Pennsylvania law yet force creditors who have made wrongful demands to disgorge at money-market rates. As to the former situation, however, Pennsylvania has provided clear — if questionable — precedent to which a federal court sitting in diversity is bound. Id. at 298. Unfortunately, while we find appellee’s arguments logical and persuasive, the law in Pennsylvania, at this time, does not permit an award of prejudgment interest in an amount greater than six percent. Appellee’s claim is under the purview of the Restatement and as such does not sound in restitution. Further, we do not agree with appellee that this is a matter for judicial reform. Being statutory, reform in this matter is the province of the legislature. Additionally, we are mindful that this contract was extensively negotiated by skillful and knowledgeable individuals, who should have been well aware of the applicable law and the possible consequences in the event of breach of the agreement. The contract specifically provided that the note for one million dollars, which was payable on or before one year from the date of the execution of the agreement, was to generate six percent (6%) interest per annum on the balance remaining unpaid until the due date. However, since the parties neglected to make any provision on the rate of interest on the note in the event of breach, the trial court could only award prejudgment interest at the legal rate prescribed by statute. Accordingly, appellee’s counterclaim is dismissed. Judgment affirmed. . Peoples owns all of the stock of IFC; IFC owns all of the stock of Twin Oaks. Peoples, IFC, and Twin Oaks shall be collectively referred to as “Twin Oaks”. . The section of the contract dealing with payment stated as follows: 3. (B)(iii) The remaining balance of One Million ($1,000,000.00) Dollars shall be paid on or before one year from the date hereof, together with interest on the balance remaining unpaid from time to time at the rate of six percent (6%) per annum, which obligation shall be evidenced,by a non-negotiable promissory note in the form set forth in Schedule E (attached hereto and by reference made a part hereof). . The trial judge ruled that the contract precluded recovery of reclamation costs. He did so on the basis that under INDEMNIFICATION, Paragraph 2 of the agreement stated as follows: Therefore, the parties hereto agree that to the extent there are less than four million tons of recoverable bituminous coal, sellers and warrantors jointly and severally agree to promptly reimburse Buyer in the amount of One Dollar ($1.00) per ton for each ton less than Four Million (4,000,000) tons of recoverable bituminous coal existing on, in and under the lands described in the leases listed in Section 1 of Exhibit I to the Assignment Agreement (Schedule G hereto). It is agreed by Buyer and Sellers that such sum shall be paid as liquidated damages (“Liquidated Damages") for the breach of the representations and warranties set forth in said paragraph 17 of Article IV. . The appellee argues that most of Twin Oaks contentions on the basis of relevancy and prejudice have been waived because the only objections made at trial were on the basis of the Parol Evidence Rule, and some of these issues were not raised in post-trial motions. Issues not raised in post-trial motions in the trial court are not preserved for consideration on appeal. O’Malley v. Peerless Petroleum Inc., 283 Pa.Super. 272, 423 A.2d 1251 (1980). In appellant’s Motion for New Trial, it is asserted that the trial judge erred in allowing evidence to be given concerning negotiations prior to the agreement of April 11, 1979. Many of the specific issues raised on appeal would be characterized as negotiations. Therefore, we decline to find all of appellant’s allegations waived. . Appellant also raises the issue of the competency of the individuals who made these estimates. However, no such objection was raised at trial or in post-trial motions. Matters raised for the first time on appeal will not be considered. Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979); Mawhinney v. Hotzhauer, 168 Pa.Super. 283, 77 A.2d 734 (1951); Zoni v. Mutual Life Ins. Co. of New York, 153 Pa.Super. 1, 33 A.2d 445 (1943); Stevens et al. v. Frank et al., 151 Pa.Super. 222, 30 A.2d 161 (1943). . Appellant also argues that the admission of this document could have led the jury to believe that it cheated on its taxes. We find such a contention extreme. At no time was such a suggestion made nor was there any inference that that was the purpose for using the 6.2 million ton figure for write-off purposes. . Appellant also contends that the trial court erred in admitting evidence of Twin Oaks expectation of profit and motives for entering into the agreement. We have carefully reviewed the record and appellant’s motion for a new trial. This issue was never raised prior to the appeal to this Court. A party may not raise an issue for the first time on appeal. Vend-A-Matic, Inc. v. Frankford Trust Co., 296 Pa.Super. 492, 442 A.2d 1158 (1982); Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979); Mazza v. Berlanti Const. Co., 206 Pa.Super. 505, 214 A.2d 257 (1965); Robinson v. Brown, 195 Pa.Super. 384, 171 A.2d 865 (1961). Additionally, a reason for new trial not assigned as error in the court below may not be raised and will not be considered for the first time on appeal. Risbon v. Cottom, 387 Pa. 155, 127 A.2d 101 (1956); Schneider v. Albert Einstein Medical Center, Northern Division, 257 Pa.Super. 348, 390 A.2d 1271 (1978); Baccare v. Mennella, 246 Pa.Super. 53, 369 A.2d 806 (1976). Therefore, we find that appellant has waived this contention. . Act of Jan. 30, 1974, P.L. 13, No. 6, § 202 imd. effective. . This section was formerly § 337. . We are also mindful that in the area of workmen’s compensation the interest on awards has been raised from six percent (6%) to ten percent (10%). 77 P.S. § 717.1; C.W. Brown Coal Co. v. Workmen’s Compensation Appeal Bd., 62 Pa.Cmwlth. 539, 437 A.2d 458 (1981). . In appellee’s original complaint, it asked for interest at the rate of ten percent (10%) from the time of breach. However, on appeal, Daset did not limit its argument to any specific amount.

Opinion by Mr. Justice Jones, The Borough of Bidley Park in Delaware County enacted a zoning ordinance on October 12, 1948, which provided a comprehensive plan of zoning for the entire borough. Approximately four years later, William Jacobs, the plaintiff, purchased a number of contiguous unimproved lots in the borough for development purposes. All of the lots so purchased were situated in a district zoned by the ordinance as R-l Residential. The minimum building standards prescribed for an R-l Residential District were single-family dwellings, one to a lot, the lots having a minimum width of forty feet each. Desiring to build semi-detached or other type two-family houses on his lots, Jacobs petitioned the borough council for an amendment of the zoning ordinance to the end that his property would be reclassified as R-2 Residential. Twin or other type two-family houses were permitted by the ordinance in an R-2 Residential District. The council refused Jacobs’ petition. Thereupon, he file his complaint in equity in the instant suit against the burgess, the members of council and the secretary of council of Ridley Park, averring that the property of which he was the owner, was zoned discriminatorily when. compared with the zoning of other designatéd properties: lying to the rear of his property. ' In other' words, the plaintiff’s property was. on the one side of the R-l Residential 'Zone: The complainant prayed the court to declare the zoning ordinance unconstitutional, illegal and void insofar as it classifies his property as located in an R-l Residential District; that an injunction issue restraining the defendants from taking any action under the provisions of the ordinance, or its amendments, affecting his property; and that the court order and direct the borough council to amend the ordinance so that the plaintiff’s land would be reclassified as located within an R-2 Residential District. The defendants answered to the merits. Following a hearing of the case, the chancellor entered a decree nisi which, upon the dismissal of exceptions thereto, was made final by the court en banc. The decree sustained the plaintiff’s bill, declared the ordinance unconstitutional, invalid and of no effect as it applied to the property owned by the plaintiff and restrained the defendants from enforcing the provisions of the ordinance, or its amendments, against the plaintiff’s land insofar as it imposed the restrictions of an R-l Residential classification upon his property. The matter is here on the defendants’ appeal from the final decree. It. is unnecessary to enter upon a discussion or consideration of the chancellor’s findings and conclusions. The bill of complaint must be dismissed. Equity is without jurisdiction of the matter. The borough’s zoning ordinance was enacted pursuant to authority legislatively conferred on boroughs, originally, by the Act of June 29, 1923, P. L. 957, later supplemented and added to The General Borough Act of 1927, P. L. 519, as Article XXXIII by Section 93 of The Borough Code of 1947,' P. L; 1621, 1833, 53 PS §15211.1 et seq. The constitutionality of zoning statutes has long since been recognized in this State: see Taylor v. Moore, 303 Pa. 469, 472, 154 A. 799. Consequently, no question as to the power of the borough to enact the ordinance is present. The ordinance provides, as authorized and required by the empowering Act of Assembly, for a board of adjustment, a right of appeal thereto by any person aggrieved by ..a decision of an administrative officer and also for an appeal to the court of common pleas of the county by any person aggrieved by a decision of the board of adjustment. In the instant case, however, the plaintiff’s application with respect to his requested use of his property was never taken to the board of adjustment. He applied directly to the borough council for an amendment re-zoning his property, which the council refused to do. It is plain enough that the procedure statutorily prescribed for testing the validity of substantive provisions of a zoning ordinance or the method of its administration is through application to the board of adjustment by one aggrieved by the decision of a borough administrative officer in respect thereof and, thereafter, by appeal to the court of common pleas if the decision of the board of adjustment is likewise adverse. Section 13 of the Act of March 21, 1806, P. L. 558, 4 Sm. L. 326, 46 PS §156, prescribes that “In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect.” In Taylor v. Moore, supra, the plaintiff sought a permit from the zoning inspector for a gasoline station in a district zoned residential. The inspector refused a permit. The plaintiff appealed to the board of adjustment with like result. Instead of pursuing further the statutorily prescribed procedure (i.e., an appeal to the common pleas), the plaintiff sought by mandamus to compel issuance of a permit. The defendant moved to quash the writ on the ground that the plaintiff should have appealed to the court of common pleas from the action of the board of adjustment. The plaintiff countered that he could not use the appeal provisions of the zoning ordinance while, at the same time, attacking its provisions as confiscatory. We rejected that contention, however, and noted that the borough’s authority to enact a zoning ordinance and the validity of the procedure for appeal in respect thereof were unquestionable; and that, since the Act of 1806 required pursuit of the statutory remedies, the plaintiff could hot be barred on his appeal to the court of common pleas from pressing his contention of confiscation. By way of analogy, we pointed out that “In assessment of properties, the legislature has provided a special remedy for property owners aggrieved by the acts of the board of revision. In all such cases we have held that the specific remedy must be pursued, though, through unfairness, oppression, or unreasonableness, confiscation may be the question . . . .” It was further observed that “In all cases which we have been able to examine, except one, questions bearing on the constitutionality or validity of a Zoning Act or ordinance have come to us or the Superior Court through the remedy provided in the act of assembly governing zoning [citing cases]. In Herskovitz et ux. v. Irwin et al., 199 Pa. 155, [the one exception noted,] the proceeding was properly for mandamus, as the court pointed out. In that case, after the board had allowed the permit, the right was complete, and no method existed to compel its issuance except mandamus.” Of course, “If officials act without authority or without power, any appropriate remedy may be used to prevent enforcement of their orders: Byers v. Hempfield Twp., 226 Pa. 278”: Taylor v. Moore, supra. The distinction was well drawn for this court by Mr. Justice Linn in Dougherty v. Philadelphia, 314 Pa. 298, 301, 171 A. 583, as follows: “Equity has jurisdiction to restrain attempted taxation for total want of power to tax: [citing cases]. But, where the power to tax appears, and the complaint is over-assessment, or inadequate exemption, the remedy is by appeal to the common pleas from the action of the board of revision: [citing cases and, inter alia, Section 13 of the Act of 1806, supra].” Neither the learned court below nor counsel for either side questioned equity’s jurisdiction in the premises. When attention was called to the apparent oversight at the argument of this appeal, counsel cited an article entitled Equity Jurisdiction in Zoning Cases (50 Dickinson Law Review 23) by Judge Toal who had heard and disposed of the instant case and whose article, in turn, made reference to Lukens v. Ridley Township Zoning Board of Adjustment, 367 Pa. 608, 80 A. 2d 765. There is nothing in the Lukens case holding or intended to hold that equity has jurisdiction to relieve against the restrictions of a zoning ordinance which has been enacted pursuant to an empowering Act of Assembly. The question was not there involved. True, it was said in the Lukens case that “A petition to change and reclassify approximately 16 acres . . . appears, because 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.” But different rules do not obtain for relieving against oppressive zoning restrictions according to differences in the relative sizes of affected properties. All properties within the same zoned district are subject to the same zoning regulations. If, however, a property owner desires to test the constitutionality or validity otherwise of zoning regulations, application to the Board of Adjustment, in the first instance, for relief, followed by an appeal to the common pleas from the Board’s denial of relief, is the means for raising legal questions for judicial determination. Nothing was said in the Lukens case from which it could even be inferred that if the local legislative body refuses to re-zone, when so requested, the applicant can then invoke equity’s jurisdiction and there have the ordinance amended, if not actually nullified. Indeed, the opinion quoted approvingly from Taylor v. Moore, supra, to the effect that “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.” The learned court below erred in entertaining the bill of complaint which should have been dismissed for want of jurisdiction of the subject-matter. Decree reversed and bill dismissed at the appellee’s costs.

PELLEGRINI, Judge. Bethenergy Mines Inc., et al. (Coal Companies) appeal from the order of the Environmental Hearing Board (Board) denying their petition for attorney’s fees and costs pursuant to Section 4(b) of the Surface Mining Conservation and Reclamation Act (SMCRA), 52 P.S. § 1396.4(b), and Section 5(g) of the Bituminous Mine Subsidence and Land Conservation Act (BMSLCA), 52 P.S. § 1406.5(g). The Coal Companies are 14 underground bituminous coal operators who, between May 24,1985, and July 6,1989, filed, among other appeals, 52 appeals of Coal Mining Activity Permits (CMAPs) with the Department of Environmental Protection (Department), contending that those permits contained objectionable standard conditions. Ultimately, the Coal Companies were granted summary judgment on their challenges to the standard conditions in the CMAPs and the Board held those standard conditions to be invalid. After obtaining summary judgment, the Coal Companies, on July 6, 1993, filed a petition for costs and attorney’s fees before the Board. Section 4(b) of the SMCRA and Section 5(g) of the BMSLCA contain identical fee recovery provisions which, in relevant part, provide: ... Any person having an interest which is or may be adversely affected by any action of the department under this section may proceed to lodge an appeal with the Environmental Hearing Board in the manner provided by law and from the adjudication of said board such person may further appeal as provided by Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure.) The Environmental Hearing Board, upon the request of any party, may in its discretion order the payment of costs and attorney’s fees it determines to have been reasonably incurred by such party in proceedings pursuant to this section ... (Emphasis added). 62 P.S. § 1396.4(b) and 52 P.S. § 1406.5(g). While for fees incurred in 1985 and 1986, five of the Coal Companies paid the legal fees and costs associated with the CMAP litigation, legal fees and costs incurred between January of 1987 through June of 1993 were paid by the Coal Companies’ trade association, the Pennsylvania Coal Association (PCA). The PCA is a trade association which represents the interests and general welfare of its coal producing members and the bituminous coal industry in the Commonwealth. Among the purposes of the PCA is the coordination and funding of litigation which its members believe has an impact on them or the coal industry in general. The Coal Companies are members of the PCA. Members of the PCA pay dues based upon the amount of coal they produce each year. The dues paid by its members are the PCA’s primary source of income. Due to the general impact of the standard conditions on the coal mining industry, the PCA paid the attorney’s fees and costs associated with the Coal Companies’ CMAP appeals. Upon the Department’s motion for summary judgment, the Board granted fees paid directly by the Coal Companies in 1985 and 1986 directly to their counsel, but denied fees that were paid by the PCA on behalf of the Coal Companies because they did not “incur” those fees as required by Sections 4(b) and 5(g). Relying on Webster’s Ninth New Collegiate Dictionary definition, “to become hable for or subject to,” as the plain meaning of to “incur”, the Board held that because the PCA assumed the obligation to pay the legal costs, the Coal Companies were not “hable for or subject to” the attorney’s fees and costs for which they seek reimbursement. If it were to give a more expansive reading to this provision, the Board reasoned that would go beyond the purpose of awarding attorney’s fees and costs to a prevailing party which was “merely to make the winning party whole,” not to make them more than whole by reimbursing costs they did not themselves “incur”. On September 11, 1995, the Board approved a stipulation of partial settlement and dismissed the Coal Companies’ appeals, including the fee petition. The instant appeal followed. The sole issue on appeal is whether the Board is without discretion to award fees because “incurred” as used in Sections 4(b) of the SMCRA and 5(g) of the BMSLCA means incurred by the parties and not by some other entity, such as a trade association. The Coal Companies argue that the Board misconstrued the plain meaning of “incurred”, and that “incurred” as used in Sections 4(b) and 5(g) encompasses both the direct and indirect incurrence of legal fees, so that the Coal Companies “incurred” fees in this case. When reviewing agency interpretations of statutes they are charged to enforce, our Supreme Court, in Pennsylvania Human Relations Commission v. Uniontown Area School District, 455 Pa. 52, 313 A.2d 156 (1973) (as well as the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), has adopted a “strong deference” standard for reviewing agency interpretations of statutes they are charged to enforce. Pennsylvania Elec. Co. v. Pennsylvania Public Utility Com’n, 166 Pa.Cmwlth. 413, 648 A.2d 63 (1994), 'petition for allowance of appeal denied, 542 Pa. 680, 668 A.2d 1141 (1995). Under the “strong deference” standard, if we determine that the intent of the legislature is clear, that is the end of the matter and we, as well as the agency, must give effect to the unambiguously expressed intent of the legislature. If, however, we determine that the precise question at issue has not been addressed by the legislature, we are not to impose our own construction on the statute as would be necessary in the absence of an administrative interpretation, but review the agency’s construction of the statute to determine whether that construction is permissible. Pennsylvania Electric Company v. Pennsylvania Public Utility Company. We must give deference to the interpretation of the legislative intent of a statute made by an administrative agency only where the language of that statute is not explicit or ambiguous. 1 Pa.C.S. § 1921(c)(8). A statute is ambiguous or unclear if its language is subject to two or more reasonable interpretations. Drummond v. University of Pennsylvania, 651 A.2d 572 (Pa.Cmwlth.1994), petition for allowance of appeal denied, 541 Pa. 628, 661 A.2d 875 (1995). The Coal Companies and the Department both contend that Sections 4(b) of SMCRA and 5(g) of BMSLCA are clear and unambiguous and that their intent can be derived from its plain meaning, but disagree as to exactly what that “plain meaning” is. The Coal Companies contend that under the plain meaning of Sections 4(b) and 5(g), they “incurred” the fees and costs of the CMAP litigation because they instituted and prosecuted the litigation, and, had the PCA not funded such, the Coal Companies themselves would have been responsible for its costs. The Coal Companies contend “incur” encompasses both direct and indirect liability for attorney’s fees and costs and, while the PCA bore the expense of the litigation as part of its representation of the interests of the Coal Companies and the coal mining industry in general, the dues paid by the Coal Companies to the PCA constituted at least part of the funding of the litigation. The Department and the Board conversely interpret the word “incur” as limited to direct incurrence of those costs. The Department cites to the dictionary interpretation of the word and contends that under the plain meaning of Sections 4(b) and 5(g), the Board properly held that the Coal Companies were not eligible for recovery of attorney’s fees and costs because the PCA and not the Coal Companies directly “incurred” those costs, and that the PCA was not a party to the litigation. Both interpretations are reasonable; in fact, the Coal Companies’ interpretation of “incur” was adopted in some federal cases involving the Equal Access to Justice Act. See SEC v. Comserv Corp., 908 F.2d 1407 (8th Cir.1990); United States v. Paisley, 957 F.2d 1161 (4th Cir.1992), petition for certiorari denied, 506 U.S. 822, 113 S.Ct. 73, 121 L.Ed.2d 38 (1992). Where both readings of the statute are reasonable, under Union-town, we are obligated to give great deference to the administrative agency’s interpretation. Because the Board’s interpretation of Sections 4(b) and 5(g) advanced by the Board, and since that interpretation is reasonable, accept that the plain meaning of “incur” is limited to a direct incurrence of attorney’s costs and fees by an applicant. Accordingly, the decision of the Board is affirmed. ORDER AND NOW, this 12th day of April, 1996, the order of the Environmental Hearing Board, No. 87-131-MR et al., dated September 11, 1995, as to its dismissal of the Coal Companies’ appeals in the February 6, 1995 order, is affirmed. . 52 P.S. § 1396.4(b). . The other appeals filed by the Coal Companies during this period include appeals filed from ten coal refuse disposal permits and three coal preparation plant permits. . In Big “B” Mining Company v. Department of Environmental Resources, 142 Pa.Cmwlth. 215, 597 A.2d 202 (1991), petition for allowance of appeal denied, 529 Pa. 652, 602 A.2d 862 (1992), we held that the recovery of attorney's fees and costs incurred in connection with a permit appeal is permitted under the plain meaning of the language of Section 4(b) of the SMCRA. In determining that costs incurred in connection with permit appeals were recoverable by permit-tees, we rejected the argument that the legislative history behind the federal counterpart to the SMCRA should be relied upon. Rather, we held that because there was no ambiguity in the statute as it applied to the recovery of costs and attorney’s fees in permit proceedings, we could not rely upon the congressional or legislative intent behind the federal statute to conclude that recovery of those costs was unauthorized. .Subsequently, five additional CMAP appeals were dismissed as moot, and attorney fee petitions filed with respect to those appeals were consolidated with the original fee petition filed on July 6, 1993. . The prior trade association which represented the Coal Companies was the Keystone Bituminous Coal Association (KBCA). After the Pennsylvania Coal Mining Association merged with the KBCA, the trade association became known as the Pennsylvania Coal Association (PCA) on January 1, 1988. Although part of the fees and costs at issue were funded by the KBCA, for simplicity, we will refer only to the PCA in this opinion, but note that the KBCA was also responsible, as the Coal Companies' prior trade association, for the funding of the costs and fees at issue in this appeal. . In order to recover attorney's fees and costs under Section 4(b) of SMCRA and 5(g) of BMSLCA, an applicant must establish that the following elements have been fulfilled: (1) a final order must have been issued; (2) the applicant must be the prevailing parly; (3) the applicant must have achieved some degree of success on the merits; and (4) the applicant must have made a substantial contribution to a full and final determination of the issues. Kwalwasser v. Department of Environmental Resources, 131 Pa.Cmwlth. 77, 569 A.2d 422 (1990). . On appeal from a decision of the Board, our scope of review is limited to a determination of whether the Board committed an error of law, violated constitutional rights, or whether substantial evidence supports its findings of fact. Starr v. Department of Environmental Resources, 147 Pa.Cmwlth. 196, 607 A.2d 321 (1992). A grant of summary judgment by the Board is proper where 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 judgment as a matter of law. Empire Coal Mining and Development, Inc. v. Department of Environmental Resources, 150 Pa.Cmwlth. 112, 615 A.2d 829 (1992), petition for allowance of appeal denied, 535 Pa. 640, 631 A.2d 1011 (1993). . In a footnote, the Coal Companies contend that Chairman Woelfling should not have participated in the determination of the fee petition when, due to a conflict of interest, she did not participate in the underlying permit appeals. Though the Coal Companies had no way of knowing of Woelfling’s participation prior to the issuance of the Board's February 6, 1995 order, that order did not become final until September 11, 1995. During that intervening time, the Coal Companies could have addressed Woelfling’s purported need to continue to recuse through a motion for reconsideration but did not do so. A motion for recusal must be raised at the earliest possible moment in the proceedings or suffer the consequences of being barred. Ware v. U.S. Fidelity and Guaranty Co., 395 Pa.Super. 501, 577 A.2d 902 (1990). Because they did not raise whether Woelfling had to continue to recuse until this appeal, the Coal Companies' objection to Woel-fling’s participation was untimely. . The Coal Companies also contend that the Board frustrated the liberal interpretation mandated by Section 19 of BMSLCA, 52 P.S. § 1406.19, by so strictly and narrowly construing Sections 4(b) of the SMCRA and the identical fee-shifting provision found in 5(g) of the BMSLCA. Section 19 of BMSLCA provides: This act is intended as remedial legislation designed to cure existing evils and abuses and each and every provision hereof is intended to receive a liberal construction such as will best effectuate that purpose, and no provision is to receive a strict or limited construction. This provision does not alter the normally applicable rules of statutory construction, but only reiterates the intent of 1 Pa.C.S. § 1928(c) that all statutes are to be liberally construed to effect their objects and promote justice. And, ignoring that Section 19 was enacted 20 years prior to Section 5(g), see Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Scioli-Turco Post 593, V.F.W., 668 A.2d 1207 (Pa.Cmwlth.1995), and that a similar provision is not in the SMCRA, the statement of purpose provision of both Acts (52 P.S. § 1406.2 and 52 P.S. § 1396.1) requires the Department to interpret all provisions in favor of protecting the environment. It has nothing to do with how we address administrative agency interpretations of both of these statutes.

Opinion by Mr. Justice Nix, Appellant Leroy Eichman was tried by a judge sitting without a jury and found guilty on charges of burglary and rape. After post-trial motions were denied, he was sentenced to from two to five years. On appeal, the Superior Court affirmed, per curiam. We granted allocatur limited to the issue whether there was a constitutional right to counsel at a pre-indictment lineup, and if so, whether that right was intelligently waived in this case. Appellant was arrested at 9:30 A.M. on May 6th and taken to the 9th District Central Detective Division, lie signed a written waiver of counsel, and at about 2:00 P.M. he was placed in a six-man lineup where the complaining witness identified him as her assailant. At trial, the complaining witness testified that on May 1, 1970, the appellant entered her apartment and forced her to submit to intercourse by threatening her with a knife. An in-court identification was made without reference to the lineup during the prosecution’s casein-chief. Appellant now contends that he had a right to counsel at the lineup, that he did not waive that right, and that the in-court identification was tainted by the uncounseled lineup. The United States Supreme Court first recognized a suspect’s right to counsel at a pretrial lineup in United States v. Wade, 388 U.S. 218 (1967). The policy behind the prophylactic exclusion of uncounseled lineups was explained as follows: “Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ Powell v. Alabama, 287 U.S. 45, 57 (1932).” (Footnote omitted). 388 U.S. 236-7. While Wade’s indictment preceded his lineup, the indictment also preceded the arrest, and the Court’s opinion did not specify precisely when the right to counsel attaches. Five years later, a plurality of the Supreme Court of the United States in Kirby v. Illinois, 406 U.S. 682 (1972) declined ta apply Wade to lineups occurring “before the commencement of any prosecution whatever.” 406 U.S. at 690. The decision in Kwby does not suggest that the rationale which spawned Wade is inapplicable to such lineups. Rather, Kirby was concerned with striking “the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.” 406 U.S. at 691. In attempting to reach this balance, the plurality noted: “The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the Government has committed itself to prosecute, and only then that the adverse positions of Government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” (Footnote omitted) 406 U.S. at 689-690. Therefore, they held that the Sixth Amendment right to counsel applies only to lineups conducted “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” 406 U.S. at 689. Kirby does not establish an all inclusive rule; rather, the line to be drawn depends upon the procedure employed by each state. We are therefore faced with the issue of whether this lineup preceded the “initiation of adversary judicial proceedings” as defined in Pennsylvania. While the plurality in Kirby attaches some significance to the indictment, they specifically mention several benchmarks: “formal charges, preliminary hearing, indictment, information, or arraignment.” 406 U.S. at 689. We are convinced that it would be artificial to attach conclusionary significance to the indictment in Pennsylvania. Rather, we hold that Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), appropriately draws the line for determining the initiation of judicial proceedings in Pennsylvania at the arrest. As we noted in Whiting, the policy behind the Wade rule applies with equal force to all confrontations conducted after arrest. Kirby only instructs us to limit that rule where the limitation would benefit the interest of society in the prompt and purposeful investigation of an unsolved crime. In light of Pennsylvania’s procedure, we find no countervailing benefit where the lineup occurs after arrest. In reaching that conclusion, we note that the approval by a magistrate of a written complaint is at least as significant as the indictment in determining the commencement of adversary proceedings and the strength of the government’s commitment to prosecute. See, United States ex rel. Robinson v. Zelker, 468 F.2d 159, 163 (2d Cir. 1972): “Here the arrest warrant itself commanded that appellant be brought forthwith before the Criminal Court ‘to answer the said charge, and to be dealt with according to law.’ These were formal criminal proceedings, for the warrant had been signed by a judge based on an ‘information upon oath’ that appellant did commit the crimes of assault, robbery and possession of a dangerous weapon. This being true, Wade required counsel at the show-up”. In Pennsylvania, magisterial approval of a complaint occurs either at the issuance of an arrest warrant, or, for warrantless arrests, at the preliminary arraignment. See, Pa. R. Crim. P. 130. The reasoning of Robinson would clearly apply to both situations. The case at bar, however, concerns a lineup conducted after a warrantless arrest and before the preliminary arraignment. Having determined that Wade protection must be provided subsequent to an arrest on a warrant, we must decide whether to distinguish arrests conducted without a warrant. We decline to do so for two reasons. First, a warrantless arrest is justified only in the face of compelling exigent circumstances which pre elude the police from going before a detached magistrate. See generally, Wong Sun v. United States, 371 U.S. 471, 479 (1963). Such exceptions do not remove the necessity of probable cause, they merely place the determination of probable cause in the hands of the police. While events may demand a procedural departure from the general requirement of a detached magistrate we must emphatically reject any attempt to use such exigent circumstances to create substantive benefits for arrests conducted without warrants. To allow uncounseled lineups between warrantless arrests and preliminary arraignment would only encourage abuse of the exigent circumstances exception and undercut our strong policy requiring warrants whenever feasible. Equally as significant is the policy behind Rule 130, supra, requiring that the suspect “shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him.” Under that Rule, filing of such a complaint must follow a warrantless arrest without unnecessary delay, and, as we have interpreted that phrase, only delays for routine police procedures — booking, fingerprinting, photographing, and the recognized administrative procedures are permissible. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). See also, 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); and Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973). Thus, we see no basis for distinguishing arrests with warrants and arrests without warrants for purposes of Kirby. In the former cases, the complaint will have already been filed, and in the latter, the complaint must be filed without “unnecessary delay” as we have defined the term. The Commonwealth admits that its evidence against appellant prior to the lineup was sufficient to establish probable cause to arrest him, but it argues that it was “fairer” to conduct the lineup before giving him a preliminary arraignment. We cannot agree. After the arraignment, a lineup could have been conducted without encroaching on the principles of Rule 130 or the right to counsel enunciated in Wade. To draw a distinction between arrests with and without warrants would encourage police to ignore the mandate of Rule 130 and would not aid any legitimate police interest in facilitating the investigation of crime. We therefore do not feel that either the “committed to prosecution” standard or the “balance” mentioned in Kirby justify such a distinction. Since appellant was effectively under arrest at the time of this lineup, Wade and Kirby require that he be given a right to counsel at that time. The Commonwealth argues that even if appellant had a right to counsel at the lineup, his oral and written declarations establish that he waived that right. Appellant counters by asserting that such waiver was made without knowledge of the crime under investigation and was therefore not knowing and intelligent. This Court has dealt with similar challenges to waivers of the right to counsel under Miranda on several occasions. See, Commonwealth v. McKinney, 453 Pa. 10, 306 A.2d 305 (1973); Commonwealth v. McIn tyre, 451 Pa. 42, 301 A.2d 832 (1973); Commonwealth v. Swint, 451 Pa. 54, 296 A.2d 777 (1972); Commonwealth v. Boykin, 450 Pa. 25, 298 A.2d 258 (1972); Commonwealth v. Jacobs, 445 Pa. 364, 284 A.2d 717 (1971); Commonwealth v. Cooper, 444 Pa. 122, 278 A.2d 895 (1971). In each, of these cases, we alluded to the decision of three members of this Court in Commonwealth v. Collins, 436 Pa. 114, 121, 259 A.2d 160 (1969) which held that “an intelligent and understanding waiver of the right to counsel is impossible where the defendant has not been informed of the crime which is being investigated.” However, in each case we determined that the suspect had been adequately informed of the general nature of the charges against him. These cases teach that while there is no need for the police to explain in detail all of the technicalities of the charges at issue, the accused in order to make a valid waiver of the right to counsel should at least know the general nature of the transaction giving rise to the charges. In view of the lack of prejudice to legitimate law enforcement, and the obvious advantage to the accused in having this information, we would apply the above rule to waivers of lineup counsel as well as to Miranda waivers. Here the investigating detective admitted that he neither informed appellant of the charge against him or of the purpose of the lineup. A waiver under such circumstances is not knowing and intelligent. Finally, the Commonwealth urges us to find that the in-court identification at issue here was not tainted by this illegal lineup. While testimony during the suppression hearing suggests strongly that there may have been an independent basis for the in-court identification, the hearing court, having concluded that the lineup procedure was not tainted, did not make a specific finding on this issue. See, United States v. Wade, supra at 240; Commonwealth v. Futch, supra at 396. We therefore, remand the record to the lower court for a resolution of this issue. The case is remanded for further proceedings consistent with this opinion. Mr. Justice O’Brien, Mr. Justice Roberts and Mr. Justice Manderino join in this opinion. Justice Stewart’s opinion was joined by Chief Justice Burger, Justice Blackmun, and Justice Rehnquist. Justice Powell, whose vote was necessary for affirmance, stated only, “As I would not extend the Wade-Gilbert per ,se exclusionary rule, I concur in the result reached by the Court.” 406 U.S. at 691. In fact, the electors of this Commonwealth have recently authorized the abolition of the indicting grand jury. Effective January 1, 1974 Pa. R. Crim. P. 118 was renumbered in pertinent part as Pa. R. Crim. P. 130. Appellant does not contend that the lineup in this case was the product of an unnecessary delay and therefore improper under Rule 130 and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). We are not referring to Futeh for purposes of rendering the lineup invalid, but only to analyze whether appellant was entitled to counsel at the lineup. Neither the United States Supreme Court decision in Wade nor our decision in Whiting have been interpreted to require counsel at prompt on-the-scene identifications. See, e.g., United States v. Sanchez, 422 F.2d 1198 (2d Cir. 1970); Russell v. United States, 408 F.2d 1280 (D.C. Cir. 1969); Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1973). Our decision today should not be so interpreted.

Opinion by Me. Justice Pomeroy, These four consolidated appeals challenge the constitutionality of section 624.1(c) of The Vehicle Code, which provides that if the amount of alcohol by weight in the blood of a person accused of driving under the influence of intoxicating liquor is shown by chemical analysis to be ten one-hundredths percent (.10%) or more, “it shall be presumed that the defendant was under the influence of intoxicating liquor”. Appellants were each convicted by a jury of operating a vehicle while under the influence of intoxicating liquor. Results of an analysis of blood taken from appellant Steckel shortly after his arrest, showing a blood-alcohol percentage of 0.21 by weight, were introduced at his trial. Breathalyzer test results were introduced at the trials of appellants DiFrancesco, Douts, and Buckwalter, showing blood-alcohol percentages of 0.16, 0.19 and 0.21, respectively. The court’s instructions to the jury concerning these test results were substantially identical. In each case, the trial judge recited the pertinent portions of section 624.1. Exceptions were taken to these instructions on the basis that the statute infringed upon the constitutional rights of the defendants. On appeal, the Superior Court affirmed the judgments of sentence per curiam. We granted allocatur, limited to the question of the constitutional validity of the inculpatory inference authorized by the statute. At the outset, we note that nothing in subsection (c) of section 624.1 relieves the Commonwealth of its burden of laying a proper foundation for the introduction of test results showing the amount of alcohol in the defendant’s blood. Nor does the statute compel a verdict of guilty on the basis of such test results alone. Subsection (d) of section 624.1 expressly provides that “[t]he foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor”. The defendant himself may produce such evidence, but there is no burden on him to do so. In any case, if on the basis of all the evidence the jury entertains a reasonable doubt as to whether a defendant was under the influence of intoxicating liquor, they are duty-bound to acquit. All that the statute does is specify a quantum of evidence which is legally sufficient to sustain proof of this element of the crime. So long as the connection between the test results and the “presumed” facts of being under the influence of intoxicating liquor meets the required standard of rationality under the due process clause, the statute passes constitutional muster. In Tot v. United States, 319 U.S. 463, 467-68, 87 L.Ed. 1519, 1524 (1943), the United States Supreme Court singled out the so-called “rational connection” standard as governing the validity of statutory presumptions under the requirements of constitutional due process: “. . . a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the influence of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of the courts.” (Footnotes omitted.) Subsequent Supreme Court decisions have refined this standard as it applies to legislatively authorized inferences in criminal cases. In Leary v. United States, 395 U.S. 6, 36, 23 L.Ed.2d 57, 82 (1969), the Court remarked: “The upshot of Tot [and subsequent cases] is, we think, that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Because the statutory presumption under review in Lewry did not meet this minimum test, the Court declined to reach “the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use”. Id. at 395 U.S. 36 n.64, 23 L.Ed.2d 82. While the United States Supreme Court has not yet directly addressed this question, there are unmistakable intimations in its later decisions that where the inferred fact comprises an essential element of the crime charged, the inference must satisfy the reasonable doubt standard. See Turner v. United States, 396 U.S. 398, 24 L.Ed.2d 610 (1970); Barnes v. United States, 412 U.S. 837, 37 L.Ed.2d 380 (1973). In Barnes, the Court’s most recent pronouncement in this area, Mr. Justice Powell remarked: “To the extent that the ‘rational connection,’ ‘more likely-than-not,’ and ‘reasonable doubt’ standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance.” 412 U.S. at 843, 37 L.Ed.2d at 386. However tenuous the differences between these standards may be, we are of the opinion that the constitutionality of a standardized inference invoked to establish an essential element of the crime charged must be judged by the reasonable doubt standard. This standard is an integral part of criminal due process, In re Winship, 397 U.S. 358, 364, 25 L.Ed. 2d 368, 375 (1970), and although “in the judicial assess ment [of the constitutionality of a statutory criminal presumption] the [legislative] determination favoring the particular presumption must, of course, weigh heavily”, it is not within the power of the legislature to undercut the reasonable doubt standard. Recently, we refused to countenance any relaxation of this standard in the closely related area of so-called “affirmative defenses”. Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). Moreover, we have consistently held that where the Commonwealth’s case rests entirely on circumstantial evidence, this evidence must be strong enough to sustain a finding of guilt beyond a reasonable doubt. See, e.g., Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972). The test results which bring the statutory inference into play are merely one ldnd of circumstantial evidence. It would be incongruous, to say the least, to judge this inference by a standard less stringent. Because section 624.1(c) is based in part on scientific data which most jurors cannot evaluate in light of their own experience and common sense, it is doubly imperative that the inculpatory inference authorized by the statute be subjected to strict scrutiny. Nevertheless, we have no difficulty in concluding that this inference satisfies the reasonable doubt standard. In its deliberations prior to enacting section 624.1, the legislature considered evidence demonstrating that, in virtually all drivers, driving ability is significantly affected by a blood-alcohol content of 0.10 percent or more. No evidence to the contrary was introduced at the trials below, and our own research suggests that no persuasive evidence of this sort is presently available. The main thrust of appellants’ attack on the statute is directed not to the reasonableness of the inference, but to the failure of the Commonwealth to produce expert witnesses to interpret the test results on which the inference is based. Of course, one of the major purposes of the statute is to eliminate the need for this sort of testimony. Appellants argue, however, that their right to confront the witnesses against them, guaranteed by Article I, section 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments to to the Constitution of the United States, places an obligation on the Commonwealth to produce such witnesses. This contention was expressly rejected by the United States Court of Appeals for the Fourth Circuit in a drunk driving case involving a similar statutory inference. Kay v. United States, 255 F.2d 476, 481 (4th Cir. 1958), cert. denied, 358 U.S. 825, 3 L. Ed.2d 65 (1958). The same general line of argument was implicitly rejected in the Supreme Court decisions which we have discussed above. For example, in Tur ner v. United States, supra, the Court upheld a statute which permitted the trier of fact to infer from the defendant’s possession of heroin that he knew the drugs had been unlawfully imported. In reaching its conclusion that this inference was constitutionally permissible, the Court relied on a large body of data culled from prior decisions, congressional proceedings, and other official studies not made a part of the record at trial. The clear import of Turner and the line of cases from which it stems is that legislatures may incorporate their findings of fact into statutory inferences without infringing on a defendant’s constitutional right of confrontation. As the Court said in United States v. Gainey, 380 U.S. 63, 67, 13 L.Ed.2d 658, 662 (1965), upholding an incriminating statutory inference: “the process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of [the legislature] to amass the stuff of actual experience and cull conclusions from it.” We emphasize that what is described in section 624.1(c) of The Vehicle Code as a “presumption” is really no more than an inference which the jury may accept or reject in the light of all the evidence in the case. If the statute is read as a part of the court’s charge, the non-compulsory nature of this inference must be brought home to the jury. More is required than just a bare recitation of the statute. The concept of a presumption has caused confusion among lawyers as well as laymen, and the unqualified use of this word in the charge of the court may mislead jurors into thinking they are bound to accept the incriminating inference. See Barfield v. United States, 229 F.2d 936 (5th Cir. 1956); United States v. Sherman, 171 F.2d 619, 624 (2d Cir. 1948); cert. denied sub nom. Grimaldi v. United States, 337 U.S. 931, 93 L.Ed. 1738 (1949). The jury should be instructed that the test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test results should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether the defendant was under the influence of intoxicating liquor, they should return a verdict of “not guilty”. Judgments of sentence affirmed. Mr. Justice Eagen concurs in the result. Mr. Justice Manderino took no part in the consideration or decision of this case. Act of April 29, 1959, P.L. 58, §624.1, as amended by the Act of July 31, 1968, P.L. 758, No. 237, §1, 75 P.S. §624.1(c). Section 624.1 of The Vehicle Code reads in part: “(b) In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle or tractor while under the influence of intoxicating liquor the amount of alcohol in the defendant’s blood, as shown by a chemical analysis of his breath, his blood, or his urine, which analysis was conducted with equipment approved by the secretary and operated by qualified personnel, shall be admissible in evidence. “(c) If chemical analysis of a person’s breath, blood or urine shows— “(1) That the amount of alcohol by weight in the blood of the person tested is five one-hundredths (0.05) percent or less, it shall be presumed that the person tested was not under the influence of intoxicating liquor. “(2) That the amount of alcohol by weight in the blood of the person tested is in excess of five one hundredths (0.05) percent but less than ten one-hundredths (0.10) percent, this fact shall not give rise to any presumption that the person tested was or was not under the influence of intoxicating liquor, but this fact may be considered with other competent evidence in determining the guilt or innocence of the person tested. “(3) That the amount of alcohol by weight in the blood of the person tested is ten one-hundredths (0.10) percent or more, it shall be presumed that the defendant was under the influence of intoxicating liquor. “(d) The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor. “(e) Upon the request of the person tested, the results of any chemical test shall be made available to him or to his attorney.” Subsection (c) of §624.1 is based on §ll-902(b) of the Uniform Vehicle Code (1968 revision). A substantial majority of the states have enacted statutes based on this section of the Uniform Vehicle Code. See National Committee on Uniform Traffic Laws and Ordinances, Traffic Laws Annotated 640-642 (1972). Subsection (a) of §624.1 provides in part that “the test is [to be] administered by qualified personnel and with equipment approved by the secretary [of transportation] .... Qualified personnel means a physician or a police officer who has received training in the use of such equipment in a training program approved by the secretary.” What the statute refers to as a “presumption” is, strictly speaking, only a standardized permissible inference. Although the terms “inference” and “presumption” are often used interchangeably, this Court has adhered to the prevailing view among legal commentators, and drawn a distinction between these two concepts. See Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974); Commonwealth v. Shaffer, 447 Pa. 91, 105-106, 288 A.2d 727, 735 (1972). See generally McCormick’s Handbook of the Law of Evidence §342 ff. (2d ed. E. Cleary 1972) ; 9 J. Wigmore, Treatise on Evidence §2490 ff. (3d ed. 1940). According to this view, an inference is merely a logical tool which permits the trier of fact to proceed from one fact to another. A presumption, on the other hand, is a procedural device which not only permits an inference of the “presumed” fact, but also shifts to the opposing party the burden of producing evidence to disprove the presumed fact. Failure to meet this burden of production will normally result in binding instructions on the issue of the presumed fact’s existence in favor of the party invoking the presumption. But the notion of a directed verdict against a criminal defendant is contrary to accepted tenets of criminal justice. Placing the burden of production on a defendant under the threat of such a sanction would run afoul of the presumption of innocence, see Commonwealth v. Bonomo, 396 Pa. 222, 229-230, 151 A.2d 441, 445-46 (1959), as well as the defendant’s privilege of declining to testify. Thus, where the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by the court. See generally Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974). From this perspective, it is apparent that virtually all so-called “criminal presumptions” are really no more than permissible inferences. Subsection (c) (3) of §624.1 is no exception. Our lower courts have so construed it; see, e.g., Commonwealth v. Thompson, 27 Som. 241 (1971), aff’d 221 Pa. Superior Ct. 824, 292 A.2d 425 (1972), allocatur refused, which contains a thorough and scholarly discussion of the question. See also, People v. Guilford, 20 App. Div. 2d 192, 245 N.Y.S.2d 781 (1964); cf. State v. Cooke, 270 N.C. 644, 155 S.E.2d 165 (1967). Of course a permissible inference may affect the burden of production in the practical sense that it increases the risk that a defendant who fails to produce countervailing evidence may suffer an adverse verdict. In this sense, the evidence forming the basis of a statutory inference functions no differently from the other evidence in the prosecution’s case: the stronger the evidence against a defendant, the greater will be the pressure on him to come forward with evidence in his own defense. It is in this loose, practical sense that courts and legislatures occasionally speak of shifting a burden to the defendant in a criminal case. See, e.g., Barnes v. United States, 412 U.S. 837, 845-46, nn. 9, 11, 37 L.Ed.2d 380, 387-88 (1973); Tot v. United States, 319 U.S. 463, 469-70, 87 L.Ed. 1519, 1525 (1943); DeWoody v. Superior Court, 8 Cal. App. 3d 52, 56-7, 87 Cal. Rptr. 210, 212-13 (1970), construing California Vehicle Code §23126. United States v. Gainey, 380 U.S. 63, 13 L.Ed.2d 658 (1965); United States v. Romano, 382 U.S. 136, 15 L.Ed.2d 210 (1965); Leary v. United States, 395 U.S. 6, 23 L.Ed.2d 57 (1969); Turner v. United States, 396 U.S. 398, 24 L.Ed.2d 610 (1970). Read together, these cases indicate that for constitutional purposes, the Court draws no distinction between “inferences” and “presumptions” in the field of criminal legislation. The inferences which were held constitutional in Turner and Barnes were found to satisfy the reasonable doubt standard. In Barnes, the Court addressed the question whether possession of recently stolen goods can constitutionally support the inference, long-recognized under the common law, that the possessor knew the goods were stolen. The opinion of the Court makes it clear that identical due process standards apply, regardless of whether the challenged inference is authorized by statute or based on common law precedents. Id. at 412 U.S. 844-45, 37 L.Ed.2d 387. Dean McCormick’s successors have classified both sorts of inferences under the general heading of “standardized inferences”, in contradistinction to inferences which arise solely from the application of ordinary processes of reasoning to the facts of a particular case. McCormick’s Handbook of the Law of Evidence, §342 (2d ed. E. Cleary 1972). It is in this sense that we use the term “standardized inference” throughout this opinion. Mr. Justice Nix, joined by Mr. Justice Manderino, adopted this view in hi's opinion announcing the judgment of the Court in Commonwealth v. Turner, 456 Pa. 116, 121 n.3, 317 A.2d 298, 300 (1974). Mr. Justice Roberts likewise indicated his acceptance of this view in his concurring opinion in Turner, supra at 124, 317 A.2d at 301. Leary v. United States, supra at 36, 23 L.Ed.2d at 82. In Rose, we held that it was error to instruct the jury that the defendant had the burden of proving by a preponderance of the evidence that he was too intoxicated to form a specific intent to kill. In Demmitt, we held that where there is evidence that the defendant was insane at the time of the crime, the Commonwealth cannot rely on the presumption of sanity to sustain a conviction; there must be sufficient evidence introduced at trial to support a finding of sanity beyond a reasonable doubt See also Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). Accord, Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972); Commonwealth v. Thomas, 429 Pa. 227, 239 A.2d 354 (1968); Commonwealth v. Chester, 410 Pa. 45, 188 A.2d 323 (1963). See also United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972). Bee 1968 Legislative Journal, Volume I, 1608-1609. Bee Committee on Medicolegal Problems, American Medical Association, Alcohol and the Impaired Driver, A Manual on the Medical Aspects of Chemical Tests for Intoxication, chapter V (1972) ; 4 R. N. Gray, Attorney’s Text Book of Medicine ¶133.52 (1974). The statute does not, of course, prevent defendants from calling expert witnesses to rebut the statutory inference. As Mr. Justice Black remarked in Ms dissenting opinion: “It matters not to today’s majority that the evidence that it cites to show the factual basis of the presumptions was never introduced at petitioner’s trial, and that petitioner was never given an opportunity to confront before the jury the many expert witnesses now arrayed against him in the footnotes of the Court’s opinion.” 396 U.S. at 433, 24 L.Ed.2d at 633. Read as a whole, the instructions given in the cases at bar appear to be adequate in this respect.

Opinion by Mr. Justice Roberts, This appeal is by the Life Assurance Company of Pennsylvania, a stock life insurance company organized under the laws of this Commonwealth, from an order of the Court of Common Pleas of Dauphin County, sitting as the Commonwealth Court, sustaining the imposition of a gross premiums tax under the Act of February 21, 1961, P. L. 33, 72 P.S. §§2270.1-2270.10. Appellant attacks the constitutionality of the Act and the interpretation given certain language contained therein by various agencies of the Commonwealth and by the court below. The Act of 1961 imposes upon domestic life insurance companies a tax at the rate of 2% on the premiums received from business done within the Commonwealth. It imposes an identical tax upon all foreign insurance companies without regard to the type of insurance coverage provided. Appellant filed a Gross Premiums Tax Report for the year ending December 31, 1961, but failed to remit the tax due thereunder claiming that the Act of 1961 was invalid. Petitions contesting the imposition of the tax having been denied by the appropriate state departments and boards, appellant perfected an appeal to the court below where the Act and the tax imposed were sustained. In urging reversal of the decision below, appellant bases its numerous objections to the tax sought to be imposed upon both statutory and constitutional grounds. Appellant first argues that the imposition of a gross premiums tax upon domestic life insurance companies results in their being subjected to a Pennsylvania tax burden greater than that imposed upon competing foreign insurance companies. The inequality is said to arise by reason of the fact that both foreign and domestic insurance companies pay the same 2% gross premiums tax under the Act of 1961, while only domestic life insurance companies pay in addition a capital stock and net income tax. Therefore, appellant argues, domestic life insurance companies are placed at a disadvantage to their foreign competitors and denied the equal protection and uniformity of treatment which the federal and state constitutions guarantee. We cannot agree. The Act of 1961 imposes precisely the same tax upon foreign insurance companies as is imposed upon domestic life insurance companies, such as appellant. What appellant seeks is a deter mination that a tax which makes no distinction in its treatment of appellant and its foreign competitors is unconstitutional because of burdens placed upon domestic life insurance companies by other taxing measures. Such an argument is misdirected. The Act of 1961 makes no classification between appellant and its foreign competitors and, therefore, cannot be said to violate either the federal or state constitutions by reasons of classifications made by other legislation. As to appellant and its foreign competitors, the Act of 1961 is both equal and uniform. Appellant next contends that the Act of 1961 is violative of these same constitutional provisions by reason of the fact that domestic life insurance carriers are taxed thereunder whereas domestic nonlife carriers are not similarly burdened. While the Act, for purposes of imposing a gross premiums tax, distinguishes between domestic life and all other domestic insurance carriers, such distinction does not in and of itself rise to a constitutional violation. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S. Ct. 437 (1959); State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 51 S. Ct. 540 (1931); Jones & Laughlin Tax Assessment Case, 405 Pa. 421, 175 A. 2d 856 (1961); Commonwealth v. Girard Life Ins. Co., 305 Pa. 558, 158 Atl. 262 (1932); Heisler v. Thomas Colliery Co., 274 Pa. 448, 118 Atl. 394, aff’d, 260 U.S. 245, 43 S. Ct. 83 (1922); Germania Life Ins. Co. v. Commonwealth, 85 Pa. 513 (1877); Coe v. Duffield, 185 Pa. Superior Ct. 532, 138 A. 2d 303 (1958). By necessity a wide discretion must be conceded to the Legislature in the classification of various businesses or occupations for purposes of taxation. State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S. Ct. 540, 543 (1931); Brown-Forman Co. v. Kentucky, 217 U.S. 563, 30 S. Ct. 578 (1910); see Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S. Ct. 437 (1959); Heisler v. Thomas Colliery Co., 274 Pa. 448, 118 Atl. 394, aff’d, 260 U.S. 245, 43 S. Ct. 83 (1922). The equal protection clause imposes no iron rule of equality prohibiting that degree of flexibility and variety appropriate to reasonable schemes of taxation. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 525, 79 S. Ct. 437, 440 (1959). The only constitutional limitation placed upon the power of the Legislature to distinguish between various entities for purposes of taxation is that their basis for doing so be reasonable. See Allied Stores of Ohio, Inc. v. Bowers, supra, at 527, 79 S. Ct. at 441; State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S. Ct. 540, 543 (1931); Brown-Forman Co. v. Kentucky, 217 U.S. 563, 572, 30 S. Ct. 578, 580 (1910); Jones & Laughlin Tax Assessment Case, 405 Pa. 421, 433-34, 175 A. 2d 856, 862 (1961); Commonwealth v. Lukens, 312 Pa. 220, 223, 167 Atl. 167, 169 (1933). And the burden of showing that the classification em ployed by the Legislature is not reasonable is upon the party attacking the tax. Of. Chartiers Valley Jt. Schools v. Allegheny County Bd. of School Dir's, 418 Pa. 520, 546, 211 A. 2d 487, 501 (1965). “Especially is this so in light of the often reaffirmed rule that . . . ‘ “ [legislation] will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.” ’ ” Ibid. (Citations omitted.) Thus, the burden rests upon appellant to establish that the distinctive treatment accorded by the Act of 1961 to domestic life insurance companies is unreasonable. This the appellant seeks to do by arguing that the classification made by the Act of 1961 between domestic life and nonlife insurance companies bears no reasonable relationship to the purpose of the legislation and is therefore invalid. It concedes that life insurance companies differ from casualty and fire insurance companies and for purposes of ensuring solvency and stability may be accorded different treatment. However, appellant argues that they may not be so classified for tax purposes on the ground that the purpose of raising revenue admits of no constitutionally permissible distinction between them. In effect appellant asserts that the equal protection clause requires that the classification between domestic life and domestic nonlife insurance companies made by the Act of 1961 bear some reasonable relationship to the end sought to be obtained by that Act. While the principle that there must be a reasonable relationship between the classification made by the legislation and its purpose is undoubtedly true in some contexts, it has no application to a measure whose sole purpose is to raise revenue. The application of appellant’s theory would lead not only to the conclusion that the entire insurance industry must be taxed identically or not at all, a conclusion in conflict with our decisions in Commonwealth v. Girard Life Ins. Co., 305 Pa. 558, 158 Atl. 262 (1932) and Germania Life Ins. Co. v. Commonwealth, 85 Pa. 513 (1877), but would also require that all industries with the same general resources be taxed identically without regard to distinctions between them which may prompt a rational legislative determination to tax one and not another. Neither the federal nor state constitution imposes such a straitjacket upon the Legislature. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S. Ct. 437 (1959); State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 51 S. Ct. 540 (1931). So long as the classification imposed is based upon some standard capable of reasonable comprehension, be that standard based upon ability to produce revenue or some other legitimate distinction, equal protection of the law has been afforded. See Allied Stores of Ohio, Inc. v. Bowers, supra at 527, 79 S. Ct. at 441; Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573, 30 S. Ct. 578, 580 (1910). In terms of our previous decisions and the decisions of the Supreme Court of the United States the essential question in testing the validity of such meas ures as the Act of 1961 is whether the distinctive treatment accorded rests upon substantial differences between the subjects so classified. See Allied Stores of Ohio v. Bowers, supra at 527, 79 S. Ct. 441; State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S. Ct. 540, 543 (1931); Ohio Oil Co. v. Conway, 281 U.S. 146, 159, 50 S. Ct. 310, 313 (1930); Bell’s Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237, 10 S. Ct. 533, 535 (1890); Jones & Laughlin Tax Assessment Case, 405 Pa. 421, 434, 175 A. 2d 856, 863 (1961); Turco Paint & Varnish Co. v. Kalodner, 320 Pa. 421, 433, 184 Atl. 37, 43 (1936). And where such distinctions rest upon differences recognized and acted upon by the business world, it is not within the province of the courts to intrude. Jones & Laughlin Tax Assessment Case, 405 Pa. 421, 434, 175 A. 2d 856, 863 (1961). So long as the classification is neither capricious nor arbitrary, there is no denial of the equal protection of the law. Allied Stores of Ohio, Inc. v. Bowers, supra at 527, 79 S. Ct. at 441; State Bd. of Tax Comm’rs of Indiana v. Jackson, supra at 537, 51 S. Ct. at 543; Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573, 30 S. Ct. 578, 580 (1910). In the past this Court has sustained the distinctive tax treatment of various types of insurance companies where the differences found to exist between them precluded the conclusion that one class was being singled out for arbitrary treatment. See Commonwealth v. Penna. Threshermen & Farmers’ Mut. Cas. Ins. Co., 339 Pa. 62, 14 A. 2d 295 (1940); Commonwealth v. Girard Life Ins. Co., 305 Pa. 558, 158 Atl. 262 (1932); Germania Life Ins. Co. v. Commonwealth, 85 Pa. 513 (1877). It therefore follows that for purposes of taxation all insurance companies need not be accorded identical treatment. See ibid. As this Court has pointed out in another context, the Legislature may distinguish for purposes of taxation activities which are sufficiently unique despite the fact that the subjects so taxed are but one segment of a larger class engaged in similar activity. Turco Paint & Varnish Co. v. Kalodner, 320 Pa. 421, 432-33, 184 Atl. 37, 43-44 (1936); see Allied Stores of Ohio, Inc. v. Bowers, supra at 528, 79 S. Ct. at 441; Stebbins v. Riley, 268 U.S. 137, 142, 45 S. Ct. 424 (1925); American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 21 S. Ct. 43 (1900). In the application of these general principles to the instant case, it is significant to note that the Legislature established various classifications of insurance companies for purposes unrelated to the matter of taxation in the Insurance Company Law of 1921, Act of May 17, 1921, P. L. 682, 40 P.S. §§341-991. This Act, which deals with the organization of insurance companies, provides for several distinct classes of carriers including stock life, mutual life, stock fire, stock marine, stock fire and marine, stock casualty, and mutual nonlife companies. Act of May 17, 1921, P. L. 682, §201, 40 P.S. §381. Although the creation of such classes does not of itself necessarily determine the propriety of the classification made in the instant case, as the court below correctly noted, “the very fact of the existence of . . . [such] classifications, even for the limited purpose of that Act, over so long a period of time, recognized and accepted by both the Commonwealth and the industry, . . . tends to establish that [the] classification of insurance companies, including the separate classification of life insurance com pañíes in a taxing statute, is neither specious, arbitrary, nor capricious on the part of the legislature.” Life insurance, by its very nature, is basically different from other types of insurance. Whereas casualty insurance, is pure risk insurance, life insurance, with the exception of term policies, provides for investment as well. See Notes, The Pennsylvania Life Insurance Exemption Statute, 22 U. Pitt. L. Rev. 757, 760 (1961). Moreover, unlike casualty insurance, life insurance is generally testamentary in nature. It is designed in many instances to provide for the creation and disposition of an insurance estate. See Lowndes, The Constitutional Basis for Taxing Life Insurance Under the Federal Estate Tax, 17 U. Pitt. L. Rev. 346, 349 (1956). Aside from whatever significance may be attributed to these and other differences between life and non-life insurance, they are sufficient to justify .and have in the past prompted distinctive legislative treatment for purposes other than taxation. Life insurance companies are.permitted to write health and accident policies, as does in fact appellant, whereas life insurance may be sold only by those companies formed for the express purpose of so doing. Moreover, the Legislature has imposed varying capitalization requirements for life and nonlife insurance companies depending upon the type and combination of coverage provided. See Act of May 17, 1921, P. L. 682, §206, as amended, 40 P.S. §386 (Supp. 1964). The public interest in ensuring stability and fair dealing on the part of insurance companies has prompted a high degree of governmental intervention in the insurance industry. See Kimball & Hanson, The Regulation of Specialty Poli cies in Life Insurance, 62 Mich. L. Rev. 167, 180-81 (1968). In the process of regulation, life insurance companies have traditionally been singled out for specialized treatment. See, e.g., Act of May 17, 1921, P. L. 789, §301, as amended, 40 P.S. §71; Act of May 17, 1921, P. L. 682, §§410-410A, as amended, 40 P.S. §§510-510.1; Act of May 17, 1921, P. L. 682, §§404-406.2, as amended, 40 P.S. §§504-506.2. In light of these distinctions, legitimately and historically drawn, we are unable to conclude that the classification objected to is arbitrary, capricious or discriminatory. It therefore follows that the distinctive treatment accorded domestic life and nonlife insurance companies by the Act of 1961 is not violative of the equal protection and uniformity clauses of the federal or state constitutions. Appellant, however, urges that even if the overall classification is constitutionally permissible, the imposition of a tax upon the gross premiums received by domestic life insurance carriers from the sale of accident and health contracts, while premiums received by domestic nonlife carriers from the sale of identical contracts remain untaxed, results in an un constitutional discrimination and invalidates the entire tax. In the conduct of its business, appellant sells both life insurance and health and accident insurance. In 1961, it received a total of $2,261,418 in premiums, 28% of which was derived from its accident and health policies. Therefore, appellant contends, the imposition of a gross premiums tax on the proceeds derived from the sale of accident and health policies results in an unconstitutional economic discrimination invalidating the tax with respect to all of its premium income. Assuming that appellant is placed at some disadvantage to nonlife insurance companies by reason of the taxation of its accident and health premiums, the crucial question remains whether such disadvantage is prohibited by the equal protection and uniformity clauses. For the purposes of taxation, the Act of 1961 creates a separate classification of life insurance companies which, as we have previously stated, is not proscribed by either the federal or state constitution. Under the Act, a tax is imposed upon all the premiums received by insurance companies so classified. The fact that the tax also reaches to premiums derived from accident and health insurance policies is but an incidental effect of the overall classification. As this Court has previously held, “the power to classify ... is not limited to cases where the commodities [classified] are unlike or . . . not competitive, but, on the contrary, may be based on other grounds and the courts cannot . . . interfere . . . where . . . ‘the classification is not an arbitrary one, but one which actually exists in the business world.’ ” Heisler v. Thomas Colliery Co., 274 Pa. 448, 463, 118 Atl. 394, 399, aff’d, 260 U.S. 245, 43 S. Ct. 83 (1922). (Citations omitted.) The Supreme Court of the United States has on numerous occasions refused to invalidate a tax solely on the basis of economic disadvantage where the classification was not otherwise arbitrary. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S. Ct. 437 (1959); Union Bank & Trust Co. v. Phelps, 288 U.S. 181, 53 S. Ct. 321 (1933); State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 51 S. Ct. 540 (1931); Stebbins v. Riley, 268 U.S. 137, 45 S. Ct. 424 (1925); Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S. Ct. 370 (1916); American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 21 S. Ct. 43 (1900). In Allied Stores of Ohio, Inc. v. Bowers, supra, the Supreme Court of the United States sustained a tax imposed upon merchandise held in storage which exempted such merchandise if held by nonresidents. Despite the fact that this classification resulted in a tax advantage in favor of nonresidents, the Court sustained it on the theory that the state may have had other reasonable grounds for according residents and nonresidents distinctive treatment. Once having determined that a classification between residents and nonresidents could not be deemed arbitrary and unreasonable, the resulting economic disadvantage was not found to be violative of the equal protection clause. See also Central Railroad Co. v. Pennsylvania, 370 U.S. 607, 616, 82 S. Ct. 1297, 1304 (1962). The conclusion that economic discrimination is not necessarily the determinative factor in testing the validity of a classification was reached by this Court in its decision in Commonwealth v. Girard Life Ins. Co., 305 Pa. 558, 158 Atl. 262 (1932). In that case we sustained a classification of insurance companies for purposes of taxation based upon their corporate structure. The tax was imposed upon stock life insurance companies while mutual life insurance companies were exempted, even though both classes competed for the same business. In sustaining the tax, this Court pointed out that the test to be applied was whether there was a reasonable distinction and difference between the classes of taxpayers sufficient to justify different tax treatment under the Act. Commonwealth v. Girard Life Ins. Co., supra, at 564, 158 Atl. at 263. The fact that mutual and stock companies were in competition did not affect the result once it had been concluded that their attributes were sufficiently different to permit the Legislature to take such differences into account in fixing its tax policy. See Commonwealth v. Girard Life Ins. Co., supra, at 564-65, 158 Atl. at 263-64. As the Court stated, “[Competition between the two classes of insurance companies, the taxed and nontaxed], may be admitted and not affect the validity of the tax, provided there is a substantial difference between . . . the two types of companies.” Commonwealth v. Girard Life Ins. Co., supra, at 565, 158 Atl. at 264. See State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 51 S. Ct. 540 (1931); Dufour v. Maize, 358 Pa. 309, 56 A. 2d 675 (1948); Philadelphia v. Samuels, 338 Pa. 321, 12 A. 2d 79 (1940); Heisler v. Thomas Colliery Co., 274 Pa. 448, 118 Atl. 394, aff’d, 260 U.S. 245, 43 S. Ct. 83 (1922); Germania Life Ins. Co. v. Commonwealth, 85 Pa. 513 (1877). In the instant case, unlike Girard, supra, the competition between the taxed and nontaxed classes does not affect the entirety of their business but merely one segment. Having concluded that life insurance companies have attributes sufficiently different from non-life companies to justify distinctive tax treatment, and, having also concluded that a competitive disadvantage resulting from such treatment does not in and of itself violate the equal protection and uniformity clauses, we cannot conclude that any such disadvantage which may arise by reason of the Act of 1961 amounts to a constitutional violation. Appellant relies upon Concordia Fire Ins. Co. v. Illinois, 292 U.S. 535, 54 S. Ct. 830 (1934), in support of its contention that the fact of competition between the taxed and nontaxed subjects invalidates the Act of 1961. In Concordia, supra, a tax imposed upon foreign companies which conducted both fire and casualty insurance businesses, but not upon foreign casualty companies was held invalid as applied to the proceeds from the casualty business of those companies which sold both types of insurance coverage. After careful consideration of the majority opinion in Concordia, we cannot conclude that the Supreme Court of the United States intended therein to overrule by implication many previous decisions and to establish a rule that any tax imposed upon one class but not upon another which may partially compete with it is arbitrary per se. Our conclusion is reinforced by the subsequent decision in Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S. Ct. 437 (1959). In Allied Stores, the tax was sustained although the classification made therein had just such competitive implications as is presently complained of with respect to the Act of 1961. Most significantly, in sustaining the tax, the Supreme Court relied upon numerous pre-Concordia decisions in which the classifications made resulted in competitive disadvantages. Among the authorities so relied upon were: State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 51 S. Ct. 540 (1931); Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S. Ct. 83 (1922); Rast v. Van Deman & Lewis Co., 240 U.S. 342, 36 S. Ct. 370 (1916); Quong Wing v. Kirkendall, 223 U.S. 59, 32 S. Ct. 192 (1912); American Sugar Refining Co. v. Louisiana, 179 U.S. 89, 21 S. Ct. 43 (1900). In Union Bank & Trust Co. v. Phelps, 288 U.S. 181, 53 S. Ct. 321 (1933), decided one year prior to Concordia, the Supreme Court of the United States directed itself squarely to the issue of whether companies which compete must be taxed alike. In sustaining a classification for purposes of taxation between building and loan associations and commercial banks, the Court stated: “Mere competition between them is not enough to show [that] two concerns must be burdened alike. The . . . Legislature reasonably might have determined that there was fair gronnd for distinction [between them] . . . .” Union Bank & Trust Co. v. Phelps, supra, at 186, 53 S. Ct. at 322. Concluding that it was unable to deem such distinction arbitrary, capricious, or wholly unreasonable, it sustained the tax. This decision has never been overruled and has been cited subsequent to the decision in Concordia for the proposition that mere competition does not invalidate an otherwise proper classification. In light of these considerations, we are unable to conclude that Concordia forecloses the classification made by the Act of 1961. Moreover, Mr. Justice Cardozo, joined by Justices Brandeis and Stone, in dissenting in part in Coneor dia, succinctly demonstrated the weakness of the position advanced by appellant: “A tax upon the receipts of a business is not invalid as of course because some forms of business are hit and others are exempt. To bring about that result the assailant of the tax must be able to satisfy the court that the classification had its origin in nothing better than whim and fantasy, a tyrannical exercise of arbitrary power. This is the heavy burden that the appellant must sustain. Is it a whimsical and fantastic act to tax foreign fire insurance companies upon all their net receipts, including those derived from casualty premiums, when no such tax is imposed upon the receipts of insurance companies that do a casualty business only? If so, the arbitrary quality of the division must have its origin in the fact that the activities of the one class overlap to some extent the activities of the other. But plainly there is no rule that overlapping classes can never be established in the realm of taxation .... The recognition of such a rule means that a department store may not be taxed on the net receipts of its business unless all the many activities thus brought under a single roof are taxed in the same way when separately conducted. There must be a tax on the business of the draper, the jeweler, the shoemaker, the hatter, the carpet dealer, and what not. For the same- reason, the proprietor of a retail market dealing in meats and groceries and vegetables and fruits will then escape, at least proportionately, a tax upon receipts if the statute does not cover the business of the shopkeeper who derives a modest income from the sale of peanuts and bananas. There are few taxes upon earnings that would pass so fine a sieve.” Concordia Fire Ins. Co. v. Illinois, 292 U.S. 535, 550, 554, 54 S. Ct. 830, 836, 837-38 (1934). (Citations omitted.) We are unable to find such whim or capricious action on the part of the Legislature in the present classi £3cation to justify the conclusion that appellant’s constitutional rights have been violated. The classification in the Act of 1961 may not be deemed arbitrary or capricious if any state of facts reasonably can be conceived that would sustain it. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528, 79 S. Ct. 437, 441 (1959); State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S. Ct. 540, 543 (1931); Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S. Ct. 370, 374 (1916); Quong Wing v. Kirkendall, 223 U.S. 59, 32 S. Ct. 192 (1912); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340 (1911). “The state is not called upon to explain the reasons for taxing the members of one class more heavily than it does the members of . . . [another]. The burden is on the appellant who would strike the statute down, and not on the state which invokes the presumption of validity. . . .” Concordia Fire Ins. Co. v. Illinois, 292 U.S. 535, 550, 558, 54 S. Ct. 830, 836, 839 (1934) (Cardozo, J., dissenting in part). (Citations omitted.) In our view, appellant has not met its burden of establishing that the classification made by the Act of 1961 clearly, palpably and plainly violates the state and federal constitutions. Cf. Chartiers Valley Jt. Schools v. Allegheny County Bd. of School Dir’s, 418 Pa. 520, 546, 211 A. 2d 487, 501 (1965). Appellant’s final contention is that the taxing departments and the court below erred in requiring the inclusion in its taxable income of premiums received on policies sold prior to 1961. It urges that the Act of 1961 imposes a tax only upon premiums derived from insurance contracts entered into during the taxable year and not, as the Commonwealth contends, upon all premiums received during that period. The Act imposes a tax at the rate of 2% upon “the gross premiums received from business done within . . . [the] Commonwealth during each calendar year.” Act of February 21, 1961, P. L. 33, §2, 72 P.S. §2270.2. Appellant seeks a construction which would limit the meaning of the term “business done . . . during each calendar year” to include only premiums received from sales made within that period. We conclude, as did the court below, that the language may not be given so restrictive a meaning. The construction urged by appellant would limit the taxation to premiums received from policies initially issued during the taxable year and exclude all premiums subsequently received. We cannot read the explicit language of the Act to so insulate from taxation those remaining aspects of the overall insurance transaction. Moreover, the receipt of rénewal premiums in practical effect amounts to no more than the resale of insurance coverage for an additional period of time. As the court below noted, “appellant’s business is broader than just selling policies; it also extends to the collection of premiums whether in the year in which the policy is sold initially or in subsequent years on the renewal of the policy.” We agree and conclude therefore, that the court below correctly interpreted the language of the statute. Judgment affirmed. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the consideration or decision of this case. Hereinafter referred to as the Act of 1961. Act of February 21, 1961, P. L. 33, §§1, 2, 72 P.S. §§2270.1, 2270.2. Section 2 of the Act provides for the imposition of the tax upon “every insurance company” as defined by the Act. Act of February 21, 1961, P. L. 33, §2, 72 P.S. §2270.2. Section 1 defines the term “insurance company” to include “every insurance company . . . incorporated . . . under the laws of other states . . . engaged in transacting insurance business of any kind or classification within this Commonwealth; and every life insurance company . . . organized . . . under any law of this Commonwealth ....” Act of February 21, 1961, P. L. 33, §1, 72 P.S. §2270.1.. Act of February 21, 1961, P. L. 33, §§1, 2, 72 P.S. §§2270.1, 2270.2. See Act of February 21, 1981, P. L. 33, §5, 72 P.S. §2270.5. Act of June 1, 1889, P. L. 420, as amended, 72 P.S. §§1871-1903. Act of May 16, 1935, P. L. 208, as amended, 72 P.S. §§3420a-3420n. U. S. Const. amend. XIV, §1. Pa. Const. art. 9, §1. So far as the reasonableness of classifications made for the purposes of taxation is concerned, the uniformity clause of the Constitution of Pennsylvania and the equal protection clause of the Constitution of the United States stand in pari materia. Commonwealth v. Budd Co., 379 Pa. 159, 167, 108 A. 2d 563, 566 (1954); Commonwealth v. Fireman’s Fund Ins. Co., 369 Pa. 560, 565, 87 A. 2d 255, 258 (1952); Commonwealth v. Girard Life Ins. Co., 305 Pa. 558, 562, 158 Atl. 262, 263 (1932). Appellant also urges that the Act of 1961 is violative of the due process clause of the federal constitution, U. S. Const. amend. XIV, §1. We find no merit in this contention. Nothing in the record suggests that the burdens imposed upon appellant by the Gross Premiums Tax Act bear no reasonable relationship to the benefits accorded it by the Commonwealth. Absent such a showing, we may not invalidate the tax on due process grounds. See Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S. Ct. 432 (1949); Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S. Ct. 246 (1940). We are unable to say that “the state has [not] given anything for which it can ask return.” Wisconsin v. J. C. Penney Co., supra at 444, 61 S. Ct. at 250. In support of its novel assertion that the Act of 1961, although uniform and equal in its treatment of appellant and its foreign competitors, results in arbitrary and unreasonable discrimination in violation of the equal protection clause of the federal constitution, appellant relies upon the recent case of Reserve Life Ins. Co. v. Bowers, 380 U.S. 258, 85 S. Ct. 951 (1965) (per curiam). Reserve Life Ins. Co. v. Bowers will not support such a contention. In that case, as well as in every other ease cited by appellant in support of its position, see Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S. Ct. 1291 (1949); Power Mfg. Co. v. Saunders, 274 U.S. 490, 47 S. Ct. 678 (1927); Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 47 S. Ct. 179 (1926); Southern Ry. Co. v. Greene, 216 U.S. 400, 30 S. Ct. 287 (1910), the classification arose out of the contested legislation and not as the result of the cumulative effect of other, unrelated measures. We are unable to find any authority for the proposition that a concededly nondiseriminatory tax becomes constitutionally tainted merely because other taxes to which the appellant is subject accord distinctive treatment to various classes of taxpayers. The state may not classify for purposes of regulation unless such classification hears a reasonable relationship to the purpose of the regulation. However, where the state seeks to raise revenue, it need not justify any distinction drawn between the taxed and nontaxed with respect to the raising- of revenue so long as some other reasonable basis for treating the various classes differently exists. Where such distinction exists, the wisdom of the legislative policy of taxing one class and not another is not a matter for the courts. “Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the legislature, and an earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.” Chicago, Burlington & Quincy R. Co. v. McGuire, 219 U.S. 549, 569, 31 S. Ct. 259, 263 (1911). Cf. Philadelphia v. Samuels, 338 Pa. 321, 12 A. 2d 79 (1940); Heisler v. Thomas Colliery Co., 274 Pa. 448, 118 Atl. 394, aff’d, 260 U.S. 245, 43 S. Ct. 83 (1922); Knisely v. Cotterel, 196 Pa. 614, 46 Atl. 861 (1900). Commonwealth v. Life Assurance Co., 83 Dauph. 93, 96 (1964). See Act of May 17, 1921, P. L. 682, §202, as amended, 40 P.S. §382. Appellant seeks support for its position in the decision of Quaker City Cab Co. v. Commonwealth, 277 U.S. 389, 48 S. Ct. 553 (1928). However, in our view, the current position of the Supreme Court of the United States is more correctly represented by the dissenting opinions of Justices Brandies, Holmes, and Stone. Id. at 555-58. Appellant also relies upon Reserve Life Ins. Co. v. Bowers, 380 U.S. 258, 85 S. Ct. 951 (1965); Wheeling Steel Corp. v. Glander, 337 U.S. 562, 69 S. Ct. 1291 (1949); and Hartford Steam Boiler Inspection & Ins. Co. v. Harrison, 301 U.S. 459, 57 S. Ct. 838 (1937). In each of these decisions, the classification objected to disadvantaged foreign competitors. We do not view the considerations therein involved appropriate to the instant case. See Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 530-33, 79 S. Ct. 437, 443-44 (1959) (Brennan, J., concurring). In Heisler v. Thomas Colliery Co., the classification sustained permitted distinctive tax treatment of anthracite and bituminous coal. Cf. Commonwealth v. Penna. Threshermen & Farm ers’ Mut. Cas. Ins. Co., 339 Pa. 62, 14 A. 2d 295 (1940) (sustaining separate classification for purposes of taxation of mutual life or fire insurance companies and mutual casualty insurance companies); Philadelphia v. Samuels, 338 Pa. 321, 12 A. 2d 79 (1940) (sustaining separate classification for purposes of taxation of open and closed parking businesses) ; Commonwealth v. Girard Life Ins. Co., 305 Pa. 558, 158 Atl. 262 (1932) (sustaining separate classification for purposes of taxation of mutual and stock life insurance companies); Knisely v. Cotterel, 196 Pa. 614, 46 Atl. 861 (1900) (sustaining separate classification for purposes of taxation of retailers and wholesalers); Germania Life Ins. Co. v. Commonwealth, 85 Pa. 513 (1877) (sustaining separate classification for purposes of taxation of foreign and domestic insurance companies). See also State Bd. of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 51 S. Ct. 540 (1931) and cases cited therein. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 472, 65 S. Ct. 1384, 1395 (1945). Commonwealth v. Life Assurance Co., 83 Dauph. 93, 99 (1964), It is significant to note that the disputed language has more traditionally been deemed relevant to the issue of the territorial scope of taxation for purposes of the commerce clause, U. S. Const. art. 1, §8, cl. 3, and the due process clause, U, S. Const. amend, XIV, §1, of the federal constitution,

Opinion by Judge Kramer, This is an appeal by the Bortz Coal Company, appellant, (Bortz) from an adjudication (Abatement Order) of the Air Pollution Commission, appellee, (Commission) dated December 1, 1970, in which the Commission affirmed an air pollution abatement order (dated August 22, 1969) of the Department of Health under the Air Pollution Control Act, Act of January 8, 1960, P. L. 2119, 35 P.S. 4001, et seq. The abatement order, in pertinent part, provides: “(1) that the Bortz Coal Company shall on and after January 1, 1970, operate the beehive coke ovens at its Smithfield coke plant located in George’s Township, Fayette County, in such a manner that the emissions from these operations do not exceed the limits set forth in Section 1.3 of Air Pollution Commission Regulation IV. “(2) that the Bortz Coal Company shall on and after January 1, 1970, operate the coke pressure, conveyor belts, screens, truck hauling and dumping and open storage piles at its Smithfield coke plant located in George’s Township, Fayette County, in such a manner that the air contaminants from these operations are not detectable beyond the plant’s property line. “(3) that the Bortz Coal Company shall on or before November 1, 1969, submit to the Department of Health a plan setting forth the procedures to be used to comply with paragraphs (1) and (2) of this Order. The plan is to contain a detailed description of the methods or devices to be used to control the air pollution.” The Commission in its adjudication of December 1, 1970, affirmed the abatement order of the Department quoted above in all particulars but extended the dates in paragraph (1) to January 1, 1971, and in paragraph (2) to June 1, 1971, and in paragraph (3) to February 1, 1971. It is this latter adjudication from which Bortz appeals to this Court. The record, including the transcript of the hearing before the Commission, reveals that Bortz has owned and operated 70 beehive coke ovens at its Smithfield coke plant for about 50 years. The ovens were built in 1898. Apparently the first discussions between the State air pollution authorities and Bortz concerning alleged air pollution violations by Bortz occurred in 1963. In 1965, Bortz was ordered to file a plan for the control of particulate matter emissions from its ovens. Bortz complied and filed such a plan. In 1969, the problem was again discussed with Bortz by the Region Y Air Pollution Control Association. Subsequent to the discussion with the Association, the Health Department issued the abatement order. Bortz raises five issues which will be discussed and ruled upon in the enumerated paragraphs of this opinion. Because of the fact that for all practical purposes this case represents the first venture of an appellate court of this Commonwealth into what in all probability will become a major development in the law, known generally as environmental law, we believe it would be beneficial to the bar and to the public, to the regulatory agencies, and to the courts, to make several preparatory comments. Although one would be led to believe from the avalanche of recent publications on the subject of air pollution that it is something new, created by scientists and crusaded by modern youth, it should be pointed out that the law has been concerned with air pollution for centuries. As early as 1306, A.D., the use of “sea- coal” (as distinguished from charcoal) as fuel was forbidden on penalty of death. City of Portland v. Lloyd A. Fry Roofing Company, 472 P. 2d 826 (1970) and Air Pollution: Its Control and Abatement, Kennedy and Porter; 8 Vand. L. Rev. 854 (1954-55). During her reign, Queen Elizabeth of England forbade the burning of coal in London during sessions of Parliament, and in 1661 A.D., there was a plan to remove all industries in the city of London to its leeward side and to plant sweet-smelling flowers and trees on the windward side. See Fumifugium, National Smoke Abatement Society, Manchester, England (1953). Blackstone (Book III, Chapter 13, pages 167 and 217) describes the legal problems of a lead smelter, the fumes from whose plant were a nuisance, killing the neighboring farmer’s corn. See 77 Eng. Rep. 816 and Appeal of Pennsylvania Lead Company, 96 Pa. 116 (1880). The point in citing these proofs of prior concern is merely to remind the reader that the law always provided for the protection against private nuisances. There is no doubt that because of the recent notoriety of the condition of the environment that there has been formed a new public policy in this State, as well as in ether states of this Nation, that there is need for protection of the public against public nuisances. That new policy is found in Section 2 of the Air Pollution Control Act, January 8, 1960, P. L. 2119, as amended, by the Act of June 12, 1968, P. L. , No. 92, 35 P.S. 4002, which reads as follows: “It is hereby declared to be the policy of the Commonwealth of Pennsylvania to protect the air resources of the Commonwealth to the degree necessary for the (i) protee tion of public health, safety and well-being of its citizens; (ii) prevention of injury to plant and animal life and to property; (iii) protection of the comfort and convenience of the public and the protection of the recreational resources of the Commonwealth; and (iv) development, attraction and expansion of industry, commerce, and agriculture.” In carrying out this public policy, the Legislature created the Air Pollution Commission (35 P.S. 4005), under the Department of Health. The Commission was directed by the Legislature to establish rules, regulations and standards for the enforcement of the Act. There can be no doubt from a reading of the Act that the legislative intent is to clean the air insofar as is reasonably possible under the police powers granted to the Commonwealth in both the State and Federal Constitutions. It is well recognized as a principle of American jurisprudence that the Legislature may utilize the establishment of administrative agencies as a part of the legislative process in our tripartite system of government to regulate and control that segment of our society which the Legislature in its wisdom deems necessary of control. See Metropolitan Edison Co. v. P.S.C., 127 Pa. Super. 11, 191 A. 678 (1937). The Legislature may not delegate its legislative function but it may authorize an agency to carry out the legislative intent described in general terms through rules, regulations and standards established by the agency. See Belovsky v. Philadelphia, 357 Pa. 329, 54 A. 2d 277 (1947). There are certain constitutional tests to determine whether or not the Legislature has gone too far in its delegation. For example, see Cott Beverage Corp. v. Horst, 380 Pa. 113, 110 A. 2d 405 (1955), Commonwealth v. Zasloff, 338 Pa. 457,13 A. 2d 67 (1940), and Harris v. State Board of Optometrical Examiners, 287 Pa. 531, 135 A. 237 (1926). The rules, regulations and standards of the regulatory agency must be reasonable, understandable, available, and must not violate the constitutional rights of any citizen. Because of the well recognized problems involved in combining in administrative agencies all three functions of a tripartite form of government, viz., legislative, executive and judicial, the agencies and the courts must take care in carrying out their primary function of protecting the public, that they be vigilant to make certain that the individual citizen’s rights in property and due process are not violated. Because it is common for the employees of the adjudicating regulatory agency to assume the role of prosecutor, witness and judge of the quasi-judicial functions of the agency, the courts must scrutinize the proceedings, the attitude and approach of the regulatory agency to assure that four centuries of well developed standards of fairness, procedure and substantive law are not washed away with the intense shower of exuberance and well meaning desires. Some environmental lawyers believe that the right to a decent environment may be within the penumbra of the unenumerated natural rights guaranteed by the Ninth Amendment of the United States Constitution. See Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). Some lawyers believe that the protection of the environment comes within the public trust doctrine. See 68 Michigan L. Rev. 471 (1970). Only time will tell how far environmental control of the air will be developed, but no matter how it is developed, it must be done within the framework of the law. We turn now to the five issues raised in this case. 1. The Air Pollution Control Act, supra, does not constitute an unlawful delegation of legislative au thority to the Air Pollution Commission and the Department of Health. 'The Pennsylvania Supreme Court has set down many times the guidelines for reviewing courts of this State to follow in cases where parties attempt to have a statute declared unconstitutional. In Loomis v. Philadelphia School District Board of Education, 376 Pa. 428, 431, 103 A. 2d 769, 770 (1954) the Court said: “Nothing but a clear violation of the Constitution will justify the judiciary in nullifying a legislative enactment. Every presumption must be indulged in its favor, and one who claims an Act is unconstitutional has a very heavy burden of proof. . . .” In the case of City of Philadelphia v. Depuy, 431 Pa. 276, 279, 244 A. 2d 741, 743 (1968) the Court said: “We start with the well established proposition that one seeking to show a statute unconstitutional must carry a very heavy burden. This doctrine was most recently reiterated in Commonwealth v. Life Assurance Company of Pennsylvania, 419 Pa. 370, 214 A. 2d 209 (1965). . . . Moreover, the taxpayer’s burden will be deemed met only if the challenged statute ‘clearly, palpably, and plainly violates the Constitution.’ Daly v. Hemphill, 411 Pa. 263, 271, 191 A. 2d 835, 840 (1963).” The appellant in this case has not met this heavy-burden on any of the constitutional questions involved in this case. With regard to the specific issue of an unlawful delegation of legislative power, we are referred to the case of Dauphin Deposit Trust Company v. Myers, 388 Pa. 444, 449, 130 A. 2d 686, 688 (1957) where the court said: “Where the standard fixed by the Legislature is not arbitrary or unlimited, but is definite and reasonable, the delegation of power or discretion will be sustained as constitutional. In considering the standard, regard must be had to the purpose and scope of the act, the subject matters covered therein, the duties pre scribed, and the broad or narrow powers granted, because those factors will often determine whether or not a sufficiently clear, definite and reasonable standard has been established.” In the Dauphin Deposit Trust Company case, the Court held that the agency had exceeded the powers granted and reversed the action of the agency. We hold that a careful reading of the Air Pollution Control Act, supra, indicates a sufficiently clear, definite and reasonable delegation of the powers to the Commission. The statute, as amended, at 35 P.S. 4003 (5) defines air pollution as: “(5) ‘air pollution’. The presence in the outdoor atmosphere of any form of contaminant including but not limited to the discharging from stacks, chimneys, openings, buildings, structures, open fires, vehicles, processes, or any other source of any smoke, soot, fly ash, dust, cinders, dirt, noxious or obnoxious acids, fumes, oxides, gases, vapors, odors, toxic or radioactive substances, waste, or any other matter in such place, manner, or concentration inimical or which may be inimical to the public health, safety, or welfare or which is, or may be injurious to human, plant or animal life, or to property, or which unreasonably interferes with the comfortable enjoyment of life or property.” After setting forth what it was that the Legislature desired to be controlled by the above-quoted definition, the Legislature thereafter in Sections 4 and 5 of the Act (35 P.S. 4004 and 4005) set forth the powers and procedures under which the Department of Health and the Air Pollution Commission would carry out the legislative intent, including the establishment of rules and regulations as set forth in 35 P.S. 4005(d) (2) and (7). This approach to governmental regulation is indeed the accepted and proper method for delegating authority to an administrative agency. One of the discretionary determinations to be made by the Commis sion is the scientific or technical rules and regulations which determine that amount of air pollution which should he prohibited in carrying out the legislative intent. If the regulatory agency sets forth unreasonable standards or fails to establish any standards of air pollution, the citizens are protected through the appeal provisions of the Act. Certainly the possibility of such an unreasonable determination should not be the basis for a holding that there has been an unlawful delegation of power. As stated before, we hold that there is not an unlawful delegation of powers in the Air Pollution Control Act. 2. The enforcement of the rules and regulations of the Air Pollution Commission does not constitute a confiscation of property without due process of law in violation of the Constitution of Pennsylvania (Article I, Section 10), or the Constitution of the United States (Fourteenth Amendment). There is no doubt in this writer’s mind after a review of the record in this case that operation of beehive coke ovens cannot practically or feasibly meet the minimum air pollution standards set in the rules and regulations of the Commission insofar as air pollution is concerned. Unless some unforeseen method for controlling the emission of particulate matter from these coke ovens is invented or developed, the beehive coke oven industry in this State will be forced out of business. In spite of the fact that this writer may believe that the disappearance of a large recognized industry in this State will be a socio-economic tragedy for thousands of citizens of this Commonwealth, this Court cannot pass upon the advisability of such an economic occurrence. That determination has been made by the Legislature, and this Court can do nothing but follow the mandates of that body. Strangely enough, one of the eases cited by the appellant sets the stage for a discussion of this prob lem. In White’s Appeal, 287 Pa. 259, 265, 134 A. 409, 411 (1926), Mr. Justice Kephart says: “The power of judicial investigation does not concern itself with the wisdom of the policy emanating from the legislative branch, or whether the best of all possible means of achieving the desired result has been selected. It is concerned only with the questions of whether the statute has a recognized police purpose, and whether it has a reasonable relation to the object to be attained. Generally, the right concerns, as here, property and rights issuing out of it. No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals of the people. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power: C. B. and Q. Ey. Company v. Drainage Commissioners, 200 U.S. 561; Salem v. Maynese, 123 Mass. 372; In re Cherry, 201 App. Div. N.Y. 856, 193 N.Y.S. 57, affirmed 234 N.Y. 607, 138 N.E. 465. Property is held under the implied obligation that the owner shall use it in such way as not to be injurious to the community: Windsor v. Whitney, 95 Conn. 357, 111 A. 354.” Justice Kephart, in this well reasoned opinion, goes on to state how firm the property rights of individuals are under our form of government, but throughout this opinion, he consistently states that one may use his property in any way he sees fit so long as that use harms no one. The basic premise, then, is that coke oven operators in this State may use their property so long as they do no injury to other citizens of the Commonwealth in violation of the law. It matters not under the law that these coke ovens in question have been in continuous use since 1898. There is no prescriptive right to cause injury to another, and this basic premise has existed every day of the operation of these coke ovens. They were always subject to that prohibition. In the Air Pollution Control Act, supra, the Legislature has established that certain air pollution is injurious to the public health, welfare and safety, and, now, it need only be determined whether or not those technical standards which were set by the Commission are reasonable, so as not to violate Bortz’s constitutional rights. Bortz nowhere in this case challenges the technical level of air pollution as established by the Commission as being violative of Bortz’s rights. It has offered no testimony, evidence or argument that the standards set by the Commission were unreasonable except that those standards could not be met by Bortz in the operation of its coke ovens. Standards set by the Commission are applicable not only to Bortz, but to all citizens in the Commonwealth; and they are equally applicable to every coke oven operator in this State. 3. Exclusion of governmental bodies from the penalties section of the Air Pollution Control Act, supra, does not constitute an unlatoful discrimination and violation of the Pennsylvania Constitution (Article III, Section 32) or of the United States Constitution (Fourteenth Amendment). As we have already pointed out, Bortz carries a heavy burden of proof to establish the unconstitutionality of this statute. Bortz argues that it is discriminated against because of the elimination of governmental bodies from the penalty section of the Act (35 P.S. 4009). This argument has no merit, because the Legislature certainly had the power to determine that it would make no sense to penalize the government itself. This does not mean that a governmental body could not be ordered by a court to cease and desist emitting air pollution as determined by the Commis sion. Clearly, governmental bodies conld be so restricted by a court; but to even attempt to hold some governmental body of this Commonwealth to a fine or imprisonment makes no sense. Contempt proceedings for the failure of a governmental body to abide by an order of court is adequate enforcement. Exclusions of Section 9 (35 P.S. 4009) are proper, and do not constitute an unlawful discrimination. See Air Pollution Commission v. Coated Materials Company, 92 Dauphin 274 (1970). 4. The evidence presented by the Commission was not sufficient to establish a violation of the Air Pollution Control Act, supra, or the rules and regulations of the Commission. Tinder Section 5 (35 P.S. 4005) the Commission is given the power and duty to hold hearings as follows: “Hear and determine all appeals from orders issued by the department in accordance with the provisions of this act. Any and all action by the Commission taken with reference to any such appeal shall be in the form of an adjudication, and all such action shall be subject to the provisions of the Administrative Agency Law, the act of June 4, 1945, (P. L. 1388), as amended, insofar as the rights of any person aggrieved are concerned. Any party aggrieved as defined in the act of June 4, 1945 (P. L. 1388), as amended, known as the ‘Administrative Agency Law’, by any adjudication of the Commission shall have the right to appeal such adjudication in the manner provided by and subject to the ‘Administrative Agency Law’.” The Administrative Agency Law (71 P.S. 1.710.1 et seq.) provides the procedural due process guarantees under which the rights of citizens are protected. In view of the fact that the Department of Health is the moving party seeking to abate the emission of particulate matter by Bortz, the Commonwealth had the burden of proving that acts of Bortz were in viola tion of the Air Pollution Control Act. In order to meet that burden, the Commission had to prove that under the statute and its rules, regulations and standards, Bortz had violated the law necessitating the abatement order. We have already pointed out that the delegation of power to the Commission to establish rules and regulations in keeping with the legislative intent was proper. We now must determine whether or not the rules and regulations which establish the standards are enforceable. The abatement order refers to violations of Section 1.3 of the Air Pollution Commission Regulation IY, which reads as follows: “Section 1.3 Limits for Particulate Matter Emissions “In the absence of a determination by the Commission imposing more stringent or less stringent limits, as provided for in Section 1.4 of this regulation, a local air pollution problem shall be deemed to exist: “(1) If any person causes, suffers, allows or permits smoke from any combustion unit, the shade or appearance of which is darker than No. 2 of the Ringelmann Smoke Chart, to be emitted into the outdoor atmosphere. “Exception: Smoke emitted during the cleaning of a firebox or the building of a new fire may be darker than No. 2 of the Ringelmann Smoke Chart for a period or periods aggregating not more than 6 minutes in any 60 consecutive minutes. “(2) If any person causes, suffers, allows or permits particulate matter (including smoke) to be emitted into the outdoor atmosphere from any air contamination source such that the actual or calculated emission rate of particulate matter from such source (as determined in accordance with Section 1.5) may be expected to cause a ground level concentration ait any point outside the person’s property in excess of either 150 micrograms of suspended particulate matter per cubic meter of air or 0.6 milligrams of particle fall per square centimeter per month at any time. “Whenever particulate matter from one air contamination source is discharged through two or more flues, the quantity that may be discharged from all of the Hues shall not exceed the emission that would be permitted by assuming that all of the particulate matter is being emitted from a single flue having an effective height calculated in the following manner: “Multiply the effective height of each flue by the percentage of the total air contaminant emission rate emitted through the flue, add the products and divide the sum by 100. “Whenever particulate matter from more than one air contamination source is discharged through less flues than the number of air contamination sources, the quantity that may be discharged from each flue shall not exceed the emission permitted by this Section 1.3(2) for each flue except under unusual conditions (see Section 1.4). “(3) If any person causes, suffers, allows or permits fugitive dust to be emitted into the outdoor atmosphere from any air contamination source or sources in such a manner that the ground level concentration of fugitive dust (as determined in accordance with Section 1.5) from the air contamination source or sources at any point outside the person’s property exceeds a concentration of 2.6 milligrams per cubic meter of air above background concentration, for any 10 minute period. “Whenever a local air pollution problem is deemed to exist, the Department may, in accordance with the procedures provided in the Air Pollution Control Act, issue an order directing the person or persons charged with causing, suffering, allowing or permitting such air pollution problem to control, abate or prevent such air pollution problem.” Besides the test of whether or not the restrictions stated in the standards of Section 1.3 are reasonable (which issue has not been raised by Bortz), we must determine if Section 1.3 gives a reasonable notice to the citizens of the Commonwealth of what is expected of them insofar as meeting the minimum standards is concerned. We hold that the above quoted regulations of Section 1.3 are reasonably understandable and adequately specific and therefore legally sufficient. We next turn to the record in this case to determine whether or not the Commission presented sufficient evidence to support the regulatory action it desired to take. In this regard, we refer to the Administrative Agency Law, supra 71 P.S. 1710.41, which states: “The court to which the appeal is taken shall hear the appeal without a jury on the record certified by the agency. After hearing, the court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of sections 31 to 35 inclusive of this act have been violated in the proceeding before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may set aside or modify it, in whole or in part, or may remand the proceeding to the agency for further disposition in accordance with the order of the court.” The pertinent portion of this section is whether or not the finding of fact by the Commission is supported by “substantial evidence”. “Substantial evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and more is required than a mere scintilla of evidence or suspicion of the existence of a fact to be established. See Pennsylvania State Board of Medical Education and Licensure v. Schireson, 360 Pa. 129, 61 A. 2d 343 (1948); Erie Resistor Corporation v. Unemployment Compensation Board, 194 Pa. Super. 278, 166 A. 2d 96 (1960). In this case the Commonwealth presented the testimony of four witnesses. One was an official of the Commission who verified procedural records to the date of the hearing. Two witnesses were housewives who testified concerning dirt and soot in or about their homes caused by the coke ovens of Bortz. The fourth witness, who was the chief witness of the Commission, was an air pollution control engineer employed by the Department of Health in Region Y where Bortz’s coke ovens are situated. This engineering witness testified, in addition to his qualifications, to a visit to the scene of Bortz’s coke ovens, to his taking photographs (which were not made part of the record) indicating smoke plumes and soot deposits and to his observations concerning the emission of smoke from the operation of Bortz’s coke ovens. This witness described smoke blowing across the roadway towards some houses. He then testified that, based upon some literature, which was never identified, he was able to determine that 25 percent of the coal with which the beehive ovens are charged was lost in the form of smoke and particulate, and that based upon the tons of coke pulled from the ovens four days a week, he was able to estimate that each coke oven in Bortz’s operation emitted more than 45 pounds of particulate matter per hour. From Ms observations, he testified that the smoke emissions were in excess of the permissible allowance of smoke as established by the Commission’s regulation utilizing the Ringelmann Smoke Chart. He used none of the available instruments for testing smoke emissions or falling particulate matter. The problem arises in that this witness, though admittedly an expert, for the purposes of this record, did not make any stack tests, nor did he utilize any of the available instrumentation to measure the amount of falling particulate, emitting particulate, or smoke density. If we are to permit employes of the Commission to determine that smoke and particulate matter emissions are in violation of the Commission’s regulations based solely upon visual observations, then there is really no need to have standards and regulations at all. The standard is not what this witness or any single employe of a regulatory agency might deem to be a violation of what the Legislature intended. What is relevant is proof that the standards set forth by the regulatory agency have been met or violated in accordance with those specific standards. Visual tests and observations are not adequate evidence of a violation where recognized scientific tests are available. As was pointed out at the oral argument of this case, this Commonwealth in a Motor Vehicle Code violation case would not permit a qualified expert state policeman with 25 years’ experience observing speeding automobiles on the Turnpike to testify to the speed of an automobile without the use of available instruments, such as radar and a tested speedometer. This Court cannot close its eyes to the necessity of a regulatory agency proving its case. Somehow, regulatory agencies such as the Air Pollution Commission and its employes, take the attitude that because they represent the government, there is no need for them to prove facts, except as established by the estimates and observations of their experts. Merely because the Commonwealth employs experts in the various fields of regulation does not necessarily mean that the Commonwealth need not prove its case. In the event it should occur in a case that there is no scientific measurement instrument, or no method for determining a violation, then, as in all adjudicated matters in this Commonwealth, violations will have to be determined upon the weight of the evidence produced. However, where there are available established methods for determining violations, those methods must be used. The Legislature certainly intended this approach to regulation. Why else would they provide for access to a citizen’s property and specifically authorize tests as set forth in the Act at 35 P.S. 4004? The Commonwealth here, in effect, is ordering the shutdown of Bortz’s coke ovens. This is no small matter. To permit the Commission to order an abatement based solely upon the visual tests and observations of one employe strikes at the heart of fairness envisioned in every judicial process known to our system of jurisprudence. If the engineering witness’ testimony can be verified by established tests, then there is no doubt that the Commission can accomplish its purpose in this matter. We will remand this case back to the Commission for the purpose of having the Commission properly establish substantial evidence to prove the violation alleged in this case. If the Commission cannot establish that Bortz has violated the minimum standards set forth in Section 1.3 of its Regulation IY, through available tests, then it should establish other sufficient and credible evidence, or the abatement order must be dismissed. There is no way for this Court to determine from the present state of this record whether or not the particulate matter was in excess of 150 micrograms of suspended particulate matter per cubic meter of air, or in excess of 0.6 milligrams of particle fall per square centimeter per month. This Court is not unfamiliar with the Ringelmann Smoke Chart, and therefore the Court is puzzled why such an inexpensive method of testing was not used in this case. In the case of City of Portland v. Lloyd A. Fry Roofing Company, 254 Ore. App. , 472 P. 2d 826, 827 (1970), the court gave a description of a Ringelmann Chart as follows: “It is a plain white piece of paper divided into four sections, numbered from one to four, and each about five and three quarters x seven and three quarters inches in size. On each of these sections is printed a series of intersecting heavy black lines of uniform width for each section, with the lines growing progressively wider from section one to section four, until on section four the black covers much more than half of the surface. This chart refers to Bureau of Mines Information Circular No. 6888, a copy of which is also in the record. From the chart and this circular, it appears that the chart is to be posted at a distance of 50 feet from the observer. When so posted the black lines and the white spaces merge into each other by a process of optical illusion, so as to present the appearance of a series of gray rectangles of different color densities, number 4 being the densest. Estimate of the density of smoke may be made by glancing from this chart so displayed to smoke, and picking out the section on the chart which most nearly resembles the smoke. This mode of measuring the density of smoke has been in use, it appears, for over fifty years. This affords a reasonably certain mode of determining and stating the density and opacity of smoke, and we think that the statute adopting it is not lacking in certainty.” From this description, we are at a loss to understand why an engineer employed by this Commonwealth would not be equipped with a piece of paper such as described by the Oregon Court. A citizen whose business is about to be destroyed by an abatement order is certainly entitled to that much consideration (the use of the test instrument) in the establishment of his alleged violation. 5. The refusal of the hearing examiner to permit testimony on the economic factors involved in this case was error. As is clearly shown in the order of the Air Pollution Commission from which this appeal arose, there is power in the Commission to set time limits within which compliance with the Commission’s orders may be set. It is conceivable that economic factors could very well persuade the Commission to set a deadline at some time different than it would otherwise set it without such information. In view of the fact that one of the declared policies of the Commonwealth, as noted above (35 P.S. 4002), is to protect the air resources of the Commonwealth to the degree necessary for the protection of the citizen’s “well-being”, “property” and the “expansion of industry”, it is conceivable that economic factors could be very relevant to the Commission for it to properly carry out the legislative intent. This is not to say that the Commission must give weight to the economic factor evidence. We do say, however, that without such evidence, if it has been offered, the Commission cannot fully carry out the legislative intent. Summary As has already been pointed out, the Administrative Agency Law, supra, at Section 44, authorizes this Court within the scope of its jurisdiction to remand these proceedings back to the agency for further disposition in accordance with this opinion. We therefore Order And Now, this 9th day of July, 1971, it is hereby ordered that this matter be remanded to the Air Pollution Commission for the purpose of establishing substantial evidence of the alleged air pollution violation of appellant and to receive evidence in accordance with this opinion. Judge Manderino concurs in result only. The Association is specifically provided for in section 6 of the Act (35 P.S. 4006) and is composed of citizens from the air pollution region with certain enumerated powers and duties. Even William Shakespeare, over 300 years ago, placed the following words in the mouth of Hamlet, Prince of Denmark: “This most excellent canopy, the air, look you, this grave o’erhanging firmament . . . appeareth no other thing to me than a foul and pestulent congregation of vapors.” As of January 19, 1971, these public authorities were combined in the new Department of Environmental Resources, Act of December 3, 1970, P. L. Act No. 275.

Opinion by Judge Kramer, This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Westmoreland County, dated February 7, 1974, which is described below. On March 20, 1973, the Board issued citation number 445 of 1973, directed against the Latrobe Armed Services Association (Association). The citation alleged violations of the Liquor Code, Act of April 12, 1951, P. L. 90, as amended, 47 P.S. 1-101 et seq., and rules and regulations adopted by the Board pursuant thereto. Specifically, this citation alleged that (1) the charter of the organization was not in the possession of the original incorporators or their direct or legitimate successors; and (2) an unexplained shortage existed in the Association’s cash income. On April 17,1973, the Board issued a second citation to the Association (number 552 of 1973), alleging (1) the serving of alcoholic beverages to nonmembers; and (2) the serving of alcoholic beverages after the hours permitted by law. As a matter of convenience, hearings on both citations were held on June 8, 1973. The record indicates that citations 445 and 552 were considered separately by the hearing examiner, with separate testimony taken, in turn, on each citation. Among the evidence introduced at the hearings was the past disciplinary record of the Association, which included two prior citations and convictions (in 1962 and 1970). In both numbers 445 and 552, the Board, on July 20, 1973, ordered the revocation of the Association’s club liquor license. These revocation orders (and the accompanying opinions) were issued separately, consistent with the Board’s treatment of the citations as two distinct cases. The Association appealed both orders of revocation, by a single appeal, to the Court of Common Pleas of Westmoreland County. The lower court reversed and set aside the Board’s order in number 445, and modified the penalty in number 552, vacating the revocation and substituting a 30-dav suspension. The Board appealed to this Court, questioning only the modification of penalty in number 552. Section 471 of the Liquor Code, 47 P.S. 4-471 (Supp. 1974-1975), provides for review of an order of revocation by the courts of common pleas. Such review is regulated by the following provision: “Upon appeal, the court so appealed to shall, in the exercise of its discretion, sustain, reject, alter, or modify the findings, conclusions and penalties of the board, based on the findings of fact and conclusions of law as found by the court.” Our scope of review in liquor license revocation cases is limited to determining whether the court below committed an error of law or abused its discretion. Commonwealth v. M.S.G., Inc., 7 Pa. Commonwealth Ct. 540, 297 A. 2d 556 (1972). In the instant case the lower court conducted a hearing de novo. In citation number 445, the court took additional evidence and made new findings of fact contrary to those made by the Board. Based upon these new findings of fact, the court reversed the Board, and no appeal has been taken from that determination. However, as to citation number 552, the transcript of the testimony taken before the Board’s examiner was stipulated to be a proper record by counsel for both parties, and no additional evidence was offered on this citation. In citation number 552, the court was “of the opinion . . . that the revocation ... is based on this present citation of sales to non-members and free dispensing after hours and one previous violation. Finding this to be a fact, this Court is of the opinion that the Board has abused its discretion and that the revocation ordered at number 552, 1973 should be reduced to a suspension of thirty (30) days.” The above quoted section of the Liquor Code grants to the lower court a broad power to review license revocations by the Board, but this review is restricted significantly when the lower court would modify a penalty. As our Supreme Court said in Noonday Club of Delaware County, Inc. Liquor License Case, 433 Pa. 458, 467, 252 A. 2d 568, 573 (1969): “Pursuant to this section [47 P.S. §4-471] the lower court on appeal is required to hold hearings de novo, make its own findings of fact and conclusions of law and then in the exercise of its own discretion either sustain, reverse, or modify the action taken by the Board. The court is in no way limited either by statute or by case authority to a review of the Board’s discretion, but rather makes a completely independent determination of all facets of the case in rendering its own decision. The only limitation placed upon the court is in the area of imposing penalties when no material changes are made in the findings of the Board.” (Emphasis in original.) See also Barone’s, Inc. v. Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board, 10 Pa. Commonwealth Ct. 563, 566, 312 A. 2d 74, 75 (1973); and Commonwealth v. M.S.G., Inc., supra. As indicated in the above-quoted passage from Noonday Clilb, a lower court may be justified in altering a penalty imposed by the Board, but this is so only when the court, after a de novo hearing, makes findings materially different from those made by the Board. This principle has prevailed for over 20 years, since the adoption of the current Liquor Code, and has recently been reaffirmed by the Supreme Court in Carver House, Inc. Liquor License Case, 454 Pa. 38, 310 A. 2d 81 (1973), and followed by this Court in Pennsylvania Liquor Control Board v. Washington Sporting Club, 13 Pa. Commonwealth Ct. 257, 259, 320 A. 2d 851, 852 (1974) and Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Italian Mutual Society of Gallitzin, 11 Pa. Commonwealth Ct. 78, 79-80, 312 A. 2d 844, 845 (1973). As Judge Mencer said in Washington Sporting Club: “It is now firmly established that the lower court must make findings of fact on the material issues different from those made by the Board before the action taken by the Board can be reversed or changed. Unless the lower court’s change or modification is so grounded, it cannot stand.” 13 Pa. Commonwealth Ct. at 259, 320 A. 2d at 852. In the instant case, there is nothing in the record, or in the opinion of the lower court, to indicate that “material findings” different from those of the Board were made by the court below. The decision of the court reveals only a disagreement with the penalty chosen by the Board, and in this area the court of common pleas is not free to substitute its own discretion for that of the Board. Washington Sporting Club, supra. The only remaining question is whether the revocation ordered in number 552 was within the statutory power of the Board to punish. There is no doubt that the revocation was within the Board’s authority. Section 471 of the Liquor Code, 47 P.S. §4-471 (Supp. 1974-1975) reads, in pertinent part: “Upon such hearing, if satisfied that any such violation has occurred or for other sufficient cause, the board shall immediately sus pend or revoke the license, or impose a fine. . . .” (Emphasis added.) It has been held that the Board can revoke a club liquor license for an offense involving sales after hours and sales to nonmembers. See Ajax Club Liquor License Case, 153 Pa. Superior Ct. 473, 34 A. 2d 326 (1944). In light of the above opinion, the order of the Court of Common Pleas of Westmoreland County, dated February 7, 1974, insofar as it modifies the penalty imposed by the order of the Pennsylvania Liquor Control Board dated July 20, 1973 in citation number 552 of 1973, is reversed. No appearance was entered on behalf of the Association, and it filed no brief.

The opinion of the Court was delivered by Sergeant, J. If the object of the present proceeding is to set aside the sale to Thomas Creveling of the 5th April 1834, it seems to be a singular mode of arriving at it. The amicable action and issue recite that the deed was made to Creveling by the executors for the purpose of defrauding the other devisees, and they were cited to show cause why they should not be discharged from the executorship. But (except the cases of lunacy or drunkenness) the only ground of such proceeding against an executor in the Orphans’ Court that I am aware of is under the Act of 29th March 1832, for wasting or mismanaging the estate, or because he is like to prove insolvent, or has neglected or refused to exhibit true and perfect inventories, or render full and just accounts; and the Orphans’ Court is authorized to require security, on default of giving which the court may, by the 23d section, dismiss him, except in the special cases mentioned in the proviso to the 22d section, which do not exist in this case. So that the application appears to be irregular in its terms, and, if the executor should choose to give security for the performance of his trust, the result of the issue would fail to effect the object proposed. But there is another difficulty which has grown out of this mode of attempting to try the question. The issue formed appears to be whether the deed was a fraudulent one, and not bond fide for a fair price. In the charge of the court, however, the jury were instructed that whether the sale to Creveling was or was not bond fide and for a fair price, yet if it was made for the purpose of getting him to buy in the land for the defendants, then it was a fraudulent sale within the issue. In giving this instruction, we think the court below erred. Without limiting ourselves to the words of the issue, (which indeed by this interpretation would present a double issue), the rule of equity which prohibits a trustee for sale from purchasing the trust property, is not founded on his being necessarily guilty of fraud in so doing. It is a rule of public policy which applies in all cases, whether there be fraud or not, and indeed its great object is to prevent fraud by taking away the temptation to commit it. Another reason for the rule is the difficulty, if not impossibility in many instances, of ascertaining whether there was fraud or not. If, in the present case, the sale was not made for a fair price, it would be fraudulent within the issue. But if it was made to Creveling as the agent for the executors, it would be prohibited by the policy of the law, however honestly designed or effected by the executors. The remedy for the party, however, in that case must be by some other proceeding. We perceive no error in the matters contained in the bills of exception. Judgment reversed, and venire de novo awarded.

Opinion by Mb. Justice Green, The plaintiffs’ original statement of their cause of action was filed July 9, 1894, and set forth a policy of fire insurance made January 16, 1893, on a building, for $2,000, a subsequent loss by fire, and a consequent liability to pay the loss on the part of the defendant company, and a refusal to pay. The defendant filed an affidavit of defense July 31, 1894, alleging that the plaintiffs had violated one of the conditions of the policy by keeping prohibited articles on the premises insured. On July 29, 1895, and before the trial of the cause, the plaintiffs asked and obtained leave to file an amended statement of their cause of action, and the same was accordingly filed on August 1, 1895, after objection and exception on the part of defendant. On the trial of the cause the plaintiffs elected to proceed upon the amended statement, and the cause was tried upon that pleading. The objection to the application to file an amended statement was that it introduced a new cause of action, and could not be allowed, because by the terms of the policy no suit or action could be brought for the recovery of any claim until full compliance by the insured with all the preceding requirements of the policy, nor unless commenced within twelve months next after the fire. It was contended for the defendant that there could be no recovery by the plaintiffs because the amendment was not made until after the limitation upon the right of action had closed. A point to that effect was submitted by the defendant but was refused by the court, and this refusal is one of the errors assigned. As we regard this ruling as very material to the plaintiffs’ right of recovery, it becomes necessary to examine critically the amended statement of cause of action, in order to determine whether it can be sustained. It opens with a statement of the policy, describing its terms and the contract of insurance thereby made between the parties. It then sets forth the destruction of the building insured by fire on January 11, 1894, and the consequent loss to the plaintiffs of $7,000. It then sets out other insurance to the amount of $17,000 on stock contained in the building, and other insurance on the building amounting, with the insurance in this policy, to an aggregate of $5,000, designating the present policy as “No. 10155, being the policy upon which this action is brought.” The amended statement then further alleges that after the fire a dispute arose "with the defendant and all the other companies as to the plaintiffs’ right to recover the insurance money, “the defendant companies denying all liability, alleging that prohibited articles, to wit: gunpowder and dynamite were kept on the premises in violation of the terms of the said several policiesthat after several visits were made by the adjuster of the defendant and other companies for the purpose of adjusting the loss and arriving at a settlement, and after fully investigating the facts connected with the dispute, finally, on April 7, 1894, the defendant company, by its adjuster, and the representatives of the other companies, agreed to settle and adjust the loss under the several policies, and did settle and adjust the same, by agreeing to pay 66 2/3 per cent of the face of the policies on the merchandise insured, and by paying in full the loss on the building. The amended statement further adds, that the defendant company agreed to pay the full sum of $2,000 on the policy in suit, which they subsequently refused to pay, and therefore the plaintiffs brought the present suit and claimed to recover the sum of $2,000 with interest from April 7, 1894. The important question arises, can such an amendment be made or, if allowed, can it be enforced against the objection of the defendant, after the expiration of the time for commencing an action on the policy ? The learned court below refused the first point of the defendant on this subject, because the amendment had been allowed and was therefore res adjudicata. It is very clear that if the amendment was improperly allowed, it gained no strength because of its allowance, and therefore the question was still an open one, whether there could be any recovery notwithstanding the amendment had been granted. The answer to the point was therefore erroneous unless the amendment was properly granted and a right of recovery arose under it. The doctrine that a new cause of action cannot be introduced, or new parties brought in, or a uew subject-matter presented, or a fatal and material defect in the pleadings be corrected, after the statute of limitations has become a bar, is so familiar to tbe profession, and has been declared by this Court, and by the courts of last resort of many other states of the Union, so frequently, that an extended review of the authorities is quite unnecessary. It cannot be essential to do niore than determine whether this case comes within the line of the very numerous decisions on this subject. A point has been suggested by the learned counsel for the appellees that because the action must now be regarded as being founded upon tbe agreement to settle, and not upon the policy, and there is no prohibition of such an action in the policy, the limitation of the policy is not applicable, and hence there could be no valid objection to the allowance of tbe amendment. We are very clear that this contention cannot be sustained, for manifest reasons. While the alleged undertaking is new it is neither independent of, nor separated from, the original cause of action. Tbe policy of insurance still remains, as the foundation of the action. The plaintiffs’ claim would have no force, in fact no legal existence, without the policy, and there could not possibly be any recovery without the maintenance and enforcement of the liability thereby created. If there was no contract of insurance there was nothing upon which to found a liability to pay anything whatever, and the alleged promise to pay by reason of the settlement necessarily is built upon, and grows out of, tbe contract liability created by the policy. It is an agreement, and it must necessarily be an agreement, to determine what amount of liability exists under tbe policy. Tbe essential foundation of any liability is the obligation imposed by the contract of insurance. And it is nothing else than this. The plaintiffs claim to recover 82,000 insurance money because the defendant contracted to pay that amount by an executed contract of insurance. The defendant, not denying the contract or the relation thereby created, says tbe plaintiffs cannot recover on tbe contract, because they fatally violated its conditions. Tbe plaintiff's reply that the defendants, ueverthe less, promised to pay, after knowledge of the breach. While this is a new undertaking not contained in the policy, it cannot be separated from the policy or from its terms and stipulations, but must be enforced, if enforced at all, with a full reference to the original contract itself, and to its fundamental and indispensable conditions. Thus there must have been a preceding contract of insurance, its terms must have been specifically defined, the amount to be paid must have been fixed, the loss must have been incurred, and the relations must have been ascertained and defined just as closely and accurately in order to enforce the alleged new undertaking as to enforce the original contract itself. It follows that the policy is indissolubly connected with the new engagement, and must be regarded as a part and parcel of the entire liability which the plaintiffs propose to enforce. Hence we find that it is set out in the amended statement, and forms a necessary part thereof, as well as in the original statement. But the undisputed facts of the case are such as to prevent a recovery under the original statement, and the learned court below so instructed the jury, and very properly. The evidence of the violation of the express terms of the policy was overwhelming, and was not in the least degree contradicted, and the plaintiffs'showed their appreciation of this situation by abandoning the original statement and proceeding alone upon the amended one. Under this statement a new and additional engagement is averred, upon which it is claimed a right of recovery can be enforced. Tins alone characterizes the new engagement as vital to a recovery. Its materiality therefore cannot be questioned. Without it there can be no recovery. But tins new engagement is only brought within the cognizance of the court and jury by means of an amendment. It was never asserted at any earlier stage of the proceedings. If no action had been brought upon the policy until the time when the amendment was asked for, as a matter of course, an action then brought would have been barred by the limitation of the contract. How then can a right of action be created by an amendment, which could not have been enforced by an original action, then brought for the first time ? It is impossible. In the sense of the new engagement being a new cause of action, it is only in legal life when it is proposed. But it is proposed too late. A right of the defendant to plead thé bar of the con tract is taken away if the amendment is to prevail, and under all the authorities, as will be presently seen, such a right cannot be taken away by means of an amendment. If the original statement had contained the new engagement, precisely as it now appears in the amended statement, there could have been no recovery, if the action had not been commenced until the time the amendment was made. Hence it follows that as an amendment, it can have no more force than it could have had if embraced in the original statement. Out of the great mass of decisions to be found in the reports of this and other states upon this subject, a few only need be selected to illustrate the foregoing principles. In Dearie and Wife v. Martin, 78 Pa. 55, a claim was filed against a husband and wife without setting forth the coverture. The property belonged to the wife and the lien was defective in not setting forth the coverture. The Court said, “If the claim on which the scire facias issued was radically defective, it was no lion on the wife’s property, and the defect was not cured by the replication to her plea of coverture. The replication cannot be treated as an amendment of the claim and, if it could be, it was too late to amend after the statutory period allowed for filing the claim. If the claim was fatally defective it was as powerless to continue the lien for which the law provides as if it had never been filed.” In Wright v. Hart, 44 Pa. 454, Lowrie, C. J., said, “ It is admitted that the plaintiff below could not amend his declaration so as to introduce a new cause of action; and this is especially true where the new cause is so old as to be barred by the statute of limitations.” In Smith v. Smith, 45 Pa. 403, the Court said, “We can not sustain the mode in which the case was tried. It was error to allow the plaintiff to add a new count for another slander or for a different cause of action after the right of action for that had been barred by the statute of limitations.” In Trego v. Lewis, 58 Pa. 463, it was said, “ Undoubtedly the Court will never permit a party to shifPhis ground or enlarge its sxxrface by introducing a new and different cause of action, especially when by reason of the statute of limitations, or an award of arbitrators, or for some good reason, it would work an injury to the opposite party.” In Kaul v. Lawrence, 73 Pa. 410, the Court said, “The legislature has gone far to prevent the loss of a trial and delay by amend rnents even to the form of the action, and the courts have seconded the effort to reach the merits of the eases and prevent a failure of justice through technicalities.....In doing this it is our duty, however, to see that amendments are not made in a manner to deprive the opposite party of any valuable right.” In Kille v. Ege, 82 Pa. 102, it was said: “Amendments depriving the opposite party of any valuable right shall not be allowed; hence when the name of a person was added as plaintiff in ejectment after suit brought, it was held that if at the time of the amendment the title of the new party was barred by the statute of limitations he could not recover.....It follows therefore that although the defendants in error were substituted without objection, yet they thereby acquired no rights ■ relating back of their substitution. As to them the action commenced when their names were put on the record.” • The principle of this case is directly applicable to the present contention. At the time when the amendment was asked for, to wit: July 25, 1895, there was no right of action of any land for the loss, under the express terms of the policy. The grant of the amendment did not, and could not, give to the plaintiffs a right of action earlier than that date, but on that date all right of action to recover under that policy was gone, and it could not be restored by means of an amendment. To permit a recovery in such circumstances would be to deprive the defendant of a valuable right already vested, which will not be permitted. In Tyrrill v. Lamb, 96 Pa. 464, which was an action of covenant upon written articles for the sale of land, which was sought to be changed to assumpsit by amendment (an allowable amendment under oür act of May 10,1871, Purd. 100), Mr. Justice Merger, delivering the opinion, said, “It was too late to commence and maintain a new action based on the alleged agreement with Martin. The right of the defendants to interpose a plea of the statute of limitations was to them valuable. This amendment could not deprive them of that right. The form of action having been changed does not prevent us from declaring now its effect.” In Furst v. Building, etc., Association, 128 Pa. 188, we said, “This amendment (a change of name) was allowed by the court below, but only after objection and exception by the defendant. It is difficult to see how this amendment could have helped the plaintiff’s case, as the statute was a complete bar at the time it was made, and it is perfectly well settled that amendments will not be allowed when they deprive the opposite party of any rights.” Applying the principle to this case its relevancy will be directly seen. At the time the amendment was proposed there was no right of action on the policy for the recovery of the loss, because it was especially so contracted by the parties as a part of the policy. The right of the defendant to plead this defense against any proposed amendment that might be offered could not be taken away by that means, and hence the amendment could not be sustained. The alleged promise to pay was made on April 7, 1894, and therefore was more than twelve months old when the amendment was applied for. Its purpose was to confer a right to recover under the policy. But no action to-recover the loss sustained under the policy could at that time bo maintained, and hence no amendment which sought to create such a right could be allowed. The alleged promise to pay was itself barred as a cause of action, being insufficient to that end, because of the express prohibition of the contract. The promise cannot be separated from the thing promised, and as the thing promised by the policy was the payment of money for a loss by fire, a promise to pay that money is a thing forbidden as a cause of action unless an action is brought to enforce it within twelve months from the date of the policy, or, if regarded in the sense most favorable to the plaintiffs, twelve months from the time the promise was made. This amendment cannot abide either of these tests, and hence it cannot be permitted to have any effect as against the defendant. In Knox v. Hilty, 118 Pa. 430, we reaffirmed all our previous decisions in this class of cases, and applied the same doctrine, and for the same reason, to a scire facias on a mechanic’s lien issued against a husband for work and labor done upon a house. After judgment against, the husband and execution issued, the court below permitted an amendment to be made striking off the judgment, introducing the wife as a defendant upon an allegation that she was the real owner of the property, and amending the claim of lien by introducing her name therein as owner in place of her husband’s. A judgment having been recovered against the wife the case was removed to this Court and was promptly reversed by us without a venire. We said “ On September 8, 1885, when the amendment was made,- eight months had expired from the completion of the .building. It is needless to argue that at that time no valid lien could have been filed against the wife, the statutory period of six months for filing liens having fully expired.” It was contended that under our Act of .June 11,1879, P. L. 122, amendments were expressly allowed in mechanics’ lien cases, by adding the names of other parties to conduce to justice and a fair trial on the merits, but we said, “ There is nothing in this act which in the least degree gives sanction to the idea that the time for filing a lien may be extended bejmnd the six months, by way of amendment, or that any person may be thus introduced against whom no right to file a lien existed when the amendment was made. If the legislature had any such purpose in view they certainly would have said so.” The fundamental principle of the decision was that after the time limited for bringing an action had expired, no amendment would be permitted against any one, which would allow a recovery on the lien. Just so here. When the amendment was asked for, all right of action to recover the loss insured against by this policy was gone, because such was the agreement of the parties. The amendment proposed to introduce a new cause of action, by averring a promise to pay notwithstanding the violar tion of the policy and its consequent avoidance. In Knox v. Hilty, it was the introduction of another party against whom the lien was good, in this case it was the introduction of another promise by the defendant, but the promise was then more than twelve months old and could not be a cause of action on account of the prohibition of the contract. Hence the amendment was too late and should not have been allowed. A contrary decision has recently been made by the Court of Errors and Appeals of New Jersey, 36 Atl. Rep. 1034, American Brick & Tile Co. v. Drinkhouse, in a mechanic’s lien case. Entertaining, as we do, the highest respect for the learning and ability of that Court, we are constrained to say that in our opinion the decision was in direct hostility with all the decisions of this Court in similar circumstances and upon the same question, and we therefore cannot regard it as of any authority. It is also equally hostile to all the decisions of the courts of last resort in many of the states. A fatal defect existed in the plaintiff’s claim of lien, because it did not conform to the statutory requirements, and that was so held by the Supreme Court of the state. An amendment was then asked for, long after the bar of the statute had closed on the claim, and it was allowed. The allowance was sustained because, as we understand the opinion, defects in dates could be supplied by amendment for the reason that the original dates “ were sufficiently explicit for all practical purposes,” and it was too clear to require discussion that “ such a change is embraced within the terms of a statute authorizing amendments ‘in matter of substance as well as in matters of form.’ ” As the Supreme Court had previously decided that the defects in dates were so material that there eould be no recovery on the lien, it is not easy to perceive tho force of the reason assigned for disregarding the necessary legal consequence of absolute invalidity. The learned court also held that, as the statute allowed amendments to be made at any time, before judgment, the amendment in question could be sustained, although at the time of its allowance no action could have been maintained upon the lien in its original condition, and the consequence of the amendment was to deprive the defendant of tiie right to plead the statute. If an amendment must he sustained because it is applied for at any time before judgment, the distinction between good and had amendments would he abrogated if only the time requirement is observed. The objection to the amendment was on its merits. The plaintiff by his own dereliction in not conforming to the statutory requirements had failed to bring his claim within the operation of the mechanic’s lien law, and therefore he never had any lien. He had no lien, and therefore he had no right of action, either when the lien was filed, or when the amendment was asked for. If the amendment was allowed he was for the first time clothed with a right of action, at a time when the statute was a peremptory bar to any action, and it is not possible to cite a solitary authority holding that this could be done. It took away a valuable right which had already vested fully in the defendant, to wit: the right to plead the statute, and every authority that can be found decides that this cannot be done by means of an amendment. To this contention there is no answer in the opinion, the point is not even stated. The remark that the authorities cited were not pertinent cannot satisfy the inquiring mind. Tho doctrine of the case is of course the law in New Jersey, but we could not possibly permit such doctrine to obtain any lodgment in our system of jurisprudence. The decisions in the other states are so numerous that a review of them is not essential, but a reference to one or two which seem to be more particularly analogous will be instructive. Thus in Crofford v. Cothran & Niel, 2 Sneed (Tenn.), 492, the action was assumpsit upon two due bills without seal, dated June 1, 1847, and due from date. The statute of limitations had been pleaded, the plaintiff, at July term, 1858, asked leave to amend by changing the form of action to debt which was granted. At the time the amendment was granted the form of action as amended was barred by the statute, more than six years having then elapsed. The court below held that the amendment related back to the commencement of the action which was within the statutory period. The Supreme Court reversed that decision, holding that although the proposition was generally true it was not so where opposing rights had accrued before the amendment, and that the right to plead the statute having accrued before the amendment was granted it was a bar to the action which the amendment did not remove. The Court said, “We are not to suppose that the legislature in providing a method, whereby one party might be relieved in some degree against the consequences of his own ignorance or negligence, intended to deprive the other party of the benefit of any legal defense, the right to which had become perfect and absolute before the time of the application for such amendment. ... It may be conceded in general, and for most purposes the amendment will relate back to the day on which the original process was sued out; but this fiction of relation will not be allowed to obtain where it would work injustice to the adversary party by destroying or taking from him the benefit of an existing legal defense to the action. In a case, therefore, where the time of the commencement of the action may become important in reference to the statute of limitations or other matter of defense, the effect of an amendment changing the form of action must be restricted to the time when from the record it appears to have been granted. From that time only can, in such case, the plaintiff be regarded as rectus in curia.” The foregoing opinion is a most precise statement of the true reasoning that pertains to the subject. The amendment proposed was a mere change in the technical form of action and, of course, would have been allowed if made in time. But when the statute had become a bar, it was because of that fact, it was for that reason, that the amendment could not be granted. It deprived the defendant of a valuable right which had become vested, and for that reason could not be allowed. It is of no consequence, and it is no answer, to show that the amendment was a proper one, and authorized by the statute of amendments. That is not the point in dispute. The real question is, can such an amendment be granted after the bar of the statute of limitations has closed on the claim ? This was the vice in the New Jersey case, supra. The learned judge delivering the opinion proceeded to show that the amendment was proper to be made under their statute of amendments, and argued that such an amendment would do no injustice to the defendant because it simply added the dates of delivery of the materials and work, and that by implication from the words of the statute the lien, if filed in time, was only gone if there was a wilful or fraudulent misstatement of the matters required to be inserted. All this may have been true, but it had no application to the real point in issue, which was, that although the original claim of lien was filed in time yet, being fatally defective, it conferred no right of action, and that while such a light of action might have been conferred if the amendment had been asked before the statute of limitations had closed on it, it could not be done after that event. That was the real contention, but it was not considered. The reasoning was, that because the statute did not invalidate the lien by express words on account of defective statements, the defects might be remedied by amendment at any time. But it is not by force of any statute that amendments out of time are rejected, but by the common law principle that it ought not to be done after an adverse right had accrued. It was because the claim of lien was in its very inception fatally defective in that it never complied with a certain statutory requirement, and hence never had a legal existence. And so in the present case, if the amendment had been applied for while the right of action was running it might properly have been granted, but after the right of action had ceased under the contract it could not be done. Because there could be no recovery on the policy alone, the right to recover could not be created by an amendment which was not solicited until after the right to recover for the loss was barred by the contract of the parties. Other cases affirming the same principles are First Nat. Bank v. Shoemaker, 117 Pa. 94; Flatley v. Railroad, 9 Heiskell 230; Willink v. Renwick, 22 Wend. 608; Cogdell v. Exrs., 69 N. C. 464; Shaw v. Cock, 78 N. Y. 194; Jeffers v. Cook, 58 Cal. 147; Seibs v. Engelhardt, 78 Ala. 508; Miller v. McIntyre, 6 Pet. 61; Long v. Judge, 27 Mich. 164; People v. Judge, 27 Mich. 138; Hills v. Ludwig, 46 Ohio, 373; Judson v. Courier Co., 25 Fed. Rep. 705; 15 Am. & Eng. Ency. of Law, 178; O’Neill v. Hurst, 11 Phila. 171. Numerous other cases hold the same doctrine. Upon the whole case we are of opinion that the amendment, not having been asked for, or made, until after the bar of the contract had closed on the claim, should not have been allowed. As our views upon this subject are fatal to the plaintiff’s claim it is not necessary to consider the other assignments of error in detail. We may however add that a careful reading of the testimony satisfies us that there was an entire insufficiency in the character and amount of the testimony to defeat the express provisions of the policy as to the alleged promise to pay the loss on the buildings. It was all in parol; it consisted of alleged verbal declarations of the agent Kuester, which he positively and emphatically denied; it was neither clear, precise nor indubitable; it depended almost entirely upon the testimony of the plaintiffs; it was contradicted by the testimony of a number of disinterested witnesses, and it was of a vague, indefinite and uncertain character. The authorities that upon such testimony express provisions in policies of insurance prohibiting parol waivers cannot be avoided are very clear and emphatic: McFarland v. Ins. Co., 134 Pa. 590; Universal Ins. Co. v. Weiss, 106 Pa. 26; Nat. Ins. Co. v. Brown, 128 Pa. 391; Hocking v. Ins. Co., 130 Pa. 179. There was no proof of an actual, distinct and definite agreement on the part of Kuester that the loss on the building should be paid. The argument in support of the plain tiff’s contention on this snbjectis made out largely of inferences and implications from facts and declarations, most of which are disputed. This is not enough. We sustain the first, second, seventh, eighth, tenth, eleventh, twelfth and thirteenth assignments. Judgment reversed.

Opinion by Mr. Chief Justice Kephart, Appellee brought this action to recover damages resulting from oil escaping from appellant’s pipe line which entered appellee’s dyeing plant, causing injury to the machinery and to cloth in the process of dyeing. Both sides asked for permission, to inspect the other’s plant and system which was granted. Each side filed a bill for discovery with interrogatories. Appellee’s interrogatories were designed to elicit information concerning the operation of the line, the age of the pipe, and the amount of oil that escaped. Its prayer was granted. Appellant then requested answers to 27 interrogatories of its own. The court below sustained preliminary objections filed by appellee to all of these but two which related to appellee’s conduct after discovering the presence of oil in its plant and machinery. Appellant here complains of this action. A bill of discovery in aid of án action at law is an equitable remedy to enable a litigant to obtain, prior to trial, such information as is in exclusive possession of the adverse party and is necessary to the establishment of the complainant’s case. Jurisdiction in discovery was given to the Court of Common Pleas of Philadelphia County by the Acts of June 16,1836, P. L. 784, and April 10, 1848, P. L. 448, and was conferred generally upon the courts of common pleas throughout the State by the Act of February 14,1857, P. L. 39. It is available in actions of trespass and may be invoked by either plaintiff or defendant. See Bains v. Goldey, 35 Pa. 51; Compton, Tr., v. International Harvester Co., 297 Pa. 462; Nashville, C. & St. L. Ry. Co. v. Jenkins & Son (No. 4), 296 S. W. 1; Kerr, Discovery (1870), p. 7; Pomeroy, Equity Jurisprudence (4th ed., 1918), section 191; Swarthmore College v. Springfield Consolidated Water Co., 16 Del. County Rep. 427. In the early period of the Commonwealth’s legal history it provided the only means whereby such information could be obtained, because at law a party could not obtain the production of books, records and documents which were in his opponent’s custody. This function of equity has not been usurped by the reforms in law practice under the Act of February 27, 1798, 3 Smith Laws 303, which permits the use of the subpoena duces tecum for the production of records and documents at trial: Lesser v. Henry, 50 Pa. Superior Ct. 440. While the law courts are now able to assist litigants to a far greater extent in this regard, the jurisdiction of equity over bills of discovery in aid of actions at law has not for that reason been lost, although its aid is less frequently invoked: Compton v. International Harvester Co., supra; Dock v. Dock, 180 Pa. 14; Lesser v. Henry, supra. And see Carpenter v. Winn, 221 U. S. 533; Pomeroy, op. cit., supra, section 193. The legal remedy is not complete, for the circumstances in which a litigant can obtain the production of books or records prior to trial are few at law. See Raub v. Van Horn, 133 Pa. 573; Compton, Tr., v. International Harvester Co., supra, at pp. 467-8. Without equitable relief, parties would frequently be unable to prepare pleadings and avoid surprise at the trial of their case. In Lesser v. Henry, supra, the court said: “If the plaintiff, in a case like the present cannot, by this proceeding, have discovery of the facts which he alleges make out his claim, and could only first obtain such knowledge at the trial, he would probably be driven to an amendment of his pleadings, and the trial of his cause would thus be attended with that useless expense and delay so naturally irritating to litigants in our courts.” Although equity has plenary jurisdiction to afford the relief which appellant seeks, there is a fundamental limitation upon the character of information which may be so obtained. The purpose of the discovery is to enable the party seeking it to make out his cause of action or his defense, not to pry into the case of his opponent and to anticipate it: Pension Mutual Life Ins. Co. v. Whiteley (No. 2), 261 Pa. 310; Kinney v. Rice, 238 Fed. 444; Carpenter v. Winn, supra; Ingilby v. Shafto, 33 Beav. 31; Pomeroy, op. cit., supra, section 201; 3 Story’s Equity Jurisprudence (14th ed.), section 1945; Swarthmore College v. Springfield Consolidated Water Co., supra. The matters about which inquiry is made must bear pertinently upon the matters which he will be required to prove affirmatively at trial: Kerr, op. cit., supra, p. 18; Carpenter v. Winn, supra; Ingilby v. Shafto, supra. The first and eighth interrogatories of the present bill relate to matters which appellant could easily have ascertained by making the inspection of appellee’s mill, for which leave had been granted, and have no relation to its case. Other interrogatories bear upon appellee’s damages, which the latter must prove. Appellant has no burden of proof as to these. It is more improper for appellant to inquire the names of the persons who are likely to be called as witnesses by appellee to establish these damages. A litigant has no right by a bill of discovery to attempt to ferret out the manner in which, and by whom, the case of his adversary will be proved: Sherwood Bros., Inc., v. Yellow Cab Co., 283 Pa. 488; Kinney v. Rice, supra; Knapp v. Harvey, [1911] 2 K. B. 725. The interrogatories must appear to have a material connection with appellant’s case and cannot be used to enable it to cast about for possible defenses or to fisli for helpful information: Compton v. International Harvester Co., supra; Keaggy v. Lightcap, 320 Pa. 8, 10; General Film Co. v. Sampliner, 232 Fed. 95; Story, loc. cit., supra. The decree of the court below is affirmed.

Opinion by Mr. Justice Ladner, These appeals come to us from the Superior Court on allocatur. This case originated in an appeal to the Erie County Quarter Sessions Court from the Pennsylvania Liquor Control Board’s refusal to grant the appellants a hotel liquor license for their hotel in Millcreek Township of that county. The Erie County Court affirmed the Board’s refusal whereupon the appeal to the Superior Court followed which court affirmed the Quarter Sessions Court. These are the undisputed facts. In November, 1948, appellants began construction of a hotel on the beach of Lake Erie. A year later they applied for a hotel liquor license. It is admitted that the structure of the hotel and the applicants themselves met all the requirements of the Board and the conditions of the Liquor Control Act of June 16, 1937, P. L. 1762, 47 P.S. 744-403 as amended. When the construction was begun there was no zoning ordinance in the township restricting the sale or dispensing of intoxicating liquor and the hotel was designed and the building erected to provide for a bar room with the usual fixtures. When the building was approximately half completed, a zoning ordinance was adopted, effective April 14, 1949, by the supervisors of the township which designated the district in which the hotel was being erected as a Mixed Occupancy district in which restaurants, grocery stores, hotels and club houses were allowed but provided that “No license for the dispensing of intoxicating liquor in any form is permitted.” It is admitted that the only reason the Liquor Control Board refused the appellants a license for their hotel was the above provision of the zoning ordinance. It is important to note that the zoning ordinance in question by Section 1004 also provided, “Section 1004. Completion of Buildings. All structures started within six (6) months prior to the passage date of this ordinance and not in conformity therewith, shall be discontinued, provided, (1) No substantial construction has been made and construction is not prosecuted without delay and completed within a period of one year from date of enactment of this ordinance, or (2) No contract or contracts have been let.” Two questions were argued before us: (1) Whether the prohibition feature of the zoning ordinance was validly applied to appellants’ hotel in process of erection at the date of the enactment of the zoning ordinance; (2) Whether the supervisors had the power by a zoning ordinance to regulate the conduct of the business of hotels by the provision forbidding a liquor license. (1) On this first point it is admitted that there had been substantial progress in the construction of the hotel and considerable expenditures made and contracted for prior to the adoption of the ordinance. Retroactive legislation is so offensive to the Anglo-Saxon sense of justice that it is never favored. A statute will not be given a retroactive effect unless such construction is required by explicit language or by necessary implication: Painter v. Baltimore & Ohio R. R., 339 Pa. 271, 276, 13 A. 2d 396 (1940); or, as stated in Section 56 of Article IV of the Statutory Construction Act of 1937, P. L. 1019, 46 P.S. 556, “No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature.” These rules are equally applicable to ordinances of the municipal subdivisions. There is no room for speculation here because the Supervisors showed a commendable intent to make the ordinance prospective, not only as to completed structures but also as to those in course of construction diligently pursued to completion. It should be remarked also that the Township authorities interposed no objection to appellants’ application and took no part in these proceedings to oppose the issuance of the license. In fact, the record shows they virtually conceded the ordinance was inapplicable to the particular building involved in this appeal. However, the learned judge of the Quarter Sessions Court took the position that as the ordinance does not forbid the appellants’ occupancy of the building as a hotel and that a liquor license is not an indispensable feature of a hotel, appellants have no just cause of complaint. This we think is far too narrow a view to take of the matter. Whether a hotel as defined by the authorities quoted from other states cited by the learned court technically includes the feature of providing liquor accommodations for guests is beside the point. A hotel is merely a name derived from the French for an inn and the two are regarded so far as the transaction of business is concerned as synonymous. An inn always connoted a place where travellers or sojourners were provided with the accommodations of lodging, food and drink, or as characteristically put in the old days, “entertainment.” 19 Words & Phrases 672. Nor is the modern hotel much different. It may be larger and more elaborate but the services rendered to guests remain essentially the same. Especially is this true of a summer resort hotel which is of the class to which the hotel here conforms. In Wellsboro Hotel Company’s Appeal, 336 Pa. 171, 173, 7 A. 2d 334 (1939), we said, speaking through Mr. Justice Barnes, “It is a part of the time-honored business of a hotel or inn to provide those who seek lodging with food and refreshment;.” (Italics supplied.) That the accommodation of the service of liquor refreshment is usually regarded to be largely inseparable from a modern hotel (except in prohibition states or areas) is indicated by the Pennsyl vania Liquor Control Law itself, which makes it mandatory upon the Board to grant a license if the hotel structure conforms to physical requirements established by the act and the applicant complies with the regulations and is of good repute. Moreover, such licenses are expressly exempted from the quota law. However, the real question is not whether a liquor license is indispensable but whether it may be regarded as a customary accommodation to the guests as well as a substantial source of revenue to the proprietors of the hotel. Neither furnishing of food nor a cigar or' magazine counter are strictly indispensable but they are everywhere regarded as auxiliary accommodations that serve to make a hotel attractive to guests which in turn makes for a profitable business. Indeed it is well argued that the appellants would never have constructed this hotel if they had known that so customary a feature of their proposed business with its substantial contribution to the income would be prohibited. And there is testimony in the record to that effect. In the circumstances we hold that the ordinance because of the exemptions contained in Section 1004, cannot reasonably be applied to appellants’ hotel. In view of the position we have taken on the first proposition, it is, strictly speaking, unnecessary to pass on the second question argued. That question is, in effect, whether a municipality may in the guise of a zoning ordinance restrict in an area where a business is permitted, a part of that business. Since this question is important to the public and lest our silence be interpreted as an approval of what the courts below have said on the subject, we feel some comment is necessary. Conceding that a zoning ordinance may properly exclude hotels and taverns, like any other business, entirely from a residential area, as was done in Kingston Borough v. Kalanosky, 155 Pa. Superior Ct. 424, 38 A. 2d 393 (1944) and Veltri Zoning Case, 355 Pa. 135, 49 A. 2d 369 (1946), an entirely different question is presented when it is attempted to regulate the details of a hotel business which it permits in the zone where state legislation has filled the entire field of liquor regulation. We think that such regulation is improper. We are unable to agree with the learned judges of the Superior Court that the instant case is ruled by the cases cited in their opinion in which sales of liquor are either prohibited by a restriction in a deed, or by the unrepealed Act of Assembly of 1881, forbidding such sales where connected with a place of amusement. Zoning ordinances, interfering as they do with the free use of property, depend for their validity on a reasonable relation to the police power: White’s Appeal, 287 Pa. 259, 134 A. 409 (1926); Lower Merion Twp. v. Frankel, 358 Pa. 430, 433, 57 A. 2d 900 (1948). An ordinance, for example, if it permitted a butcher shop to be located in an area but prohibited its sale of pork, or a drugstore but prohibited its sale of candy, or a grocery store but prohibited its sale of bread, would surely be regarded as unreasonable legislation on details of a business not a matter of public concern. If it may prohibit a hotel from dispensing liquor, it can well forbid it selling meals, or cigars or candy, or newspapers. Zoning ordinances may not, be used for such purposes. If It be argued that dispensing of liquor has a reasonable relation to police power, the answer' is that even so municipalities may not invade the field of regulation which the State legislature has completely filled by its comprehensive liquor control act, an act that provides ample means to all communities to obtain prohibition at. their option by vote of the people thereof: Act of June 16, 1937, P. L. 1762, 47 P.S. 744-501, 502. A municipality may not in the guise of a zoning ordinance regulate the business of dispensing liquor. The orders of the Superior Court and the Quarter Sessions Court of Erie County are reversed. This zoning ordinance was adopted April 4, 1949, effective 10 days thereafter under the authority of the second class Township Code, Act of May 1, 1933, P. L. 103, Art. XX, Sec. 2001, as amended, 53 P.S. 19093-2001 pocket part. Thus, Shakespeare, in 1 Henry IV, Act III, Scene 3, pictures the old time Inn in the following colloquy: “Hostess: You owe money here besides Sir John for your diet and by drinkings and money lent you, four and twenty pounds. Falstaff: I’ll not pay a denier. What, will you make a younker of me? Shall I not take mine ease in mine inn — ?” Also characteristically used as an abbreviation of liquor refreshment in the older cases. Prior to the Amendment of May 20, 1949, P. L. 1551, Sec. 2, 47 P.S. 744-404 (pocket part) no appeal was allowed from the Quarter Sessions Court so that this question was not ruled on by the appellate courts of this state. However, there is an abundance of lower court authority so interpreting the hotel license section of the act, among which are Chancellor Hall Corporation, 53 D. & C. 83 (1945) (Philadelphia County); Yarosz’s License, 47 D. & C. 404 (1943) (Beaver County); Popp’s License, 41 D. & C. 500 (1941) (Erie County); In re: Application of Hillside Hotel, 20 Leh. L. J. 146, 57 York 147 (1942) (Lehigh County). Cheris’s Liquor License Case, 127 Pa. Superior Ct. 355, 193 A. 162 (1937). Act of July 9, 1881, P. L. 162, 47 P.S. 181; Shibe's Case, 117 Pa. Superior Ct. 7, 177 A. 234 (1935); Oriole’s Liquor License Case, 146 Pa. Superior Ct. 464, 22 A. 2d 611 (1941).

OPINION OF THE COURT ROBERTS, Chief Justice. At issue on this appeal is whether, in an action brought by an injured employee against a third-party tortfeasor, the employer, although statutorily immune from liability, may nonetheless be joined by the third party for the purpose of apportioning the employer’s negligence with the negligence of the third party. Both the trial court and the Superior Court held joinder of the employer as a defendant for any purpose to be barred by section 303 of the Workers’ Compensation Act. We granted allowance of appeal and now affirm. In November of 1979, Fred M. Heckendorn, an employee of appellee Carnation Company, and his wife filed a complaint in trespass against appellant Consolidated Rail Corporation (Conrail) and Evans Products Company alleging that on August 22, 1977, while in the course of his employment, Heckendorn had been struck and injured by a falling bulkhead door, manufactured by Evans, as he was loading a railroad boxcar owned by appellant Conrail and leased to Carnation. When Conrail attempted to join Carnation as an additional defendant, Carnation filed preliminary objections to the joinder. The Court of Common Pleas of Cumberland County sustained the preliminary objections, and the Superi- or Court affirmed. 293 Pa.Super. 474, 439 A.2d 674 (1981). This appeal by allowance followed. Section 303 of the Workers’ Compensation Act provides: “(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [77 P.S. § 411(1)(2) ] or occupational disease as defined in section 108 [77 P.S. § 27.1]. (b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on ■ their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.” Act of December 5, 1974, P.L. 782, No. 263, as amended, 77 P.S. § 481 (Supp.1983). In Tsarnas v. Jones & Laughlin Steel Corp., 488 Pa. 513, 412 A.2d 1094 (1980), this Court sustained the constitutionality of section 303(b) and concluded that section 303(b) was intended by the Legislature to prohibit the joinder of an employer as an additional defendant in employee actions against third-party tort-feasors: “Prior to the passage of Section 303(b), our law permitted the joinder of the employer as an additional defendant in a suit by an employee against a third party tortfeasor on the basis of joint liability or liability over. If it were determined that both the employer and the third party were responsible for the employee’s injury, the employee could obtain a full recovery from the third party, but the third party could also obtain contribution or indemnity from the employer to the extent of the employer’s statutory liability under the Workers’ Compensation Act. [Citations omitted.] Section 303(b) creates an exception to the general right to contribution from joint tortfeasors. Under that section, a third party whose negligence is responsible, in part, for an injury suffered by an employee protected by the Workmen’s Compensation Act, may not, in the suit brought by the employee against him, join the employer as an additional defendant. Nor may the third party otherwise seek contribution or indemnity from the employer, even though the employer’s own negligence may have been the primary cause of the injury.” 488 Pa. at 517-18, 412 A.2d at 1096. See Bell v. Koppers Co., 481 Pa. 454, 392 A.2d 1380 (1978); Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982); Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978); Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977). Appellant concedes that section 303(b) bars joinder of an employer for the purpose of establishing liability but contends that the Comparative Negligence Act, Act of April 28, 1978, P.L. 202, No. 53, as amended, 42 Pa.C.S. § 7102, which was enacted subsequent to section 303(b), reflects a legislative intent to permit joinder of an employer as an additional defendant for the purpose of apportioning fault. In fact, the Comparative Negligence Act reflects a precisely opposite intent, one which is entirely consistent with the legislative grant of immunity to employers in employee actions against third-party tortfeasors. The Comparative Negligence Act provides that a plaintiff may recover damages whenever his negligence is not greater than the negligence of the “defendants against whom recovery is sought” and that, “[w]here recovery is allowed against more than one defendant, each defendant shall be liable for ... damages in the ratio of the amount of his causal negligence to- the amount of causal negligence attributed to all defendants against whom recovery is allowed.” 42 Pa.C.S. § 7102 (emphasis supplied). The Workers’ Compensation Act provides that “[t]he liability of an employer under this act shall be exclusive” and that the employer “shall not be liable to a third party for damages, contribution or indemnity in any action at law, or otherwise.... ” 77 P.S. § 481 (Supp.1983). The Superior Court properly concluded that the two provisions not only are reconcilable but “can be read in full and complete harmony.” 293 Pa.Super. at 480-81, 439 A.2d at 677. As related statutes must be read in pari materia, 1 Pa.C.S. § 1932, and the Workers’ Compensation Act provides that “[a]n employer is one against whom recovery can neither be ‘sought’ nor ‘allowed,’ ” 293 Pa.Super. at 480, 439 A.2d at 677, it is clear that in the Comparative Negligence Act “the legislature did not contemplate an apportionment of liability between one or more third party tortfeasors (against whom recovery may be had) and the plaintiff’s employer (against whom recovery may neither be sought nor allowed).” Id. See Kelly v. Carborundum Co., supra, 307 Pa.Super. at 367, 453 A.2d at 627. See also Jones v. Carborundum Co., 515 F.Supp. 559 (W.D.Pa.1981). Thus, in a case where the factfinder determines that an injured employee’s total damages are $100,000, the negligent third party is liable to the employee for the full amount of the judgment, a result in accord with the longstanding common-law principle that one joint tortfeasor’s immunity from liability does not relieve the other tortfeasor of full liability. See Restatement (Second) of Torts § 880 (1979). There is no possibility that an injured employee will recover an amount in excess of his damages, for pursuant to 77 P.S. § 671, “[wjhere 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 employee .. . against such third party to the extent of the compensation payable under this article [ (77 P.S. § 411 et seq.) ] by the employer.” Thus, if the employer has already paid $20,000 in workers’ compensation to his employee, the employer is entitled to receive $20,000 of the $100,000 judgment, less a proportionate share of “reasonable attorneys’ fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement.” Id. The employer’s statutory right to subrogation may not be challenged by an allegation that the employer was partially responsible for the employee’s injury. Under the terms of the Workers’ Compensation Act, whenever an employee is injured in the course of employment, the employer pays compensation, regardless of whether the employer, the employee, or a third party was causally negligent. If the negligence of a third-party tortfeasor is subsequently determined to have caused the injury “in whole or in part,” the employee is entitled to recover the full amount of his damages from the tortfeasor, subject to the employer’s right to reimbursement for the workers’ compensation payments made as a result of the injury. The issue of the employer’s negligence is as irrelevant at the subrogation stage of the proceedings as it is at trial, and as it is in every case of employee injury in which no third-party tortfeasor is involved. The Workers’ Compensation Act demonstrates a clear legislative intent that in cases where a party other than the employer is responsible in whole or in part for an employee’s injury, the employee may recover full compensation for his injury from the negligent third party, subject to the employer’s right of subrogation, through an action in trespass, in which the employer may not be involuntarily joined for any purpose. As the Superior Court properly read the Comparative Negligence Act to be consistent with this legislative intent, the order of the Superior Court affirming the order of the Court of Common Pleas of Cumberland County, which sustained appellee Carnation’s preliminary objections to involuntary joinder, is affirmed. Order affirmed. LARSEN, J., joins this opinion in part and files a concurring opinion. . In Hefferin v. Stempkowski, the Superior Court set forth in detail the legislative history of the enactment of present section 303(b): “The National Commission on State Workmen’s Compensation Laws submitted its report to the Congress and the President in July, 1972. The report contained 84 recommendations for the improvement of state workmen’s compensation laws, and of the 84 recommendations, 19 were deemed essential by the Commission. Recommendations R. 2.18 and R. 2.19 address immunity and exclusivity of employers from negligence actions when an employee is impaired or dies because of a work-related injury or disease. The Commission recognized that its recommendations would result in increased costs to employers and included the exclusive liability of an employer as one of the 19 essential recommendations. With the Commission report as a background, the Pennsylvania Legislature in the years 1972 through 1974 undertook a massive overhaul of the State’s Workmen’s Compensation Law and Occu pational Disease Law which, among other items, caused the average weekly payment to rise from $60.00 per week to a present $187.00 per week. It was the intention of the Legislature to have the Pennsylvania Workmen’s Compensation Law comply with as many of the essential recommendations of the Commission as possible. This culminated in December, 1974 with the enactment of S.B. 1223, wherein the intention of the amendments to Section 303 was to grant the employer total immunity from third-party actions. To accomplish this, the Legislature adopted the language in Section 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, et seq., where the employer is granted total immunity from third-party actions and is also subrogated to the full extent of its workmen’s compensation lien. This becomes a statutory right, and it is not necessary for the employer to enter the action as an equitable plaintiff as is the case in some other jurisdictions. The Federal case law is lengthy and affirms the language of Section 5, and it is with this thought in mind that the Pennsylvania Legislature adopted the present Section 303 language----” 247 Pa.Super. at 368-69, 372 A.2d at 87. See Tsarnas v. Jones & Laughlin Steel Corp., supra, 488 Pa. at 519, 412 A.2d at 10. . Our Rules of Civil Procedure likewise do not provide for the involuntary joinder of an employer, as either defendant or plaintiff, in an action by an employee against a third-party tortfeasor. Rule 2252, which permits a defendant to join as an additional defendant “any person who may be alone liable or liable over to him on the cause of action declared upon ... or jointly or severally liable thereon with him,” is clearly inapplicable. Under section 303(a) of the Workers’ Compensation Act, an employer cannot be held liable to an injured employee in a common-law trespass action, and under section 303(b), the employer is in no respect liable to the third-party tortfeasor. See also Goodrich-Amram 2d § 2252(a). Nor can an employer be joined as an involuntary plaintiff or defendant pursuant to Rule 2227, which permits the compulsory joinder of certain persons “having only a joint interest in the subject matter of an action.” As the Superior Court recently and correctly concluded: “Pa.R.C.P. 2227 permits compulsory joinder of persons having a joint interest in the subject matter of an action and without whose joinder the action cannot substantively proceed. An employer has no direct interest in and is not an indispensable party to a common law tort action commenced by an employee against a third party. The compulsory joinder of an employer as an involuntary plaintiff in his employee’s third party action, therefore, is not procedurally authorized.” Kelly v. Carborundum Co., supra, 307 Pa.Super. at 369, 453 A.2d at 629. See also Goodrich-Amram 2d § 2227(a)(1). . The dictum to the contrary in Stark v. Posh Construction Co., 192 Pa.Super. 409, 162 A.2d 9 (1960), is not persuasive, as Stark was decided when joinder of the employer at trial was still permitted, long before the Legislature’s decision in 1974 to triple the amount of workers’ compensation payable to injured employees and at the same time to foreclose, through the enactment of section 303(b), the adjudication of employer negligence in all cases of employee injury. See note 1 supra. . Appellant also claims that the Act of December 5, 1974, P.L. 782, 77 P.S. § 481, amending section 303 of the Workers’ Compensation Act, is unconstitutional because the title of the act does not provide full notice of the contents of the act, as required by Article III, Section 3 of the Pennsylvania Constitution. As this claim was not raised before the trial court, it is waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

The opinion of the Court was delivered by Duncan J. The rejection of the evidence is endeavoured to be supported on two grounds. 1st. That this right of water, See. was incorporeal, and could pass only by deed. 2d. That the evidence offered was in direct contradiction to the deed. 1st. From the view in which I have considered this evidence, it is unnecessary to decide, whether this right is corporeal or incorporeal. Whatever it was, the first route, &c. ' conveying the water is granted by deed. One thing is very certain, it is such right as is tangible; its existence is not merely in idea or abstracted contemplation, but a substance which may be always seen; always handled; it is an exclusive right to the occupation of the route granted. Incorporeal things are in their nature invisible, quare ñeque tangí, nec videri possunt, and for these ejectments will not lie. Rnnn Ej. 36. But an ejectment will lie on a right reserved in a deed, of erecting or building a dam on the bank of a creek at the place specified. Jackson, v. Buel, 9 Johns. 299. Wherever a_ right of entry exists, and the interest is tangible, so that possession can be delivered, an ejeemnent will lie. An ejectment would lie here, but an ejectment will not lie for a mere incorporeal hereditament. Lessee of Black v. Hepburn et al. 2 Yeates, 331. The Court say incorporeal things-are in their nature invisible; not capable of being delivered *n execution ; not susceptible of actual possession, I own the inclination of my mind is, that an interest in the soil at the given place passed, not only for laying the pipes, but for occupying and possessing exclusively the spot designated by the grant. But if this was a mere incorporeal right, the subject only of a grant by deed, and not by livery and seisin, still the evidence would be admissible; not to pass absolutely the soil by parol agreement, but such an executed contract, as, that, on the ground of fraud, chancery would direct a specific execution, or restrain the defendant from disturbing this right. Wherever a court of equity would direct a conveyance, or enjoin a party from prosecuting his legal right on account of an existing equity against the existence of the legal right, or of a fraud committed on the party, our laws will, by considering the act to be done, which in equity ought to be done, grant as adequate relief as a court of chancery could by forbidding the party to recover a right which in equity he is considered as having relinquished. The decisions of the courts of equity on the statute of frauds and perjuries, proceed on the principle, not that the right passes by the parol agreement, but that wherever one. party has in part executed it, by payment of money, taking possession and making valuable improvements, the conscience of the other is bound to carry it into execution; and equity will compel him to do it. It cannot be questioned, that the execution of an agreement in writing, not under seal, respecting an incorporeal right, would be decreed to be executed by a deed under seal. It would be a fraud on Aspenshade, after the change of route at the request of Joseph Le Fevre, and for his benefit and advantage, staked out by himself, and the pipes laid by himself, to defeat the right and the possession thus acquired, after the expense to which Aspenshade had been put, and after the long acquiescence in such possession. But the fraud would be still greater on the plaintiff, a purchaser for a valuable consideration, with the possession notorious, and notoriously enjoyed for years. If Joseph Le Fevre had brought a suit against Daniel Le Fevre, chancery would have granted an in junction; if so, courts of common law would not suffer him to take the law into his hand and destroy the pipes which had been laid, not only by his own acquiescence, but with ( his own hand, and for his own benefit. We are not without authority, if authority were required, to establish so plain a principle of justice and of equity, for in 2 Eq. Abr. 522, we have the very case. A, diverted a water course, which put B to great expense in laying of sooths, &c. and the diversion being a nuisance to B, he brought his action, and an injunction was decreed on a bill exhibited for that purpose; it being proved, that B, did see the work when it was carrying on, and connived at it without shewing the least disagreement, but rather the contrary. Short v. Taylor, in Lord Somers’s time, was cited, which was thus: Short built a fine house; Taylor began to build another, but laid part of his foundation on Shorfs land; Short seeing this, did not forbid him, but on the contrary, very much encouraged it, and when the house was built he brought an action, and Lord Somers granted an injunction, and said it was but just and reasonable; for being a nuisance, every continuance is a fresh nuisance, and so he would be perpetually liable to actions, which would be hard when he was encouraged by the party himself. And so was the law laid down in an action for nuisance, tried before the present Chief Justice, at a Circuit Court at Carlisle. -v. Ege. But this is likened by the counsel of the defendants in error to a parol license, which may be revoked. A parol license may be.revoked, but if it has been acted upon and the party put to expense, it cannot be recalled, and the party made a wrong-doer. 2d. As to the objection, that this evidence was in direct contradiction to the deed, the evidence was not offered for that purpose, but to shew a substitution of another spot, as being more for the mutual benefit of both parties. If this had not been carried into effect, the evidence would not have been admissible; but where the situation of the parties is altered, by acting upon the new agreement, as here, the evidence is proper; for a party may be admitted to prove by parol evidence, that after signing a written agreement the parties ' made a verbal agreement, varying the former ; provided their variations have been acted upon, and the original agreement can no longer be enforced without a fraud on one party. On every principle of law, justice, and equity, this. evidence ought to have been received, and the judgment must be reversed. Judgment reversed.

Opinion by Judge Blatt, Bernard Marks (Marks) had been employed continuously by the Commonwealth of Pennsylvania from January 3, 1935, first in the Department of Revenue and later in the Department of Justice. He was employed as an accounting advisor for the Department of Justice’s “Tax Litigation Unit” when, on December 17, 1971, a letter was signed and mailed to him by then Attorney General J. Shane Creamer, in which Marks was informed that he was being furloughed because his position was no longer to be carried by the Depart ment of Justice. On January 12, 1972, Marks wrote a letter to the Attorney General asking to be advised, of his employment status. The Attorney General replied on January 14, 1972, saying basically what he had said in his letter of December 17. On February 7, 1972, Marks filed an appeal with the Civil Service Commission which, following a hearing, was dismissed because it had not been timely filed. We must affirm the Commission. Section 802 of the Civil Service Act, Act of August 5, 1941, P. L. 752, as amended, 71 P.S. §741.802, provides that a civil service employee may be furloughed if necessitated by a reduction in force. Section 950 of the Act, 71 P.S. §741.950, provides: “Every person in the classified service shall be furnished with written notice of any personnel action taken with respect to him pursuant to the provisions of this act. Such notice, a copy of which shall be submitted to the commission, shall be furnished within time limits prescribed by the rules of the commission. The notice shall in the case of the permanent separation, suspension for cause, or demotion of a regular employe set forth the reason or reasons for the action.” The Commission’s regulation at 4 Pa. Code §105.3, includes a similar provision as to the inclusion of specific reasons in notices of personnel actions, but it also requires that such reasons be included with furlough notices. The Commission found that the letter mailed to Marks on December 17 was sufficient notice of his furlough and that, if he desired to appeal the action taken, he was required by §951 of the Civil Service Act, 71 P.S. §741.951, to do so within twenty days of the receipt of notice. It is Marks’ argument that the letter was not sufficient notice because specific reasons for the furlough were not given. As we read §950 of the Civil Service Act, it does not require that reasons for personnel actions be given in a furlough case. And, whether or not the Commission’s rule, which seems to require the statement of reasons, even though the law makes no such requirement, is valid or not, it is clear that reasons were given in the letter of December 17. Marks contends, however, that the letter was incomplete because it should have contained instructions as to his rights of appeal. The basis for this contention is Director’s Letter No. 75 of the Commission, dated March 26, 1968, which suggests that portions of the Civil Service Act pertaining to appeals be included with all notices of personnel actions, including furloughs. We find this letter to be directory rather than mandatory, and we can find no authority in the Civil Service Act to make such a requirement a mandatory part of a personnel action notice. The twenty-day limit prescribed for an appeal to the Commission must be strictly enforced. Pettit v. Civil Service Commission, 4 Pa. Commonwealth Ct. 124, 285 A. 2d 223 (1971). The latest Marks could have received the December 17 letter was January 12, which was the day he wrote his letter of inquiry as to status to the Attorney General. This letter, of course, was not an appeal, and the Commission therefore acted correctly in dismissing the appeal filed on February 7, 1972. In so holding, however, we must note that this decision does not affect any rights which Marks may have as a fur loughed employe under §802 of the Civil Service Act, 71 P.S. §741.802 or under the Commission’s regulations at 4 Pa. Code §101.1. Because of the above reasons therefore, we issue the following Order Now, January 30, 1973, the Order of the Civil Service Commission is affirmed and the appeal of Bernard Marks is dismissed. The letter read, in pertinent part, as follows: “Effective with the 7th of January 1972 you will be furloughed from the Department of Justice as an Accounting Advisor in Corporate Tax Litigation. Your position is no longer to be carried on the Department’s complement since the responsibility for Tax Litigation has been transferred to the Department of Revenue. “I have notified the Civil Service Commission of this action; and, they will place your name on the furloughed employes list commencing with the 3rd of January 1972. “I wish to thank you for your service during your tenure with the Department; and, wish you every success for the future.”

Opinion by Me. Justice Eagen, This appeal is from a final decree of the Court of Common Pleas of Allegheny County sitting in equity. Plaintiff asked the court to set aside a real estate conveyance as a violation of the Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P. L. 1045, 39 P.S. §§351-363, to declare void a supplemental agreement allegedly induced by fraud, and to grant plaintiff a money decree for work done under both the supplemental agreement and the basic contract as well as for loss of profits and punitive damages. Defendant denied that there was fraud involved in either the real estate conveyance or the supplemental agreement, denied that it owed plaintiff any sum under the basic contract and supplemental agreement, claimed a set-off for uncompleted work and counterclaimed for delay damages. The court below refused the request for a reconveyance under the Fraudulent Conveyance Act, supra, refused to declare the supplemental agreement void, dismissed plaintiff’s claims for lost profits and punitive damages, denied defendant a set-off for uncompleted work, dismissed the counterclaim for delay damages and decreed that defendant should pay plaintiff $127,759.54 (the balance due on the basic contract price together with extras) plus interest. Defendant appeals. Briefly, the background facts of this case are as follows. On August 16, 1961, the plaintiff, Universal Builders, Inc. (hereinafter Universal), entered into a written contract with the defendant, Moon Motor Lodge, Inc. (hereinafter Moon), for the construction of a motel and restaurant in Allegheny County. The contract provides, inter alia, that all change orders must be in writing and signed by Moon and/or the Architect and that all requests for extension of time must be made in writing to the Architect. The contract specifications also required that a certain proportion of a re-inforcing substance be used in the building walls. The masonry sub-contractor failed to use the specified proportion. When this defect was discovered, Moon magnified its importance, withheld from Universal a progress payment to which Universal was entitled, threatened to expel Universal from the job and thereby induced Universal to enter into the supplemental agreement. The supplemental agreement, dated March 27, 1962, provides, inter alia, that Universal will pay Moon |5000 as damages for the absence of the reinforcing material, that Universal will perform certain additional work at no additional cost to Moon, that the date for completion of the project is extended from April 1, 1962, to July 1, 1962, and that liquidated damages at a specified rate per day will be assessed for delay. Universal substantially completed performance on September 1, 1962, and left the construction site on October 1, 1962. After filing this suit, Universal went into bankruptcy. The trustee prosecuted this action and won a final decree in the lower court. Before reaching the contract questions, it is necessary to consider several preliminary matters. Moon contends that Universal has unclean hands because Joseph V. Pizzuti, an officer and executive of Universal during the performance of the contract, allegedly manufactured evidence to support Universal’s case. This is not a sufficient ground to deny Universal relief for three reasons. First, although the manufacturing of evidence by a plaintiff certainly might bar recovery under the clean hands doctrine, see Gaudiosi v. Mellon, 269 F. 2d 873 (3d Cir. 1959) and Mas v. Coca-Cola Co., 163 F. 2d 505 (4th Cir. 1947), in the instant case the evidence was manufactured not by the plaintiff but by an officer of the plaintiff corporation, now in bankruptcy. The attribution of one party’s unclean hands to another party is not based on simple agency principles. The applicable law has been outlined by the late Judge Learned Hand: “Whenever the question has come up, it has been held that immoral conduct to be relevant, must touch and taint the plaintiff personally; that the acts of his agents, though imputed to him legally, do not impugn his conscience vicariously. Vulcan Detinning Company v. American Can Company, 72 N.J. Eq. 387, 391, 392, 67 A. 339 . . . [other citations omitted]. On principle, so far as there is any principle about the whole matter, it seems to me that a plaintiff should not be so charged. The doctrine is confessedly derived from the unwillingness of a court, originally and still nominally one of conscience, to give its peculiar relief to a suitor who in the very controversy had so conducted himself as to shock the moral sensibilities of the judge. . . . The reasons which justify imputing liability to a principal for his agent’s acts, whatever they are, have nothing in common with such a notion. It would be monstrous that a man’s conscience should bear the sins of those he employs, however liable he may be for their acts, and a doctrine which stands upon moral wrongdoing must clear itself of that confusion, or adopt another form. While it stands upon the court’s repugnance to the suitor personally, it must confine itself to his personal delinquencies.” Art Metal Works, Inc. v. Abraham & Straus, 70 F. 2d 641, 646 (2d Cir.) (dissenting opinion), cert. denied 293 U.S. 596, 55 S. Ct. 110 (1934), adopted as opinion of the court 107 F. 2d 944 (2d Cir.) (per curiam), cert. denied 308 U.S. 621, 60 S. Ct. 293 (1939). In this case, appellant offers no persuasive reasons for imputing Pizzuti’s conduct to the bankrupt corporation, nor do we see any such reasons ourselves. Second, assuming for the sake of argument that Pizzuti’s conduct should be imputed to Universal, the application of the clean hands doctrine to deny relief is within the discretion of the chancellor. Shapiro v. Shapiro, 415 Pa. 503, 204 A. 2d 266 (1964). Where the rights of innocent parties are involved, the doctrine should be applied cautiously. See Zweifach v. Scranton Lace Co., 156 F. Supp. 384 (M.D. Pa. 1957), and the doctrine should not be invoked if its application will produce an inequitable result. Hartman v. Cohn, 350 Pa. 41, 38 A. 2d 22 (1944). To deny plaintiff recovery in this case would result in the enrichment of Moon at the expense of innocent creditors of the bankrupt Universal. This is an inequitable result and thus we are not persuaded that the clean hands doctrine should be applied. Third, although it has been said that the clean hands doctrine applies in courts of law as well as in courts of equity, Olmstead v. United States, 277 U.S. 438, 484, 48 S. Ct. 564, 574 (dissenting opinion) (Brandeis, J.) and Z. Chaffee, Some Problems of Equity (1950), it generally has been held that the doctrine operates only to deny equitable, and not legal, remedies. Merchants Indemnity Corp. v. Eggleston, 37 N.J. 114, 179 A. 2d 505 (1962); Manufacturers’ Finance Co. v. McKey, 294 U.S. 442, 55 S. Ct. 444 (1935); 30 C.J.S., Equity, §98 at pp. 1037-38 (1965). The plaintiff in this case was granted, not a special equi table remedy, but only a money decree. In effect, Universal received what it would have if the action had been at law in assumpsit. We are not persuaded that the clean hands doctrine should be applied to deny plaintiff this legal right. Next Moon contends that Pizzuti’s conduct in manufacturing evidence should disqualify him as a witness, just as if he had been convicted of perjury. If Pizzuti’s testimony is completely disregarded, Universal’s case against Moon collapses. Moon’s argument that Pizzuti should be disqualified as a witness completely ignores the Act of May 23, 1887, P. L. 158, §4, 28 P.S. §314, which provides: “In any civil proceeding before any tribunal of this Commonwealth, or conducted by virtue of its order or direction, no liability merely for costs nor the right to compensation possessed by an executor, administrator or other trustee, nor any interest merely in the question on trial, nor any other interest, or policy of law, except as is provided in section five of this act, shall make any person incompetent as a witness.” (Emphasis added.) None of the exceptions apply. See Act of May 23, 1887, P. L. §5, 28 P.S. §§315, 317, 321, 322, 323. Finally, recognizing that it is discretionary with a court to accept or reject the testimony of a witness who is found to he lying in part, e.g., Luckenbach v. Egan, 418 Pa. 221, 224, 210 A. 2d 264, 265-66 (1965) and Commonwealth v. Ieradi, 216 Pa. 87, 64 A. 889 (1906), Moon contends that the lower court abused its discretion in not rejecting all of Pizzuti’s testimony. There is no merit in this argument. The lower court certainly had sufficient grounds to exercise its discretion. It noted that Pizzuti’s financial interest in the outcome of the litigation is remote. The lower court also had the opportunity to observe the witness and to compare his testimony with other evidence for purposes of corroboration. We find no abuse of discretion in the lower court’s consideration of Pizzuti’s testimony. With reference to the merits, Moon urges that the lower court erred in several respects. First Moon submits that the chancellor erred in not enforcing the contract provision that extras would not be paid for unless done pursuant to a written, signed change order. Unless a contract is for the sale of goods, see the Uniform Commercial Code—Sales, the Act of April 6, 1953, P. L. 3, §2-209(2), as amended, 12A P.S. §2-209 (2), it appears undisputed that the contract can be modified orally although it provides that it can be modified only in writing. E.g., Wagner v. Graziano Construction Co., 390 Pa. 445, 136 A. 2d 82 (1957); 4 Williston on Contracts, §591 (3d ed. 1961); 6 Corbin on Contracts, §1295 (1962); Restatement, Contracts, §407 (1932). Construction contracts typically provide that the builder will not be paid for extra work unless it is done pursuant to a written change order, yet courts frequently hold that owners must pay for extra work done at their oral direction. See generally Annot., 2 A.L.R. 3d 620, 648-82 (1965). This liability can be based on several theories. For example, the extra work may be said to have been done under an oral agreement separate from the written contract and not containing the requirement of a written authorization. 3A Corbin on Contracts, §756 at p. 505 (1960). The requirement of a written authorization may also be considered a condition which has been waived. 5 Williston on Contracts, §689 (3d ed. 1961). On either of the above theories, the chancellor correctly held Moon liable to pay for the extras in spite of the lack of written change orders. The evidence indicates that William Berger, the agent of Moon, requested many changes, was informed that they would involve extra cost, and promised to pay for them. In addition, Berger frequently was on the construction site and saw at least some of the extra work in progress. The record demonstrates that he was a keen observer with an extraordinary knowledge of the project in general and the contract requirements in particular. Thus it is not unreasonable to infer that he was aware that extra work was being done without proper authorization, yet he stood by without protesting while the extras were incorporated into the project. Under these circumstances there also was an implied promise to pay for the extras. C. I. T. Corp. v. Jonnet, 419 Pa. 435, 214 A. 2d 620 (1965), does suggest that such non-written modifications are ineffective unless the contract provision requiring modifications to be in writing was first waived. That case, however, is misleading. Although it involved a contract for the sale of movable bar and restaurant equipment, which is a contract for the sale of “goods” controlled by the Uniform Commercial Code —Sales, supra, §2-101 et seq., as amended, 12A P.S. §2-101 et seq., it overlooks that legislation, in particular §2-209, which provides: “(2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. (3) The requirements of the Statute of Frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions. (4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3) it can operate as a waiver. (5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.” From subsection (5) it can be inferred that a provision in a contract for the sale of goods that the contract can be modified only in writing is waived, just as such a provision in a .construction contract is waived, under the circumstances described by Restatement, Contracts, §224 (1932), which provides: “The performance of a condition qualifying a promise in a contract within the Statute [of Frauds or in a contract containing a provision requiring modifications to be in writing (§407)] may be excused by an oral agreement or permission of the promisor that the condition need not be performed, if the agreement or permission is given while the performance of the condition is possible, and in reliance on the agreement or permission, while it is unrevoked, the promisee materially changes his position.” Obviously a condition is considered waived when its enforcement would result in something approaching fraud. 5 Williston on Contracts, §689 at pp. 306-07 (3d ed. 1961). Thus the effectiveness of a non-written modification in spite of a contract condition that modifications must be written depends upon whether enforcement of the condition is or is not barred by equitable considerations, not upon the technicality of whether the condition was or was not expressly and separately waived before the non-written modification. In view of these equitable considerations underlying waiver, it should be obvious that when an owner requests a builder to do extra work, promises to pay for it and watches it performed knowing that it is not authorized in writing, he cannot refuse to pay on the ground that there was no written change order. Focht v. Rosenbaum, 176 Pa. 14, 34 A. 1001 (1896). When Moon directed Universal to “go ahead” and promised to pay for the extras, performance of the condition requiring change orders to be in writing was excused by implication. It would be manifestly unjust to allow Moon, which mislead Universal into doing extra work without a written authorization, to benefit from nonperformance of that condition. Next Moon submits that the lower court erroneously dismissed its counterclaim for delay damages. The lower court denied Moon any recovery for the delay because it resulted from Moon’s own acts in ordering many changes. There is authority for this position. E.g., Hood v. Meininger, 377 Pa. 342, 350, 105 A. 2d 126, 130 (1954) (cited by lower court); Pittsburgh Iron and Steel Engineering Co. v. National Tube Works Co., 184 Pa. 251, 39 A. 76 (1898); Lilly v. Person, 168 Pa. 219, 32 A. 23 (1895). In this case, however, the contract expressly conditions the allowance of any time extension on the submission of a written request to the Architect. This condition specifically applies to delays caused by the owner’s, i.e., Moon’s, own acts. Article 18 of the General Conditions provides: “If the contractor be delayed at any time in the progress of the work by any act or neglect of the Owner or the Architect, or of any employee of either, or by any separate contractor employed by the Owner, or by changes ordered in the work . . . then the time of completion shall be extended for such reasonable time as the Architect may decide. No such extension shall be made for delay occurring more than seven days before claim therefor is made in writing to the Architect. . . .” Consequently the case authority on which the lower court based its decision is not controlling. The evidence that Universal conformed with the procedure required by Article 18 is slight; what evidence there is has been largely discredited. However a condition precedent such as the one contained in Article 18 can of course be waived, 3A Corbin on Contracts, §756 at 507-08 (1960), and there is evidence to support at least a partial waiver. By executing the Supplemental Agreement (which extends the time of substantial completion from April 1, 1962, to July 1, 1962) without reference to the procedure established by Article 18, Moon certainly waived Article 18 with reference to that extension. It is not apparent, however, that this waiver applies to subsequent delays. Apart from the execution of the supplemental agreement, there is no evidence that Moon expressly or impliedly promised that the condition precedent contained in Article 18 would not apply to subsequent delays. We think it does so apply. With reference to the assessment of delay damages, we agree with the lower court that the liquidated damage provision in the supplemental agreement is void. Consequently, Moon is entitled only to the actual damages caused by the delay from July 1, 1962 (the date set for completion in the Supplemental Agreement) to September 1, 1962 (the date when the contract was substantially completed). This is computed as follows: $69,869. (The loss of earnings attributable to the delay of five months from April 1,1962 to August 31, 1962, according to Moon’s Exhibit L, prepared by Arnold I. Levine, C.P.A. of J. K. Lasser & Co., Pittsburgh, Pa.) X 2/5ths (Eepresenting the two month delay) $27,946.60 -• 5,000.00 (check of July 5, 1962, given by Universal to Moon as delay damages) $22,946.60 Finally, we have carefully considered the record and we agree with the lower court that there was sufficient evidence to establish the amount of Universal’s claim for extras and that there was not sufficient evidence to establish Moon’s set-off claim for uncompleted work. The decree of the lower court therefore was correct, except insofar as it failed to allow Moon’s counterclaim for delay damages, as before indicated, for the period from July 1, 1962, to September 1, 1962. Decree vacated and record remanded for entry of a decree consonant with this opinion. Each party to bear own costs. Since plaintiff’s requests for equitable relief were denied, equity actually does not have what is sometimes called “retained jurisdiction” to grant incidental legal relief. Cella v. Davidson, 304 Pa. 389, 156 A. 99 (1931); Ahl's Appeal, 129 Pa. 49, 61-64, 18 A. 475, 477 (1889); Lare v. Young, 153 Pa. Superior Ct. 28, 33 A. 2d 662 (1943). This irregularity is not, however, a jurisdictional defect which we will raise sua sponte. Carelli v. Lyter, 430 Pa. 543, 244 A. 2d 6 (1968). Since the defendant did not either below or on appeal question whether the action should have been brought at law, we will not consider that question. E.g., Rosenfeld v. Rosenfeld, 390 Pa. 39, 133 A. 2d 829 (1957); Randall’s Estate, 341 Pa. 501, 19 A. 2d 272 (1941). It should be noted that in this ease defendant’s failure to preliminarily object to plaintiff’s complaint on the ground that the action should have been brought at law was not itself sufficient to waive the right to jury trial because on the face of the complaint the action properly was in equity. When it became apparent that plaintiff was not entitled to any equitable relief, however, defendant’s failure to assert its right to jury trial was a waiver. See Carelli v. Lyter, supra at 544-45, 244 A. 2d at 7. Historically this has been the rule. See Act of June 7, 1907, P. L. §§1, 3, 12 P.S. §§1227, 1229 (now obsolete).

Opinion by Mr. Justice Pomeroy, On February 9, 1966, Frank Sisak (appellant) was found guilty of burglary and larceny after trial by jury in the Court of Oyer and Terminer of Luzerne County. After his motion for a new trial was denied, he was sentenced to ten to twenty years imprisonment. The judgment of sentence was affirmed by the Superior Court per curiam, Judge Hoffman filing a dissenting opinion in which Judge Spaulding joined. Commonwealth v. Sisak, 211 Pa. Superior Ct. 255, 235 A. 2d 630 (1967). We granted allocatur. As we view this appeal, the question presented is whether the trial court committed reversible error in failing to instruct the jury that it could determine whether one of the Commonwealth’s witnesses was an accomplice of the appellant and, secondly, that if it found the witness to be an accomplice, it should view his testimony as tainted and give it careful scrutiny. It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter’s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effect after being specifically requested to do so. Commonwealth v. Turner, 367 Pa. 403, 410, 80 A. 2d 708 (1951). At appellant’s trial, the principal witness for the Commonwealth was one Arthur Dwyer. The facts of the case as testified to by Dwyer are as follows: Appellant, whom Dwyer had never met before, came to Dwyer’s home with a woman whom he introduced as his wife on the Monday preceding the Thursday on which the burglary was committed. Although he was in financial difficulties and his quarters were small, Dwyer permitted the appellant and his female companion to stay with him and his wife Monday night. The following day Dwyer located a place for them to stay with a friend of his, and helped them move to the friend’s apartment. He did not see appellant again until 12:30 a.m. on Friday following the evening during which the burglary was committed. When appellant and his female companion arrived at Dwyer’s home early Friday morning, appellant was carrying a suitcase, a radio, an iron and an electric clock. Immediately upon arriving, appellant stated to Dwyer, “I think we hit the jackpot.” The witness and appellant then proceeded to examine the contents of the suitcase; it contained money, jewelry and securities which had been stolen in the burglary. Appellant gave Dwyer $300.00 of the stolen money and left with him all of the jewelry. From the door of his home, the witness watched appellant dispose of the suitcase and the strongbox which had contained the securities, after which they congenially drank beer together. In reciting these facts, the witness expressed no surprise at seeing appellant on the doorstep in the middle of the night laden with stolen property. Although he stated that he had originally refused to take the money, he subsequently accepted it and used it to pay off some of his obligations. Appellant contends that the above facts demonstrate that Dwyer was in fact an accomplice; on the basis of these facts, appellant’s counsel requested the trial court to instruct the jury that Dwyer was an accomplice and that Dwyer’s testimony, coming from a corrupt source, should be given careful scrutiny. The trial court, after hearing this testimony, concluded that the facts were clear and that this witness was not an accomplice. Accordingly, it refused to give the requested charge. In so doing, the court relied upon the general rule that “when the facts with respect to the participation of a witness in the crime for which the defendant is on trial are clear and undisputed, it is for the court to determine whether or not he was an accomplice, but where the facts are in dispute, or different inferences might reasonably be drawn therefrom, the question whether or not a witness was an accomplice is for the jury.” Commonwealth v. Brown, 116 Pa. Superior Ct. 1, 12, 175 Atl. 748 (1934); Commonwealth v. Kayfield, 40 Pa. D. & C. 2d 689 (Q.S. Luzerne Co., 1965). While we accept this rule, we cannot agree that the only reasonable inference which can be drawn from the above facts is that the witness was not an accomplice. As we view them, the facts support an inference that Dwyer participated with appellant in planning and arranging for the burglary in advance of its commission. If he did so participate, then, of course, Dwyer would have been an accessory before the fact. See Common wealth v. Finkelstein, 191 Pa. Superior Ct. 328, 156 A. 2d 888 (1959) and Commonwealth v. Darnell, 179 Pa. Superior Ct. 461, 116 A. 2d 310 (1955). The Penal Code specifically provides that, “Every . . . accessory before the fact, to any felony . . . may be indicted, tried, convicted, and if no punishment is provided, may be punished in all respects as if he were the principal felon.” Act of June 24, 1939, P. L. 872, §1105, 18 P.S. §5105. The general rule for determining whether a witness is an accomplice is “whether or not he could be indicted for the crime for which the accused is charged.” Commonwealth v. Hopkins, 165 Pa. Superior Ct. 561, 564, 69 A. 2d 428 (1949). Consequently, an accessory before the fact is by definition an accomplice. If in the present case the facts could support a reasonable inference that Dwyer was an accessory before the fact, they must necessarily support an inference that he was an accomplice within the meaning of the corrupt source rule in Commonwealth v. Turner, supra. We do not hold that the facts require the inference that Dwyer was an accomplice, but only that such an inference was permissible. Therefore, under the rule set forth in Brown, supra, it was for the jury to determine whether Dwyer was an accomplice and to weigh his testimony in the light of that determination and appropriate instructions from the court. The possibility of such deliberations was foreclosed by the court’s failure to instruct the jury that they might find Dwyer an accomplice whose testimony was subject to the corrupt source rule. The dissenting opinion concedes that in the present case the court’s failure so to charge was error. It concludes, however, that that error cannot now he considered because no exception was taken to the court’s charge by defense counsel and because, in the view of the minority, the error was not basic and fundamental. The special-exception rule, as has so often been stated, is designed to prevent a party from sitting silently by, taking his chances on a favorable verdict, and then, in the event of an unfavorable verdict, complaining of matters which could have been corrected at trial had they been brought to the attention of the court in a timely fashion. See, e.g.: Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968); Segriff v. Johnston, 402 Pa. 109, 166 A. 2d 496 (1960). In the present case, however, appellant’s counsel did not remain silent and await the verdict. Rather, he requested five points for charge addressed to the accomplice rule. Each of these points was refused, and defendant was granted an exception. The formal submission of requested points for charge serves the same function as a request for additional or different instructions at the close of the court’s charge. Both procedures present the issue to the trial judge. Both enable the court to avoid error by charging on the issue presented. In the case at bar, it would serve no useful purpose to require the defendant to request additional instructions on the accomplice rule since the court had already rejected points for charge because of its belief that as a matter of law Dwyer was not an accomplice. We hold, accordingly, that under these circumstances the failure of the trial court to instruct the jury on the accomplice rule was error. Because the jurors might well have concluded, under proper instructions, that Dwyer was an accomplice whose testimony was of little value, the error was prejudicial to appellant. In this view of the case we are not called upon to consider, as we would have been had appellant remained silent, whether or not the error of the court was “basic and fundamental.” The order of the Superior Court and the judgment of the Court of Oyer and Terminer are reversed, and a new trial is granted. Mr. Justice Roberts concurs in the result. Mr. Justice Eagbn dissents. The requested points for charge were as follows: “1. The main witness for the prosecution is the actual perpetrator of the crime and as such is an accomplice, conspirator and/or co-defendant along with Francis Sisak. “2. See Oomm. vs. Darnall, 179 Pa. Superior 461, and as such, his uncorroborated testimony should be criticized and looked at from every angle. You are to test the question of its truth or falsity by every test which occurs to you. Freedom vs. U.S., 274 Fed. 603 and see also, Comm. vs. Howe, 84 Pa. Super. 295. “3. The testimony comes from a tainted source and while you are considering it, remember from what kind of witness the testimony comes. Freedman vs. U.S., 274 Fed. 603. See also Comm. vs. Cunningham, 161 Pa. Super. 276. “4. You should give far greater care and scrunity [sic] to the tainted testimony of the accomplice in light of testimony exculpating the defendant from witnesses of unsullied reputation. Arnold vs. U.S., 94 Fed. 2d 499. “5. You, the Jury, are alone, the finders of fact and must determine whether on the basis of the aforementioned tests, the uncorroborated testimony of the alleged accomplice is credible and, in addition, even finding it credible, you are cautioned against putting too much reliance on the testimony of the accomplice. See Comm. vs. Howe, 84 Pa. Super. 295; see also Comm. vs. Elliott, 292 Pa. 16. “You are again reminded that the testimony of the alleged accomplice is from a corrupt source. See Comm. vs. Olitzky, 184 Pa. Super. 144.” The court’s view on this issue is set forth in its opinion on the motion for a new trial. The Commonwealth advances, as a ground for affirmance, defense counsel’s minor deviation from the local court rule. The deviation occurred when defense counsel, unfamiliar with the local rules, submitted his points for charge after the closing arguments, rather than before. The trial court, however, was evidently willing to relax its rule in this instance, for it did not mention this deviation as a reason for refusing the points for, charge. While the rule is a salutary one, it is primarily for the benefit of the court itself, and relaxation of the rule was well within its discretion. The Commonwealth was not prejudiced thereby and we are not willing to rest an affirmance on that ground. To the same effect, see Commonwealth v. Jones, 213 Pa. Superior Ct. 504, 508, 247 A. 2d 624 (1968). “[A]n accomplice is one who ‘knowingly and voluntarily cooperates with of aids another in the commission of a crime.’ ” See also Commonwealth v. Hurt, 163 Pa. Superior Ct. 232, 60 A. 2d 828 (1948). The general rule that the trial court need not remold incorrect points for charge is not applicable in this case. Defendant’s requested points were in part erroneous, since they would have taken from the jury the question of whether Dwyer was an accomplice. That error was not adverted to by the trial court, however, and, as noted above, the court’s refusal to give the requested points was based on its erroneous conclusion that Dwyer could not be found an accomplice under the facts presented. Moreover, we note that the rule as to the remolding of points for charge appears to have originated in the case of Commonwealth v. Girardot, 107 Pa. Superior Ct. 274, 163 Atl. 362 (1932). There, the point refused was said to be too broad in that it requested the jury to consider any Commonwealth witness whom they found to have been an accomplice as a “self-confessed criminal.” The Superior Court, in upholding the refusal of this requested point, stated (at 276-7) : “The charge of the court and the answers to .other points . . . were such as to leave no doubt in the minds of the jury as to the caution, careful scrutiny and critical examination which should be given by them in considering the testimony of accomplices, and the corrupt source from which it came. The court is only required to answer the points as submitted. It is not its duty to remold them; and when the law has been correctly stated in the charge and answers to the points presented, the defendant has no just cause for complaint.’’ (Emphasis supplied) The implication of this holding is that a party whose requested point, although erroneous, alerts the trial judge to an important issue in the case, does have just cause for complaint if the law to which that point pertains is not otherwise correctly stated in the charge.

Mr. Justice Paxson delivered the opinion of the court, November 17th 1881. It appears, from the case stated, that when the plaintiff was first elected chief commissioner of highways for the city of Philadelphia, the salary of the office was $4,000 per annum. Subsequently, and during his first term of said office, the salary was reduced to $3,600. This reduction was acquiesced in by the plaintiff, no one doubting the power of councils to make it. During his second term councils increased his salary to $4,500, which increase the city declined to pay, and it forms the subject of this contention. The court below held that the plaintiff was a public officer within the meaning of section 13 of article III. of the Constitution, which declares that, “No law shall extend the term of any public officer, or increase or diminish his salary, or emoluments, after his election or appointment.” We need not discuss the question whether the plaintiff is a public officer, as it is not necessarily involved in the case. The error into which the learned judge below inadvertently fell was in applying the above section of the constitution to this case. The language of that instrument is: “ No law shall . . . increase or diminish his salary,” &c. The word “law” has a fixed and definite meaning. In its general sense it imports “ a rule of action ” ; in the particular sense in which we are now considering it, it means, “ a rule of civil conduct, prescribed by the supreme power in the state, commanding what is right, and prohibiting what is wrong.” Blackstone. A law is an emanation from the supreme power, and cannot originate elsewhere. It is a rule which every citizen of the state is bound to obey. The ordinance of councils by which the plaintiff’s salary was increased is not a law, and therefore does not come within the constitutional prohibition. It is a mere local regulation for the city of Philadelphia. It has perhaps the force of law in the community to be affected by it, but it is not prescribed by the supreme power, it concerns only a subdivision of the state, and does not rise to the dignity of a law. There is no ambiguity in this section of the Constitution. It is clear and explicit. But when we consider it in connection with the other portions of the 3rd article, there is no room for doubt. It is the article upon “ Legislation,” and is very elaborate. It contains thirty-three sections, and is throughout a restraint upon the powers of the general assembly. iHmposes numerous restrictions upon the mode by which’ laws shall be passed, and prohibits legislation upon a large variety of subjects. When, therefore, section 13 declares that “ no law' shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment,” the obvious meaning is that the General Assembly shall not pass such a law. There is nothing in the article, even by implication, that would justify us in extending the word “ law ’’ to the ordinances of a city. Such an interpretation would not be expounding the constitution ; it would be altering it. The judgment is reversed and judgment is now entered in favor of the plaintiff for the sum of $875.

HOFFMAN, Judge: This is an appeal from the order and judgment entered in favor of appellee and against appellants in the amount of $52,100.00. Appellants contend that the trial court erred in (1) sua sponte ordering a new trial on the issue of damages, (2) failing to find that appellee had released appellants from liability, (3) concluding that appellants had breached implied warranties, (4) permitting appellee to amend his complaint after completion of the trial, (5) causing delays which prejudiced appellant, (6) failing to consider appellee’s duty to mitigate damages, (7) rejecting appellants’ evidence as to the market value and costs of repair of the house, (8) awarding an excessive amount of damages. We disagree and, accordingly, affirm the lower court’s order and judgment. Appellee filed this action in assumpsit in 1972, alleging that appellants had defectively constructed his house. In 1970, appellee entered into an agreement of sale in which he agreed to buy an as yet unconstructed house from appellants, Orleans Construction Company and Thomas Vesey, its builders and vendors, for $41,000.00. Prior to settlement, appellee discovered water in the basement of the home and was assured by appellants that they would correct the problem. See Trial Court Opinion, June 11, 1984 at 1. Despite this assurance, the basement continued to flood and water collected in the house’s lawn and driveway. See Lower Court Opinion, March 14, 1986 at 2. Appellants told appellee that regarding the property might cure the problem and, in accordance with that diagnosis, dumped two piles of dirt on appellee’s lawn. However, the regrading was never performed and appellee had to have the piles of dirt removed. Id. On April 7, 1983, the parties entered into an agreement that appellants would complete an agreed-upon list of repairs to the house, including repair of the basement, and, in return, appellee would relinquish his legal claims against appellants. Appellants failed to complete all of the repairs, and those that they did complete were not performed in a reasonably workmanlike manner. Id. at 3. Trial was held on June 8, 1983. The lower court, sitting without a jury, held that appellants were liable to appellee for the defects that created the wet basement problem. Id. at 8. The court also found, however, that it did not have sufficient information to determine damages pursuant to the formula then recently announced in Gadbois v. Leb-Co. Builders, Inc., 312 Pa.Superior Ct. 144, 458 A.2d 555 (1983) and sua sponte ordered a new trial limited to the issue of damages. Id. at 11-12. Appellants filed timely post-trial motions, but the lower court did not rule on those motions until the new trial was completed. That trial occurred on May 1, 1984. In an opinion dated June 11, 1984, the trial court entered judgment in favor of appellees and against appellants in the amount of $52,100.00. Appellants timely filed further post-verdict motions. On April 23, 1985, the lower court denied all of appellants’ post-verdict motions, and this appeal followed. Appellants first contend that the trial court abused its discretion in sua sponte ordering a new trial limited to the issue of damages. Appellants argue that as the court specifically found that appellee had not offered sufficient evidence to determine damages, judgment should have been entered against appellee. We disagree. The granting of a new trial is within the sound discretion of the trial court, and a decision to do so will not be reversed on appeal absent a showing that the trial court committed an error of law or palpably abused its discretion. See Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 517 (1970); George I. Reitz & Sons, Inc. v. Donise Enterprise, Inc., 319 Pa.Superior Ct. 76, 81, 465 A.2d 1060, 1063 (1983). A trial court may, in its discretion, order a separate trial on a separate issue in a cause of action in furtherance of convenience or to avoid prejudice. See Pa.R.Civ.P. 213(b). See also Schaefer v. American States Insurance Co., 272 Pa.Superior Ct. 67, 71, 414 A.2d 672, 673 (1979). Additionally, a trial court may grant a new trial on the issue of damages alone where the issue of liability has been fairly determined and the issue of damages is readily separable. See Stokan v. Turnbull, 480 Pa. 71, 75, 389 A.2d 90, 93 (1978); Reid v. Oxendine, 275 Pa.Superior Ct. 548, 556, 419 A.2d 36, 40 (1980). Here, in order to “avoid speculation” the lower court ordered a new trial on damages after it had found against appellants on the issue of liability. See Lower Court Opinion, supra at 5. Contrary to appellants' assertion that the lower court found that appellee had failed to prove damages, the court instead found that neither party had supplied enough information to determine damages pursuant to the then recently announced formula in Gadbois v. Leb-Co. Builders, Inc., supra. See Lower Court Opinion, supra at 11. We believe that the lower court properly followed the procedure authorized under Pa.R.Civ.P. 213(b) and the above-mentioned case law concerning new trials limited to damages. We therefore find that the lower court did not commit an error of law or palpably abuse its discretion in this regard. See Burrell v. Philadelphia Electric Co., supra. Appellants next contend that the lower court erred in finding that appellee had not released appellants from liability. Specifically, appellants argue that appellee signed two separate agreements that released them from liability arising out of any alleged defects in the construction of the house. The first agreement was allegedly contained in the agreement of sale, signed by appellee on November 19, 1970. The second agreement was allegedly entered into by appellee in April, 1973, subsequent to the filing of this suit and amounted to a settlement of the suit contingent upon the performance of certain enumerated repairs by appellants. Appellants contend that the lower court erred in disregarding these release agreements and finding against appellants on the issue of liability. We will address each of these alleged releases separately. Because of the special knowledge of the builder-vendor in a home construction situation, language purportedly creating an express restriction or exclusion of an implied warranty must be strictly construed against the builder-vendor. See Tyus v. Resta, 328 Pa.Superior Ct. 11, 19, 476 A.2d 427, 432 (1984) (citations omitted). Additionally, due to the important consumer interests protected by an implied warranty, any attempt to disclaim such a warranty must be clear and unambiguous. Id. The language must also be specific and particular to the legal rights the buyer is waiving and their relation to their effect on specifically designated potential latent defects. Id. Evidence that the parties actually negotiated the release will tend to indicate that the purchaser made a knowing waiver of his or her rights. Id. The release language in the agreement of sale reads: After settlement is made and/or key is accepted and/or entry into possession of any part of the premises is made, Buyer agrees that no further claims or demands of any kind will be made upon Seller or Seller’s principals, and Seller and Seller’s principals shall not be liable for any and all injuries, loss, or damage to Buyer or any other person, or to premises, resulting from any cause whatsoever, including but not [limited] to the exclusion of other causes not specifically recited herein, negligence and latent or undiscovered defects, and Buyer hereby releases and discharges Seller and Seller’s principals from all liability for such injury, loss or damage. See Agreement of Sale, November 11, 1970. The language in this release is broad and all-encompassing. It does not refer with specificity to what rights appellee was waiving or how they applied to particular latent defects. Additionally, there is no evidence that the release was negotiated by the parties. In fact, the release is found eleven paragraphs into what appears to be a boilerplate Agreement of Sale. We will not allow appellants to escape liability by relying on language of this nature. The second alleged release relied upon by appellants refers to a settlement agreement entered into by the parties in April of 1973. As the lower court correctly noted, appellants failed to fulfill the agreement and correct the defects in the house. See Lower Court Opinion, supra at 6. Therefore, as appellants did not perform their part of the agreement, appellee’s promise to release them from liability is not enforceable. Appellants next contend that the lower court erred in finding that they had breached the implied warranty of habitability. Specifically, appellants make three arguments in this regard. First, they argue that the lower court was precluded from finding there was a breach of implied warranty because appellee based his claim on breach of contract. We disagree. The implied warranty of habitability is a warranty based in a contract for the sale of a home. See Tyus v. Resta, supra 328 Pa.Super. at 19, 476 A.2d at 431. This implied warranty was first recognized in Pennsylvania in Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972). In Elderkin the Pennsylvania Supreme Court recognized that as warranties were rarely given in home construction contracts, and there was a wide disparity in knowledge between the buyer and the seller, a theory of implied warranties was necessary to safeguard the reasonable expectations of the buyer. The Court reasoned: [O]ne who purchases a development home ... justifiably relies upon the skill of the developer that the house will be a suitable living unit ... [T]he builder-vendor impliedly warrants that the home he has built and is selling is constructed in a reasonably workmanlike manner and that it is fit for the purposes intended — habitation. Id., 447 Pa. at 128-129, 288 A.2d at 776. Warranties of habitability and reasonable workmanship are not created by representations of the builder-vendor but rather are implied in law and as such exist independent of any representations of a builder-vendor. See Tyus v. Resta, supra 328 Pa.Super. at 19, 476 A.2d at 433. Appellants first contend that the court could not find that they had breached the implied warranties because appellee did not specifically argue such a breach. We disagree. Appellee argued breach of contract. Since the implied warranties are inherent in the contract, and appellee argued all of the facts necessary to find that they were indeed breached, his failure to couch his argument in the exact terms of implied warranties did not preclude the lower court from ruling upon that theory. Decisions as to the application of the law are within the domain of the trial court. See General Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 479-80, 263 A.2d 448, 457 (1970). Appellants next argue that the concept of implied warranties was not recognized under Pennsylvania law when the agreement of sale was entered into, and that it should not have been retroactively applied here. We disagree. Appellate decisions are to be applied retroactively unless the court specifically states that a decision is to be applied prospectively only. See Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). The Elderkin decision did not create the warranties of habitability and reasonable workmanship. Rather, it acknowledged their existence. See Tyus v. Resta, supra 328 Pa.Super. at 18, 476 A.2d at 431. Elderkin itself applied implied warranties to a 1963 agreement of sale. See Elderkin v. Gaster, supra 447 Pa. at 118, 288 A.2d at 771. Clearly, the lower court acted correctly in applying the implied warranties to this agreement of sale. Appellants next argue that the lower court erred in finding that a leaky basement breached the warranty of habitability. We disagree. As the Lower Court noted: A house is a shelter. The whole purpose of building shelter is to protect individuals and their property from the elements — wind, water, fire, earth, etc. A basement is part of the overall pursuit of this protection. The plaintiff proved that the basement cannot be used even for storage. A continually wet basement indicated the owner of the resident [sic] may not rely on a part of that residence to protect individuals from at least one of the elements — water. The purpose of building a house is undone by the defendants’ improper construction created [sic] a premises unfit for human dwelling. Lower Court Opinion, supra at 7. Additionally, there is precedent to uphold such a finding. In Tyus v. Resta, supra this Court upheld a lower court finding that a leaky crawlspace breached the warranty of habitability. We will not overturn the lower court’s determination that the leaky basement in this case breached both the implied warranties of habitability and reasonable workmanship. Appellants next contend that the trial court erred in permitting appellee to amend his complaint after the completion of the trial. We disagree. A party may at any time, either with the consent of the opposing party or by leave of court, amend his or her pleading. See Pa.R.Civ.P. 1033. Permission to allow an amendment of the pleadings is within the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse of discretion. See Gallo v. Yamaha Motor Corp. U.S.A., 335 Pa.Superior Ct. 311, 313, 484 A.2d 148, 150 (1984). A trial court may allow such an amendment to the pleadings while a motion for judgment on the pleadings is pending, after judgment, or after an award has been made or an appeal has been filed. See Biglan v. Biglan, 330 Pa.Superior Ct. 512, 521, 479 A.2d 1021, 1026 (1984) . Such an amendment, however, must not be for a new cause of action or surprise or prejudice the opposing party. See Robinson Protective Alarm Co. v. Bolger & Picker, 337 Pa.Superior Ct. 503, 514, 487 A.2d 373, 378 (1985) ; Cingota v. Milliken, 286 Pa.Superior Ct. 117, 121, 428 A.2d 600, 602 (1981). Here, appellee asked for damages in the amount of $20,000.00 in his original complaint filed in 1971. After the first trial in 1983, but before damages were awarded, the court granted leave to appellee to amend his complaint and increase his claim for damages to $52,100.00. The amendment did not allege a new cause of action, and was based on the same operative facts of the original action. Additionally, appellants cannot claim to have been surprised by the amendment as they admit that they had received notice of appellee’s desire to increase his claim for damages nearly one year before appellee petitioned the court to allow the amendment. See Brief for Appellant at 20. Thus, the lower court did not err in permitting appellee to amend his complaint. Appellants next contend that the trial court caused a number of delays which resulted in prejudice to the appellants. Specifically, they argue that appellee’s eleven year delay in prosecuting the case and the lower court’s seven month delay between the first trial and its rendering of a verdict severely prejudiced their interests. We disagree. Appellants’ first argument, concerning the pre-trial delay, has been waived due to their failure to preserve it in either pre-trial or post-verdict motions. See Pa.R.Civ.P. 227(b) (grounds for post-trial relief must be raised, if available, in pre-trial proceedings or at trial). See also DeSiato v. Shahboz, 277 Pa.Superior Ct. 333, 336, 419 A.2d 798, 800 (1980) (party waives right to seek non pros when he indicates willingness to try the case on the merits notwithstanding delay). Appellants also argue that a nine-month delay between the first trial and the lower court’s decision that appellants were liable for the defective construction of the house was prejudicial. They base this allegation upon Pa.R.Civ.P. 1038(c) which provides that a trial court sitting without a jury “shall enter a decision within seven days except in protracted cases or cases of extraordinary complexity.” Here, we believe that the parties’ briefs, the lower court opinion, and the length of this opinion, amply demonstrate the complexity of the issues involved in this case. Accordingly, we find that this case fell within the exception to the seven day rule. We further note that the prejudicial effects that appellants allege occurred during the nine-month period, worsening of the water problem and an inability to account for changing market conditions, are not supported by the record. We therefore find this contention meritless. The appellants next contend that the trial court erred in failing to consider that appellee did not mitigate the damages. We disagree. A party who suffers a loss has a duty to make a reasonable attempt to mitigate damages, but the burden is on the party who breaches the contract to show how further loss could have been avoided through the reasonable efforts of the injured party. See Gadbois v. Leb-Co. Builders, Inc., supra 312 Pa.Super. at 156-57, 458 A.2d at 561-62. However, an injured party is not obligated to mitigate damages when both he and the liable party had an equal opportunity to do so. See Loyal Christian Benefit Association v. Bender, 342 Pa.Superior Ct. 614, 620, 493 A.2d 760, 763 (1985). Here, appellants make no argument as to how the appellee could have mitigated the damages. Additionally, the trial court found, and the record shows, that the problem existed when the house was constructed and that it was an on-going problem not a worsening one. See N.T. June 8, 1983 at 38-41, 52-55. Therefore, the condition could not have been made worse by an alleged inaction on the part of appellee. Appellants next contend that the trial court erred in rejecting its proferred evidence as to the cost of repair and market value of the house. Specifically, they contend that the trial court should have accepted the testimony of their experts over that of appellees, and credited their evidence that they had made a firm offer to purchase the house to establish its market value. We disagree. The findings of a trial judge sitting without a jury carry the same weight as a jury verdict, and this court will not disturb those findings on appeal absent an error of law or abuse of discretion. See Pato v. Cernuska, 342 Pa.Superior Ct. 609, 612, 493 A.2d 758, 759 (1985). We will respect a trial court’s findings with regard to the credibility and weight of the evidence unless the appellant can show that the court’s determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence. See Tyler v. King, 344 Pa.Superior Ct. 78, 96, 496 A.2d 16, 25 (1985). Here, the trial court heard evidence from both parties concerning the relevant estimates of repairs and market value. The court decided to credit the evidence submitted by appellee. We will not disturb this finding on appeal. Additionally, appellants’ offer to purchase the house, and its timing on the eve of the trial, is hardly credible evidence to prove market value of the house in light of the interest of the party who made the offer. See Redevelopment Authority v. Pelullo, 48 Pa.Commonwealth Ct. 68, 74, 409 A.2d 122, 125 (1979) (such offers amount to settlement offers and are therefore not probative of value). Appellants last contention is that the damages awarded by the trial court are excessive. Specifically, they maintain that as the house cost $40,965.00 when purchased in 1970, an award based on the cost of repair of $52,100.00 is clearly excessive. We disagree. We will not find a verdict excessive unless it is so grossly excessive so as to shock our sense of justice. See Fretts v. Pavetti, 282 Pa.Superior Ct. 166, 176, 422 A.2d 881, 885 (1980). Here, the trial court followed the formula to determine damages set out by this Court in Gadbois v. Leb-Co. Builders, Inc., supra. [T]he measure of damages in cases where a homeowner sues for defective construction is the difference between the market value of the house as constructed and the market value that the house would have had if constructed as promised, with the qualification that if it is reasonably practical to cure the defects in construction by repairs, and if the cost of repairs does not exceed the difference in market value, then the measure of damages is the cost of repairs. Id., 312 Pa.Superior Ct. at 153, 458 A.2d at 557. The trial court found that the market value of the house as constructed was $50,000.00, and that the market value of the house if constructed properly was $100,000.00, leaving a difference of $50,000.00. See Lower Court Opinion, April 23, 1985 at 3, 4. The court also concluded that the cost to repair the house was $52,100.00. Id. at 5, 6. The court then noted that while the cost of repair slightly exceeded the difference in market values, the fact that appellee had established roots in the community and did not wish to relocate dictated that damages be awarded based upon the cost of repair. Id. (citing Incollingo v. Ewing, 444 Pa. 263, 308, 282 A.2d 206, 229 (1971) (fixed and formulated rules relating to the appropriate measure of damages must give way when it is determined that they are not setting a compensatory standard)). Appellants’ argument that the award is out of proportion to the original cost of the house is without merit. Inflation and appreciation caused the market value of the house to rise, and even appellants offered evidence on market value that exceeded the original cost of the house. See Lower Court Opinion, April 23, 1985 at 3, 4. We will not find that this award, or the reasoning that compelled it, is so shocking so as to be overturned on appeal. Appellants conduct in constructing an obviously defective house, combined with their inadequate attempts at repair, provides ample justification for the verdict. The trial court’s slight deviation from the Gadbois standard was designed to give appellee the benefit of his bargain — a habitable house. For the above stated reasons, we therefore affirm the order and judgment of the lower court. Affirmed. ROWLEY, J., files a concurring statement. Appellants’ further argument that the lower court was precluded from finding that the implied warranty of habitability was breached because that warranty was not in the express language of the agreement of sale can be summarily dismissed. The very nature of an implied warranty includes the notion that it is not found in express language, but rather inferred in law. See Tyus v. Resta, supra 328 Pa.Super. at 19, 476 A.2d at 433.

Opinion by Me. Justice Mitchell, The counsel for the present plaintiff at the trial in the criminal court was called by the defendant at the present trial to prove an arrangement by which the verdict in the former case was obtained, the purpose of the oiler as stated by defendant being to contradict the plaintiff who had testified that there ivas no such agreement to which he was party. The witness Avas rejected as incompetent. It Avas objected by plaintiff that the offer as made did not contradict his testimony, and critically tested it possibly did not. We should not be disposed therefore to interfere with the ruling of the judge had it been put on that ground, but it was not. The witness was excluded explicitly on the ground that he was incompetent to testify on the subject because he had been of counsel with the plaintiff at that time. This was error. What the witness was called to prove was an agreement alleged to have been made openly, in court Avhen the case was called for trial, and participated in by the parties, their counsel and the district attorney. There was no element of confidential professional communication in it. In Levers v. Van Buskirk, 4 Pa. 309, counsel had been permitted to testify that the title on Avhich a previous suit by his client Avas brought was the same as in the suit then trying. This Avas held to be proper, Bell, J., saying: “ This kind of protection has never been carried so far as is iioav claimed. It is to be confined to confidential communications and knowledge derived wholly or in part from private and professional intercourse, and does not embrace those facts which the counsel may become acquainted with collaterally, or those which were from necessity, and to subserve the interests of. the client, publicly disclosed by direction of the client himself, on the trial of his cause.” This has been cited as a correct expression of the rule, in Beeson v. Beeson, 9 Pa. 279, and Heaton v. Findlay, 12 Pa. 304. It was further objected that such an agreement if made Avas void as compounding a prosecution for felony, and eAddence of it therefore inadmissible as against public policy. But whether void or not as an agreement, e\ridence that it was made was admissible as a contradiction of plaintiff, going to his credibility with the jury. Whether such an agreement would be void or not must depend on its exact nature and the circumstances under which it was made. Certainly a prosecutor who has begun maliciously, and without probable cause, cannot be permitted to use the uncertainty of a jury trial as a weapon to force his victim to release him from the consequences of his malicious act. But on the other hand, a prosecutor who has made an honest mistake, or who finds from any cause that his expected proof is likely to fail him, is not bound to go on and press for a conviction of the accused, guilty or not guilty. What the commonwealth demands is justice and the due punishment of crime, and its policy is not necessarily to force a duel to the end between prosecutor and prisoner, but to prevent the stifling of just prosecutions by illegal means or for illegal considerations. The remaining assignments refer to the verdict. The jury having agreed to a sealed verdict separated, and the next morning the verdict was handed up, opened and announced, but on the jury being polled one juror dissented, whereupon the judge sent them out again with some strong remarks on keeping them until they had agreed. In a short time they returned with the same verdict as the one sealed, and it was received and recorded against the defendant’s objection. The practice of allowing the jury to seal a .verdict and then separate is very general throughout the United States. Seventy-five years ago Chief Justice Gibson spoke of it as in common use in Pennsylvania, having grown out of and superseded the privy verdict known to the common law, which was delivered to the judge out of court: Dornick v. Reichenback, 10 S. & R. 84. Both forms were alike in being without binding force as verdicts until delivered by the jury in court. All the authorities agree that the only verdict is that which the jury announce orally in court, and which alone is received and recorded as the jury’s finding: Dornick v. Reichenback, supra; Scott v. Scott, 110 Pa. 387; Com. v. Breyessee, 160 Pa. 451. The authorities also agree that, as the only verdict is that announced by the jury in court, if with or without a poll any juror disagree, there is no verdict: Scott v. Scott, supra. But the course to be pursued in such case is an open question upon which we have no direct authority in this state. A verdict which is merely defective in form, whether sealed or not, and whether the jury have separated or not, may before it is recorded be recommitted to them for correction, as for example to calculate the interest where they have found for plaintiff for a sum certain “with interest: ” Wolfran v. Eyster, 7 W. 38; Reitenbaugh v. Ludwick, 31 Pa. 131. But for a defect in substance where the jury has separated, and a fortiori for a defect that prevents the jury’s delivery from being a verdict at all, as where the dissent of one shows that it is not unanimous, whether the judge should treat it as a mistrial and discharge the jury, or whether he may send them out to consider a verdict anew, is undetermined. A few collateral intimations and dicta seem to point to the former as the proper course, but we have no decision. Thus in Wolfran v. Eyster, 7 W. 38, supra, the court expressly limited the decision to “amending mere defects of form, not substantially changing the finding of the jury.” And in Scott v. Scott, 110 Pa. 387, supra, where the associate judges entered a sealed verdict notwithstanding the dissent of one juror on a poll, this Court held it error, saying, “ Of course had the learned president judge been present the verdict of eleven jurors would not have been entered on the record. Unless all the jurors were agreed he would have discharged them because of their disagreement.” The authorities cited by appellee from our criminal cases, Alexander v. Com., 105 Pa. 1, Moss v. Com., 107 Pa. 267, Hilands v. Com., 111 Pa. 1, and Com. v. Eisenhower, 181 Pa. 470, refer to separation of the jury during the trial, and do not touch the present inquiry. Nor is there any settled rule in other states to which we may conform. In. New York the imperfect verdict is treated as a nullity for all purposes, and the jury may be sent out to deliberate again : Douglass v. Tousey, 2 Wend. 352. In Ohio this cannot be done: Sutliff v. Gilbert, 8 Ohio, 405. It would seem to be a. question of practice as to which there is no uniformity. We are thus left to consider the subject on historical and general principles, as to the origin and proper extent of the' practice. At common law the jury were kept together from the time they were sworn, as is still the general rule in caiminal cases involving life. After they had retired to consider their verdict they were kept without food, drink, fire or light, until they agreed, and Blackstone says, “ It has been held that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart 3 Blacks. Com. 376. From the manner of this mention it is to be inferred that this latter practice was at least unusual in Blackstone’s day, and he says expressly that the deprivation of food, fire and light was subject to the indulgence of the court. In relief of the jury the privy verdict was recognized, though not often resorted to. “A privy verdict is when the judge hath left or adjourned the court, and the jury, being agreed, in order to be delivered from their confinement, obtain leave to deliver their verdict privily to the judge out of court; which privy verdict is of no force unless affirmed by a public verdict given openly in court; wherein the jury may if they please vary from the privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged:" 3 Blacks. Com. 377. With the prolongation of trials in the more complicated issues of modern times, and especially with the amelioration of manners, the treatment of jurors has gradually become less harsh, and changes of practice have been made in their relief. It is no longer the custom to keep them together and secluded during the whole trial, though I apprehend that the judge may do so in any case where public excitement or other exceptional reason may make it advisable in the interest of the proper administration of justice to do so, and it is firmly established that in trials involving life he must do so, unless in exceptional and very limited cases of necessity. After the retirement of the jury to consider their verdict this indulgence terminates, and they are kept together and apart from others until verdict rendered. But if the adjournment of the court is to such time or under such circumstances as seem likely to lead to serious inconvenience to the jurors, the practice of allowing them to seal a verdict grew up, as said by Gibson, C. J., in Dornick v. Reichenback, 10 S. & R. 84, supra, in place of the privy verdict. It had the same disadvantage of not being binding, and was therefore subject to the same dangers. By the recognized practice however, it is within the discretion of the judge, which does not require any agreement of parties or counsel, and may be exercised without their consent. But it is part of the growth of modern practice in relief of the hardships and inconvenience to which jurors are necessarily subjected, and cannot be carried beyond the point of reasonable safety to the administration of justice. No jury can demand it as a right in any case, and in certain cases no judge can grant it as a matter of grace. The necessity that the verdict shall not only be fair and unbiased, but beyond reasonable apprehension of danger that it is otherwise, must be the controlling element in determining the limits of the convenience of t?ie jurors and the discretion of the judge. When a juror dissents from a sealed verdict there is a necessary choice of evils, a mistrial or a verdict finally delivered under circumstances that justly subject it to suspicion of coercion or improper influences. We are of opinion that the former is the lesser evil. If one juror can dissent, so may all change their view and render anew verdict exactly opposite to the one they first agreed upon and sealed. There could be no better illustration of the dangers of such a privilege than the present case. If the dissenting juror was honest in his declaration that he had not agreed to the first verdict except because he thought he was obliged to, then his agreement to the second without having been instructed as to his rights cannot be freed from a well founded appearance of coercion. If on the other hand the second verdict had been for the defendant, contrary to the first, the inference could hardly have been escaped that the change was produced by new evidence or information illegally acquired by the dissenting juror or by even more reprehensible means. The only safe way out of such a situation is to treat it as a mistrial and discharge the jury. Judgment reversed and venire de novo awarded.

Opinion by Mr. Justice Potter, The only question here involved is the right of the Commonwealth to be reimbursed from the estate of a lunatic, for money paid for the maintenancé and support of the said lunatic, while committed to a State hospital as an indigent insane person. The amount expended by the Commonwealth in this instance is not disputed. The Act of June 1,1915, P. L. 661, makes direct provision for the collection, by the Commonwealth, of the amount expended for the maintenance of a lunatic confined in a State hospital. It appears from Section 8, that the act is intended to apply to the collection of claims due the Commonwealth at the. time of its passage as well as those to become due thereafter. But the learned judge of the court below, was of opinion that nothing was due to the State, and that the amount paid by the State for the support and maintenance of the lunatic, was to be regarded merely as a gratuity. With this conclusion we cannot agree. Moved by the dictates of humanity, the State makes provision for the care of the indigent insane, in cases where there is no one legally liable for their support, or where such person or persons by reason of poverty are unable to discharge that duty. But there is no warrant whatever, for charging upon the State the burden and expense of caring for those who have estates sufficient for their maintenance. In the present case when the lunatic was committed in January, 1910, he was apparently an indigent person. But in November, 1912, he inherited a considerable estate, which is now in the hands of his guardian. As soon as sufficient funds came into his hands, it was the plain duty of the guardian, to assume the support and main tenanee of the lunatic, and no part of the expense should have been permitted to fall upon the State. The court below has found that the guardian has in his hands, estate amply sufficient to reimburse the State for the amount which it has paid out for the support of the lunatic. The fact that the estate was for a time not sufficient, and that the State during that period undertook the support of the lunatic, is no reason why it should not now be reimbursed for the outlay. The general proposition that the law implies an obligation on the part of a lunatic or his estate to reimburse those who have supplied his necessities, cannot be questioned. In Directors of .Poor & House of Employment of Montgomery County v. Nyce, Committee of Malone, 161 Pa. 82, it was expressly held that an estate acquired by a lunatic after he became a charge on the public was liable for his previous maintenance. While that case was under the Act of 1836, which did not refer to claims of the Commonwealth, yet it involved the same principle. The opinion of the court below in that case was commended by this court, and, in speaking of necessary supplies furnished to one who wa¡3 at the time a pauper, it was said: “Why should the recipient of the supplies under such circumstances escape payment when in funds? If he is compelled to pay he simply does that which in good morals he ought to do voluntarily. His payment enables the county to enlarge its liberality in other needy cases. It is said that such repayment is in conflict with the policy of our poor laws and our idea of charity. But it seems to us there is something radically wrong with the theory that a patient may leave an institution with a large estate of his own in his pocket without any legal obligation resting upon him to pay for the food he consumed. Such treatment of the patient is not calculated to stimulate his honesty or improve his citizenship. Nor does the demand for reimbursement under such circumstances detract from the charity. If the pauper receives the maintenance upon the condition that he shall pay when able, it answers his needs 'just as much as if there were no obligation to pay under any conditions.” In the present case, the court below was of opinion that, if any implied obligation to pay for necessaries which had been furnished arose, it was in favor of the corporation, the State hospital, and not in favor of the Commonwealth. But in reaching this conclusion the court evidently overlooked the fact that the hospital has no claim here, as it has been paid by the State, and by the county, for the maintenance of the lunatic. The Acts of June 13,1883, P. L. 92; May 21,1889, P. L. 258, and May 1,1907, P. L. 153, fix the amount to be paid by the county at $1.75 per week, and provide that the excess, not exceeding $2.50 per week, shall be paid by the State. While this money is appropriated to the hospital and paid to the hospital authorities, it is paid under these acts for “the expense of the care and treatment of the indigent insane,” in the hospital, and is calculated upon the basis of a specific charge, not exceeding $2.50 per week for each person. The money is paid, not for the support of the hospital but for the care and treatment of the individual patients. If an individual should pay the hospital for the maintenance of a patient, such individual would undoubtedly be entitled to reimbursement from the lunatic’s estate. In like manner and for the same reason, in the present case, the State is entitled to reimbursement. As we said above, the hospital has been paid, and can have no claim against the lunatic or his estate. If there is an implied contract to repay the sums expended for the lunatic’s benefit, it is a contract with the State, not with the hospital, which had expended nothing except what it had received from the county and State for that purpose. The court below finds, as facts, that “the State of Pennsylvania has paid to the State hospital $629.64, in addition to the sum of $1.75 per week paid by the County of Delaware, and that said moneys were toward the maintenance and support of said lunatic.” These facts are expressly averred in the petition and are not denied by the answer. . The first, third, and fourth assignments of error are sustained, the judgment of the court below is reversed, and the correctness of the claim as to amount being admitted, it is ordered and directed that George M. Booth, guardian of Walter Clarence Arnold, pay to the Commonwealth of Pennsylvania, the sum of $629.64, being the amount due to said Commonwealth, to reimburse it for moneys paid for the maintenance and support of said Walter Clarence Arnold, a lunatic.

Opinion by Mr. Justice Frazer, Defendant company, a Pennsylvania corporation, whose place of business is in the Borough of Phoenix-ville, is engaged in “manufacturing, packing and selling beef and pork products” at wholesale, and its contention here is that the disputed articles enumerated in the case stated as follows: (1) sweet pickled meat, i. e. pickled and dry salt pork; (2) smoked skin hams, smoked regular hams, smoked butts, smoked picnics, smoked rib bacon, smoked boneless bacon and smoked dry cured bacon; and (3) hides and skins, are exempt from assessment for mercantile license tax, because, as it claims, being submitted in the course of preparation for the market to processes, varying with the products, are consequently “manufactured” articles which the Commonwealth is not entitled to tax under the provisions of the Act of May 2, 1899, section 1, P. L. 184, although not exempt from such taxation under the provisions of the Act of April 22, 1846, section 11, P. L. 489, as interpreted by the first section of the Act of February 27, 1868, P. L. 43. The court below held the products enumerated above not to be manufactured articles. The total sales derived from these three disputed items aggregate for the year 1926 the sum of $1,055,936.59, upon which amount the court below found defendant liable for a mercantile tax and entered judgment for the sum of $651.68, which amount includes an admitted tax of $122.48, from which order this appeal followed. Counsel agree that the single question for determination here is, which, if any, of the products referred to above are “manufactured”? Appellant claims all products in question here are changed in form and condition from their original state, and, in instances, transformed into entirely new substances by the operations of skill and labor in appellant’s establishment. In its contention as to what constitutes a manufactured product it relies particularly on the following definition from 26 Cyc., page 520: “Manufacturing is: (1) the application of labor or skill to material whereby the original article is changed to a new, different and useful article, provided the process is of a kind popularly regarded as manufacture or the product of such process.” We find many definitions as to the meaning of the verb “to manufacture,” but we accept the one which defendant presents as quite adequate for the purpose of this case. In Commonwealth v. Consolidated Dressed Beef Co., 245 Pa. 605, 607, where the question to be determined was whether defendant corporation was a wholesale vendor of merchandise and, as such, liable for the payment of the mercantile tax, it appearing the company was engaged in the business of purchasing cattle, slaughtering them, and selling, to dealers, beef and other products obtained from the slaughtered animals. In holding that defendant was a vendor of that class and subject to the tax, this court said: “The defendant buys cattle, which are for it the raw material, and it converts that material into forms and sizes suitable for the market which it supplies and it then sells the material as merchandise, to others who vend and deal at retail in the same products......It subjects the material which it buys to certain manipulations, but these are not such as to properly constitute it a manufacturing corporation.” The elemental meaning of the term “to manufacture,” is “to make” (etymologically, to make by hand), — to make and produce something as a new construction out of existing materials. That is the basic sense of the definition quoted above, and its meaning is illustrated with clearness and emphasis in Norris Brothers v. Commonwealth, 27 Pa. 494, 496: “To make, in the mechanical sense, does not signify to create out of nothing; for that surpasses all human power. It does not often mean the production of a new article out. of materials entirely raw. It generally consists in giving new shapes, new qualities, or new combinations to matter which has already gone through some other artificial process.- A cunning worker in metals is the maker of the wares he fashions, though he did not dig the ore from the earth, or carry it through every subsequent stage of refinement. A shoemaker is none the less a manufacturer of shoes because he does not also tan the leather. A bureau is made by the cabinet maker, though it consists in part of locks, knobs, and screws, bought ready made from a dealer in hardware.” Or, in other words, the process of manufacture brings about the production of some new article by the application of skill and labor to the original substance or material out of which such new product emerges. If however there is merely a superficial change in the original materials or substances and no substantial and well signalized transformation in form, qualities and adaptability in use, quite different from the originals, it cannot properly and with reason be held that a new article or object has emerged, — a new production been created. This point is illustrated in Hartranft v. Weignann, 121 U. S. 609, where it was held that removing the outer layers of shells by acid and afterwards grinding off the second layer by an emery wheel so as to expose the inner layer was not a manufacture of shells or the production of a new article. In that case the court said: “We are of the opinion that the shells in question here were not manufactured. ......They are still shells. They had not been manufactured into a new and different article, having a distinctive name, character or use from that of a shell. The application of labor to an article, either by nature or by mechanism, does not make the article necessarily a manufactured article within the meaning of the term as used in the tariff laws.” In Commonwealth v. Welsh M. M. & Kaolin Mfg. Co., 265 Pa. 380, where a corporation was engaged in crushing and grinding rock into sand colored by the admixture of clay, it was held not to be carrying on a process of manufacture. In the case before us appellant contends that hams, -bacon and hides sold by it are in fact manufactured articles or products, because science, labor and skill have been so applied to the raw materials that “the form and condition thereof have been changed, and in some instances entirely new substances have been made or created for the market, by this process of manufacturing.” But we do not find that contention supported in any substantial or sufficient degree by the particularly detailed recitals in the case stated. We do not find there was application of workmanship and skill in the process and method used or in the tangible results of such process and method as to justify the claim that the products in dispute here may properly be taken as manufactured. No change or transformation may be attributed to the products enumerated above, upon the value of which it is claimed by defendant the Commonwealth is not entitled to impose as assessment of the mercantile license tax. We may select here the detailed recital in the case stated of the manner and method of preparing and curing hams for the market as inclusively representative and descriptive of all the processes used by appellant and the ultimate results of these processes. We find that what is done preparatory to placing the meat on the market is to cut from the carcass of the slaughtered animal the parts popularly and generally designated as the “hams,” and these are submitted for a time to a successive process of pickling or curing in solutions of nitrate of soda, sugar and water, thereafter encased in cotton covering and suspended for the period required in a smokehouse over a fire of hickory wood. And what is the ultimate article when it emerges from this careful treatment, ready for sale to appellant’s customers? Just what it was in form, in character and in substance when the treatment was begun on the original article, — a ham, both as to designation and as to use. There has been injected into it salt solutions; otherwise, the original substance is there. There may be a change in coloration, but no special change in form or substance. The treatment given to this meat, instead of constituting a process of manufacture, is really an elaboration of the time-honored method of preparing and curing in the grimy little smokehouse of the farmer. From the moment of its separation from the carcass of the animal, the ham remains constantly intact, it retains practically its original shape and size, and neither the curing solution that is “pumped” into it, nor the solution in which it is steeped, nor the chemical preparation with which it is “scrubbed,” nor the ultimate “smoking” applied to it, has done anything more in changing the original meat than to modify its color and taste and prevent deterioration and decay; and the purpose and use for which it was originally cnt from the carcass as a ham is exactly the same, — to be used as food. In like manner, the recital in the case stated of the methods by which bacon and pickled and dry salt pork are treated to prepare and cure them for the market comprises a similar nse of solutions and final smoking; and, in the matter of skins taken from the animals, these are scraped and soaked in salt, remaining what they were originally,— untanned skins. The methods, labor and skill which actual manufacturing require are here wholly absent. We find no application of labor or skill whereby the original article has been changed to a new and different substance to be put to a use not intended for the original. The court, in People ex rel. Meat Co. v. Roberts, 155 N. Y. 408, a somewhat similar case, said: “The business conducted by the relator was obviously that of purchasing, slaughtering and selling sheep and lambs. While it utilized the hides, the wool, the tallow and the offal, as well as the carcasses of these animals, yet to say that refrigerated mutton, rendered tallow, pulled wool or untanned hides are manufactured articles would be quite incorrect......At most, they were merely prepared for market and preserved until sold.” To constitute a making of a manufactured product, it is essential that the article which emerges should not be the same, but a new and different production (In re Rheinstrom & Sons Co., 207 Fed. 119) ; and the article in its changed form must be adapted to a different use and purpose than was the original before alterations were made: Lexington v. Lexington Leader Co., 193 Ky. 107. In the present case neither the process followed, nor the results attained, nor both combined, are such as to constitute the making or manufacturing of new and different articles from the meats that appellant took from the slaughtered animals, nor was the intended use of these cured and prepared products different from that intended for the originals, — their use as food. Our review of the case and the decisions lead us to the conclusion reached by the court below. The assignments of error are overruled and the judgment affirmed.

Opinion by Mr. Justice Linn, After appellant pleaded guilty to an indictment for murder, the court heard evidence produced on behalf of the Commonwealth and also on behalf of defendant, and adjudged, him guilty of murder of the first degree and imposed sentence of death. Defendant appeals. See article V, section 24, of the Constitution; the Acts of April 15, 1870, P. L. 15, and May 19, 1874, P. L. 219; Com. v. Paul, 289 Pa. 452, 137 A. 606. The Act of May 14, 1925, P. L. 759, amending section 75 of the Crimes Act of 1860, P. L. 382, provides: “That every person convicted of the crime of murder of the first degree shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life at the discretion of the jury trying the case which shall fix the penalty by its verdict. The court shall impose the sentence so fixed as in other cases. In cases of pleas of guilty, the court, where it determines the crime to be murder of the first degree, shall, at its discretion, impose sentence of death or imprisonment for life.” The Act of March 14, 1877, P. L. 77, entitled “To repeal so much of the fourth section of the Act of February third, one thousand eight hundred and forty-three, entitled ‘An act to abolish the court of general sessions of the City and County of Philadelphia, and for other purposes,’ and of any other act or law which requires two judges, learned in the law, to be a quorum of the court of oyer and terminer for the trial of homicide cases” provides “That from and after the passage of this act, one law judge shall be competent and sufficient to hold a court of oyer and terminer of the trial of homicide as well as other cases, and all laws or parts of laws inconsistent herewith are hereby repealed.” Appellant states three questions for review. 1. Did the court err in adjudging defendant guilty of murder in the first degree? 2. Did the court err in imposing sentence of death? 3. Was there error “in receiving in rebuttal of good-reputation evidence, testimony of [a] specific” act? In view of the conclusion reached on the second question, we need not discuss the third, merely noting that no objection was made to the evidence, counsel for defendant apparently being of opinion that objectionable evidence (Com. v. Colandro, 231 Pa. 343, 355, 80 A. 571) would not be considered by the judge. 1. For the purpose of passing on the first question, we have carefully read the evidence as required by the Act of 1870, supra. In considering it, we have accepted as true all the testimony from which the learned trial judge may have found that the murder was wilful, deliberate and premeditated within the legal meaning of those words: Com. v. Diaco, 268 Pa. 305, 111 A. 879; Com. v. Paul, supra; Com. v. Watkins, 298 Pa. 165, 167, 148 A. 65. Miller, who was killed, was about twenty-five years old and lived at 1844 Hoffman Street. Defendant, aged forty-nine, lived on the opposite side of the street at number 1841. Between one and two o’clock, April 12 1930, defendant’s ten-year-old daughter and the four-year-old son of the decedent Miller had some childish altercation in the street. Miller was playing cards on a door step near by, when his attention was drawn by his small son to their quarrel. He gave the child a stick and told him to strike the girl. Then, defendant’s son — aged eighteen, — approached Miller (described as a “pretty large” man) and remonstrated, whereupon Miller struck him in the face and knocked hi'm down on the payment twice, the second time leaving him unconscious. The young man was assisted into his house, not however until his mother, wife of defendant, attacked or attempted to attack Miller. In the afternoon Miller went to a ball game. During the day, defendant had been working on his farm some distance away. He came home between four and five o’clock; he, himself, fixed the time at 4: 45. He found his wife much agitated, and on inquiring the reason, was informed by her of the circumstances in which Miller had assaulted their son. Several witnesses testified that after he came home they heard him threaten to shoot Miller. Shortly after 5:30, Miller returned from the ball game. As he stood on the front step of his house, intending to enter, defendant came out of his house with a shotgun and shot Miller. The records of the police station show that the shooting was reported there by telephone at 5: 45. The evidence is not clear whether the shell discharged by the gun was loaded with buck shot or smaller shot. It appears, then, that in something more than half an hour after defendant returned home and learned of the occurrences of the day, he shot Miller, who died shortly after being taken to a hospital. As to the inferences that may be made from the threats and from the use of the gun, see Com. v. Moon, 264 Pa. 63, 107 A. 389; and Com. v. Green, 294 Pa. 573, 584, 144 A. 743. The record, therefore, reveals all the “ingredients necessary to constitute murder in the first degree.” Appellant contends that there was not sufficient timé between learning of the incidents involving his children and the time of the actual shooting, to supply the qualities of wilful, deliberate and premeditated killing; that interval is not to be considered abstractly, but as one of the circumstances of the transaction; less than a minute, in connection with other circumstances, was held sufficient in Com. v. Buccieri, 153 Pa. 535, 540, 26 A. 228; in Com. v. Paul, supra, the interval was about twenty minutes; on the same subject, see Com. v. Daynarowicz, 275 Pa. 235, 238, 119 A. 77; Com. v. Parker, 277 Pa. 171, 120 A. 771. 2. In considering the second point, we may first note the gradual legislative enlargement of the scope of review required of this court. In earlier times, the record brought up did not include the evidence or the charge: Middleton v. Com., 2 Watts 285; Haines v. Com., 99 Pa. 410. The Act of November 6, 1856 (P. L. 1857, page 795), changed this, and provided for exceptions to rulings on evidence and to the charge, but limited appeals to those specially allowed by a justice of this court or by the attorney general: Schoeppe v. Com., 65 Pa. 5L Probably as a result of the decision in Schoeppe’s Case, the Act of February 15, 1870, P. L. 15, was passed, creating a “radical change in our criminal jurisprudence,” as this court said in that case, and providing for appeal without special leave, a provision subsequently incorporated in the Constitution. The Act of 1874, P. L. 219, reenacted this right and provided for exceptions as in civil cases. The next important change came with the Act of April 22, 1903, P. L. 245, authorizing a motion for a new trial on after-discovered evidence even though the term in which a defendant was conyicted and sentenced had ended: Greason’s Cases, 204 Pa. 64, 53 A. 539; 205 Pa. 630, 55 A. 788; and 208 Pa. 126, 57 A. 349; Com. v. Hine, 213 Pa. 97, 62 A. 369; also see, Review of Homicide Cases in Pennsylvania by the late Justice Sadler, 70 U. P. Law. Rev. 14. The most recent enlargement of the scope of review is contained in the Act of May 14, 1925, 14 P. L. 759, under which defendant was sentenced. The pertinent words, now for consideration, are “......In cases of pleas of guilty, the court, where it determines the crime to be murder of the first degree, shall at its discretion impose sentence of death or imprisonment for life.” By the act (another “very radical change in the law:” Com. v. Madaffer, 291 Pa. 270, 139 A. 875), the legislature recognized and established degrees of culpability, provided two possible penalties, and vested the jury with discretion to determine by its verdict which of the two should be inflicted; it also provided that, on a plea of guilty, the court must determine the appropriate penalty and impose sentence accordingly. On this appeal, we are concerned only with the duty of the judge and must examine the record to see whether the discretion vested in him was judicially exercised* whether the record shows a case in the class justifying sentence of death, or in the class justifying the lower sentence of life imprisonment. Appellant’s brief states the following fact, not contradicted by the Commonwealth. “This case was heard, and, without argument of counsel on either side, the learned trial judge immediately, upon the conclusion of the hearing of the testimony, entered the judgment of guilty of murder in the first degree and immediately sentenced the defendant to death.” We are all of opinion that the gravity of the duty to be performed in such cases requires that the judge who hears the evidence on a plea of guilty, should at least make and file a brief memorandum which will reveal the reasons for the sentence imposed. That procedure will .not only facilitate review to determine whether the legislative mandate has been complied with, but will also make it unnecessary for this court to return the record for a written opinion pursuant to Rule 58. As this is the first appeal challenging the penalty imposed pursuant to the statute, we shall dispose of it without delaying decision by remitting the record for such opinion. It is clear that this was not an atrocious murder planned and committed in cold blood, or one committed in the perpetration of robbery or other grave crime, though, by saying that, we do not intend to enumerate all possible examples of the class that should receive sentence of death, or otherwise attempt to distinguish one class from the other; definition may come, as cases present themselves. This is the case of an industrious man without criminal record, whose character as a peaceful law-abiding citizen was testified to by a number of persons. After he returned from his day’s work and found his wife and son in the condition described, he committed the crime under the resulting provocation, and in circumstances, which, we think, place him within the legislative classification requiring the milder of the two possible sentences. The imposition of a sentence of death, instead of life imprisonment, was such abuse of discretion as to require modification by resentence. We are not commuting the sentence or otherwise performing the duty of the pardon board. “To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance U. S. v. Benz, 282 U. S. 304, 311. There is no doubt, — the brief of the Commonwealth does not question it, — of the power to modify the sentence. The Act of June 16, 1836, P. L. 784, section 1, 17 PS, sec. 1, authorizes this court “to examine and correct all and all manner of errors of the......courts of this Commonwealth, in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas or proceedings, and, thereupon, to reverse, modify or affirm, such judgments and decrees or proceedings, as the law doth or shall direct......” See, generally, Schmuck v. Hartman, 222 Pa. 190, 194, 70 Atl. 1091; Daniels v. Com., 7 Pa. 371, 375; Summers v. Kramer, 271 Pa. 189, 197, 114 Atl. 525. On the exercise of the power to reduce the penalty from death to life imprisonment, see also, State v. Olander, 193 Iowa 1379, 186 N. W. 53, 29 A. L. R. 306, with annotation at page 318; State v. Ramirez, 34 Idaho 623, 203 Pac. 279, 29 A. L. R. 297. The sentence of death is vacated and the record is remitted with instructions to sentence the defendant to imprisonment for life according to law.

Opinion by Mr. Justice Schaffer, Plaintiffs, individually, as licensed optometrists, and as trustees of The Philadelphia County Optometric Society, and Pennsylvania Optometric Association, brought this bill in equity against Gimbel Brothers, Inc., a New York corporation, which conducts a department store in the City of Philadelphia, to enjoin it from the practice of optometry, directly and indirectly. The chancellor entered a decree, “That the defendant be enjoined from holding itself out as an optometrist, by advertisement, sign or otherwise, and from practicing optometry.” Plaintiffs, not being satisfied with the decree as entered, prosecute this appeal, urging that the decree shall be enlarged so as to specifically prohibit defendant from employing licensed optometrists to examine the eyes of its customers. The chancellor, whose findings and discussion are a model in equity practice, declined to go along with plaintiffs in this regard and found as a conclusion of law that “The statute [Act of March 30, 1917, P. L. 21, 63 PS Secs. 231-244 as amended] does not make it unlawful for a licensed and duly registered optometrist to contract with an individual, firm or corporation to examine the eyes of such patrons as may request it” and further that “The Act regulating the practice of optometry in Pennsylvania does not make it unlawful for an individual, firm or corporation to advertise to the public that they may procure such services as they may require from a duly licensed and registered optometrist with whom such individual, firm or corporation has contracted.” The facts are not in dispute and those necessary to have in mind in disposing of the controversy are these: The course of study provided in most schools of optom etrj is from three to four years. The professional charges of optometrists are for examining the eyes, for prescribing glasses and for examining and fitting glasses after they are made. Prescriptions for glasses formulated by optometrists are filled by the patient’s own optician or by an optician chosen by the optometrists. Defendant leases a portion of its department store to the partnership of J. Diamond, which operates therein an optical department for the examination of eyes and the fitting and supplying of glasses. This leased portion of the store is known and operated as the “Optical Goods Department.” The lease is of indefinite duration and may be cancelled on thirty days’ notice. The rental is $12,500 per year, plus one-third of the lessee’s gross annual business in excess of $50,000. The lease provides that the name of “Gimbels” shall alone be used in advertising and binds the lessees to expend a certain percentage of their annual sales (at least $3,000) for advertising under the name and direction of defendant. The store sign outside the leased department reads “Gimbel Brothers’ Optical Department.” The names of the lessees do not appear in the shop or in the advertisements. Prior to the commencement of this proceeding advertisements appeared under the name “Gimbels Modem Optical Shop” with no mention of the registered optometrists in attendance. Thereafter the advertisements named Dr. Saylor as the optometrist actually in charge of the department. The registered optometrist in attendance and all other employees of the department are employed hy the lessees. They are hired and paid by the lessees, but are under the supervision and control of defendant. It may dismiss them. The registered optometrists do not conduct a practice of their own and are required to charge for all examinations and fittings of glasses in defendant’s name. It receives all fees. The charge for services rendered are fixed by the lessees but must be as low as in any other department store in the city, so as to successfully compete. Bills rendered for the examination of eyes and their fitting with glasses are in defendant’s name and on its billheads. Defendant does not hold a certificate of licensure to practice optometry and, as a New York corporation, does not have the right to practice. Under the foregoing findings, can it be said defendant is practicing optometry without the necessary certificate of licensure? Appellants urge upon us that it is. They do not contend that defendant does not have the power to lease space in its store for whatever purpose the lessee may desire, and concede that it may lease space to a doctor, or to a lawyer, to carry on their professional callings, but submit that, when the leasing is accompanied with such control as is here shown, the lessee becomes the agent of defendant, and, as it is forbidden to practice, it may not do so through agents. We think the chancellor, who found as a conclusion of law that optometry is a profession, took a somewhat restricted view of what optometry is when he said: “the practice of optometry ... is essentially a mechanical process which requires a knowledge of the use and operation of certain instruments and appliances designed to measure and record the errors in human vision.” The optometry statute (Sec. 5, 63 PS Sec. 233, as amended) requires that every one fitting himself to practice shall take an examination “in practical, theoretical, and physiological optics, in theoretical and practical optometry, and in the anatomy and physiology of the eye, and in pathology as applied to optometry.” To enable the user of the mechanical, processes to intelligently, understandingly and scientifically apply them, he must have the background of scientific and technical knowledge and training which is required. His operation of his instruments is no mere rule of thumb. What was said by the Supreme Court of Michigan in Seifert v. Buhl Optical Co., 276 Mich. 692, 268 N. W. 784, decided September 2, 1936, more adequately portrays what the present day optometrist is: “The difficulty with appellant’s entire position is its belief that optometry is merely an incident to its corporate merchandising business. It overlooks the fact that optometry has become a real science devoted to the measurement, accommodation, and refractory powers of the eye without the use of drugs, thus superseding obsolete and archaic methods of fitting eyeglasses. It has become one of the important professions, and for the preparation of its proper practice courses in optometry, physics, physiology, pathological conditions of the eye, the proper use of the retinascope, ophthalmometer, opthalmoscope, refractor, prisms, lenses, etc., are given as part of the curriculum in many of our largest universities as well as colleges specializing in optometry. The legislatures throughout the entire country have recognized that the proper practice of this profession is of the most vital importance to the public, and have made due provisions, not only for the licensing of optometrists after proper examination, but for regulating the proper practice of the profession.” The Supreme Judicial Court of Massachusetts in the very recent case of McMurdo. v. Getter, Mass. Adv. Sh. (1937) 1355, 10 N. E. (2) 139, decided September 20, 1937, took a view of the situation before us which is in consonance with our own. It is there said: “The de fendants contend that they are not practising optometry illegally, although they are not registered optometrists and yet reap all the financial reward of a practise conducted by their servant who is a physician and as such entitled to practice optometry without registration. ... A different rule has been applied to the learned professions. These are characterized by the need of unusual learning, the existence of confidential relations, the adherence to a standard of ethics higher than that of the market place, and in a profession like that of medicine by intimate and delicate personal ministration. Traditionally, the learned professions were theology, law and medicine; but some other occupations have climbed, and still others may climb, to the professional plane. . . . Dentistry, a branch of medicine, has done so within modern times. Professional men may be held to a higher ethical code, for example by the restriction of advertising, than men engaged in ordinary business. . . . The rule is generally recognized that a licensed practitioner of a profession may not lawfully practise his profession among the public as the servant of an unlicensed person or a corporation; and that, if he does so, the unlicensed person or corporation employing him is guilty of practising that profession without a license. A corporation as such cannot possess the personal qualities required of a practitioner of a profession. Its servants, though professionally trained and duly licensed to practise, owe their primary allegiance and obedience to their employer rather than to the clients or patients of their employer. The rule stated recognizes the necessity of immediate and unbroken relationship between a professional man and those who engage his services. It was applied recently in this Commonwealth in the case of lawyers. The judicial branch of government to which is entrusted the regulation of practise by attorneys at law, has never relaxed the rule. ... In the absence of statutory modification in favor of hospitals or others . . . the same rule applies to physicians and dentists. . . . The position of a physician normally is not that of a servant of anyone. . . . As to optometrists, there seems to be a conflict of authority. Undoubtedly the fitting and sale of eyeglasses began as a trade and not as a profession. There is some support in decided cases for the proposition that it must remain a trade, in which an unlicensed person or a corporation may engage as of right, provided the actual work is done by a skilled servant duly licensed: Dvorine v. Castelberg Jewelry Corp., 170 Md. 661, 185 Am. Rep. 562; Jaeckle v. L. Bamberger & Co., 119 N. J. Eq. 126, 181 A. 181, affirmed 120 N. J. Eq. 201, 184 A. 520; State ex inf. McKittrick v. Gate City Optical Co., 339 Mo. 427, 97 S. W. (2d) 89; Georgia State Board of Examiners in Optometry v. Friedmans’ Jewelers, Inc., 183 Ga. 669, 189 S. E. 238. See, also, Sage-Alien Co., Inc., v. Wheeler, 119 Conn. 667, 179 A. 195, 98 A. L. R. 897. [ ]The considerations to the contrary seem to us more weighty. In recent times abnormalities of the eye, like those of the teeth, have been found sometimes to indicate and often to result in serious impairment of the general health. The work of an optometrist approaches, though it may not quite reach, ophthalmology. The learning and the ethical standards required for that work, and the trust and confidence reposed in optometrists by those who employ them, cannot be dismissed as negligible or as not transcending the requirements of an ordinary trade. We cannot pronounce arbitrary or irrational the placing of optometry on a professional basis. This conclusion finds support in other jurisdictions. State ex rel. Beck v. Goldman Jewelry Co., 142 Kan. 881, 51 P. (2d) 995, 102 A. L. R. 334, and note; State v. Kindy Optical Co., 216 Iowa 1157, 248 N. W. 332; Eisensmith v. Buhl Optical Co., 115 W. Ya. 776, 178 S. E. 695; Funk Jewelry Co. v. State ex rel. La Prade, 46 Ariz. 348, 50 P. (2d) 945; Bennett v. Indiana State Board of Registration and Examvination in Optometry (Ind. Sup.), 7 N. E. (2d) 977; State ex rel. Harris v. Myers, 128 Ohio St. 366, 191 N. E. 99; State ex rel. Bricker v. Buhl Optical Co., 131 Ohio St. 217, 2 N. E. (2d) 601; Rowe v. Standard Drug Co., 132 Ohio St. 629, 9 N. E. (2d) 609. Although the statute does not show an uncompromising determination to apply purely professional standards to optometrists, we think that they are in effect placed on a professional plane. ... We think that upon the agreed facts the defendants are practising optometry without right.” The court enjoined the defendant from practicing' optometry, either personally or by an employee. We conclude the decree should be modified so as to provide that the defendant be prohibited from the practice of optometry, directly or indirectly, and from employing registered optometrists to examine the eyes of its customers. The court below will modify its decree accordingly. The argument of appellee that the decree as we are directing it to be modified will make the act unconstitutional as contravening the 14th amendment to the Federal Constitution under the authority of Liggett Co. v. Baldridge, 278 U. S. 105, in our opinion is without merit. That case does not support the proposition that a licensed practitioner of a profession may be employed at a salary to render professional services to the customers of a person, partnership or corporation, where the contractual relationship of the client or customer is, not with the practitioner, but with the latter’s employer, and the chancellor decided as before noted that optometry is a profession. If a corporation hired a lawyer to render legal services under such arrangements, it would clearly be engaged in the practice of law. The legislature has the right to forbid such practice as contrary to public policy, which is properly concerned with the maintenance of high professional standards. One who practices a profession is apt to have less regard for professional ethics and to be less amenable to regulations for their enforcement when he has no contractual obligations to the client, does not fix or receive the fees, and is under the control of an employer whose commercial interest is in the volume of sales of merchandise effected by the prescriptions of the employee-practitioner. These features were entirely absent from the Liggett case. Decree directed to be modified. Costs to be paid by defendant. Mr. Justice Drew dissents. The subjects studied are physics, chemistry, biology, bacteriology, mathematics, history of optometry, anatomy (including histology and embryology), physiology (including physiological optics), ophthalmic mechanics ( (a) physical principles of lenses, (b) principles of lense making), optometry, geometrical optics, chemistry (physiological), pathology (general), pharmacology, ocular pathology, ophthalmic mechanics (clinical application of lenses), optometry (including physiological optics), clinical optometry, psychology (experimental and visual), surgery (lectures and demonstrations), office practice, clinical ocular pathology (treatment of diseases), ophthalmic mechanics (advanced methods in clinical application), clinical optometry and conferences, visual fields, orthoptics, subnormal vision, surgery, ocular (clinical and hospital demonstrations).. To which may be added State v. Gus Blass Co., 193 Ark. 1159, 105 S. W. (2) 853, decided May 10, 1937.

Opinion by Mb. Justice Bell, Articles of Merger of Dauphin Deposit Trust Company and. Carlisle Trust Company were filed by the Banks and approved by the Department of State; thereafter the Articles were transmitted to the Department of Banking for approval or disapproval in accordance with the Banking Code. Both banking institutions are chartered under the law of Pennsylvania. Carlisle Trust Company has its principal and sole place of business in the Borough of Carlisle, Cumberland County. It has no branches. Dauphin Deposit Trust Company has its principal place of business, together with three branches, in Harrisburg, Dauphin County. Cumberland County and Dauphin County are contiguous counties. The plan of merger provided for the retention and operation of the banking office of Carlisle Trust Company in Carlisle as a branch of the surviving institution which was to be known as Dauphin Deposit Trust Company. The proposed merger was disapproved by the Department of Banking in a comprehensive opinion. The basic reason given by the Secretary of Banking for disapproving the proposed merger was that there was no need for the merger since the banking facilities and sendees in Carlisle were adequate, and the merger would result in over-banking the community which would be detrimental and possibly disastrous to the community. From this Order of the Department of Banking, Dauphin Deposit Trust Company and Carlisle Trust Company appealed to this Court. Section 204 of the Act of May 15, 1933, known as the Banking Code, was repealed by the Act of December 30, 1955. Section 204, was composed of numerous paragraphs, seven of which were lettered A,B,C,D,E, F,G. In lieu of §204, the Act of 1955 added a new and different section to the Banking Code, namely, 204.1. Section 204.1 was divided physically into many paragraphs, six of which were lettered A,B,C,D,E,F. Subsections A and B of §204.1 are the only subsections that are relevant to this case. Section 204.1, subsection A, provides in material part as follows: “Branches. A. Any institution may continue to maintain and operate any branch heretofore lawfully established by such institution. If an institution is hereafter merged or consolidated with another institution or national banking association, the surviving institution, in case of merger, or the newly consolidated institution, with the approval of the department with respect to any such institutions or national banking associations, may retain and operate as branches any of their principal places of business and branches which may have been in lawful operation in the same county or in a county contiguous to the county in which the principal place of business of the institution resulting from the merger or consolidation is located on the effective date of such merger or consolidation.” The key words on which this case turns are “with the approval of the department”. Section 204.1, subsection B, covers the establishment and maintenance of branch banks ivithout merger in the same city, borough or village in which the principal place of business of the large bank is located, and in the same or in a contiguous county. Under subsection B, a bank may establish a branch with the prior written approval of the Department of Banking, except that if the branch is to be located in any other city, etc. in the same county, or in a county contiguous to the county in which the principal place of business of the large bank is located, the application must be approved by both the Department and the Banking Board. This subsection further provides, clearly and specifically, that when a bank files an application for the establishment of a branch in the same city, etc., the Department shall approve the application “if it finds upon investigation that there is a need for banking services or facilities such as are contemplated by the establishment of such branch and that all requirements of this section have been complied with . . .”. If the Department finds, after investigation, that the bank has not met all the requirements of the section, or that there is not a need for banking services or facilities such as are contemplated by the establishment of such branch, it shall disapprove the application. Notwithstanding the fact that the requirements of subsection A and of subsection B are obviously very different, the Department of Banking interpreted each of them alike, i.e. each required approval of the Department if and only if the Department found that there was a need for banking services or facilities such as are contemplated (1) by the merger or (2) by the establishment of a branch bank without a merger. If this was the standard which the Legislature intended to prescribe in each case, it is regrettable that it did not clearly and specifically so provide in subsection A. The language of subsection A “with the approval of the Department” is at first blush sufficiently broad to give the Department the sole discretion, without any reasonable standards or indeed without any standards whatever, to approve or disapprove a merger, the effect of which is to establish a branch in a contiguous County. Where the standard fixed by the Legislature is not arbitrary or unlimited, but is definite and reasonable, the delegation of power or discretion will be sustained as constitutional. In considering the standard, regard must be had to the purpose and scope of the Act, the subject matters covered therein, the duties prescribed and the broad or narrow powers granted, because those factors will often determine whether or not a sufficiently clear, definite and reasonable standard has been established. A grant of power to the Department of Banking to approve or disapprove a merger in its sole discretion, without any standards whatever, would be an illegal delegation of authority and would render subsection A unconstitutional i1 ' Holgate Bros. Co. v. Bashore, 331 Pa. 255, 200 A. 2d 672; Hotel Casey Co. v. Ross, 343 Pa. 573, 578, 580, 23 A. 2d 737; Marshall Impeachment Case, 363 Pa. 326, 69 A. 2d 619; Schechter Poultry Corp. v. United States, 285 U.S. 495; Panama Refining Co. v. Ryan, 293 U.S. 388; O’Neil v. Insurance Company, 166 Pa. 72, 30 A. 945; Hudson-Harlem Talley Title & Mtge. Co. v. White, 8 N.Y.S. 2d 599. Cf. also: Bell Telephone Co. v. Driscoll, 343 Pa. 109, 21 A. 2d 912. We must therefore examine subsection A of §204.1 more closely, in order to see whether it cannot be interpreted in a manner which carries out the Legislative intent and at the same time satisfies all Constitutional requirements: Evans v. West Norriton Township Municipal Authority, 370 Pa. 150, 87 A. 2d 474; Fidelity-Philadelphia Trust Company v. Hines, 337 Pa. 48, 10 A. 2d 553; cf. also Hotel Casey Co. v. Ross, 343 Pa., supra; Dauphin Co. Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 2 A. 2d 809; Statutory Construction Act of May 28, 1937, P. L. 1019, §52, 46 PS §552. In Evans v. West Norriton Township Municipal Authority, 370 Pa., supra, the Court said (page 158) : “ ‘ . . we can declare an Act of Assembly void, only when it violates the Constitution clearly, palpably, plainly;...»’: Tranter v. Allegheny County Authority, 316 Pa. 65, 75, 173 A. 289. Where the meaning of an act is doubtful, and two constructions are reasonably possible, one of which will render the act constitutional and the other unconstitutional, the courts should adopt a construction which renders the statute constitutional: Fidelity-Philadelphia Trust Co. v. Hines, 337 Pa. 48, 10 A. 2d 553; Carr v. Aetna A. & L. Co., 263 Pa. 87, 106 A. 107." It may aid us in construing the Act of December 30, 1955, which amended the Act of May 15, 1933 (the Banking Code), by repealing §204 and adding a new and different section known as §204.1, if we consider the prior law which it sought to change. Prior to the aforesaid amendment, the law on this subject was clearly settled. Section 204 D of the Banking Code provided: “. . . A state bank ‘may establish a branch ... in any place within any county contiguous to the county in which its principal place of business is located, if the city, borough, or other community in which such branch is to be established is without adequate banking facilities, or, in the case of a merger or consolidation, is ivithout adequate banicing facilities other than an incorporated institution or national banking association which is a party to the plan of merger or consolidation . . .’ ”. It will be noted that §204 D clearly and specifically set up a standard — a reasonable and proper standard —namely, the adequacy or inadequacy of banking facilities. Thereafter, the Legislature, we repeat, repealed all of §204 and in lieu thereof enacted a new and different section, via., §204.1. The most important changes occur in §20-4.1 A where — in the event of a merger of two banks, the effect of which is that the smaller bank becomes a branch of the larger bank— no mention is made of need for banking services or facilities, but the only specific requirement is that the merger is to be permitted “with the approval of the Department”. Moreover, unlike the former §204 F, no reference or appeal is made to the Banking Board in cases where the Department approves the merger, and, we repeat, no mention is made of need (or adequacy) of banking facilities or services. In Delaware County National Bank v. Campbell, 378 Pa. 311, the Court said (page 325) : “Part of tbe powers and duties of the Department of Banking, and in cases of mergers with resultant branch banking, part of the powers and duties of the Banking Board, is to determine, as the Department and Board did in the present case, whether the community served and from which a bank draws its depositors and clients has adequate banking facilities and is not overbanked. Appellees admit . . . ‘As interpreted by the Banking Board in accordance with its plain terms, the clear intention of the statute in regard to establishment of branches, both by new branch and by merger, is the same: to guard against “overbanking” on the one hand, and “underbanking” on the other; . . .’. The legislature, . . . did not exclude or intend to exclude competition between banks; it intended, inter alia, to exclude such competition as would likely weaken or destroy some banks in an overbanked community and thus weaken or injure the entire banking system, to the detriment of depositors, creditors, stockholders and the public alike.” The Department of Banking in its opinion in the instant case correctly said: “In measuring banking facilities and services to determine on the one hand need which results in under-banking or on the other hand an excess of banking services which results in over-banking, due consideration must be given not only to the number of banking facilities present in a community but also to the quality of such facilities. A community may be over-banked with a few large institutions with resources in excess of the requirements of the community as well as by a larger number of smaller banks than the needs of the community justify. The ideal situation is a sufficient number of banks to serve the requirements of the community and to maintain a competitive climate that will produce the best banking services.” Contrary to the Department’s contention that the principal changes made by §204.1 were procedural (for example to eliminate in one instance a written application and reduce the time of investigation from 60 days to 30 days) it is obvious, from the entire new lengthy section and particularly from the changed language, that the legislature intended to make a substantial number of substantive changes. For example, under subsection A, an approval by the Banking Board was eliminated if the Department approved a merger, the effect of which was to establish a branch in a contiguous County; and the requirement of need (or adequacy or inadequacy) of banking facilities, which was specifically set forth in subsection B and in old section 204 D, was conspicuously omitted. It would therefore appear obvious that the Legislature, by the amendment of December 30, 1955, intended to make one or more important substantive changes in the law in the case of mergers. Nevertheless, the Department of Banking concluded that the need or adequate facilities test still prevailed in a case such as the instant one, namely, where two banks propose to merge with the larger bank, retaining and operating as a branch the principal place of business of the smaller bank which was in a contiguous county. The Department deduces this authority and power (1) from general language in the Banking Code, general language in the Department of Banking Code, and general language in the Administrative Code, (2) from prior decisions of this Court, and (3) from §204.1 considered in conjunction with these and particularly with §1406 of the Banking Code. The Department relies upon Delaware County National Bank v. Campbell, 378 Pa., supra, where this Court said (page 314) : “The Department of Banking was created not to manage or operate a bank, but to supervise a bank, and to be a watch dog in the interest of depositors, creditors, shareholders and of the community in general The Department also points out that if an application is filed for the establishment of a branch to be located in any place in a contiguous county, the test or standard for both the Department and the Banking Board is “a need for banking services or facilities such as are contemplated by the establishment of such branch”: §204.1 B. The Department contends that if the standard for the establishment of a branch requires a finding by the Department that there is a need for the proposed banking services or facilities of the branch, it is equally and vitally important that the same standards and the same requirements and supervision are necessary in connection with the Department’s approval or disapproval of a merger, the effect of which is to establish a branch. The appellants contend, on the other hand, that a standard of need is not required, first and most important because there is no provision for such a standard under the new §204.1 A, and secondly, because the banking institutions in Cumberland County are not increased by the merger but only existing facilities and services are merged. The first of appellants’ contentions possesses a great deal of merit. The second is superficially meritorious, but on analysis falls. The new branch bank has the same building and virtually the same employes and personnel as the old, but it is not the same banking institution either in name or in banking facilities. Figuratively speaking, a pygmy has become a giant; and the effect of making a giant out of a pygmy, so far as over-hanking is concerned, is not substantially different from what would occur if a giant were established as a branch where no pygmy had theretofore existed. It is obvious that the phrase “with the approval of the Department” in §204.1 A cannot be treated as superfluous or irrelevant or meaningless; it cannot (standing alone) constitutionally give the Department of Banking an arbitrary uncontrolled power to approve or disapprove in its sole discretion — -without any definite and proper standards — a merger, the effect of which is to establish a branch bank in a contiguous County; and it must be considered in conjunction with other portions of the Banking Code and perhaps other Codes in order to be sustained. Both appellants and appellees, faced with the danger of unconstitutionality for want of a reasonable and proper standard in §204.1 A, turn for a pertinent and appropriate standard to §1406 of the Banking Code, as amended (7 PS §819-1406). Section 1406 provides: “Approval of articles of merger or consolidation by Department of Banking. “A. Except as otherwise provided in this act, the Department of Banking shall, immediately upon the receipt from the Department of State of the articles of merger or articles of consolidation, conduct such examination as it may deem necessary to ascertain from the best sources of information at its command: “(1) Whether the name of the surviving or new incorporated institution is likely to mislead the public as to its character or purpose. “(2) Whether the consolidation or merger is made for legitimate purposes. “(3) Whether the interests of the depositors or other creditors, and in the case of a bank, a bank and trust company, or trust company, the shareholders, are adequately protected. “(4) Whether the surviving or new incorporated institution meets all the requirements of this act and violates none of its prohibitions applicable to a bank, bank and trust company, trust company, or a savings bank, as the case may be, incorporated under this act. “B. Within thirty days after the receipt of the articles of merger or articles of consolidation from the Department of State, the Department of Banking shall, upon the basis of the facts disclosed by the investigation provided for by this section, either approve or disapprove such articles. It shall immediately notify the Department of State, in writing, of its action. . . .” Appellants contend that the only question before the Department of Banking is whether or not the standards or tests laid down in §1406 have been satisfactorily complied with by the merging institutions— if they have, the Department of Banking has no discretion, but must approve the merger. The Department contends, on the other hand, that whether the merger was made for legitimate purposes and whether the new institution meets all the requirements of the Banking Code, depends, in the last analysis, on whether there is a need for the new or enlarged branch. In other words, it still considers that it is entitled, in the interest of supervision and of protecting the community from over-banking, to determine the adequacy or need of the banking facilities. Pursuant to the Department’s interpretation of the law, it made an investigation and held a hearing with due notice to every bank which might be affected by the proposed merger. 15 banks, as well as the Cumberland-Perry County Bankers Association, protested the proposed merger. The Department, in an able comprehensive opinion, carefully reviewed and analyzed the facts which it had exhaustively investigated. For example, the Department found that under the plan of merger the name of the surviving institution was not likely to mislead the public as to its character or purpose, and that the interests of the depositors, other creditors and shareholders of the two banking institutions would be adequately protected by the proposed merger. It also found (and appellants concede) that the primary and motivating purpose of the merger is the conversion of the office of Carlisle Trust Company at Carlisle, Cumberland County, into a branch of Dauphin Deposit Trust Company. It went into considerable detail to support all of its findings or conclusions. It reviewed the statement of condition of both institutions; the population of Carlisle and of Cumberland County since 1940, with their respective numbers and their percentage of gain; the assessed valuation of real estate in Carlisle and also in Cumberland County since 1940; the number of banks and their branches and their total resources, etc., in Carlisle and in Cumberland County, with their increase in capital, surplus, undivided profits and reserves, loans, deposits and total resources since 1940; the number and amount of their mortgages, the banking facilities for each person in Carlisle and in Cumberland County, which was far greater than the State average or the National average; the location of banking offices and facilities in Carlisle and in Cumberland County; and the population and growth of townships and boroughs within the trading area of Carlisle since 1940.' It likewise specifically found that the banks of Carlisle offered the same type of services that would be offered by the proposed branch, including trust services. It pointed out, with details, that the banking resources and facilities of Carlisle and of Cumberland County have grown very substantially faster than the population of Carlisle or of Cumberland County; that the banks of Carlisle have been and are now able (a) to supply all banking services and facilities needed in the Carlisle area and (b) to take care of all loans (through participation with other banks); that the Carlisle banks have stated their ability and their desire to Increase their capital and banking facilities whenever required to meet any additional need for banking facilities and services in Car-lisle; and finally, that the completion of the proposed merger would bring into the Carlisle area banking resources that are not needed and would result in an excess of banking facilities and services, causing over-banking of that area, to the detriment of the depositors, other creditors, and shareholders of the banks of that area and of all other interested persons and of the public in general. Appellants find no fault with most of the findings and conclusions of the Department of Banking. Appellants, however, disagree with the finding that the present banking facilities in Carlisle are adequate and point out that there were 13 loans in the last five years which could not be serviced by Carlisle Trust Company without participation. Appellants further point out that the merger will increase tenfold the lending capacity of Carlisle Trust Company; that the personal loan business and other bankable business in the Carlisle area is rapidly increasing; that Dauphin Deposit Trust Company has for years been serving customers and several thousand depositors who live in Cumberland County; and that this merger will enable it to more adequately service the needs of this constantly growing community. Finally, appellants vigorously contend that the question whether the merger is made for legitimate purposes means what it says; it does not mean or include the question of adequate facilities or over-banking; and consequently, the Department of Banking exceeded its power in so holding and therefore was without jurisdiction to make the Order complained of. There is no doubt that the Department of Banking misinterpreted §204.1 A of the Act of December 30, 1955. That Act as we have seen repealed §204 of the Banking Code and in lieu thereof substituted a poorly drawn amendatory Act which by §204.1 A eliminated the test of “adequacy of banking facilities” or “need” and required as a standard the sole discretion of the department or under §1406 the five tests set forth in §1406. All of these five tests were adequately and fully met by the banks which applied for approval of the present proposed merger. The Department of Banking erroneously concluded that “whether the merger is made for legitimate purposes” did not have its plain and ordinary meaning but meant “whether there is need for the merger”. That test, which was established in the former §204 and also in subsection 204.1 B of the Act of 1955, is clearly inapplicable to the language of §204.1 A whether considered alone or in conjunction with §1406. It follows that the decision and order of the Department of Banking must be reversed unless Subsection C of §1406 interdicts such action by this Court. Appellants rely upon §1406 of the Banking Code as a connecting link — an integral part or basis of their claim under §204.1 A. Appellants cannot take advantage, as they seek to do, of subsections A and B without at the same time admitting that subsection C of §1406 likewise applies to this case. Subsection C of §1406 of the Banking Code provides: “If the Department of Banking disapproves the articles of merger ... it shall return them to the Department of State, stating in detail its reasons for doing so. . . . The decision of the Department of Banking shall be conclusive and not subject to review/’ Where a statute expressly provides that there shall be no appeal or that the decision of an administrative agency or of a Court shall be final or conclusive and not subject to review “the scope of appellate review is limited to the question of jurisdiction and the regularity of the proceedings; the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the governmental agency or the court below may have been erroneous. It is only where the statute is silent on the question of appeal that a review by certiorari may be had ‘in the broadest sense’ and the court may consider the record, including the testimony, to determine whether the findings are supported by competent evidence and to correct any conclusions of law erroneously made:” Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A. 2d 534: Delaware County National Bank v. Campbell, 378 Pa., supra (page 317-318). See to the same effect: Swank v. Myers, 386 Pa. 331, 339, 126 A. 2d 267; Addison Case, 385 Pa. 48, 122 A. 2d 272; Philadelphia Saving Fund Society v. Banking Board of Pennsylvania, 383 Pa. 253, 118 A. 2d 561; Twenty-first Senatorial District Nomination, 281 Pa. 273, 126 A. 568. Tbis appeal is permissible but is only in tbe nature of a narrow certiorari. It is of course indisputable that tbe proceedings by tbe Department of Banking in tbis ease were regular. Tbe Department duly complied with all tbe requirements of tbe Code and not only gave appellants due notice but even granted them an extended bearing on tbe merits. Jurisdiction relates to tbe competency of tbe particular administrative agency or Court “to determine controversies of the general class to which the case presented for its consideration belonged — ” Witney v. Lebanon City, 369 Pa. 308, 312, 85 A. 2d 106; Hellertown Borough Referendum Case, 354 Pa. 255, 259, 47 A. 2d 273. Cf. Gardner v. Allegheny County, 382 Pa. 88, 95, 114 A. 2d 491; Shelton v. Lower Merion Township, 298 Pa. 471, 148 A. 846; Koontz v. Messer, 314 Pa. 434, 172 A. 457. Under tbe code, it is clear as crystal that tbe Department of Banking has tbe jurisdiction and the power to consider and determine controversies of tbe general class as well as the specific controversies and issues presented in tbis case. There is therefore no doubt of the regularity of the proceedings or of the jurisdiction of the Department of Banking. However an important point has been overlooked. Neither the decisions hereinabove cited nor the language of the opinions therein precludes this Court from reversing an order of an administrative agency or a judgment, order or decree of a lower Court where an excess of powers, i.e., powers beyond those granted or possessed, was exercised by such an agency or lower Court. This is such a case and for the reasons hereinabove set forth at length we must reverse the order of the Department of Banking. Cf.: United States v. Walker, 109 U. S. 258, 266; Bigelow v. Forrest, 9 Wall. 339; Ex parte Lange, 18 Wall. 163. Order reversed. The Department of Banking is directed to approve the Articles of Merger and promptly notify the Department of State of its action approving said articles. P. L. 624, 7 PS §819-204. P. L. 920, 7 PS §819-204.1. Italics throughout, ours. It is unnecessary to review the additional provisions of subsection B since they are not pertinent. Moreover, an interpretation which invalidates subsection A, would have the additional undesirable effect of prohibiting future mergers of banking institutions, the effect of which is to establish a branch, since branch banking is permissible only by statute and no statute would exist to cover such a situation. In Delaware County National Bank v. Campbell, 378 Pa. 311, wa interpreted §204 D to mean that “a merger may be approved if the city, borough or other community in which such branch is to bo established by way of merger is without adequate banking facilities exeluding the institutions which are a party to the plan of merger”. The varying contentions which were ably argued by both appellants and appellees demonstrate how unfortunate it is that the Legislature failed to clearly and specifically set forth in §204.1 A the legislative intent with respect to mergers, the effect of which is to retain (or establish) a branch bank in a contiguous county. It is not necessary to refer to general language in other Acts which are hopefully relied upon by the Department since it is clearly inapposite and irrelevant. It foUows that appellee’s motion to quash, which is in principle ruled by the authorities hereinabove stated and also by Equitable Loan Society Inc. v. Bell, Secretary of Banking, 339 Pa. 449, 14 A. 2d 316, is without merit and must be dismissed. Appellants point out that in Delaware County National Bank v. Campbell, 378 Pa., supra, this Court in its opinion said with respect to §1406 C of the Banking Code: “If the Department of Banking disapproves the articles of merger [without a branch bank] . . . this section has no application to the case of a merger, the effect of which is to establish a branch office or branch bank.” That decision is inapplicable here because in that case §204 D anil §204 F specifically covered a merger, the effect of which was to establish a branch bank and these sections being particular, prevailed over the general provisions of §1406 C of the Banking Code. However, all of §204 of the Banking Code was repealed, as above noted, by the Act of 1965.

Opinion by Tbexleb., P. J., The defendant was arrested May 29,1932 by a peace officer of the Oity of Pittsburgh for violation of Section 1012 (a) of Pennsylvania Motor Vehicle Code, 1st of May, 1929, P. L. 905. Hearings were had on June 1 and 8, 1932. After a very full presentation of the circumstances, the magistrate adjudged the defendant guilty and imposed a fine of $10, which the defendant paid. He then presented his petition to the county court for an allowance to appeal wherein he recited the substance of the testimony heard before the magistrate, but made no reference to any question involved in this present appeal. The allowance was granted and the case was heard de novo by the county court, and again he was found guilty and fined $10. There was a motion made at the hearing wherein it was stated that no information was filed with the magistrate. The court refused the motion, hence this present appeal. Section 1203 (a) of the Motor Vehicle Act provides that, “Peace officers, when in uniform and displaying a badge or other sign of authority, may arrest, upon view, any person violating any of the provisions of this act, where the offense is designated a felony or a misdemeanor, or in cases causing or contributing to an accident resulting in injury or death to any person, and such peace officers shall forthwith make and file with the magistrate, before whom the arrested person is taken, an informa tion setting forth in detail the offense, and at once furnish a copy thereof to the person arrested.” If after the magistrate decided the case, a certiorari had been issued the regularity of the proceedings would have been before the court. Every part of the record including the complaint would have been sent up, Sadler Criminal Law Procedure, p. 569, Constitution of Pennsylvania, Article 5, Sec. 10, and the judgment might have been set aside, but “the defendant having proceeded by appeal must be presumed to have waived all mere technical errors in the proceedings of the justice, which did not go to the jurisdiction of that officer”: Steward v. Renner, 87 Pa. Superior Ct. 411; Swain v. Brady, 19 Pa. Superior Ct. 459; Gibson v. Haworth, 47 Pa. Superior Ct. 618; Com. v. Hooper, 55 Pa. Superior Ct. 518, 520. The transcript is the foundation of the proceedings in the quarter sessions, and is the only record we have before us. Whether the peace officer failed to file an information as required by the act does not affirmatively appear. One may have been filed. The transcript shows affirmatively that no constitutional right of the defendant was infringed “that he was informed as to the nature and cause of the accusation against him,” Com. v. Burkhardt, 23 Pa. 521, and pleaded “not guilty,” with a direct reference to the particular section of the act, which he was accused of violating. The cases cited by appellant in support of his contention are such as arose where a certiorari was issued to the magistrate, Com. v. Gelbert, 170 Pa. 426, 32 Atl. 1091; Com. v. Phelps, 170 Pa. 430, 32 Atl. 1092; and have no application to the present case. The real question before us is whether, upon an appeal taken, the mere absence of any reference in the transcript to the filing of the information required by the section above referred to, is such an irregularity as requires us to reverse the lower court. As already stated, we are of the opinion that the matter should have been raised by certiorari to the common pleas. We can only decide questions that are fairly brought before us: Com. v. Yocum, 29 Pa. Superior Ct. 428; Com. v. Layton, 45 Pa. Superior Ct. 582. The judgment is affirmed. Appellant to pay the costs.

Opinion by Hoffman, J., On August 4, 1966, appellant was tried on two indictments, each charging him with assault with intent to rob and robbery. Appellant was found guilty on one of the bills, and not guilty on the other bill. On October 21, 1966, the trial judge placed the appellant on probation for five- years under strict supervision. On October 30, 1970, probation was revoked and the appellant was sentenced to a period of imprisonment of not less than three nor more than ten years. Appellant contends that a sentence with a maximum of ten years, which exceeded the original fire-year period of probation set by the trial judge, was imposed unlawfully and constituted double jeopardy. A trial judge in Pennsylvania has the power to either suspend or defer the imposition of a prison sentence. The consequences of a violation of probation depend on which of the two alternative courses the trial judge has previously taken. If a defendant is sentenced, but the judge chooses to suspend sentence pending a period of probation, the trial judge may re-sentence the defendant if he violates that probation. The maximum period of the re-sentence is limited, however, to the maximum term under which the defendant was originally sentenced. Our Supreme Court has held that a “modification of a sentence imposed on a criminal defendant which increases the punishment constitute[s] further or double jeopardy.” Commonwealth v. Silverman, 442 Pa. 211, 215, 275 A. 2d 308 (1971); see also Commonwealth v. Davy, 218 Pa. Superior Ct. 355, 280 A. 2d 407 (1971). The instant case does not involve a situation where appellant was re-sentenced after a suspended sentence. By exercising the statutory option of imposing a period of probation in lieu of sentencing, the court defers sentencing a defendant to a fixed term of imprisonment until such time as the defendant has violated the conditions of his probation. In other words, the setting of the term of probation is not a term of sentence, and may not act as a limitation on the court to impose a sentence for a term of years greater than the probationary period, not in excess of the maximum fixed by law for the particular offense. The sentence imposed by the court in the instant case — a period of imprisonment of not less than three years nor more than ten years — was within the court’s power as authorized by law. It was not a violation of the double jeopardy clause to sentence the appellant to the maximum prison sentence allowable at the time of the original sentencing. The judgment of sentence is affirmed. The Act of May 7, 1925, P. L. 554, §1, 19 P.S. §1051 provides, in part: “Whenever any person shall be convicted in any eonrt of this Commonwealth of [a] crime, . . . and it does not appear to the said eonrt that the defendant has ever before been imprisoned for crime, either in this State or elsewhere, . . . the said eonrt shall have power to suspend the imposing of the sentence, and place the defendant on probation for a definite period, on such terms and conditions, as it may deem right and proper . . ,” The Act of August 6, 1941, P. L. 861, §25, 61 P.S. §331.25 provides, in part: “Whenever any person shall be found guilty of [a] criminal offense . . . the court shall have the power, in its discretion, . . . instead of imposing such sentence, to place the person on probation for such definite period as the court shall direct, not exceeding the maximum period of imprisonment allowed by law for the offense for which such sentence might be imposed.” Our attention is directed to Commonwealth v. Jackson, 218 Pa. Superior Ct. 357, 280 A. 2d 422 (1971). That case, however, is in-apposite. There, the trial judge set a period of probation of five years, without suspending sentence, and in addition set a fine of $1500. The conviction and sentencing took place prior to passage of a statute providing, for restitution in crimes involving personal injury. When it became apparent that he had imposed an improper sentence, the trial judge attempted to modify the sentence to 11% to 23 months imprisonment. Our Court reversed the modification as violating the double jeopardy provisions, in that the purported revision was an increase to a prison term not caused by any violation of the terms of the probation. It was held against public policy to allow a trial judge to correct his inadvertent imposition of an illegal condition on a sentence by increasing the prison term. The instant case does involve a violation of probation, and not any increase to a prison term for reasons of the court’s unilateral mistake. The sentencing procedure has been considered by the American Bar Association, and that body has suggested, in conformity with the statutes discussed herein, that “[u]pon revocation of probation the court should have available the same sentencing alternatives that were available at the time of initial sentencing.” A.B.A. Standards for Criminal Justice Relating to Probation, Section 1.1 (f). The Bar Association has likewise proposed that a court may sentence the defendant to a term “formulated on the basis of the facts as they then appear,” not limited by the term of the probation previously fixed in lieu of sentencing. A.B.A. Standards Relating to Sentencing Alternatives and Procedures, Section 2.3, comment (d).

Rhodes, J., Opinion by This is an appeal by George E. Crandall from an ■order of the court below dismissing his petition to vacate a support order which directed that he pay his wife Helen Catherine Crandall |12.50 per week. The original order was made on July 15, 1940. No appeal was taken from that order. On October 2, 1940, appellant filed his petition to vacate the support order, setting forth, as to change in circumstances occurring since the entry of the order, that he no longer had a net income from Dr. Crandall’s Health School,, a corporation. After hearing, the petition was dismissed. This appeal followed. Orders in nonsupport cases are not regarded as final, in as much as they may be increased, reduced, or vacated where the financial condition of the parties changes, or where other proper reasons are shown. Com. ex rel. Barnes v. Barnes, 140 Pa. Superior Ct. 397, 399, 14 A. 2d 164. See, also, Act of June 19, 1939, P. L. 440, No. 250, §1, 17 PS §263. But the burden rested upon appellant to show, by competent evidence, such changes in conditions or circumstances as would justify a vacation or modification of the original order of July 15, 1940. Com. ex rel. Snyder v. Snyder, 120 Pa. Superior Ct. 189, 192, 182 A. 62; Com. ex rel. Ritter v. Ritter, 91 Pa. Superior Ct. 563, 566. These changes must be permanent ; temporary losses are insufficient. Com. ex rel. Berardino v. Berardino, 99 Pa. Superior Ct. 532, 534. The record of the second hearing does not disclose any valid basis for a revocation of the original order. According to appellant’s testimony he is a physician (see Commonwealth v. Crandall, 145 Pa. Superior Ct. 353, 21 A. 2d 232), and is entitled to receive a salary of $2,000 annually from an institution known as Dr. Crandall’s Health School, a closed corporation, plus expenses. The corporation owns considerable real estate. He states that since July 15, 1940, the date of the original order, he has not received any salary because the corporation is unable to pay it. Appellant is president, and owner of at least 51 per cent of the stock, of that institution. He refused to state how much of the remaining stock he controlled. He and his son are two of the three directors, the third being associated with him, and there has been no meeting of the stockholders for many years. Since 1927 he has been the sole signer of all corporate cheeks. Testimony was offered relating to the income of the corporation from patients, but appellant stated that he did not know the income of the corporation from stocks, bonds, or other security holdings. He refused to divulge what other assets the corporation owned, or what his individual investments were, although admitting some. He cannot be heard to say that a corporation so controlled cannot pay his salary when he makes no full disclosure of the facts. His averment that he has no income, standing by itself, amounts to nothing. Com. ex rel. Berardino v. Berardino, supra, p. 536. In Com. v. Knobloch, 89 Pa. Superior Ct. 216, at page 218, this court said: “We can easily imagine that a man of large means could so adjust his finances......and so regulate his investments that a very small net income might result.” Appellant avoided disclosing his income or earning capacity, and obviously this he cannot do for the purpose of evading payment of a support order. The court must be convinced of appellant’s good faith (Com. ex rel. Berardino v. Berardino, supra, p. 534), an ele ment lacking in this case. By his attitude he gave the impression that he was concealing the facts; there was an entire absence of candor. The testimony in relation to the disbursements of the corporation since the original order failed to show with certainty what expenses of appellant were treated as personal, and debited against his salary, and what expenses were corporate. It paid, however, as corporate expenses, Ms lodge dues, room and board, payments on the original order of support heretofore made to his wife, and his attorney’s fees. In considering the sufficient ability of the husband to pay, not only the actual amount shown to have been received, but also the attendant circumstances, must be considered. Com. ex rel. Liuzzi v. Liuzzi, 142 Pa. Superior Ct. 239, 241, 15 A. 2d 738; Com. ex rel. Stout v. Stout, 142 Pa. Superior Ct. 449, 451, 16 A. 2d 723. The court below, in passing upon the facts, was not compelled to accept as verity the statements of appellant, but could make its own deductions from the evidence and accompanying circumstances. Com., ex rel. Elgart v. Elgart, 137 Pa. Superior Ct. 418, 420, 9 A. 2d 202; Com. v. Gensemer, 122 Pa. Superior Ct. 456, 458, 185 A. 867. As in the present case, the fiction of a corporation will not be permitted to hide the individual behind it, and prejudice the rights of an innocent party. See Kulka v. Nemirovsky et al., 321 Pa. 234, 237, 182 A. 692. Complaint is also made by appellant that his wife refuses to live at the institution with him where he can secure maintenance for her. He took no appeal from the original order, and it must therefore be assumed that the wife was entitled to support, and that it was the duty of appellant to provide it. Com. v. Gensemer, supra, p. 457; Com. ex rel. Isaacs v. Isaacs, 124 Pa. Superior Ct. 450, 454, 188 A. 551. Further, appellant’s statements that there is provision for her at the insti tution if she should see fit to come back, and that he is not doing anything to keep her away, are unsatisfactory. If anything, it shows that appellant is capable of supporting his wife. Cf. Com. v. Shankel, 144 Pa. Superior Ct. 476, 19 A. 2d 493. In a case of this nature we do not interfere with the determination of the court below unless there is a clear abuse of discretion. Com. ex rel. v. Betts, 76 Pa. Superior Ct. 96, 98; Com. v. Spadine, 130 Pa. Superior Ct. 77, 79, 196 A. 898; Com. ex rel. Elgart v. Elgart, supra, p. 420. In the dismissal of appellant’s petition to vacate the order of July 15, 1940, we find none. The order is affirmed. “Any order heretofore or hereafter made by any court of this Commonwealth for the support of a wife, child or parent, may be altered, repealed, suspended, increased, or amended, and the said court may, at any time, remit, correct or reduce the amount of any arrearages, as the ease may warrant.”

Opinion by Judge Mencer, We are here confronted with the question of whether a recoupment of certain unemployment compensation benefits, allegedly erroneously paid to Augustus Daniels (claimant) by reason of his fault, can be achieved by deducting a sum equal to the amount of overpayment from future compensation payable and due the claimant, without his being afforded an evidentiary hearing on the question of fault, comporting with due process requirements, before the deduction from benefits. We conclude that such a hearing is constitutionally required and accordingly this case must be remanded. The claimant had been employed by J. A. Jones Construction Company, Mt. Holly Springs, Pennsyl vania, and Ms last day of work with tMs company was February 15, 1972. An application for unemployment compensation benefits had previously been filed by the claimant qualifying him for weekly benefits in the amount of $93.00. The claimant reopened his claim on February 16, 1972 and, commencing on February 29, 1972, he received $93.00 each week for four weeks. The claimant worked March 27, 1972 for Thomas A. Armbruster and earned $105.70. His separation from Armbruster was not due to conditions that were of a disqualifying nature. The payment of March 28, 1972 was $22.00 because claimant had reported his earmngs of $105.70. On April 17, 1972, the Bureau of Employment Security (Bureau) issued a determination which held the claimant ineligible for unemployment compensation benefits under the provisions of Sections 401(f) and 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §§801(f), 802(e), in that the claimant did not earn six times his weekly benefit rate after having been separated due to willful misconduct in connection with his work with the J. A. Jones Construction Company. SigMficantly, claimant did not appeal from the determination of April 17, 1972, and it became final on April 27, 1972. A consequence of this determination was that an overpayment of $208.00 had been made to claimant. On June 28, 1972, claimant was notified that he had received $208.00 in benefits to which he was not entitled and, as a result, a fault overpayment had been established. Claimant appealed from this determination on July 6, 1972. Howevei’, prior thereto the Bureau withheld three checks totaling $208.00 from claimant. These checks were due claimant for the weeks ending June 20, 1972, June 27, 1972, and July 4, 1972. Section 804 of the Unemployment Compensation Law, 43 P.S. §874, relating to recovery and recoupment of compensation benefit payments, in pertinent part provides: “(a) Any person who by reason of his fault has received any sum as compensation under this act to which he was not entitled shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation Account a sum equal to the amount so received by him. Such sum shall be collectible (1) in the manner provided in . . . this act for the collection of past due contributions, or (2) by deduction from any future compensation payable to the claimant under this act. “(b) Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act to which he was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year, or the three-year period immediately following such benefit year. “The claimant and other affected parties shall be notified in writing of the department’s determination to deduct any sum from future compensation under this section, and such determination shall be subject to appeal in the manner provided in this act for appeals from determinations of compensation.” (Italics supplied. ) Illegally received unemployment compensation benefits within the provisions of Section 804(a) are usually characterized as fault payments while those within Section 804(b) are characterized as nonfault payments. The determination of ineligibility given by the Bureau on April 17, 1972 to the claimant did not consti tute a finding or determination of fault payment. Pennsylvania Department of Labor and Industry v. Yodis, 37 Pa. D. & C. 2d 358 (1964). Rather, it was the Bureau’s letter of June 28, 1972 wherein claimant was advised that the overpayments were fault payments. This determination triggered the withholding of if208.00 from the claimant and was made without claimant’s being afforded, on the question of fault, an evidentiary hearing which would satisfy the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Such a withholding was constitutionally impermissible. California Department of Human Resources Development v. Java, 402 U.S. 121, 91 S. Ct. 1347, 28 L. Ed. 2d 666 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Wheeler v. State of Vermont, 335 F. Supp. 856 (D. Vt. 1972) ; Hiatt v. Indiana Employment Security Division, 347 F. Supp. 218 (N.D. Ind. 1971). Since claimant did not appeal the Bureau’s April 17, 1972 determination of ineligibility, and because a setoff by deduction from any future compensation payable to the claimant for illegally received benefits is an enforcement procedure which may be invoked by the Bureau under Section 804 as to fault and nonfault payments, we will not here direct payment to the claimant of the $208.00 -withheld from him. Our remand of this case to the Bureau for the purpose of determining, after hearing, the fault or non-fault nature of benefit payments received by claimant should not be construed to imply that we are sanctioning a collateral attack upon the Bureau’s determination of ineligibility from which a right of appeal did exist. The administrative determination and appeal provisions of the Act with respect to this particular type of determination, are exclusive and not subject to collateral attack. Section 509 of the Unemployment Compensation Law, 43 P.S. §829. In the present posture of this case we are without jurisdiction to review the eligibility determination of April 17, 1972. See Commonwealth v. Lentz, 353 Pa. 98, 44 A. 2d 291 (1945). Claimant asserts that the “fault” guideline utilized in Section 804 is void for vagueness under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and violates Article II, Section 1, of the Pennsylvania Constitution. We have carefully considered this contention and find it without merit. In Mills Unemployment Compensation Case, 164 Pa. Superior Ct. 421, 65 A. 2d 436 (1949), rev’d on other grounds, 362 Pa. 342, 67 A. 2d 114 (1949), the Superior Court considered the meaning of the word “fault” and succinctly enunciated its meaning as follows : “ ‘Fault’ is more than volition, more than a voluntary act. Whether its lexical or legal meaning be consulted, ‘fault’ always connotes an act to which blame, censure, impropriety, shortcoming, or culpability attaches. Unless the word be given that meaning in the reading of the Act, there is no area in which ‘good cause’ can operate. If fault means any voluntary act of the employe by which employment is severed, the cause for the separation, however good, will not avail. Even if ‘fault,’ as it stood in the Act as originally enacted, could have meant any voluntary act, the amendment which introduced good cause into the law must be taken to have modified and limited its original meaning. We conclude that although claimant’s unemployment resulted from her voluntary act, she was not unemployed through her own fault, a blameworthy act, but was justified by good cause.” Id. at 426-27, 65 A. 2d at 439. Likewise, we do not find “fault,” a blameworthy act, to be such an indefinite and vague word as to be constitutionally defective. Following the Bureau’s determination, after hearing, of the fault or nonfault nature of benefit payments received by claimant, claimant would be entitled to the appeal and review procedures specifically provided by Section 804. For the foregoing reasons, we make the following Order And Now, October 3, 1973, the Bureau of Employment Security’s determination of Fault Overpayment under date of June 28, 1972 is hereby set aside and the record is remanded to the Bureau of Employment Security for a hearing and determination of the fault or nonfault nature of the benefit payments received by Augustus Daniels, such further proceedings to be consistent with this opinion. “Fault: A failing; a defect in quality or constitution; as an imperfection in character or disposition; specif., a blameworthy moral weakness less serious than a vice. ... A failure to do what is right. Specif. A moral transgression, a sin. . . . Wrongdoing of a venial nature; a misdemeanor. . . . Mistake, error. . . . Besponsibility for wrongdoing or failure; culpable cause.” Webster. 35 C. J. S., p. 755, where many judicial definitions of “fault” are collected.

OPINION, Me. Justice Clark: This was an action brought to recover the penalty of $100, provided for in the third section of the act of May 21,1885, P. L. 22, commonly known as the Oleomargarine Act. At the trial, the defendant submitted a point requesting the court to instruct the jury “that, if they (the jury) believe, from the evidence, that the defendant did not knowingly furnish, or authorize to be furnished, or know of being furnished, to any of his customers, any oleomargarine, but, so far as he knew, furnished genuine butter, then the verdict must be for the defendant.” The point was refused, and whether the court was right in refusing it, as we understand the case, is the only question upon which a decision is desired. The argument contained in the paper-book, as well as the oral argument in this court, was directed to this question only, and we assume that the parties intended to raise no other. That portion of the charge in which binding instructions were given to find' for the plaintiff, is not quoted in totidem verbis, in the assignments of error, according to our rules; it would seem, therefore, that the appellant’s intention is to confine our deliberations to the single question referred to. The first and third sections of the act of 1885 provide as follows : “ 1. That no person, firm, or corporate body shall manufacture, out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell, or offer for sale, or have in his, her, or their possession with intent to sell the same as an article of food.” “8. Every person, company, firm, or corporate body who shall manufacture, sell, or offer or expose for sale, or have in his, her, or their possession with intent to sell, a.ny substance, the manufacture and sale of which is prohibited by the first section of this act, shall, for every such offence, forfeit aud pay the sum of one hundred dollars, which shall be recoverable, with costs, by any person suing in the name of the commonwealth, as debts of like amount are by law recoverable,” etc. Guilty knowledge or guilty intent is, in general, an essential element in crimes at the common law, but statutes providing police regulations, in many cases make certain acts penal, where this element is wholly disregarded. The distinction is thus laid down in 8 Greenl. Ev., § 21: “ The rule ” (i. e., that ignorance of fact will excuse) “ would seem to hold good in all cases where the act, if done knowingly, would be malum in se. But, where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods on board, and such goods are secreted on board by some of the crew, the owners and officers being alike innocently ignorant of the fact, yet the forfeiture is incurred notwithstanding their ignorance. Such is also the case in regard to many other fiscal, police, and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law in these cases seems to bind the parties to know the facts, and to obey the law at their peril.” To the same effect, also, is Wharton, Crim. Law, §§ 83, 2442. Whether a criminal intent, or a guilty knowledge, is a necessary ingredient of a statutory offence, therefore, is a matter of construction. It is for the legislature to determine whether tüe public injury, threatened in any particular matter, is such and so great as to justify an absolute and indiscriminate prohibition. Even if, in the honest prosecution of any particular trade or business, conducted for the manufacture of articles of foo'd, the product is healthful and nutritious, yet, if the opportunities for fraud and adulteration are such as threaten the public health, it is undoubtedly in the power of the legislature, either to punish those who knowingly traffic in the fraudulent article, or, by a sweeping provision to that effect, to prohibit the manufacture and sale altogether. The question for us to decide, therefore, is whether or not, from the language of the statute, and in view of the manifest purpose and design of the same, the legislature intended that the legality or illegality of the sale should depend upon the ignorance or knowledge of the party charged. The statute in question was an exercise of the police power, and the act was sustained upon this ground, not only in this court, but also in the Supreme Court of the United States: Powell v. Commonwealth, 114 Pa. 265; Powell v. Pennsylvania, 127 U. S. 678. The prohibition is absolute and general; it could not be expressed in terms more explicit and comprehensive. The statutory definition of the offence embraces no word implying that the forbidden act shall be done knowingly or wilfully, and, if it did, the design and purpose of the act would be practically defeated. The intention of the legislature is plain, that persons engaged in the traffic shall engage in it at their peril, and that they cannot set up their ignorance of the nature and qualities of the commodities they sell, as a de-fence. In Massachusetts, a statute declared that if any person should “ sell, .keep, or offer for sale, adulterated milk,” he should be punished, etc.; and it was held that the penalty was incurred, although the sale was made without any knowledge of the adulteration, as when the seller had bought the milk for pure milk: Commonwealth v. Farren, 9 Allen 489; Commonwealth v. Nichols, 10 Allen 199. Upon the same ground, it has been held and it is familiar law, that the statutes against selling intoxicating liquors are violated, although the vendor does not know that it is intoxicating: Commonwealth v. Boynton, 2 Allen 160; Commonwealth v. Goodman, 97 Mass. 117; Commonwealth v. Hallett, 103 Mass. 452. Where a statute imposed a penalty upon “ any person who shall sell, or keep for sale, naptha, under any assumed name,” a party charged with the offence was held to be guilty, although he was not aware that the article sold was naptha, but believed it to be some other oil: Commonwealth v. Wentworth, 118 Mass. 441. So, where a party is charged with furnishing liquors to minors, or for permitting a minor to play billiards in his saloon, he is not permitted to set up his ignorance of the minor’s age to defeat the charge: Wharton, Crim. Law, § 2442, and cases there cited. In our own case, In re Carlson’s License, 127 Pa. 330, Carlson, in a proceeding to revoke his liquor license, under the act of May 13,1887, P. L. 113, was charged with furnishing liquors to minors, in violation of the seventeenth section of the same act. He admitted the sale of liquors to the minors in question. His excuse was that their appearance indicated that they were of full age, and that, as a precaution before selling, he asked their age, and each responded that he was of full age; that he sold to them in good faith, fully believing them to be so. Under the act of 1854, a necessary element to constitute tbe of-fence was that tbe sale should be wilful, but in tbe act of 1887 tbe word “ wilfully ” was omitted, and it was enacted “ that it shall not be lawful for any person, with or without 'license, to furnish by sale, gift, or otherwise,” “ any spirituous, vinous, malt, or brewed liquors,” “ at any time, to a minor.” His license having been revoked, the case was brought here for review, and the proceedings were, affirmed. Chief Justice Paxson, delivering the opinion of the court, said: “ If we look into the opinion of the court for the facts, we find nothing to help the plaintiffs. From it we learn that the offence of which the plaintiffs in error were guilty was that of selling liquors to minors, and that the only excuse offered was that they did not know the persons to whom they sold were minors. This ignorance is not a sufficient excuse or justification under the act of assembly. If such a defence could be successfully interposed in such cases, there would be few convictions, and the law would be nullified for all practical purposes.” To the same effect are Commonwealth v. Sellers, 130 Pa. 32; Commonwealth v. Holstine, 132 Pa. 357, and Commonwealth v. Zelt, 138 Pa. 615. We are of opinion that judgment was rightly entered for the plaintiff, and the judgment is Affirmed»

OPINION Justice CASTILLE. This appeal raises the first impression question of whether a building contractor may maintain a negligent misrepresentation claim against an architect for alleged misrepresentations in the architect’s plans for a public construction contract, where there was no privity of contract between the architect and the contractor, but the contractor reasonably relied upon the misrepresentations in submitting its winning bid and consequently suffered purely economic damages as a result of that reliance. The Superior Court found as a matter of law that, absent privity of contract, the contractor could not maintain such a tort action against the architect. For the reasons that follow, we reverse the order, of the Superior Court and remand to the trial court for further proceedings. Because this Court sits in review of the trial court’s grant of appellee’s preliminary objections in the nature of a demurrer, the salient facts are derived solely from the allegations in appellant’s complaint. In such an instance, all material facts as set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be accepted as true. Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623, 624 n. 1 (1999). The facts are as follows: East Penn School District entered into a contract with appellee, The Architectural Studio (“TAS”), pursuant to which TAS provided architectural services for the design and construction of a new school in Lower Macungie Township, Lehigh County. The services included the preparation of plans, drawings and specifications to be submitted to contractors for the purpose of preparing bids for the construction of the new school. In February of 1997, the school district solicited bids from contractors for all aspects of the project and included TAS’s plans, drawings and specifications in the bid documents supplied to the contractors. Appellant, Bilb-Rite Contractors, Inc. (“Bilt-Rite”), submitted its bid for general construction work on the project and on May 6, 1997, the school district awarded the general construction contract to Bilb-Rite, who was the lowest responsible bidder. On June 6, 1997, the school district and Bilt-Rite entered into a contract for the project in the base amount of $16,238,900. The contract specifically referred to, and incorporated by reference, TAS’s plans, drawings and specifications. TAS’s plans provided for the installation of an aluminum curtain wall system, sloped glazing system and metal support systems, all of which TAS expressly represented could be installed and constructed through the use of normal and reasonable construction means and methods, using standard construction design tables. Once construction commenced, however, Bilt-Rite discovered that the work including the aluminum curtain wall, sloped glazing and metal support systems could not be constructed using normal and reasonable construction methods, and instead required Bilt-Rite to employ special construction means, methods and design tables, resulting in substantially increased construction costs. On November 19, 1999, Bilt-Rite sued TAS on a theory of negligent misrepresentation under Section 552 of the Restatement (Second) of Torts, claiming that TAS’s specifications were false and/or misleading, and seeking damages for its increased construction costs. On December 9, 1999, TAS filed preliminary objections in the nature of a demurrer, arguing that: (1) Bilt-Rite’s action was barred by the “economic loss doctrine,” which holds that a tort plaintiff cannot recover for purely economic losses; and (2) TAS owed no duty to Bilt— Rite, with whom it had no contractual relationship. On June 22, 2000, the trial court sustained TAS’s preliminary objections and dismissed Bilt-Rite’s complaint. The trial court deemed itself bound by the Superior Court’s decision in Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa.Super. 67, 602 A.2d 897 (1992), appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992), which, the court noted, held that a contractor cannot prevail against an architect for economic damages suffered as a result of negligence in drafting specifications, absent privity of contract between the contractor and the architect. Slip op. at 2 n. 1. The trial court found further support for its decision in Palco Linings, Inc. v. Pavex, Inc., 755 F.Supp. 1269 (M.D.Pa.1990). In Palco, the district court, which was applying Pennsylvania law in a diversity action, addressed the operation of the economic loss rule in actions involving negligent misrepresentation. Palco noted that the economic loss rule reflects the concern that tort law (unlike contract law) is not generally intended to compensate parties for losses suffered as a result of a breach of duties which are assumed only by agreement; to recover in tort, there must be a breach of a duty of care imposed by law and a resulting injury. 755 F.Supp. at 1271. Looking to Illinois cases for persuasive authority, the Palco court suggested two viable exceptions to the economic loss rule in negligent misrepresentation cases: (1) where the defendant intentionally makes a false misrepresentation; and (2) where the defendant is in the business of supplying information for the guidance of others and makes negligent misrepresentations. The Palco court found that neither exception should apply to architects sued in their capacity as design professionals. Id. at 1274. Following its discussion of Linde and Palco, the trial court noted that, although Pennsylvania courts have cited Section 552 of the Restatement (Second) with approval, no court had held that it permitted such a cause of action against a design professional. The trial court found that Bilt-Rite’s action did not fall into either of the exceptions outlined in Palco, and therefore, Bilt-Rite had failed to set forth a viable Section 552 cause of action against TAS. On Bilt-Rite’s appeal, the Superior Court affirmed in an unpublished decision. The panel noted that the absence of privity is not an absolute bar to recovery for economic damages in tort; however, the question of which business relationships should be deemed exempt from the privity requirement (and thus exempt from the economic loss rule) must be decided on a case-by case basis. The panel further noted that the architect-contractor relationship had never been expressly included or excluded from the reach of Section 552. Therefore, the panel reasoned, its “review is guided by the principle that the tort of negligent misrepresentation, like the [sic] any action in negligence, requires the existence of a duty owed by one party to another.” Slip op. at 9, citing, inter alia, Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 561 (1999) and Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994). The question then became whether, as a matter of law, an architect such as TAS who prepares and develops design drawings and specifications, owes a duty to the contractors who apply those specifications in the situation where no contractual relationship exists. The panel recognized that question was controlled by Linde; since Bilt-Rite enjoyed no privity of contract with TAS, TAS owed it no duty, and Bilt-Rite could not proceed upon its negligent misrepresentation claim. This Court granted further review because the question of the viability of a negligent representation tort action in the architect/contractor/no privity scenario is one of first impression for this Court; the question has split other state courts and the federal courts, see Linde, 602 A.2d at 901(dis-cussing competing authority); and the question has split the lower federal courts in Pennsylvania, attempting to predict how this Court would rule on the question in light of our previous applications of Section 552. Compare Palco, supra with Borough of Lansdowne v. Sevenson Env. Services, 2000 WL 1886578 (E.D.Pa.2000), at *4-*5 (unpublished memorandum by Weiner, J.). The question of the reach and scope of the action is a pure question of law; as such, this Court’s review is plenary. E.g. MCI WorldCom, Inc. v. Pennsylvania Public Utility Comm’n, 577 Pa. 294, 844 A.2d 1239 (2004). Further, “the standard of review for preliminary objections in the nature of a demurrer is limited; the question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1056 (1996) (quoting AM/PM Franchise v. Atlantic Richfield, 526 Pa. 110, 584 A.2d 915, 921 (1990)). Thus, this Court is charged with deciding whether, under the facts alleged in Bilt-Rite’s complaint, tort recovery is possible under Pennsylvania law. Citing Rempel v. Nationwide Ins. Co., 471 Pa. 404, 370 A.2d 366 (1977) (plurality opinion) and Gibbs v. Ernst, supra, BiltRite argues that this Court has recognized the tort of negligent misrepresentation and, in so doing, has approved the Restatement (Second) Section 552 formulation of the action. BilNRite further argues that, when this Court has set forth the elements of the negligent misrepresentation action (relying upon the Restatement for those elements), it has not included contractual privity. Instead, Bilt-Rite argues, this Court has focused on whether there was reliance upon the misrepresentations and the foreseeability of that reliance. Bilt-Rite argues that the focus on foreseeability, rather than privity, is sensible because it is “the foreseeability of one party using and relying upon the misrepresentations of another which creates the duty.” Brief for Appellant, 13. Bilt-Rite posits that the school district hired TAS to prepare plans, drawings and specifications with the intention of conveying those documents to contractors for purposes of bidding; in fact, the sole purpose of the design documents was for their use by contractors in the bidding process. Bilt-Rite argues that TAS knew that contractors would rely upon its designs and specifications in submitting bids and yet failed to exercise reasonable care in preparing those documents. Since Bilt-Rites reliance on the designs was both justifiable and foreseeable, Bilt-Rite argues, its complaint falls squarely within Section 552. In further support of its construction of Section 552, BiltRite notes that Comment h and Illustration 9 to comment h of Section 552 exactly describe this case. Comment h provides in pertinent part: h. Persons for whose guidance the information is supplied. The rule stated in this Section subjects the negligent supplier of misinformation to liability only to those persons for whose benefit and guidance it is supplied. In this particular his liability is somewhat more narrowly restricted than that of the maker of a fraudulent representation (see § 531), which extends to any person whom the maker of the representation has reason to expect to act in reliance upon it. Under this Section, as in the case of the fraudulent misrepresentation (see § 531), it is not necessary that the maker should have any particular person in mind as the intended, or even the probable, recipient of the information. In other words, it is not required that the person who is to become the plaintiff be identified or known to the defendant as an individual when the information is supplied. It is enough that the maker of the representation intends it to reach and influence either a particular person or persons, known to him, or a group or class of persons, distinct from the much larger class who might reasonably be expected sooner or later to have access to the information and foreseeably to take some action in reliance upon it. It is enough, likewise, that the maker of the representation knows that his recipient intends to transmit the information to a similar person, persons or group. It is sufficient, in other words, insofar as the plaintiffs identity is concerned, that the maker supplies the information for repetition to a certain group or class of persons and that the plaintiff proves to be one of them, even though the maker never had heard of him by name when the information was given. It is not enough that the maker merely knows of the ever-present possibility of repetition to anyone, and the possibility of action in reliance upon it, on the part of anyone to whom it may be repeated. Illustration 9 then sets forth a specific example regarding bids for a government construction contract: 9. The City of A is about to ask for bids for work on a sewer tunnel. It hires B Company, a firm of engineers, to make boring tests and provide a report showing the rock and soil conditions to be encountered. It notifies B Company that the report will be made available to bidders as a basis for their bids and that it is expected to be used by the successful bidder in doing the work. Without knowing the identity of any of the contractors bidding on the work, B Company negligently prepares and delivers to the City an inaccurate report, containing false and misleading information. On the basis of the report C makes a successful bid, and also on the basis of the report D, a subcontractor, contracts with C to do a part of the work. By reason of the inaccuracy of the report, C and D suffer pecuniary loss in performing their contracts. B Company is subject to liability to C and to D. Bilb-Rite avers that Comment h proves that the tort does not include a privity requirement, but rather, contemplates that the plaintiff may be a member of a group or class of persons for whose use the defendant supplies the information. Bilb— Rite also argues that Illustration 9 demonstrates that design professionals such as TAS should be deemed subject to liabili ty to' contractors like Bilb-Rite for negligent misrepresentations in their design documents. Bilt-Rite also submits that the Superior Courts own precedent does not require privity of contract in a negligent misrepresentation action and that federal district courts applying Pennsylvania law, as well as courts in other jurisdictions, have permitted contractors to maintain negligent misrepresentation claims against design professionals without requiring privity. Indeed, Bilb-Rite notes, a majority of the jurisdictions to consider the question have not required contractual privity. Finally, Bilt-Rite claims that the Superior Court’s reliance upon its precedent in Linde was misplaced because Linde involved a general negligence claim, not a negligent misrepresentation claim, which is distinctly different. In Bilb-Rite’s view, the economic loss rule does not bar the claim sub judice because negligent misrepresentation is a recognized exception to the economic loss doctrine. TAS’s response mirrors the reasoning of the courts below. Advancing a more traditional view of tort law, TAS responds that the economic loss doctrine precludes causes of action based upon negligence or negligent misrepresentation where the plaintiff claims only economic loss and the parties are not in privity of contract. TAS argues that the doctrine applies to services rendered by design professionals, and Pennsylvania courts and federal courts in Pennsylvania have held that design professionals cannot be held liable for purely economic losses to a party with whom they share no contractual relationship. TAS further argues that Section 522 should be construed as inapplicable to cases involving design professionals, and cites as support the Pennsylvania state and federal cases relied upon below, which have declined to apply Section 552 to design professionals absent privity. TAS argues that all of the cases relied upon by Bilb-Rite to reach a contraiy conclusion involve professions other than design professions. The trio of cases that comprise this Court’s recent jurisprudence on the negligent misrepresentation tort provide little guidance in resolving the specific issue in this appeal. Bortz v. Noon, supra, relied upon by the Superior Court, involved a real estate agent who allegedly failed to disclose to buyers that the septic system on the property the buyers were purchasing had not passed a dye test intended to show whether the system was functioning properly. After the septic system failed an initial dye test, the sellers’ real estate agent informed the buyers that the sellers would repair the system and had retained a contractor to perform repairs. Settlement on the property was delayed until the repairs were completed and the system passed a dye test. Approximately one month after the initial failed dye test, a representative of the title company involved in settlement informed the real estate agent that the system had passed a new dye test, and the agent relayed that information to the buyers. Neither the agent nor the buyers reviewed any written report. On the day of settlement, the proceedings were delayed because, according to the real estate agent, the county was inspecting the work on the septic system. During the actual settlement, the title company’s representative told everyone present, including the real estate agent and the buyers, that the system had passed the dye test. After settlement, the buyers discovered that the septic • system had not passed a dye test. The system was retested and failed, forcing the buyers to connect to the public sewer system at a cost of $15,000. The buyers filed an equity action against the real estate agency, the title company, and the contractor who repaired the septic system, seeking monetary damages and rescission of the sale. The chancellor denied rescission, granted judgment against the real estate agency in the amount of $15,300, and held that neither the title company nor the contractor were liable as they owed no duty to the buyers. On appeal, the Superior Court affirmed the judgment against the real estate agency, but reversed the finding in favor of the title company and the contractor, holding that both could be liable to the buyers for negligent misrepresentation. This Court granted allocatur limited to the question of whether the real estate agent had a duty to ascertain that the septic system had actually passed a dye test and whether her failure in this regard constituted a misrepresentation to the buyers. In distinguishing the tort of negligent misrepresentation from intentional misrepresentation, we stated: Negligent misrepresentation requires proof of: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation. See, e.g., Gibbs, 538 Pa. at 210, 647 A.2d at 890, citing, Restatement (Second) Torts 552. The elements of negligent misrepresentation differ from intentional misrepresentation in that the misrepresentation must concern a material fact and the speaker need not know his or her words are untrue, but must have failed to make a reasonable investigation of the truth of these words. Id. Moreover, like any action in negligence, there must be an existence of a duty owed by one party to another. Id. Bortz, 729 A.2d at 561. Although this Court acknowledged Restatement Section 552 through the citation to Gibbs, we did not purport to adopt Section 552 as a matter of Pennsylvania law. Indeed, the elements of negligent misrepresentation that this Court set forth in the Bortz decision are not identical to Section 552’s elements. The BoHz Court concluded that there was no special relationship among the buyers, the agent, the contractor or the title company that would require the real estate agent to engage in an investigation regarding the dye test. Further, we determined that the agent was not in a superior position to the buyers in terms of verifying that the system had passed the dye test. In addition to finding that the agent owed no duty to the buyers, we held that she had no duty to make an independent investigation of the contractor’s report because she had no contractual or agency relationship with the contractor. Gibbs v. Ernst, supra, considered the issue of negligent misrepresentation in the distinct context of adoption. The Gibbs had adopted a child whom the adoption agency repre sented to be a five-year-old boy who had been verbally abused and neglected by his mother. (It turned out the child was actually seven-years-old at the time.) The Gibbs had specifically informed the agency that they wanted to adopt a child who had no history of physical or sexual abuse or any mental or emotional problems. During the nine months between the placement of the child with the Gibbs and the finalization of the adoption, the Gibbs repeatedly asked the adoption agency if there was any information about the boy that had not been disclosed to them. They were assured that they had been provided everything that the county’s Children and Youth department had given to the agency. Immediately after the adoption was final, the child began to reveal severe emotional problems, becoming violent and aggressive toward younger children. After inpatient evaluations at two different institutions, the child was transferred by court order to Eastern State School and Hospital, declared dependent by the court, and placed in the custody of Philadelphia’s Department of Human Services (DHS). Shortly after DHS acquired custody, and nearly four years after the adoption was finalized, the Gibbs learned for the first time that the boy had been severely sexually and physically abused and neglected by his biological parents, that he had been in ten different foster homes during his first six years, that he had an extensive history of aggression and hostility towards other children, and that his biological mother had once attempted to sever a body part. Both Children and Youth and the adoption agency had all of this information in their possession prior to the finalization of the adoption, yet they failed to disclose it even though the Gibbs had specifically requested any negative information. The Gibbs sued the adoption agency and Children and Youth in the Court of Common Pleas of Bucks County, alleging wrongful adoption and negligent placement of an adoptive child. The defendants filed preliminary objections in the nature of a demurrer, which the trial court granted. The Commonwealth Court reversed, Gibbs v. Ernst, 150 Pa. Cmwlth. 154, 615 A.2d 851 (1991), and this Court granted further review of the viability of the Gibbs’ tort action. This Court first determined that the Gibbs’ complaint did not set forth novel theories of recovery, but rather advanced claims cognizable under long-standing common law pertaining to intentional and negligent misrepresentations. We noted that “Pennsylvania has long recognized the common law tort of negligent misrepresentation,” citing to cases from federal district and bankruptcy courts in Pennsylvania and our Superior Court. Gibbs, 647 A.2d at 891. In analyzing the negligent misrepresentation claim presented, we set forth the elements quoted later in the Bortz opinion and also cited to Section 552 with approval, albeit this Court did not explicitly state that it was adopting the Section 552 formulation as a matter of Pennsylvania tort law. The Gibbs Court emphasized, as the Bortz Court did, that “[a]ny negligence action is premised on the existence of a duty owed by one party to another.” Id. at 890. Recognizing that foreseeability is an important element of duty, we held that an adoption agency could only be liable to adoptive parents for those conditions reasonably foreseeable at the time of placement. Because the Gibbs had alleged that the adoption agency should have known that the affirmative representations it had made to the Gibbs regarding the boys past were false, this Court found that the Gibbs had stated a viable cause of action for negligent misrepresentation that should be permitted to proceed to trial. This Court’s plurality opinion in Rempel v. Nationwide Ins. Co., supra, involved alleged negligent misrepresentations made by an insurance agent. There, the plaintiff and her husband had purchased a thirty-year mortgage protection policy on the husbands life through a Nationwide agent. In the event of the husband’s death, the policy was to pay any outstanding mortgage balance on the Rempels’ home. Shortly after purchasing the policy, the plaintiff contacted the Nationwide agent to inquire whether Nationwide could match a policy offered by a competing insurer that would provide the same mortgage protection plus $5,000 in life insurance protection for a few dollars more per month. The agent consulted with Nationwide and then informed the plaintiff that Nationwide would provide a $5,000 whole life policy with a twenty-year family income rider, which would offer the same protection as the competing insurers policy for a few dollars per month over the cost of the original policy. Plaintiff and her husband opted to stay with Nationwide and take the new coverage and, thereafter, paid the premiums until nine years later when the plaintiffs husband died. After her husband’s death, the plaintiff telephoned the Nationwide agent who informed her that the policy would pay her approximately $16,000, representing the $11,100 outstanding mortgage balance plus the $5,000 life insurance benefit. A few days later, however, the agent advised the plaintiff that the policy would pay her only a lump sum of $10,430. The plaintiff sued Nationwide and its agent, contending that the agent had either negligently or fraudulently misrepresented that the policy he sold them would pay the outstanding mortgage balance plus $5,000 of life insurance. The trial court directed a verdict in the plaintiffs favor for $10,430. The court also denied Nationwide’s motion for a directed verdict on the plaintiffs remaining claims and withdrew the fraudulent misrepresentation claim from the jury, but permitted the jury to consider plaintiffs negligent misrepresentation claim. The jury found in favor of the plaintiff in the amount of $5,670, and the Superior Court affirmed. Rempel v. Nationwide Life Ins. Co., 227 Pa.Super. 87, 323 A.2d 193 (1974). This Court granted allocatur. The plurality cited with approval to Section 552, but did not expressly adopt it. Nationwide’s challenge on appeal focused on whether the plaintiff and her husband were justified in relying on the representations made by the Nationwide agent when they could have simply read the policy to discover the actual coverage the policy afforded. This Court determined that, under the facts of the case, the evidence was sufficient to present a jury question of whether the plaintiff and her husband had justifiably relied on the agent’s representations. In summary, although this Court has cited with approval to Section 552 on multiple occasions, this Court has never explicitly adopted Section 552 as the law in Pennsylvania, much less the specific comment and illustration which are relied upon by Bilt-Rite here. In BoHz, the most recent case, we listed the elements of the common law tort of negligent misrepresentation, elements which appear to be more general in nature than those in Section 552, which perhaps would make the tort available against a narrower class of tortfeasors. Thus, on their face, the Bortz elements would appear to apply to any allegation of negligent misrepresentation against any individual no matter what his occupation or relationship to the injured party. In contrast, Section 552 is more specific, appearing to apply on its face only to actions against those individuals who, in the course of their business, profession or employment, or in any other transaction in which they have a pecuniary interest, supply false information for the guidance of others in their business transactions. It is arguable that Section 552, due to its specific nature, was not necessarily intended to apply in a case such as Gibbs, because an adoption might not be considered a business transaction and because Children and Youth likely did not have a pecuniary interest in the adoption at issue, while the more general Bortz common law elements would apply in such a case. Thus, it would appear that, if this Court were to adopt Section 552, it would not supplant the common law version of the Pennsylvania tort, but rather, would serve to clarify the elements of the tort as they apply to those in the business of supplying information to others for pecuniary gain. General principles of tort law of necessity come into play in our examination of the common law tort of negligent misrepresentation and the tort embodied in Section 552, and those principles are particularly pertinent in this case. It is well established that, “[a] cause of action in negligence requires allegations that establish the breach of a legally recognized duty or obligation that is causally connected to the damages suffered by the complainant.” Sharpe v. St. Luke’s Hospital, 573 Pa. 90, 821 A.2d 1215, 1218 (2003) (citation omitted). “The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff.” Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1168 (2000). The Althaus Court further summarized the traditional considerations of public policy involved in any assessment of the existence of a duty of care as follows: “In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than ‘the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection’ from the harm suffered.... To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows: These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, ‘always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.’ [Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 14-15 (1953).]” 756 A.2d at 1168-69, quoting Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (1979) (citation and footnote from Sinn omitted). Accord Shan"pe, 821 A.2d at 1219. The factors utilized in determining the existence of a duty are well-settled: The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 756 A.2d at 1169 (listing cases). The concept of duty in the tort setting can be intertwined with contractual notions of privity, as is the case here, where the task is to determine whether the relationship between the parties gives rise to a duty. In Sharpe, this Court considered whether the lack of a contractual relationship between the parties precluded a finding that a duty existed between the parties. There, Federal Express contracted with the defendant hospital to collect urine samples from Federal Express employees for routine, random drug testing and then forward the samples to an outside laboratory for testing. The plaintiff, a Federal Express employee/courier, reported to the hospital to provide the required urine sample, which the hospital later reported as testing positive for cocaine. The plaintiff alleged that there were problems with the chain of custody of her sample, as a result of which it was misidentified and/or mishandled. Once the hospital investigated and verified the chain of custody to Federal Express, the plaintiffs employment was terminated. The plaintiff sued the hospital, claiming that it owed her a duty of care in regards to the collection and handling of her specimen, that it breached the duty of care, and that as a result, her test resulted in a false positive causing her to lose her job. The hospital filed a motion for summary judgment, arguing that it owed no duty to the plaintiff because the hospital’s contractual relationship was with Federal Express, not the plaintiff. The lack of a professional or contractual relationship, according to the hospital, obviated the existence of any duty to the plaintiff. The trial court granted the motion for summary judgment, finding that, where a third party engages an entity to perform employee drug testing, the employee cannot maintain a negligence action against the entity. The Superior Court affirmed, declining to recognize a duty on the part of the hospital where its role was limited to collecting the specimen. President Judge McEwen dissented, opining that because the plaintiff was already employed by Federal Express and was not merely seeking employment, there is a recognized duty on the part of the hospital, requiring it to abide by a standard of reasonable and prudent conduct to prevent any undue risk of harm caused by a false positive result. On further appeal, this Court, after citing the Althaus factors for determining the existence of a duty, found that the hospital indeed owed a duty to the plaintiff: As to the first of the Althaus factors, a sufficient relationship exists between the Hospital and Sharpe to justify the imposition of a duty upon the Hospital to exercise reasonable care in the collection and handling of the urine specimen, despite the absence of a contract between the two parties. Specifically, Sharpe personally presented herself to the Hospital, which was aware of the purpose of the urine screening; the Hospital, in turn, should have realized that any negligence with respect to the handling of the specimen could harm Sharpe’s employment. Sharpe, 821 A.2d at 1219. Thus, this Court recognized that a tort duty can arise absent privity of contract in that circumstance. With these established negligence principles in mind, we next turn to an examination of the persuasiveness of the cases relied upon by the courts below in support of the holding that Bilt-Rites negligent misrepresentation claim fails as a matter of law—ie., the Superior Courts decision in Linde and the federal district courts Palco decision. In Linde, the plaintiff, Linde Enterprises, was the low bidder who was awarded a contract for the reconstruction of a dam in Hazel Township owned by the Hazelton City Authority (HCA). HCA hired an engineering firm, WECO, to provide the specifications for the dam and to supervise its construction. Linde incurred significant cost overruns, which it attributed to faulty specifications provided by the HCA and negligent supervision by WECO, and filed suit against both HCA and WECO. Following a jury trial, the jury found in favor of the plaintiff and against both defendants. On appeal, the Superior Court reversed the jury verdict against WECO, finding that Linde could not recover in negligence against WECO because there was no privity of contract between them. The panel reasoned that a negligence claim cannot be based upon circumstances for which the law imposes no recognized duty of care on the defendant and that privity of contract is required between the parties in order to maintain a claim for professional liability. Since Linde had no contractual relationship with WECO and WECO owed no traditional duty of care to Linde, the panel held that WECO was not liable to Linde for its cost overruns, damages which were purely economic in nature. The panel further opined: Linde, 602 A.2d at 901 (footnote omitted). Thus, the Linde panel’s rejection of the claim derived largely from a concern that existing Pennsylvania law had yet to embrace this sort of action. Linde also claims that WECO as an architect drawing up design specifications owes a duty under Pennsylvania law to the contractors who apply specifications. Several states have allowed a contractor to sue an architect for economic damages suffered by negligent drafting of design specifications despite the absence of privity. See, e.g., Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984); Owen v. Dodd, 431 F.Supp. 1239 (D.C.Miss.1977) (applying Mississippi law); Shoffner Indus. v. W.B. Lloyd Const. Co., 42 N.C.App. 259, 257 S.E.2d 50 (1979). However, Pennsylvania is not one of them. Moreover, there does not appear to be a clear-cut majority position on the issue in other jurisdictions. See Annot. Tort Liability of Project Architect for Economic Damages Suffered by Contractor, 65 A.L.R.3d 249-265. We will continue the status quo, as Linde has not offered a compelling reason why we should deviate from the well-established requirement of privity to adopt a rule holding negligent architects directly liable for economic damages to contractors with whom they share no contractual relationship. In Palco, the U.S. District Court for the Middle District of Pennsylvania addressed the precise issue presented in this appeal in a case involving a construction project to rehabilitate a city-owned reservoir for the City of Harrisburg’s Department of Public Works. Pavex, Inc., was the general contractor and Brinjac-Chester Engineers (“Brinjac”) the registered architect/engineer on the job. Palco Linings subcontracted with Pavex to furnish and install a liner and cover at the reservoir. During the course of the project, complications allegedly caused Palco to incur substantial unexpected costs. When Pavex and the City refused to pay the increased expenses, Palco sued Brinjac for negligence and negligent misrepresentation. Brinjac filed a motion for summary judgment arguing, inter alia, that the economic loss rule barred the tort action. Palco countered that Pennsylvania applies the economic loss rule only in product liability cases and that Brinjac had mischaracterized its damages as purely economic losses. In granting Brinjac’s motion for summary judgment, the district court applied the economic loss rule as a bar to recovery in an action which it deemed to be contractual in nature: The rationale of the economic loss rule is that tort law is not intended to compensate parties for losses suffered as [a] result of a breach of duties assumed only by agreement. Compensation in such cases requires an analysis of damages which were in the contemplation of the parties at the origination of the agreement, an analysis within the sole purview of contract law. On the other hand, the policy consideration underlying tort law is the protection of persons and property from losses resulting from injury, Sensenbrenner v. Rust, Orling Neale Architects, Inc., 236 Va. 419, 374 S.E.2d 55 (1988), while the policy consideration underlying contract law is the protection of expectations bargained for. Id. Thus in light of these distinctions, to recover in tort a plaintiff must allege facts showing a breach of some duty imposed by law. In other words, to recover in negligence “there must be a showing of harm above and beyond disappointed expectations” evolving solely from a prior agreement. A buyer, contractor, or subcontractor’s “desire to enjoy the benefit of his bargain is not an interest that tort law traditionally protects.” See Redarowicz v. Ohlendorf, 92 Ill.2d 171, 177, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982) cited in Anderson Electric, Inc. v. Ledbetter Erection Corporation, 115 Ill.2d 146, 104 Ill.Dec. 689, 503 N.E.2d 246 (1986). Palco, 755 F.Supp. at 1271. Based upon the case law from Illinois which it deemed persuasive, the Palco court rejected the application of Section 552, finding that liability under Section 552 is limited to those in the business of selling information upon which customers rely in taking additional action. Id, citing Hi-Grade Cleaners, Inc. v. American Permac, Inc., 561 F.Supp. 643 (N.D.Ill.1982). The court concluded that Section 552 applies only to occupations such as “attorneys, abstractors of title, surveyors, inspectors of goods, operators of ticker services, and banks dealing with non-depositors’ checks.” Id, citing Moorman Manufacturing Co., v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982), Anderson Electric, Inc. v. Ledbetter Erection Corporation, 115 Ill.2d 146, 104 Ill.Dec. 689, 503 N.E.2d 246 (1986). Concluding that Palco was not induced by Brinjac’s specifications to take any action it was not already contractually bound to take due to its subcontract with Pavex, and because there was no separate business transaction between Palco and Brinjac, and thus no privity of contract, the court found that Palco could not maintain a tort action against Brinjac as a matter of Pennsylvania law. As the highest court in Pennsylvania confronted with a first impression issue of Pennsylvania law, this Court is not bound by Linde or Palco. It is notable that courts in other jurisdictions have reached a result contrary to Linde and Palco. For example, Nota Construction Corp. v. Keyes Associates, 45 Mass.App.Ct. 15, 694 N.E.2d 401 (1998), involved a subcontractor who bid on a school construction project based upon plans and specifications prepared by an architect retained by the school district. In the plans, the architect made certain representations regarding the area surrounding the septic system. Nota Construction sued the architect claiming that it had suffered economic losses directly caused by its reliance on the architect’s plans and specifications. The architect filed a motion for summary judgment arguing, inter alia, that Nota’s negligent misrepresentation claim was barred by the economic loss doctrine. The trial court granted summary judgment in favor of the architect. On appeal, the architect argued that the action was barred by the economic loss doctrine and that a design professional could not be held liable for negligent misrepresentation because the design professional is not in the business of supplying specific information to others to induce action. Rejecting both arguments, the Appeals Court reversed. As to the economic loss doctrine, the court noted that economic losses resulting from negligent misrepresentation are an exception to the economic loss doctrine. Id. at 405 (citing Craig v. Everett M. Brooks Co., 351 Mass. 497, 222 N.E.2d 752 (1967)). On the second issue, the court stated simply that it is logical that the general proposition that one who negligently furnishes services to another can be liable in tort should apply to design professionals, at least where they have reason to know that the putative plaintiff will be relying upon the architect’s work product: [T]he Supreme Judicial Court [of Massachusetts] has held that liability will be imposed in Massachusetts for the negligent furnishing of services to one not a party to the contract where the defendant knows that the party will rely on his services.... Accordingly, we see no reason why a design professional such as an architect should be exempt from liability for negligent misrepresentation to one where there is no privity of contract. This view is in accord with a number of other jurisdictions. Id. at 405-06 (footnote and citations omitted) (collecting cases). In another school construction case, Donnelly Construction Co. v. Oberg/Hunt/ Gilleland, 139 Ariz. 184, 677 P.2d 1292 (1984), the Arizona Supreme Court held that Section 552 governed an action by a contractor against an architect where the contractor had relied upon the architect’s plans and specifications in bidding on a school improvement project and then suffered economic losses as a result of errors in the plans and specifications. Notably, the court found Illustration 9 to Section 552 to be “particularly enlightening and [ ] pertinent to the case.” Id. at 1297. The court also found no privity requirement, employing the following persuasive analysis: There is no requirement of privity in this state to maintain an action in tort.... Rather, an action in negligence may be maintained upon the plaintiffs showing that the defendant owed a duty to him, that the duty was breached, and that the breach proximately caused an injury which resulted in actual damages---- Design professionals have a duty to use ordinary skill, care and diligence in rendering their professional services .... When they are called upon to provide plans and specifications for a particular job, they must use their skill and care to provide plans and specifications which are sufficient and adequate.... .This duty extends to those with whom the design professional is in privity ... and to those with whom he or she is not.... Id. at 1295 (citations to Arizona precedent omitted). Other jurisdictions have reached the same conclusions as the Nota and Donnelly courts in similar cases involving design architects or engineers. See, e.g., Robert & Company Associates v. Rhodes-Haverty Partnership, 250 Ga. 680, 300 S.E.2d 503 (1983) (where engineer knows that prospective purchasers of property could rely on his report as to condition of property, lack of privity does not shield engineer from liability to purchasers and solely economic damages are recoverable); Jim’s Excavating Service, Inc. v. HKM Associates, 265 Mont. 494, 878 P.2d 248 (1994) (low bidder on pipeline construction project could recover purely economic losses against engineer who prepared plans and specifications for project absent privity; adopts Section 552 and cites Illustration 9 with approval); Davidson and Jones, Inc. v. County of New Hanover, 41 N.C.App. 661, 255 S.E.2d 580 (1979) (architect liable to general contractor who submitted low bid for county construction project based on report submitted by architect for negligent misrepresentation, absent privity and where loss was purely economic); Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., 320 S.C. 49, 463 S.E.2d 85 (1995) (economic loss doctrine does not bar contractor from recovering, absent privity, against engineer on theory of negligent misrepresentation in design of project); John Martin Co., Inc. v. Morse/Diesel, Inc., 819 S.W.2d 428 (Tenn.1991) (Section 552 governs negligent misrepresentation claim by subcontractor that construction manager negligently supplied information intended for guidance of others so long as use of information was foreseeable; no privity required). We are persuaded by these decisions from our sister jurisdictions that: (1) this Court should formally adopt Section 552 of the Restatement (Second), which we have cited with approval in the past, as applied by those jurisdictions in the architect/contractor scenario; (2) there is no requirement of privity in order to recover under Section 552; and (3) the economic loss rule does not bar recovery in such a case. Recognizing such a cause of action, with such contours, is consistent with Pennsylvania’s traditional common law formulation of the tort of negligent misrepresentation. Section 552 sets forth the parameters of a duty owed when one supplies information to others, for one’s own pecuniary gain, where one intends or knows that the information will be used by others in the course of their own business activities. The tort is narrowly tailored, as it applies only to those businesses which provide services and/or information that they know will be relied upon by third parties in their business endeavors, and it includes a foreseeability requirement, thereby reasonably restricting the class of potential plaintiffs. The Section imposes a simple reasonable man standard upon the supplier of the information. As is demonstrated by the existing case law from Pennsylvania and other jurisdictions, and given the tenor of modern business practices with fewer generalists and more experts operating in the business world, business persons have found themselves in a position of increasing reliance upon the guidance of those possessing special expertise. Oftentimes, the party ultimately relying upon the specialized expertise has no direct contractual relationship with the expert supplier of information, and therefore, no contractual recourse if the supplier negligently misrepresents the information to another in privity. And yet, the supplier of the information is well aware that this third party exists (even if the supplier is unaware of his specific identity) and well knows that the information it has provided was to be relied upon by that party. Section 552 is not radical or revolutionary; reflecting modern business realities, it merely recognizes that it is reasonable to hold such professionals to a traditional duty of care for foreseeable harm. Like the court in Nota, we see no reason why Section 552 should not apply to architects and other design professionals. The rationale for this application was persuasively set forth by the Court of Appeals of North Carolina in Davidson, where the court stated that such a duty to foreseeable third parties flows from the architect’s contractual duties to the party retaining the architect, an approach we embrace: An architect, in the performance of his contract with his employer, is required to exercise the ability, skill, and care customarily used by architects upon such projects.... Where breach of such contract results in foreseeable injury, economic or otherwise, to persons so situated by their economic relations, and community of interests as to impose a duty of due care, we know of no reason why an architect cannot be held liable for such injury. Liability arises from the negligent breach of a common law duty of care flowing from the parties’ working relationship. Accordingly, we hold that an architect in the absence of privity of contract may be sued by a general contractor or the subcontractors working on a construction project for economic loss foresee-ably resulting from breach of an architect’s common law duty of due care in the performance of his contract with the owner. Davidson, 255 S.E.2d at 584 (citation omitted). We recognize that a design professional’s liability for economic damages to third parties cannot be without limits but, we are satisfied, Section 552 is sufficiently narrowly tailored as to ensure appropriate limitation. In John Martin Company, the Supreme Court of Tennessee, having adopted Section 552, discussed those appropriate limitations: The defendant is liable only to those, whether in contractual privity or not, for whose benefit and guidance the information is supplied. The information may be either direct or indirect. In that regard, the foreseeability of use is critical to liability. Because the information is negligently rather than intentionally supplied, courts have been careful to limit liability to only those whose use of the information is reasonably foreseeable: By limiting the liability for negligence of a supplier of information to be used in commercial transactions to cases in which he manifests an intent to supply the information for the sort of use in which the plaintiffs loss occurs, the law promotes the important social policy of encouraging the flow of commercial information upon which the operation of the economy rests. Restatement (2d) of Torts § 552 Comments (1977). John Martin Company, 819 S.W.2d at 431-82 (quoting comment a). This Court is also satisfied that specific recognition of the Section 552 formulation of this tort is consistent with this Court’s traditional approach to questions of tort duty. See Sharpe, supra; Althaus, supra. First, although an architect or design professional may not have a contractual relationship with the contractor who ultimately suffers economic damages in reliance upon the professional’s design, in an instance such as the case sub judice, the professional is well aware that the design will be provided to and utilized by others in their own business dealings. Second, on the question of the social utility of the conduct at issue, obviously design professional services play an important role in public and private planning. But, by the same token, given the important reliance placed upon such professional services, there is no reason to exempt such professionals from the tort consequences of a negligent failure to perform those services in a competent fashion. Third, given the limitations upon the Section 552 action which we have outlined above, this Court is satisfied that the tort more than adequately accounts for the nature of the risk the duty imposes and the foreseeability of the prospective harm. Fourth, the consequence of imposing such a duty upon design professionals is neither unreasonable nor unduly burdensome; it merely subjects them to the same sort of professional responsibility other professionals face. And finally, the Section 552 formulation of the tort will serve the overall public interest by discouraging negligence among design professionals, while not requiring any more of them than is required by the traditional reasonable man and foreseeability tort paradigm applicable to others. Accordingly, we hereby adopt Section 552 as the law in Pennsylvania in cases where information is negligently supplied by one in the business of supplying information, such as an architect or design professional, and where it is foreseeable that the information will be used and relied upon by third persons, even if the third parties have no direct contractual relationship with the supplier of information. In so doing, we emphasize that we do not view Section 552 as supplanting the common law tort of negligent misrepresentation, but rather, as clarifying the contours of the tort as it applies to those in the business of providing information to others. On the question of privity, as discussed earlier, this Court in Sharpe recognized that a similar type of tort duty can arise in the absence of privity. In any event, Section 552 imposes a duty of reasonable care upon the supplier of professional information for use by others. Both on its face and as a matter of logic, Section 552 negates any requirement of privity; therefore, we find that the absence of privity does not defeat a Section 552 claim, and does not negate Bilb-Rite’s claim in the case sub judice. As to the economic loss rule, the South Carolina Supreme Court took a reasoned approach to the rule in Tommy L. Griffin Plumbing, supra, as it discussed the realities of tort law versus contract law: [Our earlier] application of the “economic loss” rule maintains the dividing line between tort and contract while recognizing the realities of modern tort law. Purely “economic loss” may be recoverable under a variety of tort theories. The question, thus, is not whether the damages are physical or economic. Rather, the question of whether the plaintiff may maintain an action in tort for purely economic loss turns on the determination of the source of the duty plaintiff claims the defendant owed. A breach of a duty which arises under the provisions of a contract between the parties must be redressed under contract, and a tort action will not lie. A breach of duty arising independently of any contract duties between the parties, however, may support a tort action. Tommy L. Griffin Plumbing, 463 S.E.2d at 88 (footnote and citation omitted). The court noted that economic losses are routinely allowed in tort actions in other contexts such as legal malpractice, accountant malpractice, and architect liability. Like South Carolina, Pennsylvania has long recognized that purely economic losses are recoverable in a variety of tort actions including the professional malpractice actions noted by the South Carolina Supreme Court. We agree with that court that a plaintiff is not barred from recovering economic losses simply because the action sounds in tort rather than contract law. Here, Bilt-Rite had no contractual relationship with TAS; thus, recovery under a contract is not available to BilbRite. Having found that Bilt-Rite states a viable claim for negligent misrepresentation under Section 552, and that privity is not a prerequisite for maintaining such an action, logic dictates that Bilt-Rite not be barred from recovering the damages it incurred, if proven. Indeed, to apply the economic loss doctrine in the context of a Section 552 claim would be nonsensical: it would allow a party to pursue an action only to hold that, once the elements of the cause of action are shown, the party is unable to recover for its losses. Thus, we hold that the economic loss rule does not apply to claims of negligent misrepresentation sounding under Section 552. In light of the above, it is apparent that the decisions below cannot stand. Illustration 9 to Section 552 indeed sets forth a scenario that is closely analogous to the instant case and demonstrates how Section 552 should apply here. Accepting the allegations in Bilb-Rite’s complaint as true for purposes of the demurrer, TAS provided plans and specifications for the school project to the school district with full knowledge that those plans and specifications would be included in a bid package supplied to prospective bidders, and relied upon by those bidders. Bilt-Rite received the plans from the school district and, according to its complaint, relied upon them in calculating its bid, suffering economic damage as a result of alleged misrepresentations in the plans. This case falls precisely within the framework of Section 552, and therefore, it is cognizable under Pennsylvania law. Accordingly, the order of the Superior Court is reversed and the matter is remanded to the trial court for further proceedings. Former Chief Justice ZAPPALA did not participate in the consideration or decision of this case. Chief Justice CAPPY files a dissenting opinion. Justice SAYLOR files a dissenting opinion. . Section 552, which is entitled "Information Negligently Supplied for the Guidance of Others,” provides: (1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Except as stated in Subsection (3), the liability stated in Subsection (I) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. (3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them. Liability under Subsection (3), according to the Comment, typically would apply to a public officer who, by his acceptance of his office, has undertaken a duty to the public to furnish information of a particular kind. For example, this subsection would apply to a recording clerk, notary public or government food inspector. It may also apply to non-government entities who are required by law to provide information for the protection of segments of the population like insurance companies who must file certain financial information with the insurance commissioner, which information may be relied upon by potential insureds. Subsection (3) is not at issue in this case and we offer no view on whether it has any place in Pennsylvania law. . Appellant fails to note that Rempel was a plurality opinion, and thus, it lacks precedential value. Moreover, although both Rempel and Gibbs cite Section 552 with approval in discussing the tort of negligent misrepresentation, neither involved the architect/contractor scenario. . Pennsylvania law required the school district to provide the design information to contractors in order to solicit bids and then award contracts to the lowest responsible bidders. See 24 P.S. § 7-751. . For example, the child attempted to amputate a five-year-old’s arm, to suffocate a younger cousin, and to kill another cousin by hitting him over the head with a lead pipe. He also deliberately placed Clorox bleach in a cleaning solution, causing Mrs. Gibbs to burn her hands badly, and started a fire, seriously injuring a younger cousin.

OPINION OF THE COURT Justice NIGRO. Appellant Jody Lee Hess appeals from the order of the Superior Court, which affirmed Appellant’s conviction for driving under the influence (“DUI”) due to his failure to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). We reverse. At approximately 9:00 p.m. on the evening of April 18, 1997, Appellant was driving on State Road 42 in Madison Township, Columbia County, when he encountered a DUI checkpoint that was being conducted by the Madison Township Police Department. As Appellant proceeded through the checkpoint, a police officer requested that he produce his license and registration and asked him several questions. The police officer questioning Appellant detected a strong odor of alcohol emanating from Appellant and his vehicle, and asked him to step out of his vehicle and into an area adjacent to the checkpoint so that the police could administer field sobriety tests. After Appellant failed two such tests, the police arrested him, advised him of his constitutional rights, and provided him with implied consent warnings. Shortly thereafter, Appellant consented to having his blood drawn for the purpose of testing his blood alcohol content (“BAC”). A registered nurse, who was at the checkpoint with the police, withdrew a sample of Appellant’s blood approximately thirty minutes after he was stopped. A state-certified laboratory subsequently performed an analysis of the blood, which revealed that Appellant’s BAC was .241 percent. The Commonwealth charged Appellant with two counts of DUI for violating 75 Pa.C.S. § 3731(a)(1) (driving under the influence of alcohol to a degree that rendered the defendant incapable of driving safely) and 75 Pa.C.S. § 3731(a)(4)© (driving with a BAC of .10 percent or greater). Following a jury trial on November 24, 1998, Appellant was convicted for violating § 3731(a)(4) of the DUI statute, but was acquitted of the DUI charge under § 3731(a)(1). The trial court subsequently sentenced Appellant to a term of imprisonment of forty-five days to eighteen months. On January 5, 1999, Appellant filed a post-trial motion raising several issues. However, the motion was denied by operation of law on June 7, 1999, after the trial court failed to rule on it within 120 days. Appellant filed a notice of appeal to the Superior Court on June 16, 1999. On July 2, 1999, the trial court filed an opinion pursuant to Pa.R.A.P. 1925, which provides in pertinent part: (a) General Rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order.... (b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of. Pa.R.A.P 1925(a), (b). In its Pa.R.A.P. 1925(a) opinion, the trial court below stated that it had directed Appellant to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal (“1925(b) statement”), but Appellant had failed to do so. Nevertheless, the trial court speculated that, on appeal to the Superior Court, Appellant might raise the issues that were previously raised, but subsequently denied by operation of law, in his post-trial motion. The court then briefly addressed those issues, but dismissed each one as meritless. On appeal, the Superior Court affirmed the judgment of sentence, explaining that Appellant had waived all of his claims pursuant to this Court’s decision in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), which requires an appellant to comply with a trial court’s order directing him to file a 1925(b) statement. Although Appellant explained that he had never received the trial court’s order directing him to file a 1925(b) statement, and the District Attorney of Columbia County attested that no such order was served upon the Commonwealth, the Superior Court nonetheless found that “Appellant chose to ignore” the trial court’s June 17th order. Super. Ct. Mem. Op. at 2, 3. Stating that “such indolence hinders effective appellate review and constitutes a waiver of all claims raised on an appeal,” the Superior Court affirmed the judgment of sentence without addressing the merits of Appellant’s claims. Id. at 3. We granted allocatur to determine whether the Superi- or Court erred in deeming Appellant’s issues waived when both Appellant and the District Attorney avowed that they were not served with copies of the trial court’s 1925(b) order. Such an inquiry presents a question of law,' which is subject to plenary review by this Court. See, e.g., Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742, 748 n. 5 (2002); Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995). In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998), this Court concluded that “in order to preserve their claims for appellate review, appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925” and that “[a]ny issues not raised in a 1925(b) statement will be deemed waived.” Explaining the reasoning behind this strict waiver rule, we emphasized in Lord that “the absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review.” Id. at 308. We noted that Rule 1925 is intended to aid trial judges in focusing on the issues that a party plans to raise on appeal, and therefore, a 1925(b) statement is “a crucial component of the appellate process.” Id. Thus, the Court made clear in Lord that if an appellant fails to file a timely 1925(b) statement as ordered by the trial court, all issues will be waived for purposes of appellate review. ’ Of course, it is axiomatic that in order for an appellant to be subject to waiver for failing to file a timely 1925(b) statement, the trial court must first issue a 1925(b) order directing him to do so. See Commonwealth v. Thomas, 305 Pa.Super. 158, 451 A.2d 470, 472 n. 8 (1982) (appellant’s failure to file a concise statement regarding the reasons for the appeal was not a violation of Rule 1925(b) because the lower court never ordered appellant to file such a statement). Moreover, in Commonwealth v. Baker, 547 Pa. 214, 690 A.2d 164, 167 (1997), this Court concluded that when a trial court enters such an order directing an appellant to file a 1925(b) statement, the clerk of courts has a mandatory duty to furnish copies of the order to each party or their attorney. In reaching this conclusion, we relied on Pa.R.Crim.P 114 (“Rule 114”) (formerly Pa.R.Crim.P. 9025), which sets forth the obligations of the clerk of courts as follows: Upon receipt of an order from a judge, the clerk of courts shall immediately docket the order and record in the docket the date it was made. The clerk shall forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney, and shall record in the docket the time and manner thereof. Baker, 690 A.2d at 166 (quoting Pa.R.Crim.P. 114 (formerly Rule 9025)) (emphasis added). Noting that this Court is the promulgator of the procedural rules in this Commonwealth and, as such, we fully intended the word “shall” in Rule 114 to be mandatory, we stated that the language of the Rule leaves no question that the clerk’s obligations are not discretionary. Id. at 167. Further emphasizing the compulsory nature of the notice and recordation procedures set forth in Rule 114, we held that the lower courts had erred in determining that a local rule absolved the clerk of courts of the obligation to fulfill his duties under the Rule. Id. at 168; see Pa.R.Crim.P. 114 cmt. (“the notice and recording procedures are mandatory and may not be modified by local rule”). The Superior Court has also addressed the mandatory notice and recording procedures of Rule 114 as they relate to the strict waiver rule under Lord. For example, in Commonwealth v. Phinn, 761 A.2d 176, 178 (Pa.Super.2000), allocatur denied, 567 Pa. 712, 785 A.2d 89 (2001), the Superior Court examined the language in Rule 114 that provides that the clerk of courts “shall record in the docket the time and manner” of service of the notice. The trial court in Phinn had directed the Commonwealth to file a 1925(b) statement on January 3, 2000, and according to the Superior Court, it appeared as though the Commonwealth’s statement was untimely because it was not filed within fourteen days of the court’s order. The Superior Court noted, however, that the “docket contained] no information regarding when or how the court’s order was furnished to the Commonwealth.” Id. Given this vacuum, the Superior Court determined that: due to [the] lack of recordation of the relevant information, we cannot with any certainty fix the date of entry of the order. Thus, there is no basis for us to properly conclude there existed a failure to comply with the order’s directive to file a statement “within fourteen days” and we will proceed to our review of the Commonwealth’s issues on appeal. Id. Similarly, in Commonwealth v. Parks, 768 A.2d 1168, 1171 (Pa.Super.2001), the Superior Court held that the appellant’s issues were not waived under Lord because there was no record on the docket sheet indicating that the clerk of courts ever furnished the appellant or his counsel with a copy of the trial court’s 1925(b) order, an “obvious noncompliance with the express mandates” of Rule 114. Here, Appellant claims that the Superior Court erred in deeming his appellate issues waived for failing to file a 1925(b) statement when he never received the trial court’s June 17, 1999 order directing him to file a 1925(b) statement. Appellant points out that he submitted substantial support for his assertion that he did not receive the order, specifically: (1) an affidavit from his attorney swearing that the 1925(b) order was not served upon him; (2) affidavits from two employees of Appellant’s attorney stating that they searched the office files and were unable to locate such an order; and (3) an affidavit sworn out by the District Attorney of Columbia County stating that “a thorough search of our files has revealed that no request for a [1925(b) statement] was served upon the Commonwealth” in this case. Appellant also argues that certain deficiencies in the clerk of courts’ recording of notice on the docket sheet further demonstrate that he was not served with notice of the trial court’s 1925(b) order. Given the totality of the evidence showing that Appellant did not receive proper notice of the 1925(b) order, we agree with Appellant that the Superior Court erred in applying Loyd’s, strict waiver rule to his case. The docket sheet in the instant case reflects that on June 17, 1999, the trial court filed with the clerk of courts an order directing Appellant to file a 1925(b) statement within fourteen days. The docket sheet also indicates that Appellant’s attorney and the District Attorney were served with the same order. However, despite the plain requirements of Rule 114, the docket sheet does not indicate the date of service, nor does it reflect the manner of service. Given this failure to comply with the mandatory procedures under Rule 114, see Baker, 690 A.2d at 166-67, we are unable to ascertain the date upon which Appellant was purportedly served with the trial court’s 1925(b) order and, therefore, simply cannot conclude when, if ever, the fourteen day period under Rule 1925(b) began to run. As a result, like the court in Phinn, “there is no basis for us to properly conclude there existed a failure to comply with the order’s directive to file a [1925(b)] statement ‘within fourteen days.’ ” 761 A.2d at 178; see also Parks, 768 A.2d at 1171 (appellate issues not waived under Lord where there is “obvious noncompliance” with Rule 114 notice requirements). Cf. Frazier v. City of Philadelphia, 557 Pa. 618, 735 A.2d 113, 115 (1999) (holding that the Commonwealth Court erred in quashing an appeal for untimeliness when the docket did not reflect the actual date of notice of entry of order appealed from). Appellant has also provided more than ample evidence to back up his contention that he did not receive the court’s 1925(b) order. Appellant’s attorney avowed that he was not served with the order, and two of his employees swore that they searched the office and were unable to locate such an order. Importantly, the District Attorney also provided an affidavit swearing that the Commonwealth was not served with a copy of the 1925(b) order. These affidavits, combined with the clerk of courts’ obvious noncompliance with the mandatory procedures of Rule 114, compel us to conclude that Appellant did not receive the trial court’s 1925(b) order. See Baker, 690 A.2d at 168; Parks, 768 A.2d at 1171-72; Phinn, 761 A.2d at 178. Given these circumstances, where Appellant was not served with notice of the trial court’s June 17, 1999 order directing him to file a 1925(b) statement within fourteen days, Appellant cannot be penalized for failing to file a timely 1925(b) statement. We therefore conclude that the Superior Court erred when it found, pursuant to the strict waiver rule of Lord, that Appellant had waived all claims for purposes of appellate review. Accordingly, the order of the Superior Court is reversed and the matter is remanded to the Superior Court to review the merits of those issues raised by Appellant in his appeal. Justice NEWMAN and Justice SAYLOR file a concurring opinions. . Pennsylvania's DUI statute, contained in Section 3731 of the Vehicle Code, provides in relevant part: (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any 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. (2) While under the influence of any controlled substance ... to a degree which renders the person incapable of safe driving. (3) While under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving. (4) While the amount of alcohol by weight in the blood of: (i) an adult is 0.10% or greater. 75 Pa.C.S. § 3731 (a)(1) — (4)(i). . The court ordered that Appellant be paroled at the end of his minimum sentence for the balance of the maximum sentence, subject to various conditions of parole. The court also imposed on Appellant a fine of five hundred and ten dollars, plus the costs of prosecution. . Under Pa.R.Crim.P. 720 (formerly Pa.R.Crim.P. 1410), a trial court is required to decide a post-trial motion “within 120 days of the filing of the motion,” but if the court "fails to decide the motion within 120 days . .. the motion shall be deemed denied by operation of law.” Pa. R.Crim.P. 720(B)(3)(a). . Although tire trial court’s opinion does not indicate the date on which the court directed Appellant t.o file a 1925(b) statement, the record indicates that a 1925(b) order was filed with the clerk of courts’ office on June 17, 1999. . Our appellate courts have strictly applied the rule we announced in Lord. See, e.g., Cheltenham Township Sch. Dist. v. Slawow, 755 A.2d 45, 47 (Pa Commw.2000); In re C.R.J., 801 A.2d 1261, 2002 WL 1352429, at *1 (Pa.Super. June 21, 2002); Commonwealth v. Auchmuty, 799 A.2d 823, 825 (Pa.Super.2002); In Re Estate of Daubert, 757 A.2d 962, 963 (Pa.Super.2000) (citing Commonwealth v. Steadley, 748 A.2d 707 (Pa.Super.2000)); Commonwealth v. Overby, 744 A.2d 797, 798 (Pa.Super.2000). . The lower courts in Baker had found that a clerk of courts was not required to furnish a copy of a trial court's 1925(b) order where a litigant failed to abide by a local rule of court that required parties to provide self-addressed stamped envelopes upon filing a motion. As noted above, this Court reversed, concluding that the local rule as interpreted by the lower courts was invalid because it was inconsistent with Rule 114, which places the burden of furnishing copies of orders upon the clerk of courts. Baker, 690 A.2d at 167-68. We stated that: in the absence of some general rule to the contrary, courts are not prevented from requiring that litigants provide addresses or envelopes or even to bear the costs of the court associated with sending orders, etc.; however, courts may not render void mandatory duties imposed upon them or their employees or the parties by statewide mies as a price for non-compliance with a local rule. Id. at 168 (emphasis added). . In its brief, the Commonwealth asserts that it is "not unusual" that the Commonwealth did not have a copy of the trial court's 1925(b) order in its files because "normally the request would be given to the party who filed the appeal, not to a responsive party.” Brief for Appellee at 3-4. As discussed above, however, Rule 114 states that the order shall be sent to both parties. Moreover, to the extent that the Commonwealth is relying on some sort of local rule requiring that an order only be served on the filing party, our decision in Baker made clear that the procedures under Rule 114 are mandatory and that local rules providing otherwise are invalid. . We recognize that Appellant could have checked the docket sheet every day after filing his notice of appeal in order to determine whether the trial court issued a 1925(b) order. However, we will not charge appellants with such an obligation, particularly when our rules of procedure place the burden of proper notice and recordation squarely on the shoulders of the clerk of courts as part of his official duties. . We stress that our decision today in no way suggests that a party’s failure to file a Rule 1925(b) statement will be excused based merely upon bald allegations that the party did not receive a 1925(b) order. See Commonwealth, Dep't of Transp. v. McCafferty, 563 Pa. 146, 758 A.2d 1155, 1163 (2000) (appellants have no right to be deliberately obtuse as to the nature of a proceeding). As explained above, Appellant supported his contention by producing compelling affidavits, including one from the District Attorney prosecuting the case, as well as by noting the clerk of courts' noncompliance with Rule 114. While the strict waiver rule of Lord remains intact, we simply cannot deem Appellant’s appellate rights waived under the circumstances of this case. Cf. Ryan v. Johnson, 522 Pa. 555, 564 A.2d 1237, 1239 (1989) (the rule permitting ihe trial court to direct an appellant to file a 1925(b) statement and providing that failure to do results in waiver may not be employed as a trap to defeat appellate review). se undermine the dale designation for purposes of identifying the relevant compliance period.

Opinion by Mr. Chief Justice Moschzisker, Minnie C. Wineman petitioned the Orphans’ Court of Somerset County for a declaratory judgment to determine the “right, status and legal relations” of all parties who might have an interest in certain real estate, which she had “in charge” as surviving executrix of the estate of S. Anice Cryan, deceased, and had been “caring for and renting” since the latter’s death. In rendering the judgment prayed for, the court below so construed the will of decedent that the petitioner, one other of the devisees named in that document, and the heirs at law of a deceased devisee, were declared to be owners in fee of the premises in controversy, as tenants in common. The petitioner, hereinafter called plaintiff, being dissatisfied with the judgment, has appealed. Two principal questions are presented for our consideration. The first concerns the jurisdiction of the court below to render a declaratory judgment under the circumstances of this case. All parties joined in asking for such a judgment, but the question of jurisdiction was raised by this court when the present appeal came on for argument. The second question goes to the correctness of the construction placed by the court below on the will now before us. The Declaratory Judgments Act of June 18, 1923, P. L. 840-41, section 1, provides “That courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed”; further, that “No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for”; also, that judicial declarations made thereunder “shall have the force and effect of a final judgment or decree.” Section 2 provides that “Any person interested under a......will......may have determined any question of construction or validity arising under the instrument......and obtain a declaration of rights, status, or [and] other legal relations thereunder.” Section 4 provides that, “Any person interested, as or through an executor......or other fiduciary...... devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent,......may have a declaration of rights or legal relations in respect thereto — (a) To ascertain any class of......devisees, legatees, heirs, next of kin,......; or (b) To direct the executors, administrators or trustees to do or abstain from doing any particular act in their fiduciary capacity; or (c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” Section 5 provides that the foregoing enumerations are not to “limit or restrict” the right to render a declaratory judgment in any case where “a judgment or decree will terminate the controversy or remove an uncertainty.” Section 6 provides that “The court may refuse to render or enter a declaratory judgment or decree where [it]......Avould not terminate the uncertainty or controversy giving rise to the proceeding.” We early decided that, under declaratory judgment statutes, (1) relief could be had only in cases where an actual controversy existed or Avas imminent, and that, (2) even there, it could not properly be given where another established remedy was available. Had this first point not been so ruled, the Act of 1923 must have been held unconstitutional, as a legislative effort to turn the courts from tribunals organized to determine controversies judicially into those for the giving of legal advice, a function not contemplated by our organic law: Kariher’s Petition (No. 1), 284 Pa. 455, 463-4, 467-9; Ladner v. Seigel, 294 Pa. 368, 372-5; Reese v. Adamson, 297 Pa. 13, 15-17; Pittsburgh’s Consolidated City Charter, 297 Pa. 502, 504-8; Sterrett’s Est., 300 Pa. 116, 124. Showing the extreme view taken by some jurisdictions on the point in hand, all indications to date from the federal courts are that they cannot conceive of declaratory judgments as other than merely advisory judgments and therefore unconstitutional: Muskrat v. U. S., 219 U. S. 346, 356-7, 361-3; Liberty Warehouse Co. v. Grannis, 273 U. S. 70, 74-6; Liberty Warehouse Co. v. Burley, etc., Assn., 276 U. S. 71, 89; Willing v. Chicago Aud. Assn., 277 U. S. 274, 288-90; Ex parte Bakelite Corp., 279 U. S. 438, 454, and cases in note 14. As to the second point of construction, any interpretation other than that which we placed on the statute would have meant the practical abolition of all set forms of actions at law and equitable proceedings, a result in no wise intended by the legislature. The provision in section 1 of the statute, that the courts shall have the right to act thereunder “whether or not further relief is or could be claimed,” does not mean that proceedings by declaratory judgment are available whenever any controversy exists, but rather that such relief may be had even though, for full relief, other and additional legal remedies must be resorted to after the issues in the declaratory judgment proceedings have been determined. The act as a whole shows this to be its meaning. The right to construe wills and otherwise assist in the administration of estates by declaratory judgments has been repeatedly exercised by the courts. List’s Estate, 283 Pa. 255, 257-8, was an early instance where the court below, and we on appeal, construed a will in such a proceeding. We there said that relief by declaratory judg ment was “provided for the purpose of having issues speedily determined, which otherwise would be delayed [with] possible injury to those interested, if......compelled to await the ordinary course of judicial proceedings.” While a declaratory judgment was sustained in that case, our court stated that this character of relief Avas not available “in cases clearly aside from its obvious purpose”; a warning often since reiterated in one form or another. See the following cases: Ladner v. Siegel, 294 Pa. 368, 372-3, 375; Reese v. Adamson, 297 Pa. 13, 16-17; Pittsburgh’s Consolidated City Charter, 297 Pa. 502, 507; Taylor v. Haverford Twp., 299 Pa. 402, 406; Williamsport v. Williamsport Water Co., 300 Pa. 439, 448. In B’Nai B’Rith Orphanage v. Roberts, 284 Pa. 26, a will was construed, but the facts giving rise to the application of the Declaratory Judgments Act as a remedy do not appear". Kariher’s Petition (No. 1), 284 Pa. 453, 460, 462, is a case where this court passed upon the general constitutionality of the act now under discussion and laid down several rules as to its application. There three persons, claiming to be the owners of certain mineral property, negotiated a lease, and the proposed lessees questioned the title of one lessor. The controversy required construction of a will, and we held that relief by declaratory judgment was available. In Dommell’s Estate, 286 Pa. 509, the court beloxv construed a will in a declaratory judgment proceeding, and we affirmed Per Curiam, without stating the nature of the controversy or the facts which gave rise to it. In Brown’s Estate, 289 Pa. 101, 110, 122, 123, the court below, in a declaratory judgment proceeding, held invalid certain provisions in a decedent’s will, “as transgressing the rule against perpetuities.” We reversed in part, holding that some of the points determined were not ripe for decision and that others were neither a matter of controversy nor likely to become such, and “there fore, under the rules applicable to declaratory judgments,” would not be decided in that proceeding; but we entered judgment on the points properly involved. There again, the facts underlying the controverted points are not stated in the report. Smith’s Estate, 291 Pa. 129, involved the construction of a will. Appellants, claiming property as devisees, had contracted to sell it, and a question of law arose between them and the vendee as to whether the vendors possessed a fee simple estate. This controversy gave rise to the declaratory judgment, but its propriety as a remedy was neither raised nor discussed. Kidd’s Estate, 293 Pa. 21, 24, was a declaratory judgment proceeding entertained by the courts, where we said: “The controversy resolves itself into one [for] the proper construction of the will of Andrew Kidd.” All of the above seven cases involved the interpretation of wills, and in each of them relief was afforded by declaratory judgment; but in the following two cases, also relating to wills, we held that, for reasons there given; such a remedy was not available. In Lyman v. Lyman, 293 Pa. 490, 495-6, after some discussion concerning the hearing judge’s construction of a will, we said: “It is unnecessary to pursue this subject further,......since, on the record before us, neither the court below nor we are in a position to decide the point sought to be presented for adjudication...... This case is not ripe for a declaratory judgment; first, because, so far as the record shows, there is no controversy pending or threatened; next, if the contention that plaintiff’s heirs have an interest as purchasers is to be adjudicated, then it is necessary that a trustee or guardian ad litem be raised for his unborn children, who, in case of his death, might be his heirs.” In Sterrett’s Estate, 300 Pa. 116, 123-5, we reversed, and remitted the record with directions to dismiss the petition for a declaratory judgment, because neither an actual controversy nor one which was inevitable and imminent was shown. We there said: “[The record] shows no controversy whatever, only a desire by the petitioner to be instructed on the law,” and added that “this state of affairs does not permit a declaratory judgment.” As an additional ground of reversal we stated that, “From the Kariher Case down......, this court has uniformly ruled that relief will not be granted [by way of a declaratory judgment] where another established remedy is available”; further, that all questions brought up for determination in the declaratory judgment proceeding could have been decided by the orphans’ court upon adjudication of the trustees’ account; that, in point of fact, certain of them had been decided by that tribunal in disposing of one account, and the other questions could be decided on the adjudication of the final account. Cases involving questions other than the construction of wills, where declaratory judgments were allowed, are as follows: Aaron v. Woodcock, 283 Pa. 33; Devlin’s Trust Est., 284 Pa. 11; Cupp Grocery Co. v. Johnstown, 288 Pa. 43; Sloan v. Longcope, 288 Pa. 196; Garvin & Co. v. Lancaster Co., 290 Pa. 448; Girard Trust Co. v. Tremblay Motor Co., 291 Pa. 507; Evans v. Baldrige, 294 Pa. 142; Brown v. Levin, 295 Pa. 530; Malley v. Amer. Indem. Co., 297 Pa. 216; Schnee v. Elston, 299 Pa. 100; Taylor v. Haverford Twp., 299 Pa. 402; Reap v. Wyoming Valley Trust Co., 300 Pa. 156. In the following cases, involving questions other than the construction of wills, declaratory judgments were refused: Dempsey’s Est., 288 Pa. 458; Leafgreen v. La Bar, 293 Pa. 263; Ladner v. Siegel, 294 Pa. 369; Reese v. Adamson, 297 Pa. 13; Pittsburgh’s Consolidated City Charter, 297 Pa. 502; Williamsport v. Williamsport Water Co., 300 Pa. 439. In Kariher’s Petition (No. 1), supra, 471, we said: “Jurisdiction [by declaratory judgment] will never be assumed unless the tribunal appealed to is satisfied that an actual controversy or the ripening seeds of one exist [the italics are ours].” The expression “ripening seeds” is repeated in Lyman v. Lyman, 293 Pa. 491, 495; Reese v. Adamson, 297 Pa. 13, 15; Pittsburgh’s Consolidated City Charter, 297 Pa. 502, 506; Sterrett’s Est., 300 Pa. 116, 123. In the Pittsburgh Charter Case we explained that “ripening seeds” meant a state of facts indicating “imminent” and “inevitable” litigation. See also Sterrett’s Estate, supra, 123-4. If difference between the parties concerned, as to their legal rights, have reached the stage of antagonistic claims, which are being actively pressed on one side and opposed on the other, an actual controversy appears; where, however, the claims of the several parties in interest, while not having reached that active stage, are nevertheless present, and indicative of threatened litigation in the immediate future, which seems unavoidable, the ripening seeds of a controversy appear. The averments before us in this proceeding show that, though plaintiff conceives she is entitled to take the real estate involved either as owner of the entire fee (on the theory that an intestacy occurred when these properties were not sold at the expiration of the five or six years mentioned in the will of testatrix), or to share the fee with Mary E. Hall, the only surviving sister of the deceased testatrix (on the theory that all the persons originally named as devisees or beneficiaries in connection with the properties here in question having died, except appellant and Mrs. Hall, they are the only two who have any rights in the premises), yet she has never assumed possession under such a claim; that, since the death of the testatrix, in 1913, to the present time, appellant has taken charge of and collected the rent from the premises in her capacity as surviving executrix. The averments further show that Ella C. Wagner and Annie C. Turner, the children of testatrix’s deceased sister, Martha Jane Creswell, claim a vested interest, which neither plaintiff nor Mary E. Hall are willing to concede. These additional facts also appear: Under authority of the orphans’ court, the property here involved was mortgaged for $1,300, to meet debts of the testatrix, $300 of which mortgage has been paid off, in the course of appellant’s administration of decedent’s estate, and the balance is presently due and payable; the premises are now in need of extensive repairs, which will cost a considerable sum; when plaintiff attempted to borrow, in order to make these repairs, the trust company to which she applied for the loan expressed an unwillingness to advance money for that purpose until it was judicially determined who were the real owners of the property. Appellant suggests, and the other parties concede, that, “if [she held or claimed to hold] possession [in her own right], a rule to bring ejectment [might] be in order, but [that] she is only in possession as executrix”; that “partition might be resorted to, but this would result in a sale of the property, for it cannot be divided [and no one in interest desires to sell or purchase it at this time, hence], under present conditions, [partition] would mean a sacrifice of the property”; that, “if [there was] a surplus for distribution, the questions involved might be satisfactorily determined after the filing of an account by the executrix and a schedule of distribution passed upon by the court, [but] there is no money for distribution, and the rents are needed to take care of the encumbrance.” Finally, both sides argue that the above state of facts sufficiently shows that an actual controversy is imminent and inevitable, or that one actually exists (as found by the hearing judge) which properly can be adjudicated by a declaratory judgment. In this we agree; the pleadings show antagonistic claims between parties entitled to property which, concededly, is being administered by appellant as the personal representative of a decedent, and this controversy points to inevitable litigation, which is imminent, and may prove injurious to those interested unless the issues are speed ily determined. The executrix, having applied to the orphans’ court for guidance in the premises, and all parties in interest having asked for settlement of their rights and status relating to the property in controversy, that tribunal, under the circumstances here presented, was vested with power to declare such rights and status, and, incidentally, to construe decedent’s will. As stated earlier in this opinion, in List’s Estate, 283 Pa. 255, 257-8, we said that, where an actual controversy existed or litigation between those in interest was inevitable and imminent, one of the purposes of the Declaratory Judgments Act was to enable parties so situated to have “issues speedily determined which otherwise would be delayed, to the possible injury of those interested [in them], if they were compelled to await the ordinary course of judicial proceedings.” In Girard Trust Co. v. Tremblay M. Co., 291 Pa. 507, 525, we said that a prime purpose of the Declaratory Judgments Act was to “render practical help” in ending controversies, meaning those which had not reached the stage where other legal relief was immediately available, or those where, under the attending circumstances, old forms of action would not immediately afford the relief required; and we pointed out that the parties concerned in that case might have had their respective rights determined by declaratory judgment prior to the actual controversy there presented. Such a remedy is peculiarly appropriate to the orphans’ court, vested as it is with supervisory powers over the administration of decedents’ estates ; the court below did not err in granting that form of relief in the present case. The Fiduciaries Act of June 7, 1917, P. L. 447, 476, provides, by section 14, that “Rents of real estate accruing after the death of the owner......shall be assets for the payment of. debts of such decedent whenever the personal estate shall be insufficient therefor,” and that the orphans’ court having charge of any particular estate may authorize the personal representative to col lect such rents for such a time as might be necessary. Paragraph (c) of section 28 provides (pages 497-8) : “All powers, authorities and directions relating to real estate, contained in any last will and not given to any person by name or by description, shall be deemed to have been given to the executors thereof; but no such power, authority, or direction shall be exercised or carried into effect......except under the control and direction of the orphans’ court.” Both of these provisions are applicable to the facts here, involved, and in many instances, including the present case, the second of them can well be carried into effect by way of declaratory judgments. Returning to the facts at bar, for purposes of construing decedent’s will and passing on the correctness of the declaratory judgment entered by the court below, S. Anice Cryan, the testatrix, died August 30, 1913, leaving to survive her as heirs, Minnie C. Wineman (plaintiff below and appellant here), a lawfully adopted daughter; also C. Gertrude Mays, a sister, who died April 8, 1914, unmarried and without issue; Ella A. Beck, a sister, who died June 25, 1925, a widow, without issue; Martha Jane Creswell, a sister, who died January 12, 1929, a widow, leaving two children, Ella C. Wagner and Annie C. Turner (respondents below and appellees here) ; John V. Mays, a brother, who died May 29, 1929, unmarried and without issue; and Mary E. Hall, a sister, who is still living. Testatrix gave a house in Philadelphia and some personal articles to appellant; she gave also some small monetary bequests to her sisters and certain nephews and nieces. Then she provided for the properties here in controversy as follows: “I do not want my houses in Windber sold under five or six years and not then if my hears [heirs] want to keep them after all bills of repair on houses are paid, should my daughter Minnie want to finish paying for the Philadelphia home each month she is to take twenty dollars of the profits and I should say rent to help her to pay for the house she wants for her future home. Should she not do this but dispose of the Phila. [home] of which I place no restrictions she will only have her portion with the rest of the hears [heirs]. I want my houses kept up as I have always kept them. After the expenses are taken out of the rent not including Minnie’s twenty dollars a month I want ten dollars a year paid to my sister Mrs. Ella Beck to keep up the cemetery plot and flowers. Should Mrs. Beck not be able to attend to this then sister Gertrude. Should my Windber houses be sold in the time stated then I want enough money deposited in the bank to make this good for twenty years which would be $200. The rent of my houses making allowance for taxes and water and repairs first, the balance to be divided between Minnie, sister Ellie, Gertrude, Bro. John and Sister Elizabeth and Sister Martha equal shares. And should the properties be sold in five years, thes [these] I have named last should they be living namely Minnie E. Naylor, Ella A. Beck, C. Gertrude Mays, Mary E. Hall, Martha Jane Creswell, get equal shares and brother John $50, fifty dollars.” Testatrix appointed the present appellant, and one other person (since deceased) executors of her will, without specifically vesting them, or either of them, with power of sale over real estate or other special powers. Decedent, who evidently drew her own will, failed to make her meaning as clear as might be; but, in the words of the orphans’ court, it is plain that she “did not intend to die intestate as to her Windber properties,” for, at the beginning of the will, she states an intention to dispose of such estates as it had pleased God to entrust to her, thus plainly indicating a purpose to dispose of her whole estate. Her first provision as to these properties, “I do not want my houses in Windber sold under five or six years and not then if my [heirs] want to keep them,” denotes a gift; for “keep” means to “retain” (Webster’s Collegiate Dictionary), and one can retain only that which he already has, or possesses, and he cannot have or possess something belonging to another until the latter transfers it to him. The provision just quoted, standing alone, can be read only as giving the heirs the right to keep the houses in fee; in other words, the provision creates a fee. In this connection, see section 9, Act of April 8, 1833, P. L. (1832-3) 249-50, to the effect that “All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate.” (See also same language in Wills Act of June 7, 1917, P. L. 403, 407, section 12.) Testatrix’s suggestion that the properties should not be sold within five or six years from her death is in no sense a positive direction not to sell them in that period; this is made plain by the fact that, later on in the testamentary directions as to the Windber houses, provision is made for the event of a possible sale within five years, —though there is no mandatory direction to sell at any time. In short, the provisions which relate to a possible sale have no effect on the fee given to the heirs; and the inquiry as to those testatrix meant to be her heirs is answered by the provisions following the devise of the fee, where the names of those she intended to take the Windber houses are enumerated. While our conclusion is reached by a somewhat different course, yet we agree with the court below that, reading as a whole the parts of the will which deal with the properties here involved, the intention is shown that those persons testatrix names as her heirs should take the Windber houses as tenants in common, share and share alike. Among other provisions, the one giving her adopted daughter (appellant) the right to reserve $20 a month from the rents of these houses, should she desire to pay off a debt on what the testatrix calls her Philadelphia home, or, should the daugh ter not do this, but dispose of the Philadelphia home, she was “only [to] have her portion [of the Windber properties] with the rest of the [heirs],” evidences an intention on the part of testatrix that, aside from the right of her adopted daughter to enjoy temporarily this special allowance from the rents of the Windber properties, and subject to other charges placed on such premises, the persons mentioned as heirs were to take the properties in common, share and share alike. The last provision, in the part of the will we are now considering, concerning the division of such fund as might be realized from a sale of the Windber properties “in five years” (not after five or six years, the period first mentioned for a sale), which states that one of the heirs, namely, the brother, John, was to have only $50 if the houses were sold within that time, is no sufficient evidence that, in the event of the properties being retained; as they have been, testatrix intended the estate already devised to John, along with the other heirs, to be diminished. The provision under consideration cannot be given the effect of in any degree overriding the original gift of the feé; to diminish a fee once given requires language which plainly and unqualifiedly shows such to be the set purpose of testator: Coles v. Ayres, 156 Pa. 197, 200; Cassidy’s Est., 224 Pa. 199, 203; Long’s Est., 270 Pa. 480, 485-6; Smith v. Bloomington Coal Co., 282 Pa. 248, 250, 251; Conner’s Est., 286 Pa. 382, 386-7; Cross v. Miller, 290 Pa. 213, 216; Kidd’s Est., 293 Pa. 21, 24, 25, 26, 27. See also Freeman’s Est., 281 Pa. 190, 195. Some sixteen years have passed since the death of testatrix, and the properties in question are still unsold; so it may be assumed that the devisees “wanted to keep them,” and what would have happened had they been sold within the specified five years need not be further considered. But, in this connection, it may be noted that testatrix, though not so directing, indicates a wish to have the Windber houses retained in her estate till “all bills for repairs to them, owed by her, should be paid, and long enough to permit appellant to pay for the Philadelphia home at the rate of $20 per month, from the rents of these Windber houses, if her adopted daughter elected to follow that course. Testatrix apparently thought it would take at least five years after her death to accomplish these results; so, probably to discourage her brother John (the only male devisee) from attempting to force a sale within that period, after giving him a fee, along with the other devisees, she attempted to cut his share to $50, not in any and all events, but only in case the property devised was sold within five years. Whatever was her intention in that regard, it appears as a subordinate one, ill-expressed, which, as before said, cannot override or diminish the fee previously created: Pattin v. Scott, 270 Pa. 49, 51-4. We agree with the court below that, “Upon the death [in 1914] of C. Gertrude Mays, a sister [of testatrix], unmarried and without issue, her undivided......share ......in said real estate descended to her [three] surviving sisters and brother, and [the] adopted child of S. Anice Cryan”; that, “Upon the deáth [in 1925] of Ella A. Beck [sister of testatrix], a widow without issue, her undivided......share......descended to her [two] surviving sisters and brother and to Minnie C. Wineman, the adopted child of......S. Anice Cryan”; that, “Upon the death [in January, 1929] of Martha Jane Creswell [sister of testatrix], a widow, leaving to survive her two children, namely, Ella C. Wagner and Annie C. Turner, the respondents, her undivided...... share......descended to her said two children in equal shares”; that, “Upon the death [in May, 1929] of John Mays [brother of testatrix], unmarried and without issue, his undivided......share......descended to his sister, Mary Hall, to Minnie C. Wineman, the adopted daughter of S. Anice Cryan, and to Ella C. Wagner and Annie C. Turner, the children and heirs of Martha Jane Creswell, deceased.” It remains to say only that the original devisees enjoyed vested estates in the real property here involved; several of them (as hereinbefore recited) died intestate, after the testatrix, and, under section 16 (b) of the Intestate Act of June 7, 1917, P. L. 429, 439, appellant,— being an adopted child of the original decedent, and, because of this position, viewed in law as a niece of those devisees who died without issue (see Russell’s Estate, 284 Pa. 164, 166-8), — inherited a portion of their respective shares. These facts and the statute last cited must be taken into consideration to understand the correctness of the judgment entered in this case. The judgment of the court below, so far as it determines the interest of the present owners of the property in controversy to be “Minnie C. Wineman, one-third, Mary E. Hall, one-third, Annie Creswell Turner, one-sixth, and Ella Creswell Turner, one-sixth,” and that they hold in fee as tenants in common, is affirmed, costs to be divided pro rata according to the shares just stated.

The opinion of the Court was delivered by Kennedy, J. From the case, as stated, it appears that in the year 1790, a street, called Washington, of fifty feet in width, was laid out, inter alia, through land, subsequently acquired and owned by the plaintiffs in error, lying in the District of Southwark, by commissioners appointed for that purpose, by an act of the legislature, passed the 29th of September, 1787, (2 Smith’s L. 435.) This street was never opened through the land of the plaintiffs in error; and according to the sixth section of the act, it would seem, could not have been without a previous order made and 'granted by the supreme executive council, directing it to be done, which does not appear to have been applied for or obtained. The plaintiffs in error however, having become the owners of the land in dispute, on the 29th of July, 1828, by their deed of that date, sold and conveyed in fee simple to Joseph Marshall a lot of ground, part of the land then owned and held by them, through which the street was laid out, calling for it as a boundary on the south side theieof. The lot thus conveyed is described in the deed as follows, viz.; “ a certain lot or piece of ground, composed of two adjoining lots situate on the south side of Prime street, in the District of Southwark and county of Philadelphia, beginning at a distance of about forty-seven feet westward from the west side of a new street lately opened, leading from Prime street aforesaid to Federal street, and parallel with Delaware Fifth street, called Arabella street, containing in breadth on said Prime street thirty-one feet four inches, and in length southwardly between parallel lines, running at right angles with Washington street, on the east line thereof sixty-eight feet two inches, and on the west line thereof seventy-three feet six inches and two-thirds of an inch, be the same in depth more or less, to Washington street; where it contains in breadth, east and west, thirty-one feet; bounded on the north by the said Prime street, on the east by other ground, belonging to the said party of the first part, on the south by the said Washington street, as the same may hereafter be opened, and on the west by other ground belonging to the said party of the first part; intended to be this day granted and conveyed to Thomas Bickerton and John Putron: being part and parcel of a certain lot of ground, which Thomas I. Wharton and Arabella his wife, by indenture dated the 11th of February last past, and recorded &c., granted to the said party of the first part in fee simple: together with all and singular the improvements, ways, streets, alleys, passages, waters, water courses, rights, liberties, privileges, hereditaments, and appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the reversions, remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of the said party of the first part, in and to the same and every part thereof, &c.” Joseph Marshall having thus become the owner of the lot, so conveyed to him, by his deed, executed by himself,and his wife, on the 22nd day of July, 1833, conveyed it with its appurtenances in fee to the defendant in error: after which, that part of Washington street, which was made the boundary of it, never having been opened, and being then as well as now in the possession of the plaintiffs in error, was vacated and annulled under the authority of the act of the legislature, passed the 10th of April, 1834. The defendant in error, who was the plaintiff below, conceiving himself invested with the right and the title to one half of the ground covered by the location of Washington street, as far as it was made the boundary of his lot and conveyed by the plaintiffs in error to Marshall, instituted this ejectment to recover the possession thereof; which was then and still is withheld from him by the plaintiffs in error, who claim also to be the owners of it; because, as they say, they never parted with their right to it. The only question then is, have the plaintiffs in error by the terms of their deed of conveyance to Joseph Marshall, parted with their right to the soil to the middle of Washington street, so far as it is thereby made the boundary of the lot of ground therein described and conveyed? The defendant in error, being the plaintiff below, claimed to recover the land demanded, upon the ground that the owner of land, through which a highway or public street is laid out, either by his own act or that of the law, where he conveys the land afterwards on either side thereof, making it the boundary of his grant, is presumed in law to have conveyed all his right therein to the middle of such highway or street; so that if he owned the land in fee, and conveyed in fee by metes and boundaries therein mentioned, and among other boundaries, calls for the highway or street as one, the fee to the middle thereof will be considered as transferred. This doubtless may be regarded as a general principle of the law in regard to conveyances of land lying in the country; yet it is only so because the law presumes that the parties intended it should be so. But being a presumption merely, it will be repelled by any thing appearing on the face of the deed which goes to show that such was not the intention of the parties. That the whole of the road or street may be excluded, by express terms from the operation of the conveyance, is clear and cannot be denied: as where the land conveyed is described as bounded by the side or edge of the highway or street, without using negative ternas to exclude it; 3 Kents Comm. 434, (3d ed.) So the presumption of law may be rebutted, when the description is so specific as to show that it was not intended to pass a right to the soil further than to the edge of the highway, by which the land conveyed is bounded. This seems to be fairly inferrible from the qualified manner, in which Chancellor Kent has laid down the general rule on this subject in the last edition of his commentaries, (3 vol. 433-4;) and he seems disposed to carry the presumption of law, in this respect, quite as far as either the authorities, the practical understanding of the parties, or the sense of mankind, in general would appear to warrant. His words are,“it may be considered as the general rule, that a grant of land bounded upon a highway or river, carries the fee in the highway or river to the centre of it; provided the grantor at the time owned to the centre, and there be no words or specific description to show a contrary intent.” In Tyler v. Hammond, (11 Picker. Rep. 193,) it was held by the Supreme Court of Massachusetts, that a description of a parcel of land in a deed conveying it, which set it out by bounds and admea-surements in feet and inches, with less nicety than in the case before us, was so specific, as not to admit of being enlarged by and according to the words which immediately followed; which were these, “ be the same more or less, or however otherwise the same is bounded, or reputed to be butted and bounded; being the mansion house and land thereto belonging, improved by the late Royal Tyler at the time of his deceasethough had the particular description been less specific or the general words stood alone, the conveyance, in the opinion of the court would have passed considerably more land. Mr. Justice Wilde, in delivering the opinion of the Court, page 213 of the book quoted, says, “ when the lot conveyed is described by metes and bounds, and they clearly exclude the road, I apprehend it cannot be maintained that any part of the soil and freehold of the road will pass. If by the terms of the description the road is necessarily excluded, it is equivalent to an express declaration that no part of the road is intended to be conveyed: and it is perfectly clear that the fee in the road cannot pass as appurtenant to the land adjoining.” WNat is here said is particularly applicable whenever the quantity of land conveyed is small, and its extent is described with great nicety; as in all conveyances almost of city or town lots or parts thereof. And in the present case the ground intended to be conveyed is described with a remarkable, if not very unusual degree of nicety and minuteness, as if it were intended to preclude all possibility of including any more than came within the metes and bounds, as set out, not merely in feet and inches, but limited even to the very fraction of an inch. The line running from Prime street southwardly to Washington street on the east side of the lot, is described as being in length sixty-eight feet two inches, and the parallel line on the west side thereof, from the same street to the same, as being in length seventy-three feet six inches and two-thirds of an inch. Now how is it possible in such case, without disregarding the plain and unequivocal meaning of language, to say that the defendant in error is entitled to have his grant carried to the middle of Washington street, a distance of twenty-five feet, throughout its whole width, beyond the express limits of it, and beyond what he bargained for. If his claim, in this respect, were conceded to him, this would clearly be the case; because it is not pretended, that he has not got his sixty-eight feet two inches in the length of his line on the east side of his lot, and his seventy-three feet six inches and two-thirds of an inch in the length of his line on the west side, by stopping at the northern edge of Washington street: so that in claiming to go with his right, under the deed of conveyance from the plaintiffs in error, to the middle of Washington street as it was located, he wishes to have the whole width of the grant, under it, extended twenty-five feet beyond the express limits contained in the deed. The minute accuracy of description evidenced by the deed, and the additional quantity of ground, which would be embraced by extending the boundaries of the'conveyance beyond that description to the middle of Washington street being so great in its relative proportion to the quantity contained within the express limits, render it altogether impossible to believe for a moment that it would not also have been expressly included, had it been intended to be conveyed. It is needless to go into an inquiry here, as to the extent of the interest, or whether any at all could have been acquired, in the soil of the street, by the District of Southwark, and the nature of the authority over it, that might or would have become vested in them, if they had taken possession of and opened it. Before they could have done this, they might have been compelled first, under the provisions of the seventh section of the act of 1787 to have paid the plaintiffs in error, or those from whom the latter derived their right to the land, upon which the street was laid out, the value of all the damages, which they were likely to sustain in their improvements thereon made anterior to laying out of the street, by the subsequent opening of it. Seeing then that it never cost the district any thing; and that part of the street, in question here, having been vacated and annulled by the same authority, under which it was laid out, before any use or possession was had of it by the district or the public, it is clear that the district cannot be said to have any right now, either to the soil or to a passage over it. Indeed it may be observed, that it would rather appear not to have been the intention of the legislature, under the act of 1787, to take from the owners of the lands within the district, upon which streets, roads, lanes or alleys might be laid out and opened in pursuance thereof, any thing beyond what was necessary to make such streets, roads, lanes and alleys answer the purposes for which they were designed, and to secure to the public the full enjoyment of them as such. Had the street here been laid out and dedicated to public use, by the owners of the land at the time, through which it was located; and the lot afterwards been sold and conveyed by them or their assigns, as bounded by it, possibly a different question might have been involved in the transaction from any that can be made to grow out of this; though I do not see that it could have been raised very well in this form of action: and perhaps not in any form of action exclusively between these parties. In case of a lot, lying within the city of New York, being so sold, it seems to be held that the fee of the street remains in the owner of the land laying it out, subject however to an indefeasible privilege vested in the purchaser of the lot to a right of way on the street as an easement; which is considered as being founded upon an implied covenant contained in the deed on the part of the grantor, from the circumstance of his making the street a boundary therein, according to a map or plan made by him designating it as such. The street is also considered by means of the sale and the map, as dedicated to the public, by the vendor, when the municipal authorities shall think proper to open and improve it for that purpose. See the matter of Lewis street, (2 Wend. Rep. 472.) Livingston v. Mayor of New York, (8 Wend. Rep. 85.) Wyman v. Mayor of New York, (11 Wend. 486.) The cases also of the City of Cincinnati v. Les. of White, (6 Peters, 431,) and the Trustees of Watertown v. Cowen, (4 Paige’s Ch. Rep. 510,) lay down the rule, that if the owner of lands in a city or village lays the same out in lots and streets, and sets apart ground for a public square or common, it is a dedication of the streets or square to the public, of which the grantees cannot be deprived. And Mr. Justice Thompson, who delivered the opinion of the Court in the first of these two cases, seems to think that streets in a town or city may require a more enlarged right over the use of the land, in order to carry into effect the purposes intended, than may be necessary in an appropriation for a highway in the country; that even the fee itself may be held to remain in abeyance, until the city or town should become incorporated, and a competent grantee thus created to receive it, when necessary to effect the end and design of the dedication or appropriation. 6 Peters, 438-9. The judgment of the Court below must be reversed, and judgment rendered by this Court for the plaintiffs in error. Judgment accordingly.

OPINION OF THE COURT FLAHERTY, Justice. Petitioner Costigan was disbarred in December 1990 on account of a criminal conviction which concerned his mishandling of an estate. Now Costigan petitions this court for reinstatement pursuant to Pa.R.D.E. 218(c)(6). On June 29 and July 13, 1993 a hearing committee heard the matter, and on January 6,1994 the committee filed its report, recommending that Costigan’s petition be granted. Neither party took exceptions and on June 13, 1994 the Disciplinary Board also recommended reinstatement. On July 26, 1994, this court entered a rule to show cause why an order denying reinstatement should not be entered based on petitioner’s failure to prove that his resumption of the practice of law would not be detrimental to the administration of justice. The sole issue in this case is whether Costigan has met his burden of establishing, by clear and convincing evidence that he: has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that [his] resumption of the practice of law within the Commonwealth ... will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Pa.R.D.E. 218(c)(3)®. In Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986), this court stated: The primary purpose of our system of lawyer discipline is to protect the public from unfit attorneys and to maintain the integrity of the legal system---- In the case of disbarment there is no basis for an expectation by the disbarred attorney of the right to resume practice at some future point in time. When reinstatement is sought by the disbarred attorney, the threshold question must be whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon “the integrity and standing of the bar or the administration of justice nor subversive of the public interest.” Pa.R.D.E. 218(c)(3)® 509 Pa. at 579, 506 A.2d at 875. The “breach of trust” in this case arose from Costigan’s handling of an estate. See Disciplinary Counsel v. Costigan, 526 Pa. 16, 584 A.2d 296 (1990). As a result of his actions in handling the estate, Costigan was convicted of two counts of theft by deception, two counts of theft by failure to make required disposition of funds received, two counts of theft, one count of criminal conspiracy, and one count of aiding in the consummation of crime. Numerous appeals were taken and denied and Costigan served a prison sentence from October of 1987 until October of 1989, and was on parole until October 9, 1992. Throughout, he has maintained that he is not guilty. The facts underlying these convictions are that reputed drug dealer, loan shark, and mob figure Steven Booras was murdered on May 27, 1981. Booras’s two brothers and sister hired Costigan to represent the estate. The three told Costigan that the decedent has a son, Theodore, and that someone identifying himself as Theodore called the funeral home, but that Theodore had not been seen in many years. On June 3, 1981, the Booras sister informed Costigan that her brother and co-administrator had removed at least $200,-000 in cash from the decedent’s house in Philadelphia. She indicated that she had informed the FBI of this. Costigan suggested that the three administrators meet in his office the following day. On June 4, 1981 the meeting was conducted in Costigan’s office. At that meeting, John Booras brought to Costigan’s office a bag containing $270,000 in cash which he had removed from the decedent’s house and a safety deposit box which was jointly held with the decedent. With the administrators present, Costigan drafted and then filed a petition for letters of administration, naming the three siblings as co-administrators. The petition disclosed that the decedent had a son, Theodore, but that he had not been seen in some time and might be deceased. Costigan listed the value of the estate at $50,000. After the petition was filed, the four returned to Costigan’s office and the three siblings divided up the $270,000 which was in the bag. Costigan received $10,000 cash, which he characterized as a retainer. Three weeks later, Costigan had still not entered the $10,000 cash payment in his ledger. The next day, the three appeared in Costigan’s office with two cases of coins and bills of numismatic value and jewelry which was subsequently appraised at $27,000 and divided among the siblings. On June 9th and again on June 12th, 1981 an attorney for the decedent’s son, Theodore, called Costigan and informed him that Theodore was alive. During conversations with Theodore’s attorney in which Costigan detailed the assets of the estate, Costigan failed to reveal the distribution of cash and jewelry. Costigan explained that he did not inform the other attorney of the distribution of cash and jewelry because of attorney-client confidentiality. In the disciplinary case resulting in Costigan’s disbarment, this court stated: As the Board concluded, the actions which resulted in Costigan’s criminal convictions reflect wrongdoing and a serious lack of judgment. At the very least, Costigan allowed himself to be manipulated by his clients into commission of unethical and criminal acts. While it does not appear that he fostered all of the outrageous conduct of the Booras family, he cannot be absolved of his participation in it. The convictions demonstrate that Costigan participated in an unorthodox distribution of estate assets involving concealment of assets from the rightful heir. 526 Pa. at 24, 584 A.2d at 300. Since his release from prison, Costigan has been employed in a law firm as a paralegal. Witnesses testified that his work is exemplary. As was stated in the Keller case, our threshold question' is whether the magnitude of the breach of trust permits the resumption of the practice of law without a detrimental effect upon the integrity and standing of the bar, the administration of justice, or the public interest. Further, as Keller made clear, when an attorney is disbarred “there is no basis for an expectation by the disbarred attorney of the right to resume practice at some future point in time.” 509 Pa. at 579, 506 A.2d at 875. Pursuant to the requirements of Keller, then, we must consider first the nature of Costigan’s misconduct. If that misconduct is not so extreme as to bar readmission in itself, we must then consider whether the petitioner has met his burden of establishing that he presently meets the requirements of Pa.R.D.E. 218(c)(3)(i), i.e., that the resumption of his practice of law will not be detrimental to the bar, the administration of justice or the public interest. If the petitioner has met this burden, this court may grant the petition. Inevitably, meeting the requirements of rule 218(c)(3)(i) will involve the petitioner’s coming to terms with the conduct which caused his disbarment. In other words, the petitioner must demonstrate not only that he understands the nature of his wrongdoing, but also he must convince this court that he is not predisposed to commit future ethical infractions. We agree with the Office of Disciplinary Counsel and Costigan that his misconduct does not in itself bar consideration of his petition. We must address, therefore, whether Costigan has met his burden of establishing that he presently meets the requirements of Pa.D.R.E. 218(c)(3)(i). When asked about his convictions on cross examination, Costigan replied as follows: Q. And the conclusion that you have drawn from all of these proceedings is that if you were to be reinstated to the practice of law, you would have to do better to protect yourself from your own clients, am I understanding that correctly? A. That’s certainly true, yes. Q. Do you agree or disagree with this statement: “That the actions which resulted in Costigan’s criminal convictions reflect wrongdoing and a serious lack of judgment”? A. I think they reflect — they reflect — yeah, they do reflect both wrongdoing and a serious lack of judgment. But the wrongdoing wasn’t on my part. Q. So. A. The lack of judgment was mine. Q. So the actions that are referred to that reflect wrongdoing are not your actions? They are other people’s actions? A. That is correct. * * :}: % # Q. And it’s your conclusion today that the best way for you to avoid any further involvement in the criminal justice system or any further charges against you is to act to protect yourself from your clients such as by covertly taping conversations you have with them, is that ... A. No. I ... Q. Is that your testimony today? A. No, that is not my testimony today. I didn’t do it then I wouldn’t do it now. Q. So if you said earlier that you ... A. No, what I said earlier was that if I had known that these conversations were going to become so significant, yeah, I would have taped them, but I did not know and you’re not ever going to know in advance. And I don’t intend to start practicing taping people’s conversations. Q. But you do intend primarily to avoid such situations in the future? A. Absolutely. Q. To act in a way that would protect yourself from your clients? Because it’s really the clients that caused this kind of problem; is that correct? A. Well, in my case it happened to be. I think the proof of it, proof of the pudding is that the woman who was the star witness against me was the only one who walked away with any money. It is fair to say that Costigan’s view is that he was innocent of wrongdoing and that if there was any wrongdoing, it was on the part of his clients. Costigan also asserts that even though he was convicted of various crimes in connection with his handling of the Booras estate, he is not guilty of criminal conduct in that case and he should not be compelled to confess to a crime he did not commit as a condition for reinstatement to the bar of Pennsylvania. The Supreme Judicial Court of Massachusetts, addressing a similar claim, stated: The continued assertion of innocence in the face of prior conviction does not, as might be argued, constitute conclusive proof of lack of the necessary moral character to merit reinstatement. Though we deem prior judgments dispositive of all factual issues and deny attorneys subject to disciplinary proceedings the right to relitigate issues of guilt, we recognize that a convicted person may on sincere reasoning believe himself to be innocent. Hs sfc >H H* H* For [the convicted attorney], a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard-retained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practice law.... Honest men would suffer permanent disbarment under such a rule. Others, less sure of their moral positions, would be tempted to commit perjury by admitting to a nonexistent offense (or to an offense they believe is nonexistent) to secure reinstatement. In re Hiss, 368 Mass. 447, 333 N.E.2d 429, 436-37 (1975). We agree with the Massachusetts court that no person applying for reinstatement to the bar after disbarment should be compelled as a condition of reinstatement to confess to crimes that he does not believe he committed. Our focus here is not on Costigan’s criminal convictions, however, but on the legal and ethical significance of uncontested facts which emerged in the criminal case. Those facts include the following: Costigan prepared and subsequently filed documents listing the value of the estate at $50,000 as he sat in the same room with a bag containing $270,000 in cash belonging to the estate. He allowed the administrators of the estate to divide up $270,000 in cash and take this money into their possession rather than insisting that the cash be deposited in a bank account. He accepted $10,000 cash himself and then failed to enter this payment in his ledger. When he communicated with the attorney representing the deceased’s son and heir, detailing the assets of the estate, he failed to disclose that those whom he had appointed as co-administrators had divided among them $270,000 belonging to the estate. It may be fairly said that any one of these factors, standing alone, would not raise the specter of impropriety, but when they are taken together, the inescapable inference is that Costigan and the administrators intended to appropriate significant sums of money belonging to the estate for their own use without accounting to anyone except each other for the- misappropriated money. Moreover, even if this was not Costigan’s intent, he handled the case in such a way as to raise the inference that it was his intent, and thus, he gave the appearance of wrongdoing, which cast doubt on the integrity of the bar. The question before us is whether, on these facts, the applicant has met his burden of demonstrating by clear and convincing evidence that he has appropriate moral qualifications, competency and learning in law, and that he is, in a word, trustworthy. Pa.R.D.E. 218(c)(3)(i). Nearly fifteen years ago, this court quoted from the Maryland Court of Appeals’ decision affirming the disbarment of former Vice President Spiro Agnew: Few vocations offer as great a spectrum for good and honorable works as does the legal profession. The attorney is entrusted with the life savings and investments of his clients. He becomes the guardian of the mentally deficient, and potential savior for the accused. He is a fiduciary, a confidant, an advisor, and an advocate. However, the great privilege of serving in all these capacities does not come without the concomitant responsibilities of trust, candor and honesty. In fact, it can be said that the presence of these virtues in members of the bar comprises a large portion of the fulcrum upon which the scales of justice rest. Consequently, an attorney’s character must remain beyond reproach. Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 528, 426 A.2d 1138,1142 (1981), citing Maryland State Bar Association v. Agnew, 271 Md. 543, 318 A.2d 811 (1974). We agree with the Maryland Court that “trust, candor and honesty” are the fulcrum on which the scales of justice rest. In Costigan’s case, if he had acted in accord with such ideals at the time of handling the estate, he would not have been disbarred, and if he had demonstrated an understanding of their importance in the present proceeding, he would likely be reinstated, for such an understanding would probably qualify him under Pa.R.D.E. 218(c)(3)(i). Unfortunately, we do not believe that Costigan has any greater understanding of his responsibilities as an attorney for “trust, candor and honesty,” than he did at the time of his disbarment. He finds nothing wrong with his actions in the estate matter, and instead blames his clients for any wrongdoing. This failure to acknowledge his own wrongdoing disqualifies him from readmission to the bar under the terms of Pa.R.D.E. 218(c)(3)(i): he does not possess a basic understanding of legal ethics (competency); his readmission would be detrimental to the integrity and standing of the bar; and his readmission would be subversive of the public interest. The petition for reinstatement is denied and the rule to show cause is made absolute. CAPPY, J., concurs in the result. MONTEMURO, J., sitting by designation, files a dissenting opinion. . Pa.R.D.E. 218(c)(6) provides: In the event the Board recommends reinstatement and the Supreme Court, after consideration of that recommendation, is of the view that a rule to show cause should be served upon the respondent-attorney why an order denying reinstatement should not be entered, the same shall be issued setting forth the areas of the Court’s concern. A copy of the rule shall be served on Disciplinary Counsel. Within 20 days after service of the rule, respondent-attorney, as well as Disciplinary Counsel, may submit to the Supreme Court a response thereto. Unless otherwise ordered, matters arising under this rule will be considered without oral argument. . The decedent was the reputed head of the so-called Greek mafia. . In the criminal trial, the trial court writes: Defendant Costigan explained, painstakingly if unconvincingly, that he had not entered the $10,000 "fee” in his ledger and had kept the cash in his desk drawer for three weeks because he had anticipated that due to the conflicts between his clients, he would be removed from the case. His failure to divulge the distribution among the siblings to Terrill [the son's attorney] was explained on the basis of attorney-client confidentiality and that he had no obligation to account to an attorney professing to represent the heir. The understatement of the value of the estate in the application for letters of administration was explained as being the customary practice. He acknowledged that his handling of the estate was unorthodox and that his actions might have been misleading, but insisted that his motivations were noble. Commonwealth v. Costigan, Bill Nos. 4908-4915 March Term 1982 (Common Pleas, First Judicial District), filed January 25, 1985. . Pa.Rule Prof Conduct 8.4(c) prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation; Pa.Rule Prof Conduct 8.4(d) prohibits conduct that is prejudicial to the administration of justice.

Pee Ctjeiam, The principal contention in this ease was, whether, under the contract of 1889 the tonnage on which the gas bills were based was upon the steel billets that were used, that is, the raw material, or the product of it. The learned judge below instructed the jury that the tonnage was to be based upon the product. The able argument of appellant’s counsel has failed to satisfy us that this instruction was erroneous. There were a number of other items in plaintiff’s claim, which it is alleged were not included in the contract, and for which the defendant company should pay. Some of these claims were sustained in part by the learned judge of the court below and others were submitted to the jury under fair instructions. We do not think it is necessary to discuss them in detail. The appellant complains of that portion of the charge of the learned judge, embodied in the seventh specification, in which he refers to the course of dealing between these parties. We do not think this reference objectionable. It was used to illustrate the construction placed upon this contract by the parties themselves ; when we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it, as evidenced by their course of dealing under it. Judgment affirmed.

Opinion by Mr. Justice Moschzisker, On Sunday, April 9, 1916, a little before noon, at a point about three city blocks from the place where the collision giving rise to this case occurred, Jerome Garr invited plaintiff, Margaret B. Minnich, into an automobile, which he owned and was at the time driving upon the streets of Easton, Pa.; she accepted and took the right-hand front seat as a gratuitous guest. The motor proceeded south along Twelfth street toward Ferry street', which crosses the former highway at right angles; on Ferry street there is a single track line of defendant’s trolley road, on which suburban cars are operated in both directions, according to a regular hourly schedule, — eastbound cars being due at Twelfth street about five minutes before the hour and westbound five minutes after the hour. Ferry street is 69 feet 2 inches wide between house lines, and the first rail of the trolley tracks is 27 feet 4 inches from the north house line. Both Garr and plaintiff were well acquainted with the general character of the crossing, the location of the track and the trolley time schedule. The automobile was running at a speed of ten to twelve miles an hour, on the right of the middle of the street, six feet from the west curb line; the speed was not appreciably checked as the cross thoroughfare was approached, and, due to the construction of the buildings on both highways, no extended view could be had along Ferry street in either direction, before the house line was reached. The driver, however, gave warning by frequently sounding a “good loud” electric horn; and, at the first available place, looked east, then west. Thirty-seven feet north of the Ferry street house line, at a point six feet from the west curb of Twelfth street, it is possible for one to see 88% feet to the west along Ferry street, owing to the first story of the corner building being cut at an angle, and, at the house line, a view of two or three blocks can be had in that direction. Defendant’s car, approaching from the west, was nearing Twelfth street, at 25 miles an hour, but, in all probability, because of the rate of speed, neither the driver of the machine nor the motorman of the car saw the other in time to avoid a collision; the latter gave no warning whatever, and the former either could not or did not so control his machine as to bring it to a stop before reaching the track. In an effort to prevent a collision, Garr swung sharply to the left, and the motorman applied the airbrake; but the two vehicles crashed together, the “left front point” of the car striking the automobile a glancing blow. As they were drawing near the intersection of the streets, Miss Minnich, who was then “looking west for the car,” saw it at the first possible moment — -when, seated in the automobile, she was about 30 feet, and the car at least70 feet, from the place of collision; plaintiff at once made an outcry, exclaiming “Oh, the car!” and that was all she did to avoid the accident. The automobile was not seriously damaged, but Garr’s passenger suffered personal injuries; she brought suit against defendant and the case was submitted to the jury in a manner which is not complained of. Plaintiff obtained a verdict, upon which judgment was entered, a motion for judgment n. o. v. was denied, and this appeal followed. When dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to control or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery. Although a guest is not required to exercise the same degree of care and watchfulness as the driver, and the carelessness of the latter is not imputed to the former, yet a passenger must bear the consequences of his own negligence, when he joins in testing a danger; but the extent to which one, in the position of a guest, should appreciate an impending peril, and act in relation thereto, depends upon the facts peculiar to each case; unless these are manifest and the inferences to be drawn therefrom clear beyond peradventure, the issues involved must be submitted to the jury for determination. Moreover, the authorities recognize the fact that, in measuring the adequacy of the opportunity for control, there are occasions when any pronounced effort in that direction might do more harm than good. Cases on the governing principles just stated are cited in Hardie v. Barrett, 257 Pa. 42, 46-7; but, since the writer of that opinion occupies the same position here, he takes the opportunity to say that, while the rule there laid down is appropriately put for purposes of the case then under consideration, it is somewhat too narrow and limited for a guiding statement of general principles. We refer to the following additional authorities: Proctor v. Lehigh Valley Transit Co., 235 Pa. 373; Sisson v. Phila., 248 Pa. 140; McLaughlin v. Pittsburgh Rys., 252 Pa. 32; Lancaster v. Eeese, 260 Pa. 390; Laudenberger v. Easton Transit Co., 261 Pa. 288; Azinger v. Pa. R. R., 262 Pa. 242; Martin v. Pa. R. R., 265 Pa. 282. While not so deciding, we shall, for present purposes, assume Carr’s contributory negligence; but it by no means follows plaintiff can be held, as a matter of law, to have joined therein, or that she in any way contributed to the accident which caused her injuries. On the evidence, the court below very properly submitted these issues to the jury, and they were found against defendant; but appellant contends plaintiff confessed she willingly joined the driver of the automobile in testing a known danger, which, in itself, should put her out of court. Let us see how far this is true. On cross-examination, Miss .Minnich testified she knew a trolley car was “about due at that time”; defendant’s attorney then said, “But you were willing to take a chance with him in going across there without stop ping or slowing np to see if there was a car coming,” adding the query, “Weren’t you?” to which she answered, “Yes, sir.” This incident in the examination was called to the attention of the jurors by the trial judge, who told them to consider it. In so doing, however, they, no doubt, very properly took into consideration the fact that the words of plaintiff’s so-called confession of fault were really those of her cross-examiner, and that Garr, who was driving at a moderate speed, not only had his machine under apparent control, but was indicating a sense of care and responsibility by sounding his horn, while Miss Minnich was also keeping a lookout for danger; furthermore, the jurors had a right to regard the fact that the intersection in question is not peculiarly disadvantageous, so far as opportunities for view are concerned, nor, like a railroad crossing, inherently perilous. Plaintiff was not obliged to anticipate she was taking a chance on a trolley car advancing upon her without warning, at the negligent rate of 25 miles an hour (Simon v. Lit Bros., 264 Pa. 121), particularly when the near side of the street was a designated and usual stopping place; we cannot say, as a matter of law, she meant to suggest a willingness so to do — that was for the jury to decide. When all the elements present are given due weight, it is in no way apparent that plaintiff in any real sense joined the driver in testing a danger, or that, on cross-examination, she expressed a willingness to take any other or greater chance than every automobile passenger must take when traveling upon built-up city streets, in approaching a trolley line. The assignments of error complain only because defendant was not given binding instructions in its favor or granted judgment n. o. v.; they are overruled and-the judgment for plaintiff is affirmed.

The opinion of the Court-was delivered by Kennedy, J. The first error assigned in this case is, that the court erred in directing the jury that the recitals contained in the patent from the commonwealth, of the releases from Amos Loney and Francis Holland were sufficient evidence of their existence. Unquestionably these recitals would have been evidence against the commonwealth, as also all persons deriving title from her subsequently to the date of the patent; and the court below seem to have viewed the matter in this light, for they refer to the case of Penrose v. Griffith, 4 Binn. 231, to support their direction to the jqry in this behalf. Rut here the plaintiff in error is not claiming the land in question under a title from the commonwealth posterior in date to that under which the defendants in error, who were the plaintiffs in^ the couit below, claim to recover the possession of it. The plaintiff in error claims to hold the possession of it, first, as the vendee of the father of the defendants in error, under whom they claim as heirs at law; and in the next place, as the vendee of Amos Loney, who, according to the muniments of title given in evidence by the defendants in error themselves, was previously, at least to the granting of the patent of John Lee Webster, from whom the father of the defendants in error derived his claim to the land, a joint owner or tenant of it with John Lee Webster and Francis Holland. Although it may be doubtful as to the purpose for which this action was originally instituted, it is now distinctly admitted that it is only persisted in to enforce the payment of the purchase money from the plaintiff in error, who was the defendant in the court below. This being admitted to be the object of the suit, it is clear that the plaintiff ought not to be compelled to pay it, unless the defendants in error can show that it is in their power to give him an indefeasible title in fee simple for the land. But as it appeared on.the trial that Amos Loney and Francis Holland were, prior-to the granting of the patent, joint owners of the land with John Lee Webster, it was incumbent on the defendants in error to show that Loney and Holland had parted with their interest in the land, and that it had become vested in some way or other in the defendants in error ; otherwise it was perfectly manifest that they could not make a title for it to the plaintiff in error. It is not pretended that even the shadow of evidence was offered or given for this purpose, unless the recitals in the patent be considered evidence of it. Now although these recitals may be deemed good evidence against the commonwealth, who has admitted their truth, yet I am at a loss to conceive upon what principle or rule of evidence they can be considered binding in the slightest degree upon Loney and Holland; because, unless they would be evidence against them, for aught that appears, these persons still retain their respective rights to the land. They aie not parties to the patent, nor does it appear that they had any knowledge of its being granted ; nor was it shown in any way whatever that they had at any time given their assent to the truth of the recitals contained in it, or that it should be made to John Lee Webster alone. There is then not the least colour for holding these recitals to be evidence against them. And regarding the defendants in error as the vendors, and the plaintiff in error as their vendee of the land, is there not just, as little ground for, saying that the latter ought to be concluded by these recitals; or that as to him they are any evidence whatever of the capacity of the defendants in error to make a title for the land. As vendors demanding payment of the purchase money from the plaintiff in error, they were bound to show that the]'- had a good title to the land, and unless the evidence given of their title be such as would be good against all those who appear previously to have had an interest in it, it is obvious that their evidence of title must be considered defective. It is a misapprehension to think that the plaintiff in error, by entering into a contract for the purchase of the land, thereby admitted that the vendor or vendors had a good title to it, and that they were able to make him such for it. He is only to be considered as binding himself to pay the purchase money agreed on, in consideration whereof he is to receive, a title for the land that shall be shown by the defendants in error to be indisputably good. This action, then, being admitted by the defendants in error to be carried on for the purpose of compelling payment of the purchase money by the .plaintiff in error, they ought to have shown that they had it in their power to make an indefeasible title in fee for the land ; or otherwise have shown that they were unable to do so, and to have left it to the plaintiff in error to determine whether he would accept of such title as they were able to make, or otherwise surrender the possession of the land to them, so far as he had received it from those under whom they claimed : for there would be no propriety or justice in permitting the vendee to withhold both the payment of the purchase money and the possession of the land from the vendor, where he received the latter from the vendor under the contract for the sale, because the vendor happens to be unable to make such title for the land as the vendee, according to the terms of the contract, is bound to accept. The second error is, that the court were wrong in instructing the jury that the articles of agreement made between Thomas Smith and- Amos Loney vested no title, either legal or equitable, in Smith. The title papers produced and given in evidence by the plaintiffs below, showed that Loney had an interest in the land ; that he was the joint owner of an undivided third part of it with John Lee Webster and Francis Holland ; and it was not shown that he had parted with this interest in any other way than by his agreement with the plaintiff in error. By his agreement with the plaintiff in error, which is dated the 17th of October 1795, he seems to have claimed the whole of the land by right of survivorship, and agreed to sell and convey it to the plaintiff in error, upon his paying 17 shillings 6 pence per acre for it in the manner therein mentioned., Under this agreement, the plaintiff in error being in possession of the land, became entitled to hold it so far as Loney’s interest in the ■ land extended, until Loney himself should either seek to have the purchase money paid, or otherwise claim a surrender of the posses^ sion of his interest in the land. Under this view of this part of the case, it appears to me that there was error in the charge of the court to the jury in declaring that the articles of agreement between Loney and the plaintiff in error vested no interest or claim to the possession of the land in the latter. Upon the evidence given by the plaintiffs below on the trial, it is evident that they could not have claimed to turn Loney out of the possession of the land had he been in it and been the defendant. But the plaintiff in error, by his agreement with Loney, stood in his shoes, and consequently had the same right to resist the recovery of the defendants in error, that Loney himself would have had had he been the defendant in the court below. The third exception is, that the court erred in charging the jury that “if they believed'the testimony of Mr Potts, that in 1793 Thomas Smith declared he had.purchased the tract of land from John Lee Webster, the writing signed by John Skinner Webster would not cancel the agreement with John Lee Webster, but may be considered as fixing and settling the terms of that agreement referred to by the witnesses, and the title tendered would be good, and entitle the plaintiffs to your verdict.” If it had been shown on the trial of the cause that there was a-subsisting contract in writing at the death of John Lee Webster, between him and the plaintiff in error for the sale of the land, John Skinner Webster, as executor of the last will and testament of John Lee Webster, had full power to have carried such contract into execution, by securing the purchase money and making a deed of conveyance to the plaintiff in error for the land. And in case no such contract existed, he was authorized by the will during the minority of Isaac Lee Webster, the father of the defendants in error, to whom the land or the proceeds of it were devised, to sell and convey it. But without a contract made in writing by John Lee Webster, in his lifetime, for the sale of it to the plaintiff in error, John S. Webster, as his executor, had no authority given him by the will to carry it into effect. And after Isaac Lee Webster attained full age, the authority of John S. Webster to sell or dispose of the land under the will ceased. But from the face of the agreement itself, which John S. Webster made with the plaintiff in error, it is very evident that he did not consider himself invested with sufficient powers under the will to make such a contract, because 'he expressly professes to act in making it under a letter of attorney from Isaac Lee Webster, who, we must presume, had in the mean time attained full age. Thus distinctly excluding all idea of any former contract for the sale of the land by the testator, as well as that of carrying any such into effect. • Whether John S. Webster had any letter of attorney from Isaac Lee Webster authorising him to make such a contract, did not appear on the trial of the cause. But if he had, it appears to me-that it was clearly a relinquishment of all former contracts made by the testator with the plaintiff in. error. The defendants in error then, if they meant to carry into execution the contract made with John S. Webster, their father being dead, and the authority which John S. Webster had under the letter of attorney from him thereby'revoked, ought to have joined in executing a deed of conveyance themselves to the plaintiff in error for the land, showing likewise that they were invested with the title to it, instead of producing a deed of conveyance, as they did, from John S. Webster, purporting to be executed by him, under an authority contained in the will of John Lee Webster to do so, in order to carry into effect an agreement made by the testator in his lifetime with the plaintiff in error for the sale of the land. It is not alleged in this deed that the agreement made by the testator with the plaintiff in error was in writing; nor was any evidence given to show that there was any such agreement existing in fact, to authorize John S. Webster to make the deed. Neither is the existence of such an agreement reconcilable with the previous conduct of John S. Webster, in making the agreement with the plaintiff in error when he professed to have and to act under a letter of attorney from Isaac Lee Webster. The deed of conveyance executed by him under all these circumstances must be regarded as a nullity, and of no efficacy whatever: and the court below were wrong in the view which they took of this matter and submitted to the jury, by connecting it and the contract which John S. Webster made with the plaintiff in error at all with a contract of which some of the witnesses spoke, and said to be made with the testator in his lifetime, as constituent parts of the same arrangement. For, supposing an agreement between John Lee Webster and the plaintiff in error for the sale of the land to have existed, the agreement afterwards made by John S. Webster with the plaintiff in error may well be considered a relinquishment of it, as it purports to be made by John S. Webster in an entirely different character from that of the representative of John Lee Webster, and for and on behalf of a different person; and at a time too when the land was in dispute, and an action of ejectment was pending against the plaintiff in error, to recover it from him under a title altogether adverse to that under which the defendants in error claim. The fourth error is, that the court below charged the jury that the plaintiffs below were not bound to tender a deed of conveyance before the institution of their ejectment. If the plaintiffs below had the legal title in them to the land, that was clearly sufficient at law to enable them to maintain the a,ction of ejectment; and it was only on principles of equity that the defendant there could claim to defend against the plaintiffs’ recovery of the possession of the land. Then what did equity require the defendant below to do in order that he might be protected in the possession of it? Certainly to pay the purchase money: and nothing short of that, as it appears to me, could save him. By the terms of his contract, he had no right to demand a deed of conveyance until he paid the purchase money: and not having offered to pay it, he was neither in law, nor yet in equity, entitled to demand a deed of conveyance. And not being entitled himself to demand it, equity could not interpose to keep him in possession of the land. A vendee under an executory contract for the purchase of land, who has obtained the possession of it under his agreement, can only defend himself in that possession in Pennsylvania, where we have no court of chancery, upon such ground as would entitle him to a decree of injunction by a court of equity against his vendor, who was proceeding by action of ejectment at law to turn him out of the possession. We must be careful not to confound the vendor’s proceeding by action of ejectment for the purpose of enforcing the payment of the purchase money,, with his proceeding in a mere personal action founded upon a breach of the contract of'sale itself. The action of ejectment in such case is not founded upon the contract, but rather upon the legal title to the land still being in the plaintiff, who is not bound by his contract to part with it until he shall have received from the defendant the purchase money. And the defendant having failed to pay it according to the terms of his contract, has no claim even in equity to hold the possession. But the plaintiff, if he means to. proceed by a personal action for a breach of the contract, as by covenant or assumpsit, (and the payment of the purchase money and the making of the deed are, by the terms of the contract, to be considered simultaneous acts) must, before bringing his action, execute and tender a deed of conveyance to the defendant. Judgment reversed, and a venire de novo awarded.

Mr. Justice Gordon delivered the opinion of the court, October 2d 1882. The reservation in the agreement of December 5th 1870, between Wood & Co. and Kirkpatrick, is of “all timber suitable for sawing, also all minerals.” The defendants, who claim under a lease from the vendors, in the agreement above stated, contend that it is their right, under the reservation, to enter upon, and take from, the premises in said agreement described, all the petroleum, or mineral oil, that may be found therein. This contention can be sustained only under the hypothesis that the word “minerals” in the reservation includes petroleum. The court below refused to sustain the interpretation put upon the agreement by the defendants, and entered judgment, on the case stated, for the plaintiff. In this we think it was right. The whole argument used for the purpose of convincing us that this decision is not correct is based on the allegation that petroleum is a mineral. It is true that petroleum is a mineral; no discussion is needed to prove this fact. But salt and other waters, impregnated or combined with mineral substances, are minerals; so are rocks, clays and sand; anything dug from mines or quarries; in fine, all inorganic substances are classed under the general name or minerals: Bon. L. Die.; Wor. Die.; Dana’s Geology; Grey’s Botany. But if the reservation embraces all these things, it is as extensive as the grant, and therefore, void. If, then, anything at all is to be retained for the vendor, we must, by some means, limit the meaning of the word “ minerals.” But the rule by which this may be done is well stated by Chief Justice Gibson in the case of the Schuylkill Navigation Co. v. Moore, 2 Wh. 477, as follows: “ The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for,” continues the learned chief justice, “ it may be safely assumed that such was the aspect in which the parties themselves viewed it.” So, Mr. Justice Kennedy, adopting this same rule, in the case of Gibson v. Tyson, 5 Watts 34, when construing an exception in a deed “ of all mineral or magnesia of any kind,” says, that by the bulk of mankind nothing is considered as a mineral exceptt such things as be of a metallic nature, such as gold, silver, copper, lead &c., and that in looking at the deed before him, under the general understanding, he would have hesitated about classing chromate of iron as a mineral, except that, from the parol testimony, it appeared the parties themselves regarded it as a metallic ore of some kind. But if a doubt was raised as to the popular classification of the chromate of iron, a well known mineral, what shall we say of oil, which is regarded, even by science and law, as a mineral oidy because of its inorganic character, oi, as in Stoughton’s Appeal, 7 Nor. 198, because of its forming part of the freehold from which it is taken? Certainly, in popular estimation petroleum is not regarded as a mineral substance any more than is animal or vegetable oil, and it can, indeed, only be so classified in the most general or scientific sense. IIow, then, did the parties to the contract under consideration, think and write? As scientists; or as business men, using the language and governed by the ideas of every-day life ? As we have before observed, if this reservation is to have a strictly scientific construction it is as extensive as the grant, hence, works its own destruction; on the other hand, if we adopt the popular understanding we cannot regard petroleum as a mineral. Moreover, we may bo very sure that when Wood & Co. made their contract with Nirkpatrick, they did not intend to reserve the mineral oil that might afterward be found in the land, otherwise that intention would have been exjmessed in no doubtful terms. They were, doubtless, at that time unaware of the character of the property as oil territory. But if they did entertain such an idea, and expected to reserve oil under the general term “ mineral,” they were mistaken, and should have known that they were using that word in a manner not sanctioned by the common understanding of mankind, hence, in a manner that could not be approved by the courts of justice. The judgment is affirmed.

Opinion by Me. Justice Kepiiaet, Appellant, Nannie G. Bradley, in 1904, at the age of twenty-five, while employed as a milliner, met Archibald M. Stevenson, the decedent, in Pittsburgh. Thereafter, as she continued in this and other similar positions, the acquaintance ripened into an attachment, followed by a more intimate relation; how soon this occurred after their first meeting does not appear; it was left open to an inference that it was shortly afterwards, and continued until she went to Youngstown, Ohio, and thereafter. Frequent jaunts from Youngstown were taken by them, some quite lengthy, and, as it was inconvenient under such circumstances to travel on a boat or live at hotels as unmarried persons, they registered as man and wife; during these times, when necessity demanded, because a curious situation would be otherwise presented, Stevenson introduced claimant as Mrs. Stevenson. Business and no doubt pleasure required her repeated journeys to Pittsburgh, on such occasions very often staying over night with Stevenson at various hotels, of course as his wife. In 1911 Miss Bradley engaged in millinery business at Youngstown. This was arranged by Stevenson paying a large part if not all of the cost, and keeping the claimant supplied with money at all times while conducting this business. Whatever may have been the real purpose of the establishment in Ohio, decedent’s mother, to whom he was apparently devoted, and to whom he would in time owe much, was living, and his duty, to the point of not marrying, was, as he said, to her; and it may also be inferred he did not want her to know of his unbecoming conduct, which might prove disastrous. Whether the Ohio arrangement was for claimant’s benefit or to screen his acts, he knew where Miss Bradley was located at all times, visiting there nearly every Sunday. He presented her with jewelry, money in large sums and valuable shares of stock. Early in 1918, a Miss Wise, living in Youngstown, was arranging for her coming marriage to a soldier in camp at Asheville, N. C. The date for the wedding was fixed for the 21st of March. Claimant and Miss Wise were friends. Claimant had inserted an item in the society column of a Youngstown newspaper to the effect that she was to be married to Stevenson March 20th, and, after a trip to Florida and other southern points, they would reside in Pittsburgh. Stevenson did not appear in Youngstown on the day set for the wedding, notwithstanding the fact that the distance is very short. He gave as an excuse, according to Miss Bradley, that he was securing a loan from a bank in Tarentum, but was disappointed, and would have to apply to a Pittsburgh bank. Banking hours close at three o’clock, and Youngstown is within an hour or so’s ride from Pittsburgh; on the day fixed for the wedding, Miss Bradley came to Pittsburgh and left in company with Miss Wise for Asheville, with the understanding that Stevenson was to follow. Miss Wise’s wedding occurred on the 21st of March, and Stevenson joined Miss Bradley at Greenville, N. C., on the 28th. They remained at this place a few days, and went thence to Knoxville, Tennessee. There appellant insisted on marriage. The excuse for delay had disappeared; his mother had been dead for five years and the engagement was now nearly fourteen years old. He was then informed the trip would end unless they were married. This conversation occurred, which claimant states is a contract of marriage : “I told Arch we would discontinue our trip unless we were married, I could not go any further on the trip, and Arch came across the room, took me in his arms, saying, Nancie, as long as you live I would not give you up, I will not give you up as long as I live; ......from to-night on I am going to give you my name and protect you; ......you are my wife, I always considered you for years as such; ......from to-night on we are married,......I will give you my name and pro tect you as long as I live. Now,......we are as near and dear to each other as it is possible for us to be, from now on you are Mrs. Stevenson,’ and I was satisfied. Q. Did you agree to that? A. I did.” They continued the journey, living at hotels as man and wife, later returning to Pittsburgh. Claimant, in April, moved her furniture from Youngstown into an apartment house at Beechview, Pittsburgh; here Stevenson paid the house bills, including rent. The parties were not introduced as husband and wife, except by relatives of claimant. She was known to tradespeople in that vicinity as his wife, but not to the people generally or any part of them, save as indicated. She had few guests except relatives; to these few she was known as Mrs. Stevenson. Later, when visiting Youngstown or her uncle, she was addressed by letter as Mrs. A. M. Stevenson. The reason for this is obvious, — it enabled them to continue the deception. Decedent never introduced her as his wife, nor was there an announcement, oral or written, of the fact of marriage. While an apartment was maintained at Beechview, many miles from deceased’s usual place of abode or where his friends and acquaintances lived, Stevenson kept another woman in a different part of the city. Appellant knew of this, and would accompany him to her house, remaining outside or at some theater until his visit with the other woman was over. He maintained a residence on Negley Avenue, where his clothing was kept; in this district he also voted. Claimant let rooms in the apartment to others, and, after Stevenson would leave in the evening, she was known to go out and not return until late at night or possibly the next morning. Stevenson died February 1, 1920, intestate, possessed of a considerable estate, consisting of real and personal property. His immediate blood relatives were a brother and sister. Appellant petitioned for the allowance of $5,000 as the widow of decedent, and the court below, after full hearing, denied the petition, holding claimant was not Ms wife but his kept mistress. The present appeal challenges the correctness of this finding. While it is our duty to examine all the testimony, the court below heard the witnesses, and could best judge of their credibility; after a careful consideration and due credit given the evidence of claimant, we are now asked to declare his finding error. It certainly was not a misconception of the law as applicable to the facts, as will appear later. If it was a mistake in a deduction of fact, the burden is on appellant to point it out clearly. It is not enough to demonstrate the fact found is doubtful, or that the finding appears to be against the weight of the testimony. Nor will it avail that we might have reached a different decision had the question been for us in the first instance; we are not in a position to judge the credibility of the witnesses. Their finding of fact must stand unless manifest error or mistake clearly appears: see Comly’s Est., 185 Pa. 208, 216; Patterson’s Est., 237 Pa. 24, 27; Keyser’s App., 124 Pa. 80, 90. We have carefully examined all the evidence, as did the court below, and we do not find sufficient upon which to predicate reversible error. Counsel for appellee well states: “Marriage exists not only for the happiness of the parties, but for the welfare of society. It is the most important engagement that man and woman can enter into. It is the basis of civilized society, of the home, of the family, of sound morals, and of the domestic affection.” When it is attempted to establish marriage without the usual formalities, we should examine the professed contract with great scrutiny, and be entirely satisfied this solemn undertaking has been entered into by the voluntary assent of both parties. The mere fact decedent joined, ostensibly as husband of appellant, in the conveyance of a few lots in Youngstown, Ohio, where she had lived for some years prior to moving to Pittsburgh, is not conclusive on the question of marriage, nor would the additional facts in evidence work such results. The assertion in the newspaper, published in Youngstown, that she was to be married to Stevenson in the south, together with the reported statement the marriage had been consummated, with the same idea prevailing in the scrivener’s mind, would no doubt make sale of the lots difficult; to facilitate sales, and to satisfy the purchaser, removing all doubt as to title, it can readily be seen why Stevenson joined in the deed as though her husband: Reading Fire Insurance & Trust Company’s App., 113 Pa. 204, 206; Divver’s Est., 22 Pa. Superior Ct. 436, 444; Chamberlain v. Chamberlain, 71 N. Y. 423, 426. This act, like many others before and after the supposed marriage, was done for the purpose of deceiving the public and making their continued illegal relations easier. The same may be said with regard to the circumstances attending leasing the apartment at a place remote from decedent’s Negley Street residence, and all dealings with tradespeople in that vicinity. In line with this, may be considered their infrequent social intercourse with claimant’s relatives. Appellant complains the learned judge of the court below laid too much stress on the illicit relation existing prior to the trip south. She voluntarily testified to these occurrences. Our Brother Simpson, in Kustus v. Hager, 269 Pa. 103, 108, says: “we must be careful to give to it [the meretricious relation] only the weight which properly flows therefrom,” holding that, standing alone, it was insufficient proof of undue influence, but where, as here, we have an admitted illicit course of conduct for many years before the alleged marital contract, marriage will not be presumed because of cohabitation and reputation without proof of a changed relation: Yardley’s Est., 75 Pa. 207, 211; Patterson’s Est., 237 Pa. 24, 28; Hunt’s App., 86 Pa. 294, 297; Grimm’s Est., 131 Pa. 199, 202. The evidence of such cohabitation and reputation, as found by the court below, was not sufficient on which to imply marriage. The learned judge states: “There is nothing prior to April, 1918, relied upon by the claimant to establish her claim of marriage. There is testimony of an engagement______but it is a fair inference......decedent was not eager to enter into the contract. He is evasive to those who mention the matter to him; there is no......evidence he ever introduced the subject of his marriage to anyone. When asked by the claimant’s niece when he was going to be married he answered, ‘Some of these days.’ Mr. Ruth, who was a willing witness, did not ascertain from the decedent anything definite as to when the marriage might be expected. The letters from decedent to claimant make no mention of an intended marriage. It is noticeable that in the letters introduced from decedent to claimant, bearing dates subsequent to April, 1918, no reference is made to the marriage, nor is there anything to indicate a new relationship. The terms ‘husband’ and ‘wife’ are not found in these letters. The claimant seems to have been anxious for the marriage, and indeed she should have been. She had the announcement of her approaching marriage made in the newspapers, but even this did not bring a ceremony. The decedent made excuses for not observing this most important date, — his wedding day, — because of an application for a loan in a bank. With the day of the advertised marriage at hand, something must be done; she goes south and the decedent follows. They resume their meretricious relations, and, on her threatening to discontinue the trip unless a marriage is performed, the scene in the Knoxville Hotel is said to have been enacted......The Beechview house is rented and the furniture moved in; the decedent does not provide the furnishment; all that goes into the house to equip it is the furniture of the claimant. She is established in the house; he pays the rent, supplies the living and meets all the expenses. The decedent was there much and was seen morning and evening going and coming, according to some neighbors. Here she was installed, in a part of the city known as the South Hills district, five miles away, and in quite another direction from the Stevenson Homestead; it was reached by different car lines, and there would be small chance of the decedent’s family and friends being frequently in that neighborhood......The decedent did not introduce or speak of claimant as his wife excepting to merchants and a few neighbors around the Beechview home. This was necessary, for how could they live in a respectable community unless they passed among the people there as husband and wife? There was no recognition nor even knowledge of a marriage among the friends of the decedent. The visitors to the Beechview house were the friends and relatives of the claimant, and they were the ones to whom the representation of marriage was made. After April, 1918, the decedent did address letters to claimant as Mrs. Stevenson, but these letters were sent to her when she was in Youngstown, where her friends supposed her to be married. Similarly addressed letters were written by him to her when she was visiting in the home of her uncle......As Justice Sharswood said in Bicking’s App., 2 Brewster 202, ‘A man may live with his kept mistress in such a way as to create a kind of repute of marriage among some persons; he may even, to gratify her, allow himself to be held out, or hold himself out, to her friends and acquaintances, as her husband, may be a constant visitor, sleep and often eat at her house, may recognize the fruit of the connection as his children, and manifest affection and tenderness toward them; yet the evidence may fall far short of that which ought to satisfy the mind that there was an actual agreement to form the lawful relation of husband and wife. The conduct of the parties must be such that almost anyone acquainted with them would naturally infer that they bore that relation to each other.’ ” We cannot view what the decedent said on the trip south as being sufficient on which to ground a contract of marriage. When we consider his acts, his failure to appear, the age of the claimant and her knowledge of what is necessary to constitute marriage, the avowed purpose of the trip as she describes it, the relationship of the parties for many years before, and, further, the time, place and circumstances under which the language was used, Ms conduct appears to us in no other light than a reassertion of his protestations written so many times in letters before the trip took place. To this scene must be applied not only knowledge of the precedent facts, but ordinary common sense; and it is useless to discuss it further. It is not the case of a young inexperienced girl, but a woman of mature years, with a knowledge of the world. Moreover, the only evidence as to what took place came from the lips of the claimant, a very much interested party, and must be received with caution and scrutiny. The court below found appellant not to be decedent’s wife. He had before him a plain contradiction of the Knoxville statement in the evidence of Ritzi, the druggist, who testified that, after the return from the southern trip, appellant said she was going to Pittsburgh to be married to Mr. Stevenson, and her subsequent introduction in a garage by her maiden name. But it is more than doubtful if the words used rose to the dignity of a contract “to be performed either in Ohio or Pennsylvania.” “Marriage is a civil contract by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge toward each other the duties imposed by law upon such relation. Each must be capable of assenting and must in fact consent to form this new relation”: Topper v. Perry, 197 Mo. 531, 546. We need not rest our decision on the inadequacy of the words, .for the contradictions noted would be sufficient to sustain the finding of the court below. Appellant is wrong in applying the rules of law as to all presumptions being in favor of the marriage contract. It is quite true where an undoubted marriage exists in some form, courts, for obvious reasons, should hesitate to strike it down. The security of homes as well as the paternity of children is at stake. But it is equally true that, when the lips of a man are sealed by death, and he leaves no satisfactory evidence as to the existence of such contract, courts will be very slow to establish it in derogation of the undoubted rights of those who follow him. Decedent’s conduct may have been the subject of severe censure, as his acts offended all moral laws. Indeed it might have gone still further, — had children been brought into the world, — that, however, is not in this case. But a marriage cannot be presumed from such acts, for to do so would place a premium on illicit relationship. Claimant, better than anyone else, knew her exact standing with Stevenson. She knew she was not accorded the rights of a wife or anything that resembled them. She likewise knew the reason. Those who, with a clear understanding of what the laws require, embark in undertakings such as those found by the court below, must abide by the consequences of their acts. The court will not relieve them unless it plainly appears there was an actual agreement to form the legal relation of husband and wife. The decree of the court below is affirmed.

Opinion by Mr. Justice Walling, This suit is by a widow for the death of her husband. The plant of the E. & G. Brooke Iron Company is located at Birdsboro, in Berks county, where the defendant railway company has a spur track on a trestle, on which it places cars with stone for the iron company. There are ratchets in the bottoms of the cars; these when opened permit the stone to drop into a pit beneath. A plank walk extends along two feet from the track. The employees of the iron company use a bar, called a wrench, some four feet long with a hole in one end which fits over a lug and when turned operates the ratchet1 causing the bottom to open. On December 1, 1917, defendant’s employees backed a train of cars of stone onto the trestle where they stopped and plaintiff’s husband, Domenico Gentile, employed by the iron company for that purpose, put a bar on the lug of one of the cars and in turning it caught the bar on a plank of the walk on which he was standing. At that moment defendant’s employees suddenly and without notice or warning moved the car some eighteen inches which caused the bar to break the plank and the deceased dropped into the pit, where he was instantly killed by the stone falling upon him. Defendant offered no evidence; that for plaintiff was to the effect that the car had been stopped about two minutes at what was supposed to be, and the evidence tended to show was, the place to unload it, although one witness said it was properly placed after the eighteen-inch movement. The jury found for the plaintiff and, from judgment entered thereon, defendant brought this appeal. It was the duty of defendant’s employees to use reasonable care to avoid injuring those engaged in unloading the cars (Nadazny v. Phila. & R. Ry. Co., 266 Pa. 305; see also Boggess v. Railroad Co., 234 Pa. 379) and whether they did or not was for the jury. If the employee of a third party, when injured, is not1 where his duty requires him to be, nor where the railroad company is bound to anticipate his presence, the rule is different: Bardis v. Phila. & Reading Ry., 267 Pa. 352; Hardy v. Lehigh Val. R. R. Co., 240 Pa. 454. The car was standing at or so near the exact place where it was to be unloaded that ordinary care might have suggested the probability of work being started upon it for that purpose; and, if so, its unexpected movement would be dangerous, as the walk whereon the men stood while opening the ratchet was but two feet wide and twelve or fifteen feet above the pit. The situation was one requiring care. The train contained only three cars and the crew could easily have discovered whether it was safe to move them, or at least should have given warning. The questions of negligence and contributory negligence were for the jury. The deceased had a wife and five minor children in Italy, while he was and had been for some years living here, where he had steady employment. There is no evidence that he was estranged from his family and the fact' that he had made a visit home tends to negative such conclusion. What amount, if any, he had sent home does not appear, nor was such proof necessary, while sometimes offered as bearing on the question of earning capacity. A husband and father is presumed to perform the legal duty of supporting his wife and minor children; in any event, they are entitled to what the law would have compelled him to furnish them, whether he had previously done SO' or not. The deceased was forty-two years old, of steady habits and earned over a thousand dollars a year, and the trial judge properly instructed the jury that if they gave plaintiff a verdict it should equal so much of his earnings as they might find would have gone for the support of his family: Glasco v. Green, 273 Pa. 353. An award in favor of the widow and children was made against the E. & G. Brooke Iron Company, nnder the Workmen’s Compensation Act of June 2, 1915, P. L. 736; in view of which that company was made a party plaintiff here under the right given it to subrogation, by section 319 of the Act (p. 749), as its interest might appear. But defendant was in no manner prejudiced thereby ; its liability whs simply to the surviving widow and minor children, under the Acts of April 15, 1851, P. L. 674, and of April 26,1855, P. L. 309 (Stewart’s Purdon’s Digest, vol. 3, pp. 3240, 3241), and was neither increased nor diminished by that section of the Workmen’s Compensation Act. It is of no moment to defendant whether the amount recovered from it goes to the widow or the iron company. The suit as originally brought was by the widow, on behalf of herself and minor children, and by the E. & G. Brooke Iron Company, claiming $10,000; later, and after the statute of limitations had run, the trial court properly allowed plaintiff to amend the record by adding “for the use of the widow and the iron company, as their interest may appear,” and also, by more specifically claiming for the widow and children for the financial loss resulting to them by the death of the deceased. The cause of action and legal plaintiff (t'he widow) remained the same and defendant was deprived of no right. Where, as here, the name of the legal plaintiff is properly upon the record, the manner in which the name of one beneficially interested may appear is not important: see Mangan et al. v. County of Schuylkill, 273 Pa. 310; Hewitt, Receiver, v. Democratic Pub. Co., 271 Pa. 546. In the instant case the iron company is entitled to a part only of the judgment, in any event, which, with other features, distinguishes it from Marsh v. Railway Co., 204 Pa. 229, where the plaintiff before trial had assigned her entire interest in the subject of litigation. As defendant is not hurt by the above mentioned subrogation provision in the Workmen’s Compensation Act, it is not necessary to pass upon its constitutionality; for a statute will not be declared invalid at the instance of one not injured thereby: Mesta Machine Co. v. Dunbar Furnace Co., 250 Pa. 472. The assignments of error are overruled and the judgment' is affirmed.

Opinion by Mr. Justice Sadler, Conroy, plaintiff, engaged as an automobile salesman, insured against liability for injuries to others, while his car was employed for business or pleasure purposes. On the day of the accident which gave rise to the present controversy, he prepared to visit a boys’ camp located some distance from his home. Before leaving, the Merritts, friends of the family, called, and, upon invitation, agreed to accompany him on the trip. While returning the automobile was upset with resulting injury to one of the occupants, of which fact notice was given to the defendant insurer. In the communication sent, as well as in subsequent statements made to investigators for the surety company, the passengers in the car were designated as guests, and the character of the trip defined as one for pleasure. Mrs. Merritt, the party hurt, and her husband, brought actions for damages on November 22, 1923, and the defense of the suits was undertaken by the surety company, which had been properly advised of the institution of the litigation. Later, statements were served setting forth that plaintiffs were passengers in Conroy’s car at his invitation and request, and were injured by reason of his negligent operation of it. On April 9, 1925, an amendment was filed by the claimants in which it was averred that the trip was taken at the suggestion of the owner “for the purpose of demonstration, they being prospective purchasers of an automobile.” No affidavit of defense was interposed within fifteen days, and the case appeared upon the trial list for June 3d. On that day counsel for the surety company demanded that Conroy execute an affidavit of defense, denying that the trip, during the course of which the accident occurred, was taken for business purposes, but, on the contrary, was intended solely for mutual entertainment, as the insured had previously stated. He refused to make such affidavit, stating that, though he had invited the Merritts to take a pleasure ride, he did have in view the sale of a car to them, and was anxious to demonstrate the suitability of the type used in the hope that a purchase might result. Upon refusal to sign the prepared paper, the defendant company disclaimed further liability, and its counsel withdrew his appearance for Conroy. Another attorney was secured by him, and the damage case called for trial on February 8, 1926. Though notified, the surety company took no formal part at the hearing, which'resulted in judgments for the Merritts to the total amount of $2,000. Of this fact, and the refusal of the court to enter judgments n. o. v., the insurer was advised, with the suggestion that it should appeal, if deemed to its interest. No such step was taken, and executions were issued against Conroy. He paid the amounts due, with interest and costs, and brought suit against the insurance company to recover this sum, with attorney fees expended, amounting in all to $2,985.80. The present action is based upon the policy by which the defendant agreed to indemnify Conroy against claims for damages arising from the operation of his automobile. In the statement of claim the facts as already detailed are set forth, and are admitted by the affidavit of defense. It is claimed, however, that no recovery can be had, under the circumstances appearing, by reason of paragraph D of the insurance contract, which provides, in part, “If a claim for damages is made upon the assured on account of such accident, the assured shall give notice thereof with full particulars. The assured shall at all times render to the company all cooperation and assistance in his power,” and paragraph E, which reads, “The assured, whenever requested by the company, shall aid in effecting settlements, securing information and evidence, the attendance of witnesses, and in prosecuting appeals, but the assured shall not voluntarily assume any liability or interfere in any negotiation for settlement, or in any legal proceeding.” The defense made was that the refusal to sign the affidavit by Conroy, as requested, in which the character of the trip was defined, constituted a violation of the terms of the policy, permitting a disclaimer of liability, and that this course was specially justified in view of the retraction or modification of his first statement that the ride was for mutual pleasure. It was further averred that Conroy had been guilty of fraud and collusion in assisting the Merritts to recover judgment for damages against him. The issue, as tried, was confined to the question of whether the original declaration as to the purpose of the ride was true, and the jury so found. No other question was submitted, nor was the court asked to have it pass upon the alleged fraud of Conroy, nor were exceptions taken to its failure to do so. The court subsequently entered judgment for the plaintiff non obstante veredicto, and defendant has appealed. It is insisted that there can be no recovery in this case because of the refusal of plaintiff to cooperate in good faith with the insurance company, as required by the terms of the policy. “In contracts of this kind, to escape liability, the insurer must show that the breach is something more than a mere technical departure from the letter of the bond, — that it is a departure that results in a substantial prejudice and injury to its position in the matter”: Frank Parmelee Co. v. Ætna Life Ins. Co., 166 Fed. 741; Porter v. Traders Ins. Co., 164 N. Y. 504. The defendant undertakes to indemnify for compensation, and can be relieved of “its obligation for suretyship only where a departure from the contract is shown to be a material variance”: Young v. American Bonding Co., 228 Pa. 373; Sokoloff v. F. & C. Co., 288 Pa. 211. Unless it appears that something was done or omitted by Conroy to the prejudice of the defendant, the company is not relieved from the duty to make good the loss as it had undertakén to do by its contract. The first default of the plaintiff complained of rests on the inaccuracy of his narration of the “full particulars” of the accident furnished to the company and its investigators. He originally declared the trip was for pleasure, and the Merritts were his guests. Later, this statement was qualified by the assertion that the journey was also for demonstration purposes, he having in mind the sale of a car to Merritt. The fact that the insured makes a mistake in his version of the occurrences is not enough to avoid the policy: 36 C. J. 1107. As was said in Moran Bros. Co. v. Pacific Coast Casualty Co., 48 Wash. 592, 94 Pac. 106, where a similar question was considered: “We think the essential object of this report is to give the company notice, and notice at once, of the character of the injury and the probability of liability, and it is not intended that any mistake the [insured] might make in giving his version of the facts would render the policy ineffectual. It certainly is not intended that the answers should be as explicit and certain as an answer to the complaint in the case, or should constitute to the insurance company a warranty that the facts reported could be substantiated at the trial.” To the same effect are Ward v. Maryland Casualty Co., 71 N. H. 262, 51 Atl. 900; Taxicab Motor Co. v. Pacific Coast Casualty Co., 73 Wash. 631, 132 Pac. 393. If the insured refuses to give any information, so that the company is unable to make defense, it cannot be said there is cooperation, and in that case a recovery should be denied: Coleman v. New Amsterdam Casualty Co., 213 N. Y. Supp. 522. The same is true if he absents himself so that his evidence cannot be taken advantage of: Schoenfeld v. N. J. F. & P. Glass Ins. Co., 197 N. Y. Supp. 606. And where there is a finding that deliberate misstatements were made to the prejudice of the surety in collusion with the one injured, there is such fraud as will prevent judgment: Bassi v. Bassi (Minn.), 205 N. W. 947; Collins v. Standard Accident Ins. Co., 170 Ky. 27, 185 S. W. 112. A lack of good faith must be proved (Roth v. National Automobile Mut. Cas. Co., 195 N. C. Supp. 865), and is not to be inferred merely from the close relation of the parties, as, for example, father and daughter-in-law: U. S. Casualty Co. v. Drew, 5 Fed. (2d) 498. In the present case, though collusion is charged in the affidavit of defense, the question was not pressed at the trial, nor submitted to the jury. The only evidence offered by the defendant was that of the plaintiff, called on cross-examination, and whose uncontradicted statements are binding: Morningstar v. R. R., 290 Pa. 14. It established only that the injured parties were friends; that Conroy had not been called as a witness at the first trial, and had modified his original statement as to the purpose of the trip, to conform, as he insisted, with the actual facts. An examination of the record justified the statement appearing in the opinion filed by the court below: “It was not contended nor shown in the case before us that the contradictory versions of the trip as told by the plaintiff to his insurance company, or his conduct in refusing to execute the affidavit of defense, was the result of an improper collusion with the injured person, or was the product of bad faith on his part. Had this been the case, a different question would have been presented.” The further complaint is made that the plaintiff failed to comply with his contract and cooperate with the insurance company, when he refused to execute the affidavit of defense, denying that the journey, on which Mrs. Merritt was injured, had been undertaken for busi ness purposes. It was the duty of the insurer to conduct the defense of the claim, and within its power to determine the course of action to be followed. If it appeared that the execution of a pleading such as requested was legally required, so that an available defense could be asserted on trial, then it became the duty of the insured to comply with the demand, if the facts set forth were true: Collins v. Standard Accident Ins. Co., supra. On the other hand, it was unnecessary for him to do a useless thing, and unless some prejudice resulted from his refusal, the company had not the right to repudiate its obligation. The insurer did not deem it necessary to interpose an affidavit of defense to the original statement of claim. The amendment, averring the trip to be one for business and not pleasure, was allowed, and a new statement filed on April 13, 1925. No attempt to answer this was made within fifteen days, the time fixed by the Practice Act (May 14, 1915, P. L. 483, section 12). It was not until June 3d, when the case was on the trial list, that the plaintiff was asked to execute the proposed affidavit of defense. Even if the delay beyond the statutory period had been overlooked by the court, and leave granted to file the affidavit, it would have been of no benefit in conserving any rights of the insurance company, and it was in no way prejudiced by its omission. The action of the Merritts was one of trespass, and no affidavit of defense was required to permit proof of the fact that the plaintiffs were engaged on a journey for pleasure rather than business. The failure to file such a pleading admits “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...... [but] 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 denied, but shall be deemed to be put in issue in all cases unless expressly admitted”: Practice Act, section 13. There was nothing to prevent the insurance company from taking advantage of the fact that the trip resulting in the accident was for pleasure only, though no affidavit so asserting was filed, and it was not injured by the failure of Conroy to execute the one prepared: Leonard v. Coleman, 273 Pa. 62; Flanigan v. McLean, 267 Pa. 553; Fleccia v. Atkins, 270 Pa. 573. In view of the well established legal rule that the liability of the driver of the car to the injured guest was the same, whether the trip was for pleasure or business, the amendment to the statement of claim originally filed by the Merritts was of no moment. The measure of responsibility in either case was the same, the right to recover depending in each instance on proof of want of ordinary care on the part of Conroy: Cody v. Venzie, 263 Pa. 541; Ferrell v. Solski, 278 Pa. 565; Simpson v. Jones, 284 Pa. 596. The defendant was in no way prejudiced by the refusal of Conroy to sign, and could not repudiate its liability for that reason, as attempted. Admittedly, plaintiff was compelled to pay the sum of $2,985.80 in satisfaction of the claims against him, and he is entitled to reimbursement, as held in the court below. The judgment is affirmed.

Opinion by Judge Blatt, All of the claimants herein are retired employees of the Wheeling-Pittsburgh Steel Corporation (employer) and are seeking unemployment compensation benefits. The claims are based on the ground that, although the retirements were voluntary, they were occasioned by causes of a necessitous and compelling nature, and so entitle the claimants to benefits. Even though the claimants retired at various times, the fact situation in each case is virtually identical, and all cases, therefore, will be considered together. Each claimant contends that he retired, not because of any requirement by the employer, but because he was physically unable to continue with his job. The claimants’ applications for unemployment compensation were denied by the Bureau of Employment Security, this denial was in turn affirmed by a referee and by the Unemployment Compensation Board of Review (Board), and appeals from the Board’s action have now been filed with this Court. In each case, the Board’s denial of benefits was based on the argument that the claimant had voluntarily terminated his employment without cause of a necessitous and compelling nature, and was thus ineligible for compensation benefits under Section 402(b)(1) of the Unemployment Compensation LaAV, Act of Dec. 5, 1936, Second Ex. Sess., P. L. (1937)2897, as amended, 43 P.S. §802(b) (1). When, as here, an individual, who has become unemployed by reason of a voluntary termination of his work, applies for unemployment compensation benefits, he assumes the burden of showing that such termination Avas with cause of a necessitous and compelling nature. Kernisky v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 199, 309 A. 2d 181 (1973); Pfafman v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 197, 300 A. 2d 295 (1973). It has been held, too, that a voluntary retirement generally constitutes a voluntary leaving of work without cause of a necessitous and compelling nature. Walker Unemployment Compensation Case, 202 Pa. Superior Ct. 231, 195 A. 2d 858 (1963) ; Greenaway Unemployment Compensation Case, 201 Pa. Superior Ct. 80, 191 A. 2d 710 (1963). It is also true, however, that the “illness of a claimant may constitute a valid personal reason and good cause for leaving his employment within the meaning of Section 402(b) of the Unemployment Compensation Law.” McComb Unemployment Compensation Case, 179 Pa. Superior Ct. 424, 426, 116 A. 2d 92, 93 (1955). It seems clear that work which an individual is not capable of performing, because of disease or injury, might not constitute “suitable work” as defined in Section 4(t) of The Unemployment Compensation Act, 43 P.S. §753 (t), and so might justify his leaving employment, but he will not be eligible for unemployment compensation benefits unless he has sought lighter work prior to his leaving. Fischer Unemployment Compensation Case, 199 Pa. Superior Ct. 628, 186 A. 2d 421 (1962) ; Zelek Unemployment Compensation Case, 194 Pa. Superior Ct. 228, 166 A. 2d 110 (1960). Our Superior Court has said: “When claimant therefore was advised by his physician that he still could do light work although unable to return to his former job it was his duty to apply to his employer for the kind of work that he could do; and he was not justified in assuming that light work in fact was not available. When he failed to notify his employer that he was available for light work he in effect left his employment voluntarily and is not entitled to benefits.” Fennessy Unemployment Compensation Case, 184 Pa. Superior Ct. 492, 494, 135 A. 2d 814, 815 (1957). Clearly, a request for lighter work is necessary to kelp establish that the employee concerned is not totally disabled but is in fact available for work lighter than that which he has been performing. Otherwise he would not be eligible for benefits because he would not be “able to work and available for suitable work. . . .” as required by Section 401 (d) of the Unemployment Compensation Law, 43 P.S. §801(d). It is undisputed here that all of the claimants retired voluntarily, and it is alleged that they did so because they were physically incapable of continuing in their jobs, although they were capable of performing lighter work. It was necessary for them to prove, therefore, that physical reasons made their retirement necessary and that they had previously advised their employer of their availability for other, lighter work. And, in reviewing the record, we must affirm the findings and decisions of the referee or the Board, as the case may be, when they are supported by substantial evidence and absent an error of .law or a showing of fraud. United States Steel Corporation v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 206, 303 A. 2d 852 (1973). Here the only documented evidence presented by each claimant to prove his right to benefits was a written statement from a physician, obtained after his leaving employment, stating that the claimant was suffering from some specific ailment but was available for light duty. These statements obviously lack probative force, because they nowhere indicate that the claimant concerned was unable to perform the particular job he was doing or that such work would be injurious to his health. See Marzolf Unemployment Compensation Case, 198 Pa. Superior Ct. 203, 181 A. 2d 867 (1962). As to the requirement that the employer be requested to provide lighter work, it is undisputed that the employer was never officially requested to do this by any of the claimants. (In fact, there would appear to be no evidence that most of the claimants even notified the employer prior to their retirement that they had any disability.) The only testimony as to requests for lighter work consisted of statements allegedly made to the foremen of the respective claimants at various times prior to their retirement, sometimes as much as three years earlier. Such would hardly meet the requirement, even if undisputed, but, in these cases the employer disputes as to whether the claimants gave even that much notice. A representative of the employer testified, admittedly to hearsay but without objection, that the foremen said they had never been asked by any of the claimants to provide lighter work. While findings of fact based on hearsay cannot stand, of course, yet in an administrative hearing, hearsay evidence which is otherwise relevant and material and which is admitted without objection may be given its natural probative effect as if it was in law admissible. Pellegrino v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 486, 303 A. 2d 875 (1973); Philadelphia Coke Division, Eastern Associated Coal Corporation v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 37, 293 A. 2d 129 (1972). It was the duty of the Board here to determine the credibility of the witnesses, and we do not believe it was in error to take account of the testimony in question. The claimants have made much of their allegation that, in any case, it was useless for them to request lighter work because none would have been available. The claimants, however, were “not justified in assuming that light work was not available.” Fennessy, supra, 184 Pa. Superior Ct. at 494, 135 A. 2d at 815. Regardless of how they thought it would have to be answered, they should have made their request for lighter work before leaving their employment; otherwise, since there is here no burden on the employer to show that lighter work was in fact available, it must be answered that they left without cause of a necessitous and compelling nature. Our review of the record confirms the Board’s finding that the claimants did not prove that they had voluntarily retired for a cause of a necessitous and compelling nature. Their retirements were not compulsory, and continuing work was available. We, therefore, issue the following Orimr Now, October 10, 1973, the orders of the Unemployment Compensation Board of Review on the claims of Angelo Tollari, Richard Schilling, Michael Senko, Jr., John Zolak, Jesse Fillingham and Paul Reynolds, are hereby affirmed. The statement regarding claimant John Zolak was somewhat different from the statements regarding the other claimants, because it does state therein that Zolak “was advised to retire from his work unless he could obtain lighter, more suitable work at his place of employment.” Although this statement might therefore be of greater probative value than the others, there is still no proof that Zolak made the necessary request for lighter work from his employer. Lipshutz v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 257, 303 A. 2d 231 (1973). It might be noted that the unverified written statements of the physicians which were introduced by the claimants might also constitute hearsay evidence. There was no objection to these statements.

Opinion by Mr. Justice Eagen, In this equity action, the plaintiff sought specific performance of a written contract to reconvey land. After hearing, the chancellor entered an adjudication and decree nisi, dismissing the action solely on the ground of laches. The court en banc subsequently made the decree final. The plaintiff appeals. The facts necessary to our decision, which are supported by the evidence and found by the chancellor to be true, may be summarized as follows: In 1958, the plaintiff, William H. Wilson (Wilson) and his father acquired title to approximately 35 acres of land in Upper Merion Township, Montgomery County. On August 2, 1960, plaintiff and the executors of his father’s estate entered into a conditional written agreement of sale for the land to the defendant corporation, King of Prussia Enterprises, Inc. In the same agreement and in part consideration thereof, the defendant corporation agreed to reconvey a small portion of the land (.885 acres) to the plaintiff on or before June 30, 1962, for $8000. In this connection the contract had two pertinent and significant provisions: (1) “Settlement shall be made on or before June 30, 1962, said time to be the essence of this agreement, unless extended by mutual consent in writing endorsed hereon.” (2) “Tender of an executed deed and purchase money are hereby waived.” After gaining title to the land in 1961, the corporate defendant applied for and obtained a re-zoning of the tract. This re-zoning made it impossible, under township ordinances to subdivide or reconvey a part thereof to Wilson without first having the subdivision plan approved by the board of township supervisors. In order to make performance of the agreement to re-convey the .885 acres legally possible, Wilson on May 9, 1962, submitted an application and plan of subdivision to the township authorities. On June 27, 1962, the papers were returned to Wilson with instructions to have them submitted by the then record owner of the land or its authorized agent, because this was required by township regulations. Wilson promptly contacted the president of the corporate defendant, Martin W. Field, and apprised him of the pertinent regulations and requested that the corporate defendant make the necessary application for subdivision of the land. Also, during the months of June and July 1962, Wilson had several telephone and face-to-face conversations with Field concerning the matter and requested an extension of the date of settlement specified in the agreement. Field was vague in his responses. No extension of time was ever granted, nor did the plaintiff ever tender the money agreed to be paid for the reconveyance. Neither did the corporate defendant ever file or attempt to file the necessary subdivision plan with the township authorities to place it in position to reconvey to Wilson. From July 1962 to June 1963, there was an absence of communication between Wilson and Field or the corporate defendant. However, on June 19, 1963, Wilson, through his attorney, wrote to Field, as president of the corporate defendant, again requesting that the necessary subdivision plan be filed ■with the township authorities, and requesting that a new settlement date be fixed since, as of then, the corporate defendant was not yet in a legal position to re-convey as agreed. On June 27, 1963, an attorney for the corporate defendant replied that the agreement had lapsed as of June 30, 1962, and was no longer binding. On August 21, 1963, Wilson’s attorney again wrote the corporate defendant asking that a new date for settlement be fixed. On August 23, 1963, the corporate defendant’s counsel acknowledged receipt of this letter and replied that the agreement had lapsed and his client was unwilling to create any new rights in Wilson. This action was instituted on June 9, 1964. We agree with the lower court’s conclusion that because of laches the plaintiff is not entitled to the requested relief of specific performance. However, we disagree with its decree dismissing the action. Under the proof, Wilson may well be entitled to damages for breach of contract on the law side of the court. In considering the question of laches in this case, it is important to keep in mind two relevant time periods: (1) That period from June 30, 1962, (the date specified in the agreement for consummation) to June 27, 1963, (the date when Wilson was first notified that the corporate defendant did not intend to comply) ; (2) That period from June 27, 1963, to June 9, 1964, when this action was finally filed. It is difficult for us to see how Wilson can be properly charged with laches during the first period, particularly in view of the fact that the defendant corporation could not legally comply with the contract, and did not indicate any intention not to do so until June 27, 1963. Be that as it may, other considerations militate against Wilson during the second period. Wilson definitely knew on June 27, 1963, that, to protect his right of specific performance, litigation was necessary. He failed to act until one year (less eighteen days) later. In the meantime, the corporate defendant executed a note on September 25,1963, with a mortgage company in the sum of $350,000, which was filed of record and became a lien on the entire 35 acres. Therefore, due to Wilson’s delay, innocent third parties acquired rights in the property, and to now sustain Wilson’s claim for specific performance would seriously affect these rights. It is impossible to restore the status quo. This, in itself, is sufficient to defeat plaintiff’s claim for specific performance. Compare, Neely’s Appeal, 85 Pa. 387 (1877), and Felin v. Futcher, 51 Pa. Superior Ct. 233 (1912). See also Henry v. United States, 46 F. 2d 640 (3d Cir. 1931). The application of the equitable doctrine of laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice. See, Brodt v. Brown, 404 Pa. 391, 172 A. 2d 152 (1961), and Lutherland, Inc. v. Dahlen, 357 Pa. 143, 53 A. 2d 143 (1947). The question of laches is factual and to be determined by an examination of the circumstances: Mulholland v. Pitts. Nat. Bank, 418 Pa. 96, 209 A. 2d 857 (1965). Under the circumstances presented, we find no abuse of discretion in the lower court’s action denying specific performance, but we are not now persuaded that the record facts justified complete termination of Wilson’s cause of action. Even if the facts did not warrant equitable relief, but justified money damages, the complaint should not have been dismissed, but rather certified to the law side of the court. See, Allegheny Plast. v. Stuyvesant Ins. Co., 414 Pa. 381, 200 A. 2d 775 (1964), and Hampsey v. Duerr, 401 Pa. 578, 166 A. 2d 38 (1960). We feel that the question of Wilson’s rights for breach of contract needs further exploration in the court below before conclusion of the controversy. The fact that Wilson did not tender the agreed purchase price on the date specified in the agreement for settlement does not, in itself, preclude a claim at law for breach, because the contract, as noted before, specifically waived tender of the purchase price. See, Goldberg, Sales of Real Estate in Pennsylvania, 200 (1958). Further, even though the agreement made time “of the essence”, this provision could be, and may have been, waived by the conduct of the parties. See, Paralka v. Grummel, 282 Pa. 235, 127 A. 619 (1925); Warner Company v. MacMullen, 381 Pa. 22, 112 A. 2d 74 (1955); and, Cohn v. Weiss, 356 Pa. 78, 51 A. 2d 740 (1947). Decree vacated and record remanded with directions to enter an order certifying the case to the law side of the court. Each party to pay own costs. Tlie agreement was consummated in June 1961.

Opinion by Mr. Justice Pomeroy, This is an appeal from an order of the lower court granting a new trial following a jury verdict in favor of the defendant. The case involved an action in trespass brought to recover damages for personal injuries resulting from a collision between an automobile operated by plaintiff-appellee and a truck owned by the Department of Highways of the Commonwealth of Pennsylvania and operated by defendant-appellant. Appellant was employed by the Department of Highways as a temporary driver of a large dump truck on the date of the accident in question. Appellant had been operating this particular truck weighing 10,-000 pounds for about a month before then, but had not previously loaded it to its capacity weight. On that day he drove the truck without difficulty from its garage at Christy Parle to a site near New Kensington where the truck was to be loaded with about 20,-000 pounds of road paving materials. While on route to a job site after loading, appellant experienced no trouble or difficulty with the truck for several miles, until he began to descend Moss Side Boulevard. This stretch of highway is about two miles long and consists of a descent, a level stretch, then another down grade, and a final level area extending about a quarter mile before the intersection where the accident took place. While on the first descent, appellant experienced some difficulty with the brakes which indicated that they were not taking hold and slowing the truck down in the normal fashion. Appellant stated, however, that he believed he would be able to stop the truck, notwithstanding this difficulty. At that time, he was operating the truck in third gear and in high differential as opposed to low differential which would have retarded the movement of the truck. Appellant testified that after he had traversed the first level area and started into the second descent, lie knew that the brakes were not stopping the truck as they should have, but he remained confident that he would be able to stop should that become necessary. There were a number of areas along the road where the appellant could have pulled off, had he chosen to do so. Appellant had previously made tentative plans to stop for coffee at a diner located at the intersection in question, if a fellow worker, who had preceded him, had stopped there. Consequently, after he had completed the second descent stage and was on the final level area before the intersection, the appellant attempted to observe the diner’s parking lot, where a number of trucks were parked, in an effort to determine whether bis friend had stopped. Before he looked into the parking area, appellant had seen the appellee’s car stopped at the intersection, waiting to make a left-hand turn. Having determined that his friend had not stopped at the diner, appellant looked ahead and shifted into fourth gear somewhat automatically at about the same time, causing the truck to move ahead faster. He then realized that appellee was still stopped at the intersection in front of him and applied the service brakes of the truck. The brakes slowed the truck but were inadequate to bring it to a stop. Appellant applied the emergency brake, but it too did not stop the truck. Swerving to the right in a last-minute attempt to avoid a collision, the appellant caught the right rear of appellee’s automobile with the left side of his truck and propelled the car into a gasoline truck coming from the opposite direction, causing injuries to the appellee. At no time during the descent of Moss Side Boulevard, after becoming aware that his truck lacked its normal braking power, did appellant either test his brakes to determine his ability to stop the truck or compensate for the reduced braking capacity by his manner of driving. The sole question presented by this appeal is whether the order of the trial judge granting the motion for a new trial on the ground that the verdict was against the weight of the evidence was a lawful exercise of judicial discretion. The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that discretion is not absolute; this Court will review the action of the court below and will reverse if it determines that it acted capriciously or palpably abused its discretion. Burd v. Pennsylvania Railroad Company, 401 Pa. 284, 164 A. 2d 324 (1960); Decker v. Kulesza, 369 Pa. 259, 85 A. 2d 413 (1952) ; Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857 (1951). This brings us to the central problem, viz., what freedom does the trial court have to review and set aside a jury verdict where the evidence presented to the jury is legally sufficient to sustain that verdict? In delimiting this discretion, our Court has adopted an intermediate position between those states which leave trial courts virtually unfettered and permit the judge to review jury determinations as a thirteenth juror, on the one hand, and those, on the other hand, which restrict the discretion of the trial court to ordering a new trial only where, on the evidence presented to it, a jury could not reasonably have reached its verdict. In hewing to this intermediate path, our Court has adopted the prevailing rule in the federal courts and one which is widely followed in the state courts. Established doctrine in Pennsylvania dictates that a trial judge abuses his discretion when he grants a new trial merely because he would have arrived at a different conclusion on the facts of the case than that reached by the jury. Hummel v. Womeldorf, 426 Pa. 460, 464, 233 A. 2d 215 (1967). Where, however, the trial court is convinced that the verdict is against the clear weight of the evidence or that the judicial process has effected a serious injustice, he is under a duty to grant a new trial. Pritchard v. Malatesta, 421 Pa. 11, 13, 218 A. 2d 753 (1966). Our rule may be simply stated; its content is more elusive; and its application will of course require a continuing exercise of judicial sensitivity. The burden of the approach outlined is to treat the legitimacy of the trial court’s grant of a new trial as a function of the seriousness of the jury’s departure from that result which the trial court feels is dictated by the evidence. Where the case is close and the evidence contradictory, the jury must perforce be given freer rein; but a new trial should be granted and will be upheld where the jury verdict is so opposed to the facts that the judicial conscience cannot let the result stand. In its opinion granting a new trial in the case at bar, the court below emphasized its duty to do so where it found the verdict shocking and unjust or where the judge’s sense of justice was so shaken that he could not in conscience allow the verdict to stand. Since, in the trial court’s view, the uncontradicted evidence coming from the appellant himself established his responsibility for the accident, it granted appellee’s motion for a new trial on the ground that the jury verdict stood contrary to the weight of the evidence. In reviewing the grant or refusal of a new trial to determine whether there has been a palpable abuse of discretion, we must view all the evidence in the record. See Noel v. Puckett, 427 Pa. 328, 235 A. 2d 380 (1967); Sherman v. Manufacturers Light & Heat Co., 389 Pa. 61, 68n, 132 A. 2d 255 (1957); and Denman v. Rhodes, 206 Pa. Superior Ct. 457 (1965). The record in this case discloses ample justification for the trial court’s decision. The opinion below cited as an explanation for the unacceptable jury verdict the “frightening degree” of negligence on the part of the Commonwealth of Pennsylvania with respect to inadequate mainte nance of tbe truck, inadequate training of the mechanic who adjusted the brakes several days before the accident, and the almost total lack of training of the appellant as a driver of heavy trucks. Since the negligence of the Commonwealth “was so much more striking and arresting” than that of appellant, the trial court theorized that “the jury lost sight of the lesser negligence of the defendant” and failed to deliver a proper verdict in favor of appellee. In its opinion the lower court indicated its appreciation of the proper standard for granting a new trial; its application of that standard in this case was not capricious and does not constitute a palpable abuse of discretion. Order granting motion for new trial affirmed. “The rule in this State is firmly established that the trial court shall exercise the function of a thirteenth juror upon hearing of a motion for a new trial; that it is his duty to weigh the evidence and independently determine therefrom whether or not it is sufficient to sustain the verdict.” McLaughlin v. Broyles, 36 Tenn. App. 391, 397, 255 S.W. 2d 1020 (1952). See also Hawk v. City of Newport Beach, 46 Cal. 2d 213, 293 P. 2d 48 (1956). See e.g. Kerrigan v. Detroit Steel Corp., 146 Conn. 658, 154 A. 2d 517 (1959). See 6A Moore’s Federal Practice, ¶59.08[5] (2d Ed. 1966). See 39 Am. Jur., New Trial §§129-131. See generally James, Civil Procedure, pp. 312-14, 1965.

Opinion, Mr. Justice Mitchell : The facts, as we gather them from the testimony, are that McNeal heard the whistle, and stopped his team at about 50 feet from the track. Presumably, he looked and listened, but it is undisputed that, on account of the curve of the railroad and an intervening hill, he could have seen but a short distance; and the evidence is that no further whistle or other warning was given, and whether he could have heard the rattle of the approaching train from that point is not certain. After stopping, and, as said, presumably looking and listening, he drove on again; and just at or before reaching the track, there is some evidence that he stopped again, or attempted to do so, but, one of his horses being young and excitable, he either drove or was carried on the track, and the wagon was there struck at about its centre by the locomotive, cut in two, the front part and the horses, uninjured, being thrown on one side of the track, and the back part of the wagon on the other, and McNeal killed. There was also evidence that the foreman of a gang of workmen at that point had made gestures in McNeaTs direction, but whether intended for McNeal or for the workmen was not clearly understood by the witnesses. On this evidence the learned judge entered a nonsuit on the ground of contributory negligence, being of opinion that the case came within Marland v. Railroad Co., 123 Pa. 487, and the other cases which hold that a plaintiff cannot recover if, in spite of what his senses must teach him if he uses them, he steps in front of a moving train. Carroll v. Railroad Co., 12 W. N. 348, and the decisions which have followed it, are sound in principle, and experience has confirmed the wisdom of the rule there adopted. It will not be relaxed nor pared down by exceptions. But it is a rule which, in its nature, is applicable only to clear cases. If, on the evidence, there is any doubt of the plaintiff’s negligence, the case must go to the jury. Such a doubt there is in this case. That McNeal was not driving with absolute recklessness, but was paying some attention to his situation, is clearly shown by his stop when he heard the whistle. Just what his intention was in driving on again is not clear. The whistle was in fact more than 1,000 feet away, and between it and the crossing in front of McNeal was a station, at which trains, including this train in question, usually stopped. As already said, the view of the track from that point was extremely limited. McNeal may have recognized the distance of the whistle, and assumed that the stop at the intervening station would give him time to cross; or, failing to locate the whistle, he may have intended to drive closer to tbe track, and make a second stop, of wbicb there is some evidence, though by no means clear. Reis, the other teamster, stopped at the same point, and prudently waited till the train had passed. McNeal drove on, unfortunately, as the result showed, but whether negligently or not depends on the view which may be taken of the circumstances and of his action. If he recognized the approach of the train, and chose to take the risk of the crossing, or if prudence or proper care required that, owing to the doubt, he should remain in safety, as Reis did, then certainly he was negligent; but this conclusion is not so clear that the court can say, as matter of law, that it is the only one to be drawn in the case. The third and fourth assignments of error cannot be sustained. The questions were upon what might be a material part of the res gestee, and the omission of the witnesses who were testifying about the occurrence to mention the action of the foreman, whether intentional or accidental, did not make it new matter belonging to the defence. Judgment reversed, and venire de novo awarded.

The opinion of the Court was delivered by Huston, J. This was an ejectment by Mrs Porter to recover military lot No. 72 in fourth donation district, containing five hun dred acres; and the case presented the following facts. The lot was the property of General Andrew Porter, who, by his will dated in 1806, devised it to George B. Porter, who was the husband of the plaintiff below and who devised it to her by his will dated the 29th of March 1830. The defendant below showed a deed from Mrs Porter for this tract for the consideration of 1500 dollars. This deed was dated the 4th of February 1836, and it was admitted the price was paid. This suit was brought to rescind the contract, as obtained by the misrepresentations of a person who had solicited and obtained confidence from the owner who lived in Lancaster city. The plaintiff below gave in evidence several letters from William S. Rankin to G. B. Porter, commencing in 1826 and the last in December 1832; by which it appeared that Rankin had paid taxes for this tract, and once redeemed it when sold. That he had been to see it, and made inquiries of others as to its value ; offered more than once to become agent to sell; said it might if divided bring 250 or 300 dollars, and urging General Porter to fix a price; he had repaid to Rankin ail advances, but never fixed a price or authorized a sale. General Porter died, and his family removed from Detroit to Lancaster ; and on September 12, 1835 Mr Rankin wrote to Mrs Porter: “Madam—I have been told you are desirous of selling your donation tract of land of five hundred acres in this county. If such be the fact please inform me of your lowest price and terms of payment, and I will endeavour to effect a sale. My services, if you think proper to accept of them, shall be gratuitous : your late husband having been my personal warm friend, I shall feel gratified to return acts of kindness to his survivor. Please drop me a line on the receipt of this. Very respectfully yours, &c. “William S. Rankin.” Mrs Porter’s son wrote an answer, but it was not produced. On the 9th of November 1835 Mr Rankin replied to this letter of the son,and acknowledged the receiptof his letter : hesays, “As you wish me to sell your lands in this county, in a few days I will go and look at them states that he intends to go to West Point to see a son there; and will stop on his way, “ and give all the information I can respecting the lands you own here.” He then gives a statement of the taxes; and concludes, “I will also endeavour to find out what you can sell for, and if the terms please, I will do any thing and every thing to serve you in the business.” On the 10th of December 1835 he went to Lancaster and entered into articles of agreement for the purchase, and it was completed by payment of the money and execution and delivery of the deed on the 4th of February 1836. The plaintiff below also proved that before Rankin wrote his first letter to her on the 12th of September 1835, a person had called on Rankin, supposing him agent, and offered 1750 dollars for this tract; and that Rankin told him the land could not be sold until the youngest child was of age. It was also proved that in December 1835, and before he got his deed, Rankin was offered 2250 dollars for the tract, and again 2800, and 8 dollars per acre for two hundred acres part of the tract; but he said he would rather give twenty per cent for money than sell for 8 dollars per acre ; asked 10 or 12 dollars per acre. Another witness proved that, immediately after returning from Lancaster, he said he had bought the Porter tract and made a good speculation ; that he had given 1800 dollars for it, and could get 8 dollars per acre and perhaps 12 dollars for it. It was also proved by Judge Dale of Lancaster and Dr Humes, that when the judge came to her house to take the acknowledgement of the deed, Mrs Porter asked the judge (who had at one time lived west of Alleghany river) if she was not selling it too low; that Mr Porter had always spoken of it as valuable. The judge replied he did not know the land and could give no opinion. Rankin then said, “ If I would take advantage of the widow and children of my late friend Governor Porter, I would consider myself the meanest man that ever came over the Alleghany mountain. The price I am giving is the highest that can be got for it: if it was worth more he would give it; and if she could get more he would give it up.” He was applied to and refused to give it up. The purchase money and interest were tendered before suit brought and a request to reconvey. On the part of the defendant below, several witnesses were examined, who stated they thought the price given, viz. 3 dollars per acre, was a fair price in December 1835. That a bill for extending the state canal, which passed in the winter of 1835—1836, raised the price of lands very much. The president recapitulated all these facts, and told the jury it was their province to decide on the truth of the testimony; and then said, “Was the defendant acting with respect to this land in.the capacity of an agent; had he the confidence of Governor Porter and of his widow after his decease ? If he had the care of the land, and was acting as agent, he would be bound to communicate to his principal his knowledge of the land, the offers made, and its situation and value; if he neglected to do so, or misrepresented the value, this would render any contract made by him for the purchase of the land for which he had been agent void, and the deed executed and delivered in pursuance of such contract would in a court of equity be cancelled ; and in our courts the grantor in the deed can recover the possession in an action of ejectment.” There is nothing in this opinion of which the defendant below has cause to complain. The law is so often and so firmly settled that a person appointed to sell cannot be the buyer so as to gain by his purchase, that it would be a waste of time to cite authorities; but the cause was argued here as if this rule applied only to those clothed with a fiduciary character by law, as executors, guardians, or by formal instruments, as deeds or powers of attorney legally executed. The ground of the decision is, that wherever confidence has been reposed, justice forbids that it shall be abused; and it applies as strongly to those who have gratuitously or officiously undertaken the management of another’s property, as to those who are retained or appointed for that purpose and paid for it. The man who offers his services to a distant owner, who promises to examine the property and ascertain the price which can be obtained for it, and especially if he professes to do this from friendship, must not expect to gain by imposing on the confidence he has excited. See Paley on Agency 10, 11, 12, 35; Livermore 418; Forrester 111; 1 Johns. Ch. 350, 394; 8 Ves. 348; 9 Ves. 294, &c. &c. ; and see the general principle, that he who professes and agrees to act as a friend, shall not abuse the confidence reposed in him to his own gain, in Sheriff v. Neal, 6 Watts. Judgment affirmed.

Duncan J., delivered the opinion of the Court. The broad ground taken on the part of the Mayor is, that the city councils cannot legally diminish the salary of the Mayor during his continuance of office. It has been endeavoured to support this position both on the principle of contract, and because it is forbidden by the Constitution. This cannot be considered in the nature of a hiring for a year, because it was not obligatory bn the Mayor to serve out the year. I can see no difference whether the compensation of an officer be by salary or certain prescribed fees; the one would be as much a contract as the other; and if it be contract, every justice of the peace might continue to exact such fees as were allowed by law when he was commissioned, although subsequent laws had diminished the fees; so that there could? be no uniform fee bill; different fees for the same service, by different justices, might thus be demanded in the same district, any law to the contrary notwithstanding. I mention justices only, as embracing the most numerous class of officers, for the same rule would prevail with all officers. Pushed to the extent of the principle, and if it be a just one, it must hold throughout, the members of the Legislature could neither add to nor diminish their own per diem allow-’ anee, during the period for which they are .elected. Diminish it they might, if the enactment were unanimous, but add to it they never could. These services rendered by public officers do not, in this particular, partake of the nature of contracts, nor have they the remotest affinity thereto. As to stipulated allowance, the allowance, whether annual, per diem, or particular fees for particular services, depends on the will of the law makers ; and this whether it be the Legislature of the State, or a municipal body empowered to make laws for the government of a corporation. This has been the universal construction ; and the Constitution puts this question at rest in the provision for the salary of the Governor and J udges of the Supreme Court, and/Presidents of the Courts of Common Pleas. The Gov-ernor is to receive, at stated times, for his services, a compensation which shall neither be increased nor diminished during the period for which he shall have been elected. The .Judges and Presidents shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not be diminished during their continuance in office. These provisions are borrowed from the Constitution of the United States. It is apparent that the compensation of the Governor and these Judges, is matter of constitutional provision—that of all other officers is left open to the Legislature. The allowance, the compensation, the salary, the fees of all other officers, and members of the Legislature, depend on the Legislature, who can, and who do change them, from time to time, as they conceive just and.right. The Court have thus met and decided the general question ; and have not entered into any enquiry whether the additional compensation of 1000 dollars, allowed to the Mayor, by the ordinance of the I6th May, 1816, to defray incidental expensed of office, can be distinguished from his general annual allowance.; because they are of opinion, that all allowances to be made him, acting not retrospectively on past services, but prospectively for services thereafter to be performed, are within the power of the councils ; and, therefore, that the ordinance of the 16th December, 1819, repealing that of the 16th May,\ 816, was a good and valid by-law ; and that the right of the Mayor to the annual'sum of 1000 dollars, in addition to the salary prescribed by former ordinances, no longer existed. The rule is, therefore, discharged. Rule discharged.

Opinion by Mr. Justice Cohen, Appellants are holders of a hotel liquor license. As a result of an open inspection on September 22, 1962, by Liquor Control Board agents at the licensed premises, appellants’ license was suspended for 20 days on the ground that “[t]he licensees, their servants, agents, or employees permitted minors to frequent the licensed premises on September 22, 1962,” in violation of the Liquor Code. This statute provides, inter alia, that “[i]t shall be unlawful . . . (14) for any hotel . . . liquor licensee ... to permit . . . minors to frequent his licensed premises . . . except minors accompanied by parents, guardians, or under proper supervision.” Act of April 12, 1951, P. L. 90, §493(14), 47 P.S. §4-493(14). Licensees appealed from the suspension to the court of quarter sessions. After a hearing, which incorporated the testimony before the board, and after taking additional testimony, that court sustained the appeal and directed the board to revoke the suspension. The board appealed to the Superior Court which reversed the court of quarter sessions. We granted allocatur. The parties and the lower courts have treated this case as though the dispositive question is whether or not there was “proper supervision” of minors who “frequent” the premises. We find it unnecessary to reach this question because, regardless of whether there was “proper supervision,” the record does not support a finding that minors “frequent” the licensed premises. Such a finding would be necessary to make out a violation. The officer who conducted the only inspection of record, on September 22, 1962, testified before the board that on that date he found 10 minors on the premises. (It was established that these minors were only having pizza and cokes and that no alcoholic beverages were requested or served.) Four of these minors testified before the board. It was uncontradicted that two of them had never been to the premises before and that the other two had been there only once or twice before with their parents. Counsel stipulated that the remaining minors would testify substantially the same as these four. In the hearing before the court of quarter sessions, licensees themselves made general statements indicating that on other occasions minors came to the licensed premises for food. But in regard to these occasions there was no evidence of names, dates, or conditions surrounding their visits. In short, outside of the finding of 10 minors on the premises on September 22, 1962, there was no specific evidence going to the necessary element of whether minors “frequent” the premises. The board has a duty and the burden is upon it to establish the elements of a violation by a fair preponderance of the evidence. Moravian Bar, Inc. Liquor License Case, 200 Pa. Superior Ct. 231, 188 A. 2d 805 (1963); Summit Hill Rod and Gun Club Liquor License Case, 184 Pa. Superior Ct. 584, 135 A. 2d 781 (1957). That on one occasion there were on the premises 10 minors, who were there for the first time, does not establish that minors “frequent” the premises. To “frequent”, in the context of the relevant statutory provision, means to visit often or to resort to habitually or to recur again and again, or more than one or two visits. Cf. Easton’s Liquor License Case, 142 Pa. Superior Ct. 49, 15 A. 2d 480 (1940); In the Matter of Revocation of Hotel Liquor License No. H-1427 and Amusement Permit No. AP-12793, Issued to Mary Perry, “West End Hotel”, 24 Cambria 133 (1962); Appeal of Atanas Gugoff, 57 Dauph. 105 (1945) ; Words and Phrases, “Frequent” (permanent ed. Vol. 17A). We do not mean to say that it must be found that the same minor or minors come to the premises habitually. But it must be established by a fair preponderance of specific evidence that, as a course of conduct, licensees permit minors to come on the premises. The record is insufficient to establish this. We render no opinion on the nature of the defense of “proper supervision” in the absence of a record establishing frequenting. Accordingly, we vacate the order of the Superior Court and reinstate the order of the court of quarter sessions directing the Liquor Control Board to revoke the suspension heretofore imposed. Mr. Justice Eagen would vacate the order of the Superior Court and would reinstate the order of the Court of Quarter Sessions of Cambria County on that court’s opinion. The Liquor Control Board cannot rely on the prior visits of certain of these minors to aid in establishing a violation. On the prior visits it was uncontradicted that the minors were accompanied by their parents. The statute expressly excepts such visits from contributing to a “frequenting” violation.

Opinion by Mr. Justice Cohen, We are called upon in this appeal to review once again the provisions of the Retirement Act of Allegheny County, and to determine the nature of the interests acquired thereunder by county employes. The plaintiff, Harvey, began his employment with Allegheny County on May 1, 1928, as a guard in the County Workhouse and Inebriate Asylum. On that date, the Pension Act of May 8, 1919, P. L. 138, was in effect. The act provided for contributions by county employes to the County Pension Fund of one per cent of their monthly salaries. In return, upon reaching the age of fifty years after having been in the employ of the county for a period of not less than twenty years, each employe was entitled to receive a pension equal to fifty per cent of his average annual salary to a maximum monthly amount of $100. Five years later, while Harvey continued his employment with the county, the legislature substantially changed the retirement system of Allegheny County. The Act of May 22, 1933, P. L. 840, made sweeping changes in the retirement program, and insofar as relevant to this appeal, increased the rate of employe monthly contributions to the pension fund from one to three per cent, and increased the voluntary retirement age from fifty to sixty years, provided that if after twenty years of service an employe were separated from county employment “by reason of no cause or act of his own,” he might nevertheless retire at age fifty with full benefits. Two years later the Act of April 4, 1935, P. L. 12 increased employe contributions from three to five per cent of their monthly earnings and raised the maximum monthly amount payable to flO. Finally, the Act of May 31, 1947, P. L. 354, further increased the maximum monthly amount of contributions to the system from $10 to $15, and, at the same time, also increased the maximum monthly retirement allowance obtainable by an employe from $100 to $150. Harvey continued as an employe of the county until his separation from the service on February 28, 1951, being then over fifty years of age and having been employed continuously for almost 23 years. It is undisputed that Harvey had fulfilled all requirements necessary to obtain the retirement allowance under the Act of 1919. It is likewise conceded that Harvey had complied with the requirements of later county retirement acts providing for increased rates and increased amounts of employe contributions to the retirement fund. Following his dismissal, Harvey filed an application for a retirement allowance with the defendant Retirement Board. His application was refused on the ground that he had been dismissed from his position for cause, and therefore, under the 1947 retirement law, Harvey would be required to continue to contribute to the fund until he attained age 60, at which time he would become eligible to receive the retirement allowance. Harvey thereupon instituted an action in mandamus in the Court of Common Pleas of Allegheny County, on December 8, 1952, to compel the Retirement Board to pay him his retirement allowance from the date of his separation from the county service. Harvey’s original complaint alleged that he had been separated from the service for no cause or act of his own, and that he was entitled to the monthly allowance under the Act of 1947. Subsequently, in 1956, he amended his complaint to allege that his retirement rights were controlled by the law in effect on the date of his original employment rather than the act in effect at the time of his dismissal. The trial court, after agreement between the parties that only the question of law raised by the amended complaint was to be considered, held that Harvey’s eligibility for retirement was to be determined under the Act of 1919, the law in effect on the date of his entry into the county service, but that the amount of the retirement allowance was to be determined by the Act of 1947, the law in effect at the time of his separation. Accordingly, the court entered judgment on the pleadings and issued a writ of mandamus directing the Retirement Board to pay Harvey all the monies due him as a retired county employe, with interest' thereon from the date of his dismissal from the county service, and thereafter a monthly retirement allowance as provided for in the 1947 retirement law. From this judgment the Retirement Board has brought the present appeal. Recent decisions of this Court have effected a pronounced change in the law relating to public retirement systems. Compare Baker v. Retirement Board of Allegheny County, 374 Pa. 165, 169, 97 A. 2d 231 (1953) with Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 169, 174 Atl. 400 (1934), and compare both of these with Hickey v. Pittsburgh Pension Board, 378 Pa. 300, 304, 311, 106 A. 2d 233 (1954). We believe that it is appropriate at this time to review briefly the development of the Pennsylvania pension law, since the nature and time of acquisition of rights of employes in governmental retirement systems are said to be confused and uncertain. See Annotation, 52 A.L.R. 2nd 437, 475 (1957). In the leading case of Retirement Board of Allegheny County v. McGovern, 316 Pa. 161, 174 Atl. 400 (1934), we declared that an employe’s right to a pension under a retirement act is constitutionally protected against subsequent alteration by the legislature once the employe fulfills the conditions prerequisite to the receipt of retirement pay. In that case the plaintiff Retirement Board sought a writ of mandamus to compel the Commissioners of Allegheny County to contribute to the county pension fund. By way of defense the commissioners challenged the constitutionality of the Retirement Act of May 2, 1929, P. L. 1278, the then current law, and the earlier retirement statutes. In answering the defendants’ objections, Mr. Justice Kepi-iaht, speaking for this Court said: “Retirement pay is defined as ‘adjusted compensation’ presently earned, which, with contributions from employees, is payable in the future. The compensation is earned in the present, payable in the future to an employee, provided he possesses the qualifications required by the act, and complies with the terms, conditions, and regulations imposed on the receipt of retirement pay. Until an employee has earned his retirement pay, or until the time arrives when he may retire, his retirement pay is but an inchoate right; but when the conditions are satisfied, at that time retirement pay becomes a vested right of which the person entitled thereto cannot be deprived: it has ripened into a full contractual obligation.” 316 Pa. at 169. The Court held further that until an employe had fulfilled all of the prerequisites to receiving a pension, the legislature, at least in order to protect and maintain the actuarial soundness of the retirement fund, might exercise a power impliedly reserved to alter the contract of employment and retirement. “. . . [Ujnderlying all retirement systems of the class we are now discussing, is the legislative object, as well as that of the member employee, that a substantial reserve be built up so that the actuarial soundness of the plan cannot be questioned. This factor is an important one in the relation between state, city and county, as employer, and the employee member, with respect to retirement pay. If a direct attack on it, such as has been made in the present case, is justified, or a weakness in it manifested through actual trial is found to exist, the remedy or relief rests clearly within the relation between employer and employee contemplated by the legislative system for retirement pay. The legislature may from time to time, within the confines of that established relation, alter, change, amend, and render intact the actuarial soundness of the system so as to strengthen its fibers in any way it sees fit. Changes and details, such as length of service required, contributions needed, and age requirements, to keep the fund on sotmd actuarial practices, are essential. Flexibility in component parts is a paramount necessity to guard against changed conditions and to permit keeping abreast with actuarial science. The basis is contribution from the county or state and from employee members.” 316 Pa. at 175-176 (Emphasis supplied). The right of the legislature to amend unilaterally an executory employment and pension contract so as to protect tbe solvency of a retirement fund is both a wise and a necessary power. A moment’s reflection will indicate that all members of a retirement system — whether actually receiving pension payments, eligible to receive payments, or in the process of completing the requirements necessary to receive them — benefit from the maintenance of an actuarially sound retirement fund. By maintaining the fund solvent, all gain; if the fund is neglected and becomes bankrupt, all suffer. The rule of the McGovern case therefore, has been followed in subsequent decisions of this Court. So, in McBride v. Allegheny County Retirement Board, 830 Pa. 402, 199 Atl. 130 (1938) plaintiff filed a petition for mandamus to compel the Board to resume payment of the retirement allowance to which he had become entitled under the relevant retirement acts in force during his employment with the county. The Board attempted to justify its suspension of retirement payments to the petitioner on the ground that he was currently employed by the Commonwealth, and that the Board was given the authority to suspend retirement pay in such circumstances by the then current pension law which was enacted after petitioner had become eligible for retirement. In affirming judgment for the petitioner we said: “An employee fulfilling these conditions [imposed upon, the receipt of retirement pay] then has a vested interest in retirement pay which cannot be destroyed, weakened or departed from by subsequent legislation. Neither dismissal from service or office, nor any involuntary removal can affect this vested right to retirement pay. We endeavored to specifically hold in the McGovern case that eligibility for retirement pay is complete as soon as an employee or member of the retirement system has satisfied the conditions requisite for retirement, whether the employee chooses to retire immediately or to continue in active service. His rights to such pay are fixed as of the time he attained eligibility. Until retirement pay is earned as above described the right is inchoate. During this period retirement pay is being built up. The inchoate right becomes a complete vested right when the conditions connected with the particular retirement system are complied with. This ■right cannot be thereafter disturbed by legislation. We reiterated this thought in the Teachers’ Tenure Act Cases, 329 Pa. 213,” 330 Pa. at 405-406. Accord: Kane v. Policemen’s Relief and Pension Fund of Pittsburgh, 336 Pa, 540, 9 A. 2d 739 (1939); Bausewine v. Philadelphia Police Pension Fund Assn., 337 Pa. 267, 10 A. 2d 446 (1939); Kreinbihl v. Philadelphia Police Pension Fund Assn., 340 Pa. 347, 17 A. 2d 336 (1941). Thus, the rule developed by these cases was that the legislature could not alter the terms of a pension contract without the consent of an employe after he had satisfied the conditions for receiving a pension, but prior to an employe’s fulfillment of such conditions the legislature could change or add to these conditions when such changes enhanced the actuarial soundness of the fund. The question whether the legislature could also add qualifications not related to actuarial soundness so as to affect employes prior to their eligibility for retirement was specifically left open: “The validity of . . . [the amendment authorizing the Retirement Board to suspend payment of retirement al lowances to members of tbe system wbo take employment with tbe government of tbe United States or of tbe Commonwealth] as applied prospectively to one becoming eligible for retirement in the future, is not here decided. That question will be disposed of when a competent case arises.” McBride v. Allegheny County Retirement Board, supra, 330 Pa. at 411. The “competent case” was Baker v. Retirement Board of Allegheny County, 374 Pa. 165, 97 A. 2d 231 (1953). In 1928 plaintiff Baker having completed twenty years service as an employe of the City of Pittsburgh received the pension due him from the Police Pension Fund Association. In the same year Baker became an employe of the County of Allegheny and until his retirement in 1952 made regular payments into the County Retirement Fund. His request for the county retirement allowance was denied by the defendant Retirement Board under the authority of the Act of March 31, 1937, P. L. 191, which provided that a person who at the time of his employment with the county was receiving a retirement allowance from another sub-division of the Commonwealth was ineligible to receive a retirement allowance from the County Retirement System. This Court, in an opinion by Mr. Justice Mus-ai anno, determined that the 1937 amendment was not designed to enhance the actuarial soundness of the fund, hence, the amendment enacted after Baker had become a county employe and had begun his payments into the retirement fund could not act as a bar to his right to receive a retirement allowance. “When the legislation in question was passed, appellee already had been a member of, and had contributed to, the County retirement fund for approximately nine years. He made these contributions on the basis of the existing rules, regulations and provisions for eligibility for retirement allowance. As of the time he joined the fund, his right to continued membership therein, under the same rules and regulations existing at the time of his employment, was complete and vested. The legislature could not thereafter constitutionally alter the provisions of his already existing contract of membership. His rights in the fund could only be changed by mutual consent . . . .” 374 Pa. at 168-169. (Emphasis supplied). The distinction between provisions relating to the solvency of a retirement fund and provisions unrelated thereto was again pointed out in the subsequent case of Hickey v. Pittsburgh Pension Board, 878 Pa. 300, 106 A. 2d 233 (1954), in which the holding of the Baher case was approved. In Hichey the petitioner, an employe of the City of Pittsburgh, had completed twenty years of service with the city and paid certain sums into the Pittsburgh Pension Fund and was therefore qualified under the Pension Act of May 28, 1915, P. L. 596 to receive a pension payable at age sixty. In 1947 the petitioner having reached his sixtieth birthday retired from the city and received pension payments. But when, in 1952, the petitioner obtained employment with the County of Allegheny, the City Pension Board discontinued the payments under the authority of the Act of April .26, 1933, P. L. 81 which provided that if a pensioner of the City of Pittsburgh became employed by Allegheny County, the City Pension Board was empowered to suspend retirement payments to the pensioner during the period of such employment. We said that this “interdiction in the Act of 1933 is not so much a suspension of pension rights as it is a restriction on the right of employment. The Act says in effect that Hickey will receive what he is entitled to receive and what he has paid for, provided he does not work for Allegheny County. But the Legislature has no right to say this. It can no more bar Hickey from working for the County than it can bar him from working for the United States Steel Company, or from running a grocery store, or from taking a trip to Europe, or running for political office.” 378 Pa. at 308. We then took the occasion to reaffirm the holding of the Baker case by stating that as of the time Hickey joined the retirement system he acquired certain contractual rights, 378 Pa. 304; while the legislature without breaking the bonds of these contractual obligations might strengthen the actuarial fibers of the system by changing relevant conditions prerequisite to receiving the retirement allowance, 378 Pa. at 309, it could not impose restrictions upon an employe’s pension rights which were not related to maintaining the actuarial integrity of the retirement fund once the employe became a member of the retirement system. See also Wright v. Retirement Board of Allegheny County, 390 Pa. 75, 134 A. 2d 231 (1957) (Rule approved); Jamieson v. Pittsburgh, 381 Pa. 366, 369, 113 A. 2d 454 (1955) (Rule approved); Mauch v. Allegheny County Retirement Board, 381 Pa. 492, 113 A. 2d 230 (1955) (Act effective prior to employe’s eligibility for retirement and conditioning such eligibility upon employe not being entitled to receive other public pensions held inapplicable to such employe). We may thus summarize the law relating to the rights of a public employe in a retirement system as follows: 1. An employe who has complied with all conditions necessary to receive a retirement allowance cannot be affected adversely by subsequent legislation which changes the terms of the retirement contract. 2. An employe who has not attained eligibility to receive a retirement allowance may be subject to legislation which changes the terms of the retirement con tract if tbe change is a reasonable enhancement of the actuarial soundness of the retirement fund. 3. An employe who has not attained eligibility to receive a retirement allowance may not be subject to legislation which changes the terms of the retirement contract if the change does not reasonably enhance the actuarial soundness of the retirement fund. Applying these principles to the present case it follows that Harvey is. subject to the requirements of the Retirement Act of 1933. This statute increased the retirement age from fifty to sixty years except that employes who had been separated from the service by reason of no cause or act of their own might retire with full benefits at age fifty. Since an increase in retirement age is related to maintaining the actuarial sound ness of a pension fund, see Retirement Board of Allegheny County v. McGovern, supra, 316 Pa. at 176, this provision of the Act of 1933 applied to all employes who, on the effective date of the act, had not attained eligibility to receive a retirement allowance. By agreement of the parties the court below did not pass upon Harvey’s contention that his discharge was not for cause, and that, therefore, even under the Act of 1947 he was presently entitled to a pension. We will therefore remand this case to the court below for determination of this question. The judgment of the Court of Common Pleas of Allegheny County is reversed and the record remitted for further proceedings not inconsistent with this opinion. Costs to be paid by the Retirement Board of Allegheny County. The principles set forth in the McGovern decision are also determinative of the rights of employes in private pension systems. See David v. Veitscher Magnesitwerke Actien Gesellschaft, 348 Pa. 335, 342-343, 346, 35 A. 2d 346 (1944); Cf. Linaka v. Firemen’s Pension Fund of Philadelphia, 346 Pa. 459, 31 A. 2d 122 (1943); Marshall v. Pilots Assn., 206 Pa. 182, 55 Atl. 916 (1903). The majority of states have adopted the position that public employes have no unalterable rights until all requirements for receiving retirement allowances have been satisfied. See Annotation, 52 A.L.B. 2d 437 (1957). However, the more recent decisions recognize that an employe obtains certain rights at the time he joins the retirement system which cannot thereafter be changed without his consent. In California the rule is that a public employe receives the right to a substantial and reasonable pension under the terms of the retirement act in force at the time of his employment subject to subsequent legislation modifying his rights if such acts bear a material relationship to the theory of a pension system and its successful operation, and result in new advantages to employes which offset any disadvantages imposed. Allen v. Long Beach, 45 Cal. 2d 128, 387 P. 2d 765, 767 (1955). See also Bakenhus v. Seattle, 48 Wash. 2d 695, 296 P. 2d 536, 540 (1956) (“. . . pension rights may be modified prior to retirement, but only for the purpose of keeping the pension system flexible and maintaining its integrity.”); Crawford v. Teachers’ Retirement Fund Assn., 164 Ore. 77, 99 P. 2d 729 (1940) (prior to the fulfillment of all prerequisites ■ to eligibility for retirement, an employe’s rights in a retirement fund are of an inchoate nature and subject to changes in the regulation of the fund necessary for the betterment thereof).

The opinion of the Court was delivered by Gibson, C. J. The verdict, in this instance, is avowedly for the price of the land; but there is a vice in it, as well as in the cause of action, which must eventually preclude a recovery. Defence upon equitable grounds may be taken to an action for purchase money even at common law; and with greater reason it may be taken to such an action where it is employed to perform the office of a bill for specific execution. The first inquiry, then, is, what would a chancellor decree on all the circumstances of the case disclosed by the evidence ? The decisions on the subject of misrepresentation as an answer to a bill for specific performance, are not entirely consistent with each other. In Wellingham v. Joyce, (3 Vez. 168), an agreement for a lease, which had been procured by representing the applicant to have long been the tenant of the person who recommended him, and punctual in the payment of his rent, was not deemed proper for specific performance, because it was thought the respondent would not have entered into the agreement had he known, what was true in fact, that the applicant had been the tenant of the person only a short time, and had been distrained for the rent and taxes. On the same principle was Phillips v. Buckingham, (1 Vern. 227), in which it appeared that the vendor had previously broken off a treaty with the same purchaser on a difference about the price; on which the latter procured Chancellor Nottingham’s secretary to negotiate the purchase in the name of the chancellor’s son, to whom the vendor professed himself willing to part with the estate for less than he would take from another, and desired the chancellor to name the terms; but the lord keeper refused to execute the contract. Lord Thurlow attempted to cast a shade on the authority of that case in Irnham v. Child, (1 Bro. C. C. 95); but it is sustained by Lord Bathuest’s decision in Eyre v. Pop-ham, in the appended note. The' principle, however, seems to have been narrowed' by the' vice-chancellor in Fellowes v. Gwydyr, (1 Simons 63), who enforced the contract, though the purchaser had obtained peculiarly favourable terms by untruly representing himself to be the agent of a person whom the vendor was willing to oblige, because the purchaser did not know that he could not have obtained the same terms in his own name. I am unable to see the justice of that, or what the vendor had to do with the knowledge or motive of one who had decoyed him into a bargain he would not otherwise have, made, by false pretences. No untruth can be entirely blameless; and he who practises a gratuitous deceit must answer the consequences of it, independently of all consideration of his motive. And such is the principle of Twining v. Morris, (3 Bro. P. C. 326), in which the master of the rolls refused to execute a purchase, because the vendor’s agent had bid for the purchaser, and unintentionally cast a damp on the sale, by creating a belief in the bystanders that he was bidding in the estate for the vendor. Yet there had been no design to represent anything ; notwithstanding which, it was thought to be enough that the vendor had suffered by a misconception not of his own making. It is difficult to conceive how there could have been misrepresentation in Fellowes v. Gwydyr, without a sinister motive; and it was said by Lord Mannees, in O’Rourke v. Percival, (2 Ball & Beatty 62), to be an established principle of the court, not to decree specifically where it does not appear that the party calling for the chancellor’s aid has acted, not only fairly, but in a manner clear of all suspicion. 'The preceding cases go to misrepresentation as to the person of the purchaser; but they disclose a principle of general application, that where the assent of a party has been procured through misapprehension induced by the conduct of him who insists on the bargain, a chancellor will leave him to his remedy at law. But misrepresentation of the thing sold is equally decisive. Thus in Shirley v.Stratton, (1 Bro. C. C. 440), where the vendor represented the estate as clearing £90, but suppressed the fact that a wall on it was to be repaired at an annual expense of half the sum, the court dismissed the bill. And in Shovel v. Bogan, (2 Eq. Ca. Abr. 688), a false representation of the quantity, the land being sold by the acre, was allowed to have the same effect. So in Buxton v. Lister, (3 Aik. 382), purchasers who had been induced to agree to an exorbitant price for timber trees by the false assurance of the seller that certain timber-merchants had valued the lots at so much, were not held to specific execution. I have found no case of misrepresentation as to the quality of the soil but Scott v. Hanson, (1 Simons 13), and there the estate was represented to be uncommonly rich watered meadow-land; but it was in truth only imperfectly watered. The vice-chancellor agreeing with Sir William Scott in Trower v. Newcome, (3 Mer. 704), that an indefinite and vague representation was to be treated by the purchaser only as a ground of inquiry, was of opinion that the expression “ uncommonly rich watered meadow-land,” had regard, not to the watering, but to the soil; and considered the whole as a loose observation of the vendor or the auctioneer, on which the vendee ought not to have placed reliance. Undoubtedly a vendor may praise to the most extravagant extent, qualities which are susceptible of inspection; but a misrepresentation of an occult quality, in regard to which the vendee is not supposed to buy on his own judgment, would be followed by very decisive consequences. Now what is the case at bar ? The overture came from the vendor. He wrote to the vendee, an iron-master who had been hunting ore in the neighbourhood, that he had a great deal of it on his land, of a fine quality, and such as the iron-masters in Perry county were getting; offered to sell him his farm, and invited him to view it. The vendee came, and was shown the tail of a vein at a place where there had been an opening, but it was partly filled up. He was assured that there was a very great quantity of it, and that the vein was a foot thick; relying upon which, and declaring that the ore, not the land, was his object, he. struck the bargain. The mine was on lease to a man of the name of Conwall, who had desisted from working it, and who testified at the trial that the produce was not worth the expense; but this fact, so far as concerned the scarcity, was not communicated. Such is the case made out by the proofs on the part of the defendant. The material circumstance added to it by the proofs on the part of the plaintiff, is, that the defendant was persuaded to take the risk of the ore on himself, and to take the property subject to Con-wall’s lease. But what matters such a stipulation, if the whole contract was procured by misrepresenting the fact which was the sole inducement to the purchase? The mine was found to be worthless. The thickness of the vein proved to be, not only a vast deal less than a foot, but so inconsiderable as not to be worth the working of it; and the object of the purchase, induced, as it was, by the vendor’s positive assertion of a fact which he at least did not know to be true, had utterly failed. Was not the bargain, then, procured by misrepresentation? The circumstances of the case resemble those of Young v. Clerk, (Free, in Ch. 538), which was a bill to have specific performance of articles for a lease. The defendant, who had not seen the land or known anything of its value, viewed it in company with the plaintiff, who had been tenant to the preceding owner, then re cently dead, and who gave the defendant the only information he received from anyone. Having no judgment of his own as to the annual value, he asked to see the counterparts of the leases to the under-tenants, but was shuffled off, and prevailed on to execute the articles; shortly after which he discovered that he had been greatly imposed on. Lord Macclesfield was clearly of opinion that he was not bound to enforce articles when unreasonable, or founded in fraud, and when it would be obviously unconscionable to assist the party; and that as the articles before him were of that sort, though no direct fraud was proved, it was proper to leave the parties to their remedies at law. The case before us, however, is much stronger, in respect that the vendee was compelled to rely on the representation of the vendor, while the defendant in Young v. Clerk might, by insisting on the production of the leases, or by consulting men of judgment, have ascertained the annual value elsewhere. Brereton v. Cowper, (2 Bro. P. C. 535), is another case of this stamp. These show that to assert for a truth what the party does not know to be so, is equivalent to the assertion of a known falsehood; and that a chancellor will not execute a purchase where the vendee has relied on the vendor’s unfounded assertion. Principles of equity are more delicate and subtle in their texture than rules of law; and where the application of them to the facts and circumstances of a cause is left to the unpractised hand, of a jury, such a verdict as the present may well be expectéd.. The proper direction would have been, that, taking the evideñcp on both sides to be true, the plaintiff could not recover. The omission to tender the conveyance at the day would,be unimportant, though the old doctrine that time cannot be of the essence of the contract, has given place to a more reasonable one. Perhaps the proper rule has been laid down by Chancellor Kent, in Benedict v. Lynch, (1 Johns. Ch. R. 374), that where the applicant for specific performance has omitted to perform his own part, without being able to assign a justification or excuse for it; and where there is nothing in the acts or conduct of the other party which amounts to an acquiescence in the delay, the court will not interfere. But was there not a justification of the plaintiff’s omission in the defendant’s notice through his agent that he would not abide by the bargain 1 Instead of a monition that punctual performance was expected, it was a disavowal of the Contract, and a waiver of all performance whatever. It was said by Mr Justice Washington, in Blight v. Ashley, (Peters’ C. C. Rep. 24), that a man bound to do a thing must do it, or offer to do it, unless the other has dispensed with it beforehand. The principle that a man is not bound to go through the form of a tender which he has been told would be rejected, is a common one, and exemplified in Buller’s Nisi Prius 96, by the casé of a tenant who' has waived a tender of notice to quit by disclaiming the tenancy and attorning to a stranger. Had not the conveyance been faulty in misdescri bing one of the grantees, it might have been tendered at any time before suit brought, or perhaps at the trial. But the decisive defect is in the verdict, not because it is for instalments not demandable at the suing out of the writ, for the action was brought to enforce, not only payment of the instalments due, but the giving of security for those to come; and this could be done only by a conditional verdict for the whole. But the condition imposed by the jury, is one which a chancellor would not have imposed. The verdict is for the gross amount, time being given to deliver bonds and a mortgage for the immature instalments, to be executed by Mr Morgan and the defendant himself, in order to meet the stipulation filed in the cause by the plaintiff. But Mr Morgan is a stranger to the cause and the contract; and I take it, a party is not compellable by attachment or a penalty to procure the joinder of another whose actions he cannot control. The old doctrine on the subject has given place to a more rational one. That a vendor shall not be forced to procure the joinder of his wife, was determined by this court in Seirer v. Clark, (7 Watts 107); and there is no room for a difference, in this respect, between a wife and a stranger. A party who covenants to procure such a joinder, is doubtless liable for a failure in damages proportionate to the loss; but not stipulated damages in the shape of the vhole purchase money, which may be exorbitant. Had the plain- \ ff entitled himself to specific performance of the other parts of the tL atract, and been content to take such bonds and such a mortC01 'e as the defendant could give him, a verdict to that effect would §aS > been well; but he was not entitled to anything further, have Judgment reversed.

The opinion of the Court was delivered by Sergeant, J. The question that arises in this case is, whether the devisee Passmore Heald took an estate in fee with an executory devise over to the testator’s daughter Elizabeth, or an estate tail. In the former case, the title of the purchaser at sheriff’s sale is good; in the latter, the plaintiff below is entitled as heir in tail. The principle is now settled by frequent decisions, and especially in the case of Pells v. Brown, (Cro. Jac. 590), which is considered a leading case on this subject, 3 Yeates 221, 7 T. R. 596, that an executory devise over after an indefinite failure of issue is too remote; but if the failure of issue be limited to a life or lives in being, and 21 years and some months after, it is good. Where, therefore, the father in that case devised his lands to his youngest son and his heirs, and if he died without issue, living the eldest, then to him and his heirs, it was held that the youngest son took a fee which was determined by his death without issue during his eldest brother’s life-time, and that the eldest brother took. So in a still earlier case, Hynd v. Lyon, (5 Bac. Ab. 777, tit. “ Rem. & Reversion”), the devise was to the son and his heirs, and if he died before 24 and without heirs of his body, remainder over; the remainder over was held good. Applying this rule to the case before us, it seems the estate devised to Passmore Heald was a fee, and the remainder over good as an executory devise; but as the event did not happen on which Passmore’s estate should be defeated, it became a fee-simple absolute. For the words are, “ If he die and leave no lawful issue, then to his daughter Elizabeth if she shall be then living, and to her heirs and assigns forever,” in which the word “ then” refers to the death, and the period contemplated is whilst Elizabeth is living. The case falls within the class mentioned in Eichelberger v. Barnitz, (9 Watts 450), as exceptions to the general rule that the words, if he die without issue, or on failure of issue, or for want of issue, or without leaving issue, then over in fee, the estate of the first taker is a fee-tail; that is to say, it ranks in that class where the period at which the devise over is to take effect is expressly or impliedly limited to the time before, mentioned, and in which the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure of issue. When the first estate is for life, the construction may be otherwise, as in Wyld v. Lewis, (1 Atk. 432), where the testator devised .to his wife E., without any words of limitation, and that if she should have no son or daughter by him begotten on her body and for want of such issue, then the premises, to return to his brother I.W. if he be then living, and his heirs forever. This was held by Lord Hardwicke an estate-tail in E., but on ¡.the ground that by an opposite construction the, testator’s grand-children would be excluded, and, as Mr Powell remarks, the children also. 2 Pow. Dev. 583. But no such reason applies where the devise to the first taker is a fee; and therefore the construction has been uniformly otherwise in words of similar import. Here the first devise is of a fee, subject to be defeated by the death of Passmore without issue during the life-time of Elizabeth: and that event not having occurred, his estate became absolute. Judgment reversed, and judgment for defendant.

MONTEMURO, Judge: Appellants in this medical malpractice action challenge the denial of their motions for a new trial and for judgment n.o.v. In the absence of any error that would justify a retrial, and because the evidence of record adequately supports the jury’s verdict, we affirm the judgment of the Lancaster County Court of Common Pleas in favor of appellee Milton Lu, M.D. Appellants allege in their complaint that Dr. Lu performed surgery on appellant Rebecca Neal negligently and without the informed consent of either Rebecca or her parents, appellants David and Carol Neal. The testimony and other evidence at trial revealed the following facts. In July of 1969, Rebecca, who was then three years old, amputated the tip of the ring finger on her right hand while playing on a swing in her back yard. She was treated at a nearby hospital by John W. Pratt, M.D., and was released apparently without further incident. In the years following this mishap, however, the finger developed a bulbous deformity on either side of the nail, and the nail itself curved at an odd angle over the end of the finger. The deformity embarrassed Rebecca and impeded her pursuit of musical and athletic activities at school. Rebecca and her mother therefore consulted Dr. Lu in January of 1981 about the possibility of corrective surgery. Dr. Lu advised the Neals that surgery could eliminate the bulbous deformity and straighten the nail. The Neals sought the “second opinion” of at least one other physician, who advised against a surgical solution to Rebecca’s problem. Neither Rebecca nor her mother could recall the reasons for this advice. The Neals nevertheless decided that Rebecca would undergo the proposed surgery, and Dr. Lu operated on March 6, 1981. The surgery, according to appellants, has worsened rather than corrected the condition of Rebecca’s finger. Appellants offered evidence that the finger is shorter now than it was before surgery and that Rebecca has lost completely the use of the joint closest to the fingertip. In support of the negligence claim, the evidence offered by appellants suggests that Dr. Lu removed or “trimmed” bone from Rebecca’s finger unnecessarily. Appellants’ medical expert, moreover, testified that the “ill-conceived” failure to employ a skin graft in this case caused the death or “necrosis” of additional bone and tissue in the afflicted digit. In support of the informed consent claim, the parties agree that Dr. Lu decided during surgery to insert a “pin” into Rebecca’s finger to ensure the straightness of the nail even though the doctor had informed neither Rebecca nor her parents of the possibility that he would have to do so. The parties also agree that Dr. Lu never informed the Neals of the possibility that he would “trim” bone from the finger. Dr. Lu testified on his own behalf as the sole witness for the defense. He indicated that during surgery he had removed tissue and other matter from the affected area as planned. He repeatedly denied, however, that he had “trimmed” any bone other than the nail. The doctor also testified that although he had noticed some necrosis of the skin in the weeks following surgery, he never noticed any necrosis of the bone. He suggested that the surgery only appeared to shorten Rebecca’s finger. In response to the testimony of appellants’ medical expert, Dr. Lu offered his own “opinion” that the “traumatic amputation” of Rebecca’s finger in 1969 was “clearly” a “possible” cause of the condition about which appellants now complain. The doctor further opined that if the 1969 accident itself did not sever bone from the fingertip, the treating physician at the time, Dr. Pratt, could not possibly have closed the wound without removing or trimming some portion of the bone itself. Counsel for appellants objected to this portion of Dr. Lu’s testimony on two grounds. First, counsel maintained that Dr. Lu was attempting to testify as a medical expert even though he had neither listed himself as a prospective expert witness nor furnished appellants with a synopsis of his proposed testimony pursuant to general and local rules of discovery. Second, counsel observed that Dr. Lu had failed to render his opinion to “a reasonable medical certainty.” The trial court nevertheless overruled these objections and allowed the testimony. On February 22,1985, the jury returned a verdict in favor of Dr. Lu. Appellants filed timely motions for post-trial relief, which the court denied. This appeal followed. Appellants now present three issues for our consideration: I. Whether the trial court erred when it allowed the defendant physician in a medical malpractice case to render an expert opinion even though the defendant failed to list himself as a prospective expert witness and failed to furnish a synopsis of his proposed expert testimony as required by Pa.R.C.P. 4003.5 and Lancaster County Local Rule 212. II. Whether the trial court erred when it allowed the defendant physician in a medical malpractice case to render an expert opinion on the issue of causation with less than “a reasonable medical certainty.” III. Whether the evidence on the issue of informed consent was so conclusive that it entitles appellants to judgment n.o.v. We will address each of these questions in turn. I. In support of their request for a new trial, appellants point out that Dr. Lu failed during discovery to list himself as one of the experts the defense expected to call at trial. Appellants also point out that the doctor failed to disclose “the substance of the facts and opinions” about which he expected to testify. For these reasons, appellants contend that the trial court should have excluded Dr. Lu’s “surprise” expert testimony. Their argument relies primarily upon Pa.R.C.P. 4003.5(a), which provides in relevant part as follows: (a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial may be obtained as follows: (1) A party may through interrogatories require (a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and (b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert. We recognize that appellants served the necessary interrogatories upon Dr. Lu and that rule 4003.5 therefore required Dr. Lu to disclose before trial the substance of any expert testimony “acquired or developed in anticipation of litigation.” We further recognize that if a party fails to identify as requested any of those experts which he or she expects to call at trial, the court must exclude the testimony of the undisclosed experts, absent some extenuating circumstance. See Pa.R.C.P. 4003.5(b); Kaminski v. Employers Mut. Cas. Co., 338 Pa.Super. 400, 487 A.2d 1340 (1985). Appellants nevertheless misapply the requirements of Rule 4003.5 to the testimony of Dr. Lu. By its own terms, Rule 4003.5 allows limited discovery of expert opinions “acquired or developed in anticipation of litigation.” As this language suggests, the rule governs discovery of opinions that a party or a potential party to litigation solicits from a wow party expert. The explanatory note to the Rule, moreover, emphasizes that Rule 4003.5 is not applicable to discovery and deposition procedure where a defendant is himself an expert, such as a physician, architect or other professional person, and the alleged improper exercise of his professional skills is involved in the action. Such a defendant can be examined by written interrogatories under Rule 4005 or by oral deposition under Rule 4007.1. Pa.R.C.P. 4003.5 explanatory note — 1978. See also 10 Goodrich-Amram 2d § 4003.5:2 (1979). As the Civil Procedural Rules Committee here suggests, the litigant can probe the expert knowledge and opinions of his or her opponent before trial by more direct and comprehensive means than those which are afforded by Rule 4003.5. The ability to discover the potential expert testimony of a party witness, either by propounding written interrogatories or by taking oral or written depositions, is fettered only by the general limitations that apply to all discovery. Since the rescission of Rule 4011(f) in 1978, the party witness against whom discovery is sought can no longer object on the ground that the requested disclosure would require him or her “to give an opinion as an expert witness.” Appellants in the present case took full advantage of the opportunity to learn before trial the expert opinions of Dr. Lu. They examined the doctor both by interrogatories and by deposition. If the doctor’s opinion at trial varied significantly from his opinion under oath during deposition, counsel for appellants could have called the discrepancy to the attention of the jury. In fact, counsel relied heavily upon the deposition transcript during his cross examination of Dr. Lu at trial. Rule 4003.5 did not afford appellants the right to vex their party opponent with cumulative discovery demands merely because the opponent expected to testify as an expert in defense of the very conduct at issue. Like its almost identical federal counterpart, Fed.R. Civ.P. 26(b)(4), Rule 4003.5 applies only to discovery of experts that a litigant has “retained or specially employed” in the course of preparing for litigation. Pa.R.C.P. 4003.5 explanatory note — 1978. The Rule limits, rather than expands, the relatively free flow of pre-trial information. By allowing discovery of only those experts that an opponent “expects to call” at trial and by restricting this discovery to a synopsis of the proposed expert testimony, it discourages the lazy litigant from building his or her case upon the bétter preparation of a more diligent opponent. It permits only enough discovery to prevent the tactical use of surprise expert testimony at trial. The opinions of Dr. Lu in this case certainly were not the kind of trial preparation material to which Rule 4003.5 applies. The doctor did not “acquire” his opinions on the treatment of Rebecca’s finger “in anticipation of litigation.” He did not expend time and money developing his own knowledge or employing himself as an expert to gain a tactical advantage in the law suit brought against him by appellants. His opinions and knowledge, in short, were not the work product of a well-prepared litigant. They pre-dated any litigation and are the very gist of appellants’ cause of action. As such, they fall outside any reasonable definition of the phrase “acquired or developed in anticipation of litigation.” Dr. Lu therefore could not have taken advantage of Rule 4003.5 to limit discovery of his opinions to a mere synopsis of his proposed testimony. If Dr. Lu could not have invoked the protection of Rule 4003.5 to avoid full discovery of his expert knowledge, appellants certainly cannot invoke the sanctions of Rule 4003.5 to punish the doctor for noncompliance. The Rule simply does not apply to expert opinions of a party when a matter within that party’s field of expertise is at issue. This interpretation is consistent with discovery practice under the federal rule. See, e.g., Rodrigues v. Hrinda, 56 F.R.D. 11 (W.D.Pa.1972) (expert opinion of defendant physicians in medical malpractice action not “acquired or developed in anticipation of litigation”). Appellants also argue, however, that Dr. Lu failed to comply with Lancaster County Local Rule 212. This rule governs the conduct of pretrial conferences in Lancaster County. One of the numerous requirements of the Rule is that counsel before conference furnish both the court and opposing counsel with a list of “witnesses on liability and on damages, showing the address of each.” Counsel must also furnish “a concise statement of each witness’ proposed testimony.” The Rule limits the evidence at trial “to those witnesses, exhibits and documents set forth in [the] pre-trial memorandum.” The record in this case nowhere indicates that Dr. Lu furnished the required lists and concise statements. Appellants therefore urge that the trial court should have excluded the expert testimony of Dr. Lu and that the court’s failure to do so entitles appellants to a new trial. We disagree. Appellant recognizes that noncompliance with the literal requirements of a local rule of discovery will not by itself justify exclusion of testimony. We observed in Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982), that a trial court should not enforce a local “procedural technicality” by excluding evidence unless failure to do so would deprive a party of their right to a fair trial. In Sindler, the defendant physician in a medical malpractice action failed to comply with a local rule that required him to serve upon his opponents “the reports of any expert whose opinion will be offered in evidence at the time of trial.” Sindler, supra, 309 Pa.Superior Ct. at 12, 454 A.2d at 1056. At his deposition, moreover, the defendant refused to answer questions that required him to render an expert opinion. The trial court nevertheless allowed the defendant during his trial testimony to offer the same expert opinions that the plaintiff had tried unsuccessfully to discover. Because the defendant physician had failed to disclose his proposed expert testimony pursuant to the local rule and had refused to allow the plaintiff to depose him on his expert opinions, the plaintiff in Sindler, like appellants in the present case, claimed that the defendant’s expert testimony constituted unfair surprise. We agreed and therefore affirmed the grant of a new trial by the trial court. The present case, however, differs from Sindler. Here, as we have noted, appellants had ample opportunity before trial to explore the expert opinions of Dr. Lu. Appellants obtained more information from the depositions of their opponent than they would have from a mere summary of his testimony. We therefore cannot find that the doctor’s expert testimony deprived appellants of a fair trial. In Sindler, we identified four factors that the court should weigh in determining whether failure to comply with a local rule of discovery justifies exclusion of expert testimony: (1) the extent of any actual “prejudice or surprise” suffered by the party against whom the expert testified; (2) the ability of that party to cure the prejudice or surprise; (3) the extent to which allowance of the testimony disrupted the “orderly and efficient trial of the case or of other cases in the court”; and (4) the “bad faith or willfulness” of the party that has failed to comply with the order. Sindler, supra, 309 Pa.Superior Ct. at 15 n. 8, 454 A.2d at 1058 n. 8. See also Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979) (applying same factors to determine whether failure to comply with pretrial discovery order justified exclusion of expert testimony). These factors weigh heavily in favor of allowing Dr. Lu’s testimony. Appellants cannot claim actual prejudice or surprise. They learned as much from Dr. Lu’s deposition and from his answers to interrogatories as they would have learned from the “concise statement” required by Rule 212. Moreover, even if the expert testimony at trial differed from the expert testimony during deposition, appellants could easily cure any resultant prejudice or surprise by offering the inconsistent deposition testimony into evidence against the doctor or by exploring the inconsistency on cross examination. Finally, nothing in the record indicates that allowance of Dr. Lu’s testimony caused any disruption of the trial or that Dr. Lu acted willfully or with bad faith in failing to comply with Rule 212. II. Appellants also point out, in support of their request for a new trial, that Dr. Lu rendered his expert opinion on causation with less than “a reasonable medical certainty.” During his direct examination of Dr. Lu, counsel explored the possibility that the 1969 accident was the actual cause of Rebecca’s current problems. Counsel for appellants objected to the following exchange: Q. Doctor, in a traumatic amputation such as Rebecca sustained in July of 1969, is it possible that the individual could sustain a damage to — I believe [plaintiff’s expert] referred to it as the growth plate — in the finger? A. It is clearly possible because all the finger you have. All the bone have a growth center, so when the child grow, the long bone, short bone, all grow. If you damage the center, the bone will not grow. N.T. February 22, 1985 at 505 (emphasis added). Appellants contend that this testimony about the “possible” other causes of Rebecca’s problems fell short of the evidentiary standard for expert opinion evidence on the issue of causation. They believe that the trial court should have “taken steps to assure that Dr. Lu testified within the realm of certainty.” We disagree. Appellants cite McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971), for the firmly-established proposition that expert medical witnesses must render their opinions on causation with “reasonable medical certainty.” The opinion of our supreme court in McMahon makes clear, however, that the burden of proving causation with the appropriate certainty rests upon the plaintiff. Obviously, recovery in a civil action depends at least initially on the sufficiency of the proof offered by the party who seeks to recover. The defendant ordinarily need not prove, with certainty or otherwise, that he or she is innocent of the alleged wrongdoing. Absent an affirmative defense or a counterclaim, the defendant’s case is usually nothing more than an attempt to rebut or discredit the plaintiff’s case. Evidence that rebuts or discredits is not necessarily proof. It simply vitiates the effect of opposing evidence. Expert opinion evidence, such as that offered by Dr. Lu in this case, certainly affords an effective means of rebutting contrary expert opinion evidence, even if the expert rebuttal would not qualify as proof. In general, “the admission or rejection of rebuttal evidence is within the sound discretion of the trial judge.” Mapp v. Dube, 330 Pa.Super. 284, 294, 479 A.2d 553, 557 (1984). We concluded in Erkens v. Tredennick, 353 Pa.Super. 236, 509 A.2d 424 (1986), that the trial court had acted within its discretion in permitting the defendant physician’s medical expert to testify on the issue of causation with less than reasonable medical certainty. The plaintiff’s expert in Erkens had testified with appropriate certainty that the defendant had caused the plaintiffs infection when he negligently removed sutures from the plaintiffs eye. The defendant’s expert countered that the infection “did not result from the suture removal but could have been carried by the bloodstream.” Erkens, supra, 353 Pa.Superior Ct. at 240, 509 A.2d at 426. We held that although the defendant’s rebuttal expert “did not state with reasonable medical certainty what did cause the infection, ... his testimony was quite clear as to his basis for finding the suture removal did not cause it.” Id. The present case begs the same result. Although Dr. Lu testified, in response to appellant’s expert, that the 1969 accident was a “possible” cause of Rebecca’s current problems, he was “quite clear” in explaining that he had neither removed bone during surgery nor caused any subsequent necrosis of bone. Moreover, the report of the hospital pathologist, who examined the matter removed from Rebecca’s finger by Dr. Lu, confirms Dr. Lu’s claim that he did not remove bone during surgery. Thus, as we concluded in Erkens v. Tredennick, we conclude in this case that the trial court did not abuse its discretion by permitting the challenged testimony of Dr. Lu. Appellants nevertheless urge that Erkens was “ill-considered” and that we should not allow it to stand as “the law of the Commonwealth on this subject.” Appellants suggest that the holding in Erkens conflicts with the mandate of our supreme court in McMahon v. Young, supra. Because the “certainty” standard of McMahon applies only to expert medical testimony that a litigant offers as proof of a necessary fact in support of recovery, we cannot agree that Erkens and McMahon are incompatible. We lack any other reason at this time to question the wisdom of the Erkens holding. III. On their informed consent claim, appellants contend that the evidence entitles them to judgment n.o.v. Dr. Lu, they point out, admitted on cross examination that he never explained to Rebecca or to Rebecca’s parents the possibility that the surgery would require the “trimming” of bone or the insertion of a “pin.” Both Rebecca and her mother insisted that they would not have consented to the surgery had they known of the possible consequences. Appellants believe that this evidence conclusively establishes the liability of Dr. Lu on the informed consent claim. Again, we cannot agree with appellants’ view of this case. The entry of judgment notwithstanding a jury verdict to the contrary is a drastic remedy. A court cannot lightly ignore the findings of a duly-selected jury. Thus, in considering a motion for judgment n.o.v., the court must view the evidence and all reasonable inference that arise from the evidence in a light most favorable to the verdict winner. See Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Northwest Savings Ass’n. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986); Tonkovic v. State Farm Mut. Automobile Ins. Co., 337 Pa.Super. 123, 486 A.2d 512 (1984). The court can enter judgment n.o.v. only if “no two reasonable persons could fail to agree that the verdict is improper.” Northwest Savings Ass’n. v. Distler, supra, 354 Pa.Super. at 191, 511 A.2d at 825. See also Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985). With this standard in mind, we find that the trial court properly denied judgment n.o.v. in this case. In Pennsylvania, a physician is liable to his or her patient if (1) the physician fails to disclose any risk in the recommended treatment, or the existence of any alternative method of treatment, that a reasonable person would deem material in deciding whether to undergo the recommended treatment; (2) the patient would have forgone the recommended treatment had he or she known of the undisclosed information; and (3) as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed, or the patient actually suffers an injury that would not have occurred had the patient opted for one of the undisclosed methods of treatment. See Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987); Festa v. Greenberg, 354 Pa.Super. 346, 511 A.2d 1371 (1986); De Fulvio v. Holst, 272 Pa.Super. 221, 414 A.2d 1087 (1979); Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978); Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976); Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). Viewing the evidence in a light most favorable to Dr. Lu, we find that appellants have not established conclusively the necessary elements of their case. We therefore will not disturb the jury’s verdict. Even a quick review of the record reveals several weaknesses in the case against Dr. Lu. First, although Dr. Lu never discussed with the Neals the possibility that he would “trim” bone from Rebecca’s finger, the evidence does not establish conclusively that Dr. Lu actually did “trim” bone. As we have indicated, Dr. Lu maintained consistently during his testimony that he never removed bone from the finger. The report of the hospital pathologist confirms this testimony. Second, although Dr. Lu never discussed the possibility that he would insert a “pin” into the finger, none of the evidence establishes, with the appropriate medical certainty, a causal connection between the insertion of the “pin” and the injuries for which appellants seek to recover. The only testimony on this issue came from Rebecca and her mother, both of whom indicated simply that Rebecca felt less pain after Dr. Lu removed the pin. Third, Rebecca and her mother both testified that they had sought a “second opinion” after their initial meeting with Dr. Lu and that the second physician had advised against the proposed surgery. Neither Rebecca nor her mother, however, could recall why the second physician so advised them. The jury reasonably could have inferred from this testimony that the second physician explained all of the risks of the procedure proposed by Dr. Lu, including the risk of bone loss and the possible use of the “pin.” The jury could also have inferred that Dr. Lu knew of this advice and felt no need to repeat it. We cannot deprive the verdict winner of any favorable inferences. Perhaps the weakest aspect of appellants’ case, however, is the lack of expert medical testimony on three crucial issues: the nature and magnitude of the undisclosed risks at issue, the existence of any undisclosed alternative methods of treatment and the nature and magnitude of the risks presented by the undisclosed alternatives. In Festa v. Greenberg, supra, this court held that a plaintiff cannot prevail on an implied consent cause of action absent evidence of this kind. We recognized that Pennsylvania is one of a growing number of jurisdictions to adopt a “prudent patient” standard of informed consent. This standard tests the adequacy of the physician’s pre-treatment disclosures by requiring the fact finder to determine whether the patient received all of the information that a reasonable person would deem “material.” We concluded in Festa that even though the ultimate assessment of “materiality” is for the fact finder to make, expert testimony is nevertheless necessary on the important secondary issues that lie outside the knowledge of the lay person. See Festa, supra 354 Pa.Super. at 360, 511 A.2d at 1378. See also Jozsa v. Hottenstein, supra, 364 Pa.Super. at 472-474, 528 A.2d at 607-08. Thus, only an expert is able to explain the harms that can arise from the procedure in question and estimate the likelihood that those harms will occur. Only an expert, moreover, can identify viable alternative treatments and discuss the risks involved. See Festa, supra 354 Pa.Super. at 356-60, 511 A.2d 1376-78. Without an informed discus sion of the risks and alternatives, the fact finder cannot determine rationally whether a reasonable person would have deemed the undisclosed knowledge “material.” Appellants in the present case offered the testimony of one medical expert. This expert concluded that the surgery performed by Dr. Lu violated the “basic rules of fingertip reconstruction” and that these violations caused Rebecca’s current problems. The expert explained in detail how the surgery deviated from “acceptable” procedure. Although the testimony certainly bolstered appellants’ negligence claims, it offered none of the necessary expert insight on risks and viable alternatives. Under the Festa rationale, appellants’ informed consent claims would not have survived a motion by Dr. Lu for compulsory nonsuit. We therefore must reject appellants’ demand for judgment n.o.v. IV. In light of the foregoing discussion, we affirm the judgment of the Lancaster County Court of Common Pleas in favor of appellee Milton Lu, M.D. . Although the explanatory notes are not part of the rules themselves, and therefore do not bind our interpretation, they serve as guidelines for understanding the purpose of our supreme court in adopting the particular rule in question. See Laudenberger v. Port Auth. of Allegheny Cty, 496 Pa. 52, 436 A.2d 147 (1981); Klyman v. Southeastern Pennsylvania Trans. Auth., 331 Pa.Super. 172, 480 A.2d 299 (1984). . Rule 4011(f) provided that "[n]o discovery or inspection shall be permitted which ... would required a deponent, whether or not a party, to give an opinion as an expert witness, over his objection.” Pa.R.C.P. 4011(f) (rescinded November 20, 1978), quoted in 5A R. Anderson, Pennsylvania Civil Practice 2 (1966). Despite the rescission of subdivision (f), the Rule continues to place general limits on the scope of discovery. For example, a party cannot make discovery demands that “would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party.” Pa.R.C.P. 4011(b). Rule 4003.1 to 4003.4 impose other general limits on discovery. . The language of Rule 4003.5 “closely parallels” that of Fed.R.Civ.P. 26(b)(4). Pa.R.C.P. 4003.5 explanatory note — 1978. In the note that precedes the 1978 amendments to the rules of deposition and discovery, the Civil Procedural Rules Committee indicated that the new rules would bring “the Pennsylvania system into as close conformity as possible with the federal system." The Advisory Committee note on Federal Rule 26 provides some insight into the purpose of Subdivision (b)(4): This is a new provision dealing with the discovery of information (including facts and opinions) obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party____ It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness. Fed.R.Civ.P. 26, notes of Advisory Committee on 1970 amendments (emphasis added). Thus, the Federal Rule allows limited discovery of facts and opinions that are not otherwise discoverable. . Records transmitted to this court often lack this sort of pre-trial conference material. In this case, however, Dr. Lu appears to agree that he never listed himself as a witness or provided a concise statement of his proposed testimony as required by Local Rule 212. . The depositions in Sindler occurred before the repeal of Pa.R.C.P. 4011(f). As we have indicated, Rule 4011(f) enabled any deponant, party or non-party, to withhold his or her answer to a question that asked for an expert opinion. . See also Health Care Services Malpractice Act of Oct. 15, 1975, P.L. 390, No. Ill, 40 P.S. § 1301.101 et seq. Section 103 of the Act provides, in part, as follows: ‘Informed consent’ means for the purposes of this act and of any proceedings arising under the provision of this act, the consent of a patient to the performance of health care services by a physician or podiatrist: Provided, That prior to the consent having been given, the physician or podiatrist has informed the patient of the nature of the proposed procedure or treatment and of those risks and alternatives to treatment or diagnosis that a reasonable patient would consider material to the decision whether or not to undergo treatment or diagnosis. 40 P.S. § 1301.103. . In Jozsa v. Hottenstein, supra, 364 Pa.Super. at 474, 528 A.2d at 608, we concluded that a plaintiff need not offer expert testimony on all of these issues. For example, the plaintiff can prevail on an informed consent claim if his or her expert discusses the frequency with which the undisclosed harm occurs during the treatment in question, even though the expert fails to discuss viable alternatives.

Opinion by Mr. Justice Fell, On the question of the defendant’s negligence the case was clearly for the jury. The accident was caused by a broken rail. This rail had been in use for sixteen years as the outside rail on a sharp curve, and had been worn by the flanges of the car wheels so that its weight had been reduced from sixty to fifty-five pounds per yard. It had been broken some months before the accident, and had been repaired by the use of splices or side bars, and admittedly it was greatly weakened by both the wear and the fracture. In the face of this testimony it is idle to say that the case could have been withdrawn. Moreover, as the injury was to a passenger riding in the defendant’s car, and was caused by a defect in the roadway, there was prima facie a presumption of negligence which carried the case to the jury. This presumption having once arisen remained until overcome by countervailing proof. Whether it was so overcome was a question of fact for the jury. It had the same effect in shifting the burden of proof that affirmative evidence of negligence would have had: Penna. R. Co. v. Miller, 87 Pa. 395; Penna. R. Co. v. Weiss, 87 Pa. 447; Spear v. The P. W. & B. R. R. Co., 119 Pa. 61. In R. R. Co. v. Weiss, supra, it was said: “ The presumption of fact in law which carries a case to the jury necessarily leaves them in possession of the case, and although the evidence to rebut the presumption may be very strong, yet it is a matter for the jury and not for the court.” , The connection between the accident and the death was not clearly established. The deceased was injured by the derailment of the car in which he was riding on April 1, 1896. He lived until April 12, 1897, and the immediate cause of his death was an abscess on the liver. A month before he died he had a severe attack of grippe. It was incumbent on the plaintiff to show with reasonable certainty that the abscess was caused by the injury received. This it was difficult to do, as the disease is one whose origin is difficult to trace. The medical testimony produced by the plaintiff was in itself far from convincing ; but it was fortified by proof that her son had never recovered from the effects of his injuries, and that they were apparently internal and indicated a serious derangement of the liver before he had the grippe. We are not prepared to say that the court should have instructed the jury that the testimony did not warrant the conclusion that the death was the natural and proximate consequence of the accident. The question, however, is one which should be submitted with most careful instructions. The instruction as to the measure of damages was erroneous in that it permitted a recovery for two distinct causes of action. The action was commenced by the deceased six months before his death, and after his death it was carried on by his'mother, who as administratrix of his estate had been substituted as plaintiff. This was done under section 18 of the act of April 15, 1851, which gives to a common-law action the quality of survivorship. The 19th section of the same act creates a new right of action, unknown to the common law, and limited to cases where death has resulted from violence or negligence, and no suit has been brought by the injured party in his lifetime. The act of April 26, 1855, designates the persons who may exercise the right conferred by section 19 of the act of 1851: Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419; Birch v. Ry. Co., 165 Pa. 339. Under these acts two actions cannot be sustained for the same injury. If the party injured has brought an action and died it may be continued by his executor or administrator for the benefit of his estate, but in such a case no new action can be brought under section 19. If he has not brought an action, the parties designated by the act of 1855 may do so, and the recovery is in their right: Taylor’s Estate, 179 Pa. 254; Maher v. Phila. Traction Co., 181 Pa. 391. If the action is continued for the benefit of the estate, the measure of damages is the loss sustained by the injured party. In the opinion in Maher v. Traction Co., supra, it was said by the present chief justice: “ As the action had been brought in the lifetime of the injured party and had survived by virtue of section 18 of the act of 1851, it logically follows that the damages recovered by her personal representatives should be the same as she could have recovered' had death not ensued. Included therein are damages for her. pain and suffering up to the time of her death, and diminution of earning power during a period of life which she would have 'probably lived had the accident not happened. It is a mistake to suppose that the recovery in this case is for the death. It is still for the personal injury.” In some cases it has been said that the measure of damages includes the value of the life. But by this was not meant the value of the life to others, but the value of the advantages of which the injured party was deprived because of the diminution or loss of earning power. When an action is brought after death by the “ husband, widow, children or parents of the deceased,” as provided by the act of 1855, the right of recovery is in the party entitled to sue, and the measure of damages is the pecuniary loss sustained by reason of the death: Penna. R. Co. v. Butler, 57 Pa. 335. The instruction given in this case permitted the jury to cumulate the damages, and to render a verdict both for the loss which the deceased sustained by reason of his injuries and for the loss which his parents sustained by reason of his death. This was clearly wrong. The contention that the assignment of the action by the deceased is a bar to its further prosecution is without merit. The administratrix was the person empowered by the act of 1851 to continue the action, whoever may be entitled to the amount received. If any question should arise between the assignee of the action and the creditors of the estate it can be adjusted hereafter in the proper proceeding. This is not a matter which concerns the defendant. The assignments of error which relate to the measure of damages are sustained and the judgment is reversed with a venire facias de novo.

OPINION OF THE COURT CASTILLE, Justice. The sole issue in these consolidated appeals is whether the Motor Vehicle Financial Responsibility Law (“MVFRL”) requires that an individual, who applies for an original insurance policy after July 1, 1990, be provided with a specific form which contains premium information for both the full and limited tort options. While we find that the plain language of the MVFRL requires an individual purchasing an original insurance policy after July 1, 1990 to receive such premium information, we nevertheless affirm the order of the Superior Court because the MVFRL fails to provide a remedy to an individual who does not receive this information. An understanding of the specific facts particular to' each appellant is not necessary for purposes of this appeal. Instead, one must understand the general facts concerning appellants’ original purchase of automobile insurance. In the appeal sub judice, there are two general factual scenarios regarding the original purchase of automobile insurance. Appellants Havel, Urquhart and Trulear all purchased original automobile insurance policies with the insurance company of their choice after July 1, 1990. When each appellant applied for their original insurance policies, they received a notice required by 75 Pa.C.S. § 1791.1 which explained the difference between the limited tort option and the full tort option. The notice each appellant received did not contain any premium or cost comparison between the limited tort option and the full tort option. After receiving these notices, each of these appellants elected the limited tort option offered by each insurance company. The purchase of the “limited tort” option allowed appellants to reduce their insurance premium. In return for this reduced premium, appellants were generally precluded from recovering for a non-economic loss unless they sustained a “serious injury” from an accident. 75 Pa.C.S. § 1705(d). Appellants Donnelly, Henninghaxn and Merriweather did not purchase their insurance policies directly through a private insurer. Instead, each of these three appellants received their original insurance after July 1, 1990 through Pennsylvania’s Assigned Risk Plan. When deciding whether to select the limited tort option or the full tort option, each of these three appellants received and signed Form PA-1000. This Form PA-1000 was issued by the assigned risk plan and contained virtually the same information contained in the notice required by 75 Pa.C.S. § 1791.1. Thus, the appellants participating in the assigned risk plan did not receive a premium or cost comparison between the limited tort option and the full tort option. Subsequent to the purchase of insurance, each appellant was involved in an automobile accident. As a result of their accidents, appellants instituted a lawsuit against the respective appellee in each case on this appeal. Appellants filed motions in limine prior to trial seeking to preclude appellees from raising the limited tort waiver defense. In essence, appellants sought to invalidate their limited tort selections on the grounds that their insurance companies had failed to provide the proper notice before the purchase of insurance that is required by 42 Pa.C.S. § 1705. The notice required by 42 Pa.C.S. § 1705(a)(1) must contain the annual premium which an insured would incur if he purchased the limited tort option or the full tort option. Appellants’ motions in limine were consolidated in the trial court pursuant to Philadelphia Civil Rule 206.2 and the Administrative Order of the Honorable Alex Bonavitacola. The trial court, after reviewing the above-referenced statutory provisions and the purpose behind the enactment of the MVFRL, concluded that appellants’ insurance companies were required by law to issue a notice pursuant to 42 Pa.C.S. § 1705 containing the premium cost associated with choosing the limited tort option and the full tort option. The trial court based this conclusion on the trial court’s public policy perception that consumer protection required notice of the cost comparison involved in choosing a particular option. Since the trial court determined that the insureds had not made valid and knowing elections of tort coverage, the trial court held that the full tort election applied and granted the motions in limine. See 75 Pa.C.S. § 1705(a)(3). After entering this order, the trial court certified the present cases for interlocutory appeal to the Superior Court. On March 6, the Superior Court granted permission to appeal. On October 29, 1996, an en banc Superior Court in a seven-to-three decision reversed the trial court. The Superior Court majority decision enforced appellants’ limited tort selections because it found that the legislative design and administrative scheme formulated by the Insurance Department only required the cost comparison to be offered to insureds renewing their policy for the first time after July 1, 1990. Since appellants did not purchase their original insurance policy until after July 1, 1990, no premium comparison was required for appellants. This Court granted allocatur in order to decide whether the MVFRL required appellants, who applied for an original insurance policy to be issued after July 1, 1990, to have been provided with a specific notice that contains premium information for both the full and limited tort options. This Court begins its analysis by looking to the appellants who obtained their insurance through the voluntary market. In enacting the 1990 amendments to the MVFRL, the Gener al Assembly sought to slow the rising cost of automobile insurance in the Commonwealth. As part of this plan, the General Assembly gave each individual the ability to choose full tort or limited tort coverage. As previously described, the limited tort option gave an individual lower premiums in return for relinquishing the right to seek recovery for non-monetary damages while an individual choosing the full tort option did not receive as great of a premium reduction since he still had the ability to recover non-monetary damages. As part of the 1990 amendments to the MVFRL, an individual selecting the limited tort option was to receive a twenty-two percent (22%) reduction in his total premium for the same coverage prior to the amendments while a person choosing the full tort option was to receive a ten percent (10%) premium reduction. 75 Pa.C.S. § 1799.7(b)(1) & (2). When enacting this plan to provide rate reductions, the General Assembly provided mechanisms by which consumers were to be alerted of their available options. Section 1705(a)(1) of Title 75 provides: (a) Financial responsibility requirements.- (1) Each insurer, not less than 45 days prior to the first renewal of a private passenger motor vehicle liability insurance policy on and after July 1, 1990, shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance described in subsections (c) and (d). The notice shall be a standardized form adopted by the Commissioner and shall include the following language: NOTICE TO NAMED INSUREDS A. “Limited Tort” Option- The laws of the Commonwealth of Pennsylvania give you the right to a choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering and other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury” as set forth in the policy or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this “limited tort” option is $_ Additional coverages under this option are available at additional cost. B. “Full Tort” Option- The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverage as required by law under this “full tort” option is $_ 75 Pa.C.S. § 1705(a)(1). The parties to this appeal agree that Section 1705(a)(1), standing alone, only required insurers to notify existing policy holders of the available tort options and the annual premium for each tort option. Section 1791.1(b) of Title 75 reads similar to Section 1705(a)(1). However, Section 1791.1(b) does not include any language pertaining to a first renewal on or after July 1, 1990, and it does not include any requirement that an individual receive information on the premium differential between the available tort options. The parties also agree that Section 1791.1(b), standing alone, only applied to an individual applying for original coverage on or after July 1, 1990. While the parties agree as to the applicability of Section 1705(a)(1) and 1791.1(b), they diverge as to who must be notified by the provisions found at Section 1705(a)(4) of Title 75. Section 1705(a)(4) provides: Each insurer, prior to the first issuance of a private passenger motor vehicle liability insurance policy on or after July 1, 1990, shall provide each applicant with the notice required by paragraph (1). A policy may not be issued until the applicant has been provided an opportunity to elect a tort option. 75 Pa.C.S. § 1705(a)(4). Appellants argue that Section 1705(a)(4) requires an insurer to supply all applicants for automobile insurance, both original purchasers and those seeking renewals, with the notice containing the premium differential for each tort option that is required by Section 1705(a)(1). Conversely, appellees argue that Section 1705(a)(4) does not apply to original purchasers of automobile insurance. Instead, appellees argue that Section 1705(a)(4) was meant to apply only to existing policyholders as of July 1, 1990 who desired to have a new policy issued with the tort options rather than wait until their renewal date to receive the tort options. Our determination of which class of individuals should receive a notice under Section 1705(a)(4) is guided by the Statutory Construction Act. See 1 Pa.C.S. §§ 1501 et seq. The object of all statutory interpretation is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). As this Court has noted, the repeal of the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101, and the simultaneous enactment of the MVFRL, reflected a legislative “concern for the spiralling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways.” Paylor v. Hartford Ins. Co., 536 Pa. 583, 587, 640 A.2d 1234, 1235 (1994). This legislative concern over the increasing costs of automobile insurance is the public policy which is to be advanced when interpreting the statutory provisions of the MVFRL. Id. Here, Section 1705(a)(4) requires that each applicant for insurance receive the notice required by Section 1705(a)(1) prior to the first issuance of a policy on or after July 1, 1990. While the terms “applicant” and “first issuance” are not defined by the MVFRL, the common meaning of “applicant” is a person asking for something and “first issuance” is an initial outflow or passing out. See 1 Pa.C.S.1903(a)(words not defined in statute shall be construed according to their common and approved usage). From these common meanings, it is clear that Section 1705(a)(4) does not differentiate between applicants renewing their insurance coverage and applicants seeking to obtain original coverage. Thus, the plain meaning of Section 1705(a)(4) is that any individual seeking to obtain coverage on or after July 1, 1990 should receive the premium differential notice required by Section 1705(a)(1). Therefore, since the wording of Section 1705(a)(4) is inclusive rather than exclusive, this Court holds that appellants, who were attempting to obtain original coverage after July 1, 1990, should have received the premium differential notice required by Section 1705(a)(1). In reaching this conclusion, the Court recognizes that its interpretation of Section 1705(a)(4) is inconsistent with regulations promulgated by the Insurance Commissioner at 31 Pa.Code § 68.102 and 68.107. Section 68.102 provides: (b) Both the full tort and limited tort options shall be printed on the same sheet of paper. The form requires an indication of the dollar amount of savings that will be realized by the choice of the full tort or limited tort option. The dollar savings notification will offer an insured a way to compare the price of his current in-force policy with the same policy employing either the minimum 10% full tort or 22% limited tort cost savings mandated by the act of February 7, 1990 (P.L. 11, No. 6) (Act 6). The term “basic coverage,” as used in this notice, means the coverage that the insured has in force at the time the notice is sent. 31 Pa.Code § 68.102 (emphasis added). Section 68.107 provides: Section 1791.1(b)—notice of tort options. Notices for limited tort and full tort options are mandated for insureds. These forms are required for new business on or after July 1, 1990, and for renewal policies issued after the first renewal cycle following the initial notices required in 75 Pa.C.S. § 1705 (relating to election of tort options). The use of statutory language is required. These notices shall be sent with the annual renewal forms. As previously indicated, the annual renewal occurs at the annual anniversary date of the issuance of the original policy. 31 Pa.Code § 68.107. Moreover, an affidavit of the Deputy Insurance Commissioner at the time the regulations were issued stated that the Insurance Department viewed Section 1705(a)(4) as only applying to individuals who had insurance prior to July 1, 1990 and who sought to obtain the benefits of the tort options provided by the 1990 amendments to the MVFRL by having a new policy issued rather than waiting for their renewal period to arrive. Courts traditionally accord an interpretation of a statutory provision by an administrative agency charged with administering that statute some deference. Terminato v. Pennsylvania Nat. Ins. Co., 538 Pa. 60, 71, 645 A.2d 1287, 1293 (1994). However, the interpretation of a statute is a question of law for the Court to resolve and when the Court is convinced that the interpretive regulation adopted by the administrative agency is clearly erroneous or is violative of legislative intent, the Court disregards the administrative agency’s regulation. Philadelphia Suburban Corp. v. Bd. of Finance and Revenue, 535 Pa. 298, 301-02, 635 A.2d 116, 118 (1993). As described above, the Insurance Commissioner’s interpretation of the relevant statute in the case sub judice disregards the clear and plain meaning of 75 Pa.C.S. § 1705(a)(4). Thus, this Court finds that the Insurance Commissioner’s interpretative regulation is erroneous and must be disregarded. It is for the legislature, not the courts or administrative agencies, to alter the construction of who must be afforded notice under 75 Pa.C.S. § 1705(a)(4). Therefore, this Court holds that the Superior Court erred in finding that appellants did not have to receive the premium differential notice that is contained in 75 Pa.C.S. § 1705(a)(1). While this Court has held that appellants should have received the premium differential notice as required in 75 Pa.C.S. § 1705(a)(1) prior to the purchase of the original policy, this Court still must determine whether appellants are entitled to any remedy. Appellants argue that the trial court correctly held that pursuant to 75 Pa.C.S. § 1705(a)(3), appellants were deemed to have chosen the full tort option rather than the limited tort option which appellants actually elected to purchase and for which they paid. For the reasons described below, this Court disagrees. In the recent case of Salazar v. Allstate Ins. Co., 549 Pa. 658, 702 A.2d 1038 (Pa.1997), the named insured rejected uninsured/underinsured coverage when she originally purchased her insurance policy and she subsequently renewed her policy without making any changes. Residents living with the named insured were then involved in an accident and sought uninsured benefits from the named insured’s policy. The resident relatives sought benefits in spite of the named insured’s initial waiver of this coverage because the insurer failed to comply with the notice requirements of 75 Pa.C.S. § 1791.1 when it sent the named insured renewal notices. This Court agreed with the resident relatives and held that since Sections 1731, 1791 and 1791.1 of the MVFRL must be read in pari materia, an insurer was required by Section 1791.1 to provide notice on renewal forms informing the named insured of his options at the time of renewal concerning the purchase of uninsured/underinsured coverage. However, even though this Court recognized that the insurer should have provided a Section 1791.1 notice at the time of renewal, the resident relatives were not entitled to such coverage because the MVFRL specifically failed to provide a remedy for an insurer’s failure to comply with the Section 1791.1 notice requirement. In the case sub judice, Section 1705(a)(3), upon which appellants rely, provides: If a named insured who receives a notice under paragraph (1) [75 Pa.C.S. § 1705(a)(1)] does not indicate a choice within 20 days, the insurer shall send a second notice. The second notice shall be in a form identical to the first notice, except that it shall be identified as a second and final notice. If a named insured has not responded to either notice ten days prior to the renewal date, the named insured and those he is empowered by this section to bind by his choice are conclusively presumed to have chosen the full tort alternative. All notices required by this section shall advise that if no tort election is made, the named insured and those he is empowered to bind by his choice are conclusively presumed to have chosen the full tort alternative. Any person subject to the limited tort option by virtue of this section shall be precluded from claiming liability of any person based upon being inadequately informed. 75 Pa.C.S. § 1705(a)(3). While Section 1705(a)(3) clearly governs an individual renewing his policy and his failure to make a choice, the situation faced by appellants is markedly differ ent. Here, appellants were purchasing original coverage, not renewing existing policies. Also, appellants, based on a notice which accurately described the tort alternatives available in all regards except for the absence of a cost comparison, freely chose the limited tort option and paid premiums in accordance with that choice, i.e., a premium lower than if they had chosen the full tort option. Based on these clear differences between appellants’ situations and that contemplated by Section 1705(a)(3), this Court finds that Section 1705(a)(3) of the MVFRL does not provide a remedy to appellants. Moreover, this Court, like it did in Salazar, finds no remedy in any other provision of the MVFRL which would provide appellants who obtained coverage through the voluntary market with a remedy for their failure to receive a Section 1705(a)(1) notice with cost differentials from their insurers. The decision that the MVFRL does not provide a remedy is also supported by the policy behind the enactment of the MVFRL and its amendments, to stem the rising cost of insurance in the Commonwealth. Here, appellants, based on a notice form which provided accurate information on the difference between the tort alternatives, freely chose the limited tort option. In making this free choice, appellants received a greater reduction in their premiums than if they had chosen the full tort option. Appellants were content with this lower premium and their choice until they unfortunately were involved in automobile accidents with appellees. Now, appellants seek to escape from what they freely chose and paid for in order that they may obtain a full tort recovery. If this Court were to fashion a remedy not expressly provided for in the MVFRL, this Court would essentially contravene the cost containment policy behind the MVFRL because allowing appellants the full tort coverage they seek would result in giving appellants something for which no individual has paid, which in turn, would result in insurance companies passing on this extra costs to all other insureds. Accordingly, for the reasons stated above, this Court finds that the Superior Court erred in basing its reversal of the trial court’s order on the grounds that appellants were not required to receive notices containing cost differentials between full tort and limit tort coverage when they originally purchased their insurance policies after July 1, 1990. However, this Court affirms the Superior Court’s reversal of the trial court because the MVFRL fails to provide a remedy for appellants’ failure to receive the proper notice concerning tort alternatives and cost differentials. See E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977) (Supreme Court may affirm decision of any court below on any ground, without regard to grounds which the court below relied). Therefore, the order of the Superior Court is affirmed. NEWMAN, J., files a dissenting opinion in which NIGRO, J., joins. . 75 Pa.C.S. §§ 1701 et seq. . Havel applied for an original insurance policy with Allstate Insurance Company on May 2, 1992. Urquhart applied for insurance with American Independent Insurance Company on January 27, 1993. Trulear applied for insurance with American Independent Insurance Company on January 21, 1993. . The MVFRL defines a non-economic loss as "pain and suffering and other nonmonetary detriment.” 75 Pa.C.S. § 1702. . A "serious injury” is defined by the MVFRL as "a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. § 1702. . The Pennsylvania Assigned Risk Plan, adopted by the Pennsylvania Insurance Department pursuant to 75 Pa.C.S. § 1741, provides for the equitable apportionment among insurers providing automobile insurance to Pennsylvania residents of applicants who are entitled to insurance but are unable to procure it through ordinary methods. All motor vehicle insurers offering insurance in Pennsylvania are required to participate in the Assigned Risk Plan. . Section 1705(a)(3) provides, in pertinent part, that: "all notices required by this section shall advise that if no tort election is made, the named insured and those he is empowered to bind by his choice are conclusively presumed to have chosen the full tort alternative.” . The three dissenting judges of the Superior Court believed that the trial court’s interpretation of the statutory notice provision of the MVFRL was a reasonable and fair interpretation of the legislative intent behind the provisions. . Act of February 7, 1990, P.L. 11, No.6. . Section 1791.1(b) of the MVFRL provides that: In addition to the invoice required by subsection (a), an insurer must, at the time of the application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured notice of the availability of two alternatives of full tort insurance and limited tort insurance described in section 1705(c) and (d) (relating to election of tort options): The laws of the Commonwealth of Pennsylvania give you the right to choose either of the following two options: A. “Limited Tort” Option.- This form of insurance limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering and other nonmonetary damages unless the injuries suffered fall within the definition of "serious injury” as set forth in the policy or unless one of several other exceptions noted in the policy applies. B. "Full Tort” Option- This form of insurance allows you to maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. If you wish to change the tort option that currently applies to your policy, you must notify your agent, broker, or company and request and complete the appropriate form. 75 Pa.C.S. § 1791.1(b). . Webster’s New World Dictionary (2d Ed.) at 67. . Webster’s New World Dictionary (2d Ed.) at 749. . As noted by the Superior Court, the facts surrounding the assigned risk appellants are virtually the same as above except that they received a PA-1000 notice rather than a Section 1791.1(b) notice. Since the MVFRL also does not provide a remedy to assigned risk individuals who did not receive a cost differential notice, the same reasoning above applies to affirm the order of the Superior Court as it relates to these individuals. Thus, this Court need not address the issue raised by appellees that the assigned risk plan is not an insurer for purposes of the notice provisions of Sections 1705(a) and 1791.1(b) of the MVFRL.

Per Curiam. We affirm this judgment for the reasons-given by the learned judge below. They fully meet the requirements of the ease, and an elaboration of our views on the specifications of error, would be little more than a repetition of what has already been so well said. Judgment affirmed.

OPINION PACKEL, Justice. This is an appeal from a dismissal without hearing of a post conviction hearing petition. After appellant’s first degree murder conviction was affirmed by this Court, 458 Pa. 236, 328 A.2d 514 (1974), he filed the petition alleging ineffective assistance of trial counsel as the sole ground for relief. The court below found appellant’s claim patently frivolous and without a trace of support in the record, and accordingly dismissed the petition without an evidentiary hearing. Though not raised on direct appeal, the claim of ineffective trial counsel assistance was not waived, because appellant was represented at both trial and appeal by the same counsel. Commonwealth v. Lewis, 463 Pa. 180, 182, 344 A.2d 483, 484 (1975). We do not determine, however, whether the claim was properly denied as patently frivolous, because this case must be remanded for appointment of new counsel. Despite the fact that the issue was not raised by appellant, the district attorney’s office in its brief commendably pointed out on its own that appellant is represented on his PCHA petition by a member of the same public defender office as the attorney who represented him at trial and appeal. This practice conflicts with the holding in Commonwealth v. Crowther, 241 Pa.Super. 446, 361 A.2d 861 (1976), that a PCHA petitioner alleging ineffective assistance of counsel may not be represented by a member of the same office as the attorney whose ineffectiveness is alleged. The Superior Court concluded its holding was mandated by our reasoning in Commonwealth v. Via, 455 Pa. 373, 377, 316 A.2d 895, 898 (1974), where we held that an ineffective counsel assistance claim could not be waived by failure to raise it in a proceeding in which a defendant was represented by a member of the same office as the allegedly ineffective counsel, because the “law will not assume that counsel has advised his client of his inadequacies or those of his associates.” The Commonwealth contends not that Crowther, supra, is wrong, but distinguishable, because in this case appellant’s current attorney started working at the defender office after the earlier attorney had stopped working there, so there would be no danger of partiality of appellant’s current attorney toward the earlier attorney with whom he had not associated personally. We, however, not only agree with the Superior Court’s holding in Crowther, but also reject the distinction urged by the Commonwealth. A PCHA petitioner alleging ineffective assistance of counsel may not be represented by an attorney from the same office as the allegedly ineffective attorney, regardless of the fact that one started working there after the other left. The later attorney, by reason of his association with the same office, still has an appearance of a conflict of interest threatening his duty of zealous advocacy. We therefore remand this case with the direction that new counsel, other than a public defender, be appointed to represent appellant on his petition.

Opinion by Judge Blatt, Patricia L. Oapozzoli' (appellant) appeals here ’ from ah order of the Court of Common Pleas of Washington County, affirming a six-month suspension of her driving privileges pursuant to Section 1547(b) of the.Vehicle Code .(Code), 75 Pa. C. S. §1547(b). She had refused to submit to a breathalyzer test. We affirm. Our scope of review in cases of this nature is to determine whether or not the findings of fact of the court below are supported- by competent evidence and whether or not errors of law have been committed. Spicer v. Commonwealth, 52 Pa. Commonwealth Ct. 381, 416 A.2d 587 (1980). To sustain a suspension under Section 1547 (b) of the Code, the Commonwealth must prove 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; (3) refused to do so; and (4) was warned that his license would be revoked if he refused to take-the test. .Everhart v. Commonwealth, 54 Pa. Commonwealth Ct. 22, 420 A.2d 13 (1980). Once the Commonwealth proved these elements, which it did, the burden of proof then shifted to the appellant to prove by competent evidence that she was incapable of making a knowing and conscious refusal to take the test, Herring v. Commonwealth, 50 Pa. Commonwealth Ct. 608, 413 A.2d 1171 (1980), and whether a driver is capable of making such knowing and conscious refusal is a question of fact for the court below. Pratt v. Department of Transportation, Bureau of Traffic Safety, 62 Pa. Commonwealth Ct. 55, 434 A.2d 918 (1981). The arresting police officer testified here that he had repeatedly asked the appellant to submit to a breathalyzer test and had advised her that her operator’s license would be suspended if she refused, but that she had refused the test each time the request was made. He further testified that the' appellant’s answers to his requests that she take the test as well as her attitude throughout the period involved had led him to conclude that her refusals had been knowing and informed. The appellant testified' that she had no memory of the events in question because she had “totally blacked out” as a result of her consumption of alcoholic beverages. She argues here that the.allegedly extreme state of her intoxication rendered her incapable of making a conscious and knowing refusal. Questions of credibility and resolution of testimonial conflicts are for the court which hears the testimony. McMahon v. Commonwealth, 39 Pa. Commonwealth Ct. 260, 395 A.2d 318 (1978). It was, therefore, within the province of the trial judge to accept as credible evidence the testimony of the police officer rather than to accept the self-serving unsupported statements of the appellant. Pratt. Factual determinations of the court below which are supported by competent evidence will not be disturbed by this Court upon review. Herring. Accordingly, we affirm the order of the court below. Order And Now, this 24th day of December, 1981, the order of the Court of Common Pleas of Washington County in the above-captioned matter is affirmed.

OPINION OF THE COURT NIX, Justice. Appellant was arrested on a Sunday afternoon when he was found alone in the basement of a pawnshop by two Philadelphia police officers responding to a radio call. Hinges on the door to the basement had been broken and eleven bicycles had been moved approximately sixty feet from an opposite wall to a point nearer the door. No burglary tools were found and no vehicle was seen in the vicinity. Following a jury trial, appellant was convicted of burglary and sentenced to eight to twenty years imprisonment. The conviction was affirmed by the Superior Court, without an opinion, and this Court granted review. Defense trial counsel sought to have the court disallow the introduction of a prior conviction for aggravated robbery. Counsel argued that the five-year-old prior conviction was relatively remote, that appellant had no other available means of defense, and that his credibility could be impeached by less prejudicial means, in the form of allegedly inculpatory statements made to the owner of the premises in question. The application was denied and as a result, appellant did not testify in his own behalf at trial. The single question to be considered in this appeal is whether the trial court abused its discretion in refusing the application. The right of an accused to testify as a witness in his own behalf is a fundamental tenet of American jurisprudence. It is equally established that witnesses may be impeached by an opposing party. The introduction before the trier of fact of a prior conviction of the witness has long been recognized as an approved method of challenging credibility. Finally, all of our legal principles must conform to our evolving concept of fairness. These precepts are beyond dispute and do not require the citation of authority. The difficulty arises when we are called upon to accommo date the sometimes competing interests sought to be accomplished by these various principles. It would be naive to conclude that a lay finder of fact is capable of eradicating the prejudice which results from the knowledge of a witness’s prior criminal record. Even the most conscientious and dedicated juror’s objectivity will be, at least unconsciously, colored by such knowledge. Furthermore, there is serious question as to the true probative value of a prior conviction on the veracity of a witness. It has also been suggested that the rule is based more on tradition than tested behavioral analysis. These concerns are magnified where the question is whether the accused who seeks to testify on his own behalf may properly have his credibility attacked because of a prior conviction. Knowledge that his past convictions will be revealed to the jury, if he testifies, may well foreclose his only opportunity to present his version of the occurrence. In any event the serious potential of this evidence for unfairly influencing the jury on the issue of guilt is inescapable. In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), this Court endeavored to fashion a rule whereby these competing interests could be accommodated in a manner which was fair to both the accused and the prosecution. In Bighum, after rejecting the argument that the Due Process Clause of the Fourteenth Amendment was not offended because a defendant may elect not to testify in his own behalf because of his wish to keep from the jury knowledge of his prior criminal record, we then focused upon the question of when it is appropriate to admit such testimony. “While admittedly the state has a legitimate interest to serve in showing that a defendant-witness is not worthy of belief, we cannot be unmindful of the tendency of a normal juror to accept testimony of prior convictions as a basis for finding a predisposition to commit the crime charged. We attempt to avoid this prejudice first by allowing the defendant the election not to testify without adverse comment, 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), and, in the event that he chooses to testify and such evidence is introduced, by making a cautionary instruction available to the defendant. I Wharton Criminal Evidence § 264 (13th Ed. 1972). However, we recognize that even with such safeguards, the possibility of unfairness in a given case may still be present . . . ” Id., 452 Pa. at 566, 307 A.2d at 262. Since the only legitimate purpose for the introduction of such testimony is to cast doubt upon the defendant-witness’s veracity we held that the prior conviction must be for a crime that reflects upon the perpetrator’s veracity. In so doing we rejected the simplistic view that one who possessed the mens rea to commit a felony was necessarily an unreliable witness: “Since the avowed purpose of using prior convictions in rebuttal is to cast doubt upon the defendant’s veracity generally as a witness, it is important to limit the convictions so used to crimes involving dishonesty or false statement.” Commonwealth v. Bighum, supra, 452 Pa. at 566, 307 A.2d at 262. Under the Bighum test, having once determined that the prior offense is one involving dishonesty, we are called upon to consider other factors before determining whether the evidence should be admitted in a given case for impeachment purposes. “. . . the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction. This last factor is of critical importance. Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions. Or, where the prior conviction is not critically important to the Commonwealth’s case — e. g., where other adequate means of attacking the defendant’s credibility are available — exclusion of prior convictions is strongly indicated.” (citations omitted) Id., 452 Pa. at 567, 307 A.2d at 263. Thus the Bighum rule represented a significant change in the former practice as to the admission of prior convictions for impeachment purposes. First, it restricted the offenses which could be used for impeachment to crimes involving dishonesty or false statement. Equally as important, Big-hum rejected a per se rule of admissibility even where the prior crime involved dishonesty or false statement. This was a clear departure from the prior practice that permitted the introduction of a prior conviction for any felony and embraced a per se rule of admissibility. These changes reflected a realization that the right of the prosecution to confront a defendant-witness does not reach such a priority that the inherent unfairness in this type of impeachment should be ignored. In Bighum after rejecting a request that we abrogate the practice of using prior convictions for impeachment of defendant-witnesses we endeavored to strike a balance between the competing interests by charging the trial court to weigh certain enumerated factors. These factors were designed to limit the admission of this type of evidence to situations where its introduction was of essential evidentiary value to the prosecution and not unreasonably unfair to the defense. We here reiterate, and to some extent, refine the factors that should be considered in the balancing equation. It is to be stressed that the list is not to be considered exhaustive or exclusive, but rather illustrative of the type of considerations that should influence the decision. Most importantly we stress that there must be a meaningful exercise of discretion in these cases and that the former per se rule of admissibility has been expressly repudiated. In making the determination as to the admissibility of a prior conviction for impeachment purposes, the trial court should consider: 1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility. The trial judge expressed the view that “the underlying assumption is that prior convictions would ordinarily be admissible.” Thus the trial judge placed the burden upon the defendant to persuade the court that “the prejudicial effect of impeachment “far outweigh[ed]” the relevance of the prior conviction on the issue of credibility. We are constrained to express our disagreement with this initial premise. We do not assume the admissibility of this impeachment evidence absent a substantial showing of prej udice by the defendant. Rather, the burden is upon the prosecution to show that the need for this evidence overcomes its inherent potential for prejudice. See Commonwealth v. Bobko, 453 Pa. 475, 480, 309 A.2d 576, 578-79 (1973). An accused is entitled to a trial before an objective, dispassionate and impartial trier of fact. See Commonwealth v. Bruno, 466 Pa. 245, 262, 352 A.2d 40, 49 (1976); Commonwealth v. Stewart, 449 Pa. 50, 52, 295 A.2d 303, 304 (1972), cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974). Where evidence is of a highly inflammatory potential, courts have traditionally recognized their responsibility to monitor its use. See Commonwealth v. Schroth, 479 Pa. 485, 388 A.2d 1034 (1978); Commonwealth v. Ross, 452 Pa. 500, 506, 307 A.2d 898, 901 (1973). When we consider the difficulty in limiting this type of evidence to the purpose for which it was introduced, the natural tendency for it to be interpreted as indicative of the defendant’s propensity to commit crime, and the ineffectiveness of cautionary instructions, it is apparent that the prosecution should be required to show that the state’s interest in its probative value outweighs the prejudice that will inure to the defendant. A In the instant case it is clear that the trial court employed an erroneous standard in exercising its discretion in ruling that the impeachment testimony would be permitted if the appellant elected to testify. Appellant avers that this ruling caused the defense at trial to decide that appellant should not testify. Moreover, the need to hear appellant’s version was compelling since the prosecution relied solely on his unexplained presence in the burglarized premises. In Bighum, supra, we stressed that, of “critical importance,” is “the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction.” Id., 452 Pa. at 567, 307 A.2d at 263. The argument against the admission of the prior conviction is further bolstered by the availability of prior inconsistent statements of appellant, which should have provided an adequate alternative to the prosecution. It is difficult to understand how appellant’s oral admissions, which presumably would have contradicted his trial testimony, could be any less effective, for impeachment purposes, than a five-year-old unrelated robbery conviction. It seems indisputable that prior inconsistent statements relating to the alleged criminal behavior for which the accused is presently on trial must necessarily provide more insight as to his truthfulness in the matter than the fact that at some earlier point in time he was convicted of committing an unrelated criminal act. Finally, it is difficult to support a finding that this rebuttal evidence was essential to the success of the prosecution in a case where the defendant was apprehended virtually “red-handed.” In view of all of these considerations it is apparent that viewed in light of the proper standard, it was an abuse of discretion to rule that this prior conviction was available to the prosecution for impeachment of the appellant in the event he had taken the stand as a witness in his own behalf. We further conclude in light of the critical nature of the ruling that the error can only be remedied by the award of a new trial. Judgment of sentence reversed and a new trial is awarded. MANDERINO, J., filed a concurring opinion. LARSEN, J., filed a dissenting opinion. . The inefficacy of cautionary instructions to mitigate the prejudicial impact of such evidence is generally recognized. Commonwealth v. Bighum, 452 Pa. 554, 566, 307 A.2d 255 (1973); Commonwealth v. McIntyre, 417 Pa. 415, 420, 208 A.2d 257 (1965). Judge Learned Hand, referring to cautionary instructions charging jurors to consider evidence for one purpose and not another, noted that such a charge requires a “mental gymnastic” beyond anyone’s power. Nash v. United States, 54 F.2d 1006, 1007 (2nd Cir. 1932), cert. denied, 285 U.S. 556, 52 S.Ct. 457, 76 L.Ed. 945 (1932). See also Krauser, “The Use of Prior Convictions as Credibility Evidence: A Proposal for Penna.,” 46 Temple Law Quarterly 291 (1973). . See e. g. Lawson, “Credibility and Character: A Different Look at an Interminable Problem,” 50 Notre Dame Lawyer 758, 789 (1975). . Federal Rule of Evidence, 609, distinguishes between those crimes that involve dishonesty or false statement and crimes punishable by death or imprisonment in excess of one year. As to crimes falling within the former category, a per se rule of admissibility applies. The latter category of offenses are subjected to a balancing test to determine their admissibility. We note that the qualifying language of the note to Rule 609 excludes robbery as a crime “involving dishonesty or false statement . .” The effect of this determination, under the scheme of Rule 609, would make the admission of a prior robbery conviction dependent upon the balancing test. A determination under Bighum that an offense does not “involve dishonesty or false statement” requires its absolute exclusion as a basis for impeachment. Since the determination of whether the prior offense “involves dishonesty or false statement” is for a different purpose it is therefore understandable that the tests employed to make this determination would not be the same. In Pennsylvania, we have traditionally accepted prior robbery convictions for impeachment purposes. We recognize, however, that this precedent was established at a time when we accepted the view that all felony convictions should be admitted for impeachment purposes. A determination of whether a crime involved crimen falsi was formerly required only where the prior offense was a misdemeanor. While we are aware that larcenies accomplished by stealth or misrepresentation bear more directly upon one’s veracity than a taking by force, we do not believe that the nexus is so tenuous that robbery should be excluded altogether for this purpose. . Here the age of the prior conviction should be considered. Also the nature of the prior offense must be taken into account (e. g. a larceny accomplished by stealth or misrepresentation bears more directly upon veracity than a taking by force, thus the argument for admission is stronger for the former than the latter). . The trial court relied expressly on Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), which case no longer represents federal law concerning the burden of demonstrating prejudice or the lack of it in relation to the probative effect that evidence of a prior conviction will have on the witness’s credibility. The new federal rule developed under Rule 609(a) of the Federal Rules of Evidence, 28 U.S.C. Rule 609(a), places the burden on the prosecution to show the need for the evidence outweighs its inherent potential for prejudice. A line of recent federal decisions have placed the burden on the prosecution in this matter. See United States v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977) (the Government has the burden of showing that probative value outweighs prejudice); United States v. Oakes, 565 F.2d 170, 172 (1st Cir. 1977) (burden is placed on proponent); United States v. Smith, 179 U.S.App.D.C. 162, 174, 551 F.2d 348, 360 (1976) (change in the language of Federal Rule 609(a) was not purely semantic in that the prosecution must now bear the burden of proving that prior conviction evidence should be admitted); United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976) (Rule 609 places the burden of proof on the government; the judge should require a brief recital by the government of the circumstances surrounding the admission of the evidence, and a statement of the date, nature and place of the conviction. The defendant should be permitted to rebut the government’s presentation, pointing out to the court the possible prejudicial effect to the defendant if the evidence is admitted).

Opinion by Mr. Justice Drew, These appeals are from judgments entered for the plaintiffs in an action brought by Ella Smith and her husband to recover damages for personal injuries alleged to have been sustained by her while a passenger on one of defendant’s street cars. . Defendant assigns as error the refusal of its motion for judgment n. o. v. Mrs. Smith testified that she was riding in one of defendant’s one-man trolleys; that as the car approached her stop, going down grade, she signalled the motorman, and the car slowed down; that she then went to the front of the car, took hold of a strap with her right hand, and asked the motorman for checks, holding her money in her left hand; that the car suddenly “started to shoot forward faster” and then stopped; and that she was thrown backwards to the floor, suffering the injuries for which recovery was sought. She was the only witness who testified on her side as to how the accident happened. Defendant’s witnesses, five of the passengers and the motorman, stated that there was nothing unusual or violent about the operation of the car. The sole question presented for our consideration is this: did plaintiffs’ evidence show negligent operation of the car by the motonnan? We are bound to conclude that it did not. Where a passenger is alleged to have been injured while standing or walking in a trolley car, statements that the car “started violently” (Uffelman v. P. R. T. Co., 253 Pa. 394), “started with a violent jerk” (Harrar v. P. R. T. Co., 92 Pa. Superior Ct. 242), “started with a sudden, unusual, extraordinary jerk” (McClusky v. Shenango Val. Traction Co., 105 Pa. Superior Ct. 275), “stopped with a jerk” (Harkins v. P. R. T. Co., 286 Pa. 465), “came to a hard stop” (Holutin v. P. R. T. Co., 89 Pa. Superior Ct. 326), or “started up all of a sudden, with an awful jerk, and stopped all of a sudden” (Zieger v. P. R. T. Co., 84 Pa. Superior Ct. 541) are not of themselves sufficient to show negligent operation. They must be accompanied by evidence inherently establishing that the occurrence was of an unusual and extraordinary character, or by evidence of its effect on other passengers sufficient to show this: Harkins v. P. R. T. Co., supra; Zieger v. P. R. T. Co., supra; McClusky v. Shenango Val. Traction Co., supra. In Crawford v. Reading T. & L. Co., 273 Pa. 74, plaintiff testified that as she started to leave the car she was suddenly, violently and unexpectedly thrown back full length on the floor. The entry of a nonsuit was held proper. In Harkins v. P. R. T. Co., supra, the evidence was that the passenger arose to pay her fare and handed the conductor a dollar, and that while she was waiting for her change the car stopped with a jerk and she was thrown and injured. We held that the trial judge acted properly in directing a verdict for defendant. These two cases rule the present one. It is true that in the instant case plaintiff testified on direct examination that a man sitting across from her was “jolted out of his seat,” but on cross-examination she admitted that he “didn’t leave his seat or go out of his seat,” but was simply “jolted about.” This goes no further than the statement in the McClusky Case, supra, that “everybody in the car lurched,” which was held insufficient to establish negligence on the part of the motorman, and properly so. Plaintiffs rely upon Tilton v. P. R. T. Co., 231 Pa. 63, and Sanson v. P. R. T. Co., 239 Pa. 505. These cases, however, presented strong intrinsic evidence of the unusual character of the jolt or jerk. In the Tilton Case plaintiff was seated when the sudden stop occurred, and was thrown violently forward against the seat in front of him. This of itself was evidence of the unusual nature of the jerk; it is common knowledge that a passenger can be thrown out of his seat only by an unusual or extraordinary jerk, whereas it is not unusual for persons to lose their balance while standing or walking in a car if an ordinary or moderate jerk occurs. In the Sanson Case the jolt was so violent and unusual that plaintiff was thrown through the rear door, across the platform, and into the street. In Kleine v. Pgh. Rys. Co., 252 Pa. 214, and Bliss v. P. R. T. Co., 73 Pa. Superior Ct. 173, in which recoveries were also permitted, plaintiffs were likewise thrown out of the cars. Judgments reversed and here entered for defendant. Mr. Justice Simpson dissented.

CERCONE, President Judge: This is an appeal from an order of the Common Pleas Court of Montgomery County which granted additional defendant’s motion for summary judgment and dismissed appellant-defendant’s complaint against additional defendant. We affirm the decision of the lower court. This action resulted from a traffic accident wherein the plaintiff, Vincent Lasprogata sustained a fractured right femur. An open reduction operation was performed on the femur and a metal plate was inserted and attached with two screws. One of the screws allegedly broke which impeded the healing process and necessitated further treatment. Prior to the instant action, Lasprogata brought suit in trespass against Donald Dormer, the driver of the vehicle involved in the accident, alleging that Dormer’s negligence was the proximate cause of his injuries. That lawsuit was concluded when Lasprogata signed a general release in which he released Dormer, for a sum of $15,000.00, from further liability on the claim. The release specifically stated it applied to “Donald Dormer only.” Subsequently, Lasprogata brought suit against Dr. M. Qualls, the physician who performed the open reduction surgery, the hospital, and the manufacturer and distributor of the surgical products involved. Dr. Qualls joined Donald Dormer as an additional defendant alleging that the injuries averred by the plaintiff were proximately caused solely by Dormer’s negligence in the auto accident. Qualls’ complaint alternatively averred that Dormer was “liable for contribution with defendants, or jointly or severally liable.” Dormer moved for summary judgment on the basis of the release he had executed with Lasprogata in the prior action. The lower court granted the motion after appellant doctor had filed an answer and memorandum of law opposing the motion. Appellant doctor’s motion for reconsideration and reargument was denied and this appeal followed. Appellant asks us to address two issues which we believe revolve around the central question of whether the operator of the vehicle which injures a plaintiff and the physician who allegedly rendered negligent treatment of those injuries are joint tortfeasors. The lower court found as a matter of law that the original wrongdoer and the treating physician were not joint tortfeasors and no right of contribution existed between them. The court held that the doctor’s complaint against the driver did not state a valid cause of action because the injuries sustained by the plaintiff arose in part from the unrelated action of the defendant-doctor alone thus negating the status of joint tortfeasors between the doctor and the additional defendant. We agree with the decision of the lower court. Case law specifically holds that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors. Bandle v. Vernick, 66 Pa.D.&C.2d 457 (1974); Gertz v. Campbell, 4 Ill.App.3d 806, 282 N.E.2d 28, aff’d in part and rev’d in part on Other grounds, 55 Ill.2d 84, 302 N.E.2d 40 (1973); Annot. 8 A.L.R.3d 639 (1966). The acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other’s acts, and each breaching a different duty owed to the injured plaintiff. While they are two active tortfeasors, they are not actually acting “jointly” when using that term in the strict sense. As we have held in Embrey v. Borough of West Mifflin et al., 257 Pa.Super. 168, 390 A.2d 765 (1978), to the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly. This apportionment does not necessarily follow the statutory rules for contribution among tortfeasors applicable in situations where such tortfeasors are characterized as joint. Instead, where identifiable acts of negligence of the original wrongdoer and the negligent physician are separate from each other in nature and time, the damages are accordingly apportionable. This position does not ignore the Restatement (Second) of Torts § 457 which says: “If the negligent actor is liable for another’s bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third parties in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner.” Pennsylvania case law supports this Restatement section. Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937); Lebesco v. Southeastern Pa. Transp. Auth., 251 Pa.Super. 415, 380 A.2d 848 (1977). Although the posture of Pennsylvania law in accordance with § 457, supra, would seem to be at odds with the principle of the separateness of liability between the tortfeasor and the doctor in this case, there is no inconsistency present. This is so because the injured plaintiff could have brought suit against Dormer, the driver, in the prior action for the full extent of his injuries, that is, the pain and suffering and expenses of the fractured femur as well as the aggravation of the injury. Instead, plaintiff sued Dormer for the injuries he caused, after which Dormer alone was released. Subsequently, plaintiff sued the doctor, hospital, and manufacturer of the surgical supplies for their alleged negligent acts and breach of contract only from the time their respective conduct began; he does not claim damages for any injury Dormer may have caused him since he already recovered those damages in the prior action. Thus, Section 434 of the Restatement (Second) is pertinent and applicable in reconciling the apparently inconsistent views concerning the issue before us. Section 434 provides that: “(1) It is the function of the court to determine . (b) whether the harm to the plaintiff is capable of apportionment among two or more causes; and (2) It is the function of the jury to determine, in any case in which it may reasonably differ on the issue, (b) the apportionment of the harm to two or more causes.” In the Embrey case, supra, the damages were apportioned by the jury in relation to the separate and independent negligent acts of the original wrongdoer and the acts of the physician. It is significant to note that in Embrey, both defendants were original defendants in the suit. In the instant case, Dormer, the driver and additional defendant, has already been released from his obligation and owes no monies to Lasprogata nor to the doctor who is accountable for his own allegedly negligent acts. Therefore, the instant action should proceed against the original defendants alone. Some clarification is necessary concerning the effect of the release in this case. The traditional rule was that a release of the original wrongdoer also released the negligent physician. Thompson v. Fox, supra; Annot. 39 A.L.R.3d 260 (1971). This was based on the theory that there could only be one full compensation for a wrong. However, subsequent cases recognized that the release of the original wrongdoer may not have fully compensated an injured person for the damages he sustained at the hand of the treating physician. A growing number of courts have either accepted or are accepting this latter rationale and recognize that a release of the original wrongdoer does not in itself preclude an action against the negligently treating physician. Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556 (1962); Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 (1944); see cases compiled in 39 A.L.R.3d at 273. The appellate courts of Pennsylvania have not squarely dealt with this issue, but lower court decisions have begun to follow the more modern rule. E. g., Com. Nat’l Bank v. Harrisburg Polyclinic Hosp., 71 Pa.D.&C.2d 542 (1975); Bandle v. Vernick, supra; Gealt v. Kubiak, (No. 2), 62 Pa.D.&C.2d 482 (1973). The crucial issue then becomes whether the release was intended to release all parties and be full compensation on the claim. In the release before us, the express language released “Donald Dormer only.” The consideration for that release covered only the damages sustained as the result of Dormer’s negligent acts. Under Section 434 of the Restatement, supra, the facts of this case support the principle which holds that plaintiff’s damages resulting from the doctor’s negligence remain apportionable. In the suit against the doctor, Lasprogata will be restricted to the proof of damages directly resulting from the physician’s actions, thus preventing double recovery. Appellant does not question the propriety of the suit against him, but only the effect of the release on the rights between him and the additional defendant. The cases cited by appellant clearly deal with the possibility of true joint liability, and not with the unique situation of an original wrongdoer and the separate acts of a treating physician. Order of the lower court affirmed. . Appellant states the two issues as follows: (1) Where, as here, a defendant alleges that a third person is or may be jointly or severally liable with him on the cause of action declared upon by the plaintiff, may defendant join that third person as an additional defendant irrespective of the fact that the third person has procured a release from plaintiff? (2) Is an alleged tortfeasor relieved from his liability to make contribution to other alleged tortfeasors by virtue of the fact that he has procured a release from plaintiff which release does not provide for a pro rata reduction of the damages recoverable against all other alleged joint tortfeasors? . The right of contribution exists only between joint tortfeasors. Contribution distributes the loss equally or each joint tortfeasor pay his or her pro rata share. A right of indemnity exists when the entire loss is imposed on one person. For example, an original wrongdoer may have the right of indemnity against the treating physician if the original tortfeasor is held liable for damages resulting from both his negligence and that of the physician. However, whenever two actions are brought for the separately identifiable acts of negligence on the part of the original wrongdoer and the treating physician, the apportionment of damages between the two causes should take place as we allow in the instant case. See Annot. 8 A.L.R.3d 639, 641 (1966). This clarification of terms on the division of damages facilitates our analysis of this case. . Our research does not reveal any Pennsylvania appellate case law specifically reaching this conclusion. However, we rely on Bandle v. Vernick, supra, which we feel is a well-authored opinion by Judge Wieand who has since been appointed to our Court. . A joint tortfeasor is defined as, “. two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.” 12 P.S. § 2082. In Black’s Law Dictionary, to be a joint tortfeasor, “the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.” 4th Ed. (1968) page 1661. A joint tort is defined as “where two or more persons owe to another the same duty and by their common neglect such other is injured Id. at 973. . It is important to note that the use of the word “joint tortfeasors” in the Embrey opinion 257 Pa.Super. at page 168, 390 A.2d 765 does not use the term in the strict sense as we are in using it here. Nor does the case of Shamey v. State Farm Mutual Auto. Ins. Co., 229 Pa.Super. 215, 331 A.2d 498 (1974) which Embrey cites as authority for that point. The Shamey case specifically states two separate accidents were involved. . 12 P.S. § 2082 et seq. . This position alone seems to indicate appellant’s acknowledgment of the separateness of his acts and liability from that of the original wrongdoer. . Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960); Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956); Long v. Thomasberger, 14 Pa.D. &C.2d 30 (1958); Brown v. Hertzler, 13 Pa.D.&C.2d 50 (1957); Carter & DiNino v. Kemp, 103 P.L.J. 81 (1954).

Opinion by Mr. Justice Simpson, On December 5, 1929, while plaintiff was in a trolley car on Eighth Avenue in the Borough of Munhall, he was badly injured by an explosion of natural gas, resulting in the total destruction of the borough post office building, which fronted on the avenue immediately op posite the point where the car was at that time. The natural gas was a part of that which had been passing through defendant’s sixteen-inch main, carrying from twelve to seventeen pounds pressure and running longitudinally under the avenue. The question at issue was whether it escaped from the main and into the post office building because of defendant’s negligence, or escaped by reason of defective gas pipes in the building itself, in which latter event the owners thereof would alone be liable. The jury rendered a verdict in favor of plaintiff, on which the court below entered the judgment from which defendant took the present appeal. Before the trial, defendant issued a sci. fa. under the Act of April 10,1929, P. L. 479, to bring upon the record the owners of the post office building as additional defendants. The court below correctly quashed the writ. That statute only applies where the persons sought to be added as additional defendants are “alleged to be liable over to [the defendant who issues the sci. fa.] for the cause of action declared on, or jointly or severally liable therefor with him.” Appellant did not allege that the property owners were “liable over to [it] for the cause of action declared on,” that is, for the negligence for which the suit was brought; but, on the contrary, asserted that they were alone liable, for an entirely different negligence, namely, for the failure to keep in repair the gas pipes in their building. Nor did defendant contend that they were “jointly or severally liable therefor with” [it] to plaintiff. On the contrary, it alleged that the property owners were alone liable. Had the Act of June 22, 1931, P. L. 663, been in effect at that time, the sci. fa. would have been proper, but this statute had not then been enacted. The main question we are asked to decide is that set forth in the first statement of the questions involved, as follows: “Where there is evidence of two different possible causes of an explosion, for only one of which defendant would be responsible, did the plaintiff sustain the burden of proving with certainty that defendant’s neglect was the proximate cause?” This seems to imply an admission that the proof as to one of those “possible causes,” if standing alone, would have been sufficient to establish defendant’s liability; and this, as we will now show, is clearly so. It appeared, from plaintiff’s testimony, which we must accept as true when considering this question, that some forty-four years before the explosion defendant had laid the high pressure gas main in the avenue, placing around it ashes, cinders, mill rubbish and other refuse of a character which naturally would and did corrode the pipe in such a way as, in course of time, to cause it to leak, and would and did also provide a means by which the leaking gas would pass longitudinally through that rubbish, near to or along the pipe, until it found an outlet to the air, which it could not do at once because of the superimposed brick and concrete forming the bed of the street. The portion of the pipe which leaked had not been replaced, or even inspected to determine whether it needed repair or replacement, during the forty-four years it had been in the bed of the avenue, though adjoining portions had been replaced a few years before the explosion, and defendant’s employees were then told that this pipe needed replacement, at the very point where the present leak occurred. At that time it was broken through by defendant’s employees, at a point some 40 to 60 feet from the place of the explosion, and the break had been covered with a metal saddle, bolted down in an attempt to prevent leakage therefrom. In course of time, the pipe, which had been five-eighths of an inch thick, had been so corroded and eaten away, by reason of the character of the surrounding ashes, etc., as to be but one-eighth of an inch thick, and was falling to pieces; the nuts which had held the saddle in place had themselves corroded and fallen off; and the gas in the main escaped into the surrounding rubbish. This escape was noticed along the street for months before the date of the explosion, — one witness said for about a year, — but no attempt was made by defendant to ascertain its location or to repair it. Tbe day after tbe accident all tbe houses in the neighborhood were disconnected from the main, yet another explosion then took place a short distance from the post office building, which, of course, could not be attributed to the asserted leak in the pipes of that building. On that day, also, the avenue was opened and the condition of the pipe and saddle ascertained, the escape of gas therefrom was then both heard and smelt, and the fact that it had long been escaping plainly appeared from the surrounding soil. It is not an open question but that, from these facts standing alone, the jury would have been justified in finding defendant was negligent, and that this was the proximate cause of the injury (see Koelsch v. The Philadelphia Co., 152 Pa. 355; Shirey v. Consumers’ Gas Co., 215 Pa. 399; Diehle v. United Gas Improvement Co., 225 Pa. 494; Lawrence v. Scranton City, 284 Pa. 215); hence defendant places its contention on a different ground. It asserts that, because it produced evidence which, if believed, would have shown that the cause of the explosion might have been gas leaking from the service pipes in the post office building, for which defendant would not have been responsible, it could not “with certainty [be known] that defendant’s neglect was the proximate cause” of the explosion, and hence plaintiff could not recover. Plaintiff produced rebuttal testimony, however, which excluded the possibility of the leak having been in those service pipes. This being so, if defendant’s legal contention were sustained, the constitutional requirement that “trial by jury shall be as heretofore and the right thereof remain inviolate” would become a dead letter, in this and every other case where a defendant, simply by producing some evidence, true or false, raises a question of fact as to the cause of an accident. Of course this cannot be so. We have no intention of qualifying the rule that there can be no recovery if the injury of which complaint is made, may equally well, under the uncontradicted evidence or that believed by the jury, have resulted from one of two or more causes, for only one of which defendant would be liable; but it has no applicability here. In this, and all other like cases, the question at issue is: Whose negligence resulted in the injury? All that a plaintiff is required to do to answer that inquiry, is to individuate, to the satisfaction of the court and jury, that the act or neglect of defendant was the proximate cause thereof: Gausman v. Pearson Co., 284 Pa. 348. Having done this, he can recover, even though another cause has been asserted by some of his own witnesses (Gorman v. Charlson, No. 1, 287 Pa. 410), — which was not the case here, — and though “the evidence of the plaintiff to sustain such burden [does not absolutely] exclude every other possibility, except the one sought to be established”: Cowdrick v. N. Y. Central R. R. Co., 65 Pa. Superior Ct. 416, per Head, J. He must, however, as in all such cases, prove to the satisfaction of the jury the one cause on which he relies: Fullick v. South Penn Oil Co., 260 Pa. 4, 8. If this is done, and the trial court approves the finding, this court must affirm unless there is not sufficient credible evidence to sustain it. Here there is ample evidence for the purpose. Aside from the question of the alleged excessiveness of the verdict, later to be considered, there is nothing to show that the court below abused its discretion in refusing to grant a new trial. Nor could we reverse on the ground that the verdict was against the weight of the evidence, even if we thought the fact was so. As there was ample to sustain the verdict, the question of its weight, as compared with the countervailing evidence, was primarily for the jury and the court below, and with their decision we should not interfere unless an abuse of discretion is shown, which it is not, The complaint that the trial judge should not have admitted evidence to show that there was a hole in defendant’s main several years before the explosion, which it then repaired, — the facts regarding which are as stated above, — is of no avail, since it tended to show that the main was so insufficiently cared for thereafter, as to make defendant responsible for any injury arising directly from that neglect. No other assignment need be referred to except the final one alleging that the verdict was excessive. A review of a few of our later cases will suffice to clarify the situation, so far as concerns the applicable legal status. In Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 215, we said: “Defendant offered no evidence on this branch of the case, and, while the verdict was large, we are not satisfied that sustaining it constituted an abuse of the trial court’s discretion. We can only interfere in such cases to prevent manifest injustice. As stated by Mr. Justice Frazer, speaking for the court, in Knobeloch v. Pbg., H. B. & N. C. Ry. Co., 266 Pa. 140, 143: ‘This court has repeatedly said in a long line of cases, beginning with Smith v. Times Pub. Co., 178 Pa. 481, and extending down to Scott v. American Express Co., 257 Pa. 25, that the question of the amount of the verdict would be reviewed only where so grossly excessive as to shock our sense of justice and to indicate a clear abuse of discretion on the part of the court below.’ ” In Wilson v. Consolidated Dressed Beef Co., 295 Pa. 168, 174-5, we said: “The most serious feature of the case is the amount recovered....... While our right to grant relief in such cases exists, it is limited. In the language of Mr. Justice Sadler, speaking for the court, in Gail v. Phila., 273 Pa. 275, 278: ‘We have said repeatedly that a judgment will be reversed on appeal on account of an exorbitant verdict only where the impropriety of permitting it to stand is so clear as to show an abuse of discretion on the part of the court below in declining to set it aside: Scott v. American Express Co,, 257 Pa. 25’; and as stated by the [former] Chief Justice, for the court, in Goldman et al. v. Mitchell-Fletcher Co., 285 Pa. 116,119: ‘While this court has always been disinclined to interfere with awards of juries sustained by the trial tribunal, yet where the facts demonstrate a verdict to be so plainly excessive in any part as to indicate that the jury has abused its powers, and that abuse is not remedied by the court below, it becomes our duty to act; and this is the situation in the present case.’ We will interfere only where the verdict is such as to shock our sense of justice and evidences a clear abuse of discretion on part of the trial court in refusing to set it aside: Dziak et al. v. Swaney, 289 Pa. 246; McIntyre v. Quaker City Cab Co., 283 Pa. 395; Knobeloch v. Pbg., H. & R. Ry. Co., 266 Pa. 140; Scott, Admrx., v. American Express Co., 257 Pa. 25; Ensell et al. v. Atlantic Refining Co., 92 Pa. Superior Ct. 586.” In Curry v. Willson, 301 Pa. 467, 474-5, we said: “Such complaints [as relate to the excessivness of the verdict] will not justify the ordering by this court of a new trial, unless the record discloses such gross injustice as to make this course imperative.” And to the same effect as the foregoing are Zimmerman v. P. R. R., 297 Pa. 390; Parkin v. P. R. T. Co., 300 Pa. 569, and Paul v. Atlantic Refining Co., 304 Pa. 360, 364-5. Tested by the principles stated, we cannot say that this verdict of $25,000 is so excessive as to require us to interfere with the discretion exercised by the court below. Briefly stated, the pertinent facts, — assuming plaintiff’s evidence to be true, as of course we must on this point, — are as follows: At the time of the accident, plaintiff was 21 years of age, he had been a steady worker of excellent habits, and that year had earned $1,776. He has not been able to work since the accident and probably never will be. His expenses to the time of the trial were $784. He was fourteen weeks in the hospital, had frequent convulsions, was unconscious much of the time and had to be strapped to his bed. The top of his head had been crushed in, a portion of the skull about one inch wide and two inches long had to be removed, and with it a portion of the brain, said to have been the size of a small lemon. This will never grow again; on the contrary, the scarred tissue will probably contract and press upon the remaining part of the brain, the effect on plaintiff will be progressively worse, and ultimately will result in an incurable epilepsy. When plaintiff entered the hospital, and for some time thereafter, he was not expected to live, and when he did recuperate, he had to be taught anew both to speak and eat. His mind and powers of locomotion are, and likely always will be seriously affected, growing worse continuously. While in the hospital, his injuries were of a particularly painful character, and he was not only helpless, but was unable to communicate with those who were trying to aid him. This condition still continues to some extent, but is not so constant as it was then. The pain, however, will always continue, and during the balance of his life he will be a helpless cripple, and will need medical and other attention for both his physical and mental condition. The facts thus stated show that the case is one to which it is eminently proper that we should apply what we said in Clark v. Horowitz, 293 Pa. 441, 444: “It is the duty of the lower court to control the amount of the verdict; it is in possession of all the facts as well as the atmosphere of the case, which will enable it to do more even-handed justice between the parties than can an appellate court: Hollinger v. York Rys. Co., 225 Pa. 419, 426.” The judgment of the court below is affirmed.

Opinion by Mr. Justice Bell, Peter (Pit) Furjanick, an unmarried man 83 years of age, and his niece Susan (Sue) Furjanick, resided together in a property of the decedent situated in Donora, Pennsylvania. On December 13, 1945 they went together to his bank where he had a savings account and a checking account which were carried in his name only. At Peter’s request, which will be hereinafter discussed at length, these accounts were closed and a new savings account and checking account carrying the same balances were created in their joint names, the signature cards reading as follows: “PIT FURJANIC OR SUE FURJANIC Joint Savings Account (Signed) Pit Furjanic (Signed) Sue Furjanic, Niece” At that time each of them signed the following agreement which was on the reverse side of said signature card: “The undersigned do hereby open a joint deposit account with Union National Bank, Donora, Pa. (Hereinafter called The Bank) and agree each with the other and with the said bank that all sums heretofore or hereafter deposited by either or both of said joint depositors, with the said bank to their credit as such joint depositors, with all accumulations thereon, are and shall be oioned by them jointly, with the right of survivorship and not as tenants in common, and be subject, in whole or in part, at any time and from time to time, during the life of both, to the check or order of withdrawal of both or either of them; and that upon the death of either the balance in said account shall belong to the survivor of them, and payment thereof to or on the check of the survivor shall be valid and discharge the said bank from all liability. Each of the undersigned appoints the other his or her Attorney-in-fact to endorse any check, draft, note, or other instrument payable to his or her order or to the order of both, and to deposit the same or any other moneys to said joint account. “It is further stipulated that this agreement is not revocable except, by written notice to the said bank signed by both depositors, and that such notice shall not affect transactions theretofore made. “Witness onr hands and seals this day of Dec. 13, ’45 A. D. 19 — . (Signed) Pit Furjanic (Seal) (Signed) Sue Furjanic (Seal) Witness: (Signed) Ben. G. Binns” The court below found: “It is also undisputed that at time the transfer was made there was to the credit of testator [Peter] in the savings account the sum of $6,071.50 — the exact amount in checking account at such time was not disclosed by the testimony of the witnesses, but from signature card appears to have been $4,743.79. “It is also undisputed that at date of death of decedent there was a balance in the joint savings account of $21,907.67, and in the joint checking account there was a balance of $1,325.46, and that from the date of the creation of such joint accounts, to date of death of the testator, all additional deposits to such accounts were made by him with his own funds and all withdrawals were likewise made by or for him; that no withdrawal was made by the niece during decedent’s lifetime, but that subsequent to the death of the testator, the balances in both accounts had been withdrawn by his niece, and held by her for her own benefit.” Peter Furjanick died testate June 3, 1949 leaving a balance of personal estate, excluding the aforesaid savings and checking accounts, of $6,192.87. By his last will dated February 26, 1949, he specifically devised two houses and lots to Sue and all of his other real estate to collateral heirs; he gave Sue a cash legacy of $3,000.00, and Sue’s son a cash legacy of $3,000.00; he also made cash bequests to other nephews and nieces in amounts totaling $15,500.00. He made Sue his sole executrix. These contesting nephews and nieces contend and the Auditing Judge held (1) that the testimony of Mr. Binns, who was president of the bank at the time of the creation of the joint accounts, was admissible in evidence; (2) that his testimony was sufficiently clear, precise and indubitable to prove that decedent never intended to make an irrevocable gift to his niece Sue; (3) that the testator’s testamentary bequests totaling several times the estate he possessed, constituted a bequest of the aforesaid savings account and checking account; and (4) that these bank accounts were a part of Peter’s estate. There are two theories under which Binns’ evidence might be admissible: (1) mistake, and (2) lack of donative intent, which is the usual contention in these cases and is the one which is relied on by these contestants. Mr. Binns testified — on behalf of the contesting nephews and nieces- — and the lower Court found the following facts: The decedent wanted to change his accounts in order to enable Sue to pay his food, household and medical expenses. Binns refused to permit the bank to take that responsibility, and suggested, not a power of attorney, but a joint account with the niece. Furjanick was at first reluctant to do this, but after lengthy discussion with Binns, agreed to do so because he had confidence that Sue would do the right thing. The decedent knew what he was doing when he directed him (Binns) to change his accounts and created the joint accounts in question, and when he executed the signature cards and the written agreements, all of which Binns had explained to him carefully and in great detail. In other words, the contestants proved that Furjanick clearly and unquestionably knew exactly what he was doing as well as the practical effects and legal consequences of his acts in opening the savings and checking accounts in the joint names, and executing with his niece Sue the agreement which clearly pro vided that the money in the accounts are and shall be owned by them (him and Sue) jointly with the right of survivorship; and that either (or both) had the right in his lifetime to withdraw the funds without any strings or conditions; and that upon his death the balance shall belong to his niece (the survivor), and that the agreement was not revocable except by written notice signed by both of them. The fact that these may not have been Furjanich’s original desires, or that he was confident Sue would do the right thing —whatever that means — is immaterial and is utterly insufficient to prove “mistake”. That brings us to the next question: Was Binns’ aforesaid testimony admissible and if so was it sufficient to prove lack of donative intent? A statement of the applicable principles of law will aid us in answering these questions. The deposit of cash in a savings account or checking account in the name of the depositor in trust for “X”, creates presumptively a tentative or revocable trust, but since it is incomplete there is ambiguity or doubt as to whether depositor intended a revocable trust or an irrevocable trust or absolute gift, or no trust at all, and consequently parol evidence is admissible in such cases to show what the actual intention of the depositor or donor was; and this intention can be shown by the statements, declarations, admissions, acts and conduct of the parties, at the time of as well as after and before the deposit: Ingels Estate, 372 Pa. 171, 183, 92 A. 2d 881; Rodgers Estate, 374 Pa. 246, 97 A. 2d 789; Scanlon’s Estate, 313 Pa. 424, 169 A. 106; Matter of Totten, 179 N. Y. 112. When a depositor creates a joint savings or checking (bank) account with right of survivorship, and a signature card so stating is executed by both parties, these facts are prima facie evidence of a gift, inter vivos by the depositor to tbe other, and of the creation of a joint tenancy with right of survivorship: Fell Estate, 369 Pa. 597, 87 A. 2d 310; Lochinger v. Hanlon, 348 Pa. 29, 33 A. 2d 1; Mader et al. v. Stemler et al., 319 Pa. 374, 179 A. 719. A deposit accompanied by such a writing, but nothing more, is considered so incomplete or equivocal as to permit the admissibility of parol evidence: Fell Estate, 369 Pa., supra; but such evidence in order to prevail must be clear, precise and indubitable: Fell Estate, 369 Pa., supra; Dempsey v. National Bank of Scranton, 359 Pa. 177, 181, 58 A. 2d 14; Mader et al. v. Stemler et al., 319 Pa. 374, 379, 179 A. 719. The writings in the instant case were different from and went far beyond the' writings or written instruments in the cases hereinabove mentioned, or in any other case (so far as our research has revealed). This was not a savings or checking account in the name of the depositor in trust for his niece, or a joint savings or checking account with an ambiguous title, or merely a joint savings account with right of survivorship. Nor was this a case of a bank account or trust created by fraud, accident or mistake, or undue influence; nor was the agreement permeated with uncertainty or ambiguity. When Furjanick opened a new savings account and checking account in the joint names of himself and his niece and then he and his niece signed the aforesaid written agreement setting forth in detail the terms of the contract and the rights of the respective parties therein, the money in those accounts was thereafter owned and held in exact accordance with the terms and provisions of that agreement. This was a complete and detailed agreement which included a provision as to revocation, hence it could be revoked only as therein set forth. Where no fraud, accident or mistake is averred and proved, parol evidence of a prior or contemporaneous oral representation or agreement which varies, modifies or conflicts with a (complete) written agreement, is inadmissible in evidence: Phillips Gas and Oil Co. v. Kline, 368 Pa. 516, 84 A. 2d 301; Grubb v. Rockey, 366 Pa. 592, 79 A. 2d 255; Walker v. Saricks, 380 Pa. 594, 63 A. 2d 9; Gianni v. Russell & Co., Inc., 281 Pa. 320, 126 A. 791; Speier v. Michelson, 303 Pa. 66, 154 A. 127; O’Brien v. O’Brien, 362 Pa. 66, 66 A. 2d 309; Russell v. Sickles, 306 Pa. 586, 160 A. 610. The parol evidence offered in the instant case was intended to overcome and nullify the provision of the written agreement, that “. . . this- agreement is not revocable except, by written notice . . . signed by both depositors, . . .”. We may appropriately ask, what is the use of inserting a provision as to revocation or any other provision in a complete and unambiguous written agreement, if oral testimony can vitiate and nullify the written agreement and set up an entirely different and conflicting agreement? We have repeatedly said and we reiterate that we intend to uphold the integrity of written instruments and will not permit the Parol Evidence Eule to be circumvented or undermined. Appellees rely mainly on two cases, the first of which is Rodgers Estate, 374 Pa. 246, 97 A. 2d 789. This Court there held that a tentative trust of a savings deposit can be revoked by the depositor by his will, either expressly, or by facts and circumstances resulting in inadequacy of the assets of the estate to satisfy funeral and administration expenses and testamentary gifts. That principle is inapplicable here because we repeat this is not a tentative trust but a complete and unambiguous written contract which by its very terms is revocable only with the written consent of the depositor and the niece. Appellees next most important case is Dempsey v. First National Bank of Scranton, 359 Pa. 177, 58 A. 2d 14. The facts in that case were unusual. That was an action of mandamus brought by Dempsey to have certain United States Treasury checks totaling $36,000.00 delivered to him. Miss McCarty, a woman of about 80 years of age, was the owner of a savings account of $40,000.00. She went to the bank and instructed it to transfer these funds to a joint account in the names of Ellen E. McCarty or Mary G. Dempsey, or James J. Dempsey, Jr. The Dempseys were brother and sister but were not related to Miss McCarty. All three executed a signature card which provided that “In the event of the death of either of us, any balance in this account shall belong to the survivor,”. Subsequently Dempsey withdrew from this account $36,000.00 and with this money purchased United States government bonds in his name or that of his sister. As soon as Miss McCarty learned of Dempsey’s aforesaid cash withdrawal she sent for him and demanded an explanation and a return of the pass book and the bonds. Dempsey returned both. Dempsey admitted that in addition to these facts he wrote at Miss McCarty’s request a letter to the bank directing it to deposit these funds to the credit of Miss McCarty. This letter Dempsey sought to repudiate after Miss McCarty’s death and demanded a return of the money. This Court held that the burden of proving an inter vivos gift was on Dempsey and that the signature card, while prima facie evidence of a gift, did not conclusively establish donative intent, and that the evidence to prove a lack of donative intent was overwhelming. The facts in that case are so very dif ferent from the facts in the instant case as to make the two cases clearly distinguishable. The question in this class of case ofttimes depends upon the exact wording of the deposit account and the card or agreement accompanying it. Do they clearly show the intention of the depositor, settlor, or contractor? If his intent is uncertain or ambiguous, parol evidence is admissible; if the writings clearly show an intent to make an absolute gift, or an irrevocable trust, or a specific and complete agreement between the parties, then in the absence of fraud, accident or mistake no subsequent acts or declarations of the donor or settlor or contractor can change or revoke or annul the gift, or trust, or contract, without the consent of the other party. Decree reversed. Costs to be paid by appellees. The other signature card was exactly the same except that it read “Joint Checking Account”. Italics, throughout, ours.

OPINION ZAPPALA, Justice. Appellant, Martin Colson, appeals a judgment of sentence of death for murder of the first degree imposed by the Court of Common Pleas of Bucks County. The Commonwealth’s evidence established that decedent, Thomas Livezey, resided in Fountainville, Bucks County, and was involved in various business enterprises. Among other things, he was a painting contractor. On November 15, 1976, decedent received a call at home from a woman who identified herself as Melinda Kelly. The caller said she wanted an estimate for a painting job at a house into which she was about to move. Decedent referred her to his wife, Barbara Livezey. She took directions from the caller to a purported job site in Upper Bucks County. It was agreed that decedent would go to the site the following Saturday morning, November 20. Decedent left home in a van on the morning of November 20. He and the van were next seen by passing motorists on Keystone Road in Upper Bucks County. Two of the motorists who stopped at the scene were Donald Landis and Frank Smolinsky. They observed the van parked with the door open and decedent lying on the road near the van. Landis had heard gunshots shortly before. State Trooper Thomas Stotsenburgh arrived at the scene and found decedent dead of gunshot wounds. There were shotgun wadding and shells near the body. Stotsenburgh found a clipboard with directions to the purported job site. The street on which the job was to be done did not exist. After the killing, it was learned through investigation that decedent was a partner in real estate ventures with his brother, William, and that each of them held large insurance policies on the life of the other. The business was in debt, which led to disputes between the brothers. Early in 1976, decedent offered his brother $4,000 for his interest, which was refused. Decedent initiated legal proceedings to dissolve the partnership, which were in progress at the time of his death. The homicide made William the sole owner of the business. The business received $237,000 in life insurance proceeds. Debts were paid, and William netted $100,-000. William Livezey and Appellant were linked to the homicide by Jerome Randis, who spoke to the State Police on March 22, 1979. Randis said that he was associated with Livezey and Appellant in the drug business. He was present at or party to conversations in which they spoke of their involvement in the killing. On one occasion after the killing, Livezey and Appellant discussed the killing and Appellant said he wanted money for it. During conversations between Appellant and Randis, Appellant said that he arranged to have decedent lured to the scene of the killing, that he shot decedent with a shotgun obtained from William Livezey, and that he then threw the shotgun into the Delaware river. Randis was present on another occasion when Appellant told a third person he did a “hit” for William Livezey. On still another occasion, Livezey told Randis he arranged to have Appellant kill decedent. A further link was provided by Daniel Thurber, another associate of Appellant. Thurber was with Appellant in Florida after the killing. He testified that Appellant told him he “shot a guy in Pennsylvania,” was paid for it, and threw the weapon in a river. After Randis revealed his information, Barbara Livezey participated in a telephone “lineup” under the supervision of the State Police. She heard eight women speak over the telephone and identified one of them as the caller who directed decedent to the scene of the homicide. The woman she identified was Eva Colson, the wife of Appellant. Shortly after the “lineup”, Eva Colson left her residence, and according to the testimony of a state trooper at trial, she had not been located thereafter. In December 1978, William Livezey went to the office of James Hansley, Police Chief of the Borough of Lansdale, Montgomery County to pay some traffic fines. Hansley had been acquainted with both Livezey and decedent. He told Livezey he was a suspect in the murder on the basis of what was then known about his business dealings. Livezey said he had discussed the matter with the State Police and had been advised by his attorney not to say anything. On February 20, 1979, Hansley learned that there were warrants outstanding for Livezey’s arrest on drug charges. He attempted to locate Livezey and was not able to do so. Livezey’s whereabouts were unknown until September 17, 1979, when police were called to a residence in Lansdale where a disturbance was going on. Livezey’s girlfriend, Barbara Kelly came out of the residence. She said that Livezey was inside, had a gun, and was determined not to be taken alive. Hansley attempted to persuade Livezey to come out. When this failed, tear gas canisters were thrown into the residence. One canister came into contact with a curtain on a window and started a fire. Police entered the residence after the fire was put out and found Livezey dead of a self-inflicted bullet wound in the head. Appellant claims to have been denied due process of law by delay in his arrest. Such claim, if accepted, would entitle him to a discharge. Appellant was arrested on February 20, 1980, which was more than three years after the crime. He argues that this was unfair because certain potential defense witnesses were dead or could not be located, those who could be located no longer had independent recollections of events, and Appellant himself no longer had a clear memory of events at the time of the murder. A state trooper gave reasons for the delay at a pre-trial hearing on this issue. The State Police did not believe they had probable cause to make any arrests until they spoke to Jerome Randis. After that, they determined that William Livezey and Martin and Eva Colson should be arrested. They desired to locate and arrest all three at the same time, fearing that if one were arrested, the other two would go into hiding. They found that they were unable to locate any of the suspects in the Commonwealth. The State Police had information indicating that Appellant was in Wisconsin and Florida at different times. They followed leads in those states. Appellant was ultimately located and arrested in Tampa, Florida. In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the Court addressed the question of delay in the filing of charges, which raises issues similar to those involved in a delayed arrest. The court held that proof of prejudice is a necessary, but not sufficient, condition for a finding of denial of due process. The prosecution is under no constitutional duty to file charges as soon as it obtains sufficient evidence to establish probable cause or prove guilt. It may delay doing so in order to continue its investigation. A delay for a reasonable investigation does not violate due process even if it adversely affects the defendant’s case. Lovasco involved an eighteen month delay in the filing of federal firearms charges. The delay was due to an investigation conducted for the purpose of finding co-conspirators. The Court determined that the delay for such purpose was reasonable. Consequently there was no denial of due process. Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976), involved a murder prosecution. We found that a four year delay in the filing of charges did not deny due process where the police had difficulty putting together the facts and the defendant was put on notice at the time of the murder that he was a suspect. A seven month delay in the arrest of a rape defendant did not deny due process where the police made reasonable efforts to locate him at the residences of relatives and at various hangouts, Commonwealth v. Sanders, 260 Pa.Super. 358, 394 A.2d 591 (1978). In the instant case, although Appellant claims he was prejudiced, there is no evidence to support that contention. He appears to have had notice that he was a suspect, given his departure from the Commonwealth and the testimony of his statements that he committed the murder. The pre-ar rest delay was reasonable in view of the initial difficulty experienced by the police in ascertaining the facts, Appellant’s absence from the Commonwealth, and the diligent efforts to locate all of the suspects. Therefore, we find no denial of due process. Appellant asserts various grounds for a new trial. One of these is that the jury was improperly death qualified. Prospective jurors who stated that they would not under any circumstances vote for the death penalty were excluded. Appellant argues that this was improper because it resulted in a jury that was more conviction-prone and did not contain a representative cross-section of the community. The death qualification procedure followed here was approved in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Similarly, we have held that death qualification does not deprive the defendant of a fair determination of guilt or innocence, Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984); Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975). See also, Commonwealth v. Travaglia, 502 Pa. 474, 503 n. 2, 467 A.2d 288, 302-03 n. 2 (1983). Appellant also argues that death qualification was improper because this should not have been treated as a capital case. The argument is based on the fact that he was accused of committing a murder prior to the enactment of the present death penalty statute, Act of September 13, 1978, P.L. 756, No. 141, effective immediately, 42 Pa.C.S. § 9711. We have held that this is not a ground for a new trial, Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981). Appellant alleges several errors in the jury selection process. One of these is the refusal to excuse for cause Barbara Funk, a prospective juror who had ties to the victim’s and prosecutor’s families and prosecution witnesses. Funk knew decedent’s mother, who had taught her son in school approximately four years before the trial, and was acquainted with Frank Smolinsky, one of the motorists who had discovered the decedent’s van, and with the wife of the state trooper who was the prosecuting officer. She did not have a close relationship with any of these people. Furthermore, Funk believed that her husband may have been employed by decedent as an electrical subcontractor prior to their marriage. Also, her mother’s estate had been settled four years previously by an attorney who was associated with the prosecutor’s father. She did not know the prosecutor. Funk testified that none of these relationships would influence her decision. The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court, Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions, Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972). The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion, Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). A remote relationship to an involved party is not a basis for disqualification where a prospective juror indicates during voir dire that he or she will not be prejudiced. This is illustrated by a number of cases. One of these is Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434 (1959). That case involved challenges to two prospective jurors in a murder trial. One of them was the son-in-law of a detective who investigated the crime. The other was a second cousin once removed to the victim. She testified that she and the victim lived twenty-five miles apart and never visited each other. We found no error in not disqualifying these jurors. In Commonwealth v. Yohn, 271 Pa.Super. 537, 414 A.2d 383 (1979), the court upheld the refusal to disqualify two jurors in a burglary case. One of them had been employed by the victim three or four years before the crime. The other had gone on a fishing trip six to eight years before the trial with a police officer who was the superior of the prosecuting officer. No basis for a challenge for cause of a prospective juror was found in Commonwealth v. Bright, 279 Pa.Super. 1, 420 A.2d 714 (1980), a prosecution for assault and resisting arrest, where the juror lived in the same neighborhood as the prosecuting attorney and had known him since he was a child. There was likewise no ground for challenging a prospective juror in a theft and receiving stolen goods prosecution where she was somehow related to the police prosecutor (the record did not disclose how) and was the aunt of a member of the district attorney’s staff who was not trying the case. Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4 (1981). Cases involving issues of juror bias that arose during the trial are also relevant. We found no basis for disqualifying a juror who recognized the mother of a murder victim when she took the stand but said she did not know her and felt no more sympathy for her than she would for anyone else in the same situation, Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971). In Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980), another murder case, there was no need to disqualify a juror who recognized a police witness as someone she had seen at mass but said she did not know his name, had never spoken to him, and would not be influenced. In the instant case, we find that Funk’s relationship to persons involved in the case was remote. It did not create such a bias as to require her disqualification. Consequently, there was no error in refusing a challenge for cause. Appellant next claims that it was error to refuse challenges to two prospective jurors who expressed a bias in favor of police witnesses. One of them testified as follows under voir dire questioning by the defense attorney: Q. If two people testified in this matter and one happened to be a police officer and one happened to be a private citizen and they both had the same opportunity to observe the same event. In other words, they had the same amount of time to observe something from the same distance and one person testified one way and that was the civilian witness and the police officer testified a different way, would you tend to believe the police officer because he is a police officer as opposed to the civilian witness? A. I would believe the police officer, yes. Q. Simply because he is a police officer I assume? A. Well, primarily. The prosecutor questioned him further on the subject: Q. If a civilian witness and a police officer both have the training and the same education and the same background they are identical in all those respects, would you be able to evaluate them in the same way and listen to what they base their opinion upon? A. Yes, I would be able to evaluate. THE COURT: You would be able to evaluate them? THE WITNESS: Yes. * * * * * * Q. You would be able to then evaluate both according to — -what I’m saying is that the Commonwealth will tell you and the Judge will instruct you later that just because a person is a police officer, you listen to what he bases his observations upon, do you feel you would be able to evaluate his testimony like you evaluate all people or all civilian witnesses’ testimony? A. Yes. THE COURT: Mr. Johnson these questions are designed to determine whether or not you have bias in favor of or against the police officers? THE WITNESS: No, no, that wasn’t the reason for my yes. I mean before that I would believe a police — I just think, I mean it is their job. I don’t know. THE COURT: It has to do with the amount of training and fact background and experience? THE WITNESS: More that type. THE COURT: All right. * S]! * * * * Q. Like I said, Judge Rufe will tell the jurors at the end of this case certain ways that they can evaluate testimony- Do you feel you would be able to accept the instructions that His Honor, Judge Rufe gives to you regarding that evaluation? A. Yes. The other venireperson in question responded to the defense attorney’s questions as follows: Q. Would you believe the police officer over the civilian witness solely because he was a police officer? A. Not necessarily. Q. I am not sure I understand your answer. A. Just because he would be a police officer, maybe I wouldn’t take his part just because he is an officer. Q. Would you tend to believe him simply because he is a police officer? A. I probably would yes. I would tend to, yes. Q. Mrs. Daniels, one of the instructions that Judge Rufe will give to you is that you, as a juror, must evaluate everyone’s testimony and civilian witness, police witness, whatever their background is, you must evaluate witnesses and the Judge will give you some guidlines [sic] as to how to determine credibility of witnesses. Now, the Judge, will also tell you that all witnesses are judged the same. Do you feel that, I believe you said that it would depend on — there was a question about you would believe a police officer solely because he was a police officer and you indicated no, it depends. A. No, I would not believe him just because he was a police officer. I wouldn’t indicate that I would believe him solely because of that. Q. Mrs. Daniels, would you be able to instruct Judge Rufe’s instructions of law on all matters in this case? A. I think so. Both venirepersons’ answers initially indicated a bias toward police officers. Their answers to further questions made it reasonable to find that they would evaluate all witnesses fairly and without prejudice and would follow the instructions of the court. There was no abuse of discretion in refusing challenges for cause. Appellant also claims that it was error to refuse to disqualify one Geiger (first name not in record), a venireperson who had been robbed at gunpoint while working at a gas station, was acquainted with some police officers, had read about the crime in the newspaper, and recognized the names of two potential Commonwealth witnesses. One of the prospective witnesses was Jeff Burley, who did not testify. Burley had been a childhood acquaintance of Geiger’s cousin. Geiger was aware of that acquaintanceship but did not himself know Burley. The other witness was Chief Hansley. Geiger knew of Hansley because he resided in the same area. He did not know Hansley personally and had never had any dealings with him. Geiger said he would be able to evaluate both witnesses’ testimony the same as anyone else’s. In view of that testimony and the remoteness of the relationships, we find no basis for disqualification. Geiger knew a number of police officers from having previously worked in the security field. He testified that he would not be biased in favor of police witnesses and his verdict would not be influenced. He also testified that he would not be influenced by his having been a robbery victim. We find no basis for not accepting that testimony. Geiger read an article about the case in the newspaper shortly before the trial. He learned the names of Appellant, decedent, and decedent’s brother. He learned that decedent’s brother committed suicide in a house where the police were trying to arrest him and that there was a fire at the house. He said that his verdict would not be affected. We do not find his knowledge to have been so significant as to prevent him from rendering a fair verdict. Consequently, we find no abuse of discretion in refusing the challenge for cause. Appellant next claims that the court misapplied the Witherspoon rule to exclude two prospective jurors who were not irrevocably committed to vote against the death penalty. One venireperson, when asked about the death penalty, testified as follows: Q. If you found after listening to the facts in this case that there was aggrivating [sic] circumstances in this case and no mitigating circumstances, the judge will tell you the sentence must be death. Now, would you be able to come back with a decision of the death penalty? A. No. He gave the following testimony in response to further questioning on the subject: Are you against the death penalty in all circumstances? A. Not in all circumstances. Q. When do you feel it is appropriate? A. When do I feel— Q. When do you feel that you could impose the death penalty? A. In the instance of a child being involved or something like this. The instant case did not involve a child. The testimony indicated that the prospective juror could not vote for the death penalty under the facts of the case and would not follow the court’s instructions. Therefore, he was properly excluded. The testimony of the other venireperson was as follows: Q. Now, in this case the District Attorney is seeking a conviction in murder of the first degree and if the verdict is murder in the first degree, and he is found by the jury to be guilty of murder in the first degree, you would then be asked to deliberate a second time to decide whether or not life imprisonment or the death penalty should be imposed and do you have any moral, philosophical or religious scruples that prohibit yuu [sic] from imposing the death penalty if the circumstances warrant it? A. Yes, I would think so. Q. What are those if I might ask? A. Well I don’t think he should be put to death. I don’t believe in capital punishment I guess. Q. Is that in all circumstances or just in some? A. I guess all. Q. Can you think of any instances where you would think capital punishment might be justified? A. No, no I don’t think so. That testimony established an irrevocable commitment to vote against the death penalty. Witherspoon was applicable and the exclusion was proper. See also Wainwright v. Witt, — U.S. —, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (“clarifying” Witherspoon and stating standard as whether juror’s views would prevent or substantially impair performance of duties as juror in accordance with instructions and oath). Appellant claims that he was improperly prevented from addressing the following question to prospective jurors: Would you be able to allow the death penalty for a group of terrorists who killed hundreds of thousands of people when they blew up (hypothetically) the World Trade Center in New York, showed no remorse, and if released from jail that they vowed to do the same thing again? They further anticipate being released because of a future hostage or kidnapping situation. The scope of voir dire examination is in the sound discretion of the trial judge, Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). There was no abuse of discretion. The question referred to a fact situation that was not involved in the instant case and was therefore irrelevant. Appellant’s final claim in regard to jury selection is that the court erred in refusing to allow him peremptory challenges in addition to the twenty allotted, Rule of Criminal Procedure 1126(a)(3). Appellant exhausted his peremptory challenges. He claims to have been forced to do so because of the court’s erroneous refusal of his challenges for cause. We have determined that the challenges were properly refused. Moreover, the trial court does not have the power to allow more than the allotted number of peremptory challenges, Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981). Appellant’s next argument is that the court wrongly denied him permission to act as co-counsel. He was represented by an attorney. A defendant has the constitutional right to proceed without counsel if the decision to do so is knowing and voluntary, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), accord, Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978). In Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1979), the court held that the same constitutional right does not apply to a defendant represented by an attorney who wishes to act as co-counsel and that the decision as to whether that is to be allowed is in the sound discretion of the trial court. We agree and see no basis for a finding of abuse of discretion in the instant case. Appellant claims that the trial court improperly refused to conduct an in camera inspection of the Commonwealth’s case file. The defense requested the inspection so that it would be determined whether the file contained undisclosed evidence that would tend to exculpate Appellant. In order to comply with the requirement of due process of law, the prosecution must disclose any evidence in its possession that is favorable to the defense, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Commonwealth disclosed evidence in the instant case. An in camera inspection of the Commonwealth’s file is not required unless there is reason to believe that evidence favorable to the defense will be revealed, Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977). The Commonwealth does not violate the disclosure requirement by failing to disclose evidence that it does not have and of which it is not aware. Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983). Appellant cites instances where he claims that evidence which was revealed at trial should have been disclosed previously. First, Barbara Livezey testified that decedent’s truck was fired on five months before the murder. Second, the exhibits included the wallet of William Livezey, which contained a slip of paper on which the name “killer Eddy” and a telephone number were written. We find that neither of these pieces of evidence was exculpatory and that, therefore, no disclosure was required. Third, Daniel Thurber testified to a previously undisclosed inculpatory statement made by Appellant. The prosecutor testified and the trial court believed that the prosecution had not been aware of the statement. Fourth, challenged statements given by a Commonwealth witness and by a potential witness who did not testify, along with police reports concerning the death of William Livezey, were not in the possession of the Commonwealth prior to trial. They were turned over to the defense for review at the time of trial. The Commonwealth was not required to disclose these items of evidence, as it did not have them prior to trial. There was no indication that certain other undisclosed police reports were exculpatory. Appellant failed to establish grounds for an in camera inspection. Appellant also claims that the court erred in not granting certain items of discovery that he recognizes were not mandatory. He relies on Rule of Criminal Procedure 305(B)(2), which allows discovery of non-mandatory items at the discretion of the court. The rule covers the following items: (a) the names and addresses of eyewitnesses; (b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial; (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice. One of the requested items was the criminal records of all Commonwealth witnesses. In Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974), we held such information need not be disclosed by the Commonwealth but is a proper subject for cross-examination. The defense did in fact cross-examine Commonwealth witnesses on their criminal records. Another requested item was the names and addresses of all witnesses the Commonwealth intended to call at trial. The rule covers eyewitnesses only, and there is no requirement that the Commonwealth disclose the names and addresses of all witnesses, Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982). The Commonwealth did in fact disclose all witnesses, including those who were not eyewitnesses. Appellant also requested discovery of plea bargains, deals, or immunities offered to witnesses. The Commonwealth represented that there were no such deals. The defense explored this matter on cross-examination, and no deals were revealed. Appellant requested F.B.I. reports on William Livezey. The Commonwealth did not have any such reports. There was no evidence that they existed. Finally, Appellant requested tape recordings of conversations between decedent and William Livezey. Typewritten transcripts were provided. We find that to be sufficient. There was no abuse of discretion in any of the court’s discovery rulings. Appellant argues that the court improperly admitted hearsay testimony. In his post-trial motions, he identified the witnesses who allegedly gave hearsay testimony but did not identify the statements which were allegedly inadmissible. In order to preserve such issue, it is necessary to identify the specific statements that are objected to, Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982). Appellant having failed to do so, his argument is waived. Appellant next argues that unduly inflammatory and irrelevant evidence was admitted on several occasions. First, he claims that it was improper to admit a photograph of decedent’s truck spattered with blood. The claim is waived, as Appellant did not object to the admission of the photograph at the time of trial, Commonwealth v. Butts, 495 Pa. 528, 434 A.2d 1216 (1981). Next, Appellant claims that it was error to allow a pathologist to give details of the autopsy performed on decedent. Medical testimony is admissible where it is relevant to establish the cause of death in a homicide case, Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970). In the instant case, the testimony showed that decedent died of a gunshot wound. It was relevant to establish criminal agency. Appellant also objects to the admission of testimony concerning the involvement of Appellant and William Livezey in drug traffic. Such testimony is admissible to show relationships among parties involved in crime, Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974). Appellant objected to a question addressed to Barbara Livezey as to whether William Livezey attended decedent’s funeral. The trial court sustained the objection. There was therefore no prejudice to Appellant. Appellant next claims that it was improper to admit testimony about changes in his appearance since the time of the murder. Appellant was described as looking “more sophisticated” and as having cut his hair, trimmed his beard, and begun to wear glasses. Evidence of flight or self-concealment on the part of a person who knows that he or she is wanted for a crime may be admitted to show consciousness of guilt and may form a basis, along with other evidence, for an inference of guilt, Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964). Evidence of a change in appearance may be admitted to show concealment under this principle. See Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981). It was proper to admit the evidence of Appellant’s change in appearance along with that of his movements outside the Commonwealth. Appellant claims that Daniel Thurber improperly testified about a relationship between Appellant and Thurber’s wife. The claim is waived, as there was no objection to the testimony at trial. Finally Appellant claims that it was improper to admit testimony concerning the attempted arrest and suicide of William Livezey. The evidence was relevant, given that the relationship between Appellant and Livezey and their conspiracy to commit the murder had been established. Additionally, the suicide was relevant to show Livezey’s state of mind, Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953). Appellant next argues that the prosecutor engaged in misconduct by making certain remarks in his opening and closing statements. One of these was a statement in his opening address that he would show that Appellant attempted to flee when arrested in Tampa, Florida and then did not present evidence thereon. The prosecutor had a Tampa detective available to testify. He offered to prove through his testimony that the Tampa police went to a house to arrest Appellant. When they knocked on the door and identified themselves, Appellant ran out the side door, whereupon he was arrested. The defense objected to the proposed testimony. The objection was overruled, but the prosecutor elected not to present the testimony. In Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), we held that when there is a good faith, reasonable basis for believing that a particular fact will be established during trial, it is proper to refer to such fact during the opening statement. We further held that even if an improper remark is made during an opening statement, there is no basis for relief unless the unavoidable effect is to prejudice the jury so as to render it incapable of objective judgment. In the instant case, the prosecutor had the evidence available and reasonably expected to present it. The fact that he chose not to do so in the face of the objection by the defense did not render the opening statement improper. Furthermore, we find that the evidence was not prejudicial in view of the extensive evidence presented against Appellant. The prosecutor also stated in his opening that Eva Colson disappeared after learning that she was a suspect in the killing. That statement was proper, as the evidence established that she disappeared. Appellant also objects to the prosecutor’s statement that Appellant intended to kill his wife. Daniel Thurber testified that Appellant told him of such intention. That statement, too, was proper. Appellant objects to several statements made by the prosecutor in his closing address. A prosecutor’s closing remarks must be limited to facts in evidence and legitimate inferences therefrom, Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974). Appellant objects to the following: The prosecutor described the effects of the gunshot wounds on decedent and said how they killed him. That statement was supported by the Pathologists’s testimony. The prosecutor said that William Livezey killed himself. That was consistent with the evidence, which showed that Livezey died of a self-inflicted gunshot wound. The evidence supports the prosecutor’s statements that William Livezey was involved in the killing of decedent and that Appellant did drug work for Livezey. The prosecutor described Appellant as the same type of person as William Livezey, Jerome Randis, Henry Glosemeyer, and Daniel Thurber. We have already discussed the evidence showing that Appellant conspired with Livezey to commit murder and was in the drug business with Livezey and Randis. Additionally, Glosemeyer testified that he sold drugs for Livezey. Thurber was a close associate of Appellant and resided with him in Florida for six months. We find all of the prosecutor’s statements to be reasonable in light of the evidence. Appellant claims that the prosecutor improperly advised certain witnesses not to speak with defense counsel in violation of a rule prohibiting the prosecution from interfering with defense interrogation of potential witnesses in the absence of an affirmative and convincing showing of exceptional circumstances, Lewis v. Lebanon Court of Common Pleas, 436 Pa. 296, 260 A.2d 184 (1969). Two of the witnesses in question were Commonwealth witnesses Thomas Stotsenburgh and Daniel Thurber. In support of his claim, Appellant cites his cross-examination of these witnesses. The relevant cross-examination of Stotsenburgh is as follows: Q. Mr. Stotsenburgh, did you get a letter from me asking if I could meet and discuss the case a little bit further with you, by certified mail? A. Yes, sir, I did. Q. And did I ask you if you and I could meet so we could discuss the facts of the case at a time convenient to yourself at a place you found convenient also? A. Yes, sir, I believe that was in the letter, yes. Q. Did you ever respond to that? A. I talked to the District Attorney in regard to it. Q. You never called me back, right? A. No, sir, I didn’t. Defense counsel questioned Thurber in a similar manner: Q. Did you ever get a certified letter that I sent to you? A. Yes. Q. And in that certified letter I asked you if you would discuss your testimony with me and I would speak with you at any time or place convenient to yourself, did I not? A. Yes. Q. Did you ever respond? A. Nope. Q. How many times did you talk to the D.A. or prosecution about this case? A. Twice. The testimony shows only that defense counsel asked the witnesses to discuss their testimony with him and that they did not respond. There is no indication that their failure to respond was in any way caused by the prosecution. Appellant also complains about the prosecution’s conduct in regard to Steven Belevary, a potential defense witness who was not called. Belevary was brought into the jurisdiction by the prosecution and was not initially available to the defense. However, the record shows that defense counsel’s telephone number was given to Belevary, that the defense attorney met with Belevary and discussed his possible testimony, and that Belevary was available for further meetings. There is no indication that the prosecution advised him not to speak to the defense. There is no basis for a finding of prosecutorial interference in regard to any of the witnesses. Appellant makes allegations of prosecutorial misconduct related to issues that have already been dealt with herein. He claims that the prosecutor engaged in misconduct by denying discovery that the defense was entitled to, by introducing hearsay statements, and by introducing irrelevant and inflammatory evidence. We have already determined that Appellant’s arguments on these issues are either meritless or waived. Consequently, there is no basis for a finding of prosecutorial misconduct. Appellant next claims that the trial court erred in denying various motions for a mistrial. He argues that he was entitled to a mistrial because of the prosecution’s denial of discovery, introduction of hearsay, irrelevant, and inflammatory evidence, making of improper statements in the opening and closing addresses, and interference with witnesses. The decision as to whether to declare a mistrial is in the discretion of the trial court, Commonwealth v. Craig, 471 Pa. 310, 370 A.2d 317 (1977). We have already rejected Appellant’s arguments on the issues on which his claim of entitlement to a mistrial is based. Therefore, we cannot find any abuse of discretion on the part of the court. Appellant claims that the trial court improperly refused to conduct an evidentiary hearing on his post-trial motions. Appellant requested the hearing in order to rehash his arguments on denial of discovery, interference with witnesses, and improper statements by the prosecutor. We find that the trial court ruled correctly on these issues and that there was no need for an evidentiary hearing. Appellant also desired to argue for a new trial on the basis of after-discovered evidence. Appellant alleges that one Wayne Stanistreet was an associate of William Livezey. He would have testified that Livezey told him he killed decedent. Livezey did not implicate Appellant. After-discovered evidence is a basis for a new trial if it (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978). Stanistreet’s putative testimony would have corroborated the Commonwealth’s theory of the case, i.e. that Livezey plotted the killing. Livezey’s statement that he killed decedent was consistent with his involvement and did not exculpate Appellant. Stanistreet’s testimony would not be likely to result in a different verdict, inasmuch as it does not contradict the Commonwealth’s case and there is ample evidence implicating both Livezey and Appellant. Since Appellant did not allege the existence of evidence that would have been likely to result in a different verdict, it was reasonable to deny an evidentiary hearing. There is no basis for awarding Appellant a new trial. Having so found, we will address Appellant’s claim that he was improperly sentenced to death. He raises several arguments in support of that claim. One is that he cannot be sentenced to death for a murder that occurred prior to the effective date of the death penalty statute. As we have noted, the present statute went into effect on September 13, 1978. The previous death penalty statute had been declared unconstitutional, Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977). In Commonwealth v. Story, supra, we held that the legislature did not intend to apply the present death penalty statute to offenses committed before its effective date and that it would not be so applied. Story controls the instant case. Since Appellant was convicted of a murder committed before September 13, 1978, his sentence must be modified to life imprisonment. It is so ordered. Appellant also argues that the prosecution improperly refused to supply the defense with Appellant’s employment records at the time of the sentencing hearing, that the trial court improperly refused to grant a continuance prior to such hearing, and that the death penalty statute is unconstitutional. As we have determined that the statute is inapplicable in the instant case, we need not address these arguments. The judgment of sentence is affirmed as modified. NIX, C.J., files a dissenting opinion.

OPINION OF THE COURT FLAHERTY, Justice. This is an appeal from an order of the Superior Court which affirmed in part, and remanded for further proceedings, with respect to an order of the Court of Common Pleas of Cumberland County determining equitable distribution of certain property following a divorce. 361 Pa.Super. 504, 522 A.2d 1144. The action for equitable distribution arose from the divorce of appellant, Gregory L. Sutliff, and appellee, Carlene Sutliff, after their marriage of nearly 25 years. Appellant filed a complaint in divorce in 1982, and, after numerous hearings were held before a master, a report was filed in 1984. Subsequently, in December, 1984, the parties filed a stipulation providing for, inter alia, a bifurcated divorce. A final divorce decree was then immediately entered. On May 7, 1985, the Court of Common Pleas filed an order providing for equitable distribution. An appeal and cross appeal were taken to the Superior Court, whereupon certain elements of tbe equitable distribution scheme were affirmed and others were remanded for further determinations and/or modifications to be made. The instant appeal ensued. The first issue to be addressed is whether the Superi- or Court erred in its selection of a valuation date for the marital assets. The Court of Common Pleas utilized October 21, 1981, the date when the parties separated, as the valuation date. The Superior Court concluded, however, that valuation of marital assets should reflect values as of the distribution date, rather than the separation date, and, accordingly, the case was remanded for revaluation of certain business interests, including automobile dealerships, that were subject to distribution. The basis for the Superi- or Court’s action was that, because there had been a considerable passage of time between separation of the parties and distribution of their marital assets, substantial fluctuations in the values of those assets may have occurred, which, from an equitable standpoint, should be reflected in the distribution order. We agree. The Divorce Code contains no express provision governing the selection of a date to be used for valuation of marital property, where equitable distribution is concerned. While the Code clearly states that property acquired after separation is not to be considered marital property, 23 P.S. § 401(e), the question presented here is not whether particular assets are to be deemed marital, as opposed to individually owned, but rather whether assets given to be marital in nature are to be valued at one level or another. It is implicit, however, in the statutory provisions governing equitable distribution that a valuation date reasonably proximate to the date of distribution must, in the usual case, be utilized. Specifically, 23 P.S. § 401(d) provides: In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including: (1) The length of the marriage. (2) Any prior marriage of either party. (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties. (4) The contribution by one party to the education, training, or increased earning power of the other party. (5) The opportunity of each party for future acquisitions of capital assets and income. (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits. (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker. (8) The value of the property set apart to each party. (9) The standard of living of the parties established during the marriage. (10) The economic circumstances of each party at the time the division of property is to become effective. Examination of this statutory provision reveals numerous grounds for an inference that marital property must be distributed with reference to its value at the date of distribution. Indeed, it is inconceivable that the requirement that the distribution be made in such proportions as the court deems “just” could be satisfied without reference to the current values of the assets. The statute, in its enumeration of factors to be considered in making a distribution of marital property, sets forth a number of factors which focus on the present needs and financial situations of the parties, including their “amount and sources of income,” “employability,” “estate, liabilities and needs,” chances for “future acquisitions of capital assets and income,” “sources of income,” the “value of the property set apart” as non-marital property, “standard of living,” and the “economic circumstances of each party at the time the division of property is to become effective.” In view of these factors, and with particular reference to the last one which encompasses generally all of the former, and which expressly focuses on the parties’ financial circumstances at the time when marital property is to be distributed, it is inconceivable that the legislature intended marital property to be valued at some other time. Granted, there may be situations where marital assets have been consumed or disposed of by one of the parties, thus rendering a current valuation impossible and making it necessary to rely on data that would otherwise be considered stale, but such is not the case here. See generally Sergi v. Sergi, 351 Pa.Super. 588, 594, 506 A.2d 928, 931-932 (1986) (discussion of valuation where marital property is no longer in existence). In the usual case, however, given that the parties’ present needs and circumstances are to be a major factor in distributing marital assets, it would be impossible to construct a distribution scheme that would be fully responsive to those needs and circumstances if the court were to act without taking cognizance of the current values of the assets being distributed. As stated in Bacchetta v. Bacchetta, 498 Pa. 227, 232, 445 A.2d 1194, 1197 (1982), “By providing for the distribution of property acquired during the marriage, the Divorce Code permits the correction of ... economic injustices____” See also 23 P.S. § 102(a)(6) (legislative intent of the Divorce Code is to “[ejffeetuate economic justice between parties who are divorced ... and insure a fair and just determination and settlement of their property rights.”) Yet, one can readily imagine the economic injustices that would be inflicted by distributing property without regard to its value. It cannot be said that distributions based upon stale valuations are based on value, for value is by no means a constant. If, as has been suggested, marital property values were to be fixed as of the date of the parties’ separation, or as of the date of filing a complaint in divorce, severe injustices would at times be inflicted upon the parties concerned. Volatile market conditions and changing economic circumstances can render assets that had been valuable months or years earlier virtually worthless in the present, and vice versa. Publicly traded securities may be worth a fortune one day, and a pittance the next. Privately owned business interests may be valued as a gold mine, or as a scrimption, depending on the times. Automobiles that were once of considerable worth may, through abuse or neglect, rapidly become valueless. Other examples too numerous to mention scarcely require enumeration. In view of these com monly recognized aspects of valuation, it is difficult to conceive justification for the view that stale valuation data, i.e., data that does not reflect values reasonably proximate to the date of distribution, should be used by the court in setting a distribution scheme. See Sergi v. Sergi, 351 Pa.Super. at 594, 506 A.2d at 932 (“[Ejquitable results will most likely flow from providing the court with the most recent information available____”). The present case presents a prime example of circumstances where reliance upon stale valuation data could lead to an unjust distribution of property. The parties separated in October of 1981, a complaint in divorce was filed in February of 1982, and distribution of marital assets was ordered by the Court of Common Pleas in May of 1985. Clearly, the time lapse between the former dates and the latter date, when distribution was ordered, is such that highly significant value fluctuations may have occurred. To distribute property without regard to those fluctuations would be illogical, and would undermine the legislative intent of making the equitable distribution process responsive to the contemporaneous needs and financial situations of the parties. We conclude, therefore, that the Superior Court properly remanded this case for determination of revised asset valuations, thereby negating the Court of Common Pleas’ reliance upon values fixed as of the date of separation. The next issue presented concerns the classification of property as marital, or non-marital, under provisions set forth in 23 P.S. § 401. A statutory presumption is established in favor of classifying property as marital when it was acquired during marriage: All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is over come by a showing that the property was acquired by a method listed in subsection (e). 23 P.S. § 401(f). Thus, property is deemed marital unless it was acquired by one of the methods enumerated in 23 P.S. § 401(e), as, for example, property acquired in exchange for property held prior to the marriage, property excluded by agreement of the parties, property acquired by gift, property acquired after separation, etc. The specific issue raised in this appeal, however, is whether rebuttal of the presumption as to marital property requires a showing by clear and convincing evidence, or whether it is sufficient to rebut the presumption by a preponderance of the evidence. In the proceedings below, before the master and the Court of Common Pleas, a requirement of clear and convincing evidence was imposed. The Superior Court affirmed as to that requirement. We reverse. In affirming the standard of clear and convincing evidence, the Superior Court reasoned that because that standard is applied in certain other civil cases, it should be applied in this context as well. For example, the Superior Court noted that the standard is applicable where fraud is to be proved, e.g., Molineux v. Reed, 516 Pa. 398, 532 A.2d 792, 794 (1987), where one attempts to rebut the presumption that property purchased by a husband or wife and expressly titled in the names of both the husband and wife constitutes a completed gift and an estate by the entireties, see Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964), and where parental rights in children are to be severed, e.g., In re T.R., 502 Pa. 165, 167, 465 A.2d 642, 642-643 (1983). See also 32A C.J.S. Evidence § 1023 (clear and convincing evidence required in a limited number of civil cases). In short, the Superior' Court focused only upon those civil cases where the more demanding standard of proof has been applied, rather than upon the predominant number of civil cases where the evidentiary burden requires only proof by a preponderance of the evidence. It is not apparent what connection is to be perceived in comparing the present case to those cited, for the issues presented and considerations involved are clearly distinct. Indeed, the present case is one where the presumption in question was created by an express statutory provision in the Divorce Code, and where the “showing” necessary to rebut the presumption has likewise been referenced by statute. 23 P.S. § 401(f). The basis for imposing the standard of clear and convincing proof was indicated in the decision below to be that the wisdom of experience has demonstrated a need for greater certainty when dealing with this subject matter, due to the fact that certain social consequences and harsh or far-reaching effects on individuals may ensue from a determination that any given property is not marital in nature. Yet, in any case where economic interests of the parties are to be adjudicated, as is the case where rights to marital property are to be determined, it is obvious that the parties involved will incur the effects of the adjudication. It is not clear, however, that the effects are any greater in this realm than when other economic and property interests are at stake, and, thus, it does not appear that a higher standard of proof is, of necessity, required. Indeed, if the legislature had intended a higher standard of proof to be applied in rebuttal of the statutory presumption regarding marital property, the statutory language would surely have so indicated. Instead, the legislature created a rule of substantive law that property acquired during marriage is to be deemed marital in nature, absent a “showing” that the property was acquired by one of the methods enumerated in subsection (e). 23 P.S. § 401(f). Certainly, the mere fact that a statutory presumption has been enacted, with provision for the presumption to be rebutted upon a proper showing, is not basis in itself for inferring that clear and convincing evidence is needed to rebut the presumption. See, e.g., Fawcett Estate, 449 Pa. 497, 297 A.2d 799 (1972). We perceive no basis, in logic, public policy, or otherwise, to infer that the “showing” required under the instant statute was intended by the legislature to be an enhanced one, requiring more than the usual preponderance of evidence to establish the necessary proof. Thus, inasmuch as an improper evidentiary standard was applied by the courts below, a remand is necessary to permit reconsideration of the case in light of the appropriate standard. Case remanded to the Court of Common Pleas for proceedings consistent with this opinion. McDERMOTT, J., joins in the majority opinion and files a separate concurring opinion. ZAPPALA, J., files a concurring and dissenting opinion in which LARSEN, J., joins. STOUT, J., did not participate in the consideration or decision of this matter. . The remaining issues raised by appellant may be addressed in summary fashion. Appellant challenges the master’s determination that one-half of the marital residence was the separate property of appellant’s wife, and, hence, that such one-half interest was not subject to equitable distribution. The master’s determination was based upon a finding of an interspousal gift in the form of a conveyance made in 1978 by appellant to his wife, in her sole name, of a one-half interest in the marital residence, which, until then, had been held as tenants by the entireties. See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985) (property can be rendered non-marital via an interspousal gift, see Divorce Code, 23 P.S. § 401(e)(3)). Appellant contends that the conveyance was made for reasons of tax planning to reduce federal estate taxes, upon the recommendation of a law firm that a gift be made for that purpose, and that, because appellant was not motivated by "love and affection” for his wife, the conveyance should not count as a gift for purposes of the Divorce Code. Donative intent is, of course, an essential element of a valid gift. Id., 509 Pa. at 286, 502 A.2d at 111. But once it is determined that donative intent was present, inquiry into the reason or motive for a gift becomes meaningless. A transfer motivated by an attempt to avoid inheritance taxes is "not inconsistent with a donative intent, but rather positively suggests such an intent.” Clay v. Keiser, 460 Pa. 620, 626-627 n. 3, 334 A.2d 263, 266 n. 3 (1975). It cannot be said that the master erred in finding an interspousal gift in this case, and even appellant does not deny that the conveyance should be regarded as an effective gift for federal tax purposes. In essence, appellant requests that two categories of gifts be recognized, i.e., those made for reasons of "love and affection,” and those made for other reasons, so that, depending on the occasion presented, appellant could assert or deny a gift as best suits his interests. Such a position is clearly untenable. The Divorce Code does not contemplate that, after a gift has been made, an inquiry will be conducted into whether the reasons for the gift were sufficiently "loving” as to warrant recognition. Appellant further alleges that the courts below erroneously interpreted a stipulation of the parties in a manner that precluded them from considering the alleged distinction between "loving" gifts and other types of gifts. Inasmuch as the alleged distinction is without basis, the question of whether the stipulation was properly interpreted is of no consequence. Finally, appellant contends that the equitable distribution provisions of the Divorce Code cannot constitutionally be applied to property rights which vested prior to July 1, 1980, the effective date of the Code. Such a contention has already been considered and rejected by a majority of this Court, notwithstanding vigorous dissents. Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982) (Mr. Justice, now Chief Justice, Nix, dissenting, and Mr. Justice Flaherty, dissenting, joined by Mr. Justice Larsen). See also Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983) (due process exception to retroactive application of equitable distribution provisions where rights of a third party transferee are concerned).

Mr. Justice Clark delivered the opinion of the court, May 26, 1884. In determining the question raised upon this record we must assume the truth of the facts stated in the affidavits of defence •filed, original and supplemental; if these facts disclose a valid defence to the whole or even a part of the plaintiffs’ claim, the judgment must be reversed. The plaintiffs’ bill of particulars filed exhibit their claim to be for 382^ tons of iron ore, delivered in the month of January, 1883, at $3.50 per ton, $1,338.75. The supplementary affidavit states that “the plaintiffs’ claim is based upon a sale of iron ore, made by them to the defendants, through Joseph P. Reed & Co., their agents;” that “the said Joseph P. Reed & Co. were, at and before the time of the purchase of the said three hundred tons of ore, the general agents of the plaintiffs, for the sale of iron ore, with full authority to warrant the quality of the ore sold by them, on account of their said principal.” Having thus defined the character and scope of the agency through which the purchase Avas effected, the affidavit avers that the plaintiffs had previously sold to the defendants fifty tons of ore, “ well and nicely roasted, and prepared for smelting with the sulphur extracted,” and that the defendants thereupon purchased three hundred tons more ; that the last mentioned purchase was made “upon the express agreement, on the part of the said agents, and the said agents so declared and expressly warranted, that all the ore so purchased should be well roasted, should be free from sulphur, and in all respects be equal in quality to the previous fifty tons, a2id should be fit for the manufacture of foundry iron; and the said purchase was made on the faith and credit of the said promises, agreement and warranty.” The defendants in error contend that there is no allegation of warranty here set forth, such as will answer the requirements of an adequate affidavit of defence. It is certainly true when the defence set up involves an issue of fact, the affidavit must state facts, all the facts necessary to constitute a substantial defence. General averments of matters which in themselves are legal conclusions, from facts not stated, are insufficient, as, for example, payment, fraud, or undue influence, these involve mixed questiojis of law and fact. It should appear how payment was made, of what the fraud or undue influence consisted, etc. So the mere averment of a warranty, without more, is bad; the affidavit should disclose whether it was express or implied, set forth its terms and state when, by whom and by what authority it was made, but it is not required that the woi-ds of the alleged warranty should be stated at length. The affidavits filed in this case set forth, we think, a valid defence against the plaintiffs’ claim, at least pro tanto; the facts stated in each are different, and on that account should be carefully examined; but they do not contain alternative allegations upon the subject matter of the defence. They clearly set forth that an express warranty was made at the time of the purchase, by the duly authorized general agents of the plaintiffs, to the effect that all the ore so purchased should be well roasted, free from sulphur, in all respects equal in quality to the previous fifty tons, and fit for the manufacture of foundry iron, and that the purchase was made upon the faith of the warranty. The word “ warranty ” is not here introduced, or used in any merely general or complex sense, involving an inference or conclusion of law, but in the expres sion of a fact, the particulars of which are specified. It does not appear that the warranty was by deed or writing, but what is not stated in an affidavit of defence must be taken not to exist: Lord v. Ocean Bank, 20 Pa. St., 384; if it were essential that such a contract must be manifested bjr writing, the omission would be fatal, as the existence of a writing could not be presumed. The damages resulting from the breach are, it is true, assessed according to an alternate measure, and the defendant claims to recoup or recover, b3r way of set-off, according to one, or other or both of these, as the law may entitle' him. What may be the proper measure of damages, we will not now consider ; the rule entered was for judgment on the plaintiffs’ claim, not for any part of it. It is sufficient for the purpose of this ease, as now presented, if a validdefence is asserted for part. We might perhaps, upon the mere ex parte allegations of an affidavit, declare the rule which should govern in the ascertainment of damages, but when the facts are fully shown on both sides, the rule thus declared anight prove inapplicable, and be productive onty of anischief at the trial. We can onty deteranine that question wheai it coanes properly before us; it is not arow essential to the proper adjudication of the matters involved in this record. The defendants’ liquidation is only approxianate; under the circumstances this was sufficient; in the very nature of the case only an approximation could be made. They claim “about” four hundred and fifty dollars for the difference between the real value of the ore and its value as warranted, and also “ about ” nine hundred dollars additional for the difference betweeai the value of the iron, añade from this inferior ore, and such iron as could and would have been made from the ore stipulated for and wara-anted. Which of these modes of assessment is the correct one will be determined under the pa-oofs, but it seems reasonably clear that they cannot be entitled to the results of both. Aai affidavit of defence is aaot to be framed with the techaiical accuracy of foranal pleadings, aior subjected to the severe scrutiny which a fine, critical skill may exercise, but it anust exhibit all the elements of a substantial defence; nothing should be left to iaiference except that Avhich-must necessarily be inferred: Twitchell v. McMurtrie, 27 P. F. S., 383; Thompson v. Clark, 6 P. F. S., 33. The defendant should state the facts with reasonable precision; he need not state the manner in which those facts Avill be proved, or the evidence by Avhich they will be established : Bronson v. Silverman, 27 P. F. S., 94; Reznor v. Supplee, 31 P. F. S., 180; Moeck v. Littell; 1 Norris, 354. We are of opinion that a sufficient defence Avas asserted in the affidavits to send the case to a jury. For these reasons, therefore, the Judgment is reversed, and a procedendo awarded.

OPINION ZAPPALA, Justice. This is an appeal from the Superior Court’s affirmance of the Lancaster County Common Pleas Court’s grant to Appellees of a demurrer to Appellant’s request for declaratory relief. We granted allocatur to consider a question which has heretofore not been addressed by this Court. Because we are in disagreement with both the Superior Court and the lower court’s analysis of the case, we reverse and remand. This action arises out of a land sale and purchase money mortgage between the two parties. Appellees sold to Ap pellant certain lands which they owned in Lancaster County and personally financed the sale. The mortgage note contained the following repayment clause: “Whereas,, the Mortgagor [Appellant], by bond and/or note dated concurrently herewith, stands bound to pay the Mortgagee [Appellees] the just principal debt of THREE HUNDRED SIXTY THREE THOUSAND ONE HUNDRED TWENTY and 80/100 DOLLARS ($363,-120.80), payable at the rate of Nineteen Thousand Dollars ($19,000.00) annually, commencing on April 1, 1979, and continuing each twelve (12) months thereafter until paid; the interest on the unpaid balance shall be payable at the rate of seven and one-half percent (772) per annum, payable annually, commencing April 1, 1979, and continuing each twelve (12) months, thereafter until the principal debt is paid in full as aforesaid. Interest shall begin accruing on the date of settlement.” The note was silent as to any right of prepayment of the debt. Several months after closing on the property, Appellant entered into several sales agreements with various buyers to sell portions of the recently purchased tract. Subsequent to these agreements, Appellant, through her attorney, attempted to gain a release as to those tracts she was selling. Appellees refused to release any of the land. Appellant then sought to prepay the entire mortgage debt with interest to the date of tender. This was also refused. As a final attempt to obtain a release on the land, Appellant offered to arrange for substituted security by requesting a certain bank guarantee payment of the mortgage according to its terms in exchange for a release of the lands. Again, Appellees refused. Appellant, via an action for declaratory relief, then asked the court to declare that under the mortgage terms, she was entitled to satisfaction and release upon payment of the principal balance and interest thereon. The lower court granted Appellees’ preliminary objection in the nature of -a demurrer, and the Superior Court affirmed. Mahoney v. Furches, 309 Pa.Super. 129, 454 A.2d 1117 (1983). The reasoning of the lower court in granting the demurrer was based upon prior Superior Court decisions interpreting mortgage clauses that were silent as to prepayment, Beth-June, Inc. v. Wil-Avon Merchandise Mart, Inc., 211 Pa.Super. 5, 233 A.2d 620 (1967); Hensel v. Cahill, 179 Pa.Super. 114, 116 A.2d 99 (1955). In Beth-June, it was stated, and correctly so, that “[W]hen the payment of principal is due depends upon the wording of the mortgage and of course the intention of the parties thereto.” [211 Pa.Super. at page 910, 233 A.2d 620, citing Hensel v. Cahill, supra (Emphasis added) ]. Beth-June goes on to state rules by which a mortgage should be interpreted absent a specific prepayment clause. They provide: “A mortgage payable within a certain time may be paid off at any time, thus a mortgage payable within a year from date can be paid off at any time during the year. Horstman v. Gerker, 49 Pa. 282 (1865). However, a mortgage which is payable within a certain number of years, if it calls for installments in an amount which will evenly amortize the debt throughout the term of the obligation does not afford a mortgagor the right of prepayment, and the installments are the minimum which must be paid and the maximum which must be accepted by the mortgagee. Hensel v. Cahill, supra; Ladner on Conveyancing in Pennsylvania, Section 9, 10, page 236 (3rd Ed.1961).” Beth-June, 211 Pa.Super. at 910, 233 A.2d at 622. Based on these rules, the lower court interpreted the instant repayment clause as falling into the latter category and thus granted the demurrer. In affirming the lower court, the Superior Court also relied on Hensel and Beth-June, and cited a Connecticut case, Dugan v. Grzybowski, 165 Conn. 173, 332 A.2d 97 (1973), for the proposition that a mortgagor could not, without a prepayment clause, compel a mortgagee to accept full payment of the balance of the principal, including interest due, before the due date of the mortgage. In support of this conclusion, the Superior Court offered the following reasoning relied upon by the Connecticut court: “As one text writer explains the custom of denying prepayment rights, '[t]his freedom of the mortgagee from anticipation is of increasing value as the mortgage becomes more and more an investment instrument, designed to secure a regular flow of income. Current institutional mortgages customarily exact substantial amounts as conditions of accepting prepayment.’ 3 Powell, Real Propery (sic) p. 656 n. 4. In contrast, a mortgage note designed primarily to give the lender security for the timely repayment of his money at a profitable rate of interest, will more likely contain a prepayment clause without a penalty attached. The object of the clause is generally to encourage repayment, whereas in absence of such a clause, courts tend to construe the mortgage note as intended to secure regular investment income to the mortgage (sic) over a definite period of time. Compare, as examples of the first instance, ... Beth-June, Inc. v. Wil-Avon Merchandise Mart, Inc., 211 Pa.Super. 5, 233 A.2d 620, with ... Hensel v. Cahill, 179 Pa.Super. 114, 116 A.2d 99, as examples of the latter....” Mahoney, 309 Pa.Super. at 133, 454 A.2d at 1119, citing Dugan v. Grzybowski, supra, 165 Conn. at 176-177, 332 A.2d at 99 n. 2 (citations omitted). While we understand the logic of the Connecticut court, we do not agree with the result that court reaches since the net effect of that result is to raise a presumption against prepayment where a mortgage note contains no prepayment clause. As the quote from Dugan indicates, this presumption arises ostensibly because private mortgage notes are becoming more and more valuable as an investment instrument, and thus freedom from mortgage anticipation is very important to the mortgagee who wishes to maintain a steady income over time. We may agree that the use of the mortgage for private investment purposes is increasing and may also support a policy encouraging such use. To do so, however, we need not embrace the conclusion reached by the Connecticut court and ignore other important considerations merely to accommodate this trend. Rather, and indeed because of this increased use of the mortgage as an investment instrument, we must consider the policy encouraging such use in light of the implications it might have on the free alienability of land — a consideration we feel is the dominant one, since the fundamental purpose of the mortgage note in most instances is to secure a debt incurred in the purchase of land from which the debt arises rather than to secure investment income for the mortgagee. When the mortgagee takes a mortgage note for investment purposes, the usual effect will be to restrain the mortgagor from alienating the land securing the note for the duration of the mortgage, since the mortgagor cannot pass clear title to that land until the note is satisfied. Coterminous with this result is the possibility that the mortgagee can indirectly control or restrain the mortgagor’s ability to subdivide and sell portions of the mortgaged tract merely on the basis of his security interest in the land. Taking cognizance of the general policy in this Commonwealth and elsewhere against restraints on alienation, we find it would be against such policy to presume, simply from the absence of a clause so allowing, that a mortgagor could not pay off his debt and alienate his land as he so desired. Instead, we think it wiser to raise a presumption of a right to prepayment of the note where a mortgage is silent as to that right. This presumption could be rebutted by showing a contrary intent mutually manifested by the parties. Such a presumption would not work a hardship on the mortgagee since, in virtually all instances, he is the drafter of the mortgage note and can thus include within the note a clause stating that the note is not subject to prepayment. This would put the mortgagor on notice that he will in all probability be restrained from selling the land for the duration of the term. If he signs the note contain ing such a provision, he will then be bound by it even though it may restrain his right to its sale or use. Having seen the alternative, we think the more reasonable rule is to place the burden upon the person who has drafted the instrument to demonstrate that the parties intended to allow the land to be secured for the duration of the mortgage note. We therefore hold that where a mortgage note is silent as to the right of prepayment, there arises a presumption that the debt may be prepaid. We now proceed to apply this rule to the facts of the instant case. Where there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer, an appellate court’s scope of review is limited. Recently, we reiterated this standard in Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983), as follows: “All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).” Vattimo, 502 Pa. 244, 465 A.2d at 1232-33. Viewing Appellant’s complaint in this light, we find that there were sufficient facts pleaded to take the action beyond the demurrer stage. We therefore remand the instant case to the lower court for proceedings consistent with this opinion. Reversed and remanded. LARSEN, J., dissents and would affirm, and in support thereof cites the Superior Court opinion in this case. . While not at issue in the instant appeal, we at this juncture note with approval the Superior Court’s conclusion that, consistent with the policy against restraints on alienation, even where the mortgage explicitly states there is no right to prepay the note, if the mortgagor can provide the mortgagee with the benefit of his bargain under the terms of the note, he will be allowed to have a release of his land following the substitution of security or other arrangement. Mahoney, supra, 309 Pa.Super. at 136, 454 A.2d at 1120.

Mr. Justice Gordon delivered the opinion of the court, The jury found that the city authorities were derelict in duty in not placing proper guards or barriers along the river side of this very-dangerous piece of road, and that this neglect was the proximate cause of the loss complained of by the plaintiff. The court on the other hand, regarded the fright and breaking away of the horse as the immediate cause of the disaster,'and hence entered judgment for the defendant, non obstante veredicto. Herein we think the court erred. It is true that ordinarily provision is not to be made against contingencies so rare as runaway horses. Roads and bridges ate constructed for the purpose of ordinary travel, and if- they fulfil such purposes they are sufficient, and those who have them in care are not chargeable with the results of extradrdinary accidents that may occur upon them. These things must, however, be governed by common reason and observation. A road may be perfectly safe under some circumstances and very unsafe under others. A way of ten feet in width, in the open country, may be as secure as one of ten times that width, but along the brow of a precipice such a way would be very insecure. Perhaps, indeed, a steady, sure-footed team, handled by a cool and skilful driver, may pass over it as securely as over the former, but drivers of only ordinary nerve, with fractious teams are unsafe upon it, and it is just for this reason that such a road should be provided Avith guards Avhich, under ordinary circumstances, Avould not be essential. As..was said, per euriam, in the case of Lower Macungie Tsp. v. Merkhoffer, 21 P. F. Smith 276, “ a highway must he kept in such .repairs that even skittish animals may be employed without risk or danger on it.” So we have held that where a horse frightened and backed off a bridge, the township was responsible for the loss resulting therefrom because of the neglect of the supervisors in not providing side railings, by which notAvithstanding the fright of the horse, the accident might have been prevented. Newlin Tsp. v. Davis, 27 P. F. Smith 317. Had this accident happened upon an open and unrailed bridge, under circumstances similar to those exhibited by the evidence now under consideration, there could be hut one opinion as to the liability of the city. In such case the proximate cause of the disaster would be so obvious that no one could avoid its observance. Given secure side guards, and the driver is under no apprehension of immediate danger, Avbether his horse attempts to run or back; in either, case he retains his seat and the lines, and has a reasonable chance to save himself and his property — remove the guards, and he is at once surrounded by circumstances of extreme danger, calculated to appal an ordinary person, and it may, indeed, be the best thing he can do to abandon horse and carriage to their fate and endeavor, as best he may, to save his OAvn life. Here the circumstances created by the.neglect of the public authorities, are such as to render the accident not only possible but probable, and it is against such probabilities that they are hound to provide, and the want of such provision is negligence per se. There is, however, no reasoning which applies to a bridge that does not also apply to a road, for a bridge is but part of a road. If the road is so dangerous, by reason of its proximity to a precipice, or any other cause, that common prudence requires extra precaution, in order to insure the safety of the travelling public, why shall not the authorities be bound to such precaution. Now that Hey was surrounded by circumstances calculated to excite alarm in the mind of an ordinary person, no one can Avell deny ; that the unfenced precipice was a dangerous element, Avhich Avould naturally beget such alarm, will no doubt also be conceded, and that he did nothing that a man of prudence ought not to have done the jury have found. Where then was the fault ? Was it not to be found in this unguarded declivity ? But it is said the running away of the horse was the proximate cause of the injury, and had it not gone over-the bank it might have gone farther with the same result in the end. This, however, does not follow, nor is it necessarily to be conceded, for ordinarily a dead horse does not result from a runavvay, and, hence, had there been proper guards at this place, the chances are ten to one the horse, at least, would have been saved. Granting, however, that the runaway was the imme diate cause of the whole disaster, still the question remains, what produced the runaway ? In Pittsburg v. Grier, 10 Harris 54, the immediate cause of the sinking of the steamer, was the striking of some heavy body floating in the stream, nevertheless as the causa causans was some piles of pig metal, negligently permitted to lie on the public wharf, thus obliging the boat to occupy a position more dangerous than it otherwise would have occupied, the city was held liable. A like case is that of Scott v. Hunter, 10 Wright 194, in which Pittsburgh v. Grier is approved. Thus we see that the immediate cause of the damage, may be but the effect of a precedent cause, and if the latter arises from a neglect of duty chargeable upon a municipality, such municipality is liable therefor. As therefore, the jury, in view of all the circumstances of this case, might legitimately find that the losing of the control of his horse by Hey, resulted from the alarming character of the unfenced precipice, inducing him to jump from his carriage in order to save himself and his children from the threatened danger, we conclude that for this reason, if for none other, the verdict should have been permitted to stand. We do not regard the cases to which we have been referred by the counsel for the defendant in error as in point. In all of them the immediate cause of the accidents complained of was the running away, or loss of control of the horses, occasioned by accidents unconnected with the condition of the roads over which they were passing. As in the case of Davis v. Dudley, 4 Allen 557, where the bolt, connecting the cross-bar and thills with the sleigh, broke and let them fall on the horse’s heels, thus frightening it and causing it to run. away, and during its flight it broke one of its legs upon a pile of wood lying in the road — it was held that the town was not liable. But if we reverse the case and suppose the fright of the horse to have been occasioned by some prudent endeavor of the driver to escape the danger of an obstruction in the highway, it is probable the decision would have been different. It is, however, only under the latter statement of the case that it becomes similar to that under consideration; hence it and its kindred cases have no applicability to the discussion in hand. The judgment of the District Court is now reversed, and a judgment for the plaintiff below is entered on the verdict, and the record is directed to be remitted to the court now having jurisdiction of the records of said District Court for execution. Chief Justice Agnew and Mr. Justice Paxson, dissented.

The opinion of the court was delivered by Strong, J. — The case was to the to find whether the injury which resulted in the death of the plaintiff’s husband was or was not occasioned by the negligence of the defendants’ contractors, or that of the contractors’ agents and servants, and the verdict establishes that it was. To this mode of submitting the case no exception was taken, and nothing is therefore presented to us but the questions reserved. Of these, it is necessary to consider only one, whiéh is, whether a corporation is responsible for an injury occasioned by the negligence of contractors with it, or of their agents and servants. By an Act of Assembly of April 22d 1858, the Select and Common Councils of the city of Pittsburgh were authorized, whenever they should deem it necessary, to cause sewers to be constructed in any street of the city, and for the payment of the cost, levy an assessment upon the property benefited. In pursuance of the act an ordinance was passed on the 25th of October 1858, providing for the construction of a sewer in St. Clair street, and on the 1st of June 1859, a written contract for its construction was entered into with Allen & Kerr, contractors, by which they covenanted to build or construct a brick sewer with all necessary inlets, and to furnish all the material therefor, for stipulated prices for the excavation, replacing over the sewer, removing surplus material, repaving, for brick and stone work, and for iron; and they agreed that the material, workmanship, and excavation should be satisfactory to the recording regulator. They began the work soon after, excavated the earth to the depth of twenty feet in some places, directed barriers to be placed across the ends and along the sides of the trench, and employed a man to take care that the barriers should be at all times kept up. Notwithstanding this, however, the husband of the plaintiif fell into the excavation on the night of the 28th of June, 1859, and received hurts which caused his death. The verdict of the jury determines that the injury was not a consequence in whole or in part of his negligence, but was caused entirely by the negligence of the contractors, or of their agents or servants. Is the city liable? We think not. The wrong was not done by any servants of the defendants. There is no room for the application of the principle “ respondeat superior.” The defendants had no control over the men employed by the contractors, or over the contractors themselves. They could not dismiss them or direct their work. The excavation was not illegal, and there was a superior to the workmen, to wit, the contractors. There cannot be more than one superior, legally responsible. Undoubtedly there has been much confusion, and some conflict of decision on this subject, growing out of the early case of Bush v. Steinman, 1 Bos. & Pul. 404; but that case long since ceased to be regarded as a correct enunciation of the law in England', and both its reasoning and authority are denied. It is now settled in that country that defendants, not personally interfering or giving directions respecting the progress of a work,- but contracting with a third person to do it, are not responsible for a wrongful act done, or negligence in the performance of the contract, if the act agreed to be done is legal. Such is the doctrine of Rapson v. Cubitt, 9 M. & W. 710; Readle v. The London and North Eastern Railroad Co., 4 Exch. 243; Overton v. Freeman, 8 Eng. Law and Eq. 479; Peachey v. Rowland, 16 Eng. Law and Eq. 442; and numerous other English cases. In Gray and Wife v. Hubble & Pullen, decided in the Queen’s Bench, April 16th 1863 (Law Journal Reports, vol. 32, part 8, N. S.), Chief Justice Cockburn asserts it to be the common doctrine, that “ if a person in the exercise of his rights as a private individual, or of those conferred upon him by statute, employs a contractor to do work, and the latter is guilty of negligence in doing it, the contractor, and not the employer, is liable. Similar opinions were expressed by all the judges. Such, also, we understand to be the doctrine in this country, sustained by a decided preponderance of authorities. It would answer no good purpose to review the cases at length. The English ones, and many of the American, are reviewed and commented upon in Hilliard v. Richardson, 3 Gray 849, in Barry v. The City of St. Louis, 17 Missouri 121, and Blake v. Ferris, 1 Selden 48. The general principle to be extracted from them is, that a person either natural or artificial is not liable for the acts or negligence of another, unless the relation of master and servant or principal and agent exist between them; that when an injury is done by a party exercising an independent employment, the party employing him is not responsible to the person injured. And the rule applies with full force to municipal corporations. In Blake v. Ferris, it was held by the New York Court of Appeals that the defendants, who had a license from the city to construct at their own expense, a sewer in a public street, and who had engaged another person by contract to construct the whole work at a stipulated price, were not liable to third persons for any injury resulting from the negligent manner in which the sewer had been left over night by the workmen engaged in its construction. It was declared that the immediate employer of the agent or servant through whose negligence an injury occurs, is alone responsible for the negligence of such agent or servant; that the principle of respondeat superior applies to him alone, and that there cannot be two superiors severally responsible, in such a case. Blake v. Ferris was followed by Pack v. The Mayor, &c., of New York, 4 Selden 222, in which the same court held the city corporation not liable to third persons for injuries caused by the negligence of workmen employed in grading a street under the direction of a person who had entered into a contract with the corporation to do the work for a specified sum. The liability was declared to be-upon the contractor alone, and the court denied that he was the servant or agent of the corporation. It was further ruled that a clause in the contract by which the contractor engaged, to Conform the work to such further directions as might be given by the street commissioner, did not affect the ease; that it only gave the corporation power to direct as to the results of the work, without any control over the manner of performing it, which control alone furnishes a ground for holding the master or principal liable for the act of a servant or agent. Kelly v. The Mayor, &c., of New York, 1 Kernan 432, is another case in which the same rule was applied. Barry v. The City of St. Louis, 17 Missouri 121, is another well-considered case, affirming fully the doctrine. The corporation had contracted with one Brooks for the construction of a street sewer. The contractor was, for an agreed sum, to furnish all the materials, and do all the work including excavation. The contract reserved the right for the city engineer to inspect the work as it progressed, and watch its execution. During its progress a deep trench was dug, into which the plaintiff fell at night, and was injured, in consequence of a failure to erect barriers, and set up lights.' The case was very like the present. Yet it was held the corporation was not liable, and the general principle was laid down, after quite a full review of the English and American authorities, that municipal corporations are not liable for damages occasioned by the negligence of contractors. It is conceded there are a few cases that intimate, if they do not declare a different doctrine, but they are not the more modern and best considered. During the argument much reliance was placed by the plaintiff in error upon City of Chicago v. Robbins, Am. L. Reg. July 1863, p. 529, which was a suit by the city to recover from Robbins what the corporation had been compelled to pay to a person injured by falling into an excavation in one of the side-walks. The defendant was the owner of a lot, and he had contracted with one Britton for the erection of a house thereon, including an excavation of the side-walk adjoining, for the purposes of light and air for the basement. By the contract, he had a right to supervise the work, a right which he exercised. He knew of the dangerous condition in which the excavation was left, his attention was frequently called to it, and he promised to attend to it. Nothing, however, was done, and he was held liable, apparently, for his own negligence. It is true some expressions of the court appear to recognise a distinc tion between the liabilities of the owners óf real estate, or fixed properly, as it is called, for injuries resulting from nuisances on such property, no matter by whom erected or maintained, and liabilities of owners of other property, for the negligence of their contractors. This distinction, however, has been exploded in England, where it originated, and it can be supported by no sound reason : Milligan v. Wedge, 12 A. & E. 737; Allen v. Hayward, 7 Id. N. S. 960; Reedie v. Railroad Company, 4 Exch. 244. It is difficult to discover any substantial reason or good policy for holding the present defendants responsible to the plaintiff. The negligence complained of was not theirs. It does not appear that they knew of it. The verdict determines that the fault was all that of the contractors. Over them the defendants had no more control than the plaintiff’s husband had. They were not in a subordinate relation to the defendants, neither servants nor agents. They were in an independent employment. And sound policy demands that in such a case the contractor alone should be held liable. In making a sewer he has, necessarily, the temporary occupancy of the street in which the work is done, and it must be exclusive. His servants and agents are upon the ground, and he can more conveniently and certainly protect the public against injury from the work than can the officers of the municipal corporation. The public will be better protected if it be held that the contractor alone is responsible for his negligence, and that the city does not stand between him and any person injured. Thus he will be taught caution, while a sufferer by the negligence of his servants, will not be compelled to resort for compensation to the insolvent servants. By reason and authority, then, we are led to the conclusion to which the District Court came, that the defendants are not liable for the negligence of Allen & Kerr, their contractors. The judgment is affirmed.

The opinion of the court was delivered, May 11th 1869, by Thompson, C. J. A great point of contest on the trial below was as to the capacity in which the defendants acted in acquiring the territory on which operations in mining for oil were to be inaugurated and carried on by a company intended to be formed; and whether they professed to their associates and the public that they had purchased it for the company and were conveying it to the company at original cost, content like other shareholders to take their chance of profits out of the stock to be issued. There was much testimony on the point, tending to prove these to have been their representations. Besides the deeds from their vendors, which exhibited on their face as considerations paid, sums greatly in excess of those actually paid, prospectuses were' issued by them in connection with their associates for circulation and publication in newspapers, representing that the lands acquired were obtained at first cost from the vendors. All the testimony on this point received by the pourt, was submitted to the jury with full and explicit instructions, by the learned judge trying the case. In these instructions1 was contained the principle accurately announced, that if the defendants in fact acted as agents of the company in acquiring the property, they could not charge a profit as against their principal. Nor was their position any better if they assumed so to act without precedent authority, if their doings were accepted as the acts of agents by the association or company. If in order to get up a company they represented themselves as having acted for the association to be formed, and proposed to sell at the same prices they paid, and their purchases were taken on these representations, and stockholders invested, in a reliance upon them, it would be a fraud on the company, and all others interested, to allow them to retain the large profits paid them by the company in ignorance of the true sums actually advanced. On the facts as submitted, the jury found against the defendants, and we are now to see whether there was any error in the law as laid down by the court. In Bindley on Part. 497, the principles arising on facts like those referred to, are very succinctly stated. The language of the learned author, after stating the rule that neither partners nor directors of a company are at liberty to make individual profits out of the business of the concern without the knowledge and assent of. associates, says: “ The rule under consideration is peculiarly applicable to transactions which precede the formation of a company or partnership. Judging from recent events and disclosures, nothing seems more common than for a person in getting up a company to obtain for the company property of which it is in want, and try and make the company pay him more than he gave for it. Such a transaction can never stand. There may undoubtedly be a valid sale to a company by persons engaged in getting it up; but once let it be shown that the alleged vendor obtained the property when it was his duty to obtain it for the company, and it immediately follows that he cannot, without the fullest disclosure on his part, charge the company with more than he actually gave.” To the same effect also is the opinion of Sir J. Romilly, M. R., in The Bank of London v. Tyrrell, 5 Jurist, N. S. 924. See also the same principle in the Great Luxembourg R. R. Co. v. Magney, 25 Beav. 586. The principle is undoubtedly the same where parties profess to have acted for a company and their purchases have been accepted on representations that they were -made for it. In one or the other of these attitudes, namely, as agents of a company to be gotten up, or aS having professed so to have acted, the jury must have found they stood. In either, it seems clear, they could not legally retain the advance price on the property which they received. To ascertain whether the result arrived at through the finding of the jury is to stand, ,we will consider first the exceptions to the ruling of the court on points of evidence : 1. The exception to the exclusion of a portion of W. L. Humphrey’s deposition, was not much insisted on in argument, nor could it well have been, and we dismiss it without further notice. 2. The 2d and 3d exceptions relate to reception in evidence of the prospectuses of the Vulcan Oil Company, published on the 27th November and the 17th December 1864. We think they were admissible, without doubt, in the circumstances of the case. Notwithstanding the action was in form ex contractu, yet it could only be successfully maintained by showing imposition and fraud on the part of the defendants in dealing, as it was alleged they did, with the 'company, by reason whereof ex cequo et bono they ought not to be allowed to retain the moneys wrongfully obtained from it. To establish fraud was the turning point in the plaintiff’s case. That was to be done by proving facts and circumstances the results of the acts and declarations of the defendants upon the company. In all such investigations great latitude of inquiry is always allowable. There was testimony proper to go to the jury, tending to show Weeks’s connection with the advertisement of the 27th November. Such, for instance, as the receipt of the publisher, for his charge for advertising, handed with other papers of the company, by him to the secretary after its organization; the reference to Weeks’s place of business in it as the office of the company, and to negotiations then on foot, which were subsequently shown to be those conducted by the defendants through their agent Humphreys, who was at that time in the West looking for oil territory for them. There were many other circumstances preceding or subsequently given in evidence, to warrant the reception of this evidence. It was a step towards the fact to be established, namely, that the defendants were holding out to the public, that real estate was being secured by them for a company to be organized, and that it was to be put into the concern at what it cost and no more. It was material evidence against both defendants, provided the transaction of the purchase and sale was the combined act of both, which the testimony certainly, we think, sufficiently showed it was. It was properly received. So also was the prospectus of the company of the 17th December. That was signed by Simons, as president pro tem., and Willoughby, as secretary pro tem. It was the declared act of one of the defendants, and was clearly evidence under the bill of particulars, which proposed to show the joint action of the defendants in accomplishing the sale to the company for $81,000 and upwards, and their joint receipt of the purchase-money from it. As the act of Simons it was clearly evidence against him, and might or might not be against Weeks, the other defendant, on the testimony given and to be given. It was a fact in the transaction, and not to be excluded because of a possibility that the jury might mistakenly suppose the company to be organized, before it was, in fact. If that apprehension was the ground of objection, the jury would doubtless have been apprised that they must not fall into that error. We think the evidence was properly received, and this error is not sustained. 3. We perceive nothing in the argument of the 4th, 5th, 6tlq 7th and 8th assignments of error, which creates a doubt of the accuracy of the learned judge below in the rulings which are the subject of them. We will consider them together. The declarations of Weeks, a party to the suit, relating to the subject-matter of it, were evidence against himself, no matter when made. Whether they should affect Simons, would depend on whether their acts amounted to a joint enterprise, to induce the company about to be organized, to agree to purchase, and after organization to perfect the purchase of the lands secured by them in West Virginia, at the sums they represented that they had paid for them. Under-such a state of facts the declarations of one would be evidence against both. If they assumed to be or were partners in fact in the transaction, there could be no doubt that the declarations would be evidence against both. There was evidence of a partnership, or joint purchase by the defendants of these lands as well as of a sale for the joint interest of both. On both grounds the testimony was properly received. Nor was there any error in the refusal of the court to strike out the testimony of Brosius on the ground of interest, even if such refusal was assignable for error, which we have said is not the case, where the testimony of witnesses is given without objection : 11 Casey 792. The correction in such cases is a request to charge that the evidence be disregarded. His supposed liability for non-performance of his official duties, was neither fixed nor threatened, so far as the objection discloses. He was certainly not directly involved in the result of the verdict; nor could it be evidence for or against him in any subsequent suit. His supposed liability was a presumed peril, contingent and remote, and did not disqualify him. Indeed it would have required a trial to determine the validity of the grounds of objection, and the court could not arrest its proceedings to indulge the parties in this. There was no error in this ruling. The fact that the witness, Jacob Amon, was a stockholder in a company to which the plaintiff was indebted, was not a ground of incompetency to testify. A creditor may be a witness for his debtor: Fell v. McHenry, 6 Wright 41; Gillespie v. Miller, 1 Id. 250. We have already noticed an objection to the testimony given of the declarations of the defendants. No matter where they were made, if they were relevant they were receivable. Their effect would be another matter with which the jury had all to do. 4. The 9th specification of error is overruled. The words “ original owners,” in the prospectus, were not terms of art, science or trade, which required the aid of experts to explain. Nobody could well mistake their meaning. They simply imported that no profits were added to the prices paid by the company for their lands, on account of any intermediate party, buyer or agent between it and the precedent owners of the soil. It excluded the idea of a purchase at speculative prices. This was the import of the terms, and to convey that idea in plain language was the object in using them. The court committed no error in refusing to hear an exposition of words which would in all probability have disturbed their meaning, or have attributed an entirely artificial one, supposed but not settled, to spring out of dealings incident to oil property. Their ordinary meaning was well understood, and in this sense they were most fitly used; at least there was nothing to show that they were not so used. It was, therefore, not a case for experts or skilled witnesses to interpret. 5. The exceptions to the charge are thirteen in number. The answers to the 1st, 2d and 3d of these were substantial, and I might say literal, affirmations of the points of the defendants of which they are predicated. The court laid down the law favorably to them by the instruction to the jury that, unless the land was purchased for the company by the defendants, there could be no recovery against them for the advanced price paid them. In this the court but affirmed the familiar doctrine that an agent cannot make profits out of his principal, in the business of the agency, nor a partner out of his copartner without his assent, nor an associate out of co-associates for whom he has undertaken to act. That this is the law authorities need not be referred to, to prove. It is elementary. It was also assented to, that both defendants must be shown to have engaged in the transactions of the purchase and sale afterwards to the company, and in a joint participation in the receipt of the purchase-money, before there could be a recovery against them. This was what the defendants contended for, and the answers of the court need no vindication at our hands. The 4th and last point the learned judge refused. It assumed the fact that the land was put in at $>81,000 in the formation of the company, by the assent of the five original copartners; that they represented the company, and bound it by their acts and assent, and that therefore the verdict should be for the defendants. This, in effect, asserts the position that the organizing board of directors was the company, and whatever it did, could not be inquired into by the corporation put in motion at the instance of the stockholders. This is an error, and results from overlooking the fact that directors are but the agents and trustees of the company ; that they have power only to act for the interest of the company, and not against it. The shareholders constitute the company where there is stock, and not the directors. It was therefore well put, in the charge of the learned judge, that the directors had no power to bind the stockholders by allowing profits to the defendants, after holding out in their prospectus that the, property was obtained at original prices ; and that the defendants could not claim any, if they hold out that they had purchased the property for the company, and were conveying at original prices. A fraud perpetrated against the corporation by any or all of the directors, may assuredly be redressed by such an action in the name of the corporation. As already said, they are its agents and trustees, which implies accountability to their principal. It was, therefore, not error to hold as was held in the court below, that the act of the directors, even if they knew the price paid for the land was less than the sum at which it was sold by the defendants to the company, did not preclude inquiry, and a recovery back of the excess, if that excess was not legally receivable by the defendants. In law this ppsition was undoubtedly and properly asserted, and at the same time the jury were left free to consider whether the facts presented such a case. We do not doubt that if the defendants had disclosed the exact sum at which they bought the lands, and had refused to sell for less than the sum which they eventually received, their right to hold the sums received would have been unimpeachable; but the facts in evidence were such as satisfied the jury that there was concealment and misrepresentation as to the terms of purchase by the defendants professing to have acted for the company. The deeds from the original vendors proved this. But it is not our purpose to discuss the facts, and we will not enlarge further than to say we think the court committed no error in refusing to affirm the defendants’ 4th point, and charging as they did, in the general charge, in this phase of' the case. 6. We have very carefully examined the charge of the learned judge, and the exceptions to it, and we think there is nothing in any of them which needs discussion to vindicate the accuracy of the court. The case was presented to the jury fairly and clearly, on unexceptionable principles, all of which were afterwards reviewed and approved by the court in banc. And as on a careful review here, we have not discovered error in any of the specifications brought to our notice, the consequence is, that the judgment below must be affirmed. ' The point whether there could be a recovery against both defendants in this form of action, without showing the actual receipt of the money by both, although not distinctly raised by any point in the case, has been somewhat discussed on argument. Undoubtedly this was a fact necessary to be proved, but, like any other fact, it was susceptible'Af being established by proof of acts and declarations of the parties sought to be charged. The receipt by an agent of a party would be primd facie evidence of the receipt by the principal, and as partners are agents for the firm, and for each other, when the transaction is single, what possible inference could there be from the receipt of one, but that it was for the use and benefit of both ? Repeated declarations, accompanied by the strongest corroborative acts, showed these defendants to be partners, and jointly interested in the proceeds of the transaction with the plaintiffs’ company. The receipt, therefore, by Weeks of the money from the company, was susceptible of sustaining the inference that it was for the benefit of his copartner as well as himself, and threw upon the latter the burthen of establishing a different state of facts. This he did not do. In fact, as corroborative of the plaintiff’s case, the sum of $12,000, part of the profits of the transaction, was actually received by Simons himself. Under this state of the proof, if believed, the receipt of either would be the receipt of both, and upon this ground a recovery against both would be right. There was, undoubtedly, great laxity of morals, in dealing about real estate in oil sections, during the excitement consequent on its discovery. Many transactions like that under consideration have taken place, without being subject to judicial investigation, and parties have pocketed rich returns; while others have suffered disastrous diminution of their means; but the impunity with which many have speculated by unjustifiable means, and escaped a call to account to those wronged, does not impair the efficiency of the law to redress such a wrong whenever it is judicially made to appear. Hundreds have done as was done in the case before us; it had become a common thing, and men of fair standing did not hesitate to represent property as having cost sums much beyond those paid by them as inducements to enlist purchasers. This was wrong in law as well as morals, where there was a relation of trust and confidence, in fact or assumed, and in such eases it is the morality of the law to hold the party so representing to the position he may have occupied, or assumed to have occupied. Seeing no errors in the record, we have nothing to do hut to affirm the judgment of the court below. '■ ■ Judgment affirmed.

The opinion of the court was delivered, by Lowrie, C. J. We are to assume that it was by mistake that the defendant below went beyond his line in mining his coal, and mined and carried away some of the plaintiff’s coal, and it is fully settled that for this trover lies: 3 S. & R. 515; 9 Watts 172; 8 Barr 294; 9 Id. 343; 9 Casey 251. What, then, is the measure of damages ? The plaintiff insists that, because the action is allowed for the coal as personal property, that is, after it had been mined or severed from the realty, therefore, by necessary logical sequence, she is entitled to the value of the coal as it lay in the pit after it had been mined; and so it was decided below. It is apparent that this view would transfer to the plaintiff all the defendant’s labour in mining the coal, and thus give her more than compensation for the injury done. Yet we admit’ the accuracy of this conclusion, if we may properly base our reasoning on the form, rather than on the principle or purpose of the remedy. But this we may not do; and especially we may not sacrifice the principle to the very form by which we are endeavouring to enforce it. Principles can never be realized without forms, and they are often inevitably embarrassed by unfitting ones; but still the fact that the form is for the sake of the principle, and not the principle for the form, requires that the form shall serve, not rule, the principle, and must be adapted to its office. Just compensation in a special class of cases is the principle of the action of trover, and a little study will show us that it is no unyielding form, but adapts itself to a great variety of circumstances. In its original purpose, and in strict form, it is an action for the value of personal property lost by one and found by another, and converted to his own use. But i,t is not thus restricted in practice; for it is continually applied to every form of wrongful conversion, and of wrongful taking and conversion, and it affords compensation not only for the value of the goods, but also for outrage and malice in the taking and detention of them: 6 S. & R. 426; 12 Id. 93; 3 Watts 333. Thus form yields to purpose for the sake of completeness of remedy. Even the action of replevin adapts itself thus : 1 Jones 381. And so does trespass: 7 Casey 456. In very strict form, trespass is the proper remedy for a wrongful taking of personal property, and for cutting timber, or quarrying stone, or digging coal on another man’s land and carrying it away; and yet the trespass may be waived and trover maintained, without giving up any claim for any outrage or violence in the act of taking: 3 Barr 13. It is quite apparent, therefore, that this form of action is not so uniform and rigid in its administration as to force upon us any given or arbitrary measure of compensation. It is simply a form of reaching a just compensation, according to circumstances, for goods wrongfully appropriated. When there is no fraud, or violence, or malice, the just value of the property is enough : 11 Casey 28. When the taking and conversion are one act, or one continued series of acts, trespass is the more obvious and proper remedy; but the law allows the waiver of the taking, so that the party may sue in trover; and this is often convenient. Sometimes it is even necessary; because the plaintiff, with full proof of the conversion, may fail to prove the taking by the defendant. But when the law does allow this departure from the strict form, it is not in order to enable the plaintiff, by his own choice of actions, to increase his recovery beyond just compensation; but only to give -him a more convenient form for recovering that much. Our case raises a question of taking by mere mistake, because of the uncertainty of boundaries; and we must confine ourselves to this. The many conflicting opinions on the measure of damages in cases of wilful wrong, and especially the very learned and thoughtful opinions in the case of Silsbury v. McCoon, 4 Denio 332, and 3 Comst. 379, warn us. to be careful how we express ourselves on that subject. We do find cases of trespass, where judges have adopted a mode of calculating damages for taking coal, that is substantially equivalent to the rule laid down by the Common Pleas in this case, even where no wilful wrong was done, unless the taking of the coal out by the plaintiff's entry was regarded as such. But even then, we cannot avoid feeling that there is a taint of arbitrariness in such a mode of calculation, because it does not truly mete out just compensation: 5 M. & W. 351; 9 Id. 672; 3 Queen’s B. 283; and see 28 Eng. L. & E. 175. We prefer the rule in Wood v. Morewood, 3 Queen’s B. 440, n., where Parke, B., decided, in a case of trover for taking coals, that if the-defendant acted fairly and honestly, in the full belief of his right, then the measure of damages is the fair value of the coals, as if the coal field had been purchased from the plaintiffs. See also Bainbridge on Mines and Minerals 510; 17 Pick. 1. Where the defendant’s conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, or wilful negligence or wrong, the value of the property taken and converted is the measure of just compensation. If raw material has, after appropriation and without such wrong, been changed by manufacture into a new species of property, as grain into whiskey, grapes into wine, furs into hats, hides into leather, or trees into lumber, the law either refuses the action of trover for the new article, or limits the recovery to the value of the original article : 6 Hill 425 and note; 21 Barbour 92; 23 Conn. 523; 38 Maine 174. Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies; and so long as we bear this in mind, we shall have but little difficulty in managing the forms of actions so as to secure a fair result. If the defendant in this case was guilty of no intentional wrong, he ought not to have been charged with the value of the coal after he had been at the expense of mining it; but only with its value in place, and with such other damage to the land as his mining may have caused. Such would manifestly be the measure in trespass for mesne profits: 7 Casey •±56. Judgment reversed, and a new trial awarded. Read, J., dissented.

Mr. Justice Sterrett delivered the opinion of the court, January 3d 1881. The contention of the plaintiff in error is that the sales of intoxicating liquors, alleged to have been made without license in Mercer county and for which he was convicted and sentenced, were not made in that county, but in the city of Erie; and that, upon the uncontradicted testimony in the case, the jury could not have found otherwise if they had been properly instructed as to the legal effect of the evidence. The plaintiff in error had no license,-and the only fact which it was incumbent on the Commonwealth to prove was that he sold intoxicating liquors in the county of Mercer, as charged in the indictment. It was clearly shown that he obtained orders for whiskey, and in some instances collected bills for the same, in that county; but, this alone, without proof of delivery there, was insufficient to substantiate the charge of selling contrary to law within the jurisdiction of the proper court. To constitute a sale of personal property, especially under a penal statute, there must be a transfer of the title for a certain consideration. Orders for goods may be received, but until they are transferred or set apart to the purchaser the sale is incomplete. Delivery, either actual or constructive, is an essential ingredient in a sale of personal property. An agreement to sell is only executory until the contract is completed by delivery. When, as in the present case, the act of selling without license constitutes the offence, it must appear affirmatively not only that a sale, in the proper sense of the term, was actually made, but it must be located within the proper county. Doubtless sales were effected through the agency of the plaintiff in error, but if they were not shown to have been made in Mercer county 'he was improperly convicted. The testimony, as to all the material facts, was not conflicting. The plaintiff in error was a travelling agent for H. V. Claus, a licensed wholesale liquor dealer, doing business in the city of Erie. The orders for whiskey which he solicited and received in Mercer county were transmitted to his employer, who filled them at his store in Erie, and shipped the whiskey, by freight or express, consigned to the parties respectively from whom the orders were obtained. It was put up in packages, addressed to the consignees in Mercer county, delivered to the carrier at Erie and transported thence, according to the usual course of business. There was no evidence that the plaintiff in error had any whiskey in his possession in Mercer county or that he personally delivered any there. It also appeared that he collected bills for some of th.e orders which he obtained. There was nothing in the testimony to justify the jury in finding that the facts were materially different from those above stated; and, assuming them to be true, we think the only legitimate conclusion is that Erie was the place of delivery, and in law the sales were made there and not in Mercer county. The place of sale is the point at which goods ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who for the purposes of delivery represents him. For example, a merchant in New York orders goods from a Boston .house and they are consigned thence to him, either by a carrier of bis own selection, or in the usual course of trade, the transaction is an executed Boston contract: 2 Pars. on Cont. 586. The same principle is recognised in Shriver & Co. v. Pittsburgh, 16 P. F. Smith 446; Finch v. Mansfield, 97 Mass. 89. In the former case, the city of Pittsburgh was authorized to impose a tax “ upon all articles of trade and commerce sold in said city,” and the question was whether certain goods were sold in the city. About one-sixth of the gross sales of Shriver & Co., wholesale grocers, were made directly at their store in the city without the intervention of outside agents. The other five-sixths were effected through agents employed for the purpose of procuring orders and making contracts of sale outside the city. These orders were transmitted to the firm, who filled them at their store in Pittsburgh, and consigned the goods to the purchasers by the most direct means of conveyance. Shriver & Co. contended that the sales, thus represented by the orders, were not made in the city, and hence they were not taxable on the amount so sold; but, it was held by this court that the goods thus ordered through their agents, put up at their store and shipped thence to their customers, were sold in the city, and that the amount should be included in their account sales returned for taxation. In Finch v. Mansfield, supra, the consideration of the notes sued on was the price of liquors ordered by the defendant in Massachusetts from the plaintiffs in Connecticut through an agent of the latter, and the eardinal question in the case was, in which state was the sale made. The jury were instructed that if the agent merely solicited from the defendant an order for liquors and forwarded it to the plaintiffs in New Haven, and thereupon they filled it and delivered the goods to a common carrier directed to the defendant at Deerfield, Massachusetts, according to the order, the sale was in Connecticut. This instruction was excepted to, but the Supreme Court of Massachusetts held that it was correct even under the stringent provisions of the “ Maine law” then in force in that state. In delivering the opinion of the court, Mr. Justice Hoar says : “ If the agent had authority merely to receive and transmit to his principals, at New Haven, orders fOr'liquors to be sent by railroad to defendants in Massachusetts, the plaintiffs completing the contract by delivering them on the railroad in Connecticut, and defendant agreeing to pay the freight, it is very plain that this would not constitute a sale in Massachusetts. The only agreement to sell, or act of sale, would be at New Haven. The first existence of the contract would be when the plaintiffs, at New Haven, assented to defendant’s proposal, transmitted through the agent, and the sale would be completed when the liquors were delivered at the railroad .directed to the defendant.” The cases above cited appear to sustain the contention of the plaintiff in error, that under any reasonable view of the evidence the sales were made at Erie and not in Mercer county. If there had been evidence to show that he delivered any wh'iskey in the latter county or agreed to do so, and his agreement was carried out by his principal, a different ease would be presented; but, under the evidence before us, there was nothing to justify a jury in so finding. It was no doubt competent for the legislature to have made it an indictable offence for licensed liquor dealers, in person or by agent, to solicit or take orders for liquors, or offer to sell the same in any other county than that in which they are licensed and have their place of business ; but if it had been so intended the phraseology of the law would have been different. The eighth section of the act does in substance so provide as to non-residents of the state. It declares that no hawker, peddler or travelling agent shall engage in selling for any person or persons who are non-residents of this Commonwealth, “ or in vending, trading or contracting in any manner whatsoever in intoxicating liquors within the limits thereof.” This stringent provision as to non-residents indicates that the legislature did not intend t'o prohibit agents of licensed residents of the state from taking orders for the sale of liquors outside the county in which their principals are located. We think, therefore, that there was error in charging the jury, “that if they believe from the evidence, beyond all reasonable doubt, that defendant solicited orders from the witnesses, or any of them, for the sale of liquors to him or them, and in pursuance of such orders so obtained, he sent them or either of them to Erie, to the house for which he testifies he was agent, and if that house sent the liquor down to these men, he is guilty.” There was also error in refusing to affirm defendant’s point; but, as has already been observed, if there was any evidence of delivery in Mercer county, by the plaintiff in error himself, or by his employer in pursuance of his agent’s agreement so to do, the point was properly refused, for the reason that it does not exclude Mercer county a's the place of delivery. The undisputed testimony, however, is that Erie was the place of delivery. We are also of opinion that as the case stood, the offer which forms the subject of the first assignment should have been received. The allegations of fact contained in this offer were, however, substantially proved by the witnesses. Judgment reversed, and record, with copy of this opinion setting forth the causes of refusal, remanded to the Court of Quarter Sessions of Mercer county, for further proceedings.

The opinion of the court was delivered, by Strong, J. In Smith v. O’Connor, 12 Wright 223, we said that when an action is brought by a father for an injury to his infant son, it may be that the father should be treated as a concurrent wrongdoer. The evidence may reveal him as such. His own fault may have contributed as much to the injury of the child, and consequently to the loss of service due him, as did the fault of the defendant. He owes to the child protection. It is his duty to shield it from danger, and his duty is the greater, the more helpless and indiscreet the child is. If by his own carelessness, his neglect of the duty of protection, he contributes to his own loss of the child’s services, he maybe said to be in pari delicto with a negligent defendant. We hold such to be the law. Though an infant of tender years may recover against a wrongdoer for an injury which was partly caused by his own imprudent act, an adult father cannot. And it makes no difference whether the injury of which he complains was to his absolute, or to his relative rights. Protection then being a paternal duty, entire failure to extend it must be negligence. Generally what is and what is not negligence is a question for a jury. When' the standard of duty is a shifting one, a jury must determine what it is as well as find whether it has been complied with. Not so when the law determines precisely what the extent of duty is, and there has been no performance at all. Now it would be strange were we not to hold that knowingly to permit a child less than four years old to run at large and without any protector, in the public streets of a large city, traversed constantly by railway cars and other vehicles, is not a breach of parental duty. A father has no right to expose his child to such dangers, and if he does, he fails in performance of his duty, and is guilty of negligence. The security of the community, and especially of children, demands the assertion of this doctrine. Nor is it novel. It has several times been avowed in the courts of New York and Massachusetts, and it is so reasonable that it commends itself to universal acceptance. The points submitted to the court below should therefore have been affirmed. They were abstract, it is true, but they were applicable to this case if the jury found the facts as they might have found them. Judgment reversed, and a venire de novo awarded.

OPINION OF THE COURT ZAPPALA, Justice. This matter comes before the Court by way of a Rule to Show Cause issued by the Court acting on a Petition filed by the Honorable Alex Bonavitacola, President Judge of the Court of Common Pleas for the First Judicial District, and the Honorable John Herron, Administrative Judge of the Trial Division of that court. The Petition called to the attention of the Court a dispute between Judge Herron and the Honorable Bernard J. Avellino, a judge of the common pleas court. More particularly, the Petition averred that Judge Herron had assigned Judge Avellino to preside over criminal trials in the court’s “felony-waiver program” for the calendar year 1997, and that Judge Avellino had refused to comply with this assignment. A Rule was issued on January 8, directing Judge Avellino to show cause within five days why he should not comply with the assignment. Additionally, we ordered that Judge Avellino comply with the assignment pending further Order of this Court. Judge Avellino did not immediately abide by the Order that he comply with the assignment pending further Order. Rather, he filed an action in the United States District Court for the Eastern District of Pennsylvania, and there sought a temporary restraining order enjoining enforcement of the assignment. The court denied the temporary restraining order on January 10. Judge Avellino reported for his assignment on January 13,1997. In his Answer to the Rule to Show Cause, Judge Avellino moved to dismiss for lack of jurisdiction, moved for the recusal of the Court because it is a defendant in the aforementioned federal action, and asserted two reasons for his refusal to comply with the assignment: (1) that it was unreasonable within the meaning of Pennsylvania Rule of Judicial Administration 706(d) and Paragraph 3(a) of this Court’s Directive of April 11, 1986, No. 55 Judicial Administration Docket No. 1, and (2) that it was retaliatory. He further moved for an evidentiary hearing to establish a record on the factual issues raised by the dispute, which he identified in terms mirroring his reasons for refusing to comply, i.e., whether the assignment is reasonable within the meaning of Pa.R.J.A. 706(d) and the April 11,1986 Directive, and whether the assignment is an invalid effort to punish him. Judge Avellino argues that the Supreme Court has no jurisdiction because the Constitution establishes that the Court “shall have such jurisdiction as shall be provided by law,” Article V, Section 2(c). He asserts that this matter does not fall within any of the classes of cases which the General Assembly has assigned to the Court’s original jurisdiction, 42 Pa.C.S. § 721 (habeas corpus, mandamus or prohibition to courts of inferior jurisdiction, and quo warranto as to any officer of statewide jurisdiction) or appellate jurisdiction, 42 Pa.C.S §§ 722-725. He also argues that the Court’s extraordinary jurisdiction, 42 Pa.C.S. § 726, does not apply as there is no case “pending before any court or district justice of this Commonwealth.” Finally, he argues that Article V, Section 10 of the Constitution, vesting the Supreme Court with “general supervisory and administrative authority over all the courts,” does not constitute an independent source of jurisdiction to adjudicate this matter. Article V, Section 2 of the Constitution of 1968 did, as Judge Avellino suggests, establish that the Supreme Court has such jurisdiction “as shall be provided by law.” However, Section 1 of the Schedule to Article V provided that “The Supreme Court shall exercise all the powers and, until otherwise provided by law, jurisdiction now vested in the present Supreme Court____” It is apparent by its placement that the phrase “until otherwise provided by law” in this section applies only to “jurisdiction” and not to “powers.” In 1976, the General Assembly “provided by law” for the jurisdiction of the Court by enacting Title 42 of the Pennsylvania Consolidated Statutes, the Judicial Code. According to the terms of Section 1 of the Schedule, however, the adoption of the Judicial Code superseded that Section only with respect to the jurisdiction of the Court. Thus the Court may still “exercise all the powers ... vested in the ... Supreme Court” at the time the 1968 Constitution was adopted, among which were those collectively referred to as the King’s Bench powers. See generally Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948). The General Assembly recognized this distinction by acknowledging the general powers of the Supreme Court in 42 Pa.C.S. § 502. See also Pa.R.A.P. 3309, which is drawn in the disjunctive (“An application for extraordinary relief under 42 Pa.C.S. § 726, or under the powers reserved by the first sentence of Section 1 of the Schedule to the Judiciary Article....”) Although in many respects an exercise of the Court’s King’s Bench powers is to the same effect as an exercise of extraordinary jurisdiction under 42 Pa.C.S. § 726, the two are not identical. Extraordinary jurisdiction under section 726 enables the Court to assume plenary jurisdiction of a matter pending before a court or district justice at any stage. The King’s Bench powers are not so limited. The “power of general superintendency over inferior tribunals,” may be exercised where no matter is pending in a lower court. Cf. President Judge Determination Cases, 420 Pa. 243, 216 A.2d 326 (1966) (King’s Bench powers invoked to determine priority of commission of common pleas court judges). We therefore reject Judge Avellino’s argument that this Court cannot take cognizance of the dispute because the subject matter does not fall within our statutory original jurisdiction, there is no final order as to which we can exercise appellate jurisdiction, and there is no “case” pending as to which we can assume extraordinary jurisdiction. The Supreme Court’s “general supervisory and administrative authority over all the courts” was also set out explicitly in Article V, Section 10(a) of the 1968 Constitution. It was pursuant to this authority and the rulemaking authority identified in Section 10(c) that Pa.R.J.A. 706(d) and the April 11, 1986, Directive were promulgated. See generally Petition of Blake, 527 Pa. 456, 593 A.2d 1267 (1991). Judge Herron’s assignment of Judge Avellino to the felony-waiver program when making assignments in the Trial Division for 1997 was made pursuant to his authority as Administrative Judge as described in paragraph (3)(A) of the Directive. Because the authority under which assignments are made ultimately derives from this Court, review and resolution of any disputes concerning assignments must necessarily be subject to the authority of this Court. On January 22, 1997, Judge Herron filed an answer to Judge Avellino’s Motion to Dismiss Petition. Paragraph 17 of the answer states, “Administrative Judge Herron did not retaliate against Judge Avellino’s June 10 Complaint or his August 28 JCB Complaint. On October 17, 1996, when Administrative Judge Herron announced all Trial Division judicial assignments for the calendar year commencing January 6, 1997, including Judge Avellino’s, Administrative Judge Herron had no knowledge of either the June 10 Complaint, the August 28 JCB Complaint or the nature of the allegations contained therein.” Furthermore, Judge Herron asserted in paragraph 14 of his answer that he did not become aware of the existence of the June 10 complaint until December 30, 1996, when Judge Avellino circulated it via electronic mail to all trial division judges in the Philadelphia County Court of Common Pleas. On January 30, 1997, we entered a per curiam order directing President Judge Bonavitacola, Judge Avellino, and general counsel of the Judicial Conduct Board to submit affidavits or verifications setting forth relevant facts within their knowledge as to whether Judge Herron was made aware of complaints made by Judge Avellino prior to October 17, 1996. This order provided those individuals with an opportunity to respond to the factual assertions raised in Judge Herron’s answer. The verification submitted by President Judge Bonavitacola stated that he received the memorandum from Judge Avellino dated June 10, 1996, but did not forward a copy of the memorandum to Judge Herron or discuss the contents with him before October 17, 1996 or thereafter. Furthermore, he stated that at no time had he communicated to Judge Herron any comment, written or otherwise, that may have been made by Judge Avellino alleging wrongdoing by Judge Herron. The verification of Gregory D. Anthony, Deputy Counsel for the Pennsylvania Judicial Conduct Board stated that since October 17, 1996 to the present date, no full investigation has been authorized in the matter docketed at JCB # 96-311 (the complaint filed by Judge Avellino) and, therefore, Judge Herron has received no notice from the Judicial Conduct Board of the same. Judge Avellino filed an extensive verification detailing the chronology of events allegedly supporting his claim of retalia tion. Judge Avellino indicated that he made President Judge Bonavitacola aware of his misgivings relating to Judge Herron’s actions with regard to inter alia, a list room jury demand program, which involved assigning jury trials on an individual calendar basis. He stated that President Judge Bonavitacola knew from his written and oral statements before May 22, 1996 that he intended to report the claimed misconduct of Judge Herron to the Judicial Conduct Board and/or to commence litigation. Judge Avellino further indicated that President Judge Bonavitacola undertook efforts to address his concerns and, as part of a negotiating process, told Judge Herron of Judge Avellino’s intent to file a formal complaint and that Judge Avellino’s agreement to defer doing so was an express condition of continued discussions. Judge Avellino’s portrayal of the events culminating in his refusal to accept his judicial assignment reflects his acrimonious attitude towards Judge Herron. His verification conflicts with those filed by President Judge Bonavitacola and Judge Herron as to whether Judge Herron was made aware of his complaints prior to October 17, 1996. After a review of the verifications submitted, however, we find that resolution of that factual dispute is irrelevant and immaterial to a determination of the legal issues before us. Judge Avellino argues first that his assignment, which he characterizes as a demotion, was invalid because it was unreasonable within the meaning of paragraph 3(A) of the April 11, 1986, Directive. That paragraph states that In exercising the administrative supervision prescribed, the Administrative Judge shall have the following general powers for facilitating the speedy and proper administration of justice in those divisions. (A) To assign individual judges (including visiting judges and available judges from other divisions) to preside in cases, in designated court rooms and, from time to time to reassign the individual judges therein. Such assignments shall be for a reasonable period of time and no judge shall, without his consent, be assigned for any unreasonable or indefinite term to any specified duty. (Emphasis added.) Judge Avellino argues that by including the emphasized language the Court has recognized that a judge has a right to refuse to consent to an unreasonable or indefinite assignment. It is readily apparent, however, that the language speaks only to the reasonableness of duration of an assignment (“reasonable period of time;” “unreasonable or indefinite term”) and not to the reasonableness of the duties to be performed. Nor could it be otherwise. All judicial duties within a court of common pleas are equally necessary to the disposition of the business of the court. The creation of divisions and the differentiation of duties within divisions are simply administrative tools employed to facilitate the efficient dispensing of justice. No division is more or less important than another division; no judicial duty is more or less important than another judicial duty; no judge is more or less important than another judge. Ipso facto, no judge can complain that an assignment to perform judicial duties is unreasonable. Likewise, no change in assignment can properly be characterized as either promotion or demotion. A judge receives the same salary, benefits, and emoluments of office regardless of division and regardless of assignment. Cf. Ross v. Zavarella, 916 F.2d 898, 902 (3d Cir.1990) (no irreparable harm warranting immediate review of denial of preliminary injunction restraining transfer of judge between divisions of court because transfer did not denigrate her status as judge or judicial reputation or cause her to suffer diminution in salary or tenure). It follows from the foregoing that no constitutionally protected interests implicating due process concerns are affected by an assignment to judicial duties. Accordingly, we reject Judge Avellino’s argument of entitlement to an adversary proceeding, either before or after the assignment, to resolve factual questions. Even if Judge Avellino’s assertions regarding Judge Herron’s motivations are accepted as true for the sake of argument, there is no basis upon which his assignment can be cast in pejorative terms such as “retaliation” or “punishment” for the exercise of his rights to free speech and petition. We have thus far established that a judge has no right or interest deriving from constitution, statute, rule, seniority of service or otherwise to receive or continue in any assignment or type of assignment. We have also established that the assignment of Judge Avellino to the felony-waiver program was made under the administrative authority of this Court delegated to Judge Herron as Administrative Judge, and therefore review of that assignment for any reason is properly within the supervisory power of this Court. In 1977, this Court had occasion to examine the relationship between our inherent supervisory powers and the procedure for discipline of judges established in Article V, Section 18 of the 1968 Constitution. In In re Franciscus, 471 Pa. 53, 369 A.2d 1190 (1977), a district justice who had been suspended by order of this Corat upon his indictment in federal court sought to have the order vacated. He argued that this Court could only act following a recommendation from the Judicial Inquiry and Review Board under Section 18. We rejected this argument, declaring that “Article 5, Section 18 in no way attempts to revoke or diminish the inherent authority of this Court to exercise its superintendency powers over the lower judiciary.” 471 Pa. at 56, 369 A.2d at 1191-92. After extensively reviewing the history and nature of those powers, we observed that the suspension “was not meted out as a form of punishment. Rather, we are constrained to exercise our powers of supervision under the circumstances present here in order to guard and protect ‘... the dignity and authority of the court----’ ” Id. at 62, 369 A.2d at 1195 (footnote and citation omitted). Judge Avellino argues that “The text and context of the 1993 amendments to Article V, Section 18, manifest an intent to limit the Supreme Court’s authority to impose discipline de novo, and its jurisdiction to review decisions of the Court of Judicial Discipline imposing sanctions.” Brief at p. 20. The 1993 amendments, however, altered the mechanism for investigating and adjudicating charges of judicial misconduct by abolishing the Judicial Inquiry and Review Board and creating the Judicial Conduct Board and the Court of Judicial Discipline. Given our clear holding sixteen years earlier in Franciscus that our supervisory power was neither revoked nor diminished by Section 18, had the people intended to revoke or diminish that power in amending Section 18 the amendment would have explicitly so provided. Nowhere in the amended Section 18 is such an intention expressed or even implied. In this context, Judge Avellino’s refusal to comply with the assignment, and independently his continued refusal to comply with the assignment after having been directly and unambiguously ordered to do so by this Court, can only be characterized as unjustified defiance of legitimate authority. If our historical and constitutional powers of supervision are to be effective, when such affronts occur it is necessary that we consider the imposition of sanctions. Accordingly, we enter the following Order. ORDER PER CURIAM. AND NOW, this 7th day of February, 1997, the Application for Leave to File Application Under Seal is denied. The Prothonotary is directed to file the subject Application for Disqualification contained therein on the docket at this number. The Application for Disqualification is referred to Mr. Justice Nigro for disposition. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 220-22, 489 A.2d 1291, 1299-1300 (1985). ORDER AND NOW, this 7th day of February, 1997, the Motion for Recusal, the Demand for Jury Trial, and the Application for Formal Discovery are denied. The parties are directed to appear before the Court during session in Pittsburgh on Tuesday, March 4, 1997, at 1:30 p.m., at which time the Court will consider whether sanctions, e.g., no further action by the Court, private or public reprimand, suspension with or without pay, or removal from office, should be imposed upon the Respondent. The parties shall submit briefs in accordance with a schedule to be established by the Prothonotary. . Judge Avellino suggests that our Court's authority to review cases concerning judicial assignments might be exercised in the form of appellate jurisdiction over a final order from a "mechanism” prescribed by general rule to resolve such disputes. As explained in the text, our authority is not so limited. We likewise reject the assertion that absent such a mechanism Judge Avellino was without recourse. In Carpentertown Coal & Coke it was noted that "The power of controlling the action of inferior courts is so general and comprehensive that it has never been limited by prescribed forms of procedure or by the particular nature of the writs employed for its exercise.” 360 Pa. at 100, 61 A.2d at 429. Indeed, as evidenced by the matter docketed in this Court at No. 132 Eastern District Miscellaneous Docket 1995, Judge Avellino is personally aware that this Court will receive papers in the form of a "letter plea” and treat them in appropriate fashion. In that matter, Judge Avellino approached the Court by way of letter, asserting that he was “aggrieved by the conduct of Judge Doyle of the Commonwealth Court” and had "nowhere else to turn.” This Court ordered that the letter be treated as a petition for exercise of the Court’s King’s Bench powers and, as such, it was denied. . The "June 10” Complaint referred to was a memorandum dated June 10, 1996 from Judge Avellino to President Judge Alex Bonavitacola complaining that conduct of Judge Herron had an appearance of impropriety and that if the perceived problem was not resolved by August 1, he would report Judge Herron to the Judicial Conduct Board. The "August 28 JCB Complaint” refers to the formal complaint filed with the Judicial Conduct Board by Judge Avellino on August 28, 1996. . Along with the verification, Judge Avellino filed a Demand for Jury trial and Application For Leave To Conduct Formal Discovery, claiming that he is entitled to undertake discovery and proceed by way of a jury trial under the Pennsylvania Rules of Civil Procedure. Inasmuch as this matter arises pursuant to the Supreme Court’s general supervisory and administrative authority over the courts, no right to jury trial or discovery exists and an appropriate order denying these requests will be entered herewith. It would appear, however, that in asserting the need for discovery, Judge Avellino implicitly acknowledges that his allegations were made without personal knowledge or substantial foundation, and that he must now engage in a “fishing expedition” to uncover evidence that might support them. . As Judge Herron’s order encompassed the calendar year 1997, the assignments therein by definition are not for an indefinite term. Moreover, as the order assigned all the judges of the Trial Division to duties for the same one year period, it is self-evident that the term of the assignments is not unreasonable. At oral argument, counsel for Judge Avellino suggested that in proportion to the number of years remaining in his present term, a one year assignment may be construed as unreasonable. To restate this argument is sufficient to demonstrate its preposterousness. Quaere whether any assignment could be deemed reasonable as the end of a judge's term nears. . At argument, counsel for Judge Avellino conceded that neither constitution, statute, nor rule establishes seniority as a consideration, much less a primary consideration, in the assignment of judges. He nevertheless continued to refer to Judge Avellino’s years of service as a factor to be considered in weighing the reasonableness of the assignment to the felony waiver program. This is nonsense. Simply put, seniority carries with it no entitlement to preferential consideration. . Conversely, of course, action by this Court pursuant to our supervisory power in no way affects the independent authority of the Judicial Conduct Board to investigate the same conduct for purposes of disciplinary action pursuant to Article V, Section 18. . In arguing that a judge may refuse to obey an unconstitutional order, Judge Avellino puts forward the example of an administrative order directing judges to sign blank search warrants for police to use at night in order to eliminate the need to have a magistrate available at night. There is clearly a difference between an administrative order directing a judge to perform what he believes is an illegal act and an order that a judge believes to be beyond the authority of the administrative judge to enter. In either case, however, recourse may be had in this Court, which bears the ultimate responsibility for the proper administration of the judicial system. The suggestion that each judge may in the first instance determine unilaterally the appropriateness of complying with an administrative order invites chaos and is simply untenable.

Shippen C. J. Even granting that the parties in this case have equal equity, still he that has the law must prevail. Now there can be nothing more clear than that upon the delivery of the bill of lading to the captain upon the 31st of January, the property vested in the defendant, it continued at his risk from that time to the 10th February, and had it been lost he and not Dawson and Watt would have been the sufferers. After having so vested, there was no authority in the agents to change the rights of the parties. The opinion of the court is that there must be Judgment for defendant.

The opinion of the court was delivered by Sergeant, J. If the facts be as it would appear by the evidence they are, that a majority of the- trustees to whom the care of the concerns of the bank was committed, attended the sale of a portion of the property of the bank, and, in order to prevent its being disposed of at- an undervalue, Childs, the acting trustee, procured St John to bid for them, and furnished him with money for the purpose, and St John undertook the trust, purchased the property and paid for it with that money, and took the deed in his own name, he certainly became thereby a trustee for "the bank, the equitable title remained in them, and was bound by the plaintiff’s judgment. That such trust in real estate may be established by parol evidence, was settled in German’s Lessee v. Gabbald, 3 Binn. 302, and is confirmed by subsequent decisions ; and proof of an undertaking and employment to execute a trust, makes quite as strong a case as that of any confession or declaration. On the evidence of Mr Childs, the money must be deemed the money of the bank, for he says that he, as acting trustee, employed St John, and gave him the money, and though at the time he advanced the money out of his own pocket, he did it for the bank, and soon after charged it to them;. so that, in effect, it was the bank’s money, loaned to them by Childs. The act of Childs, in relation to the purchase, was afterwards ratified by all who had a right to control it. The-trustees claimed the property, and articled to sell it to Beckel; Childs concurred in that sale, and swears that he represented the bank intime purchase. His advertisement was an act in his individual capacity, and might have been a good reason for objecting to a confirmation of the sheriff’s sale, on the part of the plaintiff, or any other person that was injured by it. If the sale had been set aside, the property would have remained in the bank; but no objection was made to it; St John affirmed it, and received a deed under it, in pursuance of his purchase as agent and trustee of the bank. Holding the deed as such, he could not controvert their title, but was bound to surrender up the property when called on by the trustees. If so, the property was bound by the judgment, and ought to go towards payment of the debts of the bank, and not to St John or his representatives, who never paid a dollar for it. Most of the positions laid down by the court below seem to be in accordance with these principles, but in some of their material features, they are so mingled up with extraneous matter, as to be exceedingly vague and obscure, and to the first of the plaintiff’s propositions, which embodies the merits of his case, the charge of the eourt contains no distinct answer. The plaintiff’s first proposition was, “that the act of frauds and perjuries in Pennsylvania does not prevent a declaration of trust from being made by parol, and there fore if the jury believe the testimony of Childs, that he em'ployed St John to buy the property in for the bank, and gave him the money wherewith he paid for it, the property is the bank’s, and not St John’s.” The part of the charge that relates to this proposition, seems to be the following-: “ It appears from this summary, that Mr Childs declares he had no authority from the board of trustees of the banking company, previous to the sale by the sheriff, to purchase, or employ any one else to purchase, the property in trust for the bank ; that he never told St John that he had such authority, and that the board of trustees never sanctioned the purchase, subsequent to the sale; that he nowhere states he has ever received from the company, or from any other person, any part of the purchase money. It is contended, on behalf of the defendants, that the facts detailed by Mr Childs, being deficient in these essential particulars, are not sufficient to raise a trust in favour of the bank, in the property purchased at the sale by St John.” “You will recollect that the claim of its being in trust, is not made in favour of Mr Childs, but in favour of the bank ; and not considering Mr Childs as trustee, it would appear to me that, under the circumstances just mentioned, connected with the fact that there is no proof that'St John ever confessed .that he bought the property in trust for the bank, the mere circumstance of his having been previously requested to do so, and .of Mr Childs afterwards advancing the money out of hisown pocket to pay for it, whatever equity itmight have raised in favour of Mr Childs, if he had made a claim on his own behalf, subsequently to the sale, can make no difference in' this principle. And as to any interest Mr Childs might have claimed, it would appear to me, that if he gave notice at the sheriff’s sale that the house belonged to him, and not to the bank, and fye thereby deterred others from bidding, his afterwards attempting to purchase would be fraudulent; the subsequent transfer of his claim to the bank would be void, and could not affect the right of the legal owner of the property.” “ But these sentiments and opinions have relation to Mr Childs acting as an individual, and not as an agent of the bank. The case will wear a different aspect, if the facts stated by Mr Childs are established to your entire satisfaction, and you are convinced that he acted altogether as a trustee. It is not enough that he was a trustee, but he must have acted as a trustee, and advanced the money as a trustee, and in that case, it would be considered as the money of the bank, whether regarded in the light of a loan or a gift, and the right of the bank would depend, not on any transfer to them by Mr Childs, but on the resulting trust in their favour.” But was there a resulting trust in their favour, if the facts stated are true ?. This question was a material one to the plaintiff. Instead of answering it expressly in the affirmative, as they ought to have done, the court say the right of the bank depends on the re- suiting trust, and leave the jury to discover whether there was such a resulting trust binding in law, if they believed all the facts stated by Mr Childs. It is very possible the court meant to say there was such a resulting trust, but the plaintiff was entitled to a clear and distinct instruction on the rule of law applicable to his case, and it was error in the court either to omit to give it, or to do it in so imperfect a manner that the jury might be misled, or left uninformed on the law. The plaintiff excepted to the evidence of the proceeding by St John, under the landlord and tenant act, against David Cassel and another, to recover from them the possession of the premises, after he had obtained his sheriff’s deed. I am unable to perceive what connection this proceeding had with the issue in the present case. It could not affect the right of the bank, as cestui que trust, whether St John succeeded in a proceeding against the tenants or not. If he were a trustee, he continued to be so whether he occupied by tenants or by himself. Holding the legal title, he was entitled to the possession against all but the bank, and they were not parties to the proceeding, nor does it appear they had notice of it, or could become parties. If so, it was res inter alios acta, and irrelevant to the case. Judgment reversed, and a venire facias de novo awarded.

Opinion by Mr. Justice Roberts, On July 24, 1970, the Western Pennsylvania National Bank instituted mortgage foreclosure proceedings against Robert Carroll and Dan. Jennings. Shortly thereafter, Western Pennsylvania and the Kroger Company, lessee of the mortgaged premises, entered into a subordination and attornment agreement Avhereby the former agreed to subordinate its prior mortgage to the latter’s lease. On August 13, 1970, Walter Landau, Thomas Landau, Calvin Landau, Sr., and Calvin Landau, Jr., holders of a junior lien upon the mortgaged property by virtue of a recorded judgment note, filed a complaint in equity seeking to set aside the subordination and attornment agreement on the theory that it unlaAvfully prejudiced their rights as junior lienors. The mortgage foreclosure suit and related equity action were consolidated for trial in the Court of Common Pleas of Allegheny County, and Western Pennsylvania moved for summary judgment in each case pursuant to Pa. R. C. P. 1035. The motion was granted by the court en banc, and this consolidated appeal followed. For reasons AAdiich follow, we affirm the summary judgments of the court en banc. The pleadings establish the following facts: On July 18, 1966, the Bally Castle Corporation conveyed certain property in Ross Township, Allegheny County, to appellants Carroll and Jennings, Avho planned to erect and maintain a building containing a supermarket and offices. The deed was executed by Jennings in his capacity as corporate secretary of Bally Castle. On July 19, Carroll and Jennings mortgaged the same property to appellee Western Pennsylvania National Bank to secure a $540,000 loan. At the same time, one Robert Jarvis subordinated his prior mortgage upon a portion of the premises to the Western Pennsylvania mortgage. Both the Western Pennsylvania mortgage and the Jarvis subordination were duly recorded on July 20, 1966. On August 5 and 9, 1966, Bally Castle leased the major portion of the property in question to the Kroger Company. These leases were also signed by Jennings as secretary of Bally Castle, and each contained a provision that the lessor would deliver to the lessee appropriate agreements subordinating to the lease any mortgage on the demised premises recorded prior to the leases. The Kroger leases were recorded on August 11,1966, and August 16, 1966, respectively, and Kroger has at all times since been tenant in possession of the supermarket. On November 22,1967, more than one year after the execution of the Kroger leases, Jennings, Carroll, CarrolFs wife, the Eyrecourt Corporation and Bally Castle executed a judgment note to the Landau Brothers Building Company in the face amount of $194,789.85. Landau Brothers Building Company subsequently assigned the note to appellants Walter Landau, Thomas Landau, Calvin Landau, Sr., and Calvin Landau, Jr., as cotenants trading and doing business as the Whitehall Terrace Company. The judgment note as so. assigned was recorded on December 11,1967. Carroll and Jennings defaulted under 'the terms of the Western Pennsylvania mortgage in 1967, and the instant controversy was thus precipitated. To summarize, the relevant documents appear of record in the following chronology: Date Document Recorded Deed—Bally Castle Corp. to Carroll and Jennings July 20, 1966 Mortgage-—Carroll and Jennings to Western Pennsylvania National Bank July 20, 1966 Subordination—Jarvis mortgage to Western Pennsylvania National Bank mortgage July 20, 1966 Lease—Bally Castle Corp. to Kroger August 11, 1966 Lease—Bally Castle Corp. to Kroger August 16, 1966 Judgment Note—Carroll and Jennings to Landau Brothers Building Company December 6, 1967 Assignment of Judgment Note— Landau Brothers Building Company to the Landaus, t/b/d/a Whitehall Terrace Company December 11, 1967 Mortgage Foreclosure Action— Western Pennsylvania National Bank vs. Carroll and Jennings July 24, 1970 Subordination—Western Pennsylvania National Bank to Kroger lease August 4, 1970 Equity Action—Landaus vs. Western Pennsylvania National Bank and Kroger August 13, 1970 Its mortgage being first in time, Western Pennsylvania was not legally bound by the provision in the Kroger lease that any prior mortgages be subordinated to the lease. Had it so elected, Western Pennsylvania could have abrogated the lease by foreclosure on the mortgage, and the property would have been sold at sheriff’s sale unencumbered by the lease. Fogarty v. Mount Carmel Transit Co., 367 Pa. 447, 451, 80 A. 2d 727, 729 (1951); see also Trickett, The Law of Landlord and Tenant in Pennsylvania §470 (Stern ed. 1969) ; 5 Tiffany, Real Property §1422 (3d ed. 1939). Western Pennsylvania chose otherwise, however, and by virtue of its subordination and attornment agreement with Kroger, any sheriff’s sale purchaser would take the property subject to the lease. Harp Building & Loan Association v. Davis, 56 Pa. Superior Ct. 282 (1914). The foregoing legal principles are crucial to the respective positions of the parties in this appeal. The Landaus as junior lienors and Carroll and Jennings as mortgagors contend that the rent presently paid by Kroger under the terms of its existing lease does not reflect the fair market value of the leasehold and that the subordination and attornment agreement thus substantially reduces the value of the property at a sheriff’s sale to the financial detriment of the mortgagors and the holders of junior liens. It is further contended that the subordination was part of a fraud and conspiracy designed to chill bidding at the sheriff’s sale. Western Pennsylvania for its part denies any fraud or conspiracy and asserts that its decision to subordinate its mortgage to the Kroger lease was designed not to reduce the value of the property but, on the contrary, to enhance and protect its own security interest. Although the instant case presents a somewhat novel fact situation and our research has failed to disclose any cases directly in point, we believe that appellants’ claims are clearly devoid of merit. Appeal of Carroll and Jennings In assessing the contentions of the mortgagor-apI)ellants, it is to be noted initially that the subordina tion and attornment agreement was in itself an entirely legal act. As stated in Harp Building & Loan Association v. Davis, 56 Pa. Superior Ct. 282 (1914) : “The authority to release part of mortgaged premises from the lien of the mortgage is recognized by statute, and the release of premises or part of premises from the lien of a judgment is a common practice. No conceivable principle of public policy forbids the extension of this right to a leasehold term in the property. As Chief Justice Gibson said, in Berger v. Hiester, 6 Wharton, 210: ‘It is a maxim that anyone may renounce the benefit of a privilege provided for himself.’ ” Id. at 285. There are of course certain well defined duties owing from a mortgagee to his mortgagor. A mortgagee in possession must account for rents and profits, Winthrop v. Arthur W. Binns, Inc., 160 Pa. Superior Ct. 214, 50 A. 2d 71.8 (1947), must maintain the mortgaged premises in good condition to prevent its deterioration, Sansotta v. City of Pittsburgh, 330 Pa. 199, 199 Atl. 164 (1938), and is liable for waste, Elliott v. Moffett, 365 Pa. 247, 74 A. 2d 164 (1950). However, none of these duties or any analogous duty was breached by Western Pennsylvania’s subordination of its mortgage to the Kroger lease. As set out above, the lease agreement with Kroger was executed by the Bally Castle Corporation as lessor, and the record does not reveal whether or not Bally Castle and Carroll and Jennings are legally synonymous. It is certain, however, that Jennings personally signed the lease as secretary of Bally Castle, and Kroger has been at all relevant times tenant in possession. Furthermore, in their answer to Western Pennsylvania’s mortgage foreclosure complaint, Carroll and Jennings virtually admitted their status as Kroger’s landlord, alleging: “10. Western Pennsylvania Nation al Bank has sequestered the rents payable from tenants occupying the building on the property subject to mortgage foreclosure since May 1, 1970, and Defendants demand an accounting of all payments and the application of said payments that have occurred since that time and demand that any rental payments should constitute a reduction of the mortgage balance or interest thereon.” These facts taken together clearly demonstrate that Carroll and Jennings (a) are Kroger’s actual landlord or (b) have at least ratified the lease by knowingly recognizing Kroger’s tenancy on the mortgaged premises. That being the case, we agree with the court en banc that Carroll and Jennings certainly cannot be heard to complain about Western Pennsylvania’s voluntary subordination to a lease which they themselves either negotiated or ratified and to which they themselves were legally bound. While a mortgagee in possession might in certain circumstances be under a duty not to let a readily marketable leasehold lie dormant and financially unproductive, cf. Artisans Order v. Superb Realty Co., 353 Pa. 256, 258-59, 44 A. 2d 584, 585 (1945), we perceive no reason why a mortgagee should not be altogether free to fulfill, albeit voluntarily, his mortgagor’s legal duty to an existing lessee. We likewise agree with the court en banc that Carroll and Jennings have not sufficiently pleaded an unlawful conspiracy between Western Pennsylvania and Kroger. A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose. Fife v. Great Atlantic and Pacific Tea Co., 356 Pa. 265, 52 A. 2d 24 (1947) ; Bausbach v. Reiff, 244 Pa. 559, 91 Atl. 224 (1914). As noted above, Western Pennsylvania’s subordination and attornment agreement was in itself a completely lawful act. Hence, con spiracy in the present case could be predicated only upon an unlawful means or purpose. However, the only allegation of conspiracy appears in the very last paragraph of Carroll’s and Jennings’ answer to the mortgage foreclosure complaint and reads as follows: “18. Plaintiff has conspired with the Kroger Co. to limit the value of the subject property at foreclosure and by doing so has adversely affected Defendant’s rights.” Pa. B. C. P. 1019(a) directs that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” The purpose of the rule is to require the pleader to disclose the “material facts” sufficient to enable the adverse party to prepare his case. Smith v. Allegheny County, 397 Pa. 404, 155 A. 2d 615 (1959); 2A Anderson, Pennsylvania Civil Practice §1019.1 (1969); 3 Standard Pennsylvania Practice §31 (1952) ; cf. Roberts v. Peoples Cab Co., 7 Pa. D. & C. 2d 632 (1955). In the instant case, the single, vague and conclusory allegation that the mortgagee and lessee have “conspired” to the detriment of the mortgagors falls far short of the requisite pleadings of “'the material facts.” Summary judgment was entered in Western Pennsylvania’s favor in the mortgage foreclosure action in the amount of $567,000 plus interest from March 1, 1970. This sum represents the $540,000 face amount of the mortgage together with $27,000 for attorney’s commissions at the rate of 5%. Carroll and Jennings never admitted this amount of indebtedness in their pleadings, and they presently contend that summary judgment was improper inasmuch as there existed a genuine issue as to damages. This argument is groundless. It is admitted that the mortgage is in default, that the mortgagors have failed to pay interest on the obligation since March 1, 1967, and that the recorded mortgage is in the amount of $540,000. In these circumstances, the amount of the summary judgment was entirely proper. Carroll and Jennings did interpose a counterclaim for $779,483.42 plus interest. This counterclaim, however, was based solely upon the alleged illegality of the Western Pennsylvania subordination agreement, and, as we have already concluded, this agreement was not actionable. Nor does Western Pennsylvania’s admitted sequestration of Kroger’s rent from May 1, 1970, raise any genuine issue as to the amount of damages to be awarded in the mortgage foreclosure action. The debt owed on the mortgage changed and can be expected to change from day to day, because Western Pennsylvania is mortgagee in possession, collecting rents and paying expenses in that capacity. The mortgagors are unquestionably entitled to an accounting, but that accounting is not due until the property is sold at sheriff’s sale and distribution of the proceeds is made. Judgment in a mortgage foreclosure action must be entered for a sum certain or no execution could ever issue on it. Appeal of the Landaus The claims of the Landaus respecting the Western Pennsylvania-Kroger subordination and attornment agreement are largely similar to those made by the mortgagors and may be easily dismissed, for much of our previous discussion is equally applicable in the Landaus’ appeal. The Landaus as judgment creditors stood in the shoes of their debtors, Carroll and Jennings, and did not acquire any rights in the subject property greater than those possessed by Carroll and Jennings. See Miners Savings Bank v. Thomas, 140 Pa. Superior Ct. 5, 12 A. 2d 810 (1940) (opinion by Keller, P. J.). As Carroll and Jennings do not possess any legally cognizable right to be compensated for the Western Pennsylvania subordination agreement, the Landaus, claiming through Carrol] and Jennings, have no right to vitiate the agreement. Furthermore, the Landaus’ position is devoid of equity. Had there been no mortgage, it is clear that the Landaus’ judgment lien would have been subordinate to the Kroger lease. In effect, they are now asking a court of equity to require the paramount lienor (Western Pennsylvania) to forego its own business judgment and exercise its right to abrogate the Kroger lease, thereby altering the priorities which would otherwise exist and elevating their junior judgment lien above the lease. Neither the court below nor this Court has been furnished with any reason why they deserve such a windfall. The Landaus’ lien priority was not adversely affected by the subordination and attornment agreement, and the Kroger lease, which should have alerted any junior lienor to the possibility of such a subordination, was recorded more than one year before the execution of the judgment note. The release of a portion of mortgaged premises from the lien of the mortgage is and has been for many years a “common practice” in the financial world. See Harp Building & Loan Association, supra. There is no reason for equity to restrain such a release in the instant case. Tn a manner similar to that attempted by appellants Carrol] and Jennings, the Landaus seek to cast a pall of suspicion over the otherwise innocent and lawful subordination and attornment agreement by alleging that the agreement was part of a conspiracy and fraud. Tn paragraph 22 of their complaint in equity, they allege that Western Pennsylvania and Kroger, “acting in concert together, contrived, connived and conspired unjustifiably” to reduce the value of their judgment lien and to interfere as well with the rights of other creditors, and paragraph 25 of the complaint reads as follows: “That the action by and between both Defendants in the execution and filing of the subordination and attornment agreement on August 4, 1970 amounts, Plaintiffs believe and therefore aver, to a fraud upon Plaintiffs and all other lien creditors upon the premises.” The allegation of the conspiracy suffers from the same defect as the conspiracy allegation of appellants Carroll and Jennings in that it fails to recite the material facts upon which the conspiracy claim is based, see Pa. R. C. P. 1019(a), and the conclusory allegation of fraud is insufficient a fortiori, for Pa. R. C. P. 1019(b) additionally provides that “[ajverments of fraud or mistake shall be averred with particularity.” See Bata v. Central-Penn National Bank, 423 Pa. 373, 224 A. 2d 174 (1966); Anderson, supra, §1019.18. Accordingly, the court en banc did not err in granting summary judgment in the face of such bald and unsupported allegations of conspiracy and fraud. The decree of the Court of Common Pleas of Allegheny County granting summary judgments is affirmed. Each parly to pay own costs. See paragraphs 7 and 8 of the Complaint in Mortgage Foreclosure and paragraphs 11 and 18 of the Answer, New Matter, and Cotmterelaim.

BECK, Judge: This appeal from a motion granting summary judgment to the insurer appellee presents an issue of statutory construction involving the time span over which an insurer will be liable for “replacement services” payments provided under Section 202(c) of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.202(c). Again, this court is asked to interpret ambiguous language in the No-Fault Act. “Replacement services loss” is defined as “expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of himself or his family if he had not been injured.” 40 P.S. § 1009.103. Section 202(c) provides that “[replacement services loss ... shall be provided up to a daily maximum of twenty-five dollars ($25) for an aggregate period of one year.” The appellant insured, Christine T. Habacker, contends that she suffered serious injury in an automobile accident. As a result of her injury, she was unable to perform her usual housework. She hired a housekeeper initially on a daily basis and then for one or two days each week. The insurer reimbursed her for housekeeping expenses incurred during the twelve months after her accident. However, her injuries were long lasting. Even after a year from the date of the accident, she continued to need replacement services. The insurer, however, refused her requests for further reimbursements. The trial court granted summary judgment to the insurer finding that the statute required replacement services payments for only one calendar year from the date of the accident. The appellant contends that under the No-Fault Act, she is entitled to reimbursement for three hundred sixty-five days of such services, even when these replacement services days occur more than a year after her injuries. We agree with the appellant and accordingly reverse. This case requires this Court to construe for the first time the meaning of the phrase “daily maximum of twenty-five dollars ($25) for an aggregate period of one year.” (emphasis added). If the word “aggregate” was not included in the statutory language, it would be clear that reimbursement would be limited to a single one year stretch of time. However, the inclusion of the word “aggregate” raises an ambiguity as to what the phrase means and what the Legislature intended. Under the Statutory Construction Act of 1972, we are required to construe statutory words and phrases “according to rules of grammar and according to their common or approved usage.” 1 Pa.C.S.A. § 1903; Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). The term “aggregate,” used as an adjective, means “formed by a collection of units or particles into a body, mass, or amount...” Webster’s Third New International Dictionary, 41. See Estate of J. Henry Miller, Deceased, 110 Pa.Super. 384, 386; 168 A. 807 (1933). This word, therefore, can only modify a noun denoting something made up of two or more parts. In this statute, “aggregate” modifies “period,” which is also modified by the prepositional phrase “of one year.” Appellee contends that the phrase “period of one year” means a single, continuous stretch of time of 365 days’ duration. This contention on its face is foreclosed by the Legislature’s use of the term “aggregate,” which requires the relevant period to be a collection of two or more specific quantities of time. If the phrase “period of one year” is interpreted to mean such a single continuous stretch of time, the word “aggregate” would have no diseemable meaning. Appellee in effect asks the Court to interpret the words “aggregate period of one year” to read simply “period of one year.” If the legislators had meant that insureds should be eligible for replacement services for a single one year stretch of time, they could have simply stated that the insured would be eligible for replacement services for a period of one year. Appellee implicitly recognizes this weakness in his argument when he contends that the word “aggregate” as used here serves solely to “emphasize that payments are payable only to the extent they are incurred within one year.” (Appellee’s Brief, p. 8.) Such an interpretation of “aggregate” is inconsistent with accepted definitions of that word. In the alternative, appellee argues that the Court should construe the statutory language so that the word “aggregate” modifies the phrase “[Replacement services loss” instead of the phrase “period of one year.” Since the word “aggregate,” as positioned in Section 202(c), clearly does not modify “[Replacement services loss,” we must reject that suggestion. Thus, appellee’s suggestions either do violence to the plain meaning of the adjective “aggregate,” or to the simple grammatical positioning of the word “aggregate” in the statutory phrase at issue. Other portions of the Statutory Construction Act also support our view that the statute should be read, as appellants suggest, to mean that replacement services benefits should be available to her for an aggregate period of 365 days. First, where a statute is unclear, as here, we are bound to consider legislative purpose. 1 Pa.C.S.A. §§ 1921(a), 1921(b); Commonwealth v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1980). One of the stated purposes of the No-Fault Act was to achieve the “maximum feasible restoration of all individuals injured in motor vehicle accidents on Commonwealth highways....,” and to provide a “low-cost, comprehensive, and fair system of compensating and restoring motor vehicle accident victims ... so that every victim has the opportunity to: (A) receive prompt and comprehensive professional treatment;, and (B) be rehabilitated to the point where he can return as a useful member of society and a self-respecting and self-supporting citizen.” 40 P.S. §§ 1009.102(a)(3), 1009.102(a)(9). Appellee does not suggest, nor does the record support the conclusion that it would not be feasible for it to provide replacement services at the statutory daily level for an aggregate period of 365 days. Indeed, we note that the New Jersey no fault statute, the Automobile Reparation Reform Act of 1972, provides a daily maximum of $12.00 for such expenses payable “during the life of the injured person,” subject to a total limit of $4,380.00 for any one person for any one accident. N.J.S.A. 39:6A-4(c). In addition, in construing this particular provision of the No-Fault Act, we are also guided by the principle of statutory construction that presumes that the Legislature did not intend a result that is “absurd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1). Under the interpretation urged by appellee, the replacement services provision would discriminate against victims like appellant, who needed replacement services for a few days a week, for a period longer than one year from the date of her injuries. Appel lant would, under this proposed reading, be entitled to only a small portion of the maximum allowable for replacement services loss. In contrast, a hypothetical victim whose recovery period was a year or less might recover all replacement services loss, even though the dollar amount was much greater than the appellant herein was entitled to collect. Because this hypothetical victim suffered all her replacement services loss within a year of the accident, she would be entitled to more benefits than the appellant herein, who over several years might require the same amount of replacement services. Such a disparity in treatment between victims who have suffered the same loss is clearly unreasonable. Furthermore, the construction favored by appellee is also unreasonable in that it departs in at least three ways from the statutory scheme of the Act. (a) Under the No-Fault Act, “replacement services loss,” with “allowable expenses,” “work loss,” and “survivor’s losses,” constitute basic loss benefits. 40 P.S. § 1009.202. Limitations for aspects of basis loss coverage are defined in Section 202. For “allowable expenses” (disposition of remains), “work loss,” and “survivor’s losses,” the legislative pattern defined limits in terms of dollar máximums, i.e. not more than $1500 for allowable expenses, not more than $15,000 for work loss, not more than $5,000 for survivor’s loss. There is no indication that the Legislature intended to break this established pattern based on dollar máximums when it came to replacement services. We therefore resolve the inherent ambiguity in the language of Section 202(c) in favor of maintaining the pattern of basic loss benefits. (b) If the Legislature had intended to impose the kind of temporal limitation that appellee advocates with regard to recovery for replacement services loss, it would have specified the precise time period relevant for the purposes of replacement services loss. In fact, the statute is silent on when such a time period should begin. If this Court accepted the view that the phrase at issue referred to a single stretch of time encompassing one calendar year, we would next have to decide when the calendar year period begins to run against the victim. For the words of the statute do not specify whether the calendar year period begins at the time when the injury occurs, at the time when the victim incurs his or her first replacement services loss, or at the time when the first replacement services expense claim is submitted to the insurer. This statutory silence on the time when the benefit year would begin to run becomes explicable, however, if one concludes that the Legislature intended to provide replacement services not for a particular duration of time with a specific beginning and end but for an aggregate of 365 days when these services were reasonably and actually incurred. (c) Appellee’s interpretation of the provision is not congruent with the comparable provisions concerning survivor’s loss benefits. “Replacement services loss” refers by definition to “expenses reasonably . . . incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of himself or his family, if he had not been injured.” These expenses, subject to a maximum daily amount and the temporal limitations at issue here, must be incurred during the lifetime of the victim. If the victim dies, either at the time of the accident, or subsequently, from injuries incurred in the accident, survivor’s loss benefits, subject to a stated dollar maximum, permit recovery inter alia for “expenses reasonably incurred by a survivor or survivors in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit....” This aspect of “survivor’s loss” is indistinguishable from the definition of “replacement services loss” except that it applies to the services a victim would have performed for the survivor or survivors but for his or her death. Brandon v. Erie Insurance Exchange, 264 Pa.Super. 258, 260, 399 A.2d 765, 766 (1978). If appellee is correct, benefits traceable to the same basic replacement services expenses would be subject to a temporal maximum if the victim lives, and a dollar maximum if the victim dies. Thus, a person who was unemployed or retired, or a non-wage earner, with the kind of injury suffered in this case, would be entitled to less for replacement services loss during her lifetime, than some survivors could conceivably have received if the victim had died of her injuries. It is hardly reasonable to suppose that the Legislature would have intended such an incongruous result. In addition, the Statutory Construction Act disfavors surplusage. This Act requires that “[ejvery statute shall be construed, if possible, to give effect to all its provisions,” 1 Pa.C.S.A. § 1921(a), and permits the presumption that the Legislature “intends the entire statute to be effective and certain,” 1 Pa.C.S.A. § 1922(2). The Legislature is presumed to have intended to avoid mere surplusage in the words, sentences and provisions of its laws. Courts must therefore construe a statute, if possible, so as to give effect to every word. Commonwealth v. Driscoll, 485 Pa. 95, 401 A.2d 312 (1979); Masland v. Bachman, 473 Pa. 280, 291, 374 A.2d 517, 522 (1977); Daly v. Hemphill, 411 Pa. 263, 273, 191 A.2d 835, 842 (1963); Pa. Ind. for Blind and Handicapped v. Larson, 50 Pa.Cmwlth. 95, 411 A.2d 1305 (1980). The Legislature chose the word “aggregate” to modify “period” in the phrase “aggregate period of one year.” It is apparent that the use of this adjective is perfectly compatible with one common interpretation of the word “year,” a quantity of time amounting to 365 days. In contrast, to interpret the word “year” to mean a single span of time, as in “a calendar year,” is to render the word “aggregate” meaningless. If “period of one year” means “a calendar year,” what does the term “aggregate” add to the statutory sentence? In appellee’s interpretation, replacement services benefits would be available to the insured for one calendar year after an accident. The word “aggregate” would consequently be surplusage. We also reject appellee’s argument that the “Definitions” section of the Statutory Construction Act, 1 Pa.C. S.A. § 1991, is dispositive of this case. Section 1991 defines the word “year” as “a calendar year.” However, definitions under this section are applicable only when the context does not “clearly indicate otherwise.” 1 Pa.C.S.A. § 1991; Fox Chapel Area School District v. Dunlap, 53 Pa.Cmwlth. 479, 417 A.2d 1329 (1980) (Statutory Construction Act definitions notwithstanding, the words “two years” in the statutory phrase “for two half school terms during a period of two years” held not to mean two calendar years). A review of the problems raised by substituting “calendar year” for “year” demonstrates that the instant case presents a “context [which] clearly indicates otherwise,” and where, consequently, this part of the Statutory Construction Act should not control. The term “calendar year,” unlike the term “year,” unambiguously denotes a continuous 365 days stretch of time. “A calendar year” is not an aggregate, but a single span of time beginning on a specific date and ending 365 days later. The phrase “calendar year,” substituted for the term “year” can not be harmonized with the term “aggregate.” But the term “aggregate,” when used to modify the phrase “period of one year” is intelligible where “year” denotes an amount of time adding up to 365 days. To interpret “year” as “calendar year” is to render the term “aggregate” superfluous. In addition, the substitution of the term “calendar year” for “year” exacerbates problems encountered in reconciling the Legislature’s use of the term “year” with the term “aggregate.” The term “calendar year” has generally been interpreted to mean the period from January 1 to December 31- of a specific year. Fox Chapel Area School District, supra. Cf. Finch v. Fitzpatrick, Fla., 254 So.2d 203 (1971); Hawksley v. New Hampshire Interscholastic Athletic Association, 111 N.H. 386, 285 A.2d 797 (1971). See, Annot. 5 A.L.R.3d 384 (1966). In the context of this provision, this construction would clearly be an absurdity. Persons injured in January of any year would, under such an interpretation, be eligible for replacement services for a longer time than persons injured in later months of the same year. Appellee argues that the insured is eligible for replacement service benefits for one calendar year from the date of the injury. This argument would carry more weight if the statute clearly indicated when the replacement services benefits term began to run. Admittedly, some courts have construed the term “calendar year” to mean a period of time following a specific event or date. Annot. 5 A.L.R.3d 384, 392, 393 (1966). However, we must reject that argument here, where the statutory language refers to an “aggregate period of one year” and where the statute does not specify when the relevant one year period is to begin. And once again, the definition of “year” as “a calendar year” running from the date of the injury is inconsistent with the statutory scheme for dollar benefit limitations for other basic losses. It would also have the undesirable effect in some instances of allowing a survivor to collect a larger sum of money attributable to the loss of replacement services than a victim could have recovered if he or she had lived. See, supra. We decline to accept appellee’s interpretation which violates both long established rules of statutory interpretation, and the stated purposes of the No-Fault Aet. This Act clearly sought to provide reasonable replacement services benefits to compensate for the loss of those ordinary and necessary services that a victim, but for his injuries, would have performed for the benefit of himself or his family. A statute aimed at the “maximum feasible restoration of all individuals injured” should not be read substantially to deprive those individuals unfortunate enough to suffer long term injuries on our highways of needed replacement services benefits. Accordingly, we reverse and remand for further proceedings consistent with this opinion. . At the time of the accident, appellants were insured under Nationwide Century II Auto Policy, No. 58B368 884. Endorsement 1232 of that policy, entitled “Pennsylvania Basic Personal Injury Protection (no-fault motor vehicle insurance),” stated that the policy provided “Basic Personal Injury Protection in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act.” The replacement services provision of this endorsement reads: “We will pay reasonable expenses incurred for hiring ordinary and necessary services an insured would have performed—but not for income—for himself and his family had he not been injured. Such expenses must be incurred during the insured’s life-time. In connection with any one accident, we will pay this benefit up to a maximum of $25 per day for a maximum of one year.” The parties impliedly agree that this endorsement assures the minimum replacement services coverage required by the No-Fault Act. . This is also the position taken by the trial court, which relied on Easton v. Aetna Life and Cas. Ins. Co., 31 Cumberland L.J. 96, 98 (1980). . In addition, we note that where construction of insurance provisions is involved, there is a longstanding policy in this state to construe them liberally in favor of the insured in close or doubtful cases. Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 186-188, 401 A.2d 1160, 1162-63 (1979), aff’m, Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629, 633 (1980); 1 Pa.C.S.A. § 1928. . Section 202(e) states that “... replacement services loss may include provisions to provide: ... (2) with respect to work loss or replacement services only, a waiting period not to exceed one week.” 40 P.S. § 1009.202(e). Here, as in Section 202(c), there is no specific indication of when the waiting period might begin to run. . This legislative silence is to be contrasted with the explicit language contained in an analogous provision of the New York No-Fault Act, 1973: “Basic economic loss means ... all other reasonable and necessary expenses incurred, up to twenty-five dollars per day for not more than one year from the date of the accident causing the injury.” McKinney’s Insurance Law § 671(l)(c). . 31 Pa.Code 66.102 contains a model Basic Personal Injury Protection Endorsement. In this policy, “replacement services loss” is defined as “expenses reasonably incurred during the eligible person’s lifetime in obtaining ordinary and necessary services replacing those he would have performed without pay or profit, for the benefit of himself and his family.” (emphasis added). We do not take this language to be dispositive for the interpretation of the statutory phrase at issue here, but note that nothing in this model policy is inconsistent with our interpretation. . Webster’s Third International Dictionary gives as one definition of one year: “the time required for the apparent sun to return to an arbitrary fixed or moving reference point in the sky...” 2648.

Opinion ry Mr. Justice Horace Stern, On November 1, 1943, Naomi Irene Siidekum was killed when an automobile in which she was a passenger and which was being driven by Harvey E. Domhoff came into collision with a truck belonging to the Animal Rescue League of Pittsburgh and operated by James V. Jackson, a policeman of the City of Pittsburgh. Suit was brought against the City, the League and Jackson by Fred H. Siidekum, as administrator c. t. a., on behalf of decedent’s estate and of those- entitled to recover for her wrongful death; the League brought in Domhoff as additional defendant. The trial resulted in a verdict against-the three defendants in the sum of $955 for the estate and $25,000, subsequently reduced by the court to $12,000, for the husband, he being the person entitled to the recovery under the “death” acts ; a verdict was also returned in favor of the additional defendant. The court upheld the verdicts against the City and against Jackson but granted judgment n. o. v. in favor of the Animal Rescue League; - That the accident was due solely to the negligence of Jackson is now admitted by all parties-; the- question is whether, in operating the truck'at the time-of the acci-dent, he was acting as-an-employe of'the City, of the League, or of both. A further controversy arises from the fact that the League successfully claimed immunity from liability on the ground of its being á charitable organization. There is also a complaint by defendants as to the alleged excessiveness of -the verdict recovered on behalf of decedent’s husband: ■ By the Dog Law of 1921, P. L. 522, §19 (amended by the Act of 1935, P. L. 219) it was made the duty of every municipal police officer to seize and detain any ■ dog found running at large and unaccompanied by its owner or keeper. The seizure of stray dogs, as a function of the government of -the City of Pittsburgh, is under the charge of the Director of the Department of Public Safety. The Animal Rescue League is ah organization formed for the purpose of sheltering neglected dogs, cats and horses, restoring them to their owners or otherwise providing for them, and preventing them from being cruelly treated. In order to carry out its operations it owns appropriate equipment, including trucks with specially built bodies containing individual cages; it also conducts a farm on which it maintains hoarding kennels, and it employs the services of veterinaries to administer to diseased and injured animals. Because of the common objective of the City and the League in the seizure and proper disposition of stray dogs, and because of the facilities possessed by the League for that purpose, the City has, over a long course of years, entered annually into contracts with the League whereby, for the sum (in the 1943 contract) of $1,000 per month, the League assumed the duty, “under the supervision of the Director of the Department of Public Safety, to have the City streets properly patrolled; to arrest dogs found running at large in accordance with the Dog Law of the State of Pennsylvania, and to maintain necessary property and equipment as hereinafter specified.” The league agreed to maintain a detention station with kennels, to operate a fleet of four or more trucks, and to “furnish with each a driver, who shall be an official dog catcher and canvasser”. It was provided that “The Poliee Officers assigned to the Contractor shall assist and cooperate with him [sic] in all phases of the work; shall assist the drivers and canvassers in the work of catching, collecting and impounding dogs, and shall drive the trucks when the drivers are engaged in other duties.” Under these contracts it was customary for the City to assign four police officers for full-time service with the League. Jackson was among those so assigned; there was testimony to the effect that the League opposed his selection on the ground that he was addicted to drink. Due to the scarcity of labor in 1943 the League was without sufficient employes of its own to operate its trucks and Jackson drove more or less constantly during that year. On the day of the accident there was only one qualified driver on hand, so that three of the four policemen assigned by the City were engaged in operating the trucks. An emergency call came in to pick up a stray dog that had been injured; Jackson drove the truck that went out on this errand, being accompanied by a young lad who was an employe of the League but not a licensed driver; it was on the way back, with the dog in the truck, that the accident happened. Was Jackson, in driving, acting as the employe of the City of Pittsburgh, of the Animal Rescue League, or of both? The learned trial judge left it to the jury to determine this question, and they found that both were liable. As to what constitutes the relationship of employer and employe, and as to the status of a “loaned” employe, the law leaves little room for doubt. By a continuous stream of authorities it has been declared that where one person lends his servant to another for a special employment the test is whether, in the particular service which he is .engaged to perform, he continues liable to the direction and control of his general master or becomes subject to that of the party to whom he is lent or hired; the criterion'is hot whether the borrowing employer in fact exercises control but whether he has the right to exercise it. It is also well’recognized that under some circumstances' both the lender and the borrower may have control over the servant so as to render each of - them liable 'for his conduct, for he may have been transferred to carry oh work which is of mutual interest to them and- to -efféct their common, purpose, so that his service to the one does not involve abandonment of his service to the other. It is further established that, when different inferences can reasonably be drawn from the testimony as to whether the lender or the borrower is the controlling master at the time of the accident, or whether both of them have the right of control, the question is one for the jury. In the present case the jury, found, from what we regard as amply sufficient evidence, that when Jackson was driving the truck at the time of the accident he was acting on behalf of both the City of Pittsburgh and the Animal Rescue League, and that therefore, as far as this phase of the litigation is concerned, both these defendants were liable for the death, caused by his,negligence. The seizure and detention of stray dogs was the objective of both the City and the League, the one in pursuance of its statutory duty, , the other of "its chartered purpose. It was essentially a common enterprise; by tbe terms of tbe contract the police officers assigned by the City were to assist and cooperate with the League “in all phases of the work”; they were to drive the trucks when the drivers were engaged in other duties. The City did not “lend” Jackson for the performance of work which whs of interest only to the League as a “borrowihg” employer and in which the City itself had no concern. Jackson was not chosen, selected, or requested by the League; on the contrary, it had opposed his assignment. As ¿ police officer, whether engaged in driving the truck or otherwise, he remained on the payroll, in the service, and under the control, of the City as his employer; driving the truck was merely incidental and necessary to the work of capturing stray dogs which was his statutory duty and the ultimate object for which he was assigned to the work. If the City did not in fact- attempt to exercise control over his actions it had the power to do so, and it is the power of control which is the determining factor. On the other hand, in driving the truck he was engaged also in the service of the League; he was operating one of its trucks on its own business and was under the immediate direction of its superintendent. The verdict of the jury, therefore, was consistent with, and sustained by, the circumstances of the case, and even if the question were to be regarded as one of law depending solely upon the construction Of the contract between the parties the same conclusion would necessarily follow. This brings us to the inquiry whether the court was right in exempting the Animal Eescue League from liability because of its being a charitable- organization. Whétlier a purely public charity should be held legally responsible for the negligence of its servants is a question that has given rise to an astounding diversity of opinion. Justice Etjtledge, then of the United States Court of Appeals for the District of Columbia, now a Justice of the Supreme Court of the United States, said in President and Directors of Georgetown College v. Hughes, 130 F. 2d 810, 812: “Paradoxes of principle, fictional assumptions of fact and consequence, and confused results characterize judicial disposition of these claims. From full immunity, through varied but inconsistent qualifications to general responsibility, is the gamut of decision. The cases are almost riotous with dissent. Reasons are even more varied than results.” However, as far as Pennsylvania is concerned, the law on this subject is perfectly clear, for it was definitely held in Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553, that the rule of respondeat superior does not apply in the case of injuries occasioned by the negligence of the agents or servants of a charitable organization; indeed it was there said (pp. 647, 648, A. p. 557): “This doctrine [that a public charity is bound to apply its funds in furtherance of the charity and not otherwise] is hoary with antiquity and prevails alike in this country and in England where it originated as early as the reign of Edward Y, and it was announced in the Year Book of that period.” In Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087, a similar ruling was made in the case of a suit against a hospital by a patient who had been injured by the negligence of a nurse, the Court saying (p. 258, A. p. 1088) : “It is a doctrine too well established to be shaken, and as unequivocally declared in our own state as in any other, that a public charity cannot be made liable for the tort of its servants.” It was there held that the fact that the hospital received pay from some of its patients did not detract from its character as a purely charitable institution, and that it was immaterial that the plaintiff herself had been treated as a pay patient. Neither has any distinction been made in our courts, as it has been in some other jurisdictions, between cases where the injured person was a beneficiary or an employe of the charity and those where, as in the Boyd case, he was a total stranger to its activities. Plaintiff apparently admits, as he must, that the Animal Rescue League, as a non-profit organization em gaged in the humane undertaking of caring for animals, all of its capital funds and income being used for that purpose, is a purely public charity. Its status as such has been established by judicial decision (Ammon’s Estate, 72 P. L. J. 872) and by rulings of governmental agencies. Plaintiff contends, however, that, because it entered into a contract under which it is being compensated by the City in an amount constituting more than one half of its total income, and because the accident occurred in the course of operations under that contract, it was, pro hac vice, engaged in a commercial and not a charitable enterprise. The fact that a charitable organization charges for some of the work performed by it for persons able to pay does not militate against its status as a charity; many charities derive income from compensation for their services. Of course, if, as in Winnemore v. Philadelphia, 18 Pa. Superior Ct. 625, a charitable institution conducts a business enterprise not directly related to the purpose for which the charity was organized, any negligence on the part of its servants or agents in the operation of that enterprise imposes liability upon the charity. Here, however, the services rendered by the League were the same as those for which it was chartered, and the compensation it received from the City was in no different legal category than the contributions and donations it obtained either from persons directly benefited by its activities or from strangers. Nor is its immunity from liability destroyed or impaired because, as was intimated in the testimony, it carried liability insurance: Kesman v. Fallowfield School District, 345 Pa. 457, 29 A. 2d 17. Complaint is made by the City of Pittsburgh in regard to the amount of the verdicts, but we cannot say that, as reduced by the court, they are excessive (see Filer v. Filer, 301 Pa. 461, 465, 466, 152 A. 567, 568), representing, as they do, a recovery both on behalf of decedent’s estate and on behalf of those entitled to damages because of the wrongful death. The decedent was 30 years of age, in excellent health and, at the time of her death, was earning in outside employment at the rate of $1140 per year; she is described as having been a good wife and a good housekeeper, and she lived in harmonious relations with her husband who is a young engineer graduated from the Carnegie Institute of Technology. However, the manner in which the jury apportioned the total amount between plaintiff acting on behalf of decedent’s estate and plaintiff acting on behalf of those entitled to recover damages for the wrongful death — $955 for the estate and $25,000, reduced to $12,-000, for the decedent’s husband — was clearly erroneous and undoubtedly resulted from the curious fact that the court, without objection on the part of counsel, instructed the jury that the wife’s earnings during the period she would have lived but for the accident constituted an item recoverable on behalf of her husband. It would seem scarcely necessary to say that since the Married Women’s Property Acts the law does not regard married women as slave laborers even for their husbands. The administrator suing on behalf of decedent’s estate was entitled to recover the economic value of her life as measured by the present worth of her likely earnings during the period of life expectancy: Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A. 2d 659. For the husband, on the other hand, recovery was limited to the loss of her services and society as a wife, less the “probable cost of her maintenance which he would have been compelled to pay, as well as other incidental items that he would probably have given her”: Gaydos v. Domabyl, 301 Pa. 523, 533, 534, 152 A. 549, 553. Had these respective measures of recovery been properly observed it is obvious that the verdict on behalf of decedent’s estate would have been substantially greater and that on behalf of the husband correspondingly less. However, we are informed that decedent had no creditors and we learn from an inspection of her will that any recovery obtained by her estate in the present action would pass to her husband as residuary legatee. As she left no children, and was survived only by her mother and ;her husband, he is also the sole person entitled to the damages recoverable for her wrongful death (Lehigh Iron Co. v. Rupp, 100 Pa. 95; Lewis v. Hunlock’ Creek & Muhlenburg Turnpike Co., 203 Pa. 511, 53 A. 349). Therefore the apportionment of the total verdicts between the two interests represented by the plaintiff administrator becomes a matter of no practical moment, and for that reason does not, under the facts of the present case, require the granting of a new trial. Judgments affirmed. By §619 of the Vehicle Code of 1929, P. L. 905, amended by the Act of June 29, 1937, P. L. 2329, the City would be liable for damages caused by the negligence of any of its employes while operating a motor vehicle upon a highway in the course of his employment. Jimmo v. Frick, 255 Pa. 353, 356, 357, 99 A. 1005, 1006; Puhlman v. Excelsior Express and Standard Cab Co., 259 Pa. 393, 397, 103 A. 218, 219; Tarr v. Hecla Coal & Coke Co., 265 Pa. 519, 522, 109 A. 224, 225; Eckert v. Merchants Shipbuilding Corporation, 280 Pa. 340, 348-350, 124 A. 477, 480, 481; Sgattone v. Mulholland & Gotwals, Inc., 290 Pa. 341, 346, 138 A. 855, 857; Robson v. Martin, 291 Pa. 426, 430-432, 140 A. 339, 341, 342; Bojarski v. M. F. Howlett, Inc., 291 Pa. 485, 489-491, 140 A. 544, 545, 546; Persing v. Citizens Traction Co., 294 Pa. 230, 235, 236, 144 A. 97, 99; Milwaukee Locomotive Manufacturing Co. v. Point Marion Coal Co., 294 Pa. 238, 245, 144 A. 100, 102; Lang v. Hanlon, 302 Pa. 173, 177, 153 A. 143, 145; 305 Pa. 378, 382-384, 157 A. 788, 789, 790; Rosen v. Diesinger, 306 Pa. 13, 16, 17, 158 A. 561, 562; Gordon v. S. M. Byers Motor Car Co., 309 Pa. 453, 458, 459, 164 A. 334, 335, 336; Rau v. Wilkes-Barre & Eastern R.R. Co., 311 Pa. 510, 516, 517, 167 A. 230, 233; Venezia v. Philadelphia Electric Co., 317 Pa. 557, 559, 177 A. 25, 26; Pennsylvania Co., etc., v. Philadelphia Electric Co., 331 Pa. 125, 129, 130, 200 A. 18, 21; Joseph v. United Workers Association, 343 Pa. 636, 638, 639, 23 A. 2d 470, 472; McGrath v. Edward G. Budd Manufacturing Co., 348 Pa. 619, 622, 623, 36 A. 2d 303, 304, 305; Dunmire v. Fitzgerald, 349 Pa. 511, 516, 37 A. 2d 596, 599; Hoffman v. Montgomery County, 146 Pa. Superior Ct. 399, 402, 22 A. 2d 762, 763. Rest. Agency, §226; Gordon v. S. M. Byers Motor Car Co., 309 Pa. 453, 459, 460, 164 A. 334, 336; Koontz v. Messer, 320 Pa. 487, 492, 181 A. 792, 794; Grasberger v. Liebert & Obert, Inc., 335 Pa. 491, 493, 6 A. 2d 925. Atherholt v. William Stoddart Co., 286 Pa. 278, 280, 133 A. 504, 505; Lang v. Hanlon, 302 Pa. 173, 178, 153 A. 143, 145; Dougherty v. Proctor & Schwartz, Inc., 317 Pa. 363, 176 A. 439; Grasberger v. Liebert & Obert, Inc., 335 Pa. 491, 493, 6 A. 2d 925; Joseph v. United Workers Association, 343 Pa. 636, 639, 23 A. 2d 470, 472, 473; Dunmire v. Fitzgerald, 349 Pa. 511, 516, 37 A. 2d 596, 599.

Opinion by Mb. Justice Williams, This case raises a question of constitutional law that does not seem to have been decided by the courts of this state. The facts are that in 1870 the legislature passed and the governor approved an act entitled “ An act to prevent the issue of unauthorized policies of insurance.” Section first made it unlawful for any person, partnership or association, to issue any policy of insurance against fire without authority to do so expressly conferred by a charter of incorporation given according to law; and declared all policies issued without such authority to be void. The second section made it a misdemeanor to issue a polic3r of insurance against loss by fire without the authority required by the first section. The special verdict rendered in this case finds that the defendant did violate the act of 1870 b3r making and issuing for himself and others a policy against loss b3r fire in the 3rear 1894, without having obtained a charter of incorporation authorizing the making of such insurance. Upon this verdict the learned judge of the court below entered a judgment in favor of the defendant, holding that the act of 1870 was void because in violation of the constitution of the United States and of this state. The commonwealth appeals. A single question is thus presented, viz: Does the act of 1870 violate the constitution of either the United States or this state ? The learned judge held that the 14th amendment to the constitution of the United States was infringed by the act of 1870. This amendment declares that “ no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor deny to any within its jurisdiction the equal protection of the law.” The purpose and effect of this amendment have been discussed and declared by the United States courts in many cases, and' there ought to be no doubt upon the subject at this time. It was aimed at discriminations made or attempted by the laws of any of the states against persons upon whom the laws of the United States conferred the rights and. privileges of citizenship. Such discriminations, whether directed against' persons of a particular 'race or color resident within the state, or against persons resident in other states, are forbidden by the 14th amendment. But the proper exercise of the police power by the several states is not within the intent or the letter of the amendment: Powell v. Pennsylvania, 127 U. S. 678. On the other hand its purpose was declared in the Slaughter House Cases, 16 Wall. 36, to be to protect, “ against the hostile legislation of the states, the privileges and immunities of citizens of the United States as distinguished from the privileges and immunities of citizens of the states.” The act of 1870 strikes at nq'privilege of citizenship of the United States as distinguished from the privileges of citizenship of Pennsylvania. It does -not attempt to draw a line between citizens of this state and "citizens of other states. It is therefore in no sense a violation of the 14th • amendment of the constitution of the United States, and this branch of the discussion may be properly dropped at this point, and our attention confined to the other, viz : ‘ Is the act of 1870 a violation of the 1st section of the bill of rights in the constitution of this state ? That section affirms that “ All men are born equally free and independent, and have certain inherent and inalienable rights, among which are those of ... . acquiring, possessing and protecting property and reputation.” The methods by which this right to acquire property is asserted and exercised are however, and have been since organized government began among men, subject to regulation by law. The power of government thus brought into service is known as the police power. If the act of 1870 is a valid exercise of the police power then no constitutional right is invaded, but the mode in which the right guaranteed by the 1st section of the bill of rights' may be "exercised consistently with the best good of the greatest number is regulated and prescribed. The general character of the police power is well understood, although neither the text books nor decided cases have yet given us an adequate definition of if. Little more has been attempted by the courts of this country than to determine that a particular subject does or does not fall within the range of this power. An illustration is afforded by the Beer Co. v. Massachusetts, 97 U. S. 25, in which this language was used: “ However difficult it may be to render a satisfactory definition of it (the police power) there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals.” Blackstone in his Commentaries, vol. 4, p. 162, describes this power as the power of “ public police and economy,” by which the internal, regulation and good order of the state is secured, and individual citizens, like the members of a well ordered family, are made to conform their conduct to the rules of propriety, good neighborhood and good manners. It is therefore a power inherent in all forms of government. Its exercise may be limited by the frame or constitution of a particular government, but its natural limitations, in the absence of a written constitution, are found in the situation and necessities of the state, and these must be judged of in the first instance by the government itself. It corresponds to the right of self-preservation in the individual. When the dangers that threaten the state come from without, the right of self-preservation is exercised in gathering armies and the means of public defence. When the dangers arise within the state, self-preservation requires their suppression. This is accomplished by the exercise of the police power which deals with all forms of disorder, and provides for the public welfare, and the protection of citizens against the violence and the fraudulent conduct of each other. Now the question whether any particular subject is so related to the public good as to justify the exercise of this’ power in its control, is one for the determination, in the first instance, of the lawmaking branch of the government. ' In disposing of it, the legislature is subject to no limitations except such as the constitution of the state may impose. Within the lines set by constitutional provisions, the power of the legislature is practically absolute; but if it is alleged that a given police regulation violates the fundamental law, a question is raised for the determination of the courts, whose duty it is to apply the constitutional tests and adjudge the law to be void if it is in conflict with them. In this case we are to appfy the first section of the bill of rights to the act of 1870 in order to determine whether it can be enforced. If the act denies the inherent and inalienable right of the citizen to acquire, possess and protect propertjq which is asserted by this section of the bill of rights, then the judgment of the court below was right and this appeal should be dismissed; but if this right is not denied, and the effect of the act of 1870 is merely to regulate its exercise, then the judgment should be reversed and the defendant 'should suffer the penalty of the law he has disregarded. Before entering upon this question, three preliminary observations should be made: First, we must remember that the legal presumption is in favor of the constitutionality of the act because it expresses the judgment of the legislative branch of the government upon that question. The legislature has considered the question and passed .upon it and this makes a prima facie case in favor of the law. We observe in the n,ext place that this question is to be considered upon the state of the law as it is when the question' is ’raised. Since 1870 the constitution of the state has been remodeled and many of its new provisions have been enforced by suitable legislation. Our question is not, therefore, whether the act of 1870 was valid under the constitution as it then stood, but whether it was valid when its provisions were invoked against the defendant in 1894. Our third observation is that the question is not controlled by common law maxims. The police power must necessarily enlarge its range as business expands and society develops. The proper office of statutes is to remedy the defects and modify the operation of common law rules to meet changed conditions in society and increased volume and improved methods in business. We come now to inquire whether the business of insurance against loss by fire is at the present time a proper subject for the exercise of the police power of the state? In examining bills question it is important to know something about the magnitude of the business. The report of the insurance commissioner, appointed under theda-ws of the state, covering the transactions of the year 1892, shows that risks were written in Pennsylvania during that year as follows :• By stock companies of Pennsylvania amounting to.......$286,584,023 By stock companies of other states . . . 412,489,251 By stock U. S. branches foreign, companies . 248,407,450 By mutual companies of Pennsylvania . . 137,328,820 $1,084,809,544 Making the enormous total of one billion and nearly eighty-five millions of dollars. The losses paid in the same-year, as shown by the same report, amounted to nearly seven and .one quarter millions of dollars. The total capital employed in the business of fire insurance in this state during the year was nearly two hundred sixteen and one half millions of dollars. The premiums paid by the insured fell a little short of twelve millions of dollars. Let. us consider next the nature of the business. It is not. like the sale of commodities for a present equivalent in value, but it is the purchase of indemnity against the risk of loss by fire that may happen at any time, and may not happen at all. The conditions necessary to the business of insurance are: (a) The existence of a known danger to which all property owners are exposed, and against which they cannot effectually protect themselves; (6) the strong probability that loss from this danger will fall upon but few of those who are exposed to it; 0) the certainty that when the loss happens it will fall so heavily on those to whom it comes as to make pecuniary indemnity a matter of great importance; (d) some knowledge of the relative value of the property annually destroyed by fire to serve as a basis for calculating the risk assumed by the insurer, and the amount of premium required to enable the insurer to meet losses and expenses and secure a fair return for the capital employed. In view of the magnitude and the nature of the insurance business, it is apparent that the public is largely interested in all that relates to it. The security of policy holders requires, first, permanency in the custodian of the funds gathered from them, and on which their indemnity in case of loss depends ; second, an honest and competent administration of these funds; third, restraint against the division of the profits of the business whenever such division would injuriously affect the security of policy holders. How are these safeguards to be obtained ? There is but one way in which they can be obtained and that is by means of general laws regulating the insurance business. Corporations derive their existence from the state, and hold their franchises subject to legislative control. They are subject to the visitorial power of the commonwealth, and they may be, and are, in fact, required to lay open before the several departments of state government, and before the public, the character and extent of their business, the profits realized, the dividends declared, and the investments made. The legality and business value of the methods, the economy and financial strength of the management, and the value of the security provided for the holders of policies in any given company, are therefore subjects upon which the proper state officers may be thoroughly informed, and which the public may investigate at will. Private individuals are not subject to the same visitorial power. They cannot ordinarily be compelled to disclose their business methods, their financial.condition, or the character of their investments. They cannot be restricted in the use of either their capital or their profits as corporations may be. Those who deal with them must trust more to their personal integrity than the common experience shows to be safe. The state can compel a fair measure of fidelity in the management of these vast sums, and provide for the safety of the insured when, and only when, the business is in the hands of corporations. In the next place it is important to consider Avhat may be described as the trend of mddern legislation on this subject. The states of the Union have severally entered upon legislation regulating insurance. In. each an insurance department of the state government has been organized. A general supervision and control of insurance companies has been assumed by the states, and exercised through the insurance department. In our own state this system of legislation began as early as 1810, and it has grown in bulk and importance with the groAvth of business and the development of the resources of the state. It fixes the minimum of actual capital necessary to the organization of a corporation for insurance against fire, on the stock plan, at one hundred thousand dollars. It provides for a reserve fund for the security of .policy holders. It prohibits the division of profits in dividends to the injury of the reserve fund. It regulates the form of policy and requires the application to be attached to, or made part of, the policy. It requires each company to submit detailed statements of the business done, of its assets and liabilities, and to show its financial condition. It requires companies, organized under the laws of other states or countries, to make certain deposits in this state to secure those who are insured by them, and to appoint some suitable agent on Avhom process may be served in actions brought against them. These regulations have been made from time to time as their importance has been felt by the public. They are all easy of enforcement against corporations. Some of them cannot be enforced against private persons or partnerships. As matter of fact the business has for many years been left to the corporations, and regulations made to affect corporations have therefore met fully the public need. At this time, however, private capital is seeking employment in this field, and it signalizes its entry upon the field by a denial of the power of the state over it. This question has been raised by the corporations of other states, but I recall no case in which it has been raised by individuals. In Doyle v. The Continental Insurance Company, 94 U. S. 535, the Supreme Court of the United States stated the general rule thus : “ A state has the right to impose conditions, not in conflict with the constitution of the United States, on the doing of insurance business within its territory by an insurance company chartered by another state,’ or to exclude it altogether.” It would seem to follow logically that the state might require all persons desiring to enter upon the business to comply with the same conditions and, if necessary, to obtain a charter of incorporation in order to such compliance. An effort is made to distinguish between regulation and prohibition and to hold that the act of 1870 is a prohibition operating upon all natural persons for the benefit of corporations, who are thus given an oppressive monopoly of the business of insurance against fire. But the prohibition is only such as is necessary to give effect to the regulation which the act prescribes. The act implies a declaration by the legislature that the business of insurance against fire affects so many persons, and involves such large sums of money, as to make it necessary for the public protection that it be subjected to the supervision and control of the government; that the supervision required is such as private persons cannot be compelled to submit their business conduct to; and then expressly declares that all persons desiring to embark in the business must procure a charter of incorporation for that purpose because corporations are subject to the supervision and control of the state that creates them. This is regulative. It directs the business into the only channel that admits the necessary measure of control and it necessarily prohibits the business outside that channel. The traffic in intoxicating drinks is regulated by law; but the regulation prohibits absolutely all persons from engaging in it unless they have first secured the permission of the state by obtaining a license under the law. Here, as in the act of 1870, we find permission to those who comply with the regulation, and prohibition to those who do not. The practice of medicine, the sale of drugs, and many other .sorts of business are regulated by law; but the regulation would be without effect if it did not include a prohibition directed against those not qualified, and enforce it with suitable penalties. The police power of a state may be exerted for the complete or the partial control of a given business. It may prohibit it absolutely to all persons for the purpose of suppression. It may permit it to some persons and under certain restrictions in order to secure control over it and hold it within proper bounds: Stone v. Mississippi, 101 U. S. 814. The;Sunday laws, the laws against gambling, against lotteries, against disorderly houses, the sale of liquors, the sale of oleomargarine, the sale of drugs, and many similar laws afford instances of the exercise of the police power for the complete suppression of a given line of employment, or for its restriction and control. The act of 1870 belongs to the latter class. It does not prohibit the business of insurance but regulates it. It says to all persons interested, “ If you wish to embark in this business you must secure a charter of incorporation so as to subject your business to the visitorial power of' the state. If you will not do this you must not engage in insurance against fire at all.” This is not prohibition of the business, for the business is distinctly authorized. It is an effort to bring it under state supervision and control, by requiring all who wish to enter the business to put themselves in a position where the insurance legislation of the state will reach them, and the insurance department of the state can supervise their business, and compel observance of the law. Without going further into the discussion we may now state our conclusions applicable to the case before us : First. The business of insurance against loss by fire is, by reason of its magnitude, its importance to property owners, and the nature of the business, a proper subject for the exercise of the police power of the state. Second. The act of 1870 is a valid exercise of the police power. It does not prohibit but regulates the business. It excludes no one from engaging in it, but prescribes the preliminary qualification necessary for all alike, to entitle them to enter the business. Third. The qualification is reasonable. It is open to all un der general laws. It is not burdensome. Its only effect is to secure adequate capital at the beginning, and state supervision during the continuance of the business. Fourth. Upon the special verdict, j udgment should have been entered in favor of the commonwealth and sentence should have ■been pronounced under the act of 1870. That this may now be done, the judgment is reversed, the record remitted, and a procedendo awarded.

Opinion by Mr. Justice Mestbezat, George E. Darlington, Esq., is the owner of a lot or piece of ground fronting about 100 yards on Providence avenue, in the borough of Media, Delaware county. In the center of the lot, about 150 feet from the street, stands a large dwelling used as a country house, and in the rear of it is a stable. A hedge fence separates the land from the street. Midway of this fence a driveway enters the premises, leading to the house and thence to the stable. On either side of the driveway, at the entrance to the property, is a stone gate post, and a chain hanging between the posts is the only obstruction to entering through the gateway. There is a lawn in front of the dwelling house on which the children of the neighborhood occasionally play, and when Mr. Darlington occupied the house he permitted them to enter the premises occasionally to get apples. At the time of the accident the premises were vacant. The defendant company furnishes light, heat and power to consumers in the borough of Media. Its light wires extend along Providence avenue in front of the Darlington premises. This property was leased to W. D. Griscom who, in March, 1898, had the defendant company introduce electric light into the house by running a wire from its line at the gateway across the lawn to the building. This was done at the tenant’s expense. Griscom removed from and vacated the premises, and just prior to doing so he directed the defendant company to cut the current so it would not pass through the bouse. This was done by taking out the fuses at the transformer which rested against the side, and just beneath the eaves, of the house. The electric current was thus prevented from entering the house but not from passing through the wire extending from the house to the defendant’s feed line at the street. After the current had been cut out, the wire broke between the house and a tree on the lawn through which it passed and was tied to the branches of the tree. The broken end of the wire fell frequently and “ was tied up in the tree out of reach, four or five times before this injury.” At the time of the accident it hung from the tree fourteen feet from the hedge fence and six feet from the carriageway. It extended to a point within twelve or eighteen inches of the ground and was of sufficient length to swing to the driveway. In the immediate vicinity of the Darlington property, the plaintiff, a boy of ten years of age, and a number of other children of like age resided in 1901. They were accustomed to play in the street near the gateway after school hours. The plaintiff with another boy, a few years his senior, were thus engaged in the street in front of the Darlington premises in the afternoon of April 9,1901. They separated to go to their homes for supper and agreed to meet later “ down atthe Darling-ton gate to play hide and seek or hunt the hare.” A half hour later the two boys with several other boys of their age assembled inside the gate where the broken wire was suspended and engaged in “ skinning the'cat and playing around.” The plaintiff came in contact with the wire and was severely injured. Paul Matheus, one of the boys, after testifying that they had been playing with the wire and that it “ was bare at the end,” thus describes the manner in which the accident occurred: “ Q. What happened when James (plaintiff) came? A. I threw the stick and when the stick lit on the wire it kind of moved over toward me and then back again, and it flew off and he went to grab the stick and grabbed the bare wire. He got hold of the wire and fell down.” The brother of this witness gives the same account of the accident. He testifies : “ Q. Tell us as well as you recollect tvhat happened after Jimmy (plaintiff) got in there. When you first saw him when he got in there, what happened. A. Paul threw a stick and he grabbed hold of the stick. The stick swung after it had hit the wire and caught in the wire somehow, and he went to grah for the stick and grabbed the wire and he groaned a little and fell right back.” This action was brought to recover damages for the injuries sustained by the plaintiff alleged to have been caused by the negligence of the defendant company. The case was submitted to the jury and a verdict was rendered in favor of the plaintiff. The learned trial judge refused to grant a new trial for the reasons set forth in his opinion and, judgment having been entered on the verdict, the defendant has appealed. Electricity when of sufficient voltage for lighting purposes is well known by electricians and others familiar with its properties to be most dangerous and likely to cause death to those who come in contact with its current. Those who deal with it or supply it to the public are therefore required to recognize this fact and to exereise care commensurate with the danger. A party responsible for an injury by reason of a failure to observe such care is guilty of negligence. As said in Fitzgerald v. Edison Electric Company, 200 Pa. 540: “ The company, however, which uses such a dangerous agent is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidently or otherwise in contact with them. The defendant, in accord with the common practice of electric companies, recognized this obligation by insulating its dangerous wire.” The defendant seeks to .relieve itself from liability for the injuries sustained by the plaintiff substantially on the ground that the company was not the owner of the wire which occasioned the injuries and because the plaintiff was a trespasser at the time of the accident and therefore it owed him no duty requiring the observance of care to guard his safety. We are of opinion, however, that under the facts of this case neither of these defenses can avail the defendant company. While the expense of constructing the electric light line from the defendant’s wire to the house was paid by the tenant of the premises, the work was done by the defendant company which also cut off the current from the house before the accident. It used the line to carry its current to the house until the connection was severed, and during this time it had full control of the wire and, as it were, operated it in furnishing electricity for the building occupied by the tenant. After the defendant company had removed the fuses from the wire at the house, it, nevertheless, continued to send its electric current through the wire whenever its dynamo was in operation, although the current was not utilized for lighting purposes.' The wire carried the same deadly element or agent across the lawn after, as it did before, the current was disconnected at the house, and a like responsibility rested with the defendant company to exercise care in protecting those who might come in contact with it by accident or otherwise, and through no fault of their own. The company could have severed the wire and the current at its own feed wire at the street, and thereby have removed all danger to persons who might possibly come in contact with it on the Darlington premises. No sufficient reason is assigned why the defendant did not take this reasonable precaution to avoid a patent danger as well as to relieve itself from responsibility for a wire, the ownership and control of which it disclaimed. That the company did not construct the line at its own expense cannot relieve it from the duty to exercise care in keeping it in proper condition and repair during the period the wire carried its electric current. The ownership of the wire cannot affect the company’s liability for failure to observe this duty under the facts disclosed by the evidence in this case. When charged with its electricity the wire was in the possession and control of the company so far as concerned its duty to keep it in repair and in proper condition and position to protect those who might come in contact with it. The danger lay not in the wire, but in the “ subtle fluid ” sent through it by the defendant company. It was not the wire that injured the boy, but the electric current which it bore from the defendant’s djmamo. The use of the wire by the defendant, and not the wire itself, caused the injury to the child. Hence, it logically follows that, not withstanding the ownership of the wire may have been in another, the defendant company must be considered as in possession of, and as using, it at the time of the accident and, therefore, responsible for any injury resulting from the failure to inspect and keep it in proper condition and repair when charged with the company’s electricity. That the ownership of the wire is not controlling as to the liability for an injury caused by coming in contact with it is determined by the principle announced in that class of cases in which it is held that an electric railway company or an electric light company is responsible for an injury where it negligently permits its wire to come in contact with another company’s telephone or telegraph wire which transmits the current and thereby causes an accident. This is a sound rule and is recognized in many jurisdictions: Block v. Milwaukee Street Railway Co. (Wis.), 27 L. R. A. 365; City Electric Street Railway Company v. Conery (Ark.), 31 L. R. A. 570; Western Union Telegraph Co. v. Nelson (Md.), 31 L. R. A. 572; United Electric Ry. Co. v. Shelton, 89 Tenn. 423. These cases hold it to be the duty of electric companies to use care not only to keep their own wires in proper condition and repair, but also to prevent their coming in contact with other wires which, by becoming charged with and transmitting the electric current, may cause an injury. When an injury results under such circumstances the electric company is responsible by reason of the negligent control of its wires regardless of the ownership of the wire that transmits the current to the person who is injured. In the case at bar, the electric current was not transmitted by the company’s wire coming in contact with another wire which caused the plaintiff’s injury, but it was carried on a wire connected by the company with its own feed wire for the very purpose of transmitting the current which by reason of the noninsulation of the wire injured the boy. With much greater reason, therefore, should the defendant company in this case, under like circumstances, he held liable for the transmission of its current through another’s wire, than where the electric company’s current is communicated to the wire by negligent contact. • The defendant company also denies its liability because, as it alleges, the plaintiff was a trespasser at the time of the acci dent and it owed him no duty which it had violated. But this position is clearly untenable. If it be conceded that the boy was technically a trespasser as against Mr. Darlington who owned, and was in possession of, the premises, he was not a trespasser as against the defendant company who had neither the possession, nor the right of possession, of the property. It may be admitted that the company entered the premises by permission, but it was for the specific and single purpose of furnishing light to the then tenant of the property. When he directed the cutting out of the current and the discontinuance of the light in his house, the purpose of the entry had been accomplished and the right of the' company to be upon the property had ceased. It is not claimed that the company was on the premises or was using the wire with permission of Mr. Darlington at the time of the accident. If, therefore, it was occupying the property for any purpose whatever, it was itself a trespasser. It stood on no higher ground than the plaintiff, whose presence on the lawn was violating no right of possession which the company had to the premises. Conceding that the owner of the property owed no duty of care to either, the parties themselves, however, occupied the same relative position towards him, but an entirely different position towards each other which required that each should exercise towards the other the care demanded by the circumstances. Assuming then, as we must assume, that the defendant company was in possession of, and using, the wire for the purpose of transmitting its electric current, and that as against it the boy was not a trespasser, its duty to the children at the place and time of the accident was to exercise such care over the wire as was demanded by. the great danger to which they were exposed. Having constructed the line across the lawn to the house in proximity to the carriageway, it knew that children as well as adults might frequent the way and, hence, the necessity for keeping its wires in proper condition and repair to avoid danger. It must be presumed that the company also knew what the evidence disclosed as a fact that children used the lawn of the premises near the gateway and in the vicinity of the wire as well as the street in front of the premises as a playground. Such conditions existed for a sufficient length of time to warrant the inference of notice to the company. The accident occurred very near the gateway — but two steps from the driveway and only about fourteen feet from the fence. So far as pedestrians were concerned, there was practically no obstruction to entering the driveway which was the approach to the house. It was, therefore, the duty of the company in transmitting its current on the premises to take reasonable precautions to prevent injury to persons who might be at this point. Whether it observed this duty or not was clearly for the jury. Under all the facts of the case, we are of opinion that it was the duty of the defendant company to properly inspect and keep in repair the electric wire that carried its current across Mr. Darlington’s premises, and that for an injury resulting from a failure to perform this duty, the company is legally responsible. We are not convinced that the assignments raising the other questions in the case are of sufficient merit to warrant reversal. Some of those questions are considered and properly disposed of in the opinion of the learned trial judge in overruling the motion for a new trial. The use of the wire by the company for the transmission of its current was sufficient to warrant the averment in the statement that “ it negligently conducted its said business and operated and controlled its wires.” Several months prior to the accident, the tenant had removed from the premises, leaving the wire suspended between the street and the house as the company had constructed it. So far as the evidence disclosed, he had at no time exercised any acts of ownership over it. From the time of the construction of the line till the accident, the defendant company was the only party that made any use of the wire. It may, therefore, as laid in the statement, fairly be regarded as the company’s wire. There was some evidence of the diminished earning power of the boy and it had to go to the jury on the question of damages. We also think that the jury would understand from all the language used by the trial judge on the subject in the charge and in answer to points, that the test of the boy’s responsibility for negligence was the discretion usually exercised by children of his age, maturity and capacity. If he exercised such discretion he is not chargeable with negligence. There is some ground for the allegation of inadequacy of the charge as recognized by the trial judge himself, but as a whole, we are not prepared to say that the charge did not give the jury instructions sufficient to enable it to apply the correct rule in ascertaining the damages and in determining the negligence of the defendant. The judgment is affirmed.

Opinion by Mr. Justice Elkin, The learned court below has given such convincing reasons for the conclusions upon which the decree in the present casé was based, that we can add nothing of value to the discussion of the legal principles involved. The covenant in question was declared to be void because in violation of the rule against perpetuities. We quite agree with the learned court below that it would be difficult to conceive any case which could be deemed more violative of the rule and a greater hindrance to alienation than the one at bar. The case turns very largely upon the character of the interest in the surface which the optionees took under the covenant. If it was a present, fixed and vested interest in the land the rule against perpetuities would have no application. But is a mere option to purchase land, unlimited as to time and indefinite in duration, which may be exercised in ten years, or in a hundred years, or in a thousand years, or which may never be exercised at all, depending upon the wish or pleasure of the optionee, a present vested interest? To ask this question would seem to answer it. In no proper legal sense can a mere privilege of exercising a future right to purchase be deemed a present vested interest in land. The optionees may never exercise their option, and failing to do so, they would never acquire a vested interest in the land. While the precise question has not been raised or decided in Pennsylvania, other jurisdictions have considered and decided it adversely to the contention of appellants here. The underlying principles which control in cases of this character were very fully discussed in London & Southwestern Ry. Co. v. Gomm, L. R. 29 Ch. D. 562; Winsor v. Mills, 157 Mass. 362; Starcher v. Duty, 61 W. Va. 373. We think the reasoning of these cases is unanswerable and they are cited with approval by this court. To elaborate the discussion here would simply mean a reiteration of what has been, so well said by the learned court below and this we refrain from doing. Decree affirmed at cost of appellants.

Opinion by Mb. Justice McBbide, This is an appeal from an order sustaining defendant’s preliminary objections in the nature of a demurrer to plaintiff’s complaint in trespass. Plaintiff, Dolan, averred that while he was lawfully on the premises of defendant, Linton’s Lunch, pursuing his duties- as its employee, one Bernard Boyle, a felknv employee, came upon the premises and without provocation proceeded to administer a beating to plaintiff. He alleged as well that tMs same fellow employee had been guilty of similar previous assaults upon other employees Avith knowledge of defendant, wMch therefore was guilty of negligence (a) in failing to provide a safe place for plaintiff to work; (b) in failing to provide adequate protection for the person of plaintiff wMle laAvfully on the defendant’s premises; (e) in inviting plaintiff upon its premises and failing to safeguard Ms rights; (d) in failing to keep Boyle from its premises; and (e) in failing to properly police its premises so that plaintiff could perform his duties without interference by Boyle. The complaint does not allege that the defendant is liable on a theory of respondeat superior nor does it in any way allege that the assailant committed the assault in the course of Ms employment. In sustaining defendant’s demurrer the court below held that the sufficiency of the complaint, in stating a common law cause of action in trespass, was not questioned hut that the court had no jurisdiction to entertain the complaint since plaintiff was limited exclusively to the statutory remedy provided in the Pennsylvania Workmen’s Compensation Act. Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §1, et seq. With this conclusion we cannot agree. The Workmen’s Compensation Act provides for compensation without resort to a suit at law in all cases of injuries to employees arising from accidents in the course of employment. It provides for compensation in such cases even though the employer was not negligent and the employee was. Section 302(a) of the Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §461, provides: “In every contract of hiring ... it shall be conclusively presumed that the parties have accepted the provisions of article three of tliis act, and have agreed to be bound thereby, unless there be, at the time of the making, ... an express statement in writing, from either party to the other, that the provisions of article three of this act are not intended to apply, . . . .” Dolan and Linton’s Lunch have not entered into any such agreement. Both have therefore agreed to be bound by the Act. Section 303 provides that such acceptance shall “. . . operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided in article three of this act. . . .” Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §481. Defendant has contended therefore that plaintiff is solely limited to whatever rights, if any, that he has under the act. However, plaintiff has accepted this act and agreed to forego his common law remedies only for “any injury or death occurring in the course of his employment”. Section 301(c) of the Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §411, which defines the terms used in the act, provides in part: “. . . The term ‘injury by an accident in the course of his employment,’ as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.” (Emphasis supplied) This definition specifically excludes from an “injury by an accident in the course of his employment” an assault or attack by third persons because of personal animosity against the employee and which does not result because of the relationship between employer and employee. Rathburn v. Sussman Bros. & Co., 127 Pa. Superior Ct. 104, 193 Atl. 488 (1937). The court below recognized that this definition set forth an exclusion to the coverage of the Workmen’s Compensation Act but held: “A cursory reading of this section evidences the legislative intent to exclude from the coverage of the Act injuries inflicted upon an employe by a third party because of personal enmity and in no way connected with the employer’s business.” (Emphasis supplied) The court then went on to say that the allegation of plaintiff that at the time he received the injury he was “pursuing his duties” as an employee of the defendant set forth a “classic case” for proceeding under the provisions of the act. Hence, the court held this injury was not within the exclusion provided in the act because it was incurred while plaintiff says he was “pursuing his duties”. However, if the attack is directed against the employee for personal reasons not connected with his employment, even though the assaulted employee is at that time pursuing the business of his employer, the legislature has stated in specific terms that the resulting injury is not an “injury by an accident in the course of his employment” as that term is used throughout the act. This becomes apparent upon a careful and complete reading of this definition. After specifically excluding an attack by a third person based upon personal animosity from an “injury by an accident in tbe course of Ms employment” tbe act includes within its coverage “all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, . . . .” (Emphasis supplied) The only “other” injuries referred to are those wMch are other than the result of a personal attack by a third person. Hence, the use of the word “other” necessarily implies that a personal attack may or may not be sustained while in the furtherance of an employer’s business but, nevertheless, it is not to be included within an “injury by an accident in the course of his employment.” To give any meaning at all to the word “other”, as we are required to do, this definition must be read so as to exclude a personal attack upon an employee even though it occurs while he is in the scope of his employment. Also, though the term “injury by an accident in the course of his employment” includes “all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon . . .” this does not mean that an injury resulting from an attack for personal reasons even if occurring in “the operation of the employer’s business” is included. TMs interpretation is implicit in the decisions of this court in O’Rourke v. O’Rourke et al., 278 Pa. 52, 122 Atl. 172 and Meucci v. Gallatin Coal Co., 279 Pa. 184, 123 Atl. 766. In both of these cases the Court, in determining if the employee’s injuries came witMn the coverage of the act, started with the premise the employee was acting in the course of his employment at the time he was assaulted and then found it necessary to consider further if the assault was the result of personal enmity. The Court recognized that if personal enmity was the reason for the attack it made no difference if it occurred on the employer’s premises or if the employee was in the course of his employment, it was still not an “injury by an accident in the course of Ms employment” within the meaning of the act, In the O’Rourke case, supra, at page 54, this Court, speaking through Mr. Justice Fkazer, said: “It is not denied deceased wras acting in the course of his employment at the time he sustained the injury above referred to and the sole question is whether the person intended to inflict the injury because of reasons personal to him and not directed against Min as an employee, or in connection with his employment, as provided in Section 301 of the Workmen’s Compensation Act of 1915.” Thus, when an employee accepts the coverage of the act, he does so for all accidental injuries which occur in the course of his employment except those arising from an attack by a third person or fellow employee for personal reasons. This Court, in reviewing the effect of the Workmen’s Compensation Act, said in Zimmer v. Casey, 296 Pa. 529, 534, 148 Atl. 130: “Article III, Section 301, has to do with the compensation and the injuries. When the employer and the employee accept the article by agreement, the employer agrees to pay compensation for injuries without regard to negligence according to a fixed schedule. Compensable injuries include all except those arising from personal ill will.” (Emphasis supplied). The contention that under §303 the employee surrenders Ms rights to any form or amount of compensation or damages for “any injury”, while Ms coverage under §301.(c) extends only to an “injury by an accident”, a more limited class, must fall. This contention was specifically rejected in the case of Billo v. Allegheny Steel Co., 328 Pa. 97, 195 Atl. 110 (1937), where plaintiff brought an action of trespass against his employer to recover damages for silicosis, an occupational disease, alleged to have been contracted by him while working at defendant’s plant and due to defendant’s negligence in failing to supply adequate exhaust fans to carry off the dust and insufficient ventilation. At this time, despite constitutional authority to do so, the legislature had not covered occupational diseases. The employer took the position that the action was barred by the Workmen’s Compensation Act contending that an employee who contracted silicosis suffered an “injury in the course of his employment” within the meaning of the release provision in §303. In allowing plaintiff to recover the court held that an “injury” in this section must be read to mean an injury by an accident and that the silicosis here did not result from an accident. Hence, we held that plaintiff’s right to pursue his common law remedy was not affected by the passage of the Workmen’s Compensation Act. In reaching a different result after the inclusion of occupational diseases in the coverage of Workmen’s Compensation in Moffett v. Harbison-Walker Co., 339 Pa. 112, 14 A. 2d 111, we explicitly approved the rationale of the Billo case. We said “All the numerous provisions of the Workmen’s Compensation Act apply only to cases arising from accidents. . . .” Billo v. Allegheny Steel Company, 328 Pa. 97, 101, 195 Atl. 110 (1937). The provision pertaining to surrender of remedies for “any injury” must be read in conjunction with all other provisions of the act, including §1 of Article I, which provides that the act “. . . shall apply to all accidents occurring within this Commonwealth.” Act of June 2, 1915, P. L. 736, as amended, 77 P.S. §1. It is clear that at common law plaintiff did have a remedy for the type of injury he sustained. It is equally clear that this Court has interpreted this section of the act to deny employee’s coverage where the facts, as here, demonstrate that the injury was the result of an attack by third persons or a fellow employee for personal reasons. McDevitt v. Checker Cab Co., 288 Pa. 394, 138 Atl. 230 (1927); Cawley v. American Railway Empress Co., 276 Pa. 160, 120 Atl. 108 (1923). To read the act so as to deny plaintiff his existing common law remedy without permitting Mm to come within the protective coverage of the Workmen’s Compensation Act might well violate the mandate of Article I, Section 11 of the Constitution of Pennsylvania, which provides: “All courts shall be open; and every man for an injury done him in Ms lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. . . .” This provision is not modified by Article 3, Section 21 of the Constitution which enables the General Assembly to enact laws requiring reasonable compensation be paid to employees for injuries arising in the course of their employment without regard to fault. Nowhere in this latter provision is the General Assembly authorized to enact a law which vitiates an existing common law remedy without concurrently providing for some statutory remedy. Of course, the substituted remedy need not be the same, but that is far different from saying that no remedy at all may be substituted. It is only because of Article 3, Section 21, and the agreement of the parties, that the limited recovery in a Workmen’s Compensation case is valid. Anderson v. Carnegie Steel Co., 255 Pa. 33, 99 Atl. 215. In all “other cases” nothing less than full actual damage would satisfy the requirements of Article I, Section 11. Passenger Railway Co. v. Boudrou, 92 Pa. 475, 37 AR 707. It is a long recognized doctrine that whenever an act of assembly is susceptible of different constructions, one in accordance with, and the other in violation of, the constitution, it is the duty of a court of justice to give to the act that construction which harmonizes with the constitution, for such is presumed to be the legislative intent. Evans v. West Norriton Tp. Municipal Authority, 370 Pa. 150, 87 A. 2d 474; Fidelity-Philadelphia Trust Co. v. Hines, 337 Pa. 48, 10 A. 2d 553; Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 318 Pa. 401, 178 Atl. 291, affirming 114 Pa. Superior Ct. 7, 174 Atl. 11. In any event, our interpretive approach is clear. The legislature intended that the Workmen’s Compensation Act would supersede common law actions only as to cases within its coverage. We so held in Billo v. Allegheny Steel Company, 328 Pa. 97, 195 Atl. 110. The present plaintiff is not affected by either the coverage or surrender provisions of the act. The act excludes from its coverage attacks upon an employee whether or not they occur while he is pursuing his employer’s business and whether or not they are caused by the condition of the employer’s premises or by the operation of his business or affairs thereon so long as the reasons for the attack are purely personal to the assailant. In such a case, the plaintiff is permitted to pursue his common law remedy. We have held that where a claimant sought compensation and it was conceded that he was acting in the course of his employment, the burden was on defendant to show an intention to injure owing to reasons personal to the assailant. O’Rourke v. O’Rourke, 278 Pa. 52, 122 Atl. 172; Keyes v. Railway Co., 265 Pa. 105, 108 Atl. 406. This was based upon the rebuttable presumption that such a claimant was covered by the act. Here, however, it is the plaintiff who asserts he is not covered by the act and he must allege facts to show that he is not. Anderson v. Carnegie Steel Co., 255 Pa. 33, 99 Atl. 215. The complaint is silent as to whether the assailant was performing his duties at the time of the assault and is equally silent as to his reasons for assaulting the plaintiff. For this reason plaintiff’s complaint is deficient. It is our opinion, however, that in the interest of justice plaintiff be allowed leave to amend. If he can so amend to aver that the attack by Boyle was for personal reasons, his complaint will set forth a valid cause of action; if he cannot so amend, preliminary objections to the complaint may then properly be sustained. Order reversed with leave to plaintiff to amend in accordance with this opinion. It is obvious that plaintiff included this allegation in order to set forth Ms common law cause of action (the sufficiency of which has not been attacked by defendant) as reflected in Restatement, Torts, §317, which provides: “A master is under a duty to exercise reasonable care so to control his servant while acting outside the coiirse of Ms employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.” In construing a statute we are required to give effect, if possible, to all of its provisions. Section 51 of the Statutory Construction Act of 1937, PX. 1019, 46 P.S. §551. See also Jury Estate, 381 Pa. 169, 112 A. 2d 634. See §317 of the Restatement, Torts. See also Dincher v. Great Atlantic and Pacific Tea Co., 356 Pa. 151, 51 A. 2d 710 (1947). “The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted. No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries .to persons or property, or for other causes, different from those fixed by general laws regulating actions against natural persons, and such acts now existing are avoided.” (Emphasis supplied.) (The Act was passed on June 2, 1915, prior to this constitutional amendment which was adopted on November 2, 1915. However, the act was specifically made effective January 1, 1916 which was after the adoption of the amendment.)

OPINION ANNOUNCING THE JUDGMENT OF THE COURT FLAHERTY, Justice. Daniel Howell was attending a party at his neighbors’ house and was injured when a fireworks cannon owned by the host-neighbors exploded. Howell then sued the neighbors, Theodore and Pamela Clyde, for damages associated with his injuries. The Court of Common Pleas of Clearfield County entered an involuntary nonsuit at the close of plaintiffs evidence, holding that Howell had assumed the risk of injury and was, therefore, barred from recovery. On appeal, Superior Court reversed and remanded for a new trial, 383 Pa.Super. 611, 557 A.2d 419 holding that the trial court could have granted the nonsuit only if Howell’s evidence failed to demonstrate that the Clydes breached a duty which they owed to Howell. Further, Superior Court stated that a nonsuit could not be granted on the basis of assumption of risk because the evidence did not show that Howell knew of the existence of the specific risk he was alleged to have taken. The evidence established that there was conversation at the party concerning a fireworks cannon fabricated by Clyde’s grandfather. The guests, including Howell, visually inspected the cannon and expressed an interest in firing it. Howell went to his residence next door to retrieve black powder for use in the cannon, and upon returning with two cans of black powder, Howell held a flashlight while Clyde filled the bore of the cannon half full of black powder. Howell stood back approximately 40 feet while Clyde ignited the cannon, which exploded, injuring Howell. Clyde petitioned for allowance of appeal from Superior Court’s order remanding for a new trial and we granted allocatur. Ten years ago in Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), a plurality of this court sought to abolish the doctrine of assumption of risk, except where expressly preserved by statute, or cases of express assumption of risk, or cases brought under 402A (strict liability). A major concern was that the complexity of analysis in assumption of risk cases makes it extremely difficult to instruct juries, who must decide not only questions related to negligence, but also whether the affirmative defense of assumption of risk operates to bar recovery altogether. Additionally, the plurality stated: [T]he difficulties of using the term “assumption of risk” outweigh the benefits. The issues should be limited to negligence and contributory negligence. Those are the problems in the case at bar and in all cases brought on a negligence theory. There is no need to introduce further complications. The policy reasons which once existed to preserve the doctrine because of its use in the master-servant cases no longer exist. Furthermore, as is indicated in the Pennsylvania Suggested Standard Jury Instructions, “cases which have evoked the doctrine to deny plaintiffs recovery would have produced the same result either by (1) the court’s determination that, as a matter of law, defendant owed plaintiff no duty, or, by (2) the jury’s determination that plaintiffs own negligent conduct was a substantial factor in bringing about the harm he suffered.” 496 Pa. at 613, 437 A.2d 1198. Additionally, the plurality in Rutter stated: As is indicated in § 496C, comment g, [of the Restatement Second of Torts] the implicit decision to assume the risk can be either reasonable or unreasonable. Since the Pennsylvania comparative negligence statute is designed to apportion liability on the basis of fault, not to bar plaintiffs recovery if it can be shown that he had any degree of fault at all, the absolute bar to plaintiffs recovery effected by the application of types 2 and 3 [of assumption of risk], without regard to the reasonableness of plaintiffs action, tends to frustrate the purpose of the comparative negligence statute. 496 Pa. at 616, n. 6, 437 A.2d at 1210, n. 6. Finally, type 4 of assumption of the risk, where both plaintiff and defendant are negligent to some degree, also frustrates the policies behind our comparative negligence statute, where plaintiff is not barred from recovery unless his own negligence is greater than 50%. Two years after Rutter this court again had occasion to address the assumption of risk problem in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In that case, a plaintiff visiting a medical clinic in order to receive treatment for a back ailment parked in the clinic lot next to a sheet of ice. When she returned to her car, she slipped on the ice and was injured. The evidence disclosed that there were areas in the lot which were not ice-covered and that plaintiff saw the ice next to her car and appreciated the danger that she might fall. Mr. Chief Justice Roberts, writing for a unanimous court, held that where plaintiffs uncontradicted evidence was that the danger posed by the ice was both obvious and known, the defendant reasonably expected that the danger would be avoided. “ ‘[T]he law of Pennsylvania does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee’; Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 106-07, 266 A.2d 478, 480, 483 (1970),” Carrender, 503 Pa. at 185, 469 A.2d at 123. Plaintiff, therefore, failed to establish a duty essential to a prima facie case of negligence and the defendant clinic was entitled to a judgment notwithstanding the verdict as a matter of law. In explaining the relationship between assumption of risk and the duty owed an invitee by a possessor of land, Mr. Justice Roberts wrote: When an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpart to the possessor’s lack of duty to protect the invitee from those risks____ By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself.... It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the inyitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers. See Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978) (operator of baseball park owes no duty to guard against common, frequent, and expected risks of baseball; duty extends only to foreseeable risks not inherent in baseball activity). 503 Pa. at 187-88, 469 at 125. It should be noted that in Carrender there was no question as to whether the injured party knew of the risk. This is significant because one of the problems in an assumption of risk analysis is determining what the plaintiff knew and whether the plaintiffs course of action was voluntarily and deliberately taken. Because there was no question in Car-render as to whether the risk was intelligently and voluntarily taken, the court was able to decide that there was no duty as a matter of law. As Mr. Justice Roberts pointed out in Carrender, an assumption of risk analysis may, in an appropriate case, be “merely a counterpart” to a duty analysis. In Mr. Justice Roberts’ words: “to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.” Car-render, Id. In other words, cases like Carrender may be analyzed from the point of view of duty, or assumption of risk, or ordinary negligence law, each of which overlaps with the others (i.e., a duty analysis may entail a consideration of assumption of risk and ordinary negligence principles). The present case may also be analyzed from different perspectives. One approach to the case is that of a duty analysis; a second is that it may be seen as a case involving comparative negligence; a third is that it may be seen as a type 2 or 3 assumption of risk case; a fourth is that it may be seen as a type 4 assumption of risk case. If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that Howell voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by Clyde. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care. A second analysis is that Howell was negligent in participating in the cannon episode and that his negligence must be compared with Clyde’s. 42 Pa.C.S. § 7102 provides: (a) General rule.— In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. Such a comparison is for the jury, and if Clyde is found to be negligent, Howell will recover at least some proportion of his damages so long as his negligence does not exceed Clyde’s. A third analysis is that this is a type 4 assumption of risk case. Type 4 assumption of risk, as defined by the Restatement, is that in which: the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible. Thus, under a type 4 analysis, a plaintiff who negligently assumes a risk is barred from recovery because he was, in part, at fault. Fourth, the case may be analyzed as a type 2 or 3 assumption of risk case. Those types of assumption of risk are described as follows by the Restatement: 2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff. As to such implied assumption of risk, see § 496C. 3. In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it. For example, an independent contractor who finds that he has been furnished by his employer with a machine which is in dangerous condition, and that the employer, after notice, has failed to repair it or to substitute another, may continue to work with the machine. He may not be negligent in doing so, since his decision may be an entirely reasonable one, because the risk is relatively slight in comparison with the utility of his own conduct; and he may even act with unusual caution because he is aware of the danger. The same policy of the common law which denies recovery to one who expressly consents to accept a risk will, however, prevent his recovery in such a case. Either type 2 or 3 assumption of risk might apply to the present case. In type 2, Howell may be said to have voluntarily entered into “some relation” with Clyde which he knows to involve risk (i.e., the joint enterprise of firing the cannon); and in type 3, Howell may be said to have voluntarily proceeded to encounter a risk created by Clyde’s cannon, seeing the risk of injury as slight, and proceeding cautiously, nonetheless, because of the risk. Which of these analyses should prevail? It is, perhaps, easiest to determine which should not. Assumption of risk type 4 should no longer be a part of the law of Pennsylvania since it plainly conflicts with the legislative policy underlying the comparative negligence act. One’s recovery, under the comparative negligence act, is to be reduced by the amount of his own negligence so long as it does not exceed that of the defendant; it is not to be barred, as in assumption of risk type 4, by the mere existence of any amount of negligence. Assumption of risk type 4, therefore, should be abolished. A more complex question is whether assumption of risk types 2 and 3 can co-exist with comparative negligence. Arguably, they cannot. Again, the policy underlying a comparative process is inimical to the policy underlying the complete bar of assumption of risk. I believe, however, that a better approach is to recognize the social utility of assumption of risk and continue its viability, albeit in a modified form. In assumption of risk types 2 and 3 a plaintiff has voluntarily and intelligently undertaken an activity which he knows to be hazardous in ways which subsequently cause him injury. His choice to undertake this activity may or may not be regarded as negligent. His negligence or lack of negligence, however, is not the operative fact; rather, the operative fact is his voluntary choice to encounter the risk. The theoretical underpinning of these types of assumption of risk is that as a matter of public policy one who chooses to take risks will not then be heard later to complain that he was injured by the risks he chose to take and will not be permitted to seek money damages from those who might otherwise have been liable. This policy is distinct from the public policy underlying negligence recovery, which is, in essence, that recovery should be permitted on the basis of fault. Fault has no relevance in assumption of risk types 2 and 3. Assumption of risk types 2 and 3, then, deal with situations not treated by comparative negligence. In comparative negligence, each of the parties must have been negligent: there must be negligence on both sides to compare. In assumption of risk types 2 and 3, the plaintiff may or may not have been negligent in encountering the risk. He is barred from recovery not because of his negligence, but because of the policy that a person may not recover for injuries which he himself has chosen to risk. If types 2 and 3 assumption of risk were to be abolished, this idea would be lost. But the policy against recovery for “self-inflicted” injuries remains as viable today as it ever was. Because it is desirable to preserve the public policy behind assumption of risk types 2 and 3, but to the extent possible, remove the difficulties of application of the doctrine and the conflicts which exist with our comparative negligence statute, to the extent that an assumption of risk analysis is appropriate in any given case, it shall be applied by the court as a part of the duty analysis, and not as part of the case to be determined by the jury. This approach preserves the public policy behind the doctrine while at the same time alleviating the difficulty of instructing a jury on voluntariness, knowledge, and scope of the risk. Under this approach the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with the awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury. Under those facts, the court would determine that the defendant, as a matter of law, owed plaintiff no duty of care. If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory. Under this approach, subject to the exceptions set out in footnote 10, assumption of the risk would no longer be part of the jury’s deliberations or instructions. In the case at bar, the Court of Common Pleas was not in error in concluding, as a matter of law, that Howell had assumed the risk of injury. Howell voluntarily participated in a dangerous activity, knowing that the ignition of gunpowder is inherently dangerous and might cause injury to himself or others. Although the court granted the nonsuit on the basis of an assumed risk rather than because of an absence of duty, the analysis, nonetheless, is substantially the same. Since Howell voluntarily assumed the risk of injury, Clyde owed him no duty. It was error, therefore, for Superior Court to remand the case for a new trial. Order of Superior Court is reversed and the judgment of the Court of Common Pleas of Clearfield County is reinstated. LARSEN, J., files a concurring opinion joined by PAPADAKOS, J. NIX, C.J., and ZAPPALA, J., file dissenting opinions. McDERMOTT, J., did not participate in the decision of this case. . Whereas the questions of negligence and assumption of risk have traditionally been for the jury, the question of duty, to be discussed later, is for the court. . As described in the Restatement Second of Torts, § 496A, the four types of assumption of risk are as follows: 1. In its simplest form, assumption of risk means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk. The result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff. As to such express assumption of risk, see § 496B. 2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park maybe regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff. As to such implied assumption of risk, see § 496C. 3. In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it. For example, an independent contractor who finds that he has been furnished by his employer with a machine which is in dangerous condition, and that the employer, after notice, has failed to repair it or to substitute another, may continue to work with the machine. He may not be negligent in doing so, since his decision may be an entirely reasonable one, because the risk is relatively slight in comparison with the utility of his own conduct; and he may even act with unusual caution because he is aware of the danger. The same policy of the common law which denies recovery to one who expressly consents to accept a risk will, however, prevent his recovery in such a case. As to such implied assumption of risk, see § 496C. As to the necessity that the plaintiff's conduct be voluntary, see § 496E. 4. To be distinguished from these three situations is the fourth, in which the plaintiff's conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible. (See § 467.) . See note 2, supra, for a description of types 2 and 3 assumption of risk. . See note 2, supra, for a description of type 4 assumption of risk. . The comparative negligence statute, 42 Pa.C.S. § 7102, provides: (a) General rule.— In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff. . Carrender conceded that her testimony supported a determination that “the danger was either known or obvious to her.” . Judge Hoffman, writing for the Superior Court in Fish v. Gosnell, draws a distinction which may often be helpful in distinguishing assumption of risk from negligence: Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate a deliberate abandonment of the right to complain [as in an assumption of risk case], but rather is better judged by its reasonableness, that is, by negligence principles. Fish v. Gosnell, 316 Pa.Super. 565, 578, 463 A.2d 1042 (1983). . The Carrender court wrote: Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion. See Restatement [Second of Torts], supra, § 328B comments c and d. Carrender, 503 Pa. at 185-86, 469 A.2d at 124. . Howell testified as follows: Q. And where did you keep it [the gunpowder]? A. Above the sill when you walked out into the cellar. ****** Q. And why did you do that? A. We had a woodburner down the cellar. We burnt wood. I figured I didn’t want to place two objects like that in the house at the same time with an experimenting five-year-old I had. Q. So that you knew there was a danger then from the powder? A. Yes. Q. . And it could explode? A. Yes. N.T. 53-54. Later Howell testified: Q. You appreciated that you shouldn’t stand over the top of this cannon or in the perimeter around where things coming out of the top could hit you, you appreciated that, correct? A. Yes, I did. Q. And that’s why you were back; correct? A. Yes. Q. But you had no idea that the cannon would explode and hit you in the groin, did you? A. No, I didn’t. N.T. 73. In essence, Howell is claiming that although he knew that it would be dangerous to stand in front of the bore of the cannon, he did not anticipate danger from the cannon itself exploding. The trial court, in granting the nonsuit based on an assumption of risk theory, rejected Howell’s claim of ignorance, as a matter of law. On this record, I see no reason to disturb this determination. There are some dangers that are so obvious that they will be held to have been assumed as a matter of law despite assertions of ignorance to the contrary. . An exception to this holding which, in essence, abolishes assumption of risk as an affirmative defense, is that in cases involving express assumption of risk, or cases brought pursuant to 402A (strict liability theory), or cases in which assumption of risk is specifically preserved by statute, assumption of risk remains a viable affirmative defense.

The opinion of the Court was delivered by Rogers, J. — This was an action to recover the value of one hundred slaughter hides, shipped' on board the Sloop Neptune, for Baltimore, via the Chesapeake and Delaware Canal. The suit is founded on a receipt in the following words : “ Philadelphia, January 14th, 1836. Received on board Hand’s Line for Baltimore, via Chesapeake and Delaware Canal, from J. Baynes, one hundred slaughter hides, on deck, which I promise to deliver to Joseph Davenport, at Balti more, the dangers of the navigation, fire, leakage and breakage excepted, he or they paying freight eight dollars, and porterage one dollar and fifty cents. H. Hand, Per H. H. Eldridge.” This is a contract to carry the goods ;to the place of destination in a prescribed route. This construction of the contract, although not conceded to be correct, has been faintly denied. It cannot be pretended, that if a loss arises in an attempt to convey the goods by sea round Cape Charles, the owner would not be liable for the loss, unless they could show that the deviation arose from necessity. And yet the carriage by sea would be .optional with the carrier, unless the route through the canal is parcel of the contract. There is no mistaking the intention of the parties to the contract. It is well known to shippers, that the navigation is less dangerous by the canal, than by the outward passage. The risk is so much diminished, that it supersedes, in a great measure, the necessity of insurance on the goods, which no prudent' person would omit, if he should ship goods in the inclement season of the year, to be conveyed round the coast to the place of destination. And that there was a difference in the risk, was the impression of the owners of the vessel; for the advertisement of the 25th of March, presupposes the assent of the shippers to the alteration of the route, and the transfer of the goods to a vessel of a different description. But it is said, that although the contract was to carry the goods by the way of the Chesapeake and Delaware Canal, yet the deviation from the prescribed route arose from necessity. The evidence does not show with precision," the nature of the obstructions which prevented the passage of the vessel through the canal, but it sufficiently appears, that they were of the ordinary kind, and of a temporary nature. When the master discovered the impediments to the prosecution of the voyage, through the route called for in the contract, his duty was plain; he had one of two courses to pursue : to remain in a place of safety at the mouth of the canal, or in some convenient and safe place in the neighbourhood, until the obstructions were removed; or he should have returned and informed the owners and shippers, of the impracticability of proceeding through the canal. The legal effect of the contract, is an engagement to deliver the goods at Baltimore, in a reasonable time; and what would be a reasonable time must be determined under all the circumstances, with a view to the condition of the canal, the season of the year, the state of the weather, and such other matters as might enter into the question. If either of these courses had been pursued, and the shipper had brought suit for a breach of the implied contract to deliver the goods in a reasonable time, the condition of the canal at the' time, ■ would have entered materially into the question. But notwithstanding this, the case of Hadley v. Clarke, (8 T. R. 259,) shows that a temporary obstruction only suspends,. but does not dissolve the contract. These principles apply to an implied contract: but suppose the contract to be express, as to deliver the goods in a prescribed time; would any temporary obstruction, or the impossibility of complying with the engagement, arising from the condition of the locks on the canal, or any other cause, bé a defence to a suit for failure to perform the contract 1 It is very clear that it would not. When the law creates a duty of charge, and the party is disabled to perform it, without .any default in him, and hath no remedy over, then the law will excuse him; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good; if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. This distinction is founded in feason and authority. Alleyn, 27. Hadley v. Clarke, (8 T. R. 259.) The Company of Proprietors of the Brecknock and Abergaveny Canal Navigation v. Pritchard and others, (6 T. R. 750.) But it has been urged, that varying-from the usual course of a voyage, in the case of an insurance, or any extraordinary delay, may be justified by necessity; that the master is the common agent of the concerned, and that it is his duty to manage their .interests according to his best judgment; and that when he acts with good faith; and according to his best judgment, all parties, insurers as well as others, are bound by his acts. And this is correct, when applied to implied covenants; but when the ■ covenant is express, it must be strictly complied with. Thus, in addition to the authorities above cited, there are others, as between insurers and insured. Thus in Shubrick v. Salmon, (3 Burr. 1637,) Lord Mansfield says, the distinction between implied covenants, by operation of law, and express covenants, is, that express covenants are taken more strictly. De Hahn v. Hartley, (1 T. R. 343,) is to the same point. It was an action upon promises, brought by an underwriter to recover back the amount of a loss which he had paid upon a policy of insurance. It was held, that whatever is written on the margin of a policy, is a warranty and must be literally complied with. It has also been ruled, that if a ship warranted to sail on or before a particular day, be prevented fro'm sailing on the day by an embargo, the warranty is not complied with. Horn v. Whitmore, (2 Cowp. 784.) Paxson v. Watson, (2 Cowp. 785.) The Court are further of the opinion, that the clause in the receipt, “ the dangers of the navigation,” does not apply to dangers caused by the canal’s being, by inevitable accident, rendered impassable. Occasional interruptions of trade, arising from breaches in canals, or other accidents, are inconveniences, but in no sense can they be considered as dangers of the navigation, coming within the exception. The contract excepts the dangers -by the navigation on the route of the canal, and when there maybe such a danger as is provided for, it will be time enough to decide when it arises. By an alteration of the voyage, the shipper was exposed to risks which he would not have voluntarily encountered. The voyage by sea requires vessels of a different description, differently found, and differently manned; and although the shipper may have been willing to encounter the peril, in a vessel adapted to the trade, it does not follow that he would risk his property in a vessel whose ordinary route was through the, canal. He should not be exposed to the increased risk without, his consent, and without the opportunity of effecting an insurance on his property. ■ But it is said that tlie Court took the facts, from the jury. It appears from the record, that after the testimony was closed, the counsel for the plaintiff insisted, that the plaintiff was in law entitled to recover, and the counsel for the defendant insisted, that in law the plaintiff was not entitled to recover, and both parties requested the Court so to charge the jury. Both parties agreed to, or at least, did not dissent from, the course pursued by the judge, who directed the- jury to find for the plaintiff, subject to the opinion of the Court on all the points of law in the case, or upon the facts given in evidence. On the argument they have had the full benefit of all the facts and the inferences which the jury might draw from them, and we do not conceive, that the justice of the case requires, that the cause should be remanded on that ground. But can the consignor sustain the suit 1 This exception, after a full trial on the merits, is not entitled to much, favour; and we might be excused from noticing it altogether, as the exception does not appear as one of the errors assigned. The. plaintiff in error relies on Griffith v. Ingledew, (6 Serg. Rawle, 429.) There A. of Liverpool shipped goods which by the bill of lading were to be delivered to B. or his assignees in Philadelphia; the goods belonged to A., and the freight was payable in Liverpool; and it was held, that the bill of lading vested the property in the consignee, who might maintain an action in his own name against the ship-owner, for the negligent carriage of the goods. That suit was decided on the ground that the bill of lading vested the legal property in the consignee and that for the purpose of deciding the legal property, the Court would look to the face of the bill of lading. But this is not a bill of lading but a contract between the consignor and the carrier, and in actions against common carriers, the general principle is, that the right of action is attached to the property. There is nothing to show that Davenport is the owner of the goods, but it was in proof that Baynes was the owner. The receipt contains a contract with Baynes, to deliver the goods to Davenport, but whether as agent or vendee, does not appear. Baynes would be liable to payment of freight as is held in Barker v. Havens, (17 Johns. 234.) Shepherd v. De Barnales, (13 East, 565.) The case of Davis & Jordon v. James, (5 Burr. 2680,) is very like the present. That was an action against a common carrier for not delivering goods sent by him. The only question was, in whose name the action ought to have been brought. It was held, that the action well lies against the carrier in the name of the consignor. And in Moore and Others v. Wilson, (1 T. R. 659,) it is held, that in an action by the consignor of goods, against a carrier, for non-delivery, where the plaintiff averred that the defendant undertook to deliver, &c. in consideration of the hire to be paid by the plaintiff, proof that the hire was to be paid by the consignee, was held to be no variance, the consignor being in' law liable. Buller, before whom the cause was tried, non-suited the plaintiff; but on considering the question, found he was mistaken in point of law; for that, whatever might be the contract between the vendor and vendee, the agreement for the carriage was between the carrier and the vendor, the latter of whom was by law liable. And the other two judges being of the same opinion, the rule was made absolute. So also Vale v. Bayle, (Cowp. 294,) to the same point. The case of Davis v. Peel, (8 T. R. 330,) was decided on the principle that the consignee was the owner of the goods, and in such a case, the action can only be brought by the consignee, unless there is some special agreement between the consignor and the carrier. But in cases where the right of property is not divested, the consignor can maintain a suit, for he is the person who has sustained the loss, if any, by the negligence of the carrier; and whoever has sustained the loss is the proper party to call for compensation, from the person by whom he has been injured. We are of opinion that the plaintiff is entitled to judgment; and that the proper measure of damages is the value of the goods. Judgment affirmed.

Opinion of the court EAGEN, Chief Justice. On June 27, 1973, Norvell Lee Sherard was convicted by a jury in the Court of Common Pleas of Dauphin County of murder of the second degree. Post-verdict motions filed by trial counsel seeking arrest of judgment or a new trial were denied, and judgment of sentence of not less than ten years nor more than twenty years imprisonment was imposed. A direct appeal was taken to this Court, and we affirmed the judgment of sentence. Commonwealth v. Sherard, 456 Pa. 505, 321 A.2d 372 (1974). Subsequently, Sherard filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The District Court dismissed the petition because Sherard failed to exhaust state remedies. On May 10, 1976, Sherard filed a petition for relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1, et seq., 19 P.S. § 1180-1 et seq. (Supp.1978-79) [Hereinafter: PCHA]. Counsel from the office of the public defender of Dauphin County was appointed to assist him. The PCHA petition was denied and Sherard appealed to this Court from that order. Since the PCHA claim of ineffective assistance of counsel involved another public defender, we remanded the matter for the appointment of other counsel. Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977). In accordance with our opinion, the PCHA court appointed new counsel to aid Sherard in advancing his claims. A counseled PCHA petition was filed. The petition was denied without conducting an evidentiary hearing. This appeal is from that order. Sherard alleges the lower court erred in dismissing his petition without an evidentiary hearing. The right to a hearing is not absolute. Commonwealth v. Cimaszewski, 234 Pa.Super. 299, 300, 339 A.2d 95, 96 (1975); Commonwealth v. Hayden, 224 Pa.Super. 354, 356, 307 A.2d 389, 390 (1973). Section 9 of the PCHA, 19 P.S. § 1180-9 (Supp.1978-79), provides: “If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.” A PCHA petition may not be summarily dismissed as “patently frivolous” when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Commonwealth v. Yocham, 473 Pa. 445, 375 A.2d 325 (1977); Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Johnson, 431 Pa. 522, 246 A.2d 345 (1968). Sherard’s PCHA petition avers his conviction resulted from: “(1) The introduction into evidence of a statement obtained in the absence of counsel at a time when representation was constitutionally required; “(2) the denial of his constitutional right to representation by competent counsel; “(3) the abridgment of a right guaranteed by the constitution or laws of this Commonwealth or the United States; and “(4) 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.” Initially, Sherard asserts his constitutional right against self-incrimination was abridged when an oral statement obtained by police officers in the absence of counsel was admitted into evidence. To be eligible for relief under the PCHA, a petitioner must prove, inter alia: “That the error resulting in his conviction and sentence has not been . . . waived.” Section 3(d) of the PCHA, 19 P.S. § 1180-3(d) (Supp.1978-79). Furthermore, Section 4(b) of the PCHA, 19 P.S. § 1180-4(b) (Supp.1978-79), provides: “For the purposes of this act, an issue is waived if: “(1) The petitioner knowingly and understanding^ 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 initiated under this act; and “(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.” Finally, Section 4(c) of the PCHA, 19 P.S. § 1180 — 4(c) (Supp.1978-79) provides: “There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.” Since the alleged unconstitutionality of Sherard’s statement was cognizable prior to trial, the issue was waived and could not have been considered in the post conviction proceeding unless Sherard either rebutted the presumption that the failure to raise the issue prior to trial was knowing and understanding, or alleged and proved the existence of an extraordinary circumstance justifying the failure to raise the issue. Commonwealth v. LaSane, 479 Pa. 632-633, 389 A.2d 48, 49 (1978). Sherard did not allege any facts which, if proven, would rebut the presumption that the failure to raise the issue was knowing and understanding. Sherard argues the issue of the unconstitutionality of his statement is not waived because an extraordinary circumstance exists to excuse his failure to raise the issue prior to trial, namely, ineffective assistance of counsel. See Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973). We must determine if ineffective assistance of counsel is established as required by Section 4(b)(2) of the PCHA, 19 P.S. § 1180-4(b)(2) (Supp.1978-79), to determine if the constitutionality of the statement should be considered. See Commonwealth v. LaSane, supra. Furthermore, since Sherard was represented in the post conviction proceedings for the first time by counsel other than his trial counsel, and since he advanced the issue as an independent basis for relief, we will also consider the issue of ineffective counsel as a separate basis for relief. . Section 3(c)(6) of the PCHA, 19 P.S. § 1180-3(c)(6) (Supp. 1978-79); Commonwealth v. LaSane, supra; Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976). Sherard also has the burden of proving ineffectiveness of counsel as an independent basis for relief. Section 3 of the PCHA, 19 P.S. § 1180-3 (Supp.1978-79). In evaluating the effectiveness of counsel, we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967): “We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” [Emphasis in original.] Accord Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Little, 468 Pa. 13, 359 A.2d 788 (1976); Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970). However, before inquiring into the basis for trial counsel’s failure to raise the issue of the admissibility of Sherard’s statement into evidence, we must determine whether the issue, which counsel is charged with failing to raise, is of arguable merit. See Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977); Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977); Commonwealth v. Hubbard, supra. The record demonstrates the Commonwealth introduced Sherard’s statement into rebuttal evidence to impeach his credibility. On cross-examination by the deputy district attorney, Sherard denied making any statement to the Harrisburg police during the return trip to Dauphin County subsequent to his arrest. The Commonwealth rebutted Sherard’s testimony by recalling as a witness, Detective Michael Jones. Detective Jones, one of the police officers who transported Sherard after his arrest, testified that, after first refusing to waive his constitutional rights, Sherard volunteered the following statement: “. . .he [Sherard] did not cut the man that he never had a knife, the man had a knife and pulled it on him, he pushed the man and that the man fell back on the car and cut himself.” Sherard alleged the above statement was made during interrogation in the absence of counsel after he had requested counsel. If this allegation were true, then the issue of the admissibility of the statement clearly has arguable merit. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Reiland, 241 Pa.Super. 109, 113, 359 A.2d 811, 813 (1976). Accord Michigan v. Mosley, 423 U.S. 96, 101 n.7, 96 S.Ct. 321, 325 n.7, 46 L.Ed.2d 313, 320 n.7 (1975). The PCHA court found the record showed that the arresting officer advised Sherard of his right to have counsel, but he responded he did not want one. However, after examining the record, we do not find any support for the conclusion that Sherard indicated he did not want an attorney. Moreover, Sherard should have been afforded an opportunity to present evidence to prove his allegation and thereby show the issue had arguable merit. Furthermore, Sherard alleged his statement was inadmissible because it was taken during interrogation after he expressed a desire to remain silent. If this allegation were true, the issue of the admissibility of the statement would have arguable merit for this reason also. In denying relief under the PCHA, the court found the record shows that the statement was volunteered, i. e. was not made in response to questioning. We have previously recognized “volunteered statements of any kind are not barred by the Fifth Amendment and this admissibility is not affected by the [Miranda decision].” [Emphasis supplied.] See Commonwealth v. Yount, 455 Pa. 303, 309, 314 A.2d 242, 245 (1974); Commonwealth v. Hamilton, 445 Pa. 292, 295, 285 A.2d 172,174 (1971), both quoting from Miranda v. Arizona, supra. However, we again fail to see how the PCHA court could have classified Sherard’s statement as volunteered and dismissed the claim of ineffective assistance of counsel without a hearing on the merits. The testimony of the arresting officer at trial corroborates Sherard’s allegation that, after having been informed of his rights, he indicated he did not wish to talk with the arresting officer. The PCHA court determined the statement was volunteered without affording Sherard an opportunity to prove his allegation and thereby show the issue had merit. Thus, the PCHA petition alleges facts which, if proven, would establish the admissibility of Sherard’s statement was an issue of arguable merit for two reasons. However, to say the issue is of arguable merit if the facts alleged are proven is not to conclude counsel was per se ineffective for not raising the issue. Indeed, the failure to raise the issue could have been of a reasonable, calculated trial strategy designed to effectuate Sherard’s interests. Commonwealth v. Hubbard, supra, 472 Pa. at 285, 372 A.2d at 699. On the state of the record, however, we cannot determine if such a reasonable basis existed because no evidence was presented with regard to counsel’s strategy, and because Sherard’s allegation that counsel was ineffective necessarily includes an allegation that no reasonable basis existed. Hence, Sherard should have been afforded an opportunity to show no reasonable basis existed because such a showing, when coupled with a showing that the admissibility of the statement was an issue of arguable merit would have established ineffective counsel. Accordingly, since Sherard alleged facts which would establish the issue counsel failed to raise was of arguable merit and would also establish no reasonable basis existed for counsel’s failure to raise the issue, his claim of ineffective counsel, as an independent basis for relief, would warrant granting relief if his allegations were proven. Thus, he should have been granted a hearing on this issue. Furthermore, if he were to succeed in his claim of ineffective counsel, he would also be entitled to a hearing on his claim that the statement was obtained under circumstances constitutionally impermissible because such a showing would establish an extraordinary circumstance precluding a ruling that the issue was waived and because the merits of the admissibility of the statement cannot be determined without hearing evidence related thereto. The order of the Court of Common Pleas of Dauphin County is vacated and the record remanded for further proceedings consistent with this opinion. . The evidence indicates that on January 9, 1973, in the City of Harrisburg, Sherard struck Frank G. Kools with a knife that lacerated his carotid artery, causing him to die from loss of blood. The fatal injury was preceded by a disagreement relating to the failure of Kools and two companions to fulfill the terms of an arrangement made with Sherard’s girl friend, to pay her the sum of $20 each after participating in a sexual act with her. The fatal injury was inflicted as Kools exited from an automobile and gestured toward Sherard, as if to shake his hand in the form of an apology for failing to participate in the arrangement with Sherard’s girl friend. On the evening of the slaying, Sherard and his girl friend fled to New York City. Sherard was apprehended in New York City by the FBI and was returned to Dauphin County by the Harrisburg Police. Sherard alleges that, while at the Detention Center in New York, he requested an attorney, but the police never provided one for him. Following this alleged denial, Sherard asserts the statement at issue was elicited in the car en route to Harrisburg. Furthermore, Sherard alleges the statement was obtained after he expressed a desire to remain silent. Sherard contends that having allowed the statement to be introduced into evidence clearly violated his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . See Pa.R.Crim.P. 323(b). See also Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973); Commonwealth v. Nash, 436 Pa. 519, 261 A.2d 314 (1970); Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967), cert. denied, 390 U.S. 983, 88 S.Ct. 1104, 19 L.Ed.2d 1281 (1968). . Section 9 of Sherard’s original PCHA petition alleges, inter alia: “These issues have never been presented to the court before where 1 had the assistance of counsel and I did not waive my right to raise same.” . Sherard asserts in his PCHA petition, inter alia: “4(b) Petitioner alleges that he was denied the effective assistance of counsel in that trial counsel failed to raise proper objection to the introduction of oral statements allegedly made while in the ■ custody of members of the Harrisburg Police Department. . .” . In order to evaluate this issue of ineffective assistance of counsel, we must address the arguable merit of the issue that the statement was inadmissible. We emphasize our analysis of this issue is undertaken solely for the purpose of resolving the question of ineffective representation. See Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). . That it was admitted in rebuttal is of no moment. A statement, which is constitutionally inadmissible as part of the Commonwealth’s case-in-chief, under Miranda v. Arizona, supra, may not be used at trial for impeachment purposes. Commonwealth v. Robinson, 428 Pa. 458, 239 A.2d 308 (1968). . The exact rebuttal testimony of Detective Jones is as follows: “The Court: Put it on the record. “The Witness: It says on the top, warning and waiver, ‘I’m Officer Michael Jones of the Harrisburg Police Department, I would like to talk to you about the nature of the crime’ which the crime was murder. ‘And, be advised that this talk is an investigation and questions directed against you and your interest. You have a constitutional right to remain silent and you need not talk to me if you don’t wish to. You don’t have to answer any of my questions. Do you understand that [?]’ And, he acknowledged. ‘If you do talk to me anything you might say, can and will be used in court against you, [d]o you understand that?’ Again an affirmative acknowledgment. ‘If you want a lawyer to be present now, or at anytime during this questioning, you have a right to have one to talk to with, before and during questioning, do you understand this?’ And, his answer was yes. ‘If you can’t afford to pay a lawyer the court will appoint one for you at no cost to you and all questioning will stop until that lawyer has talked with you and is present, do you understand this?’ Again the answer was yes. ‘You can decide at anytime not to answer any questions or make any statement, do you understand this’? The answer was yes. ‘Knowing these rights do you wish to talk with me without the presence of a lawyer and answer my questions?’ Again, the answer was no. [Emphasis supplied.] “Q. After you gave the defendant his right you just read them from your card, did he make any statement concerning his participation in this incident to you? “A. Not at that time. During the trip home he became a little more relaxed and stated he did not cut the man that he never had a knife, the man had a knife and pulled it on him, he pushed the man and that the man fell back on the car and cut himself.” . The Commonwealth’s argument that Sherard’s statement was exculpatory in nature does not require a different conclusion. See Commonwealth v. Padgett, 428 Pa. 229, 231 n.2, 237 A.2d 209, 210, n.2 (1975).

Opinion by Mr. Justice Eagen, The defendant, Arthur Grover Schuek, was indicted and tried before a jury for the' murder of Vincent J. Quigley in Beaver County, Pennsylvania. He was found guilty of murder in the first degree and the penalty was fixed at death. From the judgment of sentence and denial of a new trial, this appeal was filed. We have examined the record, as required under the provisions of the Act of February 15, 1S70, P. L. 15, §2, 19 PS §1187, for the purpose of determining whether the essential ingredients of murder in the first degree affirmatively appear therein and we are completely satisfied that the facts and circumstances of the crime, as shown by the testimony, definitely support the conviction. On Sunday, April 27, 1958, shortly after two o’clock a.m., William Engle, Angeline J. Pugliano and Quigley were riding in the front seat of an automobile operated by Engle on Ann Street in the village of Brownsdale, Economy Borough, Beaver County. Engle and Miss Pugliano were engaged to be married the following June. Quigley resided in a dwelling on Ann Street and Engle was in the process of driving him from his place of employment to his home. He drove the automobile a short distance beyond the Quigley residence and turned into a private driveway on property of one Mrs. Olga S. Kay, intending to turn around and proceed down Ann Street to permit Quigley to alight. As the vehicle was stopped momentarily, shots were fired from a .348 caliber Winchester rifle into the rear and side portions of the vehicle. Engle and Quigley were struck by some of the bullets and both died instantly. Miss Pugliano was injured. The latter testified that as Engle’s car started to back out of the Kay driveway, a loud bang or shot sounded. Then, a second shot followed and a bullet came through the back of the car. There was a splatter of blood. Quigley got out of the car and yelled, “Hey, Cook, what are you doing? Are you crazy?” Then, there was a third shot as Quigley fell back into the car, grabbing himself about the abdomen and slumping over. Miss Pugliano then crouched down on the floor at the middle portion of the seat with her back towards the front of the car. Looking through the front window on the passenger side, she saw a man spreading his legs, leveling a rifle, and firing two more shots into the car. The man then walked around to the driver’s side of the car, put his face very close to the glass and looked in. He then walked back to a car parked a short distance away, started the motor, backed np the street with the headlights on and then turned them off Avhile driving atvay. The accused denied being in the vicinity of the shooting and committing the murders. He testified that he had been drinking heavily Saturday afternoon and night, and could not specifically account for his actions during the important hours involved. He suffered a complete lapse of memory for the period of from about tAvelve midnight, when he left a tavern in Ambridge, until he Avas in his home and knocked over an ash tray while preparing for bed. His Avife testified that he arrived home about two-fifteen o’clock in the morning (Sunday) and that he Avas “real drunk.” Other witnesses testified to seeing him drinking in taverns in Ambridge during the course of Saturday night. Some testified that at the time he Avas not intoxicated; one testified that he appeared to be intoxicated. PolloAving the shooting, state and local police went to the defendant’s residence about four o’clock a.m. and found him in bed. He awakened swinging and kicking. In the kitchen under a couch or daybed, they found a .348 caliber Winchester rifle, admittedly the defendant’s property. Four rounds of ammunition were in the magazine. In the right front pocket of a pair of trousers on the chair near his bedside, they found three loaded .348 caliber cartridges. Five such discharged shells Avere found at the scene of the shooting. Expert testimony was offered to the effect that tests proved these shells had been discharged from the defendant’s rifle. Miss Pugliano, at the trial, positively identified the defendant as the man she saw firing the shots into the death car. She had never known the defendant before. As a result of her injuries, she was hospitalized for three weeks and, following her release, she was taken to police headquarters to observe a lineup consisting of six males. On this occasion, she definitely picked out and identified the defendant as the murderer. Mrs. Ray, in whose driveway this tragedy occurred, was awakened by the first shot and ran to the front bedroom window. She saw the man firing shots from a rifle into the car and telephoned the police. She described the man in detail to the investigating officers. At a police line-up, she identified the defendant as being that man. At the trial, she testified that the defendant looked similar to-the man she saw doing the shooting. Witnesses also described the automobile parked at the scene of the shooting in which the slayer made his escape. The descriptions substantially fitted the automobile the defendant was driving that night. Edward and Rose Ragozine reside in a house fronting on Ann Street, a few houses and a short distance away from the Ray property, the scene of the shooting. Almost immediately-after the shooting, Mr. and Mrs. Ragozine arrived at their home in their automobile, after being out for the evening. It ivas to them that Miss Pugliano ran screaming for help. Testimony at the trial indicated a strong similarity of appearance between the Engle automobile and the Ragozine automobile. The defendant and Mrs. Ragozine had been having a close association for sometime previously. The details, most of which the defendant admitted, were outlined in her testimony at the trial. She testified, inter alia, that she had been trying to bring this relationship to an end for months and on one occasion had caused the defendant’s arrest; that the defendant told her that if he could not have her, no one else would; that he threatened to kill her and her family; that he frequently called her on the telephone; and, that he drove his automobile up and down the street in the block where she resided, tooting the horn. On one occasion, he told her that he had hired some men to kill her husband. On another occasion, he drove her to the vicinity of his home, asked her if she was going to go away with him, and she said she would if he didn’t hurt her husband. He said he would anyhow. When she attempted to leave the automobile,- he hit her with a hammer and threatened her with a revolver which he pressed to her body. On another occasion, he threatened to blow her husband’s head off, and said he had a weapon which could get him from a mile away. He warned her this would happen if more than five days elapsed Avitliout her contacting him. On the Sunday before the shooting, he told her over the phone, “I am going to do what I said I would, I am going to kill all of you.” She replied, “If that is the way you feel, go ahead and do it. . . . I’ll never talk to or see you again.” In vieAV of the overwhelming evidence, there can be no reasonable doubt as to the defendant’s guilt. The record depicts the mind of a malicious man long bent on murder. The tAvo unfortunate victims, undoubtedly, died because of mistaken identity. The defendant Avas given a very fair trial. His defense Avas presented in adequate fashion. In support of the motion for a new trial several reasons are assigned but careful consideration indicates lack of merit in each and every one of them. Miss Pugliano suffered from tAvo or three small particles of glass in the surface of each eye from the shattering of the automobile window glass during the shooting. An effort seriously to impugn her physical competency to see and later identify the defendant was made by defendant’s counsel during her cross-examination. A medical doctor, an eye specialist, who removed these foreign substances and treated her for these injuries during her stay in the hospital, was permitted to testify that, in his opinion, these injuries and the presence of these foreign substances did not impair her vision on the occasion involved. This testimony was clearly admissible under the circumstances. Whether or not Miss Pugliano’s testimony was correct and credible, particularly her identification of the accused, was for the jury to decide in the light of all the attending facts which were explicitly brought forth at the trial. On appeal, it is not within the province of the appellate court to pass upon the credibility of the testimony: Commonwealth v. Logan, 361 Pa. 186, 191, 192, 63 A. 2d 28 (1949). It is argued that the lower court erred in not aAvarding a new trial because of after-discovered evidence. The defendant, approximately seven months after trial, submitted an affidavit made by a man named Hickey. It states, in the part most material here, that the affiant saAV the defendant engaged in a fist fight at approximately one forty-fiAre a.m. at or near the intersection of 24th Street and Duss Avenue in the town of Ambridge. (The time is fixed from memory of a conversation with a girl in whose company he had been minutes before, who indicated, after looking at her wrist watch, that it Avas then one forty-five a.m.). Further, that the defendant appeared to be under the influence of alcohol. The scene of the shooting is only a short distance and a feAV minutes aAvay from this area of Ambridge. We cannot see Iioav this evidence would, in vieAV of the guilt-convincing testimony, pro duce an iota of a change in the result. It does not raise a substantial doubt as to the guilt of the defendant. The defendant, according to the testimony offered at the trial, Avas in the area of Ambridge as late as tAvelve-thirty o’clock a.m. on the morning of the shooting. He and his counsel had ample opportunity to, and did in fact, produce for the consideration of the jury quantitive testimony of his drinking and visitations in that community on the previous night. Hickey’s testimony as to the defendant’s insobriety Avas merely corroborative and emulative. It is, also, Avell Avitliin the range of that type of testimony Avhich Avas available to the defendant Avithout difficulty and through the exercise of reasonable diligence before trial. In order to justify the grant of a neAV 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 avouM likely compel a different result: Hagopian v. Eskandarian, 396 Pa. 401, 407, 408, 153 A. 2d 897 (1959) ; Commonwealth v. Clanton, 395 Pa. 521, 526, 151 A. 2d 88 (1959) ; Commonwealth v. Green, 358 Pa. 192, 199, 56 A. 2d 95 (1948). As to the defendant’s presence in Ambridge as late as one forty-five o’clock a.m. or even minutes later (although the time is fixed by hearsay), this would not physically prevent the defendant from driA'ing to and arriving at the scene of the shooting before two-ten o’clock a.m., the approximate time of the slayings. Defendant’s counsel also argues that those portions of the charge of the trial judge relating to circumstantial evidence, the burden of proof and the meaning of reasonable doubt Avere inadequate and misleading. An examination of the charge discloses correct and com píete instructions in regard to each and every relevant ■principle of law, and the application thereof was explained in fair and understandable language. Assignment of these alleged errors indicates merely a desperate grasping for straws in an effort to arrest the effect of a just verdict. Judgment and sentence affirmed. Quigley’s face was almost completely blown off and another projectile entered the left side of the chest, passed through the body, completely severing the spinal column in the second and third •thoracic region. In the State Police laboratory in Harrisburg loaded cartridges were fired from the defendant’s rifle. Examination disclosed marking's across the primers identical to those which existed on the discharged shells found at the murder scene. The firing pin indentation was off center and was in the same location on each discharged shell. The heads and rims manifested similar extractor markings.

Opinion by Mb.. Justice Potteb, On October 6, 1902, Eli H. Zeigler and others, county commissioners of York county, filed their petition in the court of common pleas, in which they alleged that William O. Thompson was duly elected treasurer of York county for the term of three years beginning on the first Monday of January, 1900, and thereafter duly qualified and entered upon the duties of his office; that the accounts of said treasurer for the years 1901 and 1902 were duly audited by the county auditors and their reports were filed among the records of the court as directed by law; that by reason of certain frauds practiced by the treasurer upon the county commissioners and the county auditors which are set forth in detail in the petition, the reports of the auditors as filed did not show the true balances due by the treasurer to the county; that the report for 1900 showed a balance less by $10,745.09, and that for 1901 a balance less by $59,492.11, than the amounts actually due, and that the petitioners were ignorant of the frauds practiced by the treasurer until a recent date, after the time allowed by law for appeals from the reports of the county auditors had elapsed. The petitioners prayed the court for leave to appeal from the reports of the county auditors for 1900 and 1901, nunc pro tunc. By agreement of counsel for all parties in interest, the case was argued before the court, as on demurrer to the petition, and the court sustained the demurrer, holding that it had no power to allow an appeal after the expiration of the time fixed by the statute. From this judgment the county appealed. The case arises under the Act of April 15, 1834, P. L. 537, which contains the following provisions : Sec. 55. The report of the auditors shall be filed among the records of the court of common pleas of the respective county, and from the time of being so filed shall have the effect of a judgment against the real estate of the officer who shall thereby appear to be indebted either to the commonwealth or to the county. Sec. 56. An appeal may be made from such report to the court of common pleas, of the same county, either by the commonwealth, the county, or the officer, and thereupon the court may direct an issue as the case may require, to be tried by a jury, upon whose verdict final judgment shall be entered. Sec. 57. Such appeal shall be entered by the commonwealth within four months and by the county and the officer within sixty days after the filing of the report: Provided, That if the officer be the appellant he shall enter into a recognizance with two sufficient sureties in double the sum found due by such report, with condition to prosecute the appeal with effect and pay the costs and such sum of money as he shall appear by the verdict of the jury to be indebted. Sec. 58. If an appeal shall not be entered and security given as is hereinbefore required, or if upon, such appeal, judgment shall be given in favor of the commonwealth or of the county, execution shall thereupon issue against the property or person of the defaulting officer, in like manner as upon judgments recovered in usual course of law. There is no doubt as held in Northumberland County v. Bloom, 8 W. & S. 542, that the report of the county auditors has the effect of a judgment, subject to appeal by either party which is conclusive against both the county treasurer and the county, and that “ the county, as well as the officer has a limiited period of appeal, and when it has slipped its time, it has no further remedy.” The subsequent cases which are collected in the opinion of this court in Westmoreland Co. v. Fisher, 172 Pa. 317 (321), are to the same effect and hold that the report of the county auditors, when filed in the prothonotary’s office and unappealed from within the time allowed by the statute, is conclusive upon all parties and cannot be disturbed for the purpose of correcting errors or supplying omissions. But a detailed examination of all of these cases shows that in none of them was there any proof or allegation that the report was obtained by fraud which was not discovered until after the time allowed for the appeal had passed. In Blackmore v. Allegheny Co., 51 Pa. 160, which was an action of debt against the executors of the deceased county treasurer upon his official bond, it was held after a thorough examination of the provisions of the act of April 15, 1834, and the cases decided under it, and analogous statutes, that the reports of county auditors are conclusive upon all parties and (p. 163) “ cannot be inquired into, either by the same tribunal at another time, or by a court of law, except in the manner provided, upon an appeal by the county or the officer.” But in this case it was distinctly intimated by Judge Agnew that the auditor’s report even if unappealed from, might be set aside for fraud. He said (p. 62) that the court below had in that case allowed a recovery “ without any evidence which we can see of artifice or fraud used to conceal the item from the scrutiny of the auditors.” In Westmoreland County v. Fisher, 172 Pa. 317, the last case arising under the provisions of the act of April 15, 1834, which are now in question, the county auditors in their report duly filed and unappealed from, found that a certain balance was due by the treasurer to the county. Subsequently they reviewed their work and filed a supplemental report, increasing the balance due. This court held that in filing the supplemental report, the auditors exceeded their powers, and that it must be stricken from the record. But the court in that case considered neither the question of fraud, nor the power of the court to allow an appeal nunc pro tunc, upon fraud being shown. In Lacock v. White, 19 Pa. 495, where it was first held that the court of common pleas had no power to open a judgment entered on a transcript of a judgment by a justice of the peace, Chief Justice Black said (p. 497) : “ It may safely be laid down as a rule on this subject that a judgment rendered by one tribunal cannot be set aside and the cause heard again by another, though a superior one, except in the strict exercise of appellate jurisdiction. The court may indeed set aside an illegal award, strike off a lien irregularly entered, or inquire if it was entered for a fraudulent purpose.” But the question of power to grant an appeal nunc pro tune was not considered in this case, nor in any of those in which Lacock v. White has been followed. In Stebbins v. Crawford Co., 92 Pa. 289, it was held that where auditors by an error in calculation had charged the county treasurer with a smaller balance than was actually due by him, and the time for an appeal had passed before the mistake was discovered, there was a moral obligation on the treasurer to pay the difference, which would constitute a sufficient consideration for his promise to do so. In Plains Township Audit, 15 .Pa. C. C. Rep. 408, Judge Rice, then on the common pleas bench, allowed an appeal nunc pro tunc from the report of township auditors, upon the ground that the appellant had been misled by the town clerk and had consequently failed to file his appeal in time. It is there held that the granting of appeals nunc pro tunc is within the equitable powers of the court. In Smythe v. Boswell, 117 Ind. 365, it was said, “ It is true that the judiciary is an independent department of government, exclusively invested by the constitution with one element of sovereignty and that this court receives its essential and inherent powers from the constitution and not from the legislature. This fundamental principle leads, 'as we are satisfied, to the proposition that, if an appeal within the time limited by law should be prevented by the fraud of an appellee, or his counsel, the court might, notwithstanding the statutory limitation, grant an appeal upon a proper application. “ This power, to put the doctrine in a somewhat different form, exists not by virtue of legislation, but by virtue of the inherent right of every superior court to maintain its dignity and independence, and to control its process and maintain its inherent jurisdiction.” In Hutts v. Martin, 131 Ind. 1, it was said (p. 3): “We think it clear that an appellate court has the inherent power to relieve against accident and excusable mistake in the proper case .... All parties must be brought in within the% time limited for appealing, unless accident, fraud or excusable mistake is affirmatively shown.” The power of the courts of Pennsylvania to open judgments upon equitable grounds has been recognized since Kalbach v. Fisher, 1 Rawle, 323, where it was said: “ The power of the court of common pleas in relation to open judgments is most ample and policy requires that it should be liberally used, otherwise great and manifest injustice would be the consequence, from the great variety of shapes which fraud may assume in the complicated transactions of men.” It was said by our Brother Mitchell in Fisher v. Hestonville, etc., Pass. Railway Company, 185 Pa. 602: “ There can be no question that the rule that fraud vitiates everything into which it enters applies to verdicts and judgments and the equitable powers of the courts on that subject may be administered summarily upon rule.” We can see no reason for holding that the judgment in this case should be exempt from the control of the court, through the exercise of its chancery powers. The law gives to the report of the auditors when filed in the court of common pleas the effect of a judgment of that court. If it is to have that force and effect, it should certainly in the interest of justice be subject to the same equitable control. The conditions of the present case are unusual, and it may be that the relief required differs from that granted in any previous case. But we are not concerned as to that. In the exercise of its equitable powers, the court will reach far, to prevent the triumph of fraud. As was said by this court in Cochran v. Eldridge, 49 Pa. 365 (370), “ when it is alleged on adequate proofs that a judgment in whole or in part has been obtained by a suppression of truth which it was the duty of the party to disclose or by the suggestion of a falsehood or by any of the infinite and therefore undefinable means by which fraud may be practiced, no court will allow itself, its records, and the process of law to be used as instruments of fraud.” It is here definitely charged that the report of the auditors was based upon the fraudulent misrepresentations made by the county treasurer. The general principle that the report of the auditors is final unless an appeal is taken in time, should not be allowed to prevent inquiry into a result attained by fraud. We are of opinion that under the allegations of the petition in this case, the court below has full power to deal with the question upon its merits, and to grant equitable relief by opening the judgment and allowing an appeal from the report of the auditors to be filed nunc pro tunc; and if upon full investigation it should appear that the report of the auditors had been procured by fraud, it would become the duty of the court to interfere by allowing the appeal asked for. The question, however, being of grave import, ought not to have been summarily disposed of on the petition and demurrer. The demurrer should have been overruled with leave to the county treasurer and his sureties to answer; and on answer, or in default thereof, the court should have informed itself by depositions as to the real facts in connection with appellants’ allegations of fraud, and, if then satisfied that relief ought to be granted, the judgment should be opened and the appeal allowed. The error into which the learned judge fell was in holding that he had no power to allow an appeal after the expiration of the statutory period. He not only possesses that power but should exercise it in a proper case, and the only question before him after full investigation here will be whether such a case has been presented. The decree sustaining the demurrer is reversed, and the record is remitted to the court below, for further proceedings in accordance with this opinion. Also reported 20 N. E. Repr. 263. Reporter. Also reported 30 N. E. Repr. 698. Reporter.

Opinion by Mr. Justice Simpson, The Jersey Mortgage Investment Company, hereinafter called owner, was the record owner of an apart- men! .house in the City of Philadelphia, subject to two mortgages, plaintiff being the assignee of the second of them. It was in the usual form, conveying to the mortgagee, his heirs and assigns, the property described, together with “the reversions and remainders, reñía, issues and profits thereof.” After it became due and payable, plaintiff notified the tenants of the property, all of whose leases were subsequent in date to the execution of plaintiff’s mortgage, that he required them to pay the rent to him. Seven of them did so; nevertheless, on three different months, the owner distrained upon all of them, and, on each occasion, a writ of replevin was issued by each tenant to recover the goods distrained. With matters in this shape, plaintiff filed the present bilMjL.equity, praying a decree that an injunction be granted against the owner and his real estate agent who ordered and his constable who made the distraints, from further proceeding therewith; that the tenants be required to pay their rents to plaintiff; that the replevin suits be consolidated into this proceeding; and for other relevant relief. The owner and his agent and constable answered the bill, including therein new matter, in the nature of a cross bill, and prayed that the tenants be decreed to pay their rent to the owner; that plaintiff be required to account for the rents he had collected; that he be enjoined from collecting any further rents; and for other relevant relief. Pending the trial of the case, the property was sold by the sheriff, who conveyed it to the purchaser at the sale, and thereafter the suit was continued only with regard to the rents which had accrued and been paid to plaintiff or the owner, between the date of plaintiff’s notice to the tenants and the date of the deed from the sheriff. The court below granted an injunction against the owner and his agent and constable, from collecting anything further on account of the rents which accrued between the dates specified, and from proceeding with the replevin suits; and further decreed that plaintiff pay the owner a sum of money, which represented the difference between the expenses paid by the owner after the date of plaintiff’s notice, in order to keep the property tenanted, and the rents subsequently collected by the owner; and placed the costs of suit on the owner. It appealed, and, in its statement of the question involved, only asks us to decide whether or not, under the foregoing facts, plaintiff’s notice to the tenants justified them in paying and plaintiff in receiving the rents which the tenants’ leases stipulated should be paid to the owner. In Bulger v. Wilderman and Pleet, 101 Pa. Superior Ct. 168, that tribunal has reviewed all the relevant authorities in this State touching the questions at issue here, and has so clearly and satisfactorily determined all the points involved, that we need only state them and refer interested parties to the report of that case. The relevant questions there decided are as follows: 1. While ordinarily, as to third parties.. a .mortgage, may be only a security for the debt specified in the accompanying bond, it is, as to the mortgagor and mortgagee, and those claiming under and through them, a conveyance of the land, and may be enforced as such whenever the mortgagee deems it necessary so to do in order to enable him to speedily and effectively recover the amount then due on the bond. 2. Whenever it is necessary for a mortgagee, or his assignee, to enter into possession of the mortgaged property, in order to secure effectively what is due to him under the bond, he may do so peaceably, if he can, or by ejectment, if this becomes necessary. 3. Whenever a mortgagor or one claiming title under him leases the mortgaged premises after the execution of the mortgage, his rights are necessarily subject to the prior rights of the mortgagee or his ássignee, unless there is an agreement otherwise. Hence, if, under such circumstances, upon notice to the tenant, the latter pays the rent to the mortgagee or his assignee, it is the equiva lent of an attornment, and the mortgagor and those claiming title under him, cannot justly complain of such payments. 4. If a mortgagor or one claiming title under him collects rent from the tenant after the mortgagee or his assignee has properly notified the tenant to pay the rent on account of the mortgage debt, such owner will be held liable to account to the mortgagee or his assignee for the rent thus received, less any payments made on account of the property, which inured to the benefit of the one who should ultimately be found entitled to the rent so collected. 5. If the mortgagee or his assignee collects rent from the tenant by virtue of the right so to do given by the mortgage, he must account therefor to the mortgagor, or those claiming title under him, and allow the net amount as a credit on the mortgage debt. 6. Whenever, by the terms of a mortgage, the rents of the property are expressly conveyed to the mortgagee, the latter or his assignee may, if the owner is in default, enforce that provision according to its terms. We are aware that the vice-chancellor, who wrote the opinion in Myers v. Brown, 92 N. J. Eq. 348, reached an opposite conclusion, and held that the words “together with the rents, issues and profits thereof” are practically meaningless ; but that is not the law of this State; it is at variance with our unbending rule that all the words of a contract are to be given an appropriate meaning and none are to be treated as surplusage, unless no other course is reasonably possible: Orth & Bro. v. Board of Education, 272 Pa. 411; Nick v. Craig, 301 Pa. 50. We have carefully considered all the authorities cited by appellant, and do not find any of them in conflict with the views above expressed. Those who are interested in pursuing the subject further than as set forth in Bulger v. Wilderman and Pleet, supra, and the authorities cited therein, may find much food for thought in articles written by Prof. William H. Lloyd, of the Uni versity of Pennsylvania, in 73 Univ. of Pa. Law Rev., page 43, and in Pa. Bar Assn. Quarterly, No. 10, page 1; in the note to Bulger v. Wilderman, in 80 Univ. of Pa. Law Rev., page 269; in 15 Minn. Law Rev., page 147; in 19 R. C. L. 309 et seq.; in 41 C. J. 486 et seq.; and in the various authorities and textbooks cited therein and in the footnotes thereto. The decree of the court below is affirmed and the appeal is dismissed at the cost of appellant.

Opinion by Mr. Justice Maxey, The question presented here is this: Has the attorney for the owner of real estate taken in condemnation proceedings any claim upon the award of compensation therefor, for the reasonable value of his services and costs of litigation, as against the mortgagee of the property? One of the appellants, Grace Wilson Harris, was the owner of 2121 and 2134 Vine Street, Philadelphia. Ap pellee, the Corn Exchange National Bank & Trust Co., held mortgages on both properties, securing a debt of Mrs. Harris upon which the balance due is $109,379. Púrsuant tó an ordinance, the city in 1934 condemned the properties for use as an addition to the Parkway, located therein. Mrs. Harris employed the other appellant, Myron Jacoby, Esq., to represent her in the condemnation proceedings. She sent him a letter stating: “It is understood and agreed between us that your charges for all legal services in this connection will be ten per cent of the gross amount collected from the city for this condemnation.” The mortgagee bank had notice of the proceedings, and of the fact that Mrs. Harris, the owner, had retained Jacoby to represent her in the matter. It made no objection (of course, it could not do so successfully), nevertheless, it kept silent during the entire proceedings and permitted Attorney Jacoby to bear the entire professional burden during the condemnation proceedings. The success of his efforts clearly redounded to its gain. A board of view was appointed and held hearings, at which Jacoby appeared for Mrs. Harris and produced expert testimony as to the value of the properties. In due course, compensation was awarded the owner in the amount of $67,000 for both properties, which is less than the mortgage debt. The award became final, but before it was paid by the city the mortgagee intervened and filed petitions to have the whole award paid to it as lien creditor. The lower court granted the petitions and awarded the entire fund to the bank, permitting Jacoby to intervene and file exceptions to the dismissal of his claim to ten per cent of the award, as counsel fee, and his reasonable costs and expenses of conducting the litigation against the city. It now appears that Mrs. Harris is insolvent, so that no hope can be entertained that she will be able to reimburse Jacoby or pay his counsel fee. Appellee does not claim that ten per cent of the award, as agreed upon by Mrs. Harris and Jacoby, is more than the reasonable value of his services. The exceptions of both Mrs. Harris and Jacoby were overruled, and they have appealed. Appellee’s position is that Jacoby was attorney for Mrs. Harris and must look to her for Ms fee and costs. It insists that its lien on the fund, by virtue of its mortgage, is superior to the claim of anyone through or under Mrs. Harris, the owner. It does not deny, however, that the owner of the property was the party entitled to claim compensation for its taking, and to initiate and conduct the proceedings before the jury of view. In Phila. & Reading R. R. v. Penna. Schuylkill Valley R. R., 151 Pa. 569, 575, 25 A. 177, it was said: “It is the undoubted right of the owner to institute and maintain proceedings for the recovery of the damages resulting from the appropriation of its land and to have the full benefit of the same.” To the same effect is Knoll, Admr., v. N. Y., etc., Ry. Co., 121 Pa. 467, 15 A. 571. Our decisions establish that in carrying on this type of litigation and securing a proper award the property owner sustains a trust relation as to creditors possessing liens on the property, sufficient to entitle the latter to equitable aid in enforcing such liens upon timely intervention in the proceedings. In Knoll, Admr., v. N. Y., etc., Ry. Co., supra, at pages 474 and 475, we said: “The right of action for . . . damages [in condemnation proceedings] is in the owner. ... If the owner should refuse to move, or should act fraudulently, the courts upon a proper application by lien creditors would no doubt treat him as a trustee and require him to do, or permit his creditors to do in his name, what might be necessary to an adjustment of the damages, and impound the money for those equitably entitled to receive it. . . . The claim asserted, however, would have been that of the owner, and the damages when settled would have been paid out under an order of the court. ... In these cases,, the courts seem to have regarded the owner as a trustee for his lien creditors, and a recovery in his name as one to be controlled for their benefit.” To similar effect is Woods Run Avenue, 43 Pa. Superior Ct. 475. The owner may even release damages against the municipality which takes the property for public use, so long as this is not in fraud of the mortgagee: Shields v. City of Pittsburgh, 252 Pa. 74, 97 A. 124. For all practical purposes, in the case before us, the City of Philadelphia stands ready to pay the award to those rightfully entitled to it, as the court shall direct. It must be distributed under equitable principles : Irons v. Pittsburgh, 64 Pa. Superior Ct. 126, 130. Under these decisions it cannot be said that appellee bank did all that it could to enhance the fund now to be distributed, by waiting until the litigation between the owner and the city had terminated, to step in at the last moment and claim the entire proceeds, just prior to payment, without bearing any of the labor and expense of producing the fund. If it thought its rights prejudiced, there was no reason why it could not intervene at the commencement of the condemnation proceedings, averring its claim as lien creditor, and demanding a right to be heard. Upon a proper application it would have had the right to appear by counsel and present evidence as to the value of the property taken, since it had the primary interest in the property. It is with poor grace that it now presses its claim to the full amount of the award, having held aloof when its interest was imperiled and was being protected by another party in interest seeking (but unsuccessfully) to salvage her equity in the property. If a principle in law or equity can be found to sustain an award of reasonable counsel fee and costs to the owner’s attorney, who litigated the compensation dispute and whose services helped produce the fund, it ought to be applied. Appellants do not contend that Jacoby has an ordinary common law or retaining lien upon the fund which the city is now prepared to pay, and which has been substituted for the condemned land. Such a lien is dependent upon possession by the attorney and binds only money, papers or other property in his hands: Dubois’s App., 38 Pa. 231; Quakertown & Eastern R. R. Co. v. Guarantors’ Liability Indemnity Co., 206 Pa. 350, 55 A. 1033; 2 Thornton on Attorneys at Law, 969, section 572. On the other hand, the right of an attorney to a charging lien upon a fund in court or otherwise applicable for distribution on equitable principles, which his services primarily aided in producing and to which, by agreement with his client, he is to look for compensation, has long been recognized by the authorities. In Patten v. Wilson, 34 Pa. 299, where counsel for a judgment creditor was held entitled to the whole amount of the judgment as against his client’s attaching creditor, this court referred to the right as an “equitable assignment.” In McKelvy’s & Sterrett’s Appeals, 108 Pa. 615, the attorney was termed the “equitable owner,” to the extent of the value of his services, of the fund in court produced by his efforts. In that case this court said at page 620: “The fact is found by the auditor and the court that the appellee was to look to this fund for his compensation. Its existence is due in great measure to his professional services. To the extent of the value of those services, then, the fund belonged to him; that is to say, he was the equitable owner thereof to the amount of his fee. When, therefore, it was discovered that the appellant was endeavoring to take the fund out of court by the aid of other counsel, thus ignoring the appellee’s claim, the court below did right in laying its hand upon such a proceeding. It was acting as a court of equity; it was .administering a fund within its actual grasp, and it was entirely competent to dispose of every question connected with that fund. It had been in the hands of a receiver but the receiver had paid it into court. The allowance of counsel fees touching a fund in equity has always been under the control of a chancellor.” In Weed’s Est., 163 Pa. 600, 602, 30 A. 278, we said, quoting a syllabus from Trustees v. Greenough, 105 U. S. 527: “One jointly interested with others in a common fund and who in good faith maintains the necessary litigation to save it from waste and destruction and secure its proper application, is entitled, in equity, to reimbursement of his costs as between solicitor and client, either out of the fund itself, or by proportional contribution from those who receive the benefits of the litigation.” See also Freeman et ux. v. Shreve, 86 Pa. 135; Seybert v. Salem Twp., 22 Pa. Superior Ct. 459. Other authorities sustain the rule established by our cases. A note in 11 A. L. R. 713, refers to some of them. In 1 Jones on Liens (3d ed.) 132, section 147, it is said: “An attorney may have a special lien upon a fund in court or in the hands of a receiver, recovered by him, and a court of equity, having such a fund in its possession, will protect the attorney in retaining out of it a reasonable compensation for his services.” And further, at page 206, section 201a: “An attorney has a lien upon a fund recovered by his aid paramount to the claims of persons interested in the fund of their creditors. The lien in such case exists without the aid of the statute”: 2 Thornton on Attorneys at Law states the principle as follows (Page 1022, section 624.) : “It is well settled that an attorney is entitled to compensation out of a fund which has been brought into a court of equity by his aid, and to which he looks for payment. Strictly speaking, perhaps, the fund is not actually charged with a lien; indeed, it is rather in the nature of an equitable allowance; but it has the effect of a lien, and is frequently spoken of as such.” (Page 975, section 578) : “The charging lien, originally, was defined to be the right of an attorney at law to recover compensation for his services from a fund recovered by his aid, and also the right to be protected by the court to the end that such recovery might be effected. Unlike the retaining lien, the charging lien does not depend upon possession, but upon the favor of the court in protecting attorneys, as its own officers, by taking care, ex cequo et bono, that a party should not run away with the fruits of the cause without satisfying the legal demands of the attorney by whose industry those fruits were obtained. . . . Nor is the charging lien a merely passive one, but, on the contrary, it entitles the attorney to take active steps to secure its satisfaction.” (Page 978, section 580) : “The doctrine under which the charging lien became effective was established on general principles of justice, and it rests upon the theory that one should not be permitted to profit by the result of litigation without satisfying the demand of his attorney. It has been well described as ‘a mere arbitrary exercise of power by the courts; not arbitrary in the sense that it was unjust or improper, but in the sense that it was not based upon any right or principle recognized in other eases.’ The parties being in court, and a suit commenced and pending, the courts invented this practice, and assumed this extraordinary power, for the purpose of protecting attorneys in their compensation.” The rule has been applied in the settlement of decedents’ estates. Counsel for a trustee is entitled to be paid out of the corpus of the estate, and likewise an attorney for a beneficiary who succeeds in establishing the right of the estate to a fund or specific property, or in protecting the trust res. In Crawford’s Est., 307 Pa. 102, 110, 160 A. 585, Mr. Justice Kephart, speaking for this court, said: “There can be no doubt but that Mr. Hastings was entitled to reasonable compensation (McKelvy’s App., 108 Pa. 615;. Schwartz v. Oil Co., 164 Pa. 415 [30 A. 297] ), and there can be no doubt but that the trust fund is the source from which the money shall be paid. Such is the case when a guardian employs counsel to protect his ward’s estate: Price’s App., 116 Pa. 410 [9 A. 856]. Also where a trustee employs counsel : Kennedy’s Est., 141 Pa. 479 [21 A. 671]; Hay’s Est., 153 Pa. 328 [25 A. 822]. See also Shaffer v. Spangler, 144 Pa. 223 [22 A. 865]; Weed’s Est., 163 Pa. 595 [30 A. 272]. Where all but one of the heirs employ counsel to protect an estate, counsel was held entitled to compensation out of the entire estate: Francis’s Est., 5 Kulp 17. Hence, where the fund has been secured for a charitable use through the services of an attorney, he is entitled to recover a fee out of the corpus of the trust estate.” An analogous doctrine is enforced in workmen’s compensation cases, securing to the injured employee’s attorney, who effects a recovery on his behalf against a negligent third party, payment of reasonable counsel fees and expenses out of the fund recovered, as against the right of the compensating employer to be subrogated to the fund. In Wilson v. Pittsburgh B. & I. Works, 85 Pa. Superior Ct. 537, the employer claimed a right to the whole fund, but his claim was denied and the employee’s attorney was ordered paid. Speaking of the employee’s action for damages, Judge Keller said, at page 540: “It is well known that such an action does not prosecute itself ; that lawyers must be employed and paid; and the question naturally arises by whom are their fees and expenses to be paid. The only interest of the employee in the action is in case the verdict should exceed the compensation payable to him by the employer; it would seem unjust to make him pay the expenses of a successful suit out of his compensation, to the sole benefit of the employer, if the verdict did not exceed such compensation. The interest of the employer, on the other hand, is immediate reimbursement up to the amount of the compensation paid and relief from future payments, and unless the verdict is in excess of the compensation payable by him, he alone is benefited by the recovery; just as in this case, every dollar of the net recovery goes to the employer, none to the injured employee. . . . The employer stands in the place of the employee, as respects the fruits of the action against the wrongdoer, to the extent of the compensation paid and payable by him. But the attorney who prosecuted the action and secured the fund is entitled to retain out of the money paid to him in satisfaction of the verdict reasonable compensation for his services in the case and reimbursement of his ex penses in connection therewith. The injured employee, as plaintiff in the action, is only entitled to the balance remaining in the attorney’s hands after such payment, and subrogation gives to his employer no higher rights than the former possesses. It is only just that the necessary fees and expenses incurred in creating the fund should be first deducted out of the fund, rather than charged against the employee for the relief of the party primarily benefited by the action.” The ruling in this case was approved by us in Ellis v. Atlantic Refining Co., 309 Pa. 287, 163 A. 531. The federal courts apply a like principle'in receivership cases, where it has long been established: Trustees v. Greenough, supra; Buell v. Kanawha Lumber Corp., 201 Fed. 762; Carbon Steel Co. v. Slayback et al., 31 Fed. (2d) 702. Nor do we think any of our previous decisions militate against this view, where, as stated in Quakertown & Eastern R. R. Co. v. Guarantors’ Liability Indemnity Co., supra, at page 354, and, as is the case here, “the fund is the product of the attorney’s labors, and he has agreed to look to it solely for compensation.” This was not true in that case, and this court said there was “no equitable consideration sufficient to move the conscience of a chancellor to interfere” and that “the claimant had an adequate and complete remedy at law.” In Dubois’s App., supra, it was admitted that the money to be distributed was a surplus arising on a mortgage sale, not brought into court through the attorney’s agency. In Patrick v. Bingaman, 2 Pa. Superior Ct. 113, there was no fund at all, until paid into court, not as a result of the efforts of counsel but by consent of all parties. In 6 C. J. 782, section 394, the equitable claim of the attorney is stated as follows: “While there is, strictly speaking, no lien on any fund which is within the custody or control of the court; yet, where a fund is brought into a court of equity through the services of an attorney who looks to that alone for his compensation, he is re garded as the equitable owner of the fund to the extent of the reasonable value of his services, and the court administering the fund will intervene for his protection and award him a reasonable compensation to be paid out of it. . . . This so-called lien extends, however, only to that part of the fund which belongs to those parties whose interests he has represented in the suit. It must also always appear that the services of the attorney operated to secure or collect the fund out of which he claims to be paid.” Under the authorities cited, where the attorney’s client, for whom the services were in the first instance rendered, stands on an equal footing with other claimants to the fund, or the latter derive their rights through the owner of the property which gave rise to it, the equitable right of the attorney will be sustained. We will go farther and say that even where a lien creditor, such as the mortgagee in the case before us, has a claim upon the property superior to the owner’s, yet, if his interest in the fund created, which the owner is primarily entitled to collect, is substantially identical with that of the owner, and the fund is realized solely through the efforts of the owner’s attorney, who agrees to look to the fund for his compensation, the lien expeditor must yield his claim to the attorney’s reasonable claim for compensation and must yield his claim also to the payment of the legal costs. There is authority for so holding and the equitable principles referred to sustain it. Of course, where the owner has merely assigned to third parties his interest in the award of damages, this cannot defeat the mortgagee’s claim to the whole of it on a valid debt. “It does not lie in the mouth of the owner or his assignees, with notice of the recorded mortgage, to contend that the first mortgagee should be satisfied with an impaired or lessened equity in the mortgaged property”: Sarapin v. Phila., 306 Pa. 388, 390, 159 A. 866. Here, however, appellant Jacoby is not a mere assignee, i. e., transferee, of the fund; his efforts contributed to its creation. He conducted the entire litigation which resulted in the award, without assistance from appellee, the party which, if the decree of the court below stands, will be the sole beneficiary of Jacoby’s efforts. It is not denied that his efforts were successful and that they resulted in augmenting the fund realized. The attorney agreed to accept his compensation out of the fund, his client being otherwise unable to reimburse him. The interest of the owner and the mortgagee was identical — to raise as large a fund as possible, so that, as the owner hoped, something would be left for her after paying the mortgagee, and, as the mortgagee hoped, its security interest would be realized in full. The attorney’s services were more than desirable; they were essential. If the owner had refused to employ counsel and participate in the condemnation proceedings, presumably the mortgagee would have done so. It would be manifestly unjust to permit the mortgagee to reap all the benefits of the attorney’s endeavors and to “get out from under” even the smallest share of the burden which produced the benefits. We will impose on the fund the payment of the reasonable costs of its creation. In Lomack Home for the Aged and Infirm, etc., et al. v. Iowa Mutual Tornado Ins. Assn., 155 Iowa 728, 133 N. W. 725, the legal situation was similar to the one now before us. Plaintiff sustained a partial fire loss on its building and brought suit against its insurer, being represented by one McVey, who conducted the suit in all its stages and recovered a verdict for the owner. Intervening mortgagees claimed the entire proceeds of recovery, the insurance policy having contained a loss payable clause in their favor. The owner’s attorney was, however, awarded reasonable compensation out of the fund. The court said, at pages 735-737: “It is contended by the interveners that they severally had independent rights of action upon the insurance policy, employed independent counsel, and are in no manner responsible for the services rendered by McVey. The plaintiff, also, while accepting the benefits of McVey’s services, repudiates his claim, and denies that he was employed to conduct the suit. . . . The record discloses not the slightest ground for the plantiff’s appeal from this order. Mr. McVey brought the suit and conducted the litigation in its behalf to the end, and, as against his client at least, had both legal and moral right to demand payment from the recovery secured by him. . . . Nor do we think the interveners can justly complain of the allowance of attorney’s fees. It may be true that they could have brought independent actions upon their several claims, but they did not. They waited several months after the loss occurred without moving to collect the insurance, until the plaintiff, acting as it had the right, if, indeed, it was not in duty bound to do, brought action in its own name, when they availed.themselves of the proceedings thus begun by intervening therein. They did not and could not thereby displace the plaintiff or its counsel. They could, if they saw fit, unite with plaintiff and assist in prosecuting the claim; but they could not make the verdict returned and the judgment entered thereon anything less than a recovery for the plaintiff. The court could and did, upon their demand, recognize their rights as lienholders, and ordered the sum so recovered, less the expenses of such recovery, applied to the payment of their liens in the order of their admitted priority. In effect, the suit was brought by the plaintiff for the benefit of the mortgagees, and it is well established that in actions lawfully prosecuted by one person for the benefit of another he may, for that purpose, employ counsel, whose reasonable compensation is a charge upon the proceeds of a recovery so obtained. . . . There was therefore no error in the order of distribution as entered by the trial court. Interveners have obtained the full proceeds of the insurance, subject only to the reasonable expense of its collection, and they suffer no wrong in the refusal of their demand for more.” The same rule is applied in bankruptcy matters in the federal courts, where there is no 'general fund out of which the expenses of administering the bankrupt’s property subject to liens can be paid, which is analogous to the case before us. Where this is true administration expenses and fees of counsel for the trustee are chargeable upon the fund raised by sale of the mortgaged property : In re Torchia, 188 Fed. 207; Robinson v. Dickey, 36 Fed. (2d) 147; In re King, 46 Fed. (2d) 115. In Buell v. Kanawha Lumber Corp., supra, at page 769, the court stated that “funds arising from the proceeds of the sale of property upon which there were mortgages or other liens” might, in proper cases, be charged with a general creditor’s attorney’s fees and expenses which “in the court’s opinion the mortgagees would have been put to had they themselves foreclosed and liquidated the specific property subject to their liens.” The court below reached its conclusion relying in part upon Deering v. Schreyer, 171 N. Y. 451, 64 N. E. 179. That case, however, was an action at law by the attorney against his client, whose land had been taken for public use, to recover his fee, and the mortgagee, whose debt had been paid, was not before the court, the action as to him having been dismissed. The case turned on the interpretation of the contract of retainer and no question of the attorney’s equitable right to compensation was involved or considered by the court. The jurisdiction of equity in cases analogous to the case at bar is well recognized. In Wylie v. Coxe, 56 U. S. 415, the Supreme Court of the United States held that where a contract was made with an attorney for the prosecution of a claim against Mexico for a stipulated proportion of the amount recovered, and such professional services were rendered, the death of the owner of the claim did not dissolve the contract, but the compensation remained a lien upon the money when recovered. In that case Mr. Justice McLean, speaking for the court, said: “It is objected that equity can exercise no juris diction in the case, as adequate relief may be obtained at law. There may be a legal remedy, and yet if a more complete remedy can be had in chancery, it is a sufficient ground for jurisdiction. . . . The evidence proves that the complainant was to receive a contingent fee of five per centum out of the fund awarded, whether money or scrip. This being the contract, it constituted a lien upon the fund, whether it should be money or scrip. The fund was looked to and not the personal responsibility of the owner of the claim. . . . Under the contract the lien on the fund, in the hands of the administrator, is a sufficient ground for an equity jurisdiction.” Justice Story in his Equity Jurisprudence (14th edition, volume 2) says a lien “. . . is often created and sustained in equity where it is unknown at law. ...” We base our decision upon the facts that the primary right to institute and conduct the proceedings in behalf of the property, before the board of view, was in the property’s owner; that the mortgagee who loaned money and took a first lien on this property as security therefor was chargeable with knowledge of the fact that if the property should be subjected to condemnation proceedings, (as it was), the right of action for damages was in the owner and this right of action carried with it the right to engage counsel to protect the interests of both the owner and the mortgagee, whose interests in such proceedings were not antagonistic but identical; that the mortgagee knew of the employment of Attorney Jacoby by the owner to protect the joint interests of the owner and the mortgagee in these condemnation proceedings and apparently approved of his employment and of what he did professionally in the matter; and that the professional efforts of this attorney produced, to a substantial extent, the fund for distribution, to which fund the attorney was required, under his agreement with his record client, to look for compensation, and against which the attorney had, under the circumstances here present, an equitable claim which has often received judicial recognition under the name of a “charging lien.” See Wylie v. Coxe, 15 How. 415; Peugh v. Porter, 112 U. S. 737; U. S. v. Blackfeather, 155 U. S. 180; In re Heinsheimer, 214 N. Y. 361, 108 N. E. 636; Hale v. Tyson, 79 Ala. 107, 79 So. 499, and Jacobson v. Miller, 50 N. D. 828, 198 N. W. 349, 34 A. L. R. 317. We conclude that appellant Jacoby was entitled to have the court below enter an order directing payment to him of his reasonable counsel fees and expenses of litigation. The decree overruling appellants’ exceptions are reversed, and it is directed that the court below allow the appellant, Myron Jacoby, Esq., a reasonable fee for his services in the condemnation proceedings and otherwise also enter a decree in conformity with this opinion; costs to be paid by appellee. Mr. Justice Drew dissents. Mr. Justice Schaefer did not sit in this case.

Opinion by Mr. Justice Stern, In this case the Superior Court reversed a judgment of the Common Pleas entered in favor of defendant, and directed judgment to be entered on the award to plaintiff which had been made by the Workmen’s Compensation Board (133 Pa. Superior Ct. 530). Plaintiff’s husband, hereinafter referred to as decedent, was a machinist by trade and worked for defendant, Miller Printing Machine Company, in Pittsburgh, as a “planer hand.” On March 17, 1936, a part of that city was flooded. The water in defendant’s plant reached a height of eleven feet, filling the basement and the first floor and covering the machinery with mud and dirt. When the waters had receded defendant employed a corps of workmen to clear up the debris, and directed the regular employes, including decedent, to clean their machines. Decedent started on this task about a week after the flood had occurred, but the floors were still damp and muddy. After working for eight days he became ill, and a day or two later called in a doctor, who made a diagnosis of pneumonia, which he attributed to the conditions under which decedent had been working. Decedent’s death, as a result of the pneumonia, occurred shortly thereafter. We thus have for consideration another of the perplexing cases in which prostration is suffered or disease contracted as the result of exposure to excessive heat, cold or other unusual environmental conditions, and the question arises whether such circumstances can be said to constitute an “accident.” A study of the decisions upon that subject in the Superior Court and in our own Court reveals that, while they do not all agree in the reasoning and the principles upon which they purport to rest, they are not incapable of reconciliation. It would seem helpful, in considering the present case, to classify the more characteristic ones in order to obtain a guide to the proper adjudication of this type of litigation. The first class comprises the cases where there is an involuntary, unexpected, fortuitous happening which causes the disease. This is the most familiar type, embracing what would universally be conceded to be accidents pure and simple. For example, where a lineman falls from a pole as a consequence of coming in contact with a wire charged with electricity, and fractures a rib, from which, a week later, lobar pneumonia develops (Murdock v. New York News Bureau, 263 Pa. 502); or where a miner is squeezed and bumped by a large stick of lumber, causing an abrasion on the side of his body and the result is a traumatic pleurisy which culminates in pneumonia (Dumbluskey v. Philadelphia & Reading Coal & Iron Co., 270 Pa. 22); or where a workman receives an injury resulting in arthritis or inflammation of the hip-joint and terminating in pneumonia (Dopkin v. Philadelphia & Reading Coal and Iron Co., 296 Pa. 71); or where a miner with wet clothing is compelled, due to the derailing of a hoisting car, to stand for an hour in a drafty place at the foot of the slope, as a consequence of which he contracts lobar pneumonia (Broch v. Lehigh Valley Coal Co., 296 Pa. 502); or Avhere an employe is struck by a piece of coal or rock, suffers contusions of various parts of the body, and develops pleurisy which turns into pneumonia (Borovski v. Philadelphia & Reading Coal & Iron Co., 101 Pa. Superior Ct. 304); or where an employe, clearing snow from the sidewalk in front of the store where he is employed, slips and falls into the gutter, receiving a wetting which brings on an attack of pneumonia (Brown v. Moss, 120 Pa. Superior Ct. 336). In all of these instances compensation was properly allowed. The second group consists of cases where the work or act performed by the employe is voluntary, and not marked by any abnormal or unusual feature, but where there occurs an unexpected and unusual pathological result; that is to say, where the accident resides in the extraordinary nature of the effect rather than in the cause. A familiar illustration is where one engaged in ordinary manual labor unexpectedly suffers a muscular strain or internal lesion, as, for example, where the exertion in moving a piano causes an abscess which superinduces pneumonia (Wolford v. Geisel Moving & Storage Co., 262 Pa. 454). In the field here under consideration are the sunstroke and heat prostration cases, which have been uniformly held to be compensable : Lane v. Horn & Hardart Baking Co., 261 Pa. 329; Matis v. Schaeffer, 270 Pa. 141; Clemens v. Cornish, 295 Pa. 73; Clancy v. Booth & Flinn Co., 109 Pa. Superior Ct. 452; Consentino v. Union Paving Co., 113 Pa. Superior Ct. 295; Trovato v. W. J. McCahan Sugar Refining Co., 122 Pa. Superior Ct. 499. These rest upon the theory that the prostration is not the natural, probable and predictable result of an exposure to the prevailing conditions, but constitutes an extraordinary and unlooked-for mishap visited suddenly upon the employe while at work. The third group, more indefinite but nevertheless well established, is where the exposure is, from a technical standpoint, voluntary, and the resulting pneumonia or similar disease reasonably foreseeable, but where the “accident” consists of an unusual and suddenly developing concatenation of circumstances which necessitates impulsive rather than deliberate action and tinder conditions markedly different from those attendant upon the usual course of the employe’s regular work. For example, a workman was suddenly called upon to attempt a rescue of his father who had been buried by the slide of a culm bank; the effort lasted about 2% hours; a large quantity of water was used in the rescue work and the employe was drenched from his knees down; the result of this exposure was a cold which later took the form of pneumonia. The act thus performed by the employe was voluntary and under conditions from which a resulting pneumonia might readily have been anticipated, but compensation was allowed because of the extraordinary circumstances which demanded prompt action on the part of the employe under unusual and exceptionally unfavorable conditions (Jones v. Philadelphia & Reading Coal & Iron Co., 285 Pa. 317). So, where the janitor of a building was called upon to turn off steam which was escaping because of the breaking of a pipe, and in doing so he had first to walk on the street in extremely cold weather, and then for a short distance through the hot steam in the basement, whereby his clothing became wet, and a day or two later he developed bronchial pneumonia, compensation was allowed on the ground that this was a situation well out of the ordinary and not reasonably to be foreseen in the course of the employe’s usual work (Heisler v. Lincoln Realty Company, 121 Pa. Superior Ct. 516). Where a surgeon was one night summoned professionally to a hospital on an emergency call, the weather being cold and windy with snow and rain falling intermittently, and the operation, requiring about an hour, had to he performed in the dispensary where the temperature was abnormally low, and as a result the surgeon contracted influenza-pneumonia, compensation was granted on the theory that, while his act in responding to the call was a voluntary one, there was such an exigency that the case was distinguishable from one where pneumonia results from intentional and deliberate exposure to the elements (Roth v. Locust Mountain State Hospital, 130 Pa. Superior Ct. 1). Similarly, where a boiler repairman, who ordinarily was not required to work in the boilers until at least sixteen hours had elapsed after the fires had been drawn, was called upon on one occasion to make repairs before the lapse of such an interval, and thereby was subjected for a few hours to extreme heat, which contributed to his death from acute nephritis, compensation was allowed because of this extraordinary exposure, notwithstanding the fact that it was the employe’s regular duty to repair the boilers (Evans v. Hazle Brook Coal Co., 134 Pa. Superior Ct. 462). The class of cases just discussed is exceptional and to be distinguished carefully from the final group, which comprises those eases where the exposure causing the pneumonia or similar disease is not only intentional but deliberate and protracted, and in the regular course of the employe’s work, and therefore there is no accident either in the happening of an untoward event, or in an unexpected and exceptional result, or in a chain of extraordinary events subjecting the employe to an exigent and unanticipated exposure foreign to his ordinary employment. Hence, in these cases compensation was properly refused. As has been frequently pointed out, an employer is not, under the Workmen’s Compensation Act, an insurer of the life and health of his employes. Thus where emphysema, a disease of the lungs, is contracted by continued contact of the employe with smoke and fumes thrown off by electric generators, there is no accident within the meaning of the Act, but rather an occupational disease (Mauchline v. State Insurance Fund, 279 Pa. 524). Where a carpenter, in the course of his work, makes measurements in a refrigerating room, the temperature of which is exceedingly low, so that he suffers a chill and develops pneumonia, there is no accident, the chill being, not the consequence of a fortuitous and unexpected event, but a natural and foreseeable result of the deliberate act which preceded and caused it (Lacey v. Washburn & Williams Co., 309 Pa. 574). There is no accident where an employe is assisting in building a roof, and, as it happens to be raining, he gets wet to the skin and contracts a cold from the exposure, with a subsequent development of pneumonia (Gibson v. Kuhn, 105 Pa. Superior Ct. 264); nor where a person works for a month in a mine which is uniformly and continuously wet, and as a result he is stricken with pneumonia (Micale v. Light and State Workmen’s Insurance Fund, 105 Pa. Superior Ct. 399); nor where a miner, while waiting a routine period of five minutes to be taken up on an elevator, is subjected to an ordinary draft, and takes a chill which turns into lobar pneumonia (Mills v. Susquehanna Collieries Co., 107 Pa. Superior Ct. 432); nor where pneumonia is contracted by a miner working in a gangway which is covered with six inches of water, the work being ordinary and the presence of the water not unusual (Waleski v. Susquehanna Collieries Co., 108 Pa. Superior Ct. 342); nor where a mine is constantly damp and there is water dripping from the chutes all the time, and an employe whose work is to run a motor in the colliery is stricken with pneumonia, the exposure to the dampness and water being in the usual course of his employment (Poklembo v. Hazle Brook Coal Co., 116 Pa. Superior Ct. 532); nor where a brick mason, working in a firebox attached to Avhich a ventilating fan is in operation, is seized with a chill culminating in pneumonia (Wilkins v. McSorley, 119 Pa. Superior Ct. 442); nor where a person working at a booth in a convention hall in which there are drafts and temperature fluctuations receives a chill which results in influenza (Biglin v. Pennsylvania Department of Labor and Industry, 133 Pa. Superior Ct. 221). In all of these cases the employe voluntarily exposed himself to the prevailing conditions without any unusual circumstances impelling him to do so, and the pneumonia was a foreseeable and not unlikely result. In our opinion the facts in the instant case present a situation falling within the final, or non-compensable, group of cases above described. It is true that the flood in the City of Pittsburgh, occurring two weeks before decedent’s illness, was an “accident,” and if it had caused an emergency situation which impelled decedent, suddenly and unexpectedly, and outside of the ordinary course of his work, to expose himself to abnormal conditions which brought on an attack of pneumonia, he might have been justified in claiming compensation. But an accident preceding the one upon which the claim is based is of significance only if it causes an exigent situation, which, by a chain of succeeding circumstances, culminates in injury, as in the Jones, Heisler, Both, and Evans cases hereinbefore discussed. Thus the San Francisco earthquake of some years ago was an “accident,” but an employe engaged in the task of salvage and restoration during the sev eral months or years which followed would not, by reason of the earthquake, have become entitled to Avorkmen’s compensation if, in the course of his work, he contracted pneumonia through exposure to weather conditions. While, in the present ease, it was the flood which made necessary the cleaning of the machinery, this operation was a protracted labor, and those who engaged in it voluntarily and deliberately exposed themselves to the dampness which they knew existed. Decedent worked for eight days before he became ill, returning to the job each day in the usual fashion. Nor can the surrounding conditions during that time be fairly characterized as extraordinary. There Avas no sudden, intense exposure to water or to cold. The most that can be said is that there was dampness in the plant and mud on the floors as lingering effects of the flood. That decedent was by trade a machinist does not affect the situation from a legal standpoint. Even assuming —what is far from certain — that in cleaning his machine he was doing something foreign to his ordinary work, he engaged in that occupation for the eight-day period, nor did the fact that he was occupied in cleaning instead of operating the machine in any way expose him to greater risk of disease. We cannot escape the conclusion that there is no “accident” within the meaning of the Workmen’s Compensation Act when an employe contracts pneumonia as the result of working for several days in a factory, the floors and Avails of which are damp, even though the dampness happens to have been caused by a flood which had occurred a week before he started the work. The order of the Superior Court is reversed, and the judgment for defendant entered by the Court of Common Pleas of Allegheny County is affirmed. While there are no appellate decisions in Pennsylvania in regard to frostbite, the same principle would seem to apply as in the case of sunstroke: see Lane v. Horn & Hardart Baking Co., 261 Pa. 329, 334. There are two pneumonia cases, Boyle v. Philadelphia & Reading Coal & Iron Co., 99 Pa. Superior Ct. 178, where a miner worked in a gangway filled with water, and Senlock v. Philadelphia & Reading Coal & Iron Co., 104 Pa. Superior Ct. 156, where a miner worked for several months in a wet gangway, in each of which eases compensation was allowed and which are not in accord with the other cases here analyzed. In the Boyle case, however, the question whether there had been an accident was not raised, and both cases preceded the decision in Lacey v. Washburn & Williams Co., 309 Pa. 574, by which they may be regarded as superseded.

. Opinion by Mr. Justice Stern, Plaintiff is a Pennsylvania corporation engaged in the business of making loans in excess of $300, secured in each instance by an agreement in the form either of a bailment lease or conditional sale contract whereby it obtains a lien, on the borrower’s automobilé. It made a loan to defendant in the sum of $325, repayment to be in twelve monthly instalments of $32.08 each, aggregating $384.96; this amounted to a charge for interest and fees of about 35% per annum, which was more than twice as much as would have been permitted under the terms of the Consumer Discount Company Act of April 8, 1937, P. L. 262. Plaintiff had never applied for a license under that act, and defendant, claiming that a rate of interest in excess of 6% per annum was therefore illegal, refused to make the payments called for. by the agreement. This suit was brought by plaintiff to recover the entire debt, the maturity, of which was accelerated by virtue of á provision to that effect in the contract. It was agreed by the parties, in a case stated, that if the court be of opinion that the Consumer Discount Company Act was constitutional, judgment should, be entered for plaintiff for the amount of the loan with interest at the rate of 6% per annum only, or a total of $349.38, but if the act were found to be unconstitutional judgment should be entered in the full amount of $384.96. The court, deciding that the act was constitutional, rendered judgment for the lesser sum. On this appeal, as in the court below, plaintiff challenges the validity of the act on the ground that it is a special law fixing the rate of interest and therefore is in contravention of Article III, section 7, of the Constitution of the Commonwealth, and also that it is in conflict with Article I, section 1, of the State Constitution and with the Fourteenth Amendment to the Federal Constitution in that its interference with the freedom of contract cannot be jus tilled as an exercise of the police power. At the time this litigation arose thirty-seven licenses had been issued under the act. The Commonwealth of Pennsylvania, together with the Pennsylvania Chapter of th,e American Industrial Bankers Association and eighteen consumer discount companies located in various sections of the state and holding thirty-five licenses, inteiwened as parties defendant in support of the act. The Consumer Discount Company Act provides that no person, partnership, association, or any other group of individuals however organized, except domestic business corporations organized under the Business Corporation Law of the Commonwealth, shall engage in the business of making loans in the amount of $1,000 or less and collect or contract for interest, commissions or other charges in excess of 6% per annum on the amount actually loaned or on unpaid balances if the loan is payable in instalments. Domestic business corporations organized under the Business Corporation Law may make such loans if they first obtain a license from the Secretary of Banking in accordance with the provisions of the act. In order to obtain such a license it is required that the title of the corporation contain the words “Consumer Discount Company,” and the corporation must have a minimum subscribed capital of $25,000. There are elaborate provisions for annual reports by the licensees to the Secretary of Banking, for examinations by that official of their books and affairs, and for the revocation of licenses in case of violation of the provisions of the act or for other spe cified causes. Corporations licensed under the act are given authority to make loans not exceeding $1,000, either unsecured or on the security of real or personal property, and to contract for and collect, in addition to interest not exceeding 6% per annum, certain investigation and other fees, together with an additional charge for default. Excluded from the operation of the act are banking institutions, building and loan associations, credit unions, persons or corporations licensed under the Small Loans Act of 1915 or by the Secretary of Banking under the provisions of any other statute; there are also excluded bona fide sales of personal property by a person regularly .engaged in the sale of such property wherein the purchaser may pay any part or all of the purchase price in stated instalments, and also bona fide sales under conditional sale contracts, leases or bailments. Penalties of fine and imprisonment are provided for violations of the act. In Commonwealth v. Puder, 261 Pa. 129, 104 A. 505, it was held that the Small Loans Act of June 17, 1915, P. L. 1012, regulating the business of loaning money in sums of $300 or less to persons pressed by lack of funds to meet immediate necessities was not invalid as special legislation. The court there reiterated the well-known principle (p. 136, A. 506) that “Classification is a legislative question subject to judicial revision only so far as to see it is founded on real and not merely artificial distinctions, and, if the distinctions are genuine, the court cannot declare the classification void, though they may not consider the basis to be sound. The test is not wisdom, but good faith, in the classification.” Considering the question whether there was a genuine distinction between loans under and those over $300 the court concluded (p. 137, A. 507) that the.legislature had properly recognized that small loans “are necessarily attended with greater risk than is ordinarily incident to lending money by banks, pawnbrokers and others who loan only on approved collateral. The fact that loans of this nature rarely exceed the sum of three hundred dollars is admitted, and the adoption of the amount named as a limitation affords a proper criterion for a classification in so far as the peculiar nature and character of the business is concerned.” In Engel v. O’Malley, 219 U. S. 128, where the question was as to the validity of a statute requiring a license for those engaged in the business of receiving deposits for safekeeping, but exempting persons where the average sum received on deposit was not less than $500 during the preceding year, the act was sustained, and in the course of his opinion Mr. Justice Holmes said (p. 138) : “It is true, no doubt, that where size is not an index to an admitted evil the law cannot discriminate between the great and small. But in this case size is an index. Where the average amount of each sum received is not less than five hundred dollars we know that we have not before us the class of ignorant and helpless depositors, largely foreign, whom the law seeks to protect.” The question now presented, in the light of the Puder case, is whether, under existing economic and social conditions, there is a “real” and not merely an “artificial” distinction between loans under and. those over. $1,000, as in that case there was recognized to be, at the time the Act of 1915 was passed, with reference to loans under and those over $300. In other words, is there a justifiable basis for the legislature’s present selection of $1,000 as the criterion for differentiating classes of loan transactions in regard to permissible rates of interest and other regulations? No one, of course, can say that that amount is the exact point at which all loans change from one character or nature to another, but legislation dealing with social and economic problems cannot be expected, and is not constitutionally required, to be of mathematical exactitude. There are bound to be twilight zones furnishing support to critics who cavil at the want of scientific pre cisión in tlie law. At least it may be said that in the case of the classification adopted in the Consumer Discount Company Act of 1937, as in that embodied in the Small Loans Act of 1915, the legislature did not create distinct classes but merely recognized the fact that they existed. Within the past few decades, beginning with studies published by the Russell Sage Foundation, there has grown up an impressive literature— the product of extensive social welfare research by economists and sociologists — dealing with the subject of consumer credit, consumers’ loans as distinguished from producers’ or commercial loans, and small loan legislation in general. From this it appears that there are well-marked differences between consumers’ and commercial loans in regard to the type of borrower, the nature of the security, and the terms upon which the credit is given. Consumers’ loans are apt to exceed $1,000 in amount only in the rarest instances. Such loans are made to persons who desire the money for household or personal objects, for example, to finance the purchase of automobiles or furniture and equipment for the home, or to pay insurance premiums, doctors’ and hospital bills or other items of emergency indebtedness. The usual type of borrower is a clerk or artisan capable of earning a modest living but without sufficient credit or the kind of collateral which would ordinarily be acceptable to a bank. Repayments are generally in monthly instalments. By means of such loans a large portion of tbe population, estimated at more than eighty per cent, has access to credit. Producers’ loans, on the other hand, usually greater than $1,000 in amount, are made to commercial and industrial establishments on the basis of business credit. The borrowers are persons with capital resources. The loans are for short-term periods and repayable at one time instead of in instalments. If the law did not provide for higher charges on consumers’ loans than on the larger commercial loans that type of credit probably could not exist, because the risk is obviously greater, the security is not so good, the duration of the loan is longer, and the operating expense necessary to investigate the borrower and to collect the periodic instalments is considerably higher.® It should be reasonably clear, then, from what has been said, that in classifying loans with $1,000 as the dividing line between the classes, the legislature was not acting arbitrarily but was following the studies of competent investigators confirmed by the experience of recent years. Not only have several other states fixed this same limit of $1,000 in analogous legislation, but it is significant that the American Bankers Association, in recommending a draft of a uniform “Personal Instalment Loan Statute,” has proposed this same amount as the maximum for loans to which the rate of interest and other charges allowed by such a statute should apply. Moreover, the Consumer Discount Company Act was passed on the basis of a report made by the Secretary of Banking to the House of Bepresentatives on small loan companies and consumer credit, in which report the Secretary said: “We must, if we are to serve the public fully, . . . provide agencies to lend between the $300 limit imposed on the small loan companies and the $1,000 character loan which the average bank in our industrial and commercial centers sometimes finds difficult to lend. . . . The legislature, in seeking to provide adequate consumer credit, should be guided by two basic rules: the borrowing public must be protected against extortionate interest charges and the rates allowed must be sufficient to permit the lender to earn a fair return on his invested capital. Experience has shown that it is impossible to apply the first rule without also employing the second. ... To provide a credit agency for loans up to $1,000 the Department recommends to the legislature the authorization of companies to be known as Consumer Discount Companies. . . . The Department believes that the establishment of such agencies in Pennsylvania will serve a useful purpose and meet a real need. They should enable prospective purchasers of automobiles and the more expensive types of household furnishings to obtain credit for such purchases at a standardized rate of interest far lower than that generally prevailing throughout the Commonwealth today.” The court below was therefore well justified, in the course of its opinion, in asking the question: “Shall we say, Avithout any precise knowledge on the subject, in the face of literature on the subject to the contrary, and also in the face of an extensive report of the Secretary of Banking, made by direction of the House of Representatives, that there is now no need for a further regulation?” And the court properly answered its own interrogatory by saying that “To do so would be to substitute the judgment of the court for that of the legislature acting on a fact-finding report.” Plaintiff attacks the Consumer Discount Company Act as special legislation not only on the ground already discussed but because it exempts from its operation banking institutions, building and loan associations, credit unions, and persons or corporations licensed under the Small Loans Act of 1915 or by the Secretary of Banking under the provisions of other statutes. It is to be noted that similar exemptions were contained in section 7 of the Small Loans Act of 1915 as amended by the Act of May 28, 1937, P. L. 989, and also in section 30 of the Pawnbrokers Act of April 6, 1937, P. L. 200. These exempted institutions, all of which are covered by other legislation, differ from consumer discount companies in various ways, notably in the kind of collateral upon which their loans are ordinarily made. Such discrimination between different types of lending institutions is not a violation of the Fourteenth Amendment as denying the equal protection of the laws: Griffith v. State of Connecticut, 218 U. S. 563, 569-571; Engel v. O’Malley, 219 U. S. 128, 137, 138; Mutual Loan Company v. Martel, 222 U. S. 225, 235, 236; Equitable Loan Society, Inc. v. Bell, 339 Pa. 449, 458, 459, 14 A. 2d 316, 320. By section 3 of the Business Corporation Law of May 5, 1933, P. L. 364, any corporation which was previously incorporated and has accepted in any manner the Constitution of the Commonwealth is deemed to exist under that law; therefore licensees under the Consumer Discount Company Act are not limited to corporations organized since 1933. Nor is it objectionable, so far as the validity of the act is concerned, that individuals and partner ships are excluded from its privileges (see Commonwealth v. Vrooman, 164 Pa. 306, 320, 321, 30 A. 217, 220, 221), or that the act does not apply to bona fide sales of personal property on instalments and to bona fide sales under conditional sale contracts, leases or bailments. Of course, all sale or lease contracts which extend credit are, to a certain extent, akin to the making of loans, but where a greater charge is exacted in the case of a sale on credit than in a cash sale it is included in the selling price of the article. It being uniformly held that sellers are free to contract with buyers as to the terms and conditions of sales, the financing of sales of merchandise by the extension of credit has never been considered subject to the prohibition of usury or to regulations applicable to banking and loan transactions. Little need be said in rejecting the contention of plaintiff that the Consumer Discount Company Act is an invalid exercise of the police power and effects an unjustifiable impairment of the freedom of contract in violátion of the State and Federal Constitutions. If there is anything well established in constitutional law it is that regulation of the rate of interest is a subject within the police power of the State, and this is especially true in the case of loans of comparatively small amounts, since the business of making such loans profoundly affects the social life of the community. “It is elementary that the subject of the maximum amount to be charged by persons or corporations subject to the jurisdiction of a State for the use of money loaned within the jurisdiction of the State is one within the police power of such State. The power to regulate existing, the details of the legislation and the excep fcions .proper to be made rest primarily within, the discretion . of the state legislature, and ‘unless such regulations are so unreasonable and extravagant as to interfere with property and personal rights of citizens, unnecessarily and arbitrarily, they are within the power ¡of the State -. . Griffith v. State of Connecticut, 218, U.. S. 563, 569. At common law the taking of any interest whatever was illegal, and the right to charge it, being a privilege. granted by statute, is subject to legislative control: Adinolfi v. Hazlett, 242 Pa. 25, 29, 88 A. 869, 871; Commonwealth v. Puder, 261 Pa. 129, 137, 104 A. 505, 507; Equitable Loan Society Inc. v. Bell, 339 Pa. 449, 456, 14 A. 2d 316, 319. It being shown that there was a valid -reason for regulation, the exercise of the police power was justified, and the fact that the right to enter into contracts was thereby limited does not affect the constitutionality of the legislation enacted in the exercise of that sovereign power. We shall not, on this record, pass upon the validity of, specific provisions of the act not involved in the present appeal. . Nor are we called upon at this time to decide whether the Consumer Discount Company Act of 1937 and the Small Loans Act of 1915 overlap in regard to loan transactions of less than $300 in amount. That question is one of statutory construction, not of- constitutionality, and will be determined if and when the occasion arises. ■ Judgment affirmed. . Plaintiff’s position was that, except for the act, it could charge the larger sum because the debt was to be cancelled if -the automobile was stolen or destroyed, relying on Smith v. Orr, 33 D. & C. 689. The number has since been increased to fifty-five. The act requires a separate license for each place of business conducted by a licensee, which accounts for the fact that some of the companies have more than one license. Among such studies are Wassam, “The Salary Loan Business in New York City”; Ham, “The Chattel Loan Business”; Gallert, Hilborn and May, “Small Loan Legislation”; Robinson and Nu-gent, “Regulation of the Small Loan Business”; Hubachek, “Annotations on Small Loan Laws”; Chapman, “Commercial Banks and Consumer Instalment Credit”; Saulnier, “Industrial Banking Companies and Their Credit Practices”; Nugent, “Consumer Credit and Economic Stability”; Annals of The American Academy of Political and Social Science for March, 1938; “Consumer Credit and Its Uses,” embodying a study made by the Advisory Committee of the Consumer Credit Institute of America. By the same token the scale of charges established by the Consumer Discount Company Act on loans up to $1,000, while higher than the ordinary “legal” rate of interest, is lower than the scale of charges established by the Small Loans Act on loans up to $300. Arizona (4 Annotated Code of 1939, p. 261, Art. 9, § 51-901; also p. 262, Art. 10, § 51-1002); New Jersey (1936 Laws, p. 736, c. 238); Maine (Revised Statutes of 1930, p. 907, c. 57, § 27, par. XIX); South Carolina (Acts of 1935, p. 382); Wisconsin (Statutes 1937, p. 1570, Title XIV, c. 115, § 115.09). The amount is fixed at $2,000 in Kentucky (Carroll’s Statutes Annotated, Baldwin’s 1936 Revision, p. 1125, c. 72a, Art. 2 § 2223b-6), and at $5,000 in Colorado (Statutes Annotated, vol. 2, c. 18, Art. 5, § 154) and Rhode Island (General Laws 1938, p. 339, Title XVII, o. 145, § 10). In New York the amount ranges from $500 to $3,500 according to the population of the city in which the lending agency is located (4 McKinney’s Consolidated Laws Annotated, 1940 supp., § 108). Many other states provide a variable maximum proportioned to the paid-in capital and surplus of the lending agency. An interesting and comprehensive discussion of this subject is to be found in Melnicoff v. Suber Investment Company, 12 D. & C. 405, 407, 408; see also Wilson v. J. E. French Co., 214 Cal. 188, 4 P. 2d 537; 66 C. J. 181-184, §§ 75, 76.

Opinion by Mr. Justice Jones, This appeal raises two questions with respect to the lower court’s exercise of its discretion (1) in permitting the plaintiffs, over the defendant’s objection, to discontinue the action and (2) in refusing the defendant’s motion for judgment in its favor after the court had sustained preliminary objections to the plaintiffs’ complaint. The facts giving rise to these questions reveal an unusual course of procedure. The plaintiffs, self-averred citizens and residents of Indiana County, Pennsylvania, brought this action in trespass in the Court of Common Pleas of Jefferson County to recover damages for loss by fire due to negligence of an alleged agent of the defendant company, a Pennsylvania corporation. They filed an original and an amended complaint to each of which the defendant answered responsively and denied the agency of its employe in the matter in question. The plaintiffs then set the case down for trial. At the conclusion of the evidence for the plaintiffs upon trial of the issues, the defendant moved for a compulsory nonsuit on the ground that the evidence adduced by the plaintiffs failed to establish agency on the part of the defendant’s allegedly negligent employe. In order to escape an involuntary nonsuit, the plaintiffs moved for the with drawal of a juror. Counsel for defendant not objecting, the court thereupon withdrew a juror and the case was continued. Thereafter, the plaintiffs filed a second amended complaint. The defendant filed preliminary objections thereto which, by subsequent agreement of counsel for the respective parties, were sustained by Order of the court with permission to plaintiffs “to file their third amended complaint.” Upon the plaintiffs filing a third amended complaint, to which the defendant also filed preliminary objections. On June 6, 1949, the matter having come on for argument, the court, by agreement of counsel for the respective parties, again sustained the defendant’s preliminary objections and granted the plaintiffs permission “to file their fourth amended Complaint within a period of twenty days from the date hereof.” However, instead of filing a fourth amended complaint, the plaintiffs instituted suit on the same cause of action in the District Court of the United States for the Western District of Pennsylvania at Pittsburgh under federal jurisdiction made to depend upon alleged diversity of citizenship, the plaintiffs averring therein that they were citizens of Florida although in all of their complaints in the court below in the instant action, up to and including their third amended complaint filed on March 7, 1949, they had averred that they were citizens of Pennsylvania and residents of Indiana County. The defendant company was at all times and still is a corporation of the State of Pennsylvania. Ón June 27, 1949, one day after the expiration of the twenty-day period allowed by the court for the plaintiffs’ filing of their fourth amended complaint, they filed a motion in the court below for leave to discontinue the suit. The court granted a rule thereon to which the defendant answered denying the plaintiffs’ right to discontinue in the circumstances then obtain ing. While the rule on the motion to discontinue was pending before the court below, the defendant filed a motion for judgment in its favor on the ground that, the preliminary objections to the plaintiffs’ third (and ■last) amended complaint having been sustained, the plaintiffs had failed to file a further complaint within the time allowed therefor and had shown by their conduct (including their motion to discontinue) that their failure so to do was willful and deliberate. The learned court below later disposed of the plaintiffs’ motion to discontinue and the defendant’s motion for judgment in the same opinion and by one order. Thereby the court made the rule on the motion to discontinue absolute and refused the defendant’s motion for judgment. We think such action was plainly an abuse of discretion in the circumstances and that it constitutes reversible error. By no means should the court below have permitted the plaintiffs to discontinue the action, over the defendant’s objection, after the extent of the litigation to which they had subjected the defendant in a competent and convenient jurisdiction which they voluntarily invoked. The plaintiffs virtually broke faith with the court by not filing the fourth amended complaint after leave therefor had been granted and in then seeking another forum and the lower court’s surrender of its jurisdiction. Indeed, the action of the court below in permitting the plaintiffs to discontinue over the defendant’s timely and meritorious objection is difficult to understand, especially in the light of the opinion of the learned judge of the court below wherein he said that “In the instant ease the court and counsel for the defendant . . . have been extremely liberal and lenient with the plaintiffs. On the trial on November 8, 1948, the plaintiffs . . . [seeing] that they were powerless to proceed further, in order to prevent a nonsuit on their part, at the suggestion of the court and counsel for the defendant . . . were permitted to file a motion for leave to withdraw a juror and continue the case. On other occasions they were granted similar courtesies by counsel for the defense. Despite all these concessions, the plaintiffs have seen fit to proceed in the Federal Courts and have said, by their motion to discontinue, that they no longer desire to remain here.” The discontinuance in this case was with the consent of the court so that cases where a discontinuance has been stricken off because it was entered with no more than the court’s presumed consent and it would be inequitable to permit it to remain are not presently pertinent: see, e.g., Adam Hat Stores, Inc. v. Lefco, 317 Pa. 442, 444, 176 A. 734; and Shapiro v. Philadelphia, 306 Pa. 216, 220, 159 A. 29. But, a discontinuance that is prejudicial to the rights of others should not be permitted to stand even though originally entered with the expressed consent of the court: Bily v. Allegheny County Board of Property Assessment, etc., 353 Pa. 49, 52, 44 A. 2d 250. The action of a lower court in such connection is reviewable only for an abuse of discretion: see Davis v. Hillman, 281 Pa. 150, 154, 126 A. 246. The reason the plaintiffs wished to discontinue the case in Jefferson County was that they might pursue unhampered the action which they had lately begun in the federal court at Pittsburgh. However, once the jurisdiction of a competent court has attached, discontinuance of the action ought not be permitted over objection of the adversary if the only reason for discontinuing is the plaintiff’s desire to institute an action for the same cause in another forum. In Mechanics’ Bank, etc., v. Fisher, 1 Rawle 341, 347, it was said that “Whenever, therefore, it appears a party discontinues one suit, for the purpose, merely, of instituting another for the same cause of action elsewhere, the court, on motion, will set aside the discontinuance, and reinstate the former suit, and subject the party to the consequences of his own acts.” The only reason for the discontinuance apparent to the court below in the instant case was that the plaintiffs “no longer desire to remain here”, — certainly not a legally sufficient reason especially if the inconvenience and annoyance to the other party be considered : see Mechanics’ Bank, etc., v. Fisher, supra, at pp. 347-348. Here, the discontinuance was improvidently entered and must, therefore, be stricken off. The court below could have entered judgment for the defendant on its motion therefor after the preliminary objections to the plaintiffs’ third amended complaint had been sustained and the plaintiffs had been given further opportunity to amend: see Rule 1034, Pa. R. C. P.; cf. Davis v. Hillman, supra, where the former but analogous power of the court was considered. The affidavit of defense raising questions of law, there involved, has been superseded by the demurrer now available to any party on preliminary objections under Rule 1017(b) (4) Pa. R. C. P. (see note thereto) to which the rules for action of trespass conform: Rule 1041, Pa. R. C. P. On appeal by the plaintiffs from a judgment so entered, the question of the legal sufficiency of the complaint would be directly raised and could then be passed upon on review. But, we cannot now direct the entry of a summary judgment when the merit of the matter has not been finally concluded by a formal judgment below. Indeed, the learned court below is still of the opinion that “There are indications that the plaintiffs can state a good cause of action.” Order reversed and the cause remanded, with directions that the discontinuance be stricken off, and a procedendo awarded.

Opinion by Mb. Justice Chidsey, The pivotal and important question presented by this appeal is whether The Mental Health Act of 1951 changed the common law test for staying criminal proceedings after verdict but prior to sentence or execution. Inasmuch as appellant’s motion for a new trial has not been argued and sentence has not been pronounced we are not concerned with possible trial errors or the merits of appellant’s conviction. On January 13, 1954 the appellant, Norman W. Moon, appearing before the Court of Quarter Sessions of Warren County on a charge of failure to comply with a support order, shot and fatally wounded the Honorable Allison D. Wade, President Judge of the 37th Judicial District. After apprehension, appellant was indicted, tried and on May 25, 1954 convicted of murder in the first degree. The jury, rejecting appellant’s sole defense of insanity, fixed the penalty at death. About two months thereafter, on July 31, 1954, while appellant was confined in the Warren County Jail pending disposition of his motion for new trial, the county sheriff, in his capacity as keeper of the jail, petitioned the court for the appointment of a sanity commission under Section 344 of The Mental Health Act of June 12, 1951, P. L. 533, as amended, 50 PS §1224. This section of the Act provides, inter alia, that a petition for the commitment of any person detained in any penal or correctional institution who is thought to be mentally ill or in such condition that he requires care in a mental hospital, or who is thought to be a mental defective (except mental defectives convicted of first degree murder) may be made by counsel for the prisoner or the superintendent of the institution where defendant is detained or by any responsible person. Without holding a hearing on the petition, the court by an order dated July 31, 1954, appointed a commission composed of two physicians and an attorney to investigate appellant’s mental condition. After examining the defendant and holding hearings at which testimony and statements were taken, the commission on October 13, 1954 filed its report with the court in which it found the following ultimate facts: “a. Norman W. Moon is in fact mentally ill. b. Norman W. Moon’s mental illness is that of dementia praecox of the paranoid type. c. This illness is chronic and continuing. d. Norman W. Moon is a proper subject for commitment to a mental hospital.”. The findings also contained answers to three specific questions submitted by the court on October 8, 1954, namely, “(1) Regardless of what Moon’s ideas or his feelings may be as to his own acts or behavior and although he may have a mental abnormality or illness, has he sufficient intelligence or mental ability to comprehend that by generally accepted standards an unjustifiable and inexcusable killing is considered to be wrong and a crime? “Answer. Yes, except during the two periods of acute mental disturbance that he has exhibited. “(2) Regardless of what Moon’s ideas or his feelings may be as to his own acts or behavior and although he may have a mental abnormality or illness, has he sufficient intelligence or mental ability to comprehend that he has been tried by a jury which found him legally responsible for such a killing and guilty of murder in the first degree, and the jury also set death as the penalty which it felt was the proper one in his case? “Answer. Yes, except during the two periods of acute mental disturbance that he has exhibited. “(3) Regardless of what Moon’s ideas or his feelings may be as to his own acts or behavior and although he may have a mental abnormality or illness, has. he sufficient intelligence or mental ability to comprehend that if the penalty set by the jury is carried out and he is sent to the electric chair, it will be in punishment for the crime of which the jury found him guilty? “Answer. Yes, except during the two periods of acute mental disturbance that he has exhibited.” After reviewing the evidence taken before the sanity commission and its report and, as well, the evidence adduced at the trial, the court below on October 21, 1954 filed an opinion and order finding appellant legally sane and ordering the proceedings to continue. Exceptions filed to this order by appellant were subsequently dismissed by an opinion and order dated February 9,1955. This appeal followed. As The Mental Health Act of 1951 neither provides for nor prohibits an appeal to this Court where commitment is denied, review by certiorari may be had in the broadest sense and we may examine the record to determine whether the court’s finding amounted to an error of law or an abuse of discretion as appellant contends: Commonwealth v. Patskin, 375 Pa. 368, 375, 100 A. 2d 472. Prior to any legislation on the subject, Pennsylvania and the vast majority of other jurisdictions consistently followed and applied the common law principle that no insane person could be tried, sentenced or executed: Commonwealth ex rel. Smith v. Ashe, Warden et al., 364 Pa. 93, 116, 71 A. 2d 107; Commonwealth v. Patskin, supra, p. 377. The common law concept of insanity to be applied, by a jury in determining guilt where insanity is set up as a defense against conviction was the so-called “right or wrong” test laid down in M’Naghten’s Case, 8 Eng. Rep. 718, 10 Cl. & Fin. 200, and subséquently adopted as the law of Pennsylvania in Commonwealth v. Charles Mosler, 4 Pa. 264. While the M’Naghten rule has been criticized, it remains the law of Pennsylvania when insanity is pleaded at trial: See Commonwealth v. Carluccetti, 369 Pa. 190, 200 (1952), 85 A. 2d 391. However, the test at common law and employed by the courts in determining the mental capacity of a defendant to stand trial or to be sentenced or executed is not the M’Naghten “right or wrong” test but whether the defendant is able to comprehend his position and make a rational defense. In Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611, at p. 29 it was stated: “A person who, by reason of his insanity, is unable to comprehend his position and to make a rational defense cannot be tried on a criminal charge while in that condition . . .”. In Commonwealth v. Ragone, 317 Pa. 113, 176 A. 454, this Court said, quoting from Blackstone’s Commentaries, “(. . . If, after he [the defendant] • be tried and found guilty, he loses his senses before judgment, judgment shall not.be pronounced; and if after judgment he becomes of nonsane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.’ ”. As stated by Professor Weihofen in his book “Mental Disorder as a Criminal Defense” (1954) at p. 459: “After a verdict. of guilty and before sentence is pronounced, if a defendant is found to be incapable of comprehending the nature and purpose of the proceed ings or of stating any reasons that may exist why sentence should not be pronounced, sentence should be stayed and the defendant, committed as an insane person until he recovers.”. It is apparent from the three questions which the court submitted to the commission and the opinions accompanying its orders that it was of opinion that the common law test for determining mental capacity at this stage of the proceedings had not been altered by the Act of 1951. If this conclusion were sound, we would not hesitate in subscribing fully to the court’s findings and order. The commission found as a fact that appellant “. . . knew why he was in jail . . ., knew that he faced a sentence in accordance with the jury verdict . . ., knows that he is on trial for his life . . ., recalls his trial . . ., admits that no one is justified in taking anyone else’s life . . ., knows that it is not right to shoot anybody . . ., and what the consequences of his acts might be . . .”. The commission examined the appellant at some length as to his ability to cooperate with his attorneys, but made no specific finding in this regard. Appellant’s attorneys made statements before the commission that appellant was unable to adequately cooperate with them, but the court, stating that “The defendant’s own words and thoughts, as expressed by him in his own testimony before the Sanity Commission refute these opinions.”, found that “. . . the defendant, understands the nature of the proceedings against him, comprehends his position in relation thereto, and is able to cooperate with his attorneys, . . .”. We have read all of defendant’s testimony, not only before the sanity commission but at his trial, and are satisfied that, under the law as it existed prior to any legislation on the subject, the court below committed no error of law nor any abuse of discretion. However, the question presents itself whether the com mon law test has been superseded in Pennsylvania by statutory enactment. The history of legislation dealing with the custody of persons charged with and acquitted or convicted of crime who become mentally ill begins with the Act of May 14, 1874, P. L. 160, but for purposes of this case we are particularly concerned with the present Mental Health Act of 1951 and its predecessor, the Act of July 11,1923, P. L. 998. Section 308 of the Act of 1923 provided : “When any person detained in any prison, whether waiting trial or undergoing sentence . . . shall, in the opinion of the . . . warden, ... be insane, or in such condition as to make it necessary that he be cared for in a hospital for mental diseases, the said . . . warden, .. . shall immediately make application, ... to a law judge of the court having jurisdiction of the charge against said person, or under whose order he is detained, for commitment of said person to a proper hospital for mental diseases. The said judge shall forthwith order an inquiry ... by a commission . . . who shall immediately examine the said person and make written report of their findings to the said judge . . . The said judge may, in his discretion, summon other witnesses and secure further evidence. If he is then satisfied that the person thought or alleged to be insane is in fact insane, he shall order the removal of such person to a hospital for mental diseases . ..”. (Emphasis supplied). We construed the language “any person detained in any prison, whether waiting trial or undergoing sentence” as including a person sentenced to death, since a part of his sentence is that he be imprisoned until his execution: Commonwealth ex rel. Smith v. Ashe, Warden et al., supra, p. 117. To this extent the 1923 Act adopted the common law rules relative to a stay of execution for a defendant who became insane subsequent to verdict. The Mental Health Act of June 12, 1951, P. L. 533, as amended, 50 PS §§1071-1622, was the first general revision and comprehensive codification of the Mental Health Laws since the Act of 1923. Under Section 343 of this Act the trial court is empowered to defer sentence and order a mental examination of any person convicted of a crime punishable by sentence to a penal or correctional institution. While this section would appear to restrict the application of the Act solely to persons convicted of crimes punishable by sentence to a penal institution, as previously indicated, Section 344 covers persons detained in any penal institution and it impliedly includes persons convicted of first degree murder who are mentally ill by expressly excluding in that classification only mental defectives: Cf. Commonwealth ex rel. Smith v. Ashe, Warden et al., supra. Section 345 of the Act provides that after receipt of the application for commitment and notice to the prisoner’s counsel and an examination of the person sought to be committed by a commission, “ (d) If the court is satisfied that the person sought to be committed is mentally ill or mentally defective, it shall order the commitment or transfer of such person to a mental hospital or an institution for mental defectives . . .”. (Emphasis supplied) It will be readily observed that the basic dissimilarity between Section 345 of the Act of 1951 and Section 308 of the Act of 1923 is the substitution of the words “mentally ill or mentally defective” in the later enactment for the term “insane” in the earlier Act. This difference in terminology is employed with substantial uniformity throughout the 1951 Act. On the ground that this change of language in the 1951 legislation signifies a change of meaning by the Legislature in order to bring penology into closer accord with present day medical science, appellant contends that the court below abused its discretion and committed an error of law in applying the common law test of insanity rather than the statutory standard of mental illness. It is a canon of statutory construction that where words of a later statute differ from those of a previous one on the same subject, they presumably are intended to have a different construction: Fidelity Trust Company v. Kirk et al., 344 Pa. 455, 25 A. 2d 825; Panik v. Didra, 370 Pa. 488, 88 A. 2d 730; McFarland Estate, 377 Pa. 290, 296, 105 A. 2d 92. The term “mental illness” is defined in Section 102(11) of the 1951 Act as “. . . an illness which so lessens the capacity of a person to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care. The term shall include ‘insanity’, ‘unsoundness of mind’, ‘lunacy’, .‘mental disease’, ‘mental disorder’ and all other types of mental cases, but the term shall not include ‘mental deficiency’, ‘epilepsy’, ‘inebriety’, or ‘senility’, unless mental illness is superimposed.”. (Emphasis supplied). Although this definition includes insanity, we disagree with the lower court’s conclusion that it comprehends only legal insanity. It also expressly embraces “ ‘mental disease’, ‘mental disorder’ and all other types of mental cases”, thereby indicating that the statute was intended to comprise mental abnormalities which would not come within the strict connotation of the term legal insanity. Where the lawmaking body has the power to enact legislation in a particular field, as it has here, and has manifested its intention, wé are not at liberty to distort the language of the enactment and by judicial legislation provide for what we might consider a more socially desirable result: Mamlin v. Genoe et al., 340 Pa. 320, 17 A. 2d 407. When Section 345 of the 1951 Act is read in conjunction with the stat utory definition of mental illness, we think it plain beyond cavil. that the Legislature has broadened the test to be used in staying criminal proceedings. To what extent has the test been enlarged? At first glance the wordage of the Act would make it appear that every conceivable type of mental illness, with the exception of those specifically excluded, would fall within its scope and require commitment. Upon closer scrutiny it becomes evident that the controlling factor is the degree or extent to which the mind is affected by the mental disorder and not the bare existence of symptoms which would induce a psychiatrist to diagnose a mental illness. This conclusion is confirmed by Section 343(c) of the Act which provides that “On the report of the examiner that the defendant is so mentally ill or defective that it is advisable for his welfare or the protection of the community that he be committed to other than a penal or correctional institution, the court may commit him, ... If the examiner’s report indicates no such mental illness or deficiency, he shall be sentenced as in other cases.”. (Emphasis supplied). Here the commission found that appellant possessed well marked symptoms of psychosis which it further characterized as dementia praecox. This condition, a recognized form of mental disorder was, if justifiably diagnosed, within the purview of the Act, but having resolved that appellant was mentally afflicted, the determinative issue was whether that illness so lessened his capacity to use his cus tomary self-control, judgment and discretion as to render it necessary or advisable for him to be under care. As clearly delineated in the statutory definition, this is the standard which the Legislature promulgated to guide the commission and the court. Assuming the commission found appellant a proper subject for commitment under this standard, its findings while persuasive were nevertheless advisory only and not mandatory upon the court, for under Section 345(d) of the Act it is the court and not the commission which must be satisfied that appellant is mentally ill under the standard prescribed. It follows that the court in the instant case could have rejected, although not arbitrarily or capriciously, the commission’s findings and conclusions and could have independently determined from the evidence that appellant’s capacity to use his customary self-control, judgment and discretion had not been so lessened that it was necessary or advisable for him to be under care. In view of the fact, however, that the court, in misapprehending the effect and intendment of the 1951 Act, did not apply this standard it thereby committed an error of law, and we have no way of ascertaining whether it would have arrived at a similar conclusion under the criterion so laid down. Accordingly the commission’s findings and recommendation must be reexamined and the evidence reconsidered by the court together with any additional relevant evidence in the light of the statutory definition of mental illness. The order of the court below is reversed and the record is remanded for procedure consonant with this opinion. The two periods of acute mental disturbance referred to in tbe answers to tbe three questions submitted by tbe court occurred, according to the commission’s report, “. . . tbe first time in the jail at the time of his commitment and the second time while in the hospital after the Commission first met.” and the commission found that “On both occasions his disturbance promptly subsided.”. In its opinion dismissing the exception to its order, the court said: “. . . it seems likely to the court that the symptoms on which the members of the Sanity Commission based their opinion that Norman W. Moon was mentally ill might well be exhibited by any one convicted of murder in the first degree by a jury which set the death penalty, under the stress of his confinement and contemplation of his fate . . .”.

OPINION OF THE COURT FLAHERTY, Justice. This is an appeal from an order of the Commonwealth Court which affirmed a decision of the Pennsylvania Labor Relations Board (Board). The Board had certified the Fraternal Order of Police, Local 85, (FOP) as the collective bargaining representative of the Capitol Police. The issue to be addressed is whether the determination by the Board, that Capitol Police employed in Harrisburg and in state office buildings in Scranton, Philadelphia, and Pittsburgh are “policemen” within the meaning of Act 111, the Act of June 24, 1968, P.L. 237, No. Ill, § 1 et seq., 43 P.S. § 217.1 et seq. (Act 111), is supported by substantial evidence. Act 111, enacted in 1968, encompasses policemen and firemen and provides for binding arbitration in the event of impasse during bargaining for which the covered employes relinquish the prerogative to strike the employer. Appellants contend that the Board conclusion is erroneous in that the employes are “guards” within the meaning of the Public Employe Relations Act, Act of July 23,1970, P.L. 563, No. 195, § 101 et seq., as amended, 43 P.S. § 1101.101 et seq., (PERA). PERA, enacted in 1970, encompasses public employes generally, including “guards,” and retains the employe prerogative to strike. This case arose on the petition of the FOP filed with the Board on March 14, 1977 seeking to represent the Capitol Police for purposes of collective bargaining pursuant to Act 111. In 1973, under PERA and not Act 111 and pursuant to a stipulation that the employes were not “policemen,” the Board had previously certified the International Union, United Plant Guard Workers of America (Plant Guards) as the bargaining representative of all Police Officers I and II and as the exclusive “meet and discuss” representative of all Police Officers III and IV, employed by various agencies throughout the Commonwealth, some of which are Capitol Police. Because the prior certification under PERA evolved from a stipulation of the status of Capitol Police, the instant FOP petition presented the first opportunity of the Board to take evidence on the issue. A series of hearings was held on the FOP petition before a designated hearing examiner of the Board at which time all parties in interest were afforded a full opportunity to examine and cross-examine witnesses, present testimony and furnish documentary evidence. Findings of fact and conclusions of law were filed. The Board concluded that the officers of the Capitol Police are “policemen” within the meaning of Act 111 and that the unit appropriate for collective bargaining is a subdivision of the employer unit comprising all full-time and regular part-time Capitol Police, including Police Officers IV (Lieutenants), Police Officers III (Sergeants), Police Officers II, Police Officers I, and excluding the Superintendent and Captain. The Board ordered an election which rendered a majority vote by the members of the defined appropriate unit in favor of representation by the FOP, whereupon the FOP was certified by the Board as the exclusive bargaining representative. Exceptions were filed by the Plant Guards and the Commonwealth, resulting in Board modification and vacation of some findings of fact but in the entry of a final order certifying the FOP as the exclusive bargaining representative. From this final order, the Commonwealth and Plant Guards appealed to Commonwealth Court which affirmed in part and reversed that part of the final order which concluded that Capitol Police serving state office buildings in Scranton were “policemen.” Our scope of review is limited to a determination of whether the factual findings of the Board are supported by substantial evidence and whether the conclusions of law are reasonable. If supported by substantial evidence, the findings of the Board are conclusive. Appeal of Cumberland Valley School District, 483 Pa. 134, 394 A.2d 946 (1978) and cases cited therein. See also, PLRB v. Fabrication Specialists, Inc., 477 Pa. 23, 383 A.2d 802 (1978); PLRB v. Butz, 411 Pa. 360, 192 A.2d 707 (1963). “Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Hence, appellate review must focus on whether there is rational support in the record, when reviewed as a whole, for the agency action.” Republic Steel Corp. v. Workmen’s Comp., 492 Pa. 1, 5, 421 A.2d 1060, 1063 (1980) (citation omitted). The Board did find certain categories of work which might also be found within the realm of typical security guard work. However, duties of police officers and security guards are not mutually exclusive and there is necessarily an overlapping of functions. Accordingly, we focus our attention on those functions and powers beyond the realm of the security guard which distinguish the Capitol Police as “policemen.” Indicative of the police aspect of Capitol Police activities as found by the Board include: That [Capitol Police] officers have authority to make arrests for any violation of the Pennsylvania Crimes Code including felonies, misdemeanors, and summary offenses. That officers may issue parking tickets. Where probable cause to arrest exists, the officer will give Miranda rights. That in calendar year 1976 the Capitol Police reported on uniform crime reports approximately 100 criminal offenses occurring in their jurisdiction and affected (sic) nineteen arrests. That Capitol Police are authorized to issue parking citations for violations on Commonwealth property and to issue moving violation tickets for violations which occur on city streets which run through the Capitol complex. That, the Capitol Police have primary law enforcement jurisdiction over all areas in Harrisburg where the Commonwealth owns (and in some cases leases) land. That the Harrisburg City Police cannot enter the Capitol Complex to make an arrest or write citations unless they are in hot pursuit of a suspect. . That the Capitol Police have a direct liaison with the Pennsylvania State Police. That the Capitol Police and State Police coordinate their operations and conduct joint investigations with respect to crowd control and traffic control during mass demonstrations. That the Capitol Police have an informal mutual aid agreement with the City of Harrisburg Police. PLRB Findings of Fact 23, 28, 66 and 67, entered March 29, 1979, June 27,1979 (citations to notes of testimony omitted) (emphasis supplied). After review of the voluminous record in this case, we have determined that these salient features constituting the traditional police function are supported by substantial evidence. The conclusion of the Board that the Capitol Police are “policemen” is reasonable and emerges from an evidentiary pattern of full police powers and duties confined jurisdictionally to property of the Commonwealth, a geographical limitation not unlike special police forces in other governmental or principality jurisdictions. The evidence is not of limitations of duties and powers as would be consistent with lesser empowered security guards, but rather of mere jurisdictional confinement. In support of their assertion that the Capitol Police have status as “guards,” appellants emphasize that the Capitol Police do not perform their police functions with the same frequency as police forces of comparable size. We are not persuaded that the status of the Capitol Police as “police” is to depend upon frequency of acts. Frequency of performance may be a function of the relative infrequency of disruptive activity in and around state buildings as compared to the community at large and thus does not diminish the power or eliminate the duty of the Capitol Police, but merely reduces the necessity of exercising those powers and duties. In the event of need, they possess the ability, capacity and authority to interpose in any situation requir ing police intervention. Capitol Police are required “and their duty shall be” to enforce order on state property, to arrest persons in breach of the law, and “to carry the offender before the proper alderman, justice of the peace of magistrate and prefer charges against him under the laws of the Commonwealth.” 71 P.S. § 646. The performance of these duties is statutorily mandated and is not merely incidental to the responsibilities of the Capitol Police. Cf. Venneri v. County of Allegheny, 12 Pa.Commonwealth Ct. 517, 316 A.2d 120 (1974). Accordingly, appellants’ contention is without merit. The legislative grant of powers is of substantial concern in determining status of employes for applicability of Act 111. See e.g. Hartshorn v. County of Allegheny, 460 Pa. 560, 333 A.2d 914 (1975). Section 646(e) of the Administrative Code, empowering the Capitol Police, provides in pertinent part: (e) To exercise the same powers as are now or may hereafter be exercised under authority of law or ordinance by the police of the cities of Harrisburg, Pittsburgh and Philadelphia, municipalities in Dauphin County wherein State buildings are located ...; Section 646(e) is to be construed liberally with a view, inter alia, to the object to be attained by the statute and the consequences of a particular interpretation. Statutory Construction Act of 1972, Act of Dec. 6, 1972, No. 290, § 3, 1 Pa.C.S.A. §§ 1928(c) and 1921(4) and (6). Thus, by subsection (e) of this enabling legislation, the Capitol Police are vested with the same powers exercised by the police of the cities in which the Capitol Police are located. Because the enabling legislation does not specifically name police of thje city of Scranton as being the model for powers held by Capitol Police in Scranton, the Commonwealth Court determined that Capitol Police in Scranton were not vested with traditional police powers and hence are not “policemen” fop purposes of Act 111. However, this interpretation assumes the legislature intended to deprive Capitol Police serving in state office buildings in Scranton of the same general powers and duties of Capitol Police serving elsewhere in the Commonwealth. Such an interpretation is in derogation of the clear import of § 646(e) that Capitol Police shall enjoy the powers and duties of police in the city or municipality in which they are currently serving. As such, Capitol Police serving in Scranton are empowered as are Scranton Police and police generally throughout the Commonwealth. Accordingly, we reverse that part of the Commonwealth Court decision which reversed the Board conclusion that Capitol Police in Scranton are “policemen.” We affirm that part of the Commonwealth Court decision which approves “police” status of Capitol Police serving in Pittsburgh, Philadelphia, and Harrisburg. In addition, we have reviewed all determinations of the Commonwealth Court briefed by the parties to this appeal and affirm the Commonwealth Court’s disposition of those issues. Affirmed in part and reversed in part. ROBERTS, C.J., files a dissenting opinion. NIX and HUTCHINSON, JJ., did not participate in the consideration or decision of this case. . Commonwealth of Pennsylvania v. Comm., Pa. Labor Relations Board, 64 Commonwealth Ct. 525, 441 A.2d 470 (1982). . It was stipulated that the evidence and testimony given relevant to Capitol Police serving in Harrisburg would serve to establish the powers, duties and activities of Capitol Police serving in Pittsburgh, Philadelphia and Scranton. . Section 646 of the Administrative Code provides in pertinent part: § 646 Capitol Police, Commonwealth Property Police and Campus Police The Capitol Police ... shall have the power, and their duty shall be: ¡j (a) To enforce good order in State buildings and on State grounds ...; i (b) To protect the property of the Commonwealth in State grounds and buildings ...; (c) To exclude all disorderly persons from the premises ...; (d) In the performance of their duties to adopt whatever means may be necessary; (e) To exercise the same powers as are now or may hereafter be exercised under authority of law or ordinance by the police of the cities of Harrisburg, Pittsburgh and Philadelphia, municipalities in Dauphin County wherein State buildings are located ...; (g) To order off said grounds and out of said buildings all vagrants, loafers, trespassers, and persons under the influence of liquor, and, if necessary, remove them by force, and, in case of resistance, carry such offenders before an alderman, justice of the peace or magistrate and (h) To arrest any person who shall damage, mutilate or destroy the trees, plants, shrubbery, turf, grass-plots, benches, buildings or structures, or commit any other offense within State buildings ...; Section 2416 of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 1 et seq., 71 P.S. § 646 (emphasis supplied). . That Scranton is considered an integral part of the Capitol Police force is supported by Board Finding # 46 regarding the appointment of a lieutenant to travel among Pittsburgh, Philadelphia, Scranton, and Harrisburg to coordinate the administrative and operation functions of the police force. Additionally, three Police Officers III are designated as managers and are assigned to the State Office Buildings in Pittsburgh, Philadelphia and Scranton, at which locations they are ranking officer. Finding # 51.