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The opinion of the Court was delivered by Tilghman C. J. On the trial of this cause in the Court below, the defendants’ counsel took eight bills of exceptions to evidence, and also an exception to the charge of .the Court. Each of these shall be considered in the order in which they stand on. the record. The 1st exception was, to the challenge of a juror, claimed by the plaintiffs’ counsel, and admitted by the Court. The Act of 4th April, 1809, (5 Sm. L. 59,) gives to each party, in all civil suits, the right of challenging two jurors peremptorily, but does not direct the mode, in which the challenge shall be made. It has been the general practice for the plaintiff to challenge one juror from the whole pannél first., It was so done in the present case ; after which, the defendant challenged one.' It has also been the practice in this, and other judicial districts, to summon a talesman in the place, of each juror that has been challenged, immediately after the challenge. So also it was done in this case. After the defendant had made his first challenge, the right , of making 3. second challenge came to the plaintiff; and it is stated on the record, that he waved a second challenge. Upon this the defendant made a second challenge, and a juror having been summoned in the room.of the one so challenged, the plaintiff claimed the right of challenging him, and the Court permitted the challenge. In this, I think there was error. If the plaintiff waved the second challenge, when it came to his turn to make it, he should not be permitted to resume it again. It would give him an unfair advantage. The mode of alternate challenge, having been commenced, must be preserved with uniformity to the end. The plaintiff had á right' to wave his challenge, but having waved it, he must abide by it. ■ The second exception was to the admission of James Ash, as a witness. He is one of the plaintiffs on the record, but, previous to his admission, he had executed a release to the heirs of James Craig, of all claims to compensation by way commission, and. had paid to the prothonotary of the Court,.a sum of money admitted to be sufficient for the payment of all costs accrued or which may accrue in this suit, t0 be applied to the payment of these costs, let the verdmt be as Jt may . so that jn evert7 event the whole costs were paid by the said Ash, and he had agreed that in no event was any part of the money to be refunded. Thus he stood completely divested of all interest, actual or contingent. Thus circumstanced, I have no doubt that he was a competent.witness. He was a bare trustee, at the commencement of the action, and there is no suggestion that he was in any danger of being involved in a devastavit. If any thing of that kind had appeared, he would have been interested, It was decided by this Court, in the case of Steele v. The Phœnix Insurance Company, (3 Binn. 306,) that the bare circumstance of being a plaintiff on record, did not render a man incompetent, provided he was free from interest when he was offered as a witness. This principle has been ever since acted upon in all the Courts, and may be considered as the law of the land. I speak of it as a general principle, to which there may be exceptions, when witnesses are offered under circumstances of strong suspicion. To attempt now, an examination of all possible exceptions is unnecessary, and would be dangerous. I only wish it to be understood, that there may be cases in which a witness may be offered, under circumstances sufficient to exclude him, although he cannot be proved to be absolutely interested. But in the present instance, it does not appear that Mr. Ash ever had any interest, except what might arise from his commission as an administrator, and from his being liable to the costs of suit; and having completely discharged himself from both these, and standing under no suspicion whatever of improper conduct, in order to make himself a witness, he was competent upon principles well established. In his admission, therefore, there was no error. The third exception has been abandoned by the plaintiffs in error. The 4th exception was to the admission of James Craig’s bank book, (containing his account with the bank of Tennsyl sania,) and a check drawn by James Craig on the bank of Pennsylvania, dated 20th May, 1793, for 1979 dollars, payable to James Patton, or beaper. To decide this exception, it will be necessary to take into' view ' sortie of the evidence which had been given, before the bank book and check were offered. ‘ It had been proved by the oath of James Ash, that at' the earnest solicitation of John Patton, and for his accom- , . ... , , , . , , , , ' modation, a note had been drawn by the said Ash, payable to Patton for 2000 dollars, dated May 13th, 1793. - This note was indorsed by Patton and Craig, and discounted by the bank of Pennsylvania. Patton received the money, but as Craig was the last indorsor, and consequently the.money was placed to his credit in the bank, it was necessapy that he should draw a check, in order to enable Patton to receive the money. Ash proved also, that he, being liable to the bank, as drawer of the note for 2000 dollars^ received full satisfaction from Craig, so. that in fact, Craig’-lent the money to Patton. It was then proved by Ash, that the book was the bank book of Craig, that the signature of Craig to the check, was his hand writing, that the check bore .the mark of having been cancelled in the bank of- Pennsylvania, and both book and check were found by him,, after Craig's death, among his papers. It is evident then, at the first glance, that' not only were this book and check in direct corroboration of Ash's testimony, but they were so connected with it as to form a link which ought not to have been broken; and had they not been produced, the defendants might well have remarked, that Ash’s testimony was suspicious, as it stood unsupported by -the bank'book and check, which were in his power, and which would either verify or disprove- what he had sworn. A naked check, payable to one or bearer, is not evidence per se of payment to the person whose name is inserted—because the bank pays to the bearer, whoever he may be. It is necessary therefore to prove, that the person to whom payable, received the money at the bank. And even then, it may be expected; that in order to charge such person with a debt,some evidence should be giving, to explain the consideration^ of the check; for it may have been given in payment of a debt due from the drawer. In the present case however, after the introductory testimony of James Ash, the book and check, would undoubtedly have been evidence, provided the usual proof had been made, of the truth of the entries in the bank book. These entries are always made, by one of the clerks of the bank. It is necessary therefore, that they should be • ' ' proved by the' clerk who" made them, or in cáse of his death his hand writing should be proved. It is'not-enough that this book, was the bank book of Craig. He might have made. entries in it. himself, or procured them to be made by some Dther person, not a clerk of the bank; and such entries would , , _ • . „ not be evidence, in ancient transactions, great allowance will be made for the difficulty of proof. But it should be shewn, that such difficulty exists. The plaintiff took no step whatever to prove the .entries in Craig’s book.' For any thing - that .we know., the clerk may be living, or, if dead, his writing may. be well known. ’Iii all probability it is well known. I have often seen bank books given in evidence,- but never without the. entries .being verified by the oath of the clerk who made them,- unless such proof( was dispensed with by the adverse party. I am therefore of opinion, that for want of such proof, the bank book of James Craig was not evidence. Neither do I think the check was evidence, because .there was not sufficient proof that Patton received the money from the bank. James Ash’s testimony was general-; that Patton got the money, and that he could not have received it without Craig’s check; but he did not pretend to say, that within his own knowledge, the check was paid to. Patton, or that it was paid to any body. He found it, cancelled, among Craig’s papers, and therefore presumed it was paid. But, with the bank book, the check would have been evidence, because it Would then have appeared, that the check was paid by the bank, and connected with the other circumstances proved by Ash, it should, have gone to the jury,'who might well have inferred that the payment was to Patton. The 5, 6, and 7th, exceptions depend on-one principle and may be considered , together. The Plaintiffs offered in evidence, the .record of a judgment in the Supreme Court, the 1-lth December, 1797, for James Seagrave against John Patton, Afames Craig, and three other persons, for the sum of 4026 dollars, 87á cents, and also offered to prove' that Craig paid Patton’s proportion of this judgment. They also offered in evidence, a note for 350 pounds, from Patton and Craig, to a certain John Wright Stanly, and offered to prove that Craig paid Patton’s half of this note. The evidence was admitted, although the defendants objected to it, alleging that their payments were in the course of partnership transactions, and therefore could not be recoverable in the present action, or in any othér, than an action of.account render. Had it clearly appeared, that unsettled partnership transactions were involved in these payments, the objection might have been good. But; it did not clearly appear so, and whether or no it was a partnership transaction, the jury might-judge. It is riot to be supposed, that the defendants were injured by the admission of this evidence, because the •Court gave it in positive charge to the jury, that if the payments related to a partnership account, the plaintiffs could not recover on them, in this action, unless the partnership accounts had been previously settled, or Patton had made an express promise to pay. Thus qualified, I perceive no error in the admission of the evidence. The 8th exception, was to the admission of a. number of letters from, Patton to Craig, and' to Ash, all admitted to be the hand writing of Patton, and the copy of a letter from Ash to Patton. These letters were offered all together, and the defendant objected to all and each of them. There is not a particle of doubt on this exception. The -letters of Patton were clearly evidence, and the.copy of Ash’s letter, as clearly not evidence. For although Ash proved, that it was a true copy of the original, which was directed to John Patton, and put into the post office, yet it is against principle, to admit the copy of any private paper, without accouiitirig for the non production of the original. A copy, in its nature, is less satisfactory evidence than the original.. And when.the original, is in the hands of the adverse party, notice should be given to him to produce it. In this case notice was not given, and therefore the copy was not evidence. The last exception is to the charge of the Court, on the subject of the Act of Limitations. The transactions on which the plaintiffs’ claim was founded, took place more than six. years before the co'mmencement of the action. To take the case out of the Act, the plaintiffs relied on several letters of Mr. Patton, but more particularly on one to James Ash, dated the 16th of November, 1802. And the opinion of the Court was expressly asked, by the defendants’ counsel on this point. The Court’s answer to this question, (the fifth question proposed by the defendants’ counsel,) which is to be considered as part of the charge, is in the following terms., if To take the case out of the Statute of Limitations, there must be an acknowledgment of a subsisting debt, or a promise to pay, within six years before the action brought, and the acknowledgment and promise to pay must have a direct reference to the demand now made by the plaintiffs, which fact the jury must determine from the evidence in this cause.” The defendants* objection to this opinion, is, “ that Patton’s letter did not refer with certainty to the account, which is the subject of this suit 5 and the Judge should have told the jury, that unless the letter did so refer, it could have no effect on the Statute of Limitations, or rather he should have told them, that this letter had no effect on the Statute.” Let us examine this letter then, and see what force there is in the objection. It appears, from the letter, that Patton had received from Ash, a copy of Craig’s account against him ; and also that he had made out from his own books, his own account against Craig, but had lost them both. He therefore requests Ash to have another copy of Craig’s account made out and sent to him, and informs him, that as soon as he has received his books, which he expected to do soon, (they were then at Harrisburg, on the way from Philadelphia to Patton’s house in Centre county,) he would have his own account made put again ; the letter concludes with saying, “I will write you again some time hence, and inform you when I will again return to the city, and put a close to this affair in the best manner I can.” Now, we see that in this letter, Patton expressly acknowledged an unsettled account with Craig’s estate, and an intention to close it. By closing it, I understand paying it, if the balance should be against him. It would have been most extraordinary indeed, if the Court had directed the jury that this letter could have no effect on the Statute of Limitations. If the Judge had passed any opinion upon it, he might truly have said, that it- was quite sufficient, to authorise the jury to presume a new promise within six years, unless they were satisfied, that it had no reference to the affairs, on which the action is founded. But it ought not to have been taken from the jury entirely, because there was a reference to accounts, of which the jury, and they only had a right to judge. In my opinion, therefore, the charge was on this point, more favourable to the defendants than their case deserved ; but of that, they have no right to complain. On the whole, I am of opinion that the judgment should be , , ^ • i j j reversed, and a new trial ordered. ■ Duncan J. gave no opinion, having been counsel for the plaintiff in error. Judgment reversed and a venire facias de novo awarded.

Mr. Justice Paxson delivered the opinion of the court May 2d 1881. This was an action of debt brought in the court below against the county of Chester by three members of the bar, two of whom reside in said county and the other in the city of Philadelphia. The action was founded upon an agreement under seal, properly executed by the three plaintiffs and the three gentlemen who were at the time the commissioners of said county. The seal of the county is affixed and attested by the clerk of said commissioners. The agreement provides that the commissioners have retained the plaintiffs to represent Chester county in proceedings to secure a rebate to the county from the state for the amount of taxes added by the state revenue board for the years 1875, 1876 and 1877, and a return thereof to the county; that the attorneys should be paid for their services fifty per cent, of the amount which should be recovered or allowed to the county on settlement, and, if unsuccessful, no charge was to be made for services, and the county was to be relieved from all costs and expenses in the premises. In pursuance of this agreement, the plaintiffs entered upon their employment, and succeeded in obtaining a credit from the state in favor of the county of the sum of $21,398.34. They then brought suit upon the said agreement for their fees, and recovered a verdict in the court below for §11,540.16. It is proper to state that one of the plaintiff's was the regular solicitor of the county commissioners at the time the agreement was made. The whole case turns upon the single question of the power of the commissioners to bind the county by such an agreement. The power of counsel to contract with their clients for contingent fees is not necessarily involved, and we shall not therefore discuss the legality or the ethics of such transactions. Nor need we stop to consider whether the agreement as set out in the narr. is champertous, nor whether the English statutes in regard to this offence are in force in this state. We rest our decision upon the broad ground that the commissioners had no power to bind the county by such a contract; that it was against public policy, and therefore null and void. The learning and industry of the plaintiffs have failed to call our attention to any case which sustains such a contract, nor have I been able to find one. Wylie v. Coxe, 15 How. 415; Trist v. Child, 21 Wall. 441; Wright v. Tebbitts, 1 Otto 252; Stanton v. Embrey, 3 Id. 556, and McPherson v. Cox, 6 Id. 404, are not in point. It is true these cases rule that a contract for a contingent fee in the prosecution of a claim against the government, when fairly made, may be enforced. They are all cases, however, in which the contract was made with a private claimant. That an attorney may make any contract he sees proper with his client in regard to his compensation, whore the client is a private citizen, and acting in his own behalf and with reference to his own property, is not denied. All that the law will do in such case is to scrutinize the transaction and see that it is fair and that no unconscionable advantage has been taken either of the necessities or the ignorance of the client. How stand the facts here ? There was a large'fund in the treasury of the state, which belonged either to the latter or to the county of Chester. In either event, it was public money, and was not the property of the county commissioners. It was their right and their duty to collect the same, if possible, and place it in the county treasury, or to obtain a proper credit therefor, which is practically the same thing. It was strictly in the line of their duty to employ competent professional assistance for such purpose. Having an experienced attorney as their standing counsel, the necessity of employing two others, one of them out of the county, does not clearly appear. Conceding such necessity, however, to have existed, the commissioners could not bind the county for more than a reasonable compensation. What is a reasonable compensation under such circumstances is perhaps a question for a jury. We will not pass upon it further than to say that a charge of one-half for recovering so large a sum in the hands of a solvent debtor cannot be regarded as reasonable upon any principle which should govern professional conduct. These commissioners were acting in a fiduciary character. They were but trustees of the money, w'hen received, for the use of the county. When therefore they contracted to give one-half of it' to the plaintiffs for their services, they exceeded their power. They were giving what did not belong to them. As well might a trustee contract to give away one-half of the trust estate as compensation to counsel for services in connection therewith. And if he majr give away one-half, why not thr-ee-fourths or even a greater proportion ? Can it be doubted that a court of equity would strike down such a contract as improvident and a legal fraud ? We are not unmindful of Cooper v. Lampeter Township, 8 Watts 125; Vankirk v. Clark, 16 S. & R. 286; Hunter v. Albright, 5 W. & S. 423; Schwamble v. The Sheriff, 11 Harris 18; County of Allegheny v. Western Hospital, 12 Wright 123; Schuylkill & Dauphin Improvement Co. v. McCreary, 8 P. F. Smith 304, and cognate cases, in which it is held that county commissioners are clothed with the corporate powers of their respective counties and may contract therefor. This principle is not denied where commissioners act in the line of their duty and within the scope of their powers. They exceed both when they attempt to give away the property of the county. This ruling does not deny the plaintiffs all compensation. Whether the plaintiff Barber can recover anything will depend upon the terms of his previous engagement as solicitor to the commissioners. The other plaintiffs are entitled to recover a fair compensation, nothing more. But there can be no recovery upon this agreement, for it is clearly ultra vires. It is set out in hcec verba in the narr., and being thus upon the record, we are enabled to reach the merits of the case, notwithstanding the defective character of the bill of exceptions. The judgment is reversed, and a venire faeias de novo awarded. Justices Mercur, Gordon and Green dissented.

The opinion of the Court was delivered by Gibson, C. J. It is not intended to treat the question presented by this demurrer, in the various aspects in which it has been viewed at the argument. The subject has been exhausted by several of the most learned and able judges of our country;' and had we even the vanity to deem ourselves competent to shed new light on it, an attempt to do so, would have been prevented by the press of business that has occupied our attention during the short period that has been afforded. JBut we have meditated no such attempt. Our object is not to produce new arguments to sustain or overthrow our own decisions, but to repose on them so far as they go, as all-sufficient and incontrovertible authorities. Haply the Commonwealth v. Cook covers the ground of the argument here ; and on the authority of that case we mean to rule the present. Although its principles may not be in accordance with decisions in our. sister states, and in the courts of the union, it is nevertheless, as regards Pennsylvania, the law of the land ; and we submit to it without reluctance. By this remark I am far from wishing to intimate a • doubt of its solidity. Sitting at the time in another court, I took no part in it; but had it been brought before the court in bank by reason of doubt or hesitation on the part of the eminent men by whom, it was decided, it would with the exception of an inadvertent expression of the Chief Justice, presently to be noticed, have received from me a hearty concurrence. The confidence 1 put in the soundness of their judgment is unshaken by any thing discoverable in the decisions that have since, been made. Why it should be thought that the citizen has no other assurance than the arbitrary discretion of the magistrate, for the enforcement of the constitutional principle which protects him from being twice put in jeopardy of life or member for the same offence, I am at a Igss to imagine. If discretion is to be called in, there can be no remedy for the most palpable abuse of it, but an interposition of the power to pardon, which is obnoxious to the very' same objection. Surely every right secured by the constitution, is guarded by sanctions more imperative. But in those states where the principle has no higher sanction than what is derived from the common law, it is nevertheless the birth right of the citizen and consequently deipandable as such. But a right which depends upon the wall of the magistrate is essentially no right at all; and for this reason the common law abhors the exercise of a discretion in matters that may be subjected to fixed and definite rules. I take it on grounds of reason as well as of authority, then, that a prisoner, of whom a jury have been discharged before verdict given, may, by pleading the circumstances in bar of another trial, appeal from the order of the court before which he stood, to the highest tribunal in the land. Nor do I understand how he shall be said not to have been in jeopardy before the jury have returned a verdict of acquittal. In the legal, as well as the popular sense, he is in jeopardy the instant he-is called to stand on his defence; for from that instant, every movement of the Commonwealth is an attack on his life: and it is to serve him in the hour of his utmost need that'the law humanely adds to the joinder'of the issue, a prayer, for safe deliverance. The argument must therefore be, that he is not put out of jeopardy unless by a- verdict of acquittal; and that to try him a second time, having remained in jeopardy all along, is not to put him in jeopardy twice. In this aspect, it must be obvious that the argument is an assumption of the .whole ground in dispute. If the prisoner has been illegally deprived of the means of deliverance from jeopardy, every dictate of justice requires that he be placed on ground as favourable as he could possibly have attained by the most fortunate determination of the chances. The Commonwealth v. Cook, then, establishes that the court may discharge the jury of a prisoner capitally indicted only in a case of absolute necessity, to constitute which, it is necessary that there be some other ingredient beside mere inability to agree. The additional ingredient on which reliance is placed here, was the supposed disqualification for further consultation of two of the jurors by extreme sickness, which it was'believed endangered their lives. The facts which appear on the pleadings are these: the jury retired to consider of their verdict on Saturday evening at half past ten o’clock, and returned to the bar at ten o’clock in the forenoon of the Monday fol lowing, declaring they were not likely to agree; and two of them complained of being unwell, one of whom expressed a belief that if he were much longer confined in the state of privation in which he was placed, his life would be endangered. Being then sworn, he deposed that he was seventy-six years of age; that his health was greatly impaired by an attack of illness from which he had been relieved but a month before; that he was so feeble from privation and suffering as not to walk without assistance, and he firmly believed that if he were kept any further time in the state of restriction and privation in which he then was, his life would be put in danger. The other juror also testified that he was quite ill; that a bilious fever with which he had been confined a few months preceding, had left his frame debilitated ; and that he firmly believed his health would be in danger were he longer kept in the state of privation and restriction in which he then was. A respectable physician who had been ordered to visit the indisposed jurors in consequence of these representations, deposed that he had attended one of them a month before in a disease of the brain; and that his life would be put in danger by his being retained in the state of privation and restriction in which he ivas then placed, as it might produce a return of the disease : that the life of the other juror was not in 'immediate danger; but that he was ill, and his health would be endangered, were he to remain in a state of restriction and privation. In consequence of this examination the jury were discharged at half past twelve o’clock of the same day, without the consent of the prisoner, and having been kept together during thirty-eight hours, without meat, drink, or refreshment. But previous to their discharge, and when they had been so kept together for twenty-four hours, the court, with the assent of the Commonwealth and the prisoner, ordered them refreshment, on condition that a majority of them would consent to receive it; but the refreshment so ordered was refused. The prisoner not only consented to the granting of food and refreshment at all times, but after the condition of the two jurors was made known, prayed the couft to allow whatever should be necessary, especially to those who were indisposed. From the facts thus stated, it distinctly appears that the jury were kept without food or refreshment against the prisoner’s consent; and that in consequence of the illness of two of the number occasioned by abstinence, and which might consequently have been removed by the administration of nourishment, they were discharged against her consent. It is evident that the course pursued by the judge, was thought by him to be dictated by a passage in the opinion of the Chief Justice in the Commonwealth v. Cook; and it is but just to say, that viewing’ the matter as it was perhaps his duty to do, it is not easy to see how the result at which he arrived, could have been avoided. “But a case may arise,” the Chief Justice had said, 6 Serg. & Rawle, 587, “in which a jury may find great difficulty in agreeing, and some of them may be so exhausted as to put their health in danger. No one can think for a moment that they are to be starved to death. God forbid that so absurd and inhuman a principle should be contended for. The moment it is made to appear to the court by satisfactory evidence, that the health of a single juryman is so affected as to incapacitate him to do his duty, a case op necessity has arisen, which authorizes the court to discharge the jury.” It is evident from this that the exhaustion of a juror from privation was viewed by the Chief Justice, as a case that might legitimately arise ; and undoubtedly the supposition is consistent with principles that were applicable to trial by jury, in the earlier periods of the law. It is scarcely to be doubted that the original object of keeping a jury together without meat, drink, fire, or candle, was to extort the concurrence of those who would otherwise have withheld it; for though Sir Matthew Hale in his Pleas of the Crown, 297, declares that “ men are not to be forced to give their verdict against their judgments,” it is said in a curious note appended to the remark, that “ it is not a force when any of the jurors are compelled to comply under the peril of being starved to death ; for how can it be expected,” demands the annotator, “ that twelve considering men should in all cases happen to be of the same sentiments.” It is certainly easier to answer his question, than assent to the truth of his remark. Originally, it would seem, refreshments were not allowed even by consent of the prisoner ; and it was left to modern times, as is justly remarked by Mr. Justice Duncan, in the Commonwealth v. Cook, to allow them, at first by consent, and afterwards by the inherent power of the court; so that the use of hunger as an instrument of compulsion, like many other matters, such as fining jurors for obstinately holding out, seems to have passed away with the darkness in which it was engendered. The ancient form of the tipstaff’s oath indeed remains; but with the implied qualification of being controuled by the directions of the court, it affords an admirable security against abuses that W'ould infallibly rush in were jurors allowed an unlimited licence to receive refreshments at their pleasure, or through any other channel than the order of the court. Through that channel, a reasonable supply at the public charge, and in quantity so restricted as to guard against excess, is a matter not of indulgence, but of right, appertaining to the jurors, not as a body, but as individuals, and without being subject to the controul of the majority. What was said by Chief Justice Tilghman, in the passage just quoted, was doubtless drawn from recollection, and used in illustration of the matter more immediately before the court. The application of torture, in order to force the conscience, was abhorrent to every feeling of his nature; and had the attention of that humane and excellent judge been drawn directly to the subject by the occasion, there is little hazard in affirming that the result would have been the adoption of a sentiment in accordance with that which is now expressed. If then, the indisposition of the jurors was induced, without the prisoner’s assent, and might have been removed, what was the course dictated by analogy from parallel cases 1 Undoubtedly to recruit their forces by food and refreshment. If a juror be taken ill, says Mr. 1 Chitty, Cr. Law, 529, another juror may be permitted to attend him: and if it appear that there is a probability of a speedy recovery, he may be allowed proper refreshment. It is only in the absence of a probable ability to return to his duties, that a new panel may be ordered. There cannot be a doubt that the indisposition of the two jurors here, would have been speedily removed by appropriate nourishment; and their temporary exhaustion therefore was not an available ground to divest the interest which the prisoner had in the verdict. Her plea of auter fois acquit, has not been mentioned by the production of a sufficient record ; but her other special plea is available in law, and we are of opinion that the demurrer be overruled; She is therefore discharged. The prisoner discharged.

OPINION CAPPY, Justice. We granted allocatur to review the Commonwealth Court’s decision that vacated a labor arbitration award in favor of a retired public school teacher. For the reasons discussed below, we find that the arbitrator’s award satisfies this court’s circumscribed standard of review, the “essence test.” Therefore, we reverse the decision of the Commonwealth Court and reinstate the arbitrator’s award. On May 13, 1992, Judith Walter, a teacher who served the Danville Area School District (“School District”) for twenty-four years, notified the School District of her plan to retire, effective at the termination of the 1991-92 school year. Mrs. Walter’s decision to retire was evidently motivated by the General Assembly’s 1992 retirement incentive legislation which amended section 8302 of the Public School Employees’ Retirement Code (“Retirement Code”). 24 P.S. § 8302(b.2). This piece of legislation was colloquially termed the “Mellow Bill.” Specifically, the Mellow Bill was to inspire employees to retire by bestowing upon them an extra ten per cent of their credited service. Upon her retirement in June 1992, Mrs. Walter discovered that the Mellow Bill’s reach only encompassed those employees who retired after July 1, 1992. Thus, it became apparent that Mrs. Walter was ineligible for the extra service time legislatively credited by the Mellow Bill. Although not qualified to receive the enhanced service time pursuant to the Mellow Bill, Mrs. Walter did apply for, and received from the School District, available retirement benefits based on her years of service pursuant to a collective bargaining agreement between the School District and Appellant Danville Area Education Association (“Education Association”). While entitled to some benefits under the collective bargaining agreement, Mrs. Walter was not deemed to be eligible for the additional retirement benefits available pursuant to Article XVIII, Section 18.01 of the agreement. This section provided those retirees with at least thirty “years of service in public education” with additional benefits which consisted of a lump sum payment and payment for continuation of hospitalization and medical services for an extended period of time. As Mrs. Walter’s years of service were tabulated to be only 28.9 years of service, she could not enjoy the enhanced benefits offered in section 18.01. Thereafter, on July 8, 1994, the Public School Employees’ Retirement System (“PSERS”) informed Mrs. Walter of subsequent legislation known as “Son of Mellow,” which amended the Mellow legislation and retroactively extended the retirement incentives contained in the Mellow Bill to former employees who had retired between May 15, 1992 and July 1, 1992. Based upon this act of the legislature, at least pursuant to the Retirement Code, Mrs. Walter was credited with over 30 years of service by PSERS, retroactive to her time of retirement. Based upon this new information, Mrs. Walter contacted the Superintendent of the School District and requested an adjustment to her retirement benefits under the collective bargaining agreement. According to Mrs. Walter, the School District had used the PSERS’ calculation of “years of service” rather than actual service time to compute eligibility for retirement benefits under section 18.01 of the agreement. Therefore, she was entitled to the section 18.01 benefits. This request was denied. As a result, Mrs. Walter filed a grievance under the collective bargaining agreement regarding her entitlement to the enhanced retirement benefits. Pursuant to the collective bargaining agreement, the grievance was resolved through a three-step process that culminated in final and binding arbitration. Ultimately, a hearing was held before Arbitrator Scott E. Buchheit. At the center of the dispute between the parties was the meaning of the phrase “years of service in public education” found in Article XVIII, Section 18.01. The School District argued, inter alia, that this phrase meant actual years of service, i.e., time actually worked. Since Mrs. Walter had not actually worked thirty years for the School District, she was not entitled to the additional retirement benefits found in section 18.01. Conversely, the Education Association, on behalf of Mrs. Walter, contended that the phrase “years of service” has included time beyond that actually spent in teaching and has included military service and maternity leave. Moreover, section 18.01 had always been interpreted to mean that the years of service would be the same as those years credited to an individual by the PSERS and that other teachers had received the retirement benefits under section 18.01 when the PSERS credited the individual with additional years of service. Arbitrator Buchheit, after considering the differing interpretations, found the phrase to be ambiguous and looked to the past practice of the parties to discern their intent as to the meaning of the provision. After finding that two other teachers had been credited for years of work outside of actual teaching time,, including one teacher who had service time credited under the original Mellow legislation, Arbitrator Buchheit concluded that Mrs. Walter should be entitled to additional retirement benefits offered under Article XVIII of the collective bargaining, agreement. The School District appealed to the Court of Common Pleas of Montour County. The trial court upheld the arbitrator’s award. The School District then appealed this decision to the Commonwealth Court. A three-member panel of the Commonwealth Court, with one member noting his dissent, reversed the order of the Court of Common Pleas and vacated the arbitrator’s award. The primary reason for reversing the arbitrator’s award was the Commonwealth Court’s determination that use of the Son of Mellow amendments to calculate entitlement to the retirement benefits provided for in section 18.01 of the collective bargaining agreement violated the Pennsylvania Constitution’s, and the United States Constitution’s, prohibition against the impairment of contracts through retroactive legislation. According to the Commonwealth Court, the award constituted an unconstitutional impairment of contract because laws that are in effect at the time the parties entered into the contractual relationship are merged with the rights and obligations of the parties as set forth in the agreement and cannot legally impair the contract. The Commonwealth Court also suggested that because the collective bargaining agreement did not expressly incorporate the Retirement Code into the collective bargaining agreement, the parties could not have intended to be bound by subsequent changes implemented by the PSERS pursuant to the Mellow amendments. The court deemed the arbitrator’s reference to the Retirement Code to be a unilateral modification of the collective bargaining agreement. Thus, the Commonwealth Court reversed the order of the trial court and vacated the arbitrator’s award. We granted the Education Association’s petition for allowance of appeal. The proper role of an appellate court in reviewing an arbitrator’s interpretation of the terms of a collective bargaining agreement is one of deference. In Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977), we first adopted the “essence test” as the appropriate standard of review of labor arbitration awards under the Pennsylvania Public Employee Relations Act (Act 195). 43 P.S. § 1101.101 et seq. Although the lower tribunals did not have the benefit of our recent decision in State System of Higher Education v. State College University Professional Association (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999), in that case we reaffirmed the essence test as the appropriate standard of review and clarified its requirements. Under this standard, an appellate court will first determine if the issue, as properly defined, is encompassed within the terms of the collective bargaining agreement. If so, the court will uphold the arbitrator’s award if the arbitrator’s interpretation may be rationally derived from the collective bargaining agreement. We made clear that the court does not inquire into whether the arbitrator’s decision is reasonable or even manifestly unreasonable; rather, the question is whether the award may in any way be rationally derived from the agreement between the parties. State System of Higher Education, 743 A.2d at 413. The rationale behind this limited review is that final and binding arbitration is a highly favored form of dispute resolution and extremely important in the context of labor relations. Unlike more traditional judicial resolution of disputes, arbitration offers speed, low expense, and informality. Moreover, it has been pointed to as a prime factor in assuaging industrial strife. Id. These benefits would be eroded if courts were to assume a greater role in reviewing labor arbitration awards. Thus, it is through this circumscribed standard that we must view the Commonwealth Court’s opinion and the arbitrator’s award. However, before we address the Commonwealth Court’s constitutional analysis, we must consider a threshold issue. The Education Association argues that the Commonwealth Court improperly raised the issue of an unconstitutional impairment of contract sua sponte. We agree. Our court has made clear that an appellate court will not reverse a judgment on a basis that was not raised and preserved by the parties. Department of Transportation v. Boros, 533 Pa. 214, 620 A.2d 1139, 1142-43 (1993); Kimmel v. Somerset County Commissioners, 460 Pa. 381, 333 A.2d 777, 779 (1975); Francis v. Neville Township, 372 Pa. 77, 92 A.2d 892, 894 (1952); Fisher v. Brick, 358 Pa. 260, 56 A.2d 213, 215 (1948). As most clearly and unambiguously stated by Madame Justice Newman writing for the court, “We have held on numerous occasions that where the parties fail to preserve an issue for appeal, the Superior Court may not address the issue, even if the disposition of the trial court was fundamemtally wrong.” Knarr v. Erie Insurance Exchange, 555 Pa. 211, 723 A.2d 664, 666 (1999). The Commonwealth Court itself has previously applied this-principle in the labor arbitration setting. West Shore Education Assoc. v. West Shore School District, 72 Pa.Cmwlth. 374, 456 A.2d 715 (1983)(failure of school district to raise arbitrability before the arbitrator constitutes waiver of the issue). This jurisprudential tenet that a court will consider only the controversies preserved by the litigants even applies to allegations of constitutional error. Our decision in Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) is directly on point. In a unanimous decision, our court held that the Superior Court, by sua sponte deciding the constitutionality of the Divorce Law, when the constitutionality of the provisions in question was never questioned by the parties either in the trial court or in their briefs to the Superior Court, exceeded its proper appellate function of deciding controversies presented to it. The policy reasons expressed by our court twenty-five years ago behind prohibiting the sua sponte raising of issues by an appellate court to reverse a judgment are as valid today as then. Sua sponte consideration of issues disturbs the process of orderly judicial decision making. A reviewing court addressing an issue on its own deprives counsel of the opportunity to brief and argue the issues and the court the benefit of counsel’s advocacy. Id. It renders the lower proceedings a mere dress rehearsal for further appellate review. Here, the School District failed to raise the issue of the constitutionality of the application of the Retirement Code in calculating retirement benefits under the collective bargaining agreement in the proceedings before the arbitrator. The issue was not raised before the Court of Common Pleas on appeal. Moreover, the School District’s brief submitted to the Commonwealth Court is devoid of any discussion of the constitutionality of the award. In sum, because this issue was never presented to any lower tribunal for consideration, the Commonwealth Court did not have the power to raise the constitutionality of the award. Therefore, regardless of the accuracy of the Commonwealth Court’s legal analysis with respect to the constitutional principle of impairment of con tract, we are compelled to reject this basis utilized by the Commonwealth Court to vacate the arbitrator’s award. While we will not consider the constitutionality of the arbitrator’s award, the Commonwealth Court also determined that the arbitrator’s award was violative of the essence test because the Retirement Code was not expressly incorporated into the collective bargaining agreement. According to the Commonwealth Court, to look to the Retirement Code in resolving the dispute would be to improperly unilaterally alter the agreement of the parties. Although not addressed by the Commonwealth Court, as noted above, the arbitrator in this case found the terms of the contract to be ambiguous. Although the Retirement Code was not expressly incorporated into the agreement, the arbitrator looked to the conduct of the parties, i.e., past practice, to aid in discerning the intent of the parties as to the meaning of the contract provision. We believe that the Commonwealth Court erred in its analysis. Our first inquiry under the essence test is whether the issue of Mrs. Walter’s entitlement to retirement benefits is within the terms of the collective bargaining agreement. Clearly Article XVIII encompasses the issue of entitlement to retirement benefits. The issue then becomes whether the arbitrator’s interpretation can in any rational way be derived from the agreement. As to this question, when discerning the intent of the parties, the arbitrator is not confined to the express terms of the collective bargaining agreement. Our court has stated that an arbitrator’s award may draw its essence from the collective bargaining agreement if the arbitrator’s “interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention.” State System of Higher Education, 743 A.2d at 411, citing, Community College of Beaver County, 375 A.2d at 1275 (citations omitted). Thus, where there is ambiguity, an arbitrator may attempt to discern the intent of the parties, and thus, resolve a dispute over contract interpretation, by considering the actions of the parties as evidence of their interpretation of the terms of a collective bargaining agreement. In the case sub judice, the arbitrator was asked to interpret Article XVIII, Section 18.01 of the collective bargaining agreement to determine the proper calculation of Mrs. Walter’s retirement benefits. This section uses “years of service in public education” to arrive at a determination of eligibility for enhanced benefits. This phrase was not defined in the agreement and the arbitrator found it to be ambiguous. Thus, he attempted to discern the parties’ intent as to the meaning of this phrase. While the arbitrator recognized that the collective bargaining agreement did not make explicit reference to the Retirement Code, he found that the School District had in fact used the Retirement Code in the past to give meaning to this contractual phrase. Specifically, one teacher in particular, Joanne Aurand, retired in 1993 with 28 years of service. As her retirement fell within the time period of the original Mellow Bill, she received credit for additional years of service which elevated her PSERS credit to over 30 years of service. As a result, the School District granted her 30 years of service in public education pursuant to Article XVIII of the collective bargaining agreement. A similar situation occurred with respect to Donald Straub, a teacher who, because he was credited with two years of military service for purposes of pension under the PSERS, was granted increased Article XVIII retirement benefits under the collective bargaining agreement. It becomes apparent that the arbitrator’s interpretation of the collective bargaining agreement was not a unilateral alteration of the agreement, but an attempt to discover the intention of the parties. This intent was derived from the agreement, viewed in light of the School District’s past practice with respect to other similarly-situated employees. The arbitration award simply required the School District to treat Mrs. Walter the same as other bargaining unit members with regard to calculation of retirement benefits. The School District argues that these past actions were not typical or authorized by the School Board, and thus, they should not have been considered as past practice. These arguments, while forceful before an arbitrator, are largely lost before a reviewing court applying the essence test. The ■ School District fails to recognize that it is not an appropriate role for an appellate court to immerse itself into the fray and ' to reassess the. judgment 'of the arbitrator. True to the deferentiál essence test, we will merely see if the interpretation can in any way be rationally derived from the agreement. That is, we will see if the arbitrator applied the terms of the agreement and discerned the intent of the parties viewed in light of the language, its context and other indicia of the parties’ intent. The arbitrator considered the School District’s argument regarding past practice and rejected it, find-. ing that the School District’s prior actions dictated that Mrs. Walter be treated in the same manner. Moreover, the arbitrator noted that no evidence was offered as to a counter situation in which a teacher was denied Article XVIII benefits because the School District refused to recognize years of service credited to an individual by the PSERS. Finally, the arbitrator found that the Superintendent of the School District, the Board’s primary agent, authorized these increased retirement benefits. This is more than sufficient for our review. Thus, the arbitrator’s award satisfies the essence, test. Contrary to the School District’s suggestion, we do not believe that our decision in Juniatar-Mifflin Counties Area Vocational-Technical School v. Corbin, 547 Pa. 495, 691 A.2d 924 (1997), compels a different result. In that case our court upheld an arbitrator’s award that arose from a grievance that was based upon the job security provisions of the Public School Code. In a savings clause, the collective bargaining agreement made reference to rights under the School Code and Act 195, but it did not expressly reference the School Code’s job security provisions. Our court determined that although the intention of the parties to incorporate the job security provisions was not clearly set forth in the agreement, and the parties had not expressly set forth reference to the job security provisions, the language employed was sufficient for the arbitrator to conclude that these provisions of the School Code were incorporated into the agreement. Based upon Juniata-Mifflin, the School District asserts that the Retirement Code must be expressly incorporated into the agreement to be given effect. Juniata-Mifflin is obviously distinguishable from the case sub judice. First, the grievance in Juniata-Mifflin was based solely upon the job security provisions found in the School Code. Thus, it was absolutely critical for the School Code to be expressly incorporated into the agreement for the grievance to be resolved by the arbitrator. Unlike the grievance in Juniata-Mifflin, in this case, the grievance was premised upon a provision in the collective bargaining agreement, viz., section 18.01. Moreover, it is of no moment that the collective bargaining agreement in this case does not expressly state that the parties intended that the Retirement Code govern calculation of retirement benefits pursuant to section 18.01. This is because the arbitrator found in considering the School District’s past practice that the District had in fact relied upon the Retirement Code to calculate benefits under section 18.01. As noted above, reliance upon past practice in the face of an ambiguous contract provision is not only permissible, but is an important tool through which an arbitrator may discover the intent of the parties. Thus, Juniata-Mifflin does not alter the result reached today. We note that the School District is not without recourse. One reason an appellate court may give such deference to an arbitrator’s award is that if an arbitrator’s interpretation is contrary to one party’s understanding of the agreement, at the expiration of the collective bargaining agreement, the negotiating table will assume center stage and the agreement can be renegotiated to reflect the “true” intention of the party. The give and take of the bargaining process allows quite easily for a reviewing court to undertake a limited review, as an arbitrator’s interpretation of a collective bargaining agreement may easily be erased by a future renegotiated contract between the parties. Therefore, we find that the Commonwealth Court erred in its review of the arbitrator’s award. The award satisfies the essence test. Thus, we reverse the decision of the Commonwealth Court. However, having upheld the substance of the arbitrator’s award, we are left to consider three remaining issues. On appeal to the Commonwealth Court, the School District raised additional reasons why the arbitrator’s award should be vacated. First, the School District argued that Mrs. Walter had no standing on the basis that she was not an employee in the bargaining unit. Second, the School District contended that Mrs. Walter’s grievance was untimely. Finally, the School District submitted that the arbitrator’s award was manifestly unreasonable. As the Commonwealth Court found the arbitrator’s award to be violative of, inter alia, constitutional dictates, it did not address these issues. Rather than remand the case to the Commonwealth Court for further consideration, for purposes of judicial economy, we will address these outstanding issues now. The arbitrator opined that Mrs. Walter did have standing to grieve the determination of her retirement benefits. He indicated that the agreement did not limit the grievance process to “employees” but permitted “persons” to initiate a grievance. Article VIII. Furthermore, the agreement specifically addressed retirement benefits and made reference to “retirees” in Article XVTII(c) of the agreement. Thus, the arbitrator concluded that Mrs. Walter had standing to file a grievance. Applying the essence test, the arbitrator addressed an issue within the terms of the agreement and resolved the issue by applying the terms of the agreement. Clearly, the arbitrator’s determination was rationally derived from the agreement. Furthermore, according to the School District, the grievance was untimely. The arbitrator found that the grievance was not time-barred. Specifically, the arbitrator determined that Mrs. Walter did not receive formal notification from the School Board that the Article XVIII benefits that she sought were being denied until the letter to her dated July 15, 1994. Thereafter, the instant grievance was filed on July 25, 1994. The collective bargaining agreement required at step one that a grievance be filed “within seven (7) working days after its occurrence.” The arbitrator found that because there were four weekend “non-working” days between July 15 and July 25, it was apparent that the grievance was filed within the seven working day requirement. Again, the arbitrator addressed an issue covered by the agreement. He considered terms of the collective bargaining agreement, applied the facts of the case to these terms, and rendered his conclusion. Thus, applying the essence test, we are compelled to uphold the arbitrator’s determination. Finally, the School District contended that the award was “manifestly unreasonable.” As noted above, neither the School District nor the Commonwealth Court had the benefit of our recent decision in State System of Higher Education. In State System of Higher Education, we found that reviewing the reasonableness of an arbitrator’s award encourages a court to intrude into the domain of the arbitrator and to substitute its interpretation of the collective bargaining agreement for that of the arbitrators. Thus, consistent with the essence test and its deferential standard of review, a reviewing court will not consider whether an arbitrator’s award was “manifestly unreasonable.” State System of Higher Education, 743 A.2d at 413; Pennsylvania Game Commission v. Civil Service Commission (Toth), 561 Pa. 19, 747 A.2d 887, 891, n. 7, 2000 Pa. Lexis 738, n. 7 (2000)(essence test does not permit an appellate court to determine whether an award is “manifestly unreasonable”). That being the case, we find that the School District’s assertion is no longer recognized as a valid basis to vacate an arbitrator’s award, and thus, the School District is not entitled to relief on this ground. Having resolved all issues, we reverse the decision of the Commonwealth Court and reinstate the arbitrator’s award. Justice CASTILLE files a concurring opinion. Justice ZAPPALA concurs in the result. . In its brief, the School District, in passing, noted that the parties could not have meant to incorporate future legislative enactments into the collective bargaining agreement. However, this is clearly a contract interpretation argument regarding the intent of the parties and not a constitutional attack on the Education Association’s interpretation of the agreement. . More specifically with regard to past practice, as stated in Frank and Edna Asper Elkouri's seminal work on arbitration. How Arbitration Works, Unquestionably custom and past practice constitute one of the most significant factors in labor-management arbitration. Evidence of custom and past practice may be introduced for any of the following major purposes: (1) to provide the basis for rules governing matters not included in the written contract; (2) to indicate the proper interpretation of ambiguous contract language; or (3) to support allegations that clear language of a written contract has been amended by mutual action or agreement. Elkourki and Elkouri, How Arbitration Works 437 (4th ed.1988).

The opinion of the court was delivered, July 6th 1869, by Williams, J. John Crean, the elder, devised the real estate, the proceeds of which are in controversy, to Isaac Heylin, his heirs and assigns, in trust for the use of his son William, for life, and after his decease, in.trust for his children then living, and the lawful issue of such of them as should then be deceased, their respective heirs and assigns for ever, in equal parts and shares, such issue to take and receive such part and share only, as his, her or their deceased parents would have had and taken if then living, and for want of such children or lawful issue, then in trust for the use of his right' heirs for ever. The testator’s son, William, died unmarried and without issue, and the question is, who are the persons entitled to the remainder as the right heirs of the testator? Are they the persons who were his heirs at his death ? or are they the persons who were his heirs at the death of his son William ? It is conceded that under the first limitation William took only an estate for life: Powell v. Board of Domestic Missions, 13 Wright 46; and that the remainder in fee limited to his children living at his decease, and the lawful issue of his children then deceased, was contingent or ex-ecutory. But whether the remainder limited to the heirs of the testator on the death of William without children, or issue of deceased children then living, is to be regarded as vested or contingent, has been greatly discussed, because of its important, if not decisive, bearing upon the question, whether the heirs at the death of the testator, or the heirs at the death of William, are entitled to the remainder. Perhaps the limitation to the heirs might be regarded as a vested remainder under the decision of this court in Etter’s Estate, 11 Harris 381, and its rulings in Kelso v. Dickey, 7 W. & S. 279; Hopkins v. Jones, 2 Barr 69; Minnig v. Batdorff, 5 Id. 503; Chew’s Appeal, 1 Wright 23; Ross v. Drake, Id. 373; Young v. Stoner, Id. 105. The rule is well settled that a remainder is to be regarded as vested, rather than contingent, if such a construction is possible. If it did not vest absolutely in the heirs at the death of the testator, why may it not be regarded as having vested, quodam modo, subject to be divested by the death of William leaving children living ? The contingency upon which the heirs were to take the remainder was not a contingency annexed to their capacity to take, but an event independent of them, and not affecting their capacity to take and transmit their right to the remainder. Their right to the remainder was only prevented from being an absolute interest by the possibility of a child of William coming into esse, and surviving him. The limitation here is substantially the same as in Etter’s Appeal, which was declared to be a vested remainder. Lowrie, J., says, “ the estate to Henry in terms, was a life estate. If it was only a life estate, then the estate of his unborn children was a contingent remainder, and that of the other devisees (the testator’s surviving heirs) a vested one, subject to be defeated by the death of Henry leaving issue.” If, then, the estate devised to the testator’s right heirs was a vested remainder, the heirs at his death took the estate, and as William, the devisee for life, was one of the testator’s heirs, it would follow that his devisees became entitled to his share on the termination of his life estate. But there are authorities, and among them some decisions of our own, which show that the remainder in this case is to be regarded as contingent’ rather than as vested; and the weight of the authorities seems to be in favor of this doctrine. If the prior fee be contingent a remainder may be created to vest in the event of the first estate never taking effect, though it would not be good as a remainder, if it was to succeed, instead of being collateral to the contingent fee. Thus a limitation to A. for life, remainder to his issue in fee, and in default of such issue, remainder to B., the remainder to B. is good as being collateral to the contingent fee in the issue; it is not a fee mounted upon a fee, but it is a contingent remainder, with a double aspect, or on a double contingency: 4 Kent Com. 200; Loddington v. Kime, 1 Ld. Raym. 203; Fearne on Rem. 373. The same doctrine is laid down by this court in Dunwoodie v. Reed, 3 S. & R. 451, Waddell v. Rattew, 5 Rawle 231, Stump v. Findlay, 2 Id. 168, in reference to similar limitations. If, then, the remainder is to be regarded as contingent, in whom did it vest ? In those who were heirs of the testator at the time of his death, or in those who were heirs at the death of his son William ? The remainder, if contingent, did not vest till William’s death. But it does not follow that it vested in those who were the heirs at his death; if it did, then it was doubly contingent. The event upon which it was to take effect, and the persons to whom the estate w.as limited, were both dubious and uncertain. If there was no uncertainty as to the class, the persons composing this class could only be known and ascertained upon the death of the tenant for life. If the remainder had been expressly limited to the heirs living at the death of the testator, it would have been contingent in view of the doctrine of the cases last cited. And the question recurs, who are the testator’s right heirs ? As a general rule of construction, it is well settled that a devise, or bequest to heirs, or heirs at law of a testator, or to his next of kin, will be construed as referring to those who are such at the time of the testator’s decease, unless a different intent is plainly manifested by the will: Holloway v. Holloway, 5 Vesey 399; Elmsley v. Young, 2 M. & K. 82; Jenkins v. Gowen, 2 Coll. 537; Seifforth v. Budham, 9 Beav. 370; Grundy v. Primager, 1 De Gex, M. & G. 502; Urquhart v. Urquhart, 36 Eng. Ch. 613; Abbott v. Bradstreet, 3 Allen 589. When, however, it clearly appears that the testator intended his heirs or next of kin at the death of the tenant or legatee for life, such intent will prevail: Horn v. Coleman, 19 Eng. Law & Eq. 19; Bender v. Hewlet, 2 Myl. & K. 90; Jones v. Colbeck, 8 Ves. 38; Say v. Creed, 5 Hall 580; Sears v. Russell, 8 Gray 86; Minter v. Wrath, 36 Eng. Ch. (13 Sim.) 52. But where a testator gives property to a tenant for life, and after the death of the tenant for life to his next of kin; and there is nothing in the context to qualify, or in the circumstances of the case to exclude the natural meaning of the testator’s words, the next of kin living at his death will take; and if the tenant for life be such next of kin, either solely or jointly with other persons, he will not he, on that account only, excluded: Say v. Creed, 26 Eng. Ch. 580; Elmsley v. Young, 2 Myl. & K. 82; Jenkins v. Gowen, 2 Coll. 537. Hor will the use of the word then, as introductory to the bequest or devise over after the death of the tenant or legatee for life, prevent the general rule from applying unless it is so used as clearly to indicate that the next of kin, or heirs living at the death of the tenant for life, are intended by the testator: Holloway v. Holloway, supra; Ware v. Rowland, 2 Phillips 639; Wharton v. Barker, 4 K. & John. 483. We see nothing in this will, or in the circumstances of the case, which qualifies the natural meaning of the words, and which clearly shows that the testator intended to limit the estate to those who should he his right heirs at the death of his son William. Certainly the use of the word then, as introductory to the limitation, does not indicate any such intention. The limitation is in these words: “ And for want of such child or children, or lawful issue, then in trust for the use and behoof of my right heirs for ever.” Obviously the word then is not used in this clause as an adverb of time, but as a conjunction, signifying in that case, in that event or contingency. If this be its meaning, there is nothing to prevent the general rule from applying, and the words must he construed as referring to the heirs of the testator at the time of his death. But the appellants rely upon the rule laid down by Redfield, in his Treatise on Wills, p. 393. He says: “ The devise or bequest of property to the testator’s heirs at law means those who were such at the time of his decease, unless a contrary intent is obvious. But where there are intervening estates, and the remainder is contingent, it will be construed as having reference to those who shall sustain the relation of heirs at the time the estate vests in possession.” And in support of this doctrine he cites Rich v. Waters, 22 Pick. 563; Sears v. Russell, 8 Gray 85; Abbott v. Bond, 4 Allen 466; and Abbott v. Bradstreet, 3 Id. 587. Two of these cases, Rich v. Waters and Abbott v. Bond, have no direct bearing on the subject, and the first is virtually overruled in Abbott v. Bradstreet. But the general rule is recognised in Sears v. Russell, and strictly followed in Abbott v. Bradstreet, and neither of them suggests any such modification of the rule as that stated by Mr. Redfield. In the latter case it was decided that a bequest of the remainder, after a life estate to the heirs at law of the testator, will be construed as referring to those who were such at the time of his decease, unless a different intent is plainly manifested; and such intent is not to be inferred from the fact that those to whom the life estate is given are among his heirs at law, or that a bequest is given to another heir at law, “ in full of any share she may be entitled to out of my estate.” This conclusion is reached after an elaborate examination of the authorities, and there is nothing in the facts of the case, or in the opinion of the court, which lends any countenance or sanction to the dictum of the able and learned author. If then, as we have endeavored to show, the general rule of construction must prevail in this ease, it follows that the testator’s heirs at his death, and not his heirs at the death of the tenant for life, are entitled to the remainder. This conclusion, though reached by a different process, is in substantial harmony with the decisions of this court in Etter’s Estate, 11 Harris 381, and Riehle’s Appeal, 4 P. F. Smith 97, in both of which there was a limitation over to the testator’s heirs on the death of the tenant for life without leaving children or issue surviving. In the former, it was held that the remainder vested in the heirs immediately on the death of the testator, and that the tenant for life was excluded by the express words of the will, “my surviving heirs hereinafter named;” in the latter, that the testator’s heirs who were living at his death, including the tenant for life, took the remainder under the limitation as an executory devise. But whether the limitation over to the testator’s heirs, in the event of the death of the tenant for life, without children living, is regarded as an executory devise, or a contingent remainder, will not affect or vary the rule of construction as it respects the heirs entitled to take. The limitation to the heirs must be construed to mean those who are such at the testator’s death, unless a different intent clearly appear. Whether, therefore, the remainder be regarded as contingent or vested, the heirs of the testator who were living at his death are entitled to it under the limitation. The appeal is dismissed, and the decree of the Orphans’ Court is affirmed at the costs of the appellant.

Opinion by Spaulding, J., This is an appeal by appellant, Irene Cooper, from the denial of her motion for a new trial. The action involved a medical malpractice claim wherein appellant sought damages for the perforation of her stomach in the performance of a gastroscopio examination. Appellant sued both her general attending physician and the physician who performed the examination on February 22, 1962. Trial of appellees, Doctors Brooke Roberts and Norman Nathan Cohen before Judge Cav-anaugh and a jury in the Court of Common Pleas of Philadelphia, resulted in a verdict on May 1, 1969 for appellees and against appellant. Appellant filed a motion for a new trial which was denied by three judges of the court below, sitting en banc. This appeal is from denial of that motion. Appellant, a 60 year old schoolteacher, upon advice of a staff physician at the University of Pennsylvania Hospital, Philadelphia, that x-rays indicated a suspicious growth within her hernia, agreed to undergo tests and studies of the condition, despite her knowledge of the existence of a hiatal hernia in her body for approximately twenty years. Upon admission to the hospital, she signed a “blanket consent form”, authorizing such medical procedures as her attending physician found necessary and advisable. She was placed under the care of co-appellee Roberts. Additional x-rays were taken of appellant, and upon the basis of these x-rays, appellees and the hospital radiologist concurred that a gastroscopio examination was warranted to investigate a “filling defect” within appellant’s hernia. Appellee Cohen agreed to perform the examination and proceeded to make the necessary arrangements. Both appellees described the nature of the examination to appellant. However, there is no indication that she was ever informed of any collateral risks, of perforation or otherwise. On one occasion, she was assured that “the examination was a relatively simple diagnostic procedure and that (there) should not be any trouble with it.” Appellant agreed to undergo the examination. The device used for the gastroscopio examination of appellant was a fiberscope, a fiberglass instrument, about yyr in diameter containing some 150,000 glass fibers. The fiberscope could be lowered into the stomach of a patient to photograph that area for purposes of diagnosis and treatment. The device had been in use for approximately five years at the time of appellant’s examination; during that time, there had been no reported punctures, and appellee Cohen had utilized the device in 250 examinations without mishap. The fiberscope was considered an improvement over its forerunner, the semi-rigid scope, in terms of comfort for the patient, visibility of the area under examination, and safety. The incidence of perforation with the semi-rigid scope was approximately 1 in 2500, or .0004%. Within five or six hours after the completion of the examination, appellant began evidencing distress. Upon investigation, it was found that her stomach had been punctured, requiring emergency surgery to seal the perforation. There was no dispute among the parties that the cause of the perforation was in fact the gastroscopio examination. Nor did appellant challenge appellee Cohen’s performance of the examination as less than medically sound and proficient. Rather, appellant’s action was based on assertions that the appellees had failed to apprise her of the collateral risks involved in the examination and the available medical alternatives. Appellant cites four specific points of error: 1. The testimony of Dr. Roberts regarding the incidence of electrocution in the performance of an electrocardiogram was misleading and inaccurate; 2. Slides offered by the defendants to illustrate the character and use of the fiberscope were irrelevant and highly inflammatory; 3. The trial judge erred in his instructions to the jury that they must find for the defendants if they believed that the plaintiff would have consented to the examination notwithstanding advice of collateral risks; and 4. The trial judge erred when he charged the jury that the standard against which the defendants’ conduct must be weighed is that amount of disclosure which would be made by a reasonable practitioner in the medical community. We need deal with only the last of appellant’s contentions. In regard to the physicians’ duty to disclose collateral risks, the trial judge charged the jury in the following manner: "The question is not what, regarding the risk involved, you as a member of the jury would relate to the patient under the same or similar circumstances, or what a reasonable man would relate, such as members of the jury, but what a reasonable medical practitioner would do.” The judge’s formulation reflects the rule followed by most jurisdictions, which require that a plaintiff show by expert testimony that in failing to disclose the risk that caused the injury, the physician failed to conform to that standard of disclosure exercised by a reasonable practitioner within his community. Di Filippo v. Preston, 53 Del. 539, 173 A. 2d 333 (1961); Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093, decision explained 187 Kan. 186, 354 P. 2d 670 (1960); Wilson v. Scott, 412 S.W. 2d 299 (Texas, 1967). Such a formulation fails to produce equitable results and demeans the concept of physical integrity of the individual, to which our Supreme Court’s recent decision in Gray v. Grunnagle, 423 Pa. 144, 223 A. 2d 663 (1966), gave substance. The law in this Commonwealth is that where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, his “informed consent” (as now defined by Gray), is a prerequisite to a surgical operation by his physician. An operation without such informed consent is a technical assault, making the physician liable for any injuries resulting from the invasion, regardless of whether the treatment was negligently administered. Smith v. Yohe, 412 Pa. 94, 194 A. 2d 167 (1963); Moscicki v. Shor, 107 Pa. Superior Ct. 192, 163 A. 341 (1932). In Gray, supra, the Supreme Court said that in order for the patient’s consent to be effective, he must have been advised of the possible consequences and risks inherent in the particular operation (at p. 166). The Third Circuit Court of Appeals in Dunham v. Wright, 423 F. 2d 940 (1970), relying upon Gray, found that a charge which instructed the jury that in order for there to have been an “informed and knowledgeable” consent, the physician should have advised the patient of the consequences of the operation as well as the alternative possibilities accurately reflected Pennsylvania law and was fair to the plaintiff (at p. 946). Gray and Dunham, make it clear that the primary interest of Pennsylvania jurisprudence in regard to informed consent is that of having the patient informed of all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally. Although we have high regard for the professionalism of the medical community, the standard of disclosure exercised therein bears no inherent relationship to the amount of knowledge that any particular patient might require in order to make an informed choice. Although the Court offered no specific guidelines for an alternative standard, we take cognizance of the California Court of Appeals’ opinion in Berkey v. Anderson, 82 Cal. Rptr. 67, 1 Cal. App. 3rd 790 (1970) which unequivocally rejected the “community standard” doctrine in cases of informed consent. The Court stated at p. 78: “We cannot agree that the matter of informed consent must be determined on the basis of medical testimony any more than that expert testimony of the standard practice is determinative in any other case involving a fiduciary relationship. We agree with appellant that a physician’s duty to disclose is not governed by the standard practice in the physician’s community, but is a duty imposed by the law which governs his conduct in the same manner as others in a similar fiduciary relationship. To hold otherwise would permit the medical profession to determine its own responsibilities to the patients in a matter of considerable public interest.” See also Dow v. Kaiser Foundation, 90 Cal. Rptr. 747, 12 Cal. App. 3rd 488 (1970). As the patient must bear the expense, pain and suffering of any injury from medical treatment, his right to know all material facts pertaining to the proposed treatment cannot be dependent upon the self-imposed standards of the medical profession. Of necessity, any physician testifying on the issue of the duty of disclosure would be testifying to either what he would have done under similar circumstances, or what he thinks another practitioner should do under such circumstances, neither of which supplies an adequate definition of the “community standard”. Finally, as a practical matter, we must consider the plaintiff’s difficulty in finding a physician who would breach the “community of silence” by testifying against the interest of one of his professional colleagues. A more equitable formulation would be: whether the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s would deem significant in making a decision to undergo the recommended treatment. This gives maximum effect to the patient’s right to be the arbiter of the medical treatment he will undergo without either requiring the physician to be a mindreader into the patient’s most subjective thoughts or requiring that he disclose every risk lest he be liable for battery. The physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment. This standard creates no unreasonable burden for the physician. We recognize that generally, proof that a physician has breached some duty to his patient requires that the plaintiff present expert testimony of the standard in the medical community. However, there is a basic distinction between the normal malpractice suit, where the gist is whether the physician failed to conform to accepted medical practice, and “informed consent” cases, where the salient question is whether the patient made an effective assent to treatment, and where determining whether there was any dereliction of professional duty on the part of the physician is only one facet in the resolution of the ultimate issue. Our Supreme Court recognized this difference in Gray by treating questions of consent to medical treatment as an area basically governed by contractual concepts. The Court there cited with approval the following from PowelFs “Consent to Operative Procedures”, 21 Md. L. Rev. 189, 191 (1961) : “In order to understand the nature of consent it is necessary at the outset to have some understanding of the legal relationship between the physician and his patient. This relationship is essentially contractual in nature .... In short, the surgeon must operate in accordance with the agreement, made between the parties. Consent for the operation or treatment arises from the contract and is given only in connection with what the parties understood was to be done.” There is no need to extend the requirement of expert testimony into areas where no technical expertise is necessary. Determination of what a reasonable man would do or consider significant within the context of a particular set of facts is standard fare for jurors, for which, they need no expert assistance. Reardon v. Meehan, 424 Pa. 460, 227 A. 2d 667 (1967); Steele v. Shepperd, 411 Pa. 481, 192 A. 2d 397 (1963). After lengthy consideration of this issue, we find this determination to be the most equitable balance between the patient’s right to control what happens to his body, and the interest of fostering the practice of responsive, progressive medicine. The order of the court below is reversed, and a new trial is granted. Jacobs, J., dissents. The consent form signed by appellant on February 19, 1962, read as follows: “Hospital of The University of Pennsylvania “I hereby grant permission for such operative or non-operative procedures as may be deemed necessary or advisable for diagnosis and treatment by the physicians in charge of:” (Appellant’s name inserted). There was some dispute as to whether the gastroscopio examination qualified as a surgical operation. Appellant was anesthetized and transported to a special area for the examination, occurrences which seem to closely relate the examination to the normal surgical procedure. However, if there is any distinction between the two types of procedures, such a distinction is immaterial for purposes of this issue. The same duty of disclosure obtains whether or not the treatment can be technically termed operative. In its analysis of the holding and implications of Gray, supra, the Third Circuit in Dunham, supra, stated: “Some jurisdictions considering the duty of a physician to disclose to a patient the hazards of surgery have given the physician broad discretion by saying that a physician does not have to alarm a patient by explaining all such possibilities. Grunnagle (Gray v. Grunnagle), however, makes it clear that in Pennsylvania a consent is ‘informed’ only if the patient knows what is apt to happen to him and the possible adverse results and dangers of the operation. The logical inference from this formulation may be that it is not the prerogative of the physician to keep secret and screen out any of the possible complications of surgery.”

Opinion, Mb. Justice Mitchell : This is a perfectly clear case of contributory negligence, un relieved by any circumstance which the jury should have been allowed to consider as an excuse for a violation of the plainest dictates of prudence, and the settled rules of law. The deceased, at 9 o’clock on a rather dark night in January, was walking along Penn avenue, in the borough of Wilkinsburgh, and came to the railroad, which at that point had then ten or eleven tracks at grade, occupying a space of about one hundred fifty feet. It was intrinsically a dangerous place, and at the particular time was made more than usually so by standing cars and piles of pipe and railroad ties which obstructed the view on one side, and on the other side a train on one of the tracks, with an engine blowing off steam. In the face of these manifest dangers, the deceased and his companion walked straight on, without stopping, until they had crossed six or seven tracks, when they saw an approaching train. At this moment they were either on a spur track that ends a few feet beyond the crossing, or between it and the first passenger track, on which the train was coming. Counting the spur tracks as safe, they had a space of forty-five feet of actual safety in which to wait the passage of the train; but as there is no evidence that they knew that the so-called spur tracks were not ordinary tracks, liable to be used at any time, it is hardly proper to charge them with the knowledge. But from the nearest spur track which they were on, or had just crossed, to the passenger track on which the train was, there was a clear space of twelve feet, in which deceased might have waited in safety, and in which, fortunately for himself, his companion did wait. From this point I take the narrative in the language of Irwin, the deceased’s companion: “When we come to the track, we noticed a train coming. Q. That is, to the main track? A. Yes, sir; and it was pretty close before we seen it; and Mr. Aiken attempted to go on,.and I stopped. I said: ‘We had better stop;’ and he says, ‘Come on; we can get across; ’ and he started, and I stopped. I had attempted to get across, and by the time I was at the track I could lay my hand on the engine.” None of these facts were in the slightest doubt, for the evidence was in behalf of the plaintiff, and was that of the only witness who saw the accident. It is therefore indisputable that the deceased saw the train while he Avas in á place of safety, and voluntarily took the chances of crossing in front of it. In the face of this patent fact, the other circumstances — the danger of the place, the rate of speed of the train, the absence of warning, the obstructions to sight and hearing, etc. — became totally unimportant, and the plaintiff should have been nonsuited, or a verdict directed against her. The learned counsel for the defendant in error has endeavored to assimilate this case to Penna. R. Co. v. Werner, 89 Pa. 59; but there is a marked and insuperable line of distinction between them. That was said by our Brother Sterrett, in his opinion, to be a close case; but, in laying down the rule that a man in a position of danger is not responsible for a mistake of judgment in getting out, he was careful to add the explicit qualification that he must have got into the danger without negligence or fault of his own. Keeping this qualification in mind, that case was the logical sequence of Johnson v. Railroad Co., 70 Pa. 357. But in the present case the essential premise is wanting. Aiken not only walked into the dangerous position without any of the precautions which the situation required, but, when confronted with the actual emergency, had his attention called by his companion to the danger imminent, and his reply, “ Come on; we can get across,” — does not indicate a man who was confused, and in doubt what to do, but one who saw the risk, and chose to encounter it. In the portion of the charge contained in the fifth specification of error, the learned judge said to the jury that, “ ordinarily, the rule of law is ... . that a man before crossing a railroad track must stop, look, and listen.....I think that it is usually applied, however, to parties who are driving, and not to parties walking. It is, after all, not a rule of law, but a rule of evidence only; and therefore the duty of stopping is always a question for the jury.” This was clear error. The rule as to stopping applies equally to persons walking as to persons driving. There is no distinction, in the nature of things, except of degree as to danger, and none is recognized in the cases: Nagle v. Railroad Co., 88 Pa. 35; Carroll v. Railroad Co., 12 W. N. 348; Penna. R. Co. v. Coon, 111 Pa. 430; Marland v. Railroad Co., 123 Pa. 487. It is made quite as much for the safety and protection of passengers on the train as of passengers on the highway; and the stopping is an essential part of the rule, to enforce attention to the accompanying duties of looking and listening, and to secure their performance in something more than a perfunctory and heedless way; in fact, to prevent the very thing which cost this unfortunate man his life. Irwin was asked: “ Could you hear the train until you got past these obstructions? A. Possibly we might have, if we had been paying particular attention. We were talking, and I didn’t notice.” It is not a rule of evidence, but a rule of law, peremptory, absolute and unbending; and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinctions and exceptions. That failure to stop is not merely evidence of negligence, but negligence per se, has been said so often, from North Penna. R. Co. v. Heileman, 49 Pa. 60, to Greenwood v. Railroad Co., 124 Pa. 572, that to cite the cases would be wearisome. The evidence in the sixth assignment, relative to the speed at which trains usually ran over this crossing, was irrelevant, and tended to divert the attention of the jury from the particular case to the general condition of danger at this crossing. This objection was not obviated by the testimony of Irwin that he thought the train was going “ about the usual rate of speed.” The assignments of error must be sustained. Judgment reversed.

The opinion was delivered, Per Curiam. The offers of testimony by the defendants below to prove that that part of Washington street where the plaintiff was injured by the falling of the pole was not generally travelled, and that the spot on which he was at the time of the injury was a part of the street upon which, the Philadelphia and Germantown Railroad Company had located their road and switches, and that the plaintiff was engaged at the time in labor connected with the railroad, was properly rejected. It was not pretended that the street had not been opened and graded by the town authorities and under their jurisdiction; and because a portion of it had been awarded as an'easement to the railroad, the.authorities themselves were not relieved from the duty of seeing that man-traps or dangerous erections were not kept upon it, and they were bound to remove them. The doctrine applicable to this part of the case may be found fully discussed in Erie City v. Schwingle, 10 Harris 384. The general charge of the learned judge was so lucid in its presentation of the law and facts to the jury in the case, that it needs no discussion, nor do the answers to the points objected to; the charge vindicates them all, and we affirm this case upon the charge; with a single qualification of a matter introduced by way of illustration, viz.: that the carriage of a visitor to the house of a friend left standing on the street is a nuisance. It may .become, but is not a nuisance per se, and this we presume is what the learned judge meant, but his language might be misconstrued. Judgment affirmed.

Opinion by Mb. Justice Benjamin R. Jones, This appeal requires the construction and interpretation of a release given by an injured person in relinquishment of his claims for personal injury damages. Fred L. Hasselrode (Hasselrode), on August 24, 1956, was a passenger in an automobile driven by Frank R. Carnegie (Carnegie) when it collided with a truck owned by William D. Gnagey trading as Gnagey Dairy Company (Dairy Company) and, as a result of this accident, Hasselrode sustained personal injuries. On December 19, 1956, Carnegie paid Hasselrode $1,518.87 and Carnegie received from Hasselrode a release reciting, inter alia, that he “. . . remised, released, and forever discharged, and by these presents do for myself, my heirs, executors and administrators and assigns, remise, release and forever discharge the said Frank R. Carnegie, his successors and assigns, and/or his, her, their and each of their associates, heirs, executors and administrators, and any and all other persons, associa tions and corporations, whether herein named or referred to or not, of and from any and every claim, demand, right, or canse of action, of whatsoever kind or nature, either in law or in equity, arising from or by reason of any bodily and/or personal injuries known or unknown sustained by me, and/or damage to property, or otherwise, as the result of a certain accident which happened on or about the 2áth day of August, 1956, for which I have claimed the said Frank R. Carnegie to be legally liable, but this release shall not be construed as an admission of such liability.” On August 1, 1958, Hasselrode instituted a trespass action in the Court of Common Pleas of Somerset County against the Dairy Company for damages arising out of the accident. The Dairy Company joined Carnegie as an additional defendant and Carnegie, by way of answer, averred that, he was discharged of any liability by reason of the release given him by Hasselrode. The Dairy Company answered the new matter pleaded by Carnegie and then amended its own answer to plead the release given by Hasselrode to Carnegie as a defense to Hasselrode’s action against the Dairy Company. Hasselrode filed a reply averring that the release given to Carnegie was not intended to, nor did it, release the Dairy Company. The court below entered a judgment on the pleadings against Hasselrode and in favor of both the Dairy Company and Carnegie; from this judgment, Hasselrode now appeals. Did the release given by Hasselrode to Carnegie effect a discharge of Hasselrode’s claim against the Dairy Company? The Uniform Contribution Among Tortfeasors Act provides, inter alia-: “A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but reduces tbe claim. against tbe other tortfeasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid”. (Emphasis supplied) Did the instant .release “so provide” a discharge of the Dairy Company by Hasselrode.? An examination of this release indicates its breadth and comprehension. By its terms, Hasselrode released not only Carnegie, but. “any and.all” other persons, associations and corporations regardless of whether they are named or referred to in the release. Not only are the persons released all inclusive but such persons are released of “any and, every” claim or cause of action, arising out of the accident of .August 24, 1956. The intent of the parties must be gleaned from the language of the release; such language clearly and unequivocally shows the intent of the parties that Hasselrode was releasing his claims not only against .Carnegie but against “any and all” persons, including the Dairy Company, involved in the accident of August 24, 1956.. In Hilbert v. Roth, 395 Pa. 270, 275, 149 A. 2d 648, Mr. Justice McBride, speaking for this Court, stated: “Hence we believe that in §4, the legislature quite reasonably enacted that such a release is not a discharge of other tortfeasors. unless it specifically so states.” The instant release measures up to the standard suggested in Hilbert. While the Dairy Company’s name is not specifically set forth in this release, the release does provide that all persons whether specifically “named or referred to” therein are released from liability. The release could not and need not have been more specific and it was, therefore, not necessary to designate the Dairy Company therein. . • ■ Our examination of this release indicates that it meets the standard required by the Uniform Contribu-, tion Among Tortfeasors Act, supra, and that it effectu ated a release not only of Carnegie but also of the Dairy Company. No other result can logically be arrived at without torturing, misconstruing and, in effect, rewriting the language of the release given by Hasselrode to Carnegie. Judgment affirmed. Mr. Justice Eagen dissents. Act of July 19, 1951, P. L. 1130, §4, 12 PS §2085.

Tilghman C. J. The first question in this case is, what, estate passed to William Willisj by the will of his father Henry WillisP The testator having declared his intention to dispose of the whole of his estate in the beginning of his will, devised to his son William in the words following. (Here the Chief Justice read the devise to William.) After this, follow several devises and bequests, among which is one by which part of the personal estate is given to the said William. A legacy of 40/. is then given to the testator’s daughter Mary, to be paid by the said William by instalments. The remainder of the land .is then given to his son Richard in the follo wing terms. (The Chief Justice then read the devise to Richard.) If the devise to William is abstracted from the rest of the will, it must be considered as an estate-tail by direct and necessary implication. There are no words of limitation annexed to the gift to him, nor is it expressed to be for his life, nor is there any express devise to his issue; but the estate is not to go over to Richard, unless William should die without issue. Here is a plain intent to provide for the issue, which can no otherwise be effected than by vesting an estate-tail in their father. But there is not the least intimation of an intent to give a fee-simple. Failing issue of William, the land is to go to Richard. It is contended however on the part of the defendants, that by considering this devise to William in connexion with other parts of the will, it will appear that a fee- " simple was intended for him, with an executory devis'é to Richard, to take effect on the contingency of William’s dying without issue, in the life of Richard. The parts relied on, to shew this intent to give a fee-simple, are the introductory words of the will, expressing a design to dispose of the whole estate, and the legacy of 40/. to be paid by William. These introductory words have been more or less regarded by different judges. I will not say, that they are not to carry some weight in doubtful cases; but I am not disposed to allow them much consequence, where it is pretty clear from the other parts of the will, that an estate less than a fee-simple is intended; because, I believe, that in most cases the testator has a general intent to dispose of his whole estate, whether he says so in the beginning of his will or not. If however this intent of disposing of the whole estate is to have any effect, it will be best applied to the devise over to Richard, in case of William’s death without issue; for in such case, it is to be supposed that the tfestator intended to give a fee. This supposition is strengthened by adverting to the devise of the remainder of his plantation to Richard, and if he should chance to die without issue, then to fall into the possession of William, by them freely to be possessed and enjoyed. These expressions, “ freely to be possessed and “ enjoyed,” shew a strong intent to give a fee, and have been adjudged sufficient to convey it. It may be concluded then, that in the devise over, in both instances, the testator meant to give a fee. As to the payment of 40/., if it had been annexed to the devise to William, and if there had been no expression in the devise to William, shewing an intent to give an estate-tail, then indeed, under the authority of adjudged cases which have been cited, and from the reason of the thing, independent of authorities, William would bv virtue of that payment have taken an estate in fee-simple; because it is presumed, that by every devise it is intended to confer a benefit on the devisee; and it might happen that the payment of a sum of money might be an injury instead of a benefit, if the devisee took an estate less than a fee. But although this argument is satisfactory, where a devise is made in general terms without expressing any estate, yet it has no weight in cases where the estate of the devisee is plainly indicated; because the devisee has no right to claim a greater estate than the testator intended for him, and if he dislikes the conditions, he may refuse the devise. Besides, the payment of 40/. is not annexed to the devise of land to William; but between the devise of the land and the direction to pay the money, a bequest of personal property to William intervenes, ■so that we cannot say that the testator ordered William to pay the money in consideration of the devise of the land. Much stress was laid by the defendants’ counsel on these expressions — “ the above lands must fall into the possession “ of his brother Richard.” From hence they inferred, that the estate given to Richard was to take effect on a contingency to happen during his life, and not after an indefinite failure of issue of William. Without deciding on the accuracy of this construction, it is sufficient to remark, that supposing it to be just, it by no means follows that William was to take an estate in fee. It is quite consistent that William should take in tail, with a contingent remainder to Richard, to take effect on William’s dying without issue in the life of Richard. Considering this will in all its parts, I am of opinion that William took an estaté-taií in the land devise'd to him. 2. The next question is, has this estate-tail been barred? The defendants say it has, although no common recovery was suffered; because Henry Willis,■ whose will is dated in the year 1764, was not seized of a legal estate, but only an equitable one, the legal estate not having been at that time granted by the proprietaries of Pennsylvania. Cases were cited to prove that the statute de donis does not extend to equitable estates; and that in such cases the issue are barred by the deed of their ancestor without common recovery. I think it unnecessary to consider those cases, because in this state a warrant and survey, attended with the payment of the purchase-money, (which was the case here) is to be considered in the same light as the legal estate in England. We have no Court of Chancery to compel a specific performance of contracts, so that we have been in the habit oí considering that as done, which Chancery would compel to be done. It has always been supposed that estates of this kind are not to be distinguished as to the mode of conveying them, from estates strictly legal. This was the opinion of the learned and respectable judge, before whom this cause was tried in the Circuit Court, and I fully agree with him. 3. I will now consider the third point in this cause. It was strongly urged in the Circuit Court, that supposing the estate-tail not to have been barred, the plaintiff ought not to recover, because he had assented to the sale made by his father, and had given no notice of his title to the defendants, who are purchasers for a valuable consideration without notice. On the other hand, it was contended on the part of the plaintiff, that the defendants could not be considered as purchasers without notice, because they claim under a deed, which recites the patent to William Willis, and the patent refers to the will of old Henry Willis, by which the estate-tail is created. The learned judge who tried the cause was of opinion, that the purchasers were not bound to look further back than the patent, and no doubt this opinion must have had great weight with the jury. This is a principle of very great importance, considering the vast mass of property which is held without patent in this commonwealth. It may have very extensive and alarming consequences, if every purchaser from a patentee is to be considered as having no notice, and not bound to take notice of any thing prior to the patent. In cases like the present, where the prior title is referred to in the patent, there is no reason why the purchaser should not take notice of it. The will of Henry Willis was recorded,, and it was the fault of the purchasers not to examine it. Why should the son of William Willis be barred of his estate, because the purchasers under his father neglected to look into a will to which their title deeds referred them? The cases cited for the plaintiff prove, and indeed the defendants’ counsel do not deny, that by the principles of the common law, the purchaser in such cases is bound to take notice; but they say that those principles ought not to be extended here, because in this country the business of conveyancing is transacted by ignorant people. I cannot give my assent to this argument. If admitted in this case, it will be urged in every other, till at length all principles will be prostrated under the plea of ignorance. It appears to me, that on this point the jury were misdirected in point of law. * 4. The last question is, whether under these circumstances a new trial should be granted? Against a new trial it is urged, that this is a hard case, in which there have been two verdicts for the defendants. I perceive that it is a hard case, and I am extremely sorry for it. It is always hard on a man, who has the misfortune to purchase a bad title. But I must not suffer my feelings for the defendants to carry me so far as to do injustice to the plaintiff. If the cause had gone to the jury, in the manner which I conceive it ought by law to have been submitted to them, I should have been against a new trial. It must be a very extraordinary case indeed, in which I could be induced to give my opinion for a new trial, after two verdicts on matters of fact. But that is not the present case. I can have no assurance that the jury would have found the same verdict, under a different direction as to the point of law which has been mentioned. I must therefore, with reluctance, give my opinion, that this court cannot without injustice refuse the plaintiff a new trial. Yeates J. concurred with the chief justice upon all the points. Brackeniudge J. was of the same opinion. New trial granted.

Opinion by Mr. Justice Musmanno, On March 3, 1966, the Humble Oil & Refining Company applied to the building inspector of East Lansdowne for a building permit to erect a gasoline service station. The request was denied and the Humble Company appealed to the zoning board of adjustment, seeking a special exception, pursuant to the terms of §5 (Business District A) of the zoning ordinance of the borough. A hearing on the appeal took place on May 24, 1966. A further hearing scheduled for May 31st was cancelled by the borough. On the latter date, the board held a meeting, at the termination of which, it instructed the secretary of the board to notify the borough solicitor to prepare an opinion and order denying the application. The opinion and order were eventually prepared and they were signed by the board on August 8, 1966. A copy was sent to the Humble Company on August 11th. This was the first notice the Company received that any definitive decision had been made by the board. The Borough Code provides, inter alia: “If the board of adjustment does not make a decision within forty-five days after the hearing or continued hearing, it shall be deemed that such board has decided in favor of the person or the officer of the borough aggrieved or affected who is seeking relief,” ' This 45-day period expired on July 16 if the calculation is made from May 31. It expired a week earlier if the calculation is made from May 24. On August 10 the Humble Company filed a complaint in mandamus to compel the borough to issue the building permit. After hearing, the court entered such an order, and the defendant borough has appealed. The appellant contends that the action taken by the board on May 31st constituted a “decision” in contemplation of The Borough Code and that, therefore, the compulsory granting of an order was improvident. The appellee contends, on the contrary, that there could not have been a “decision”, as intended by the Act, until an opinion was filed and the applicant received notice thereof. There is little logic in the position urged by the defendant borough. The Act permits any person aggrieved by the board’s decision to appeal within 30 days after the decision. In appealing to the court of common pleas, the aggrieved person must set forth “that such decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and specifying the grounds upon which he relies.” How could anyone appeal from what was done on May 31st when that action did not embrace an opinion specifying the grounds on which the application had been refused or granted? It is thus apparent that the “decision” referred to in the Act must carry with it an opinion, memorandum or explanation of some kind, in order to allow the aggrieved party to specify “the grounds upon which he relies.” The Code also requires that “notice of such decision shall forthwith be given to all parties in interest.” The board admits that it gave no notice, but seeks to explain this omission by stating: “Since the decision was reached publicly, and entered on the Board’s records, there was nothing secret or underhanded about it. The Board was charged with the responsibility to give notice. Undoubtedly it relied on either the Secretary or the Solicitor to do this for it. To the extent to which appellee was in need of relief for this oversight, it would have had the full cooperation of the Board and if further relief were necessary, appellee had only to apply to the Courts to obtain equity.” This explanation does not suffice. How was the Humble Company to ask for notice of an action of which it knew nothing? Was it to appeal to the court of common pleas demanding that the board give it no tice of its decision? This would in itself indicate that the Humble Company knew of the decision and, if it did, why should it ask for a notice? One does not call the weather bureau while it is raining to ask the state of the weather. In fact, after waiting 69 days after the “action” of May 31st, the Humble Company, on August 8th, reminded the board of its inaction. It is apparent that it was this prodding on the part of the company which brought about the rendition of the decision. Indeed, on that evening of August 8th, the board met to pass upon the written opinion and order. This is further indication that the board had not finally wrapped up the case on May 31st. The board assumes that because “the decision was reached publicly,” this somehow imparted notice to the appellee company of what it had done. There is nothing magical about the word publicly. All actions by courts and administrative agencies are presumably taken publicly, but they do not automatically communicate themselves to the parties affected. If notice were synonymous and simultaneous with action, there would have been no necessity for the Act to declare that “notice of such decision shall forthwith be given to all parties in interest.” This language imports a specific act of notification. So long as the United States Mail operates, and it does operate, regardless of storm, rain, heat, or gloom of night, there is no excuse for failure to notify parties in interest or their, counsel, when the law requires that notice be given. The record manifests in other ways that the May 31st date could not have been the date of the decision made by the board. For instance, it was not until June 17th that the borough solicitor received the notes of testimony of the May 24th hearing. In all the time intervening between May 31st and August 8th, there was no indication when the board would render its authoritative decision. One of the most common traits of mankind, and this is unfortunately particularly true in legal procedure, is that procrastination rather than celerity controls initiative, consideration, and decision. The Legislature recognized the existence of this inertia in the orderly disposition of pending governmental matters, and, accordingly, wisely provided that when a hoard of adjustment indolently allows 45 days to go by without a decision following a hearing, the complaining party shall have the benefit of that slothful inattention and gain the requested permit. Without this kind of coercive determination, a board could effectively prevent the erection of needed structures through the simple process of luxurious lolling while spiders of inattention spin webs of indifference over pending public problems. Neither law nor justice, reason nor logic, can justify the delay of the board in the case at bar. The issue was an uncomplicated one and the record demonstrates that the opinion and order could have been prepared and handed down long before the expiration of the 45-day statutory period. In Blank v. Board of Adjustment, 390 Pa. 636, this Court held that it was proper to dismiss an appeal from a decision of a board of adjustment after the 30-day prescribed by the pertinent statute had expired: “In view of the explicit language of the statute the court below was eminently correct in dismissing the appeal. 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, . . .’ We have consistently required that the procedural provisions of zoning statutes be rigidly adhered to.” Order affirmed. Mr. Justice Cohen dissents. Act of May 4, 1927, P. L. 519, §3307,, added 1947, July 10, P. L. 1621, §93, as amended, August 25, 1959, P. L. 757, §1, 53 P.S. §48207 (f).

Opinion Per Curiam, This is an appeal from a final decree in equity. The decree appealed from was entered in the court below on December 17, 1970. Under the “Appellate Court Jurisdiction Act of 1970”, Act of July 31, 1970, P. L. 673, No. 223, Art. V, §502(a), 17 P.S. §211.502 (effective September 11, 1970), the appeal was required, to be filed within thirty (30) days of the entry of the decree in the court below. However, the instant appeal was not filed until February 16, 1971, well beyond the statutory limit, after this Court granted a petition and entered an order permitting the appeal to be filed “nunc pro tunc.” Upon further reflection, we conclude that the above order was improvidently entered and must he vacated. Where an act of assembly fixes the time within which an appeal may be taken, the time may not be extended in the absence of fraud or its equivalent, which is not present herein. The time may not be extended as a matter of indulgence. Cf. Commonwealth v. Bey, 437 Pa. 134, 262 A. 2d 144 (1970); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); and Yeager v. United Natural Gas Company, 197 Pa. Superior Ct. 25, 176 A. 2d 455 (1961). Since the appeal was untimely filed, it must be quashed. It is so ordered. Each party to pay own costs. Mr. Justice Jones took no part in the consideration or decision of this case.

Opinion by Me. Chief Justice Hoeace Steen, Plaintiff appeals from the refusal of the court below to enjoin an intended use of defendant’s property on the ground that it would constitute a violation of a restriction in the title deeds. Plaintiff is the owner of premises fronting on the southwesterly side of Wissahickon Avenue in the 22nd Ward of the City of Philadelphia, a portion of which he acquired in 1914 and another portion in 1924. On the northeasterly side.of Wissahickon Avenue is the property 6611 Wissahickon Avenue now owned by defendant, to which it was recently conveyed by High Oaks, Inc., formerly known as The Philadelphia Sanitorium Inc. for Christian Scientists, it having been conveyed to the latter as part of a larger tract in 1952 by Little Sisters of the Assumption School for the Training of Nurses. It is subject to a building restriction which was imposed upon the tract by one Anna M. Smith, in conveyances by her in 1910 and 1912, as follows: “That the said lot or piece of ground hereby granted shall be used only for the purpose of erecting thereon private dwellings and the appurtenances thereto and that not moré than two such dwellings and the appurtenances thereto shall be erected thereon. Further that the cost of erection of each of such dwellings shall be not less than $10,000 and Further that no stable or outbuilding shall be erected thereon within a distance of 150 feet of Wissahickon Avenue .. .”. Plaintiff’s property is subject to a similar restriction imposed upon it in the deeds by which he acquired title from the son of Anna M. Smith, to whom she had devised her residuary estate. In 1943 all the parties interested in these restrictions, including the present plaintiff and defendant’s predecessor in title, agreed in writing that they should be modified so as to permit the use of the premises affected thereby for the purposes of the organization of the Little Sisters of the Assumption School for the Training of Nurses, and to permit the erection of any additional building or buildings on the premises for such purposes, but the restriction otherwise to remain in full force and effect. Little Sisters of the Assumption 'School for the Training of Nurses is a charitable institution which conducts a novitiate for educating postulants and novices studying to become nursing sisters of the sick poor, and it occupied the premises in question for such purpose until 1952 when it conveyed the property to the Philadelphia Sanitorium Inc. for Christian Scientists, now High Oaks, Inc. The latter presently operates a private sanitarium upon premises 609 West Hortter Street, to the rear of a portion of its Wissahickon Avenue premises. The Park Lane .for Convalescents, Inc. plans to use its property as a convalescent and nursing home, and for that purpose' to make the necessary interior alterations but no external changes or additions. It is that proposed use which plaintiff sought to have enjoined in the court below. In order properly to consider and determine the question involved it is important at the outset to have in mind the applicable legal principles that have been enunciated, frequently reiterated, and consistently ap plied, through a long succession of cases decided by this court. However variously phrased, they are, in substance, that restrictions on the use of land are not favored by the law because they are an interference with an owner’s free and full enjoyment of his property; that nothing will be deemed a violation of a restriction that is not in plain disregard of its express words; that there are no implied rights arising from a restriction which the courts will recognize; that a restriction is not to be extended or enlarged by implication; that every restriction will be construed most strictly against the grantor and every doubt and ambiguity in its language resolved in favor of the owner. Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions on the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein as affecting the health, welfare and comfort of the neighbors. A building restriction and a use restriction are wholly independent of one another, and, in view of the legal principles above stated, the one is not to be extended so as to include the other unless the intention so to do is expressly and plainly stated; to doubt is to deny enforcement. As examples of cases where the manifest intention was to restrict both the erection of buildings and their use may be cited Johnson v. Jones, 244 Pa. 386, 90 A. 649, where the restriction was that “ . nothing but a church or dwelling house . . . shall ever be erected upon any part of the said land; that none of the structures so erected shall ever be used as a business place, manufactory or drinking saloon, or used for any other purpose than a dwelling house, or its necessary outbuildings or a church.’ ” So, also, in Drucker v. Russell, 279 Pa. 443, 124 A. 92, where the restriction was that “.. . each of said building lots shall be improved with a dwelling house at least three stories high, . . . and that no portion , of the said lots of ground or of the buildings to be erected thereon shall be used for the manufacture or sale of intoxicating liquors, or for any other industrial or commercial purpose.” Likewise in Taylor v. Lambert, 279 Pa. 514, 124 A. 169, where the restriction was that “ . . there shall not be erected upon the above described , . . lot of ground or any part thereof a building or buildings designed for any other purpose than a private dwelling house, and that no such building erected thereon shall be occupied or used for any purpose other than a private dwelling house.’ ” Again, in Fox v. Sumerson, 338 Pa. 545, 13 A. 2d 1, where the restriction was that “ . the buildings to be erected upon the land herein described shall be nothing other than private dwelling houses; . . . that no building or buildings to be erected shall be at any time hereafter forever altered into or used for any .other purpose than as above designated.’ ” Numerous similar illustrations might be given of restrictions expressly covering both the type of buildings to be erected upon the land and limitations upon their subsequent use. In the present case the restriction falls clearly within the class of those which are limited by their terms to the type of buildings to be erected on the land and not to their subsequent use. The restriction is that the lot or piece of ground shall be used only for the purpose of erecting thereon private dwellings, and the fact that the purpose of the restriction is to safeguard the appearance of the neighborhood by providing for the desired architectural type, symmetry, and spacing of the structures, is shown by the further provision that not more than two dwellings should be erected thereon, that the cost of each dwelling should be not less than $10,000 and that no stable or outbuilding should be erected close to the front of the property on Wissahickon Avenue. The restriction contains no statement or provision whatever as to the subsequent occupancy of the structures or the uses to which they might be devoted. The term “dwellings” or “private dwellings” is obviously employed in contradistinction to such types of buildings as stores, factories, hotels, assembly halls, and other structures. In St. Andrew's Lutheran Church’s Appeal, 67 Pa. 512, the restriction was that no building should be built other than as and for a private dwelling-house; after the lots were thus improved the restriction was to be of no further effect, meaning merely, as the court said, that it was not intended as a perpetual inhibition but was confined to the first improvement. It was there stated by Mr. Justice Sharswood (pp. 518, 519) that “The covenant is directed against the building alone, not the subsequent use, and when a building is law fully erected on either of the lots, so far as that building is concerned, the covenant is at an end.” In Hoffman v. Parker, 239 Pa. 398, 86 A. 864, the restriction was that no buildings should be erected on the land other than dwellings, churches, apartment houses, and schools. An occupant of one of the dwellings, without changing the exterior of the house, set up a store in the basement for the sale of foodstuffs. The court said that this did not violate the restriction in regard to the erection of the buildings and that if it had been the intention to prohibit such use it would have been a simple matter to frame the language which would so provide, and the court added (pp. 399, 400, A. p. 865): “Such restrictions as those under consideration are lawful, but they are not extended beyond their plain and necessary intent. As they operate to limit the uses to which an owner might lawfully devote his property, they must be strictly construed. There is no equitable extension of their terms, and the court cannot read into them an intention which does not plainly appear from the words of the restrictions.” The building having been erected as a dwelling house, and not having been altered in any external way, the court held that the use to which it was put was not a violation of the restriction, and that “the matter of the external construction is the one with which the agreement deals.” In Mamnett v. Born, 247 Pa. 418, 93 A. 505, the restriction was that no more than one dwelling house should be erected or maintained on each 40 feet of laud. It was held that it was not violated by the erection of duplex houses each of which would be occupied by two families. The court said (p. 420, A. p. 505) : “As was said of a similar restriction in St. Andrew’s Church’s App., 67 Pa. 512, the covenant is directed against the building alone, not its subsequent use, and when a building is lawfully erected on either of the lots, so far as the building is concerned the covenant is at an end.” This decision was followed in Rohrer v. Trafford Real Estate Company, 259 Pa. 297, 102 A. 1050, and Peirce v. Kelner, 304 Pa. 509, 156 A. 61. The above and other pertinent authorities are collated in Kauffman v. Dishler, 380 Pa. 63, 110 A. 2d 389. In that case a restriction that not more than one house, same to be detached or semi-detached, and private garage, should be erected on each lot, was held not to prohibit the building of three-unit apartment houses even though these would be occupied by more than one family. The conclusion there reached from an examination of the cases was (pp. 68, 69, A. p. 391) that “. . . all the authorities are uniform to the effect that a restriction against the erection of a building other than a ‘house’ or a ‘dwelling house’ is a restriction only in regard to the type of construction and not the subsequent use, and that if any restriction on use is intended it should be plainly expressed and not left to implication.” Appellant relies upon the decision in the case of Gerstell v. Knight, 345 Pa. 83, 26 A. 2d 329, where a covenant in a deed provided that one “residence” only, should be built on the land and it was held that only one family should reside on the land and that the house which had been built thereon could not be altered into residences for two families. The decision turned wholly on the words “one residence only” which the court, whether correctly or otherwise, chose to distinguish from “one dwelling house” or “one building” as embodying the connotation of the use of the land for occupation by only one family. The authorities give full support to the court’s denial of an injunction to enforce this present restriction. The final order and decree of the court dismissing the complaint is affirmed at the cost of appellant. "Defendant” refers to The Park Lane for Convalescents, Inc., plaintiff not prosecuting bis appeal against High Oaks, Inc. Examples: — St. Andrew’s Lutheran Church’s Appeal, 67 Pa. 512, 520; Crofton v. St. Clement’s Church, 208 Pa. 209, 212, 213, 57 A. 570, 572; McCloskey v. Kirk, 243 Pa. 319, 326, 90 A. 73, 76; Johnson v. Jones, 244 Pa. 386, 389, 90 A. 649, 650; Rohrer v. Trafford Real Estate Company, 259 Pa. 297, 299, 102 A. 1050, 1051; Dewar v. Carson, 259 Pa. 599, 603, 103 A. 343; DeSanno v. Earle, 273 Pa. 265, 270, 117 A. 200, 202; Taylor v. Lambert, 279 Pa. 514, 516, 124 A. 169, 170; Satterthwait v. Gibbs, 288 Pa. 428, 431, 135 A. 862, 863; Brown v. Levin, 295 Pa. 530, 534, 535, 145 A. 593, 594; Peirce v. Kelner, 304 Pa. 509, 515, 516, 156 A. 61, 63; Henry v. Eves, 306 Pa. 250, 258, 259, 159 A. 857, 859; Kessler v. Lower Merion Township School District, 346 Pa. 305, 308, 309, 30 A. 2d 117, 118; Baederwood, Inc. v. Moyer, 370 Pa. 35, 41, 87 A. 2d 246, 249; Hoffman v. Balka, 175 Pa. Superior Ct. 344, 347, 104 A. 2d 188, 190.

Opinion by Mr. Justice Eoberts, In October of 1966, a jury found appellant guilty of the crimes of murder in the first degree and rape. A sentence of life imprisonment was imposed. On appeal, this Court reversed the judgment of sentence and granted a new trial because appellant’s rights, as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), were violated. Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397 U.S. 925, 90 S. Ct. 918 (1970). On retrial in November, 1970, a jury again found appellant guilty of murder in the first degree, and the penalty was again fixed at life imprisonment. Post-trial motions were denied and this direct appeal followed. We now affirm. On April 28, 1966, the body of Pamela Sue Eimer, an eighteen year-old high school student, was discovered in a wooded area near her home in Luthersburg, Pennsylvania. One of her stockings was knotted and tied around her neck. An autopsy revealed that death was caused by strangulation. Further examination dis closed three slashes across the victim’s throat and cuts of the fingers of her left hand, inflicted by a sharp instrument, and numerous wounds about her head, caused by a blunt instrument. At approximately 5:45 a.m. on the morning of April 29, 1966, appellant, a teacher at the school the deceased had attended, voluntarily appeared at the state police substation in DuBois, Pennsylvania, and rang the doorbell. An officer opened the door and asked whether he could be of assistance. Appellant stated, “I am the man you are looking for.” The officer asked whether he was referring to the “incident in Luthersburg,” and appellant responded in the affirmative. The officer then asked appellant to come into the police station and be seated. Leaving appellant unattended, the officer proceeded to a back bedroom where a detective and another police officer were sleeping, Avoke them, and informed them that “there was a man in the front that said Ave are looking for him.” He then returned to the front office where appellant, who had removed his coat, hat, and gloves, identified himself as Jon Yount. After dressing, the detective and the second officer entered the front office. The detective was told by the first officer that appellant’s name was Jon Yount. The detective then asked appellant to be seated inside a smaller office adjacent to the front office, where he asked, “Why are we looking for you?” Appellant replied, “I killed that girl.” Upon hearing that answer, the detective inquired, “What girl?”, and appellant responded, “Pamela Rimer.” In response to the detective’s next question, “How did you kill this girl?”, appellant answered, “I hit her with a wrench and I choked her.” At that point the detective gave appellant admittedly inadequate Miranda warnings, and began interrogation as to the details of the crime. A -written, confession was subsequently obtained. Prior to appellant’s second trial, the question “How did you Mil this girl?” and its answer, as well as the written confession were suppressed, on the authority of our prior decision, Commonwealth v. Yount, supra, as violative of Miranda. The admissibility of appellant’s initial statements that the police were looMng for him in connection with the Luthersburg incident is not challenged, nor could a challenge be successful. See Commonwealth v. Miller, 448 Pa. 114, 121 n.2, 290 A.2d 62, 65 n.2 (1972). Appellant does contend, however, that the court erred in not suppressing his statement, “I ldlled that girl,” and Ms identification of the victim as “Pamela Rimer.” It is argued that these two admissions were the product of “custodial interrogation” and therefore should have been preceded by Miranda warmngs. Appellant argues that warnings were required before the question “Why are we looking for you?” was asked. We are asked to determine the precise time when the need for Miranda warnings arose. It is now beyond question that “ ‘whenever an individual is questioned while in custody or while the object of an investigation of wMch he is the focus, before any questioning begins the individual must be given the warnings established in Miranda. . . .’ ” Commonwealth v. D’Nicuola, 448 Pa. 54, 57, 292 A.2d 333, 335 (1972) (quoting Commonwealth v. Feldman, 432 Pa. 428, 432, 248 A.2d 1, 3 (1968)). Accord, Commonwealth v. Simula, 434 Pa. 219, 225, 252 A.2d 575, 578 (1969); see Commonwealth v. Hamilton, 445 Pa. 292, 285 A.2d 172 (1971). It is, however, only that questioning which is interrogation initiated by law enforcement officers which calls for Miranda warnings. Miranda v. Arizona, supra at 444, 86 S. Ct. at 1612. As this Court held in Commonwealth v. Simala, supra at 226, 252 A.2d at 578: “‘[I]t is not simply custody plus “questioning,” as such, which calls for the Miranda safeguards but custody plus police conduct . . . calculated to, expected to, or likely to, evoke admissions.’ ” The rationale behind this holding is found in Miranda, where the Court stated: “Confessions remain a proper element in law enforcement. . . . The fundamental import of the privilege ... is not whether [an individual] is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that the police stop a person who enters a police station and states that he wishes to confess to a crime .... Volunteered statements of any kind are not barred by the Fifth Amendment . . . .” Miranda v. Arizona, supra at 478, 86 S. Ct. at 1630 (emphasis added). Clearly, “any question likely to or expected to elicit a confession constitutes Interrogation’ under Miranda. . . .” Commonwealth v. Simala, supra at 227, 252 A.2d at 579. Accord, Commonwealth v. Mercier, 451 Pa. 211, 214, 302 A.2d 337, 339 (1973). But "[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda v. Arizona, supra at 478, 86 S. Ct. at 1630. On this record it cannot be said that the two police inquiries here challenged constitute conduct calculated to, expected to, or likely to elicit an incriminating response, or that they were asked with an intent to extract or an expectation of eliciting an incriminating statement. All this record establishes is that the detective knew only that a man named Jon Yount—a name which the detective had never heard before—vol untarily came to the police station early in the morning and volunteered that the police were looking for him. In response to this information, the detective extemporaneously asked, “Why are we looking for you?” Appellant was not coerced, prompted, or urged to incriminate himself. To the contrary, the detective’s inquiry, made in response to information volunteered by appellant, was of a neutral character and not interrogative. Appellant’s answer, “I killed that girl,” was given freely and without compelling influence. It was therefore volunteered in the constitutional sense. That the answer was in fact incriminating does not alter its volunteered character nor preclude its use. Miranda v. Arizona, supra at 478, 86 S. Ct. at 1630. Similarly, we are of the opinion that the statement identifying “that girl” as “Pamela Rimer” was volunteered. Appellant, without any compulsion, went to the substation and volunteered that he had killed “that girl.” As we indicated in Commonwealth v. Simala, supra at 226 n.2, 252 A.2d at 579 n.2, after an incriminating, but ambiguous, statement is volunteered, as was done here, a question which does not do “anything more than clarify statements already made,” in the absence of any coercion or prompting, subtle or overt, is permissible. See also Kamisar, “ ‘Custodial Interrogation’ Within the Meaning of Mwanda,” in Institute of Continuing Legal Education, Criminal Law and the Constitution—Sources and Commentaries 335, 354 (1968). Here, immediately upon hearing appellant’s volunteered statement, “I killed that girl,” the detective spontaneously asked, “What girl?” By this he sought only to clarify appellant’s prior statement. Appellant responded, “Pamela Rimer.” Such a clarifying inquiry, made in response to a statement volunteered by appellant during an interview which he initiated, is proper. The identification must be deemed constitutionally volun teered. Accord, State v. Perry, 14 Ohio St. 2d 256, 237 N.E.2d 891 (1968); People v. Mercer, 257 Cal. App. 2d 244, 64 Cal. Rptr. 861 (1967); see Hicks v. United States, 382 F.2d 158 (D.C. Cir. 1967). As already indicated, appellant volunteered both that he had killed someone and the victim’s identity. Because “ [v] olunteered statements . . . are not barred by the Fifth Amendment,” Miranda v. Arizona, supra at 478, 86 S. Ct. at 1630, their use as evidence was constitutionally permissible. However, after these statements were given, Miranda warnings became necessary. Commonwealth v. Yount, supra at 280, 256 A.2d at 465; see Commonwealth v. Feldman, 432 Pa. 428, 248 A.2d 1 (1968); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967). Appellant’s initial admission and identification created the critical moment after which interrogation without Miranda warnings was impermissible. It was the absence of warnings at that moment, and not before, that required our prior reversal. The earlier, volunteered statements, however, were not the product of interrogation initiated by the police. On this record, therefore, it must be concluded that the Commonwealth satisfied its burden of proving by a preponderance of the credible evidence that the two statements here challenged were constitutionally permissible evidence. Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972); Pa. R. Crim. P. 323(h). Appellant raises ten additional assignments of error. These need be discussed only briefly. Appellant contends that the trial court erred in refusing his timely motions for a change of venue, and advances three arguments in support of this position. First, it is asserted that excessive pretrial publicity prevented a fair trial. In responding to this argument, the trial court observed: “The first of the trials occurred in 1966, and as pointed out herein, the second one occurred in 1970. As the record will indicate there was practically no publicity given to this matter through the news media in the meanwhile except to report that a new trial had been granted by the Supreme Court. It is to be noted also that throughout the second trial there was practically no public interest shown in the trial; one thing to be noted is that on some days there being practically no persons present even to listen to it. . . .” These findings, fully supported by the record, do not sustain appellant’s claim, and the court properly denied appellant’s motion for a change of venue predicated on this theory. Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S. Ct. 164 (1973); Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970). Second, appellant contends that the excusing of a large number of veniremen for cause, and the nature of the answers of those so excused, conclusively demonstrated substantial community bias and prejudice which required a change of venue. Nothing in this record, however, refutes the court’s assertion that it liberally granted appellant’s challenges for cause “to assure that there could be no complaint about the final jury empanelled.” Neither does the voir dire, as appellant argues, reveal a “clear and convincing” build-up of prejudice or a “ ‘pattern of deep and bitter prejudice’ shown . . . throughout the community” which would require a change of venue. Irvin v. Dowd, 366 U.S. 717, 725, 727, 81 S. Ct. 1639, 1644, 1645 (1961). See Commonwealth v. Hoss, 445 Pa. 98, 103-07, 283 A.2d 58, 61-63 (1971); Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12 (1968), cert. denied, 394 U.S. 949, 89 S. Ct. 1287 (1969). Third, it is argued that the Act of March 18, 1875, P.L. 30, § 1, 19 P.S. § 551 (1964), mandated a change of venue. This Act states, inter alia: “In criminal prosecutions the venue may be changed, on application of the defendant . . . U “. . . When, upon second trial of any felonious homicide, the evidence on the former trial thereof shall have been published within the county in which the same is being tried, and the regular panel of jurors shall be exhausted without obtaining a jury.” The Act, however, by its own terms, is directed to the sound discretion of the trial court. As this Court established in Commonwealth v. Karmendi, 328 Pa. 321, 337-38, 195 A. 62, 69 (1937) : “The act is not mandatory; it lies within the sound discretion of the court below: Com. v. Cleary, 148 Pa. 26, but in a particularly notorious case in a given community, this court will review that discretion, and if in its judgment it is felt the accused could not help but be prejudiced in her subsequent trial by the feeling engendered, a new trial will be granted. . . .” See also Commonwealth v. Sacarakis, 196 Pa. Superior Ct. 455, 175 A.2d 127 (1961). Although the regular panel of jurors was in fact exhausted before the jury was selected, this circumstance alone obviously does not require a change of venue. It cannot be said that the court abused its discretion where, as here, the record fails to disclose undue community prejudice. Similarly, we reject appellant’s argument that, during voir dire, the court erred in denying certain challenges for cause. Our reading of the testimony of the challenged jurors satisfies us that the trial court correctly concluded that “even where a juror may have had any opinion in the matter, the jury was without prejudice and was able to and did arrive at its verdict on the testimony and the law involved.” The record shows that none of the jurors had a fixed opinion as to appellant’s guilt or innocence, or was otherwise legally unable to serve. See Commonwealth v. Hoss, supra at 107, 283 A.2d at 63-64; Commonwealth v. Swanson, supra at 299, 248 A.2d at 15; Commonwealth v. McCrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953). Appellant also argues that all evidence seized during a search of his automobile should have been suppressed. He asserts that the search warrant relied upon by the police was issued without probable cause. Before the time appellant appeared at the DuBois substation, another state policeman, working entirely separately and in a location different from the station to which appellant went, received from two witnesses a description of an automobile they had seen near where the victim’s body was found. The witnesses reported that, at about the time the murder was committed, the automobile passed their home headed toward the scene, and that later it passed from the opposite direction travelling at high speed. That policeman, working only from this information, learned that one Jon Yount owned an automobile fitting the description. After appellant admitted that he had killed Pamela liimer, one of the officers at the substation reported that fact to the main police barracks. This collective knowledge, properly before the magistrate, constituted the requisite probable cause for the issuance of the search warrant. See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964); Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973); Commonwealth v. D’Angelo, 437 Pa. 331, 263 A. 2d 441 (1970). Since appellant’s admission was not tainted we agree with the trial court that the subsequent search was not impermissible as the “fruit of a poisonous tree.” Commonwealth v. Marabel, 445 Pa. 435, 444, 283 A.2d 285, 289 (1971); see Wong Sun v. United States, 371 U.S. 471, 88 S. Ct. 407 (1963). Appellant contends that a pocketknife found on his person when he was arrested was improperly admitted into evidence. As previously noted, the victim suffered cuts of the neck and fingers, and appellant was arrested about twelve hours after the commission of the crime. The knife was of a kind that could have inflicted the wounds, even though the prosecution was unable con clusively to demonstrate that the particular knife was the weapon used. Its relevance cannot be successfully challenged. “The fact that the accused had a weapon or implement suitable to the commission of the crime charged, such as a knife ... is always a proper ingredient of the case for the prosecution.” 1 Wharton’s Criminal Evidence § 157 at 289-90 (13th ed. C. Torcia 1972). This relevant evidence clearly was admissible. As this Court recently held in Commonwealth v. Ford, 451 Pa. 81, 84, 301 A.2d 856, 857 (1973) : “[Positive testimony that the knife in question was actually the murder weapon is not required prior to introduction into evidence. ... If a proper foundation for the admission of the evidence has been laid, as here, then admission into evidence is permissible. . . . The fact that the knife could not be positively identified affects the weight of such evidence, but not its admissibility. . . .” Here, not only was the knife a possible murder implement, but it was found upon the person of the appellant at a time “reasonably proximate to the commission of the crime.” 1 Wharton’s Criminal Evidence § 211 at 442 (13th ed. C. Torcia 1972). A foundation sufficient to support the admission of the knife was laid. Its evidentiary use was therefore a proper element in the prosecution’s case. Appellant assigns as error the admission of certain photographs of decedent and several items of her clothing, including the knotted stocking which was one of the murder weapons. It is well-settled law in this Commonwealth that “the admission of photographs exhibiting the body of a deceased in homicide cases is primarily within the discretion of the trial judge. . . .” Commonwealth v. Powell, 428 Pa. 275, 278, 241 A.2d 119, 121 (1968). Moreover, this Court has repeatedly declared that “the proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases is whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. . . .” Id. at 278-79, 241 A.2d at 121. Accord, Commonwealth v. Ford, supra at 86, 301 A.2d at 858; Commonwealth v. Eckhart, 430 Pa. 311, 317, 242 A.2d 271, 274 (1968). This test is also applicable to the other demonstrative evidence, i.e., the clothing, admitted here. See Commonwealth v. Ford, supra at 85, 301 A.2d at 857-58. It is to be noted that the stocking was one of the murder implements. The paramount evidentiary need for this item is obvious. As to the other challenged items, the court found, and we agree that “ [t] he photographs aided in the jurys’ [sic] understanding of the type of injuries inflicted, where and how the deceased was found, the site and position of the deceased, and in very definite corroboration of the oral testimony of witnesses. . . .” Moreover, the court stated that “the photographs were [not] at all inflamatory[sic],” and there is no suggestion that the victim was, for example, pictured naked, or that the photographs or items of clothing were gruesome or grotesque. On this record, we hold that the court correctly applied the Powell test, that the evidentiary value of the admitted evidence outweighed any potential for prejudice, and that the court did not abuse its discretion in admitting the challenged items. Appellant also argues that the trial court erred in denying his motion to sequester the Commonwealth witnesses, particularly the state police officers. This Court has previously held that “the question of sequestration of witnesses is left largely to the discretion of the trial Judge and his decision thereon will be reversed only for a clear abuse of discretion.” Commonwealth v. Kravitz, 400 Pa. 198, 218, 161 A. 2d 861, 870 (1960), cert. denied, 365 U.S. 846, 81 S. Ct. 807 (1961); see Pa. R Crim. P. 326. In its opinion, the court justified its denial of the motion, by explaining that “no witness was called who had not previously testified at the first trial; and examination of all the testimony will indicate that it was much as was given at the first trial of this case.” These witnesses were not sequestered at the first trial. The record also establishes that the same police officers who testified at trial also testified a few weeks earlier at the suppression hearing. No request to sequester was then made. We find the court’s reasons for refusing to sequester the officers convincing, and find no abuse of discretion. It is also argued that the trial court variously erred in its instructions to the jury. Only one of these now-asserted challenges, however, was properly raised by specific objection before the jury retired to deliberate. That objection alone can now be reviewed. Common wealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973); Pa. E. Crim. P. 1119(b). The objection is to an allegedly improper expression of the court’s opinion that the evidence did not warrant a verdict of voluntary manslaughter. The trial court expressed the view that if the jury found that appellant did in. fact maliciously kill decedent, the court recalled no evidence of extenuating circumstances which would reduce the act to voluntary manslaughter. The court, however, also gave the jurors a full, complete, adequate, and correct charge on voluntary manslaughter, and instructed them that voluntary manslaughter was an entirely permissible verdict. The trial judge also specifically instructed the jurors that their recollection of the testimony, and not his, controlled, that his opinion was no more than a gratuitous observation, and that the jury could and should return any verdict it felt justified. Moreover, the court did not express an opinion as to guilt or innocence or suggest that the jury return any particular verdict. The charge, read in its entirety, removed nothing from the province of the jury nor did it contain any judicial expression of guilt. The charge therefore was proper. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972) ; Commonwealth v. Motley, 448 Pa. 110, 289 A.2d 724 (1972); see Commonwealth v. Miller, 448 Pa. 114, 124-26, 290 A.2d 62, 67-68 (1972). Appellant complains that the court erred in denying his motion for a mistrial based on allegedly inflammatory and prejudicial remarks by the prosecutor in his closing argument. We are satisfied, as was the trial court, that the prosecutor’s remarks were limited to the facts in evidence and the legitimate inferences therefrom, and consequently cannot be deemed improper. See Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973); ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8 (Approved Draft, 1971). Finally, appellant contends that if the oral admission, the pocketknife, the clothing and photographs, and the items seized from appellant’s automobile were improperly before the jury, then the remaining evidence could not sustain any verdict of guilty. Since we have determined that those items of evidence were properly admitted, this challenge must fail. Reviewing all the record evidence in the light most favorable to the Commonwealth, we are satisfied that the jury reasonably could have found, beyond a reasonable doubt, all the elements of murder in the first degree, and that the evidence therefore is sufficient to sustain the verdict. Commonwealth v. Lee, 450 Pa. 152, 154, 299 A.2d 640, 641 (1973). Judgment of sentence affirmed. Mr. Justice Pomeroy concurs in the result. Appellant’s motion to quash the indictment for rape was granted. and the second trial was for the crime of murder alone. Jurisdiction attaches by virtue of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1973). In our prior decision, a new trial was granted because tbe written confession admitted into evidence was not preceded by warnings satisfying Miranda. Tbe question of tbe admissibility of tbe two statements bere challenged, not being necessary to our earlier decision, was not there decided. In light of our determination that appellant’s statements were volunteered, we need not determine, as the Oommonwealth argues, whether appellant was then in “custody.” See Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971). Indeed, the exhaustion of the initial array is not an unusual occurrence. As Dean Daub observed: “It sometimes happens that there are so many disqualified or excused jurors that the array is not large enough to permit the completion of a particular civil or criminal panel. This extraordinary situation is frequently encountered during the selection of a panel in murder cases. In that type of case the large number of peremptory challenges allowed to each side, and the liberal allowance of causal challenges frequently exhausts the array or reduces it to the point where the trial cannot proceed until additional jurors have been summoned.” 1 B. Daub, Pennsylvania Trial Guide § 34.4 at 81 (1959). See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 2.5 (Approved Draft, 1968). The Commentary to that section suggests: “A challenge for cause to an individual juror may be made only on the ground: “(j) That the juror has a state of mind in reference to the cause or to the defendant or to the person alleged to have been injured by the offense charged, or to the person on whose complaint the prosecution was instituted, which will prevent him from acting with impartiality; but the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the evidence.” Id. 68-69. For purposes of establishing probable cause, the officer who obtained the warrant was entitled to rely on the information communicated to him from the DuBois substation. United States v. Stratton, 453 F.2d 36, 37-38 (8th Cir.), cert. denied, 405 U.S. 1069, 92 S. Ct. 1515 (1972). See also 1 Wharton’s Criminal Evidence § 211 at 441-42 (13th ed. C. Torcia 1972) (footnotes omitted) : “It is relevant to show that the defendant owned or had access to an implement with which the crime could have been committed. The possession by the defendant of a weapon or implement of crime is relevant even though there is no evidence that it was used in the commission of any particular crime, but there must be evidence that some crime was committed. The possession or ownership of the weapon or implement of crime must be reasonably proximate to the commission of the crime. If too great a period has elapsed between the commission of the crime and the period of possession or ownership, the evidence would be too remote and hence inadmissible. Thus, in a prosecution for assault with intent to kill, the admission in evidence of the finding of a weapon on the person of the accused when he was arrested nearly a month after the assault, was prejudicial error.” Appellant also contends that lie was entitled to an instruction that the knife had no evidentiary value. Because the knife was correctly admitted, appellant’s point for charge was properly refused. We also note that the court in its discretion did not allow these allegedly inflammatory items into the jury room. Appellant also argues that the court overemphasized the crime of murder in the first degree, and that it did not, while reviewing the evidence, sufficiently stress the jury’s role as factfinder. It is contended that the prosecutor improperly commented on the gravity of the crime charged, that the inferences he drew from the evidence tended toward the speculative, and that he improperly defended, after appellant had attacked, the competence of the state police.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT McDERMOTT, Justice. This is an appeal from the order of the Superior Court, reversing an order of the Court of Common Pleas of Allegheny County suppressing evidence obtained in a search of appellant’s residence. After examination of appellant’s claim we affirm. The facts are as follows. On the morning of September 5, 1980, Lieutenant Charles E. Coughlin of the McKeesport Police Department prepared an application for a search warrant for the premises of appellant, Roy L. Hamlin. The probable cause relied upon in securing the warrant was testimony from neighbors that ten (10) to twenty (20) persons visited the residence on a daily basis and only stayed for a short period of time. Later that same day at approximately 1:30 p.m. the application was taken to the district magistrate. The warrant was then approved and the date of issuance was recorded as September 6, at 8:00 a.m. This date and time started the forty-eight (48) hour period during which the search warrant had to be executed. See Pa.R. Crim.Pro. 2005. The search was scheduled to take place at 7:00 a.m. on September 6. The police arrived at appellant’s residence at 7:45 a.m. on that same date. Lieutenant Coughlin knocked on the exterior door of the complex in which appellant lived. Receiving no response Lieutenant Coughlin proceeded into the main building and knocked on appellant’s door. After continued knocking and unanswered requests to have appellant open the door, Lieutenant Coughlin used a key supplied by the landlord to gain access. Appellant and a Ms. Dreher (co-defendant) were in the room. Lieutenant Coughlin identified himself and provided appellant with a copy of the warrant. A search of the premises resulted in the seizure of a quantity of controlled substances and drug paraphernalia. The occupants were arrested. Appellant and co-defendant filed joint omnibus pre-trial motions to suppress the seized evidence. On March 25, 1981, the Commonwealth proceeded to a suppression hearing on the co-defendant’s motion. After receiving testimony from both Lieutenant Coughlin and Howard Lindberg, the issuing magistrate, the suppression court granted the motion to suppress. Judge Louik, the suppression court judge, stated at the hearing that he was not finding that the error was done purposely, but nevertheless, given the improper execution of the warrant, he was going to grant defendant’s suppression motion (S.T. 39-42). The Commonwealth appealed. On appeal the Superior Court, in a two to one decision, rejected the findings of the lower court and reversed, holding that the misdating was a mistake which did not prejudice appellant. Appellant herein petitioned this Court for appeal and we granted allocatur. In this appeal the following issues are raised: whether the Superior Court lacked jurisdiction to entertain the appeal, since it did not raise a pure question of law; whether the Superior Court impermissibly substituted its own findings of fact for that of the suppression court; and, whether the Commonwealth’s failure to appeal the suppression court’s finding of insufficient probable cause in appellant’s co-defendant’s case precluded the Commonwealth from challenging the suppression court decision in the instant case. Appellant erroneously contends that the Superior Court should have been precluded from exercising jurisdiction over the Commonwealth appeal. It is well settled that when a motion to suppress is granted, and when the appellant asserts in good faith that it substantially handicaps or effectively terminates the prosecution for lack of evidence, the Commonwealth has the right to appeal the suppression order. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). In the instant case that is precisely what the suppression order accomplished. However, the jurisdiction of the Superior Court and the concomitant right of the Commonwealth to appeal a suppression court’s ruling is limited to pure questions of law. See Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978); Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977). Appellant’s second contention is that in reversing the decision of the suppression court, the Superior Court was clearly usurping the role of the trial court as fact finder. The well established judicial principle is that in reviewing a suppression court’s ruling the appellate court is bound by factual findings supported by the record. Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977); and, they may not substitute their own findings for those of the suppression court. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). The Superior Court in reviewing the testimony of the issuing magistrate did not find support in the record to justify Judge Louik’s determination that the “issuing magistrate ... appears to have purposely post-dated the search warrant.” (Suppression Court Opinion at 1.) And we agree. It is important to note at this juncture that Judge Louik stated at the suppression hearing that “[he was] not saying that this [misdating] was done purposely.” (S.T. 39.) No additional findings were made between the time of the suppression hearing and the issuing of the Suppression Opinion to lead Judge Louik to the conclusion that the misdating was a deliberate act. While we are reluctant to undermine a determination of fact found by a lower court, we must do so when the finding is not supported by the record. Commonwealth v. Hall, supra. In the instant case we adopt Judge Louik’s finding stated in the record that the mistake was not deliberate. Though the standard of review used by the Superior Court in reversing the decision of the suppression court was not specifically raised by appellant, we feel it warrants our attention. The standard applied by the Superior Court was set forth in Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). In reviewing the ruling of the suppression court our initial task is to determine whether the factual findings are supported by the record. In making this determination, we are to consider only the evidence of the prosecu tion’s witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Goodwin, 460 Pa. 516, 522-23, 333 A.2d 892, 895 (1975). Id., 467 Pa. at 151-152, 354 A.2d at 889. This standard was applied where a defendant was appealing the adverse ruling of a suppression court. Here the Commonwealth is appealing the decision of the suppression court. Accordingly, they should be required to meet the same burden as a defendant who has lost below. Thus, where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. To hold otherwise would make a mockery of the suppression court and place an impossible burden on every defendant regardless of his success or failure at the suppression hearing. Application of this standard in the instant case, however, would not result in a- decision contrary to that of the Superior Court. The defendant offered no testimony at the suppression hearing and the Commonwealth’s uncontradicted testimony at the suppression hearing was as follows: Lt. Coughlin of the McKeesport Police Department prepared a search warrant for appellant’s residence on September 5, 1980, and it was issued that same day at 2:00 p.m. The defense pointed out that on the face of the warrant the date of issuance was September 6, 1980, at 8:00. The issuing magistrate testified that the error was made because the police informed him that they were going to conduct the search at that time (September 6) and he inadvertently put that date on the warrant. (S.T. at 24.) The magistrate further testified that he knew he signed the warrant on September 5, 1980, because that was a Friday, and he is rarely assigned on Saturdays. (S.T. at 24) The Superior Court did not feel this testimony supported a finding of purposeful misdating on the part of the magistrate. We agree. Having made the preceding determination we now must consider whether the misdating will prove fatal to the warrant. Pa.R.Crim.P. 2005 “requires that a search warrant specify date and time of issuance.” The omission of the date and time of issuance of the search warrant will be considered fatal only if it deprives the reviewing Court or the suppression court of the ability to review the propriety of the issuance and execution of the warrant. Commonwealth v. Schilling, 312 Pa.Super. 43, 458 A.2d 226, 228 (1983). In addition warrants which contain typographical errors have been distinguished from those which contain errors or omissions affecting the constitutional protections of the Fourth Amendment. Commonwealth v. Chinea, supra, 246 Pa.Super. 494, 496, 371 A.2d 944, 945 (1977). Analyzing the warrant from this perspective we do not feel that suppression of the evidence was required. Appellant has not been, nor does he offer any evidence to the effect that he was prejudiced by the misdating. Additionally, the police conducted the search well within the forty-eight (48) hours, and therefore, did not benefit from any extra time as a result of the error. Consequently, the Superior Court’s order reversing the order of the suppression court is affirmed. However, because the Suppression Court did not rule on appellant’s contention that the warrant was issued without probable cause we remand to the Suppression Court for disposition of the probable cause issue. ROBERTS, C.J., concurs in the result, as does NIX and LARSEN, JJ. ZAPPALA, J., files a dissenting opinion. . The Superior Court decision is reported at Commonwealth v. Hamlin, 302 Pa.Super. 86, 448 A.2d 538 (1982). . Pa.R.Crim.Pro. 2005 Each search warrant shall: (a) specify the date and time of issuance; (b) identify the property to be seized; (c) name or describe with particularity the person or place to be searched; (d) direct that the search be executed within a specified period of time, not to exceed two (2) days from the time of issuance; (e) direct that the warrant be served in the daytime unless otherwise authorized, provided that, for purposes of the Rule of Chapter 2000, the term "daytime” shall be used to mean the hours of 6 a.m. to 10 p.m.; (f) designate by title the judicial officer to whom the warrant shall be returned.

OPINION BY SENIOR JUDGE FLAHERTY. The City of Philadelphia (Employer) petitions for review of a decision of the Workers’ Compensation Appeal Board (Board) which affirmed the decision of a Workers’ Compensation Judge (WCJ) denying its Termination Petition and ordering it to pay Judy Quigley-Brown (Claimant) total disability benefits for a left knee injury. We affirm. On April 21, 1998, Employer issued a Notice of Compensation Payable recognizing that Claimant suffered an injury described as “Contusions/left hand & left leg, left wrist” that occurred on September 17, 1994. On June 5, 1998, Claimant filed a Penalty Petition alleging that Employer “issued a Notice of Compensation Payable on April 21, 1998, although the injury occurred on September 17, 1994. Athough [Employer] finally issued a Notice of Compensation Payable, benefits were unilaterally cut off on March 2,1998.” On July 13, 1998, Employer filed an Answer denying the allegations in the Penalty Petition. Aso on July 13, 1998, Employer filed a Termination/Suspension Petition alleging that Claimant returned to light duty work on July 4, 1996 with no restrictions and no residuals and that she returned to full-duty work on January 4, 1997 with no restrictions and no residuals. Claimant filed an Answer asserting that she still suffers from her work-related injuries. At the hearings before the WCJ, Claimant testified that she began working for Employer as a Corrections Officer on May 31, 1994. Claimant stated that, on September 17, 1994, she slipped and fell while walking down a flight of stairs. Claimant explained that she fell forward onto a concrete floor and hit her left hand and left knee. Claimant notified Employer, went to the hospital and was then paid injured on duty benefits for two days. The Employee Injury Report states, in relevant part, that Claimant injured her “left hand and elbow and left knee” and, under the “Part of Body Injured” section of the report, the boxes for “elbow”, “wrist”, “hand” and “knee” are checked. (Vesey Exhibit No. 1). The Emergency Department Record lists Claimant’s chief complaint as “fell, injured hand, knee” and lists the final diagnosis as “left hand/left ant[erior] foreleg contusion.” (Vesey Exhibit No. 1). Aso, a form titled “Referral to City Employee’s Compensation Clinic” states that Claimant fell down and hit her “left hand and elbow and left knee.” (Ves-ey Exhibit No. 2). Aterwards, Claimant returned to full-duty work. Claimant testified that, before this injury, she did not have any problems with her left knee. On September 27, 1994, Claimant was in the prison housing block when a fight erupted between two inmates. One of the inmates began chasing the other one up a flight of stairs, and Claimant was in pursuit. Claimant was at the bottom of the stairs when the inmate being chased pushed the other inmate down the stairs and onto Claimant. Claimant testified that she broke the inmate’s fall and that the inmate fell on the inside of her left leg and knee. Claimant notified Employer, sought medical treatment and missed a day of work. The Employee Injury Report states, in relevant part, that the inmate landed on Claimant’s “left leg on the inside from ankle to knee” and, under the “Part of Body Injured” section of the report, the boxes for “knee”, “lower leg” and “ankle” are checked. (Claimant’s Exhibit No. C-4). The Emergency Department Record states that the physician’s assessment was, in part, “no knee pain” and “knee non tender” and list the diagnosis as “contusion left leg.” (Exhibit D-Krum-2). Claimant returned to work after this inci dent but the pain in her knee had increased. Due to the nature of her work, Claimant was involved in several other altercations with inmates over the next two years that are not relevant to this case. In April of 1996, Claimant was assigned to be a “rover”. The rover in the prison continuously walks around the outside of the housing areas and the control booth. Claimant testified that this continuous walking and standing caused her left knee to hurt and she began to walk with a limp. On June 14,1996, Claimant experienced severe pain in her left knee and sought medical treatment. Claimant returned to work and her sergeant filled out a new injury report for her left knee and sent her to the City Compensation Clinic. At the clinic, a Dr. Diaz referred Claimant to Seth David Krum, D.O. Dr. Krum treated Claimant and performed physical therapy. Claimant received Injured on Duty benefits from June 14th, 1996 to July 5th, 1996 and then returned to light-duty work performing a job with no inmate contact. Claimant continued to see Dr. Krum and, in January of 1997, he recommended that she undergo arthroscopic surgery. However, Claimant had to go back to the compensation clinic and get permission from Employer for the surgery. At the compensation clinic, Claimant did not see Dr. Diaz, who is the doctor that normally treated her. Rather, Claimant saw Robert Harrington Woodson, M.D., who did not approve the surgery recommended by Dr. Krum. Claimant testified that Dr. Wood-son did not examine her but rather “came into the room and he sat down for an hour and 45 minutes and just did nothing but write on a paper.” (N.T. 4/06/1999, p. 26). Claimant then took this paper to Helen C. Vesey, who is Employer’s Occupational Safety Administrator. Claimant testified that Ms. Vesey “wrote her order across the top canceling out what [Dr. Woodson] wrote and said that I was continued light duty pending second opinion.” (N.T. 4/06/1999, p. 28). A second opinion appointment was scheduled for Claimant, but she missed it because she was sick. Claimant attempted to reschedule, but was told that only the compensation services could reschedule the appointment. However, no one ever did reschedule another appointment. In February of 1998, Claimant took a two week vacation because she was having pain in her left knee and she “thought maybe if I took off and just rested it, it would be fine.” (N.T. 4/06,1999, p. 30). On March 5, 1998, Claimant went to see Ms. Vesey again and asked to go to the compensation clinic. However, she was informed that she had to have a second opinion appointment. Claimant testified that eventually she was given another appointment with Dr. Woodson and it was her understanding after speaking to a Ms. Streeter at the compensation clinic that she was going to get a referral to Dr. Krum. However, the appointment with Dr. Woodson was similar to the previous one and he released her to full duty. Claimant testified that: “I tried to question [Dr. Woodson] as to whether or not Ms. Street-er had spoke with him, like I was lead [sic] to believe it happened. And he said “no.” That he’s the doctor and nobody tells him what to do.” (N.T. 4/06/1999, pp. 34-35). Apparently, Claimant tried to make an appointment with another doctor, but that doctor would not schedule an appointment without Dr. Woodson’s original release paper and Dr. Woodson would not give Claimant the original. In March of 1998, Claimant was unable to continue working due to left knee pain. She saw Dr. Krum again in July of 1998 at which time her knee did not hurt as much because of her limited activity. Claimant further testified that she wants to return to work and that she wants to undergo the surgery recommended by Dr. Krum. In support of its Termination Petition, Employer presented the testimony of Dr. Woodson, who first examined Claimant on September 5, 1995. Dr. Woodson testified that Claimant suffers from degenerative joint disease in both her knees and a Baker’s cyst that developed as a result of that disease and that this condition was not caused by either the September 17, 1994 or the September 27, 1994 work-related accidents. (N.T. 4/01/1999, p. 26). When asked whether Claimant has fully recovered from her injury, Dr. Woodson replied that: The patient was not disabled at the time of her release to full active duty nor was she disabled at the time of her discharge. We have no evidence to support any injury of the knee and her examination was normal and continued to be normal with the exception of her degenerative joint disease which was not active at the time of her last visit and causing her no disability when she was last seen. (N.T. 4/01/1999, p. 31). In defense of the Termination Petition, Claimant presented the testimony of Dr. Krum, an orthopedic surgeon who began treating Claimant in July of 1996. When asked to give his opinion as to the cause of Claimant’s knee problems, he testified that: I felt that she had degenerative disease, which was wear and tear over time, and as per her history and review of the notes, I feel that the two injuries that she had sustained and exacerbated her degenerative disease, again, possibly tearing the meniscus or worsening the chondral region, but it’s still my opinion if we were able to arthroscope her, we would have a definitive diagnosis. (N.T. 3/30/1999, p. 26). When asked what effect the two September of 1994 incidents at work had on Claimant’s pre-existing degenerative disease, Dr. Krum stated that: It’s still difficult to say exactly. Again, that’s why I say if we would have scoped her, all this would be settled right now. It’s possible that she had torn the cartilage from those described injuries; it’s also possible that she did more damage if there was damage to the chondral surface previously. (N.T. 3/30/1999, p. 29). By decision and order circulated on December 7, 2000, the WCJ accepted the testimony of Claimant as credible because her “testimony is not inconsistent with the September 17, 1994 Employee Injury Report, the Referral to City Employee’s Compensation Clinic, the September 27, 1994 Employee Injury Report and the September 27, 1994 Triage Report.” (Finding of Fact No. 26). The WCJ also accepted the testimony of Dr. Krum as more credible and persuasive than the testimony of Dr. Woodson. Based on these credibility determinations, the WCJ found that Claimant sustained a work-related exacerbation of pre-existing joint disease of the left knee on September 17, 1994 and September 27, 1994 and that Employer failed to sustain its burden of proving that Claimant fully recovered from her work injury as of January 4, 1997. Further, the WCJ concluded that Claimant failed to prove that Employer violated the Workers’ Compensation Act (Act). Accordingly, the WCJ denied the Penalty Petition and the Termination Petition and ordered Employer to pay Claimant total disability benefits beginning on March 6, 1998. Employ er appealed to the Board, which affirmed the decision of the WCJ. This appeal followed. On appeal, Employer argues that the decision of the Board is not supported by substantial evidence and that the Board erred as a matter of law in affirming the decision of the WCJ because the WCJ in effect granted benefits for a left knee injury when no claim petition for such injury was filed by Claimant and no NCP was issued by Employer acknowledging such an injury. Furthermore, Employer argues that because no claim petition was ever filed for this injury, Claimant’s claim for benefits for a left knee injury is barred by the statute of limitations. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products, Inc.), 721 A.2d 1152 (Pa.Cmwlth.1998). In performing a substantial evidence analysis, this court must view the evidence in a light most favorable to the party who prevailed before the factfinder. Id. Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder’s decision in favor of that prevailing party. Id. Furthermore, in a substantial evidence analysis where both parties present evidence, it does not matter that there is evidence in the record which supports a factual finding contrary to that made by the WCJ. Rather, the pertinent inquiry is whether there is any evidence which supports the WCJ’s factual finding. Id. It is solely for the WCJ, as the factfinder, to assess credibility and to resolve conflicts in the evidence. In addition, it is solely for the WCJ, as the fact-finder, to determine what weight to give to any evidence. Id. As such, the WCJ may reject the testimony of any witness in whole or in part, even if that testimony is uncontradicted. Id. It is with these principles in mind that we consider this challenge. Initially, it is important to review the responsibilities of employers under the Act when an employee is injured. Section 406.1(a) of the Act, which was originally added by Act of February 8, 1972, P.L. 25, as amended, provides, in relevant part, that: The employer and insurer shall promptly investigate each injury reported or known to the employer and shall proceed promptly to commence the payment of compensation due either pursuant to an agreement upon the compensation payable or a notice of compensation payable ... The first installment of compensation shall be paid not later than the twenty-first day after the employer has notice or knowledge of the employe’s disability. 77 P.S. § 717.1(a). Section 406.1(c) of the Act also provides that the employer shall promptly notify the employee if it is going to deny that the injury is work-related. In addition, the 1993 amendments to the Act added Section 406.1(d), which provides that an employer may issue a notice of temporary compensation payable, without admitting liability, when it is unsure as to the compensability of an employee’s injury. An employer can also file a “medical only” NCP when the claimant does not suffer a loss of earning power but does require medical treatment. See Waldameer Park, Inc. v. Workers’ Compensation Appeal Board (Morrison), 819 A.2d 164 (Pa. Cmwlth.2008). In this case, we are presented with a situation where Claimant sustained two injuries to her left leg at work in September of 1994. Claimant notified Employer of these injuries and she received medical treatment. However, Employer failed to follow the mandates of Section 406.1 of the Act by not issuing a notice of compensation payable or denial. The problems in this case as to the nature of the injury and whether Claimant’s claim is barred by the three-year statute of limitations stem from this failure. By failing to immediately issue a notice of compensation payable or denial, the exact nature of Claimant’s injury remained undefined. However, Employer continued to place Claimant on paid leave when necessary and pay her medical bills. Then, almost four years after Claimant’s work-related injuries, Employer filed a NCP describing Claimant’s injuries only as a contusion to the left leg, hand and wrist and shortly thereafter filed a Termination Petition after Claimant filed a Penalty Petition. This case then proceed to litigation before the WCJ. After considering all the evidence presented, the WCJ determined that Claimant suffered a work-related exacerbation of her pre-existing degenerative joint disease of the left knee on September 17, 1994 and September 27, 1994. Accordingly, the WCJ granted Claimant total disability benefits as of March 6, 1998, which is the date she credibly testified that she was no longer able to continue working because of that injury. Employer, citing Commercial Credit Claims v. Workmen’s Compensation Appeal Board (Lancaster), 556 Pa. 325, 728 A.2d 902 (1999), argues that the WCJ erred by failing to confine her analysis of the Termination Petition to those injuries accepted in the NCP. However, the principle set forth in Commercial Credit is meant to be used by employers as a shield to prevent claimants from alleging other unrelated injuries at the 11th hour in workers’ compensation proceedings in an attempt to stop benefits for accepted work-related injuries from being terminated. That is not what happened here. In this case, Employer is attempting to use this principle as a sword to stop Claimant from receiving benefits for her left knee which is, of course, part of the left leg which Employer has acknowledged as being injured. Therefore, Commercial Credit does not apply and, because Employer acknowledged a left leg injury, we find it of no consequence that Claimant did not file a Claim Petition alleging a left knee injury. Additionally, with regard to Employer’s argument that Claimant’s claim for benefits is barred by the statute of limitations, Section 315 of the Act provides that: In cases of personal injury all claims for compensation shall be forever barred, unless, within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition as provided in article four hereof. 77 P.S. § 602. However, “for the purposes of filing a claim petition, the payment of medical expenses for a work-related injury tolls the running of the statute of limitations until three years following the most recent voluntary payment of medical benefits.” Levine v. Workers’ Compensation Appeal Board (Newell Corporation), 760 A.2d 1209, 1213 (Pa.Cmwlth.2000). See also Berwick v. Workmen’s Compensation Appeal Board (Spaid), 537 Pa. 326, 643 A.2d 1066 (1994) and Bellefonte Area School District v. Workmen’s Compensation Board (Morgan), 156 Pa.Cmwlth. 304, 627 A.2d 250 (1993) (medical benefits are “compensation” as that term is used in Section 315 of the Act). Because Employer paid Claimant’s medical expenses, the statute of limitations was tolled through March of 1998. Thus, Claimant timely raised the issues regarding her work-related injuries when she filed the Penalty Petition in June of 1998, as this was less than three years after the most recent payment of compensation benefits by Employer in the form of the payment of medical bills. Therefore, Employer’s statute of limitations argument must fail. Therefore, we conclude that the WCJ did not err by denying the Termination Petition and ordering Employer to pay Claimant total disability benefits beginning on March 6, 1998, which is the day that Claimant could no longer continue working due to her left knee injury. Accordingly, the order of the Board is affirmed. ORDER AND NOW, August 15, 2003, the order of the Workers’ Compensation Appeal Board docketed A00-3339 and dated August 27, 2002 is hereby AFFIRMED. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2606. . This court’s appellate review over an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. Republic Steel Corporation v. Workmen's Compensation Appeal Board (Petrisek), 537 Pa. 32, 640 A.2d 1266 (1994). . A contusion is an injury to the tissue without laceration and is more commonly called a bruise. Merriam-Webster’s Collegiate Dictionary 252, (10th ed.2000). . Employer also argues that the WCJ issued conflicting findings when she accepted the testimony of Claimant as credible but also found the testimony of Helen Vesey more credible wherever Claimant’s testimony was inconsistent with Ms. Vesey’s testimony. We fail to see any inconsistency. Ms. Vesey maintained Claimant’s safety file and she testified about the information in that file. The fact that the WCJ accepted the testimony of the custodian of that file as more credible than Claimant to the extent there was any inconsistency is of no consequence and has no bearing on the main issue in this case.

The opinion of the Court was delivered by Kennedy J. The first error in this case is an exception to the opinion of the court in which it was tried, admitting the defendants to read in evidence to the jury a certified copy from the recorder of the county, of a release purporting to have been executed and given by John Heilman, the plaintiff, to Abraham Heilman, one of the defendants, for the legacy, to recover a part of which this suit was brought. The release of which the certified copy was given in evidence, appearing from the face of the copy not to “ have been executed before at least two competent subscribing witnesses,” is clearly not within the provisions of the act of assembly of the fifteenth of April, 1828, and therefore the certified copy of it from the recorder of the county was not admissible in evidence under that act. But it has been contended that it is embraced by the previous acts of assembly, providing for the recording of deeds and conveyances, or writings made of and concerning lands lying within the state. The act of 1715, which is the first on the subject, declares that “ all bargains and sales, deeds and conveyances of lands, tenements and hereditaments, in this province may be recorded,” &c. after having been acknowledged or proved in the manner therein prescribed. Theact of 1775, directs the recording of “ all deeds and conveyances, which from and after the publication thereof shall be made and executed within this province of or concerning any lands, tenements or hereditaments in this province, or w'hereby the same may be any way affected in law or equity." And by the sixth section of this act, the recorder is directed to make an entry in a book which he is required to keep for that purpose, “of every deed or writing brought into his office to be recorded,” showing here by the use of the term “ writing,” as I apprehend, that it was not intended to confine or restrict the meaning of the term “ conveyances” used in the first section, which 1 have recited in part, to deeds, so that conveyances, although not made under the hands and seals of the parties respectively executing the same, “ of or concerning any lands, &c. or whereby the same may be any way affected in law or equity,” may be recorded after having been proved or acknowledged in the manner prescribed by any of the various acts providing therefor, and copies thereof certified under the seal of the recorder’s office, according to the fifth section of the act of 1715, “ shall be allowed in all courts where produced, and are thereby declared and enacted to be as good evidence, and as valid and effectual in law as the original,” &c. Besides it is the more reasonable to give this construction to this act, making it embrace writings not under seal as well as those that are; for only three years before the legislature passed the act against frauds and perjuries, which makes a writing signed by the party though not under his seal, sufficient to pass his interest in lands. From these acts of the legislature taken collectively, I think it is pretty evident that the “ deeds and conveyances, or writings” therein mentioned and authorised to be recorded, must be understood to mean such as pass or create an interest or right of some kind in land, unless indeed it be mortgages, which are expressly mentioned in other parts of the act of 1715. But a release or an assignment of a mortgage I do not consider as embraced. This presents then the question, is a release of a pecuniary legacy charged upon land, such a deed, conveyance or writing as passes or creates any right or interest in or to the land upon which it is charged 1 It does not consist of land, nor call for it; it is a certain amount of money, and cannot without consent or agreement be paid or satisfied in any thing but money. It is to be sure charged upon land in this case, which was devised by the testator to Abraham Heilman, one of the defendants, whom he directed to pay the legacy in question. It is therefore only at most a lien upon the lands. Now a lien even upon personal property is said to be neither a jus ad rem nor jus in re although it gives the party a right of retaining the goods until his demand shall be paid. Meany v. Head, 1 Mason’s Cir. Court Rep. 319. If this proposition be true in respect to goods, as no doubt it is, its truth as to lands is still much more apparent, where it does not even give a right to hold or retain the possession of them. No one ever supposed that the release of a judgment which was a lien upon the land of the releasee, or that the receipt -of the plaintiff therein given to the defendant for the payment of it came within either the letter or meaning of our recording acts; yet the legatee has no more right to, or interest in the land upon which his legacy is charged, than the plaintiff in the judgment has to or in the lands of the defendant bound by it. And that such had ever been the universal understanding of the meaning of the recording acts until the fifteenth of April, 1828, when the legislature passed the act already mentioned, is shown very clearly by the terms of it. This act directs that “ any release or other instrument in writing being evidence of the payment or satisfaction of any legacy charged upon lands, tenements or hereditaments, and also any release or other instrument in writing, given to any executor, administrator, assignee, trustee or guardian, whether relating to real or personal estate, if such release or other instrument in writing, shall be under seal, and shall have been executed before at least two competent subscribing witnesses, •and shall also have been acknowledged, or the execution thereof proved, in the manner provided by the existing laws for the acknowledgment or proof of the execution of deeds and conveyances of lands, tenements and hereditaments, in order to authorize the same to be recorded, may in case such release or other instrument in writing, relates to real estate, be recorded in the office far recording of deeds in ■the county where such real estate may be situate, &c. and copies or exemplifications of such releases or other instruments in writing under seal, acknowledged or proved and recorded as aforesaid, being examined by the recorder, and certified under the seal of the proper •office, which the recorder or keeper thereof is thereby required to do, shall be allowed, as well in all courts where produced as elsewhere, and are thereby declared and enacted to be as good evidence, and as valid and effectual in law as the original releases, or other instruments in writing under seal would be, if duly proved by the subscribing witnesses thereto, and the same may be shown, pleaded and made use of accordingly.” The passage o'f this act so far as it relates to the releases of legacies charged upon lands, would have been unnecessary had 'they been included in the recording acts passed previously ; and had it been then understood that they were embraced, they would no doubt have been omitted. Seeing that the copy •of the release given in evidence in this case, is not embraced and provided for by any of our recording acts, it is manifest that it was not admissible in evidence upon any principle of the common law. The court were therefore wrong in receiving it. The second error is an exception to the opinion of the court, in admitting to be read in evidence the record of a judgment and the proceedings thereon at the suit of ¡¡Vichólas Mütenberger against Abraham Heilman, one of the defendants in this case, and the devisee of the land charged with the legacy in question, showing that the land had been taken in execution and sold as his property by the sheriff, in the month of January, 1823. That this judgment, and the proceedings under it, including the ■sheriff’s sale of the land charged with the payment of the legacy in 'this case, were admissible and competent evidence, cannot, according to the doctrine laid down and established by this court in Barnet v. Washebaugh, 16 Serg. & Rawle, 410, and M‘Lanahan v. Wyant, 1 Penn. Rep. 95, be doubted; and ought not now to be questioned. It was evidence of the highest character to show that there had been a judicial sale of the land, and therefore not liable to the objection that it was not the best evidence that the nature of the thing admitted of; and in the next place, according to the cases cited, went to show that the land was thereby discharged of the legacy, and therefore not liable for the payment of it in the hands of J. C. Becker, one of the defendants in this case and the purchaser at the sheriff’s sale; which proves the pertinency and the important bearing of it upon the issue as respected Becker. It is said that the legacy in this case had not become payable at the time the land was sold by the sheriff, and therefore it was unlike to the cases cited. One hundred dollars however of it, according to the plaintiff’s own statement o,f the case, had become so, and another hundred dollars within a few days of it, so that as to one hundred dollars of the plaintiff’s claim, there is not even the shadow of a difference, which is sufficient to make the evidence competent and admissible. But it appears to me, that the whole of the legacy charged upon the land in this case, falls within the principle decided in the cases of Barnet v. Washebaugh, and MLanahan v. Wyant. By the terms of the will, I consider it in effect a bequest of two hundred pounds to John Heilman, to be paid to him by Abraham Heilman, the devisee in fee of the land, in instalments of one hundred dollars each; the first instalment to be paid in three years after the death of the testator, and the like sum of one hundred dollars every five years thereafter, until the whole of the two hundred pounds should be paid. It is not like the case of an annuity, or rent charged upon land during the life of the party, or for any other indefinite period, which has been spoken of, and about which 1 give no opinion. The amount of the bequest in this case is certain, and the times of payment became fixed immediately upon the death of the testator. The amount or value of the legacy was therefore capable of being reduced to a sum certain at any intermediate time before it became payable, that a judicial sale might happen to be made of the land. It is evident from the face of the will, that the remoteness of the times fixed thereby for the payment of the legacy, was done for the accommodation and benefit of the devisee of the land, who was to pay it; and that it was made a charge upon the land, for the-better security and advantage of the legatee. I can perceive no essential difference between the legacy charged in this case upon the land, and the case of a judgment bond, had it been given by Abraham Heilman and been entered up against him, so as to become a lien upon his land, by which he had bound himself to pay to John Heilman one hundred dollars on the first of April, 1818, and the further sum of one hundred dollars every five years thereafter, until the full sum of two hundred pounds should be paid. This latter case must have occurred frequently in principle, and, as I apprehend, in no case of the kind has it ever been determined that the lien of the judgment was not discharged by the judicial sale of the land, although made before the money became payable upon the judgment. Wherever the real amount or value of the lien or charge upon the land is capable of being reduced at any time to a gum certain in money by mere calculation, and is of a pecu niary character, I can perceive no sufficient reason for distinguishing it from the case where it is a sum certain and payable at or before the time of sale. If it were to be held that lands about to be sold under judicial process, must be sold subject to all liens upon them which have not become payable at or before the sale, it would not only be attended with great inconvenience, but would very much depress the prices that will be given on such sales, which everybody knows will continue to be sufficiently low at the best. If such a doctrine were to be established, a lien having only a single day to run at the time of the sale, would not be discharged by it; for there is no principle by which we can distinguish between a day and a year, or between one and ten years, in such cases. The third error is, an exception to the opinion of the court in admitting to be read in evidence the record of a judgment obtained against Abraham Heilman, for two hundred dollars, upon a bond in favour of John Heilman, bearing even date, as appeared from a recital of it in the declaration, with the date of the release, as appeared from the copy thereof given in evidence. If the original release itself had been produced and given in evidence, after having given evidence of its execution, the record of this judgment might, perhaps, have had some bearing upon the cause, in order to support the release, by showing the consideration given for it, as it appeared to be a transaction of the same date. Judgment having been rendered, I think the record of it was not only evidence of the fact that the judgment was had, but also of its amount, and of the consideration or cause of action for which it had been rendered, which, as appeared from the declaration which formed a part of the record of the judgment, was a bond. I am therefore not prepared to say, that there was any error in admitting this judgment to be read in evidence to the jury, had the original release been properly given in evidence. The fourth error is an exception to the answer of the court to the first point submitted by the plaintiff’s counsel, upon which the court was requested to instruct the jury, “ that thelegacy was a charge upon the land, and that the sheriff’s sale, under the conditions on which it was sold, did not divest the lien.” In reply to this the court told the jury, “ that the sheriff’s vendee took the land discharged of the lien of the legacy, unless it was sold subject to the lien ; and in the opinion of the court there was no exception as to this lien in the conditions of sale.” That the court below was right in directing the jury that the sheriff’s sale of the land discharged it from the lien'of the legacy has been already shown in what I have said upon the second error; and as to the conditions upon which sheriffs shall make judicial sales of land, 1 will merely observe, that so far as the rights and interests of the parties concerned therein are connected with the terms and conditions upon which such sales are to be made, and may be affected by them, the law has prescribed the terms and conditions, and it is not in the power of the sheriff, without the consent of all the parties concerned, to alter or change them, to the prejudice of any. The sheriff of himself has no power or authority to say that the land shall be sold subject to one lien and discharged from another. The rights and preferences of the lien-creditors are all established by law, and each has a right to require payment of his demand from the sheriff, out of the money arising from the sale according to the seniority of his liens. In what I have just said, I do not include mortgage-creditors who are placed on a footing peculiar to themselves by a late act of assembly. The fifth error, whieh is the only remaining one that has been insisted on, is an exception to the charge of the court to the jury, on the second point submitted by the plaintiff’s counsel; which was, to charge the jury, “ that John Heilman was incompetent to release the legacy given by the will of Christian Heilman, deceased, more especially as Abraham Heilman was one of the executors, and bound to guard the interests of the legatees.” To this the court answered, “ that John Heilman had a right to receive what his father had left to him, and he had a right to discharge his interest under the will in this case, if he was capable of managing his affairs.” From the terms in which this second point is drawn up by the plaintiff’s counsel, it seems to me that the only question involved in it, was one of fact, proper to be left to the jury to be decided by them, that is, whether John Heilman possessed sufficient strength and soundness of mind to enable him to release his right to the legacy; and that the court below might have contented themselves in their answer, with leaving it as such to be settled by the jury. It is probable, however, that the discussion before the court and jury in regard to this point, took a much wider range than is expressed in it as reduced to writing, for the court in their answer speak of the nature of the legacy, and say that John had a right to receive it, and could therefore release it, if capable of managing his affairs. And in the argument before us, the character of the legacy has been introduced and objections made to John’s being able to release it on account of its peculiar nature. If the legacy be vested as the court below, from their answer must have considered it, then these objections are clearly groundless. That it is vested, and was so intended by the testator, is sufficiently manifest from the terms and whole tenor of the will itself. It appears from the will, that the testator had six children, who are all mentioned by name in it. To his son Abraham he gives certain specific articles of his personal estate, and the whole of his real estate, out of which he directs Abraham to pay one thousand pounds, to his other five children, John (the plaintiff), Catharine, Magdalene, Elizabeth and Rachel, in the following manner: “to Catharine one hundred dollars one year after my death ; to Magdalene one hundred dollars two years after my death; to John (the plaintiff) one hundred dollars three years after my death; to Elizabeth one hundred dollars four years after my death ; to Rachel one hundred dollars five years after my death; the above payments to be yearly paid till they amount to one thousand pounds, to be paid the above legatees.” And in a subsequent independent clause, the testator adds, “ It is fuither my will and desire, that my son John (the plaintiff) receive no principal, but receive the interest as it becomes due.” To Abraham it is a specific bequest of certain articles of the testator’s personal estate, and a devise of the whole of his real estate, minus one thousand pounds; and to his other five children it is in effect a pecuniary bequest of two hundred pounds to each of them, to be paid by Abraham, in instalments of one hundred dollars each, commencing with the payments thereof at the times respectively appointed for the payment of the first hundred dollars to each respectively, and to be followed by a payment of one hundred dollars to him or her every five years thereafter, until each shall have received his or her two hundred pounds. And the subsequent clause in the will, expressing the will and desire of the testator that John should receive no principal, but the interest as it became due, is not to be construed as curtailing or lessening in amount the legacy previously given to John, putting him barely upon an equal footing with his sisters, but as cautionary and directory to Abraham, the devisee, to withhold payment of the principal, under circumstances that would be likely to make it of no benefit to John to receive it. The plain intent of the testator appears to have been, that Abraham should pay one thousand pounds to his other children, and that each of the latter should receive equal portions of it. Why should we nullify the express previous bequest of the principal to John, by the subsequent clause? For if the testator had not intended that John should have the benefit of the two hundred pounds for himself and his children, as well as each of the daughters, why has he expressly declared that he should, and pointed out so expressly the different periods at which it should be paid? I do not consider the subsequent clause so completely incompatible with the payment of the principal to John, and his representatives, as to overthrow it, for, generally, where the interest of a legacy is given to or in trust for the legatee, without any qualification, the principal will be considered as bequeathed also. 2 Roper on Leg. 331. In the case of a devise of realty, words of limitation must be added to give more than an estate for life; but in the case of personalty, words of qualification are required to restrain the extent and duration of the interest. Prima facie, a gift of the produce of a fund, is a gift of that produce in perpetuity ; and is consequently a gift of the fund itself, unless there is something upon the face of the will, to show that such was not the intention. Adamson v. Armitage, 19 Ves. 416. Now even according to this rule, the payment of the interest to John not being restrained to any particular duration of time by the subsequent clause, amounts to a gift of it in perpetuity, which carries with it a gift of the principal itself I cannot perceive the slightest indication of intention on the part of the testator, from his will, that Abraham should have the principal at John’s death, which would be the inevitable consequence if it be not given by the will to John, It however has been contended, that inasmuch as the legacy here is charged upon land, until the time appointed for the payment of it by the will had arrived, and the legatee was found to be then living, it was not vested but contingent, and uncertain whether it ever would become payable: for if John, the legatee, had died before 1818, the time fixed for the payment of the first hundred dollars of the legacy, the whole of it would have sunk into the land or real estate devised to Abraham for his benefit, and the representatives of John would never have become entitled to receive any part of it; and therefore, at most, it could be released no further by John than it had become payable at the time of giving the release; and as the release alleged to have been given by him appears to have been made in May 1815, and as no part of the legacy became payable till April, 1818, it is no bar to the plaintiff’s recovery. It is true, (hat a distinction has prevailed between a legacy bequeathed to a legatee that is to be paid out of the personal estate, and one that is charged upon and to be paid out of the real estate, at a future day, to which the payment in either appears to have been postponed on account of the age of the legatee. The first has been held vested, in conformity to the rule of the civil law, which was adopted by the ecclesiastical courts, where cognizance was first taken of testamentary matters, and for sake of uniformity observed by courts of equity when they came to exercise a concurrent jurisdiction afterwards. 1 Roper on Leg. 376. But the second case never having fallen within ecclesiastical jurisdiction as it concerned the real estate, has been considered conditional or contingent, according to what was' deemed to be the rule of the common law. 1 Roper on Leg. 432, et seq. If, however, the payment of the legacy-charged upon real estate is not postponed on account of the age of the legatee or child, but in regard to the convenience of the person or circumstances of the estate charged with ■it, the legacy will be considered vested, and not conditional. 1 Roper on Leg. 436, et seq. Now it is impossible to avoid seeing, that the payment of the legacy in question was postponed exclusively for the convenience and advantage of Abraham, the devisee of the land, who is charged with the payment of it, which gives to it the character of a vested legacy; so that it never can sink into the land, but must be paid, in any event, either to the legatee himself, or to his assignees or representatives in case of his dying before the time appointed for payment. What then was there to prevent his releasing it at any time, if he were of sound mind and discretion ? It would scarcely seem to comport with free agency, to force a benefit upon a party against his will. There may be vested rights so completely personal as not to be assignable either in law or equity, but still they may be released. Indeed, I apprehend there are few if any vested rights that cannot be released by the person entitled to them. The circumstance of the release having been given (o Abraham Heilman, who by the will would seem to have been vested with the exercise of some discretion in regard to paying the principal of the legacy to John, but as he might seem to require it, is not of itself sufficient to set aside the release and render it inoperative, though it may be a reason why the jury should be satisfied that it was fairly obtained. Abraham Heilman was at liberty to pay to John the principal as'well as the interest of his legacy as it became payable ; or before, if he chose, because it was clearly to favour him that the time of payment was postponed. I have left out of view all that is said in the will of the three hundred pounds, the interest of which is directed to be paid by Abraham to the widow during her widowhood; and have declined to consider it as a part of the one thousand pounds ordered to be paid to the five children; because if such were the intention of the testator, it is not expressed with sufficient clearness to afford any certainty of it; and ought not therefore to be permitted, upon mere conjecture, to interfere with and to change what is clearly expressed. The judgment is reversed for the first error assigned, and a venire facias de novo awarded.

The opinion of the Court was delivered by Gibson, C. J. A formal conveyance may certainly be shown to be a mortgage by extrinsic proof, while a formal mortgage may not be shown to be a conditional sale by the same means. In the one case, the proof raises an equity consistent with the writing, and in the other would contradict it; which seems to be the principle of Woods v. Colwell, 3 Watts 188. Was the quality of the evidence unexceptionable in other respects ? Betwixt the grantor and the grantee, the admissions of the latter would be clearly competent; and though the offer was not restricted to admissions before the latter had conveyed to his co-defendant, none else were actually given to the jury. But the admissions were those of a party of record, and therefore, unexceptionable in any view. As to the proof of knowledge before the co-defendant had ¡rurchased, it is sufficient to say, it was not pretended that he has paid the entire purchase money; so that the error, if there were one, was in an immaterial part of the inquiry. But proof of an agreement to indemnify the co-defendant against disturbance from this particular quarter, would be proof of notice by one competent to give it. The exceptions to evidence were, therefore, properly overruled. The exceptions to the charge are like those that preceded them. It is too late to say that what was intended to be security for a loan, may become a conditional sale by the accidental form of the transaction; or that an agreement to make it such in default of payment at the day, shall not be relieved against; or that the jury are not the proper judges of the intention, or that a purchaser with a part of the purchase money in his hands, may be protected beyond reimbursement. These are elementary matters not open to discussion. The only original thing in the cause, and it is not of difficult solution, is the effect of the lease from one of the defendants to the grantor, under whose title the plaintiff claims, which is said to be a decisive circumstance, either to rebut the alleged mortgage originally, or to dissolve the relation created by it, if it ever existed; and that it is matter of law for the court. But why should the relation of landlord and tenant be thought inconsistent with that of mortgagor and mortgagee ? Without it, a mortgagor is an occupant liable to be turned out at a moment’s warning; and it is hard to imagine why a stipulation for a term certain, at a rent equivalent to the interest, may not be reconciled to the intention of the principal contract. So far as interpretation was concerned, the court was the arbiter, and had there been a question about the nature or extent of the covenants, it must have decided it; but the object of the arrangement and the indications to be answered by it, were extrinsic, and for the jury. Nothing presented by this multifarious assignment of error, calls for correction. Judgment affirmed.

The opinion of the Court was delivered by Gibson, C. J. The English courts give an unlimited effect to possession as an index of title. In Douglass v. Whitney, and Daniel v. Davidson, 16 Ves. 249, where the doctrine attained its maturity, it was settled that the possession of a tenant is notice of his actual interest, whether as a lessee or a purchaser. The principle may seem to have been pushed, in these instances, to the verge of propriety; yet where the occupant has not an opportunity to register his deed, or a deed to register, nothing short of it could protect him. In Pennsylvania every written title may be registered ; and where an occupant announces but one of his titles, he does an act which, for its tendency to mislead, ought to postpone the other. By exhibiting a conveyance to which, by his own showing, his possession may be referred, he does what he can to turn a purchaser from the direct path of inquiry. The party for whose protection registration is intended would be more misled by the use of it than if the occu pant had pointed to his possession alone, as that would have led him to a particular examination of the foundation of it; and when the occupant therefore points the attention of the public to a particular conveyance by the register he abandons every other index. An exception to this might be the case of possession taken under a parol contract partly executed, which is not susceptible of registration ; yet if it were the title mainly relied on, why register another, when, if neither were registered, the possession would be notice of both? In Plummer v. Robinson, 6 Serg. & Rawle 179, the registered title was a mortgage, the other a covenant for a purchase which was susceptible of registration ; and it was held, in accordance with the principle indicated, that as the possession was consistent with the registry, the subsequent purchaser was not bound to inquire further. Whether the decision would have been different had the purchase of the equity of redemption been by parol, I pretend not to say: perhaps the principle indicated would have been equally applicable to it. It is this. The tenant’s possession is notice of title in every form; the registry of a particular title is notice of that alone, and would be useless for any purpose but to restrict the generality of the notice from possession. It is therefore an indication that the occupant has narrowed his general to specific notice; and were he not bound by it, he might with impunity do an act to mislead one who is presumed to have used every means of information accessible to him so far as the security of his title is concerned—but no further. By the English principles of notice a purchaser is presumed to have known nothing which lay out of the course of his title; and I see nothing in our registry acts by which he is presumed to have known any thing which lay not in it, or was not connected with it. They raise a violent presumption that he saw all that a prudent man would see; and he is consequent^ presumed to have examined every perfect registry which might affect him; but no presumption beyond that can be admitted to prejudice or benefit him. Finding a conveyance on the register which may account for the tenant’s possession, he may suppose the possession to be a badge of it and seek no farther. But is a purchaser under a judgment which carries back the inception of his title to the date of the lien supposed to have searched the register’s office for the debtor’s will? Presumptions are founded in habitudes established by experience of the usual and natural course of things; and I know not how it could concern one purchasing paramount to the will to inquire about it. All the world is not presumed to have seen a registry or record merely because it is such, but only those whom it behoves to look at it. A purchaser is presumed to have seen the registry of a previous conveyance, because, as he might.be affected by it, it would be his business to see it; and there the presumption ends: but here the purchase was of an earlier title. Moreover, though the act of 1775 declares that a deed unregistered at the end of six months shall be postponed to a subsequent deed registered before it; and though a subsequent pur chaser from heirs or devisees of the first grantee is within its protection on the principle of Powers v. M’Ferran, 2 Serg. & Rawle 47, yet a devisee himself, standing in no higher equity than his devisor, is not. A will prevails not against an unregistered deed ; and as it is unnecessary for the grantee to look at it, he is not presumed to have seen it. Extreme caution might possibly require him to follow out the course of the title in order to guard against surprise by the intervention of a purchaser from the debtor’s heirs or devisees; but here it is impossible that there could be such a claimant, for the defendants are not in the category of purchasers of an unregistered title. Though a judgment creditor be not a purchaser within the recording acts, a purchaser under his judgment has all the qualities of one, by relation, from the date of the lien; and his title being thus of record, and contemporaneous with the judgment, is paramount to all conveyances or incumbrances subsequently attempted. A purchaser at sheriff’s sale, therefore, having no concern with the debtor’s subsequent acts, is not presumed to have been acquainted with them; and it is to be remembered that here the purchaser could have been misled only by actual knowledge of the will; of which there was no other proof than what might be supposed to be derived from the registry of it. As to its having been a positive act calculated to deceive, it is sufficient for the argument that it may not have been a voluntary one. It was the occupant’s duty, as an executor, to prove the will, even though he elected not to take under it. The registry being out of the way, then, what have we? We have an occupancy prior in origin to the ancestor’s death ; and would it be reasonable for a purchaser to infer from it a seisin by descent in order to excuse him for having omitted to inquire whether it might not have originated in a purchase? It might be natural to infer a seisin by descent from an entry after the death ; and it is equally natural to infer that one who entered as a tenant had not changed the quality of his possession ; yet in the cases first quoted it was held that the mere probability of a fact is not enough to telieve a purchaser from the trouble of inquiring into the truth of it. But if the presumption of seisin by descent were permitted to excuse ihe supineness of a purchaser in any case, it would be rebutted by the origin of a possession shown to have been in the ancestor’s lifetime. It is true that a father sometimes gives his son a farm as an outfit, but more usually on a. contract of purchase, obliging him to pay a part of the value for owelty of partition, or to raise portions for daughters; and the exceptions to it are too few to rebut the presumption of a purchase from the possession. This presumption, as it is a wholesome one, ought not to be easily overthrown. The duty of inquiring into the foundation of a notorious possession is not a grievous one, and it is soon performed. Why, then, should a purchaser be suffered to act on probabilities as facts at the risk of any one but himself, when a moderate share of attention would prevent misconception or loss ? The doctrine of constructive notice is undoubtedly a sharp one; but it is not more so in regard to a notorious possession than it is in regard to a registry. Nor is it less reasonable; for it certainly evinces .as much carelessness to purchase without having viewed the premises, as it does to purchase without having searched the register. At all events, it exists here, in respect to possession, almost as fully as it does in England; and in respect to the case before us, I perceive nothing in the registry of the will, or the relation of the occupant to the decedent, which ought to restrict it. On the point of actual notice, however, the direction is unexceptionable. The witness who warned the purchasers had not an interest to entitle his warning to respect. He was the plaintiff’s brother, and his own land was selling on the same execution ; but neither consanguinity nor community of burthen gives a right to interfere. In Ripple v. Ripple, 1 Rawle 391, it was thought that an uncle might give notice as the next friend of an idiot destitute of a committee or guardian; ¿but that was on the score of necessity ; and even he was shown to have had a particular, though remote, interest of his own. In Kerns v. Swope, 2 Watts 75, the English rule that information by a stranger, or even a general claim by a party, may be disregarded, was recognized and asserted : and the law of notice would be brought to a perilous pass if it were relaxed. The purchasers, therefore, had constructive, but not actual notice. Judgment reversed, and a venire de novo awarded.

The opinion of the Court was delivered by Kennedy, J. The first error assigned, is an exception to the opinion of the court below, sustaining the challenge of the defendant to Josiah Jones, being sworn or affirmed as a juror to try the issue, on account of his being the tenant of Thomas Elder, Esq., a stockholder in the bank, and therefore one of the plaintiffs. Challenges to the polls, in capita, being exceptions to particular jurors, are reducible to four heads, according to Sir Edward Coke, 1 Inst. 156; propter honoris respeclum; propter defectum; propter affectum, and propter delictum. With the first we have little, if any thing, to do here: of the remaining three heads, the exception taken to the juror, called in this case, if it be a good cause of challenge, must be regarded as falling under the second, propter affectum; that is, for suspicion of bias or partiality. “This,” says Sir William Blackstone, 3 Comm. 363, “may be either a principal challenge, or to the favour. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour; as that a juror is of kin to either party within the ninth degree, &c., &c.; that he is the party’s master, servant, counsellor, steward, or attorney, or of some society or corporation with him; all these are principal causes of challenge, which, if true, cannot be overruled; for jurors must be omni exceptions majares.” Sir William Blackstone does not profess to enumerate all the causes of challenge under this head; he only mentions some of them, by way of example and illustration; and they are very sufficient to show, that the juror ought not to stand in any relation to the party, arising either from contract or otherwise, that would carry with it prima facie evident marks of suspicion of favour, such as steward, which is one of the relations mentioned. But can it be doubted that the relation of tenant is not still much more intimate, and likely to produce a disposition upon his part to favour his landlord, than that of steward, or some of the other relations mentioned. Every man feels that it would be expecting too much of a tenant, that he should be perfectly indifferent to the interest of his landlord, which he may readily conceive is in some degree connected with his own; and that he would be capable, notwithstanding, of judging impartially between his landlord and another person. We therefore think that this exception cannot be sustained, and the court were right in setting the juror aside. The second error is also an exception to the opinion of the court in admitting the deposition of John Forster, in evidence, on behalf of the defendant. There was no objection to the manner and form of taking it, nor to its being read, on account of the absence of the witness himself, nor to the want of any requisite diligence to procure his attendance; the only objections raised were, first, as to his competency, generally, on the ground of his being liable also to pay to the bank, the plaintiffs, as indorser of the note, the amount thereof, to enforce the payment of which this action was brought against the defendant as the maker, and not as to his competency to prove the facts testified to by him in his deposition. The only plea put in was payment, and the issue tried between the parties was upon that plea; the giving of the note to General Forster, the witness, therefore, was admitted, and the endorsement of it over to the bank was not denied. The first question, then, is, was General Forster interested in establishing the payment of the note? And again, if he was, could the verdict and judgment here be given in evidence on the trial of the action pending against him by the bank, as the endorser of the note? That he was interested in making it appear that the note was paid, can admit of no doubt; for if the bank were paid the amount of the note, it at once determined all right on their part to maintain a suit either against the defendant, as the maker, or himself as the endorser thereof. It cannot be pretended that they could have a right to demand payment twice, or to receive a double satisfaction upon it. It is clear, then, that General Forster was deeply interested in the question of payment. But a mere interest in the question, involved in the issue, is not sufficient to exclude him as a witness, or his evidence in favour of the affirmative side thereof, unless he should have it in his power thereafter to make it available or beneficial to himself in the suit brought against him. The general rule in England seems to be, that it is no objection to the competency of a witness, that he is also a party to the same bill or note, unless he be directly interested in the event of the suit, and be called in support of such interest, or unless the verdict, to obtain which his evidence is offered, would be admissible evidence in his favour in another suit. If the verdict will not necessarily affect his own interest, he is a competent witness; and though his testimony, by defeating the present action on the bill or note, will probably deter the holder from proceeding in another action against the witness, yet that only affords matter of observation to the jury, as to the credit to be given to his testimony. Bent v. Baker, 3 Term Rep. 36; Jordaine v. Lashbrooke, 7 Ibid. 601; Smith v. Roger, Ibid. 62; Jones v. Brooks, 4 Taunt. 464; Bayl. 241; 2 Stark. Ev. 179. In conformity to this rule, a prior endorser of a note has been held to be a competent witness for the maker to prove that it was paid. Charnington v. Miller, Peake’s Rep. 6; Humphrys v. Moxon, Ibid. 52; Bayl. 242; Stark. Ev. 180, though Adams v. Lingard, Peake’s Rep. 117, would seem to be contra. Then would General Forster have a right to give the verdict and judgment in this case, to procure which his testimony was received in evidence on the trial of the suit pending against him? It is obvious, that if he could not be permitted to use the verdict and judgment given here on the trial of the action against himself, he cannot, in a legal point of view, be said to derive any benefit therefrom. The rule, in regard to giving verdicts between private parties in evidence, requires that the parties thereto should be the same as in the proceeding, or action in which the verdict is offered as-evidence, and that One. fact found by it should also be the same. This rule seems to be founded partly upon a principle of natural justice, that no man shall be bound by the act or admission of another to which he was a stranger, and consequently ought not to be bound, as to a matter of private right, by a judgment or verdict to which he was not a party, where he could make no defence, from which he could not appeal, and which may have resulted from the negligence of another, or may even have been obtained by means of fraud and collusion. So in justice, neither ought any one to be bound by a verdict, although he was privy to it, but when his adversary was not also a party, and consequently where the verdict may have been founded upon the evidence of that adversary himself, who had an interest in obtaining a verdict for the purposes of evidence; for as he cannot give direct evidence upon the subject, he .ought not to make use of his own evidence by circuitous means. And besides, it is said, that a verdict on a matter of private right in such case, ought not to be received as evidence, because the person who could have received no prejudice from it, had it been given the contrary way, ought not to derive any benefit from it when it turns out to be in his favour; and because a judgment operates by way of estoppel, and estoppel must be founded on mutuality. Duchess of Kingston’s case, 11 St. Tri. 261; Gilb. L. Ev. 31; 4 M. & S. 479; 1 Stark. Ev. 213, 214, 220. It being clear that General Forster was not directly interested in the event of this action, because whatever it might be, he could neither be released from, nor subjected to any liability whatever by it. In short, because he could neither gain nor lose thereby, then from the principles mentioned above, which seem to be incontrovertibly established, it is equally clear that he cannot give in evidence, on the trial of his own suit, the verdict which has been given here; consequently he would have been competent to prove a direct payment of the note, according to the English authorities, and perhaps here, too, if made after the note fell due. But, from the tenor of his deposition, that does not appear to have been the object for which his testimony was given or received. If it had any .relevancy to the issue at all, it was to show that the debt, for which the note in suit was given, had been paid, or at least in equity and fair dealing ought to be so considered, by an appropriation of the proceeds of the Shorb and Lyon notes, according to the agreement, which he testifies was made with the bank when, or before, they were discounted. This was, in effect, to prove that the note was given for a debt previously paid, or in other words, without consideration, and therefore ought not to be paid again. And although want of consideration might have been shown under the plea of payment, as between the original parties, or against an endorser who had given no consideration for the note, yet the question arising here is, was General Forster a competent witness to prove it? Not withstanding General Forster may have been a competent witness to prove a direct payment of the note, or a discharge of it, growing out of facts which took place subsequently to the execution of it, yet according to the decision of this court in Stille v. Lynch, 2 Dall. Rep. 194, he could not be permitted to give evidence tending to show it was given without consideration. It was there held that the payee and endorser of a promissory note, who had afterwards obtained his certificate as a bankrupt, could not be received as a witness to prove that the note had been given without any consideration, in an action between the endorser and the drawer. That case is in all respects like the present, and cannot be distinguished from it. Stille v. Lynch would seem to have been decided upon the principle of Walton v. Shelly, 1 Term Rep. 300, which certainly has prevailed, and been recognized here ever since, so far as regards negotiable instruments, which have been actually negotiated in the usual course of business, and has been confined strictly to them. Pleasants v. Pemberton, 2 Dall. 196; 1 Yeates 202; Baring w. Shippen, 2 Binn. 165, 168; M’Ferren, 1. Serg. & Rawle 102; Blagg v. Phœnix Ins. Co., 3 Wash. C. C. R. 5; Baird v. Cochran, 4 Serg. & Rawle 399; Hepburn v. Cassel, 6 Serg. & Rawle 113; Bank of Montgomery v. Walker, 9 Serg. & Rawle 236; Griffith v. Reford, 1 Rawle 196; Gest v. Espy, 2 Watts 268, 265; Bank of Pennsylvania v. M’Calmont, 4 Rawle 311. The court below therefore erred in admitting the testimony of General Forster to be read to the jury. The third error is an exception to the opinion of the court in admitting the check of the defendant, upon the plaintiffs, for the amount of the note in suit, to be read in evidence. If the defendant had had the amount of the check at the time, the 11th of December 1834, deposited with the plaintiffs in their bank, he would unquestionably have had a right to draw such check, appropriating his money on deposit with the plaintiffs to the payment of his note, which they then held. If, however, he-had no money on deposit with them at that time, he could have no claim to check for any; and without having given some evidence, at least, previously, going to show that he had money to the amount of the check, passed to his credit in the bank, he would not have been entitled to give it in evidence; but having, previously to offering the check in evidence, shown by the testimony of Mr Wier, a clerk or teller in the bank, that six thousand dollars had been passed to his credit on the 13th of December 1833, and it not appearing but what that sum still stood there to his credit, without having been drawn out or appropriated in any way by him, until after the check was offered and admitted in evidence, we cannot say that the court erred in permitting it to be read to the jury. The fourth error is also an exception to the opinion of the court; in overruling a question put by the plaintiffs to Mr. Wier, a witness called by the defendant, in their cross-examination of him, after he had been examined by the defendant, in chief. Mr Wier, by his testimony in chief for the defendant, had proved, as already mentioned, that on the 13th of December 1833, six thousand dollars had been placed to the credit of the defendant in the bank, upon the check of General John Forster, drawn in his favour, for the proceeds of the Lyon & Shorb notes, which had been discounted by the bank, conditionally, as they alleged. The question proposed by the plaintiffs in their cross-examination of him, was to ask, what disposition had been made of the money thus placed in the bank to the credit of the defendant, which he claimed as subject to his order. This was objected to by the defendant’s counsel, as not being proper in the course of a cross-examination, and thereupon the court overruled the question. It will be observed that in connection with the testimony given by the witness in chief, for the defendant, the latter had just offered and read in evidence, his check for the amount of the note in question, and the protest made by the notary for the non-acceptance of it by the bank. Now, if the witness knew that all the money spoken of as having been passed to the credit of the defendant in bank, had been appropriated by him, or with his consent, had been applied to the discharge of other debts owing by him to the bank; the witness, of course, in answer to the question proposed to be asked by the plaintiffs, would have said so, and thus have shown that the drawing and presenting of the check by the defendant, amounted to nothing, that it was of no more effect than a piece of blank paper. In short, it was only leading to what they might have required, by their cross-examination, the same witness to have stated, if he knew it, the precise state of the defendant’s account in bank at the time the check was drawn by him and presented; and had he proved that defendant had no money in the bank, or balance coming from it to him at that time, before the check was offered in evidence, I do not see clearly upon what ground he could ever have claimed to be permitted to have read it to the jury, and certainly much less how it could have availed him any thing. That was the point of time at which he was bound, in order to make his check available, to show that he had funds there sufficient to meet it; and showing that he had funds in the bank a year before that, raised only a presumption that they were still there; but being a presumption merely, it was competent for the plaintiffs to repel it by their cross-examination of the same witness. The question proposed to the witness, was calculated to do this. The court therefore erred in overruling it. The fifth and last error is an exception to the charge delivered by the court to the jury. Because the court left it as a question of fact to be decided by them, whether the note was not paid out of the proceeds of the Lyon & Shorb notes, and erred in telling the jury that the question was, “ what was the agreement between the parties in relation to the appropriation of the proceeds of Shorb & Lyon’s notes, If those proceeds were to be applied to the dis charge of the notes on which John Forster was endorser, as John Forster testifies, there would seem to be money enough in bank of those proceeds, to discharge this note; and in that event it may be considered paid. But if the proceeds of these notes of Shorb & Ijyon, were to be applied to the liabilities of John E. Forster to the Harrisburg Bank, in that event, no part of the note in suit is paid. It would seem, as you find this fact, your verdict should be for plaintiff or defendant."’ Now it would seem as if the court below, in the hurry of the trial, mistook the important question of fact raised by the evidence, upon which the whole case would seem to turn, and ought to have been decided by the jury. That question is this: was the appropriation of the proceeds of Shorb & Lyon’s notes, made by the bank, either expressly or impliedly consented to and acquiesced in afterwards by the defendant? Because if it was, there was not even the slightest colour for objecting to the payment of the notes in question here. Indeed, the evidence that there was such acquiescence, not only on the part of the defendant, but likewise on the part of General Forster, seems to be so clear and satisfactory, as to render the original agreement in regard to the appropriation of the proceeds of the Shorb & Lyon notes, made before they were discounted, wholly immaterial, and of no importance whether it can be ascertained with certainty or not. It is abundantly clear, from the evidence, that the bank, from the instant of time that the notes were discounted, and ever afterwards, refused to appropriate the proceeds of the notes otherwise than has been done. It appears that, immediately after they were discounted, the defendant, when he called at the bank with General Forster’s check for the proceeds of them, and wished to make a different appropriation of the proceeds, he was told by the cashier, that the proceeds must first be appropriated to the debts then actually due aud payable by him to the bank, amounting to a sum a little over five thousand five hundred dollars; that the notes were discounted upon this condition. The note then in the bank, which included the debt in the note in suit, had some time to run, and was not, therefore, required to be paid either in part or in whole, by the proceeds. The defendant refused at first, to accede to the terms upon which he was informed the notes were discounted, ¡jind left the bank, taking the check with him. He also wanted then to take up the notes of Shorb & Lyon, but was informed by the cashier, that he could not get them as the bank had received them from General Forster, and therefore they could only be returned to him or his order. He returned immediately to the bank, and signified that he must have eight hundred dollars of the proceeds; but the balance that would have remaiued after paying his debts, which had at that time become payable to the bank, was not quite equal to five hundred dollars; the cashier therefore told him he could not draw for more than that balance. He said something like that he must have eight hundred dollars, that he could not do well without it; when the cashier told him that he might check for the eight hundred dollars, if he chose, and he would himself make his account good for the deficiency until he could replace" it. The defendant then, without making further objection, deposited the check from General Forster, for the six thousand dollars, that it might be passed to his credit; and according to the proposal of the cashier, drew his check on the bank for the eight hundred dollars, which was paid to him. This, according to the evidence of the cashier, was probably on the 13th of December 1833; and on the 20th of the same month, he wrote a letter to the defendant, inclosing his account as it stood in the bank, showing the appropriation that had been made of the six thousand dollars. No reply was received from the defendant objecting to it; nor was any objection ever made to the appropriation, excepting the first time he came to the bank after the notes were discounted, when he refused to leave General Forster’s check, and take credit for it, to be applied as the bank proposed, until the month of December 1834, one year afterwards, when he wanted to pay the note in question,by his check. During this year of interval, instead of objecting to the appropriation, or asking to have any part of the proceeds of the notes of Shorb & Lyon applied to the discharge of the debt now in question, which existed previously thereto, but was then included in a note drawn by the defendant, and endorsed by General Forster to the bank, who was the payee in it for fourteen hundred dollars, which did not become payable until the February following of 1834, they both went on as if they had been perfectly satisfied with the appropriation made of the six thousand dollars by the bank; and on the 17th of February 1834, renewed the note for ninety days. Again, on the 21st of May, they renewed it for another ninety days, at the expiration thereof, the defendant paid seven hundred dollars in reduction, and on the 22d of August 1834, they gave their note for the residue, being seven hundred dollars, payable in ninety days, which is the note here sued for. After all this, it is difficult to imagine how the defendant and his endorser could have evidenced by their conduct more strongly their assent to, and acquiescence in, the appropriation that was made of the proceeds of the notes of Shorb & Lyon. It seems to be more satisfactory and conclusive evidence of the fact, than even that of a single witness would have been, testifying to their having given their express assent, without any thing having been done by either of them afterwards, tending to prove" that the fact was so. It seems impossible to draw any other conclusion, than that of a most perfect acquiescence on their part, from their acts and conduct, which speak here more significantly, perhaps, than words, without something beside, would have done. Their conduct, as it would appear,is whollyirreconcilable and inconsistent with every thing but acquiescence. If the debt sued for here was to have been paid out of the proceeds of the notes of Shorb & Lyon, as it is now alleged by the defendant, why was the note containing it renewed by him after- wards, from time to time, for the space of a year, without asking anything of the kind to be done, unless it were, that by the appropriation made of the money, he considered that there was no part-of that fund remaining unappropriated in bank wherewith it could be paid. Why did he previously accept of the cashier’s three hundred dollars, if he did not intend to acquiesce in the appropriation then proposed by the bank, to be made of the six thousand dollars? Because it is plain that this was the condition upon which the cashier offered to.accommodate him, after telling him in effect, that he could derive no benefit whatever from the bank’s discounting the notes, excepting by the. appropriation of the proceeds thereof first to the payment of his liabilities in the bank, which were then named to him, and an estimate thereof made of the amount. It would be dangerous in the extreme, after such a lapse of time, and series of acts, as the evidence exhibits to have taken place and been done here by the defendant and his endorser, all tending to show their_ acquiescence in the appropriation of the money to permit the whole that has been done upon the faith of an acquiescence so induced to be unravelled and set aside. We therefore think there was error in the instruction of the court below to this court, in this respect. Judgment reversed, and a venire de novo awarded.

Opinion by Mr. Justice Bell, This appeal was taken from the judgment non obstante veredicto in favor of the defendant and additional defendant in an action of assumpsit. Plaintiff, Pittsburgh Steel Company, the present appellant, owned the property on which the construction was taking place. Plaintiff seeks indemnity for a sum it had been required to pay in settling an earlier action brought by an employee of the additional defendant (Eichleay Corporation) against plaintiff-appellant. Originally the plaintiff entered into a contract with defendant-Patterson for the installation by defendant of a blooming mill on plaintiff’s premises. The contract contained the following clause: “Insurance Clause: Contractor [Patterson] will indemnify, save harmless and defend buyer [the present plaintiff-appellant] from all liability for loss, damage or injury to person or property in any manner arising out of or incident to performance of this order and will furnish buyer with proper evidence that contractor is insured against such liability. “Contractor will indemnify, save harmless and defend buyer from any and all claims, demands or suits made or brought against buyer on account of any of the terms or provisions of any applicable workmen's compensation law and will furnish buyer with the proper evidence that contractor is insured against all liability made under such law.” Defendant-Patterson was to perform the electrical work. In order to complete the general construction and mechanical installation of the mill, Patterson entered into a contract with the additional defendant— Eichleay Corporation. The contract between Patterson and Eichleay contained the identical clause with respect to insurance which was in Patterson’s above-mentioned contract with plaintiff. Before any work was commenced on the mill, all the parties met and agreed upon certain safety precautions. Among the precautions to be taken were the installation by Patterson of red lights to warn when workers were in a position of danger, and the installation by Eichleay of blocks on the crane rails. In spite of these oral understandings or agreements these safety measures were habitually ignored by all of the parties. As a result of the negligent operation of a crane by an employee of the present plaintiff, one of Eichleay’s workmen was severely injured. He brought suit in a Federal District Court against the present plaintiff. Eichleay was joined as additional defendant. During the course of the trial but. before the jury rendered a verdict, the present plaintiff voluntarily settled with the workman-plaintiff for the sum of $87,615.54. The case was dismissed with prejudice. The present suit was thereafter commenced in the Court of Common Pleas of Allegheny County by the plaintiff (Pittsburgh. Steel Company) against Patterson for indemnity under the provisions of the herein-above mentioned contract. Patterson joined Eichleay as additional defendant. The jury returned a special verdict in favor of plaintiff and against both defendants in the sum of $129,326.62, which included legal fees, expenses and interest. Motions for judgment non obstante veredicto by Patterson and Eichleay were granted. This appeal followed the entry of judgment non obstante veredicto. Unquestionably the Workmen’s Compensation Act of June 2, 1915, P. L. 736, §303 as amended, 77 PS §481, precluded the injured worker from suing Eichleay, his employer. He was also prechided from suing Patterson, his statutory employer, under §203 of the Act. However, the present plaintiff (Pittsburgh Steel Company) as the property owner was not so insulated by the Workmen’s Compensation Act and was subject to suit in a common law action in trespass: McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424. Plaintiff’s principal contention is that under the broad indemnity clause above quoted, Patterson is un der a duty to indemnify plaintiff for sums paid by it to Eichleay’s injured workman even though plaintiff’s own negligence was legally the cause of the injury. Contracts indemnifying a party against his own negligence are valid: Siegel Co. v. Philadelphia Record Co., 348 Pa. 245, 35 A. 2d 408; Cannon v. Bresch, 307 Pa. 31, 160 A. 595. However, the law is well settled that the intention to include within the scope of an indemnity contract, a loss due to the indemnitee’s own negligence, must be expressed in clear and unequivocal language: Tidewater Field Warehouses, Inc. v. Whitaker Co., 370 Pa. 538, 88 A. 2d 796; Darrow v. Keystone Stores, Inc., 365 Pa. 123, 74 A. 2d 176; Schroeder v. Gulf Refining Co. (No. 2), 300 Pa. 405, 150 A. 665; Perry v. Payne, 217 Pa. 252, 66 A. 553. Cf. Siegel Co. v. Philadelphia Record Co., 348 Pa. 245, 35 A. 2d 408. Factually, the leading case of Perry v. Payne, supra, is almost on all fours with the instant case. In that case the contract between the parties contained a clause indemnifying the property owner “ ‘from, all loss, cost or expense . . . arising from accidents to mechanics or laborers employed in the construction of said work, or to persons passing where the work is being constructed.’ ” During the course of the construction one of the contractor’s workmen was killed through the negligence of one of the property owner’s employees. The property owner was compelled to respond in damages for the death. He then brought an action in assumpsit on the indemnity bond against the contractor. This Court affirmed the entry of a judgment of non-suit. In construing the contract clause in question this Court, speaking through Mr. Justice Mestrezat aptly said (pages 259, 260, 262, 263) : “The question presented here has not arisen or been determined in any of the reported decisions of this court. In other jurisdictions, however, the inclination is decidedly against construing a contract of this character as indemnifying the indemnitee against his own negligence; and it is there held that a contract, will not be so construed unless express language requires it. In Mynard, etc. v. Syracuse, etc., R.R. Co., 71 N.Y. 180, it is held that 'every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business, and hence the general rule is that contracts will not be so construed unless expressed in' unequivocal terms.’ In Mitchell v. Southern Ry. Co., 24 Ky. L. Repr. 2388, Mr. Justice Paynter, speaking for the court, says: 'If a doubt existed as to its (clause of indémnity) meaning, the court would resolve that doubt against the contention that the contract was intended to indemnify appellee against its own negligence. Every presumption is against such intention. . . In Perkins v. New York Central R.R. Co., 24 N.Y. 196, the court said: "A party who claims exemption from liability for the negligence of his servants or agents must undoubtedly base his claim upon the express words of his contract. It will not be presumed in his favor.” ’ "In Manhattan Ry. Co. v. Cornell, 54 Hun. 292, affirmed by the court of appeals of New York, 130 N.Y. 637, a contractor, employed to construct an extension to the station platform of a railway, indemnified the railway company against ‘all loss, cost or damage . . . from any damages arising from injuries sustained by mechanics, laborers or other persons, by reason of accident or otherwise.’ During the progress of the work a laborer in the employ of the contractor was killed by an engine of the railway company for which the widow of the laborer recovered damages against the company. Suit was then brought by the company against the contractor on his indemnity contract, blit it was held that the contract did not indemnify the company against the negligence of its employees. In the opinion of the court it is said: ‘For, while the language of this part of the contract is very general, it cannot reasonably be so construed as to impose upon the contractors the obligation to protect the plaintiff against the carelessness or negligence of persons in its own employment. What the party designed and intended by this part of the agreement was to indemnify the plaintiff against liability for any. damages or injuries that might be sustained by persons in the employment of the contractors in the progress and execution of their work. . . There was no relation whatever existing between them (employees of the railway company) and the contractors, and it is not reasonable to suppose that in the use of this language, either the plaintiff or the contractors intended or understood the latter to be obligated to indemnify the plaintiff against the carelessness or misconduct of its own servants or employees.’ “We think it clear, on reason and authority, that a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it. The manifest purpose, in such cases, to indemnify against the injury which, under the circumstances, could reasonably be apprehended only from the action of the indemnitor or his servant, is a weighty consideration in construing indemnity contracts. The circumstances surrounding the parties, the one, the owner for whom the building is to be erected, and the other, the contractor who is to construct the building and hence from whose acts injury to persons and property may be anticipated, would seem to make the conclusion irresistible, that unless expressly stipulated in the contract the owner is not to be indemnified against his own negligence. In the case in hand the parties have not expressly stipulated against injury occasioned by the indemnitee’s own negligence, and we are satisfied, from the terms of the instrument read in the light of the circumstances surrounding the parties as well as the manifest purpose inducing the bond, that they did not intend to protect the indemnitee against his own or his servant’s negligence.” In the instant case the indemnity clause is expressed in broad general terms. However there is no clearly expressed or unequivocal language in the clause of indemnity to show that indemnification for its own negligence was intended. Moreover, plaintiff drew this contract “and therefore if its meaning is ambiguous or reasonably susceptible of two interpretations, it must be construed most, strongly against the party who drew it: Barium Steel Corp. v. Wiley, 379 Pa. 38, 44, 108 A. 2d 336; Betterman v. American Stores Co., 367 Pa. 193, 203, 80 A. 2d 66:” Prudential Insurance Company of America v. Goodman & Theise, Inc., 396 Pa. 367, 370, 152 A. 2d 664. Plaintiff relying on Tidewater Field Warehouses, Inc. v. Whitaker Co., supra, argues that where the language of the contract is not explicit the Court will look to the circumstances surrounding it and the object of the parties in making it. This is a correct statement of the law, but unfortunately for plaintiff it cannot help him here. The facts of the Tidewater case are clearly distinguishable from the material facts in the instant case. In Tidewater the indemnitor had complete possession and control of the premises and actually selected and employed the people working upon them, although the indemnitee had technical control of the employees while working there. While it is true that the indemnitee had one part-time employee on the premises, this employee was also in the employ of the indemnitor. Under these circumstances and conditions it was logical and reasonable for the Court to infer that the object of the indemnity contract was to save the indemnitee harmless from negligence by employees so selected and so employed. However, in the present case the facts are quite different. The indemnitee remained in possession of the premises. Its own employees continued working under its exclusive control. Under the construction contended for by plaintiff, Patterson and in turn Eichleay would be made insurers for acts of negligence over which they had or could have no control. Without more direct and unequivocal language in the contract, it is unreasonable to infer or conclude that the parties intended an indemnification of such magnitude. Plaintiff also contends that Patterson was impliedly obligated to indemnify it against its loss under the principles of restitution. This contention is devoid of merit. In Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A. 2d 368, speaking through Mr. Justice (later Chief Justice) Steen, we said (pages 325, 327-328): “. . . The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. . . “Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other. The universal rule is that when two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of them in a joint action or he may pursue any one of them and recover from him, in which case the latter is not entitled to indemnity from those who with him caused the injury.” Accord: Helz v. Pittsburgh, 387 Pa. 169, 127 A. 2d 89. In the case at bar the jury found and the record supports the finding that each party was actively and primarily negligent. Therefore, under the authorities above cited there is no implied right of indemnity arising outside of the contract. Likewise there is no right of contribution. Under the provisions of the Uniform Contribution Among Tortfeasors Act of July 19, 1951, P. L. 1130, §2(3), 12 PS §2083(3) : “A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.” Since there is no proof or even allegation in the present case that the release giren to plaintiff by the injured workman accomplished the release of Patterson or Eichleay, plaintiff acquired no right of contribution against them. Furthermore, if any right of contribution were enforceable by plaintiff against Patterson or Eichleay this could not be in excess of Patterson’s or Eichleay’s statutory liability under the Workmen’s Compensation Act: J. W. Brown, Jr. Equipment Rental Corp. v. Dickey, 397 Pa. 454, 155 A. 2d 836; Maio v. Fahs, 339 Pa. 180, 14 A. 2d 105. Judgment affirmed. The jury specially found that Eichleay’s workman was injured as a result of the failure by Patterson and Eichleay to employ the safety precautions agreed upon and the failure of the present plaintiff to enforce these safety precautions. Italics throughout, ours.

Opinion by Mr. Justice Kephart, Appellee was the owner of five blocks of land in the City of Pittsburgh on one of which was erected a manufacturing plant, consisting of a general office, machine shops, pattern, assembly, foundry, boiler and incinerator buildings. The buildings were composed mostly of brick, and covered 139,000 square feet of ground. The other blocks had built thereon dwellings, tenement houses and delivery yards. The City in 1927 decided to change the grade of the streets. The work was commenced in 1928 and took five years to complete. The property was originally on a level with the grade of the surrounding streets. After the grade was completed, the street was raised from 4% to 9 feet, the connecting streets being raised to conform to the new grade of the principal thoroughfares. The result was to leave appellee’s property in a hollow, making it impracticable to use it either for plant, residence or other purposes unless it was made to conform to the new grade. The cost of doing the latter work, if carried out, would have approximated'$250,000. Shortly after the work commenced, the Standard Stoker Company which had leased the property moved out. They had leased it for $70,000 a year. The total amount of rent collected during the five years of construction was $18,000. The plant as a manufacturing plant has since been razed and the land is unoccupied where the buildings stood. In the proceeding to recover damages, the jury awarded $173,600. The testimony on market value before and after varied with each witness. The city claimed that the property had been benefited by the change of grade. On the entry of judgment, the city appealed. In condemnation cases, to ascertain the damages accruing to an owner from the appropriation of his land or the consequential injury that may follow such appropriation, the usual and ordinary standard is the difference in the market value before and after taking. Estimates as to the costs of rebuilding specific items of property or injury to particular uses affected by the taking, are not recoverable or admissible as distinct items of damage, but such losses may become useful as elements bearing on the market, value before and after the appropriation. Opinions as to market value should be based on the general selling price of properties in the neighborhood, or on sums at which similar properties are held: Friday v. P. R. R. Co., 204 Pa. 405; Appeal of Penna. Co. for Ins. on L. & G. Annuities, 282 Pa. 69, 74; Fessler v. Schuylkill Haven G. & W. Co., 69 Pa. Superior Ct. 331; even if there is but one sale of property similarly situated or in the locality, the witness is competent to testify. If there are no sales of properties in the neighborhood, values of land may be shown by persons generally acquainted with the property whose knowledge and experience qualify them to form a judgment as to value. See note 3, post. In New York it has been held that offers to sell in the ordinary course of business may be the basis for an opinion of market value: Harrison v. Glover, 72 N. Y. 451. Option prices, fixed prior to the improvement or the occasion for taking testimony, have been held competent for disputing an opinion as to value: Appeal of Penna. Co. for Ins. on L. & G. Annuities, supra, at 76; Rea v. Pgh. Ry. Co., 229 Pa. 106, 119. Market value or damages may be established by the owner of the property, by expert witnesses, or by persons with knowledge and experience qualifying them to form a reasonably intelligent judgment as to value. An owner through personal knowledge of his property, with a reasonable opportunity to observe its area, the uses to which it may be put, the extent and condition of any improvements thereon, possesses sufficient knowledge from which to form an opinion as to the value of his own property. Such an owner may not be familiar with the general prices of property in the neighborhood, nor may he possess all the qualifications that would be required of others who testify as to value. Nevertheless, because he is an owner with a general knowledge of his property, he is a competent witness: Markowitz v. P. & C. R. R. Co., 216 Pa. 535, 537; Chauvin v. Sup. F. Ins. Co., 283 Pa. 397, 401; Whitekettle v. Ins. Co., 293 Pa. 385, 388; Barron’s Use v. Ry. Co., 93 Pa. Superior Ct. 559. An expert witness or a witness who is familiar with the property, must possess a general knowledge of the values of property in the neighborhood, sufficient to base an opinion as to market value. The standard of qualification for persons living in the immediate vicinity may not be quite as rigid as it is for an expert, but they should know generally the value of property in the vicinity. We have stated these rules at length not only because of their applicability but because of the turn which the case took at trial. Mr. Rowan, president of appellee company, one of the three witnesses who valued the property, was called as a witness to describe generally the conditions of appellee’s property affected by the change of grade, the buildings thereon, and the business connected therewith. He also stated that he knew the cost of two pieces of land which formed a part of that affected by the change. His description of appellee’s holdings was thorough and in detail. Without any further effort to ascertain his knowledge of the values of real estate in the vicinity, and whether he could express an opinion as to market valué, he was asked what was, in his opinion, “the market value of the property involved in this case as a whole before the raising of the streets.” The question was objected to because the witness was incompetent to testify. Had the objection been sustained, it would have forced appellee to a more extensive examination of this witness and no doubt his qualifications could have been shown. Had the objection been overruled, without more, or had it been suggested to counsel to cross-examine as to qualifications, appellant would have been in no position to complain. In either case he was required to cross-examine the witness as to his competency: Hoffman v. B. W. Coal Mining Co., 265 Pa. 476. But counsel were asked: “Do you have any authority for saying that an executive officer of the owning corporation is incompetent to testify? It is my im pression he is.” Knickerbocker Ice Co. v. Phila., 246 Pa. 84, was a case where the court below excluded the testimony of the president of an ice company on the ground that the “witness had not been shown to be an expert in real estate values.” On appeal we said, at page 88, that his testimony was not improperly excluded. “When the case is again tried it will be proper to show his competency as a witness familiar with the value of the property before and after the change of grade, and when this is done, if it be satisfactorily done, there can be no question as to his right to testify.” An examination of that case shows that he was president of a very small company. Mr. Rowan was not the owner of property; the Air Brake Company is a very large corporation owning-large areas of ground, and it becomes a matter of moment to ascertain that Rowan, its president, and a very important witness, knew sufficient of real estate values to enable him to testify. In permitting the president to testify as an owner he was placed in a special class of witnesses. It was immaterial then how much appellant might cross-examine, his lack of knowledge of real estate values would have been immaterial. As an owner he would have been a competent witness on the record before us. He had shown a sufficient familiarity with his plant, its location and business to qualify him, but this court has placed officers of corporations in the same category as witnesses other than the owner. As Rowan was but one of three witnesses as to value without having special qualifications, unless we overrule Knickerbocker Ice Co. v. Phila., supra, this case must be reversed. Had Rowan been cross-examined as to qualifications, it would have been brought out that he based his opinion on an option price: that could not furnish a basis for opinion evidence unless it further appeared there was a comparative relation between the option price and market value. Without this comparative evidence, an option price given some years before might be much higher than the value of the property at the time of the taking. See McSorley v. Avalon Boro. School Dist., 291 Pa. 252, 256, where replacement value was offered. We discuss briefly the remaining objections. After Bowan had testified as to value, he was asked in cross-examination to state whether he did not carry the property on the books of the company at $1,114,067.50, and not at $1,400,000. Having replied in the affirmative, he was asked if he did not use the former figure for tax purposes, with the further suggestion that the book value was used to avoid income tax. These questions were highly improper. The witness in his examination in chief had shown no basis for such cross-examination (Wissinger v. Coal Co., 271 Pa. 566), and had it been objected to, it should have been disallowed. It was an attempt to inject an idea into the case wholly foreign to the real issue. Not having been objected to, it was perfectly proper, after the assault that had been made on the witness’s testimony in chief, to ask the question in redirect examination which was asked by appellee’s counsel. The answer was nothing more than what could have been expected had the witness been asked as to a particular sale of a property. It was then the duty of appellant to cross-examine the witness as to whether the option price represented the fair market price. Appellant has argued that the option price was submitted as evidence in chief. Counsel are mistaken, as the record shows. It was in redirect examination, and, as we have indicated, proper under the circumstances. Evidence was submitted as to rental value of the property. We have not in this State established rental value as a separate basis for damages in realty cases. But as the jury returned a special verdict disallowing damages for this claim, we need not comment further on this evidence. Appellant complains of the admission in evidence of the actual rent received for the property during construction. There is no error in the admission of this evidence as reflecting on the market value of the property, but it is not admissible as an independent item of damages. Here is a piece of land formerly level with the street. The latter was raised from four to nine feet, interfering seriously with the renting of the property during the work of construction, and appellee did by this lose a large sum of money. Of course, appellant is not liable for all that loss, and the loss of rents cannot be shown as an independent item of damages, but it is an element to be considered in market value: Forster v. Rogers Bros., 247 Pa. 54, 64; Stone v. D., L. & W. R. Co., 257 Pa. 456; Lynn v. Dunmore Boro., 80 Pa. Superior Ct. 590, 593. Attention is called to the Act of April 21, 1915, P. L. 159. The testimony as to the cost of restoring the property by filling and building abutments, retaining walls, etc., is not admissible as an independent item of damage, but is admissible as bearing on the market value of the property. This has been amply sustained by numerous cases: Ry. Co. v. McCloskey, 110 Pa. 436; Harris v. R. R. Co., 141 Pa. 242; Dawson v. Pgh., 159 Pa. 317, 346; Patton v. Phila., 175 Pa. 88; Coons v. McKees Rocks Boro., 243 Pa. 340; Hill v. Oakmont Boro., 47 Pa. Superior Ct. 261. Of course, items speculative in their nature cannot be considered: Kleppner v. Pgh., etc., R. R. Co., 247 Pa. 605, nor may items of cost which bear no real relation to the question of market value: McSorley v. Avalon Boro. School Dist., supra. Judgment reversed, and a venire facias awarded. Railway Co. v. McCloskey, 110 Pa. 436; Pa. S. V. R. Co. v. Cleary, 125 Pa. 442, 452; Chambers v. So. Chester Boro., 140 Pa. 510; Harris v. R. R. Co., 141 Pa. 242; Dawson v. Pittsburgh, 159 Pa. 317; Patton v. Phila., 175 Pa. 88; Gorgas v. R. R. Co., 215 Pa. 501; Hamory v. R. R. Co., 222 Pa. 631; Coons y. McKees Rocks Boro., 243 Pa. 340; Kleppner v. Pittsburgh, etc., R. R. Co., 247 Pa. 605; Stone y. Delaware, L. & W. R. R. Co., 257 Pa. 456; Greenfield v. Phila., 282 Pa. 344, 355; McSorley v. Avalon Boro., 291 Pa. 252; Hill v. Oakmont Boro., 47 Pa. Superior Ct. 261; Lynn v. Dunmore Boro., 80 Pa. Superior Ct. 590; Jordan v. Clearfield Co., 107 Pa. Superior Ct. 441. See also Act of April 21, 1915, P. L. 159; Act of 1929, P. L. 1278, section 527, page 1354. Pgh. & L. E. R. Co. v. Robinson, 95 Pa. 426; Hope v. R. R. Co., 211 Pa. 401; Rea v. Pgh. Ry. Co., 229 Pa. 106; Appeal of Penna. Co. for Ins. on L. & G. Annuities, 282 Pa. 69, 74. Compare Wadsworth v. Mfr.’s Water Co., 256 Pa. 106. P. & R. Coal & Iron Co. v. Northumberland Co. Com’rs, 229 Pa. 460, 466, 467; White v. R. R. Co., 222 Pa. 534; Penna. Co. for Ins. on L. & G. Annuities v. Phila., 268 Pa. 559, 562; Wissinger v. Valley Smokeless Coal Co., 271 Pa. 566; Appeal of Penna. Co. for Ins. on L. & G. Annuities, 282 Pa. 69, 75.

Opinion by Mr. Chief Justice Kephart, The Borough of Mauch Chunk, a subdivision of Carbon County, was sued there for damages resulting from injuries sustained through the negligent maintenance of one of its sidewalks. It brought in as an additional defendant under the Sci. Fa. Act of April 10, 1929, P. L. 479, as amended, H. S. Shafer, a resident of Northampton County. Shafer, having been served in that county by deputization, attacks the validity of the service. The court below ruled against him and he appeals. The only question presented is whether in all actions an original defendant may secure service on an additional defendant no matter where he may he in the state and have him come to the county where the suit is instituted to defend. It cannot he doubted that the legislature has the power to authorize and compel the recognition of such service even though it would displace time-honored rules and cause serious inconvenience to the persons affected. In the consideration of this problem the pertinent legislation must.be carefully reviewed, for it is imperative that such service should not receive legal sanction unless there is a clear mandate from the legislature to that effect. The Sei. Fa. Act concerns not only actions based on negligence where two parties may be liable concurrently or jointly, but actions where the additional defendant may be alone liable or liable as endorsee on a promissory note or within the rule of respondeat superior. The Sci. Fa. Act of 1929 made no provision for service. It was followed by the Act of 1931, which gave to the defendant the same rights of service as the plaintiff had. Later, the Act of 1933, embodying all the features of the Act of 1931, was passed. It reads: “Any defendant, named in any action, may sue out, as of course, a writ of scire facias to bring upon the record, as an additional defendant, any other persons alleged to be alone liable or liable over to him.for the cause of action declared on, or jointly or severally liable therefor with him with the same force and effect as if such other had been originally sued; and such original defendant shall have the same rights in securing service of said writ as the plaintiff in the proceedings had for service of process in said cause. Where it shall appear that service of said writ on an added defendant cannot be obtained in the county wherein the action was instituted, service of such writ may be made by the sheriff of the county in which the action was instituted deputizing the sheriff of the county wherein such added defendant resides or where service may be had upon him under the existing laws of this Commonwealth in like manner as process may now be served in the proper county.” The common law rule in regard to service of process, established by centuries of precedent, has always been accepted as binding in this State. In an action in personam the process must be served personally within the jurisdiction of the court in which the action was commenced, upon the person to be affected thereby. This rule prevails, unless a statute clearly and definitely manifests that a different method as to service has been promulgated by the legislature. We stated in Davidson v. Bright, 267 Pa. 580, that statutes in derogation of the common law must be construed strictly and only such modification of the law will be recognized as the statute clearly and definitely prescribes. We have held that a statute will be interpreted to accord as nearly as possible with the rules existing at the time of its enactment (March v. Philadelphia and West Chester Traction Company, 285 Pa. 413, 415), and that, in interpreting a statute, we must observe the rule that it must be construed as an integral part of the whole structure affected and not as a distinct and separate matter having an independent meaning of its own: West v. Lysle, 302 Pa. 147, 150. In Gossard v. Gossard, 319 Pa. 129, we considered at length the purposes of the Sci. Fa. Act. We there stated that it was primarily remedial in its nature and its main purpose was to avoid multiplicity of suits. See Vinnacombe v. Phila., 297 Pa. 564. Statutes will not be presumed to make any changes in prior existing law beyond that which is necessary to carry out the purposes of the new legislation: Gratz v. Insurance Co. of North America, 282 Pa. 224, 234. In Gossard v. Gossard, supra, we expressly limited our decision to the facts there before us. It involved extraterritorial service in an action based on an automobile accident. We held that as the Vehicle Code of May 1, 1929, P. L. 905, gave plaintiff the right to extraterritorial service, the defendant was entitled to such right, but we expressly refrained from determining the effect of the Act of 1933 on other actions. That construction fits into the existing scheme of service as it permitted the original defendant, who can be sued in another county than that in which he resides, to serve his writ of sci. fa. on the additional defendant similarly in another county. But such conclusion in no way sustains the contention that the jurisdiction of the court issuing the original summons should, be extended in every cause of action to all other counties to bring in additional defendants. To extend the Act of 1933 would give to the original defendant rights not possessed by any plaintiff and is without justification. The words “the same right in securing service” as possessed by the plaintiff, while not defined or explained, clearly have some meaning and when matched with the concluding part of the act shows that the plain purpose of the legislature was to secure to a defendant the statutory right to service by deputization possessed by plaintiff under section 1208 of the Vehicle Code. That this is the logical and only purpose of this amendment cannot be doubted. We would violate all the above rules of construction if we were to impute to the legislature an intent to give defendants greater rights to service than those possessed by plaintiffs. We would offend the very words of the act which give only “the same right in securing service” as possessed by the plaintiff. These words must be entirely disregarded to hold as appellee contends. The reasons for restricting such rights apply alike to plaintiff and defendant. The legislature did not intend to invest defendants with unlimited rights of service, affording them opportunity to work great hardship and at the same time limit the right of plaintiffs. Had the legislature so intended, it could have made such intention definite and clear in view of the very radical change that was to be effected. The act under consideration confers on the defendant the same right to secure service as plaintiff; possesses under existing statutes and common law, but no more. The court below did not acquire jurisdiction over the person of the additional defendant and the service is stricken off with a procedendo.

OPINION SAYLOR, Justice. The issue presented is whether the Commonwealth may rely upon the death of an unborn child as the predicate for the crime of homicide by vehicle while driving under the influence. On June 29,1997, a car driven by Appellant, Jeffrey Robert Booth, went through a'stop sign and collided with a car being driven by Nancy Boehm. Both Mrs. Boehm, who was approx imately 32 weeks pregnant, and her husband, a passenger in the car, were seriously injured, and their unborn child died in the womb as a result of the blunt force trauma sustained by Mrs. Boehm. Appellant’s blood alcohol content was subsequently determined to be 0.12%. The Commonwealth charged Appellant with, inter alia, one count of homicide by vehicle, 75 Pa.C.S. § 3732, and one count of homicide by vehicle while driving under the influence (“homicide by vehicle/DUI”), 75 Pa.C.S. § 3735. In an omnibus pre-trial motion, Appellant asked the trial court to dismiss the charges of homicide by vehicle and homicide by vehicle/DUI on the ground that a fetus could not be the victim of such charges, as the law does not recognize a fetus as a person. The trial court agreed and dismissed the charges, citing as controlling precedent an earlier opinion from the same judicial district, Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (1992), aff'd, 434 Pa.Super. 719, 643 A.2d 705 (1994) (table). In Kemp, charges had been filed against a pregnant woman on the basis of her purported “delivery” of cocaine, through her own use, to her unborn child. The trial court dismissed the charges, emphasizing the requirement that penal statutes be strictly construed. See 1 Pa.C.S. § 1928(b)(1). The Commonwealth appealed the dismissal of the homicide by vehicle/DUI count to the Superior Court, and a divided panel reversed. See Commonwealth v. Booth, 729 A.2d 1187 (Pa.Super.1999). The critical issue, as the Superior Court majority recognized, centered on the definition of the term “person” in Section 3735(a) of the Vehicle Code, which defines the offense of homicide by vehicle/DUI as follows: (a) Offense defined. — Any person who unintentionally causes the death of another person as the result of a violation of section 3731 (relating to driving while under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the second degree____ 75 Pa.C.S. § 3735(a) (emphasis added). The majority acknowledged that, because Section 3735(a) is a penal statute, it was to be construed strictly, see 1 Pa.C.S. § 1928(b)(1), but explained that the principle of strict construction did not require the narrowest possible interpretation or permit an interpretation that disregarded evident legislative intent. See Commonwealth v. Highhawk, 455 Pa.Super. 186, 687 A.2d 1123, 1126 (1996). The majority noted further that, as Section 3735 does not define the term “person,” its use of the term was subject to the definition contained in Section 102 of the Motor Vehicle Code, which shall apply “unless the context clearly indicates otherwise.” 75 Pa.C.S. § 102. Section 102 defines “person” as “[a] natural person, firm, copartnership, association or corporation.” Id. (emphasis added). Turning to the Commonwealth’s assertion that a viable fetus is “a natural person” within the meaning of Section 102, the Superior Court majority acknowledged that, in criminal matters, the Commonwealth recognizes the longstanding “born alive” rule, which it defined as “the common law principle that only human beings ‘bom alive’ are independent persons within the meaning of the law.” Id. at 1189 n. 5. The majority determined, however, that in light of this Court’s decision in Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), the Commonwealth’s recognition of the “born alive” rule should cease. In Amadio, this Court had held that the estate of a stillborn child may institute a wrongful death and survival action for fatal injuries suffered while en ventre sa mere (that is, in the mother’s womb). See id. at 208, 501 A.2d at 1089. Among the reasons for its decision, the Court had cited the significance, for problems of proof, of modem advances in medical knowledge. See id. at 203, 501 A.2d at 1086. Conclud ing that the progress of medical science was as relevant in the criminal as in the civil context, and that “it [was] time for the courts of this Commonwealth to react to advances in medical science rather than ignore such progress,” Booth, 729 A.2d at 1190, the Superior Court majority held that “[v]iable fetuses not yet bom alive are ‘persons’ within the meaning of the criminal laws of general application in this Commonwealth.” Id. at 1190. The majority emphasized that its decision would not contravene or otherwise affect the Crimes Against the Unborn Child Act, 18 Pa.C.S. §§ 2601-2609, which created new criminal offenses, the victims of which are unborn children, or the Abortion Control Act, 18 Pa.C.S. §§ 3201-3220; rather, the decision would apply “only in cases where the criminal laws protect ‘persons’ in the most general terms.” Id at 1190. The dissent faulted the majority for failing to appreciate the significance of recent legislative pronouncements on the subject, including the Crimes Against the Unborn Child Act, see Booth, 729 A.2d at 1190 (Del Sole, J., dissenting), emphasizing that homicide by vehicle, DUI-related or otherwise, is not among the new offenses that the statute creates. More generally, the dissent expressed concern that the majority had impermissibly extended the criminal law on a common law basis. See id at 1191. We granted allowance of appeal in light of the public importance of the matter at issue. Such public importance requires that, at the outset, we make clear the nature, and the consequent limitations, of our review. As the Supreme Court of Illinois observed, in a decision addressing substantially the same issue, “[t]he extent to which the unborn child is to be accorded the legal status of one already bom is one of the most debated questions of our time....” People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203, 208 (1980). Two decades later, the debate continues. Weighing the substantive merits of the various positions in that debate is no part of our role in this matter. Rather, our role is to ensure that the issue before us is resolved in accordance with the settled principles that guide the criminal jurisprudence of this Commonwealth. Our analysis begins with the fundamental acknowledgment that Section 3735 defines a crime under the laws of Pennsylvania. See supra note 3. Prior to the enactment of Title 18 (the Crimes Code) in 1972, the Commonwealth’s criminal law was “a conglomeration of statutory law and common law-the latter filling the void in those areas where the former [was] silent.” Sheldon S. Toll, Pennsylvania’s New Crimes Code — The Commonwealth’s First New Criminal Code in More Than a Century, Pa. B.A.Q. 294, 296 (Mar.1973) (hereinafter Toll, Pennsylvania’s New Crimes Code ). The Penal Code of 1939, for example, provided that “[e]very offense now punishable either by the statute or common law of this Commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore.” 18 P.S. § 5101 (repealed) (emphasis added; footnote omitted). The common law “[could] be used to establish the offense itself or to define the scope of imprecise statutory drafting.” Toll, Pennsylvania’s New Crimes Code, Pa. B.A.Q. at 296. See, e.g., Commonwealth v. Redline, 391 Pa. 486, 492, 137 A.2d 472, 474 (1958) (observing that “[t]he definition of murder at English common law ... alone defines the crime in this State”). Since the adoption of the Crimes Code, however, no conduct constitutes a crime in this Commonwealth unless it is a crime under Title 18 or another statute. See 18 Pa.C.S. § 107(b). Stated differently, Pennsylvania is a “code jurisdiction”: it recognizes no common law crimes. See id.; see also Commonwealth v. Bellis, 497 Pa. 323, 328 n. 6, 440 A.2d 1179, 1181 n. 6 (Pa.1981); Booth, 729 A.2d at 1191 (Del Sole, J., dissenting); Toll, Pennsylvania’s New Crimes Code, Pa. B.A.Q. at 296-97. Necessarily, then, when the judiciary is required to resolve an issue concerning the elements of a criminal offense, its task is fundamentally one of statutory interpretation, and its overriding purpose must be to ascertain and effectuate the legislative intent underlying the statute. See 1 Pa.C.S. § 1921(a); Commonwealth v. Fisher, 485 Pa. 8, 12, 400 A.2d 1284, 1287 (1979). Moreover, penal statutes are to be strictly construed. See 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 879 (1988); Hill, 481 Pa. at 43 n. 6, 391 A.2d at 1306 n. 6. The need for strict construction does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded, see Wooten, 519 Pa. at 53, 545 A.2d at 880; Commonwealth v. Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986); Commonwealth v. Duncan, 456 Pa. 495, 497, 321 A.2d 917, 919 (1974), nor does it override the more general principle that the words of a statute must be construed according to their common and approved usage, see 1 Pa.C.S. § 1903(a); Hill, 481 Pa. at 43 n. 6, 391 A.2d at 1306 n. 6. It does mean, however, that where ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused. See Wooten, 519 Pa. at 53, 545 A.2d at 879. More specifically, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt. See Commonwealth v. Allsup, 481 Pa. 313, 317, 392 A.2d 1309, 1311 (1978); see also Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971) (observing that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity”). Significantly, a court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope. See Fisher, 485 Pa. at 13, 400 A.2d at 1287. Early in its opinion, the Superior Court majority acknowledged that its resolution of the matter at issue was to be guided by the principles of interpretation generally applied to criminal statutes. The court’s consideration of those principles was minimal, however; the determining factor in its resolution of the issue before it was the perceived desirability of extending the rationale of Amadio from the civil to the criminal law. In the court’s view, “the time had come” for the criminal justice system to expand its interpretation of the term “person” to encompass unborn children. We are unable to accept this reasoning, since determining whether the General Assembly intended for the term “person” as used in Section 3735 to include a fetus should have been, but was not, the lodestar of the Superior Court’s analysis. The precise issue before the Amadio Court was whether there exists a right of recovery under the Wrongful Death Act, 42 Pa.C.S. § 8301, and the Survival Statute, 42 Pa.C.S. § 8302, on behalf of a child who was stillborn as a result of injuries sustained en ventre sa mere. See id. at 201, 501 A.2d at 1085. Those statutes, as the Court noted, are remedial in nature and purpose and therefore should be liberally construed to accomplish their objectives. See id. at 205, 501 A.2d at 1087. See generally 1 Pa.C.S. § 1928(c); Centolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398, 406, 658 A.2d 336, 340 (1995). Previous decisions limiting the right to bring wrongful death and survival actions to those children bom alive — Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transp. Co., 420 Pa. 124, 216 A.2d 502 (1966); and Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964)-gave those statutes an inappropriately narrow reading, the Court explained. See id. at 205, 501 A.2d at 1087-88. Moreover, the Court reasoned, the decisions just cited were inconsistent with the principle, recognized by the Court in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960), “that a child en ventre sa mere is a separate individual from the moment of conception, and [may] sue for injuries received during gestation when the child is bom alive,” Amadio, 509 Pa. at 204, 501 A.2d at 1087, and with the body of medical knowledge underlying such principle, see id. If a child en ventre sa mere is an individual with the right to be free of prenatal injury, then, the Court continued, the child is also an individual when such injury causes its death, regardless of whether death occurs just before or just after birth. See id. at 204, 501 A.2d at 1087. Accordingly, this Court overruled the holdings of Scott, Marko, and Carroll, and extended to the estate and heirs of a stillborn child the right to institute survival and wrongful death actions, respectively, for fatal injuries suffered before birth. See id. at 208, 501 A.2d at 1089. The significance of the controlling statutes, and the importance of achieving a correct interpretation of those statutes, received still greater emphasis in the concurring opinion of Mr. Justice Zappala. See Amadio, 509 Pa. at 208, 501 A.2d at 1089 (Zappala, J., concurring). The Survival Act, Justice Zappala observed, did not create a new cause of action; rather, it abrogated the common law rule that an action abates on the death of a party. See id. at 215, 501 A.2d at 1093. Accordingly, where the potential plaintiff was a fetus, the fundamental question was whether there existed on behalf of the fetus a cause of action that would survive the plaintiffs death. See id. According to Justice Zappala, the focus of this Court’s reasoning in Sinkler was not the fact that the infant plaintiff was bom alive, but “the separate identities of the mother and child, and the concomitant possibility of separate and distinct injuries and damages.” See id. at 216, 501 A.2d at 1093. Justice Zappala cited, as a fundamental principle of tort law, that a cause of action accrues to an individual upon the occurrence of an injury causing damages; where such individual is a fetus, recovery of damages should not depend upon a “condition subsequent,” that is, whether the fetus is born alive. See id. at 220-21, 501 A.2d at 1096. Turning to the Wrongful Death Act, Justice Zappala explained that the purpose of wrongful death statutes in this and other jurisdictions was to reverse the apparent common law rule that recovery could not be had for a tortious wrong resulting in death. See id. at 228, 501 A.2d at 1100. In Justice Zappala’s view, this legislative objective would be frustrated if, having already held in Sinkler that a child in the womb may be the victim of a legally cognizable injury, this Court were to hold that the Wrongful Death Act does not apply where a child who has sustained prenatal injury is stillborn. See id. He perceived further support for such conclusion in the settled principle that “the cause of action contemplated by the statute is the tort which produces death and not the death caused by the tort.” Id. at 229, 501 A.2d at 1100 (quoting Centofanti v. Pennsylvania R.R. Co., 244 Pa. 255, 262, 90 A. 558, 561 (1914)). Emphasizing that “the statute is not of a class to be strictly construed but rather is remedial, to be ‘liberally construed to effect [its] objects and to promote justice,’ 1 Pa.C.S. § 1928,” 'id. at 230, 501 A.2d at 1100-01, Justice Zappala concluded that a wrongful death action on behalf of a stillborn child should be allowed under the statute. See id. at 230, 501 A.2d at 1101. In sum, Amadio is preeminently a tort decision. See Amadio, 509 Pa. at 208, 501 A.2d at 1089 (declining “to decide the criminal liability, if any, attendant upon causing the death of a child en ventre sa mere”). In that context, advances in medical knowledge were relevant because they served to identify the fetus as a separate individual and therefore, within the context of tort jurisprudence, as potentially a separate victim of negligence. The focus of the Amadio Court’s analysis, however, was not on the state of medical progress per se, but on the controlling statutes, the remedial nature of the same, and the consequent desirability of affording recovery, via the liberal construction of those statutes, to previously unacknowledged victims of tortious injury. Those factors, which favored the abolition of the born alive rule in civil cases, are, for the most part, absent in the criminal context. The Commonwealth contends, however, that the strictures inherent in the interpretation of a criminal statute may be avoided by treating the “born alive” rule as a common law rule of evidence rather than an element of a criminal offense, thereby rendering the rule subject to judicial modification or repeal. As an analogue, the Commonwealth cites this Court’s abolition of the “year-and-a-day” rule that precluded a prosecution for murder if the victim did not die within a year and a day of receiving the fatal blow. See Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501 (1960). The Commonwealth’s argument requires that we examine more closely both the bom alive rule and the Ladd decision. Preliminarily, we note that, prior to legislative activity in this area in recent decades, acceptance of the “born alive” rule was almost universal. See Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617, 621 (1970) (observing that, by 1850, the rule “had long been accepted in the United States”); Gyles, 313 So.2d at 801 (stating that “[t]he uniform authority in all American jurisdictions is to this effect”); Guthrie, 293 N.W.2d at 776 n. 1 (quoting the trial court opinion for the proposition that “[n]o appellate court of the United States or England has ever, as a matter of common law definition, treated a fetus as a person for the purposes of criminal law”); Soto, 378 N.W.2d at 629 (describing the rule as “well-established in the great majority of jurisdictions”); State v. Beale, 324 N.C. 87, 376 S.E.2d 1, 3 (1989) (asserting that “the overwhelming majority of courts which have considered the issue [have] concluded that the killing of a viable but unborn child is not murder under the common law”). Pennsylvania recognized the bom alive rule in Commonwealth v. McKee, 1 Add. 1 (Pa.1791), when this Court held that a woman could not be convicted of concealing the death of a bastard child absent “probable presumptive proof that the child was bom alive.” Id. at 2. In its simplest statement, the “born alive rule” prescribes that only one who has been bom alive can be the victim of homicide. Causing the death of a fetus, whether viable or not, was not considered homicide at common law. If, however, the fetus was born and then died of injuries inflicted prior to birth, a prosecution for homicide could be maintained. Requirements for proof of live birth were, moreover, stringent: “the fetus must have been totally expelled from the mother and have shown clear signs of independent vitality.” Amaro, 448 A.2d at 1259; see also Hollis, 652 S.W.2d at 62 (acknowledging that the prosecution had to prove affirmatively “not only that the child had breathed, because that might occur during birth, but that it had had a complete and seperate [sic] existence of its own after birth” (quoting Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014 (1936))); Morgan v. State, 148 Tenn. 417, 256 S.W. 433 (1923) (discussing requirements of severed umbilical cord, independent circulation, and respiration). See generally Forsythe, Homicide of the Unborn Child, 21 Val. U.L.Rev. at 595-605; Buelow, To Be and Not to Be, 71 Temp. L.Rev. at 972-74; Stephanie Ritrivi McCavitt, Note, The “Bom Alive” Rule: A Proposed Change to the New York Law Based on Modern Medical Technology, 36 N.Y.L. Sch. L.Rev. 609 (1991). At least two reasons, both deriving from the state of medical knowledge in centuries past, may be discerned for such requirements. First, owing to the high incidence of prenatal mortality and stillbirths, it was exceedingly difficult to determine that a fetal death or stillbirth had resulted from a defendant’s act and not from natural causes. Second, because the fetus was considered to be dependent upon, and therefore essentially a part of, its mother, a prosecution for homicide could not be maintained unless it could be shown that the fetus had become a person separate from its mother. The vast strides in fetal medicine and neonatology that have occurred in recent decades have necessarily called into question the continuing viability of the bom alive rule. Today it is understood that a mother and her unborn child are separate and distinct entities, see Sinkler, 401 Pa. at 273, 164 A.2d at 96, and that “medicine is generally able to prove the corpus delicti of the homicide of an unborn child,” Forsythe, Homicide of the Unborn Child, 21 Val. U.L.Rev. at 579. In light of these developments, the born alive rule has been criticized in both the decisional law and the legal commentary as “an archaic legal fiction which no longer serves a legitimate objective.” Guthrie, 293 N.W.2d at 778; see also Cass, 467 N.E.2d at 1328-29 (stating that “the antiquity of a rule is no measure of its soundness,” and noting that medical science is now capable of proving causation in cases of fetal death); Hughes, 868 P.2d at 732 (asserting that medical and scientific advances have eliminated the need for the rule); Forsythe, Homicide of the Unborn Child, 21 Val. U.L.Rev. at 567, 608 (describing the rule as an anachronistic rule of medical jurisprudence); Patricia King, The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 Mich. L.Rev. 1647, 1659-60 (Aug.1979) (describing medical advances that “have eroded the adequacy of the live birth criterion”); Peterfy, Fetal Viability, 16 J. Legal Med. at 627 (stating that medical and scientific advances have rendered the reasons for the rule obsolete). Nevertheless, judicial recognition of the rule’s limitations has not, in most cases, resulted in its judicial abolition. Throughout the decisions declining to take such action, there runs a common thread of explanation: whether to abolish the bom alive rule is, in the view of these courts, a decision for the legislature because abolition of the rule would entail a substantive change in the criminal law. Several courts have explicitly stated as much. Explaining its decision to leave the matter for the legislature, the Supreme Court of West Virginia noted that [w]e have on occasion altered common law rules in the criminal field, but in these cases the alteration was of a procedural nature and did not create a new class or category of crime. For example, ... [i]n State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), we concluded that venue in a criminal case is not an element of the substantive criminal offense and, therefore, it may be proved by a preponderance of the evidence. There is a considerable difference between this Court making alterations in criminal procedure or practice rules, authorized under our constitutionally recognized rulemaking power, and creating a new crime. Atkinson, 332 S.E.2d at 811 (footnote and additional citation omitted). More often, the courts have implicitly acknowledged the substantive nature of the proposed change by declaring that the judiciary would exceed its powers if it were to create a new crime or expand the definition of an existing one. Expressing this view, the Supreme Court of Kentucky has observed that, Hollis, 652 S.W.2d at 68. In sum, the prevailing view is that the bom alive rule implicates a substantive aspect of criminal offenses. where criminal sanctions are supposed to flow from the [state’s] Penal Code rather than evolving out of court decisions, it would be fundamental error to create a crime in the absence of a statute.... This Court cannot presume that the legislature intended to license us to expand the class of persons who could be treated as victims of criminal homicide as we should deem appropriate in our own discretion. Nothing in the decisional law of this Commonwealth, including this Court’s decision in Ladd, suggests that Pennsylvania has taken a different approach. The difficulty confronting the Court in Ladd, more than a decade before the enactment of the Crimes Code, was whether to classify the year-and-a-day rule “as being [a rule] of evidence, procedure, or pleading, on the one hand, or as being part of the definition of murder or as an essential element of it or as a matter of substance, on the other.” Id. at 169, 166 A.2d at 504. Because Pennsylvania had no statutory definition of murder at that time, the Court turned to the decisional law, explaining that “we have taken the Blackstonian definition as our own.” Id. at 172, 166 A.2d at 505. This definition was as follows: A felonious homicide (i.e. murder) occurs when a person of sound memory and discretion unlawfully and feloniously kills any human being in the peace of the sovereign prepense or aforethought.... Id. (quoting Redline, 391 Pa. at 493, 137 A.2d at 493 (quoting 4 William Blackstone, Commentaries *195)). As this definition of murder contains no reference to the year-and-a-day rule, the Court concluded that “[t]he rule cannot ... be said to be part of the definition of murder, either in Blackstone or in Pennsylvania.” Ladd, 402 Pa. at 172, 166 A.2d at 505. The same is not true of the bom alive rule, however, as may be inferred from this Court’s decision in Redline. The Red-line Court, considering malice as an essential element of murder, noted that the Blackstonian definition of murder was substantially the same as that adopted in Dmm, 58 Pa. at 15, and uniformly applied thereafter. In Drum, as noted earlier, see supra note 8, murder had been defined as when a person of sound memory and discretion unlawfully kills any reasonable creature in being and under the peace of the Commonwealth, with malice aforethought, expressed or implied. Id. This Court observed in Redime that [t]he proof requirements necessary to establish a case of murder ... are no different than they were at the time of Commonwealth v. Drum .... The “reasonable creature in being” specified in the common law definition of murder, as stated in the Dram case, was none other than the human being whose death at the hands of another is still necessary to constitute a homicide. Id. at 493, 137 A.2d at 475 (emphasis added). Thus, that the victim was a “reasonable creature in being” (that is, a person who had been born and was alive) was understood to be an essential element, requiring proof beyond a reasonable doubt, of the crime of homicide, and, as such, was not open to judicial modification. Having determined that the Superior Court’s analysis does not support its conclusion, we may nevertheless affirm that conclusion if it is correct on any other ground. See Petrovick v. Commonwealth, Dep’t of Transp., 559 Pa. 614, 625, 741 A.2d 1264, 1269 (1999). The pertinent question in this regard is whether the General Assembly has indicated, directly or indirectly, that the born alive rule is no longer operative. According to the Commonwealth, the adoption of the Abortion Control Act, 18 Pa.C.S. §§ 3201-3220, answers the question in the affirmative. Enacted in 1982, the Abortion Control Act reflects the General Assembly’s stated intention to protect the life and health of the woman and the child subject to abortion. See 18 Pa.C.S. § 3202(a). To that end, the General Assembly directed as follows: (c) Construction. — In every relevant civil or criminal proceeding in which it is possible to do so without violating the Federal Constitution, the common and statutory law of Pennsylvania shall be construed so as to extend to the unborn the equal protection of the laws and to further the public policy of this commonwealth encouraging childbirth over abortion. 18 Pa.C.S. § 3202(c). Focusing on the opening phrase of this subsection, the Commonwealth asserts that the General Assembly’s aim of extending the equal protection of the laws to unborn children was intended to encompass not only proceedings directly affected by the Abortion Control Act, but proceedings in all other areas of the law as well. Thus, according to the Commonwealth, Section 3202(c) requires that the term “person” in the statutory definition of homicide by vehicle be read to include unborn children. To accept the Commonwealth’s argument is to assume that the legislature may create-and, in this instance, has created-criminal offenses by implication. As previously discussed, however, the principles that guide the interpretation of criminal statutes in a code jurisdiction such as Pennsylvania do not permit such an assumption: where the scope of a penal statute is uncertain, such uncertainty redounds to the benefit of the accused rather than the Commonwealth. Moreover, the enactment in 1997 of the Crimes Against the Unborn Child Act, 18 Pa.C.S. §§ 2601-2609 (the “Unborn Child Act”), indicates that where the General Assembly intends to expand the scope of the criminal law to encompass unborn children, it does so explicitly. The Unborn Child Act created five specific crimes involving violence directed against unborn children: first-, second-, and third-degree murder; voluntary manslaughter; and aggravated assault. See 18 Pa.C.S. §§ 2603-2606. At the same time, the legislature amended the sections of the Crimes Code addressing territorial applicability, classes of offenses, time limitations, and sentences for murder to reflect the existence of these newly created offenses. See 18 Pa.C.S. §§ 102, 106, 108, 1102. To define “unborn child,” as noted earlier, the legislature adopted the definition set forth in the Abortion Control Act, namely, “an individual organism of the species homo sapiens from fertilization until live birth.” See supra note 4. Enactment of this legislation supports the conclusion that, prior thereto, an unborn child could not have been the victim of such offenses; were it otherwise, the legislation would have been unnecessary. Such enactment also provides further support for, and indicates the legislature’s understanding of, the fundamental principle that decisions concerning whether to criminalize certain conduct, or to expand the category of those who may be victims of certain conduct, are within the purview of the legislature, not the judiciary. Accordingly, the order of the Superior Court is reversed, and the trial court’s order is reinstated. . Appellant was also charged with two counts of aggravated assault by motor vehicle while driving under the influence, 75 Pa.C.S. § 3735.1; two counts of driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(4); one count of failing to stop at a stop sign, 75 Pa.C.S. § 3323(b); and one count of giving a false report, 75 Pa.C.S. § 3748. . The Commonwealth did not pursue its challenge to the dismissal of the homicide by vehicle count. Id. at 1188 n. 4. . Section 3735 is a penal statute because it imposes sanctions for violation of its provisions. See Commonwealth v. Hill, 481 Pa. 37, 43 n. 6, 391 A.2d 1303, 1306 n. 6 (1978). . The Abortion Control Act defines the term “unborn child” as "an individual organism of the species homo sapiens from fertilization until live birth,” 18 Pa.C.S. § 3203, and the Crimes Against the Unborn Child Act adopts this definition, see 18 Pa.C.S. § 2602. See generally infra. . We note that penal statutes falling within the Crimes Code are expressly subject to "constru[ction] according to the fair import of their terms....” 18 Pa.C.S. § 105. The "fair import” approach is appropriate, the Official Comment to Section 105 explains, "for a modern penal code which carefully defines crimes and defenses rather than leaving their definition to several centuries of common law.” 18 Pa.C.S. § 105 Official Comment. Because the fair import provision applies only to the criminal offenses defined in Title 18, it is not directly at issue here. See Commonwealth v. Lurie, 524 Pa. 56, 63, 569 A.2d 329, 333 (1990). See generally Commonwealth v. Besch, 544 Pa. 1, 12 n. 7, 674 A.2d 655, 660 n. 7 (1996). . In Sinkler, one of the plaintiffs was an infant born with Down’s syndrome, allegedly as the result of an automobile accident when the infant’s mother was approximately one month pregnant with the infant. See id. at 268, 164 A.2d at 93. . Notably, various other jurisdictions that have considered this issue have recognized that "the analogy between civil liability for tort and criminal liability for causing death is inapt.” Vo v. Superior Court of Maricopa County, 172 Ariz. 195, 836 P.2d 408, 412 (Ct.App.1992) (quoting Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712, 719 (1985)). In declining to extend the abolition of the bom alive rule from the civil to the criminal context, courts of other jurisdictions have emphasized the different objectives of these areas of the law, see State v. Anonymous, 40 Conn.Supp. 498, 516 A.2d 156, 159-60 (1986); Greer, 37 Ill.Dec. 313, 402 N.E.2d at 209; the necessity for strict construction of criminal statutes, see Billingsley v. State, 183 Ga.App. 850, 360 S.E.2d 451, 452 (1987); State v. Trudell, 243 Kan. 29, 755 P.2d 511, 515 (1988); State v. Dickinson, 28 Ohio St.2d 65, 275 N.E.2d 599, 602 (1971); State v. Amaro, 448 A.2d 1257, 1258 (R.I.1982); and deference to the legislature as sole creator of criminal offenses, Hollis v. Commonwealth, 652 S.W.2d 61, 63-64 (Ky.1983); State v. Gyles, 313 So.2d 799, 801 (La. 1975); People v. Guthrie, 97 Mich.App. 226, 293 N.W.2d 775, 778 (1980), appeal denied, 417 Mich. 1006, 334 N.W.2d 616 (1983); State v. Soto, 378 N.W.2d 625, 630 (Minn.1985); State ex rel. Atkinson v. Wilson, 175 W.Va. 352, 332 S.E.2d 807, 810 (1985). But see Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324, 1325 (1984) (noting similarities between civil and criminal cases); Hughes v. State, 868 P.2d 730, 734 (Okla.Crim.App.1994); State v. Horne, 282 S.C. 444, 319 S.E.2d 703, 704 (1984). See generally Clarke D. Forsythe, Homicide of the Unborn Child: The Bom Alive Rule and Other Legal Anachronisms, 21 Val. U.L.Rev. 563, 598 (1987) (hereinafter "Forsythe, Homicide of the Unborn Child ”); William E. Buelow III, Comment, To Be and Not to Be: Inconsistencies in the Law Regarding the Legal Status of the Unborn Fetus, 71 Temp. L.Rev. 963 (Winter 1998) (hereinafter "Buelow, To Be and Not to Be ”); Agota Peterfy, Commentary, Fetal Viability as a Threshold to Personhood, 16 J. Legal Med. 607 (1995) (hereinafter “Peterfy, Fetal Viability ”); Alan S. Wasserstrom, Annotation, Homicide Based on Killing of Unborn Child, 64 A.L.R. 5th 671 (2000). In response to judicial decisions declining to abolish the bom alive rule, the legislatures in a number of jurisdictions, including California, Louisiana, Illinois, Minnesota, and Rhode Island, have enacted statutes that abolish the rule or criminalize offenses against the unborn child. See Vo, 836 P.2d at 416 n. 8 (citing statutes); Trudell, 755 P.2d at 516-17 (same). . McKee was apparently the earliest reported American decision to address the rule. See Forsythe, Homicide of the Unborn Child, 21 Val U.L.Rev at 598. See also Commonwealth v. Drum, 58 Pa. 9, 15 (1868) (stating the common law definition of murder as, in pertinent part, "when a person of sound memory and discretion unlawfully kills any reasonable creature in being”); Commonwealth v. Riley, 88 Pa. D. & C. 572 (Montg.Co.1953) (acknowledging that the crime of concealing the death of a bastard child "cannot be committed unless a child is born”)(quoting 2 Trickett, Pennsylvania Criminal Law 588 (1908)); Commonwealth v. O'Donohue, 8 Phila. 623, 623 (1871) (reasoning that the defendant was not guilty of the murder of her newborn child, as there was no evidence that the child "had been born into the world alive, or in other words, had a legal existence”). See generally Commonwealth v. Brown, 6 Pa. D. & C.3d 627 (Phila.Co.1978) (reviewing the history of the born alive rule in Pennsylvania); Cari L. Leventhal, Comment, The Crimes Against the Unborn Child Act: Recognizing Potential Human Life in Pennsylvania Criminal Law, 103 Dick. L.Rev. 173 (Fall 1998). . See State v. Cotton, 197 Ariz. 584, 5 P.3d 918, 921 (Ct.App.2000); Keeler, 87 Cal.Rptr. 481, 470 P.2d at 621; Gyles, 313 So.2d at 800; Guthrie, 293 N.W.2d at 776-77; Soto, 378 N.W.2d at 628; State v. Willis, 98 N.M. 771, 652 P.2d 1222, 1222 (Ct.App.1982); Dickinson, 275 N.E.2d at 601; State v. Larsen, 578 P.2d 1280, 1281 (Utah 1978). . See Meadows v. State, 291 Ark. 105, 722 S.W.2d 584, 585 (1987); Anonymous, 516 A.2d at 158; Billingsley, 360 S.E.2d at 452; Jones v. Commonwealth, 830 S.W.2d 877, 880 (Ky.1992); Beale, 376 S.E.2d at 3; State v. Evans, 745 S.W.2d 880, 883 (Tenn.Crim.App. 1987); Atkinson, 332 S.E.2d at 808. . In the often-quoted words of Sir Edward Coke, If a woman be quick with childe, and by a potion or otherwise killeth it in her womb, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision [misdemeanor], and not murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive. 3 Edward Coke, Institutes 58 (1648), quoted in Cotton, 5 P.3d at 921 n. 2; Keeler, 87 Cal.Rptr. 481, 470 P.2d at 626; Dickinson, 275 N.E.2d at 601; see also Abrams v. Foshee, 3 Iowa 274, 1856 WL 201 (Iowa 1856); State v. Trudell, 243 Kan. 29, 755 P.2d 511 (1988); Cuellar v. State, 957 S.W.2d 134 (Tex.Ct.App. 1997). . See Vo, 836 P.2d at 413; Greer, 37 Ill.Dec. 313, 402 N.E.2d at 207; Trudell, 755 P.2d at 513; Cass, 467 N.E.2d at 1328; State v. Holcomb, 956 S.W.2d 286, 291 (Mo.Ct.App.1997). . See Gyles, 313 So.2d at 800-01; Guthrie, 293 N.W.2d at 777; Soto, 378 N.W.2d at 628; Hughes, 868 P.2d at 731 (quoting 1 O. Warren, Warren On Homicide § 55 (1938)); Amaro, 448 A.2d at 1259; Morgan, 256 S.W. at 434; see also Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522, 527 (1995) (explaining that at common law there was no recovery for prenatal torts because “an unborn child was but a part of the mother, ... and an injury to it was but an injury to the mother” (quoting Allaire v. St. Luke’s Hosp., 184 Ill. 359, 56 N.E. 638, 641 (1900) (Boggs, J., dissenting))). . On this point, the Commonwealth argues that we may abolish tire born alive rule by judicial decision because courts in Massachusetts, Oklahoma, and South Carolina have done so. The decisions in question, however, are less templates to follow than exceptions that prove the rule, as each of those courts emphasized that it was empowered to play a significant role in the development of the common law. The Supreme Judicial Court of Massachusetts did so at some length, explicitly rejecting the notion that it was "unable to develop common law rules of criminal law because the Legislature has occupied the entire field.” Cass, 467 N.E.2d at 1327. "While this may be true in code jurisdictions,” the Court continued, "it is not true in this Commonwealth, where our criminal law is largely common law.” Id. Similarly, the Oklahoma court declared that it had "the right and duty to develop the common law of Oklahoma to serve the evolving needs of our citizens,” Hughes, 868 P.2d at 733, and the South Carolina court cited its role in “declaring the common law as it should be." Horne, 319 S.E.2d at 704. Pennsylvania is a code jurisdiction, however, and its understanding of the judiciary’s role in the development of the criminal law is otherwise. Moreover, each of these courts, unlike the Superior Court in the case sub judice, acknowledged the "fair warning” element of due process protections and, accordingly, declared that its decision was prospective only. See Cass, 467 N.E.2d at 1329-30; Hughes, 868 P.2d at 735-36; Horne, 319 S.E.2d at 704. . See also State v. McCall, 458 So.2d 875, 877 (Fla.Dist.Ct.App.1984); Soto, 378 N.W.2d at 630. . Vo, 836 P.2d at 415; Meadows, 722 S.W.2d at 586; Keeler, 87 Cal.Rptr. 481, 470 P.2d at 625; Greer, 37 Ill.Dec. 313, 402 N.E.2d at 209; State v. Green, 245 Kan. 398, 781 P.2d 678, 682 (1989), cert. denied, 511 U.S. 1090, 114 S.Ct. 1848, 128 L.Ed.2d 473 (1994); Gyles, 313 So.2d at 801-02; Guthrie, 293 N.W.2d at 780-81; Willis, 652 P.2d at 1223; Beale, 376 S.E.2d at 4; Dickinson, 275 N.E.2d at 601. . But see Cass, 467 N.E.2d at 1329 n. 6 (analogizing the born alive rule to the year-and-a-day rule); Forsythe, Homicide of the Unborn Child, 21 Val. U.L.Rev. at 564 (arguing, based on historical analysis, that at common law the born alive rule was "entirely an evidentiary' standard"). . Furthermore, when Section 3202 (entitled "Legislative intent") is read in its entirety, a more logical explanation for the cited language emerges. In Section 3202(b), the General Assembly noted certain factual findings that caused it concern, including the steady reduction in the age of fetal viability, the significant number of late-term abortions that result in live births or could do so if appropriate measures were taken, and the need to hold physicians "to precise standards of care in cases where their actions do or may result in the death of an unborn child.” 18 Pa.C.S. § 3202(b). As the reference to equal protection in Section 3203(c) directly follows this statement of abortion-related concerns, it seems likely that the "relevant” proceedings mentioned in Section 3202(c) are those that implicate such concerns. It seems far less likely that the legislature contemplated a prosecution pursuant to the homicide by vehicle/DUI statute in the Vehicle Code as a proceeding relevant to the Abortion Control Act. . The Unborn Child Act was adopted on October 2, 1997, three months after Appellant committed the offenses at issue, and was made effective 180 days after enactment. We do not undertake here to determine the scope of the offenses which it defines. . Although supporters and opponents of the proposed legislation debated its wisdom, legislators on both sides of the debate appeared to agree that the then-current state of the law did not authorize the prosecution of offenses against unborn children. See Legis. J. — House at 871-81 (April 29, 1997).

OPINION OF THE COURT PAPADAKOS, Justice. Karl S. Chambers, Appellant, was convicted of murder of the first degree and robbery, and was sentenced to death. Pursuant to 42 Pa.C.S. § 9711(h)(1), this direct appeal followed. Immediately following the jury’s return of its guilty verdicts, the Honorable Joseph E. Erb; of the Court of Common Pleas of York County, commenced a sentencing hearing in which the same jury found one aggravating circumstance to be present, i.e., that the killing occurred during the commission of a robbery (42 Pa.C.S. § 9711(d)(6)). The jury also determined that one mitigating circumstance was present, i.e., that the Appellant had no significant history of prior criminal offenses. (42 Pa.C.S. § 9711(e)(1)) (R., pp. 1216-17). The jury found the aggra vating circumstance to outweigh the mitigating circumstance and determined that the sentence of death should be imposed. Post-trial motions were considered and denied and the sentences were imposed. In this direct appeal, Appellant, through his counsel, raises sixteen issues of error allegedly committed by the trial court and, through his pro se supplemental brief, presents issues alleging the ineffective assistance of his counsel at both the trial and in this appeal. First, the Appellant asserts that insufficient evidence exists to support his conviction of murder of the first degree. The Appellant argues that the evidence, as presented by the Commonwealth, was not based on eyewitness testimony, and that, therefore, the circumstantial evidence does not support a guilty verdict. Our test for determining the sufficiency of the evidence is, by viewing the evidence in the light most favorable to the verdict winner, to determine whether the jury reasonably could have concluded that all elements of the crime were established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985), cert. denied, 480 U.S. 935, 107 S.Ct. 1577, 94 L.Ed.2d 768 (1987). Our review of the record reveals that the Commonwealth established the following facts. On Saturday, February 1, 1986, at or near 3:30 p.m., the victim, Anna Mae Morris, entered the C & M Variety store (hereinafter the “Fish Store”) to purchase groceries with proceeds from her Social Security check which she had cashed the preceding day. The clerk filled her order and tallied her purchases. The victim then reached under her shirt for her wallet, tendered the amount due, put the change in her wallet, replaced her wallet under her shirt and left the store. At the same time, Appellant and a group of his friends were playing pinball and eating fish sandwiches in plain view of the victim. They had recently come from the home of Adam McKinney, a member of this group, where they had smoked some marijuana and drank some alcoholic beverages. These friends testified that Appellant neglected to place money into the common fund they collected for food purchases that day at the fish store and that moments after the victim departed, Appellant told his friends that he had something to do, adding he would meet them later in the evening at Adam McKinney’s house. Appellant quickly left the fish store. No one saw the Appellant, or the victim, until approximately 4:15 p.m. or 4:30 p.m. when Edgar Coder and Travis Wolfe stated that they saw the Appellant and the victim on the Silver Bridge (so named because of its color). They were the last people to see the victim alive. These witnesses testified that, although they could not hear what the Appellant and the victim were saying to each other, they appeared to be arguing. In addition, Edgar Coder testified that the Appellant had what appeared to be a large stick in one of his hands. Sometime between 4:45 p.m. and 5:00 p.m., another witness, Kevin Hartmen, while walking his dog there, noticed a body under the Maryland-Pennsylvania Railroad Bridge (hereinafter the “Black Bridge” so named because of its painted color). (The Black Bridge is in close proximity to the Silver Bridge and both of these structures span the Codorus Creek.) Kevin Hartmen immediately contacted his friend, Donald Snell, who also saw the body. Mr. Snell approached his father about what he had seen. His father then told a retired policeman. In turn, the retired policeman contacted the York Police Department and reported the body beneath the Black Bridge. The police arrived at the scene at 8:35 p.m. and began their investigation. The police found the victim’s numerous articles of clothing, her torn open, empty wallet, along with her upper and lower dentures strewn around her lifeless, nude body. The autopsy revealed the victim was beaten to death by a blunt instrument and the cause of death was later determined to be a subdural hemorrhage or brain hemorrhage (R., p. 590). While the police were investigating the murder scene, Appellant, armed with an axe handle, went to a local bar called the Shady Dell. Before he was permitted to enter the bar, the manager, John Ettline, ordered Appellant to leave this club outside because Mr. Ettline did not want patrons carrying weapons into his establishment. Appellant complied and meandered through the Shady Dell for a time and left without re-claiming his stick. From there he proceeded to Adam McKinney’s home. When he arrived at Adam’s home, Appellant now possessed alcohol, marijuana, and money. Appellant did not tell his friends where he had been, what he had done, or where he obtained the money to make his purchases, whereas a few hours before he did not have funds to contribute to their kitty. Over the next few months the police engaged in an exhaustive investigation. The questioning of witnesses revealed that the Appellant often carried an axe handle, that he told his friends the police considered him a prime suspect, and that the police stopped Appellant as he was attempting to leave town. Debra Phillips, a woman who knew the Appellant, told the police she gave the axe handle to him because of a foot injury he received in an altercation with Debra’s nephew some time before the murder. At that time, she suspected he could use the handle as a cane. Intense questioning of the Appellant’s acquaintances confirmed that on the day of the murder the Appellant was seen carrying this axe handle. Their testimony also revealed that when he entered the fish store on the day of the murder, he had the axe handle with him but the owners requested he leave it outside. When Appellant’s friends left the fish store after the Appellant had departed, they noticed that the stick was gone. And finally, they noted that the Appellant did not have “his stick” when he rejoined them later in the evening at Adam’s house. On December 9, 1986, while Appellant was in the York County Prison on charges unrelated to this incident, he confided in two fellow prisoners, Jeffrey Hutchenson and Richard Taylor, and told them that he had killed the victim. Appellant said, “that when he asked the victim for her money and she refused, he hit her and took the money.” The next day Jeffrey Hutchenson contacted his attorney, who notified the police. An arrest warrant was then issued on December 12, 1986, for the Appellant. Although there were no eyewitnesses to the robbery or the murder, we believe the Commonwealth produced sufficient evidence to establish that Appellant robbed and murdered Anna Morris. True, all of the evidence was circumstantial; however, circumstantial evidence is sufficient to sustain a conviction “so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Steele, 522 Pa. 61, 559 A.2d 904, 909 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). These witnesses were able not only to place the Appellant at or near the scene of the crime, they were also able to provide proof 'of a motive. Circumstantial evidence can be as reliable and persuasive as eyewitness testimony and may be of sufficient quantity and quality to establish guilt beyond a reasonable doubt. Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610, 618 (1989). Therefore, we conclude that sufficient evidence exists in the record to support the conviction of murder of the first degree and robbery and we dismiss the Appellant’s contrary contention. Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590, 593 (1989). PRE-TRIAL ERRORS Next, Appellant contends that the trial court committed an abuse of discretion when it granted the Commonwealth’s motion to challenge for cause Juror $41, Kathy Bucking- ton. The Appellant claims the court improperly dismissed this venire person after she advised the court that she could follow instructions regarding the imposition of the death penalty. The determination to disqualify a prospective juror is made by the trial judge based on both the juror’s answers as well as his or her demeanor, and this ruling will not be reversed absent palpable abuse of discretion. Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988). Our reading of the record reveals that the following occurred during the voir dire proceedings. The court released Mrs. Buckington because she would not follow the law in Pennsylvania regarding the standard of proof in a criminal prosecution. During her voir dire examination, Mrs. Buckington testified that she would hold the Commonwealth to a standard other than “beyond a reasonable doubt.” In response to a question from the judge regarding her willingness to vote for a conviction, Mrs. Buckington responded, “I’d have to be definitely, absolutely satisfied. If I’d have a doubt then someone would have to prove to me to the nth degree.” It was apparent to the trial court, as it is to us, that this venire person had her own standard of proof which is different from the one we announced in Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734, 737 (1972), and which merely reaffirmed the well established rule of law that one may not be convicted of murder unless the Commonwealth establishes every essential element of the crime beyond a reasonable doubt. Id. We conclude that the trial court acted properly when it sustained the prosecutor’s challenge for cause in regards to Mrs. Buckington. Appellant’s second allegation of pre-trial error concerns the trial judge’s refusal to grant his motion to continue the trial when he notified the court that the local press disseminated prejudicial pre-trial publicity. Appellant directed the court’s attention to an article which appeared on the first morning of the trial in The Daily Record, a publication of wide circulation in York County. Immediately thereafter, he objected to the start of the trial because of this prejudicial publicity. When an accused claims to have been prejudiced by an inordinate dissemination of pre-trial publicity pertaining to the crime charged, the accepted procedure is to request a change of venue or, in the alternative, a continuance. Commonwealth v. Douglas, 461 Pa. 749, 337 A.2d 860 (1975). Normally, one who claims he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the impaneling of the jury. Commonwealth v. Romeri, 504 Pa. 124, 131-32, 470 A.2d 498, 501-02 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984). Pre-trial prejudice is assumed if: 1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; 2) the publicity reveals the accused’s prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and 3) the publicity is derived from police and prosecuting officer reports. Commonwealth v. Pursell, 508 Pa. 212, 221, 495 A.2d 183, 187 (1985). If prejudicial publicity occurs, the trial court may exercise its discretion and may continue the case, change the venue, resort to extensive voir dire to assure the attitudes of jurors have not been influenced by disclosure, or use the costly and inconvenient device of jury sequestration. Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 498, 387 A.2d 425, 432 (1978). Here, the trial court diligently that noted this publication listed information pertaining to this case and other cases slated for trial during the court’s term. Specifically, the article detailed the following information about the Appellant: his name, his age, the nature of his case, and the dates of the alleged occurrence. Also, the article made a reference to the victim’s “nude and battered body,” a statement the court felt could heighten the interest of the individuals reading it. Nevertheless, the court noted that it felt the journalistic report did not go beyond anything which would be introduced at trial, and the Appellant had not suffered any prejudice due to the publication of this pretrial article (R., p. 4). Since the voir dire examination is the proper place to determine whether a defendant’s public notoriety has resulted in a prospective juror’s prejudice, an extensive voir dire was conducted. The trial court permitted Appellant’s counsel to ask any prospective juror, “whether they read the paper, and if they had, whether they would be influenced by what the paper said.” (R., p. 4). Additionally, the judge assured counsel that “[i]f they could not set aside information given in the paper, we will consider whether they should be excused as jurors.” (R., p. 4). Thereafter, the jurors were advised not to read any newspaper articles regarding the case or to watch television coverage of the event. Moreover, the Appellant neither moved for a change of venue, nor did he request a sequestration of the jurors. Based on our review of the record, we can perceive no abuse of discretion or error of law in denying the Appellant’s motion for continuance where no actual prejudice was demonstrated and dismiss the Appellant’s contrary allegation. GUILT PHASE ALLEGATIONS OF ERROR Appellant alleges that the trial court committed an abuse of discretion when it refused to grant his motion for a mistrial after the Commonwealth produced a statement taken from the Appellant which was not supplied to his defense counsel during pre-trial discovery. This statement is best described as handwritten notes inscribed by Detective Smith, a York police officer, of statements made by the Appellant in an interview which occurred two days after the homicide. Detective Smith did not incorporate the notes into his police report because he thought he had lost the notes through his own inadvertence. After the trial commenced, however, Detective Smith re-discovered the notes and promptly presented them to the prosecutor who delivered a copy to the Appellant’s counsel. The Appellant asserts, in his brief, that the Commonwealth’s failure to provide this statement until after the trial began is a denial of his right to due process as announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant claims that the Commonwealth’s failure to produce this note upon demand pursuant to Pennsylvania Rule of Criminal Procedure 305 also constitutes a violation of Rule 305(B), thereby “thwarting defense counsel’s pre-trial discovery.” Technically, Appellant believes he should have been “granted a continuance to thoroughly investigate the newly discovered evidence and was unduly disadvantaged by this ‘surprise.’ ” The trial judge conducted an in-camera examination of the note which revealed that it was neither an incriminating statement nor an admission against Appellant’s interest. The content of the note revealed that the Appellant may have engaged in illicit conduct with a person by the name of “Smitty” at some point in the evening following the murder. A thorough investigation conducted by the detective produced neither an individual by the name of Smitty, nor information as to the. whereabouts of a person by the name of Smitty. Where the evidence is material either as to guilt or as to punishment, irrespective of the good or bad faith of the prosecution, suppression of evidence favorable to the accused violates due process. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Mr. Justice Nix, (now Chief Justice Nix) speaking for the court in Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981), explained: It is to be noted that the Brady rule was not intended as a rule of discovery in criminal cases. There is no general constitutional right to discovery in a criminal case, and Brady did not create one; ... “the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded....” Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82 (1973); Weatherford v. Bursey, 429 U.S. 545, 549, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977). Murphy, 493 Pa. at 45, 425 A.2d at 357. In Brady, the defendant did not discover the non-disclosed evidence until after his trial, conviction, and sentencing. Thus, Brady complained he was denied his rights under due process of law because the jury did not have the benefit of the evidence when they assessed his guilt and determined his penalty. This is not the situation here, where the infirmity alleged is that the prosecutor failed to disclose the evidence prior to the trial. Therefore, Brady is inapplicable. Also, a request for a mistrial is out of proportion to the discovery violation alleged. A mistrial is required only when an incident is of such a nature that its unavoidable effect is to deprive appellant of a fair trial. Commonwealth v. Crawley, 514 Pa. 539, 554, 526 A.2d 334, 342 (1987), citing Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982). Our Pennsylvania Rule of Criminal Procedure 305(E), provides: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such order as it deems just under the circumstances. It is important to note that the district attorney did not cause the Appellant to be denied this information; rather, it was through the inadvertence of the investigating officer, Detective Smith, who misplaced his notes. Second, the district attorney immediately gave the notes to Appellant’s counsel as soon as he came into possession of them on the first day of the trial. Defense counsel was given the opportunity to view the evidence and to discuss the notes with the Appellant, who informed his counsel that it would be impossible to locate the person referred to as “Smitty.” (R., p. 561). Defense counsel relayed this information to the court and further stated that he would not be able to locate “Smitty” should the court grant him a continuance. (R., p. 562). And third, Appellant’s counsel did not ask for a continuance after the trial judge held an in camera review of the testimony of Detective Smith regarding his investigation of this matter. In disposing of Appellant’s motion, the court noted on the record: We recognize that this statement through inadvertence was not given to counsel for the Defendant. But there appears to be only one factor in the statement that cannot be verified at this time; and that deals with a person by the name of Smith who according to the statement would have seen the Defendant some substantial period after the event occurred. ... the individual ... is not an alibi witness, and in any event could be used perhaps to some limited extent to contest testimony of other witnesses. ... the only problem with this statement is giving the defense sufficient time to discuss it with his client, which we will do if he wishes. But we will not declare a mistrial, nor will we grant a mistrial, nor will we grant the motion to allow the Commonwealth to use the statement if there are conflicting — if there is conflictive [sic] testimony by the defendant from the stand as indicated. We will give the defense counsel sufficient opportunity to go over the statement with his client so that his client is familiar with it and counsel is familiar with it before calling the client to the stand. ... (R., pp. 572-73). Since Appellant has not demonstrated how he was prejudiced by the failure to review these notes prior to trial, we find no abuse of discretion or error of law in the trial judge’s refusal to grant a mistrial. Appellant next argues that the trial court committed an abuse of discretion when it allowed the prosecutor to use the Appellant’s statement, objected to in the argument above, in its case in chief. Specifically, Appellant argues that the nondisclosure of the police officer’s report was deliberate on the part of the prosecution and amounts to “gross negligence”, and in support of this argument, the Appellant cites the case of Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978). Jenkins provided an oral statement to an investigating officer, who transcribed Jenkins' statement into his own notes, which he included with a written report. The trial judge ordered all such reports be made available to the defendant pursuant to the rules of criminal procedure then in effect. The assistant district attorney consistently denied their existence, and repeatedly assured the court, and the defense counsel, that no such statements existed despite their presence in the prosecutor’s files. After the defendant placed his credibility at issue by taking the stand in his own behalf, the report was produced. The court permitted the prosecutor, over the objection of defense counsel, to use this report of Jenkins’ oral statement. Afterward, it was determined that the report had been part of the Commonwealth’s files from the outset of the investigation and had, at one point, been read by the assistant district attorney. Consequently, the trial court held, “since the misconduct went solely to the issue of defendant’s credibility,” the prejudicial impact of the prosecution’s “deliberate or grossly negligent failure ... to produce the report” was minimal and did not require a new trial. Supra, 476 Pa. at 470, 383 A.2d at 196. We did not agree. On review, we held that Jenkins was entitled to a new trial because the non-disclosure affected the fairness of his trial. Appellant’s reliance on Jenkins is misplaced. The mere allegation of “gross negligence” on the part of the prosecutor is not enough to come within the ambit of Jenkins. Appellant has not established that the prosecution committed any misdeeds or that its actions resulted in giving him an unfair trial. Upon review we fail to discern any similarities between the fact patterns occurring in this case and those which occurred in Jenkins. As already noted, the trial court recognized that this statement, through inadvertence, was not given to counsel for the Appellant. By contrast, the prosecutor in Jenkins not only withheld the statement from the defense, he denied he had it in his possession. Here, the trial judge permitted defense counsel to view the statement, discuss its contents with Appellant, and to question the detective at length, in camera, regarding his subsequent investigations and findings. Additionally, the trial judge ruled that he would not allow the Commonwealth to use the statement if “there is conflicting] testimony by the defendant from the stand.” Under these circumstances, we affirm the trial court’s action in permitting the prosecution to refer to the officer’s notes. Appellant’s next contention is another allegation accusing the prosecutor of withholding evidence. Appellant postulates that the trial court erred because it would not grant a mistrial when the prosecutor used a prior inconsistent statement which was not supplied to the Appellant pursuant to his discovery request, to impeach defense witness Howard Chapmen. Appellant argues that this conduct was also violative of Pa.R.Crim.P. 305. The notes in question were transcribed by Detective Provenza of the York police department, during an interview with Mr. Chapman, and were not included in his investigation notes with the police report. Detective Provenza withheld his notes from the assistant district attorney until after defense counsel concluded his direct examination. The prosecutor then attempted to cross examine the witness concerning statements he testified to during the trial and those he gave previously to the detective. Appellant’s claim fails because the testimony of this defense witness is not subject to pre-trial discovery under Rule 305. Howard Chapman is neither a prosecution witness, a co-defendant, co-conspirator nor an accomplice. He is a defense witness whose testimony did not affect the guilt or innocence of Appellant and, therefore, could not be prejudicial to him. Appellant next claims that the trial court committed an abuse of discretion when it permitted the pathologist, Doctor Silverman, to testify regarding the victim’s blood type. Appellant contends that the pathologist did not authenticate the blood sample nor did the Commonwealth properly establish the custodial chain from the doctor’s withdrawal of the blood sample to the laboratory’s testing of the evidence in question. Generally, an expert may not state a conclusion which is based on evidence not in the record. Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). Nonetheless, this Court has determined that a medical expert is permitted to express opinion testimony on medical matters based, in part, on reports of others which are not in evidence, but which the medical expert customarily relies upon in the practice of his profession. Commonwealth v. Smith, 480 Pa. 524, 532, 391 A.2d 1009, 1013 (1978); Thomas, 444 Pa. at 445, 282 A.2d at 698. A review of this record reveals that the Appellant stipulated to Doctor Silverman’s qualifications as a pathologist and to the nature of a pathologist’s expertise, i.e., that a pathologist examines laboratory specimens, tissues, fluids, and upon occasions performs autopsies (R., p. 584). Doctor Silverman performed the autopsy on this victim at the York Hospital on February 2, 1986 and prepared his report on February 3, 1986. Pursuant to his normal autopsy examination procedure, the doctor withdrew blood from the cadaver and transported it to the blood bank for analysis (R., p. 614). Although this blood analysis report was not introduced into evidence, the doctor used the information in his own report to surmise the blood type of the victim. When queried as to victim’s blood type, Doctor Silverman testified that it was 0 positive. Since the witness normally relied upon reports such as these, the trial court did not abuse its discretion when it ruled that the witness could testify as to the findings in the lab report concerning the victim’s blood type, which in any event, did not link Appellant to the crime. Appellant next argues that the trial court should have granted a mistrial because the medical testimony did not establish that the victim received “tens of blows” as the prosecutor described in his opening statement to the jury. Appellant maintains that the district attorney intentionally misstated the evidence to mislead and to inflame the jury so that they would return with a finding of guilt. Our examination of the record discloses that the district attorney did not make this comment during his opening statement; instead, he made it during the individual voir dire of a prospective juror, Josephine J. Huber, who was not selected as a juror or as an alternate on Appellant’s panel. (R., p. 168). Any prejudice, therefore, was cured when the venire person was not seated on the jury and Appellant’s contrary contentions are rejected. Appellant also claims that the trial court committed an abuse of discretion because it refused to grant his motion for a mistrial when he objected to both the leading questions that the prosecutor asked Edgar Coder during his direct examination and to the district attorney’s explanation “that he was leading the witness so that no prejudicial testimony would come out before the jury.” The record reveals that the court permitted the prosecutor to ask leading questions on direct-examination because the witness was fourteen years of age. A discussion, held at sidebar, revealed that this witness alleged that the Appellant, and another person not involved with the present incident, had robbed him. The district attorney was attempting to exercise caution so that this witness would not make a reference to the Appellant’s involvement in another robbery. On the other hand, defense counsel requested the court to compel the district attorney to give cautionary instructions to the witness (R., p. 729). The trial judge took these requests into consideration and determined that he would allow the district attorney to lead the witness because of his age and because he felt this course of action would not harm the Appellant and would prevent any future problems the court could encounter if the witness unintentionally made a statement regarding the Appellant and his alleged robbery of this witness (R., p. 729). A leading question is one which puts the desired answer in the mouth of the witness. Commonwealth v. Dreibelbis, 493 Pa. 466, 476, 426 A.2d 1111, 1116 (1981); Kelly’s Estate, 399 Pa. 153, 159 A.2d 739 (1960). In Commonwealth v. Deitrick, 221 Pa. 7, 70 A. 275 (1908), we held: The rule that a party calling a witness is not permitted to ask leading questions ... is [to be] liberally construed in modern practice, with a large measure of discretion in the court to permit parties to elicit any material truth without regard to the technical considerations of who called the witness. It is a discretion not susceptible of exactly defined limits before hand, but to be exercised in the interests of justice and a fair trial under the circumstances as they arise. Deitrick; Commonwealth v. Reeves, 267 Pa. 361, 110 A. 158 (1920). Considering the age of the witness and the Appellant’s alleged involvement in another robbery, we see no abuse of discretion in allowing the district attorney to lead this witness through direct examination. In regards to the district attorney’s remark, “Well, I don’t want to get any prejudicial information into the record, Your Honor ..." defense counsel argued this statement implied there was prejudicial information, and the court should have granted his motion for a mistrial (R., p. 727). The trial judge discussed this matter with the attorneys at side bar, and he denied the motion for a mistrial because he believed the jury had no idea as to what “prejudice” the district attorney was referring (R., p. 729). When defense counsel made this motion, the prosecutor was eliciting information from the witness regarding a run-in he had with Vince Raineri (R., p. 726). The court argued that if it were to poll the jury as to what they thought the prosecutor had meant by “prejudicial” the jury would not know. The parties were instructed to proceed. We find no error with the trial court action. Appellant next claims that the trial judge erred when he permitted the district attorney to call additional witnesses not contained in the Bill of Particulars. Appellant claims that the Commonwealth’s “failure” deprived him of the opportunity to conduct a thorough investigation of those witnesses, to explore any weaknesses in their testimony, and to counteract any unfair surprise. A bill of particulars is intended to give notice to the accused of the offenses charged in the indictment so that he may prepare a defense, avoid a surprise, or intelligently raise pleas of double jeopardy and the statute of limitations. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Dreibelbis, 493 Pa. at 472, 426 A.2d at 1114. It is not a substitute for discovery and the Commonwealth’s evidence is not a proper subject to which a bill of particulars may be directed. Commonwealth v. Davis, 470 Pa. 193, 368 A.2d 260 (1977); Dreibelbis, 493 Pa. at 472-73, 426 A.2d at 1114. We agree with the trial court that Appellant attempted to disguise his discovery requests as a bill of particulars, and, conclude that the trial court properly rejected Appellant’s attempt to stop these witnesses from offering their corroborative testimony. PENALTY PHASE Appellant next claims that the court abused its discretion when it permitted the jury to consider the death sentence after the prosecutor conveyed his personal opinions concerning the death penalty. Second, the Appellant claims that the court erred when it permitted the jury to consider the death penalty after the prosecutor concluded his argument by quoting a passage contained in the Bible. The first instance of alleged error occurred when the prosecutor argued to the jury: I submit, ladies and gentlemen ... If the death penalty is a deterrent, and I believe it is; and if the death penalty serves the societal needs for retribution, and I believe that it does; and if the death penalty serves the cathartic needs of the survivors of the victim, and I believe it does — (Emphasis added). (R., p. 1198-99). The terms of our death penalty statute permit a prosecutor to argue in favor of the death penalty. 42 Pa.C.S. § 9711(a)(3); Commonwealth v. Travaglia, 502 Pa. 474, 503, 467 A.2d 288, 302 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984); Commonwealth v. Sneed, 514 Pa. 597, 613, 526 A.2d 749, 757 (1987). Therefore, we have concluded that the prosecutor must have reasonable latitude in arguing his position to the jury during the penalty phase of the trial. Commonwealth v. Zettlemoyer, 500 Pa. 16, 55, 454 A.2d 937, 958 (1983), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). There is nothing improper in the prosecutor arguing the appropriateness of the death penalty because that is the only issue before the jury at the penalty phase of the trial. Sneed, supra. In the case at bar, the trial judge determined that the prosecutor’s remarks were not prejudicial. He instructed the jury to disregard these statements and to consider them only as argument presented by counsel (R., p. 1201). Further, the judge reminded the jury of their duty under the law and that their determination of the facts, not the beliefs of counsel, governed the outcome of the case (R., p. 1201). These instructions put the prosecutor’s comments into their proper context and dispel any argument of prosecutorial misconduct. i Appellant’s next contention is that the trial judge erred when he permitted the jury to deliberate after specifically instructing the district attorney that he was not to argue the brutality of the beating as an aggravating factor, but the district attorney argued this fact anyway. Our review of the record reveals this argument is factually incorrect. The district attorney argued a sole aggravating factor. “Killing committed in the perpetration of a felony.” (R., p. 1197). Appellant also contends that the trial court erred when it allowed the jury to consider the death penalty using the commission of a felony as the sole aggravating factor. Defense counsel argues this charge forms the basis of a second degree murder charge and cannot support the aggravating circumstance. This argument is similar to the argument raised in Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987), which concerned the similarity between an aggravating circumstance and the definition of second degree murder. 18 Pa.C.S. § 2502(b) and (d). We held in DeHart: This argument ignores the qualitative distinction between first and second degree murder. The essential element which distinguishes first degree from the lesser grades of murder is specific intent to kill. Commonwealth v. Moore, 473 Pa. 169, 373 A.2d 1101 (1977) (citing cases). In contrast, the intent necessary to establish second degree murder is constructively inferred from the malice incident to the perpetration of an underlying felony. Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). Moreover, the fact that a first degree murder was committed in perpetration of a felony has been determined by the legislature to be an aggravating factor to be considered in the sentencing process. Thus a first degree murder committed in perpetration of a felony is not only a murder of a higher degree, it is made further culpable by the commission of the accompanying felony. DeHart, 512 Pa. at 261, 516 A.2d at 669, 70. Therefore, Appellant’s motion was properly denied. Appellant also alleges that the trial court committed an error of law when it refused to grant the Appellant a new trial based on alleged after-discovered evidence. A new trial is not warranted on the basis of after discovered evidence, unless: 1) it could not have been discovered until after the trial despite reasonable diligence; 2) it is not used for merely cumulative or impeachment purposes; and 3) it is of such a nature that it would compel a different outcome. Commonwealth v. Hugney, 491 Pa. 222, 420 A.2d 422 (1980); Commonwealth v. Scott, 503 Pa. 624, 628, 470 A.2d 91, 93 (1983). After trial, one of the witnesses at the trial for the Appellant, one Aaron Heiner, stated that a Michael Boyard had told him that he, Michael Boyard, had killed the old lady. He forgot to mention it during the trial and while he was testifying on behalf of the Appellant. This information was discoverable prior to, or during the trial. Therefore, the testimony of this witness would fail under Scott. In regard to a post-trial statement of Robin Wright, this affidavit merely reveals that the same Michael Boyard asked the affiant where he could hide a stick he used to “beat somebody up with.” The affiant does not identify the alleged victim, therefore, it is doubtful that this evidence would compel a different outcome. Scott, id. Accordingly, the trial court correctly denied Appellant’s motion for a new trial. Finally, Appellant argues that the prosecutor overstepped the permissible bounds of oratorical flair in his closing argument by referring to the Bible. The record shows that the prosecutor stated, “Karl Chambers has taken a life.” (R., p. 1201). “As the Bible says, ‘and the murderer shall be put to death.’ ” (R., p. 1201). Defense counsel objected. The trial court immediately noted this objection and gave a curative instruction to the jury. The guidelines governing a review of a claim of allegedly improper and prejudicial remarks made by a prosecutor during a sentencing hearing are set forth in Commonwealth v. Zettlemoyer, 500 Pa. 16 at 53-54, 454 A.2d 937 at 956-57, wherein we explained: The primary guideline in assessing a claim of error of this nature is to determine whether the unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974); Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979). In making such a judgment, we must not lose sight of the fact that the trial is an adversary proceeding, Code of Professional Responsibility, Canon 7, E.C. 7-19 — 7-39, and the prosecution, like the defense, must be accorded reasonable latitude in fairly representing its version of the case to the jury. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). Nevertheless, we do require that the contentions advance must be confined to the evidence and the legitimate inferences to be drawn therefrom. Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972). Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The verdict must flow from the respective evidence presented and not represent a response to inflammatory pleas for either leniency or vengeance. Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978). In the past we have narrowly tolerated references to the Bible and have characterized such references as on the limits of “oratorical flair” and have cautioned that such references are a dangerous practice which we strongly discourage. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990); Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). We now admonish all prosecutors that reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and máy subject violators to disciplinary action. Here, the prosecutor argued, “As the Bible says, ‘and the murderer shall be put to death.’ ” This reference is substantially different than the references tolerated in Henry and Whitney where the prosecutor allegorically likened the Defendant to the Prince of Darkness mentioned in the Bible to establish that he was an evil person. More than allegorical reference, this argument by the prosecutor advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for Appellant. By arguing that the Bible dogmatically commands that “the murderer shall be put to death,” the prosecutor interjected religious law as an additional factor for the jury’s consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty- Our Legislature has enacted a Death Penalty Statute which carefully categorizes all the factors that a jury should consider in determining whether the death penalty is an appropriate punishment and, if a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth requires its imposition, not because of some other source of law. Because the prosecutor’s argument in favor of the death penalty reached outside of the evidence of the case and the law of this Commonwealth, we are not convinced that the penalty was not the product of passion, prejudice or an arbitrary factor and, therefore, pursuant to our Death Penalty Statute, we must vacate the sentence of death and remand this matter for a new sentencing hearing. 42 Pa.C.S. § 9711(h)(4). Accordingly, the conviction of murder of the first degree and the conviction and sentence imposed for robbery are affirmed, the sentence of death is vacated and the matter is remanded to the Court of Common Pleas of York County for a new sentencing hearing. NIX, C.J., concurs in the result. McDERMOTT, J., files a concurring and dissenting opinion. . 42 Pa.C.S. § 9711(h)(1) provides: Review of death sentence. A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules. . Along with the death sentence, the court imposed a sentence of not less than ten years nor more than twenty years on the robbery conviction. . Appellant presents this supplemental brief pursuant to Pa.Rule of Appellate Procedure 3309(a), 42 Pa.C.S. . The Crimes Code defines murder of the first degree as: A criminal homicide ... committed by an intentional killing. 18 Pa.C.S. § 2502(a), (d). . Rule 305(B)(1)(b) states: (1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items. (b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth; ... Pa.Crim.P., Rule 305, 42 Pa.C.S. . Rule 305(B)(2)(b) states: (2) Discretionary with the Court: In all court cases ... if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing they are material to the preparation of the defense, and that the request is reasonable; (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, ... verbatim oral statements, made by co-defendants, ... co-conspirators or accomplices ... . Appellant raises five issues in his pro se petition alleging ineffective assistance of his trial counsel and one issue of court error. In his allegation of court error, the Appellant claims the Commonwealth’s witnesses, especially Jeffrey Hutcheson and Richard Taylor, who were career criminals, lacked credibility. Issues of credibility are properly left to the trier of fact for resolution, and the finder of fact is free to believe all, part, or none of the evidence. Fahy, 512 Pa. 298, 516 A.2d 689 (1986). Since we have concluded that the evidence is sufficient to support the verdicts, Appellant’s credibility arguments have no merit. Next, Appellant claims that his trial counsel was ineffective. Ineffectiveness claims are measured by two components: 1) counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit; and, 2) the defendant is required to show how the ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). First, Appellant claims that his defense counsel was ineffective in not investigating the witnesses, Aaron Heiner and Robin Wright, and their whereabouts, when the trial judge and the district attorney claimed they were missing. We have already addressed this after-discovered evidence claim and rejected it as meritless and must reject any ineffectiveness claim along these lines. Next, Appellant accuses his defense counsel of not acting as a reasonable advocate on his behalf. He contends that his counsel did not file any constitutional challenges to the death penalty; that he failed to exercise Appellant’s right under the Witherspoon doctrine (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)); and that counsel failed to establish an evidentiary record which could be used to demonstrate bias against the Appellant. First, in Zettlemoyer, this court has rejected claims that the death penalty is unconstitutional under both the state and federal Constitutions. Zettlemoyer, id. Second, this Appellant fails to set out with any degree of specificity the underlying facts for his Witherspoon violation. And finally, Appellant also fails to state specifically how he was prejudiced by his counsel’s alleged failure to "establish an evidentiary record.” Appellant also claims that he was prejudiced when his trial counsel failed to object when the prosecutor introduced evidence of Appellant’s prior convictions. There can be no merit to this argument since the prosecutor introduced this evidence only in response to Appellant’s decision to testify in the hopes that he could persuade jury that he was not involved in any "significant prior criminal history.” Finally, Appellant claims that his defense counsel was ineffective because he failed to argue that Pennsylvania’s death penalty statute creates a presumption favoring death. This argument was rejected in Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656, (1986).

OPINION PAPADAKOS, Justice. The appellee, Angel Valette, was convicted of possession of a controlled substance with intent to deliver following a jury trial in the Court of Common Pleas of York County. He appealed his judgment of sentence to the Superior Court, which affirmed. He thereafter filed a petition for allowance of appeal with this Court, which we granted, limited to examining the parameters of the theory of constructive possession. The convictions arose from evidence obtained in a police search of a two story apartment in York Pennsylvania. On November 15, 1988, police in possession of a search warrant raided the apartment unit. The living room was the first room entered by the police and was on the first story of the two story apartment. Co-defendant Felix Sanchez had admitted the police officers. Upon entry through the front door of the apartment they saw petitioner and co-defendant Carlos Delapaz sitting in the living room eating. Upon entering the kitchen which was located on the same floor, the police found co-defendant Teofilo Sarcedo. Officers located co-defendant Sonia Ramos in the bathroom of the apartment. Police secured the area and assembled all the occupants into the kitchen and proceeded to search the premises. During the Search of the living room, the police found the following in a closet on the top shelf: $1500.00 in cash hidden in a book, Dominican Republic passports bearing the names of co-defendants Sanchez and Delapaz, and a birth certificate of co-defendant Ramos. In the kitchen they found approximately two grams of cocaine in packets hidden behind a metal cabinet, and in the metal cabinet itself was a phone beeper and a photograph of petitioner, co-defendant Sarcedo, and two other unidentified males. On the kitchen table, the police found identification papers of co-defendants Sonia Ramos and Teofilo Sarcedo. The police searched the second floor of the two floor apartment. In a bedroom they discovered a closed briefcase hidden beneath floorboards. In the briefcase they found 283 grams of cocaine, a sifter, plastic bags and a cellular phone. Also beneath the floorboards was a triple beam balance and a plastic bag containing a residue of some sort. A wallet bearing identification for co-defendant Sarcedo was found under a mattress. A search was also conducted of the individual defendants. As a result, keys fitting the door locks of the apartment were found in co-defendant Delapaz’s pants pocket, and $217.00 in cash was found on co-defendant Sarcedo’s person. Apart from the various forms of identification and $1,500.00 in cash found hidden in the living room closet, nothing incriminating was found within the room where appellant was situated at the time of the raid, and appellant possessed no contraband on his person. The police arrested all the occupants of the apartment and charged them with various counts of possession and possession with intent to deliver controlled substances. One of the defendants pleaded guilty to simple possession and was not tried. The remaining defendants, including petitioner, were tried together despite the objections of counsel. The appellant’s counsel moved for a demurrer on the charges against his client, but the demurrer was denied. Appellant was ultimately convicted of possession with intent to deliver a controlled substance. Post trial motions were filed and denied, and the appellant was sentenced to serve a period of incarceration of not less than four (4) nor more than eight (8) years. On appeal, the Superior Court affirmed. As noted above, we granted petition for allowance of appeal for the purpose of examining whether the lower courts applied the proper test in assessing whether appellant had constructive possession of the controlled substances. The appellant argues that the evidence was not sufficient to establish constructive possession. He contends that he merely was in the wrong place at the wrong time, and that although he knew the co-defendants, he himself was not involved in drug dealing. In response, the Commonwealth contends that the testimony of lay and expert witnesses, together with the physical evidence, was sufficient to prove constructive possession of the controlled substances, and hence, the evidence was sufficient to sustain the convictions. In determining whether the Commonwealth has met its burden of proof, the test to be applied is: Whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered____ Finally, the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted). Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), citing Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). In drug possession cases, the Commonwealth must prove that a defendant had knowing or intentional possession of a controlled substance, and if the substance is not found on the defendant’s person, then the Commonwealth must satisfy that burden by proof of “constructive possession.” This Court has defined constructive possession as “the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Constructive possession may be found in one or more actors where the item in issue is in an area of joint control and equal access. Commonwealth v. Murdrick, 510 Pa. 305, 507 A.2d 1212 (1986). In Macolino, this Court further determined that “An intent to maintain a conscious dominion may be inferred from the totality of the circumstances____[and], circumstantial evidence may be used to establish a defendant’s possession of drugs or contraband.” Macolino, Id. 503 Pa. at 206, 469 A.2d at 134. (citations omitted). The Commonwealth’s evidence included testimony by Detective John Daryman. Detective Daryman was called both as an expert and an eyewitness since he was the head of the Vice and Narcotics Unit for the York City Police Department, he was in charge of the search of the apartment, and he was first to arrive at the scene. On direct he testified: the evidence seized from the premises was common to drug dealers; that if the drugs seized were broken into packets, the estimated street value would be over $42,000; and that it was a common occurrence that drug dealers rented apartments and kept them “staffed” with workers. Further evidence was presented that the apartment was rented to one Carlos Ozono and one Rosa Diaz; that they had disappeared and other people lived in the apartment; that one of the co-defendants was seen at the apartment on a prior occasion; and that the rent was continually paid up until the arrests were made. On recall, Detective Daryman further testified as to the purpose and use of the paraphernalia found within the apartment and that it was consistent with drug trafficking; that it was common among drug traffickers to rent apartments for dealers to occupy the space; and that here there was adequate space to sleep five individuals; and that prior to the search he observed people entering and exiting the apartment for short periods of time. Other evidence offered by the Commonwealth included testimony by Officer Donald Way, a narcotics agent for the Office of the Attorney General involved in the search of the apartment. He testified that he found various forms of identification including wallets, passports, birth certificates and photographs throughout the apartment, and that one of the defendants possessed the key to the apartment in his pocket. Testimony by other officers at the scene was offered in proof of the contraband and drugs seized including their location. The Commonwealth also presented testimony of Officer James M. McBride, an officer who testified that during the course of the raid he had asked the appellant whether he lived in the apartment; appellant allegedly nodded an affirmance. At trial the Commonwealth attempted to portray appellant as a participant involved in a large drug distribution scheme. However, the only link to the narcotics confiscated from the premises was his presence and apparent acquaintanceship with the co-defendants. The record is clear that no contraband was found in the room in which the appellant was sitting at the time entry was made by law enforcement officers; and, although $1500.00 in cash was found hidden on a shelf in a closet located in the room, there was no evidence that appellant knew of its existence, or had access to it: nor is the possession of cash a crime. Moreover, no personal property of petitioner’s was located in the apartment. The Commonwealth placed great reliance on the “fact” that Officer McBride asked the appellant whether he lived at the premises and that appellant nodded in the affirmative. However, it was established at trial that appellant did not speak English, and that the question to which appellant allegedly nodded was put to him solely in English. It is well settled that facts giving rise to mere “association,” “suspicion” or “conjecture,” will not make out a case of constructive possession. See Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); and Commonwealth v. Tirpak et al., 441 Pa. 534, 272 A.2d 476 (1971). More is required. In Macolino, supra, this Court held that a husband and wife can have constructive possession of drugs and paraphernalia which are seized from an area to which they had equal access: there, the marital bedroom. In Murdrick, supra, we held that constructive possession was established where the defendant was shown to have kept his personal belongings in the residence where drugs were found in plain view, and he actually slept in the bedroom where other drugs were found. In this case, the record demonstrates nothing more than that appellant was present in an apartment in which drugs were found. In order to find the drugs, the police were required to make a full search, and the most significant quantity of drugs was found in a room on a separate floor in a closed case located beneath floorboards. These facts are significantly different than those in either Macolino or Murdrick, and they do not satisfy the standards there announced for the demonstration of constructive possession. Accordingly, the order of the Superior Court is reversed and appellant’s conviction is hereby vacated. . Act of April 14, 1972, P.L. 233, No. 64, § 13, 35 P.S. § 780-113(a)(30). . 409 Pa.Super. 658, 589 A.2d 1178 (1991). . Although a photograph was found of appellant and a co-defendant together along with a two other men, the photograph was taken at a location other than the apartment and gave no information as to appellant’s residence. . Prior to trial, the trial judge made provisions for an interpreter for appellant upon trial counsel’s request because appellant could not speak English. The Commonwealth acquiesced in this request.

OPINION OF THE COURT FLAHERTY, Justice. This is a divorce case involving equitable distribution of a defined benefit pension fund. The issue presented is whether the non-employee spouse’s share in a deferred distribution of a pension should be based upon the salary which the employee-spouse earned at the date of separation or upon the amount earned at some post-separation retirement date. The trial court determined that the marital share should be based on the employee’s pension to be received at the time the pension plan enters pay status. Superior Court reversed, holding that the amount to be awarded the non-employee spouse should be based on the employee’s salary at the date of separation, but augmented by growth in the pension fund based on factors other than the employer’s or employee’s contributions to the fund after the date of separation. 409 Pa.Super. 355, 372, 598 A.2d 31, 40 (1991). We affirm. The parties were married on May 7, 1955. From marriage until husband left the marital home on July 15, 1984, he was a participant in the retirement plan of the Westinghouse Electric Corporation, his employer. After separation, husband continued to work for Westinghouse and to participate in the retirement plan. On January 9, 1985, husband filed a complaint in divorce. Divorce was granted on July 27, 1987 and the trial court retained jurisdiction over unresolved claims. Among the marital assets at issue in the equitable distribution was husband’s Westinghouse pension plan. This plan is a defined benefit plan consisting of a basic and a supplemental portion. Husband participates in both. Under the supplemental plan, the employer’s contributions are based on the employee’s contributions. If the employee makes no contributions, the employer makes none. Between the date of separation and February 28,1990, husband contributed $14,770.16 to the basic and supplemental portions of the plan. Husband also participated in the Westinghouse executive benefit plan, which is available only to .employees in an executive position for five continuous years preceding retirement. Pursuant to this plan, the pension benefit per month is determined by multiplying an executive pension multiplier (the employee’s years of service at retirement multiplied by 1.47%) by the average of the highest five months’ salaries for each year of the ten years immediately preceding retirement. The parties reached a settlement agreement concerning equitable distribution which provided that wife was to receive non-modifiable alimony in the amount of fifteen hundred dollars per month until wife cohabited or remarried, husband became 65, husband retired from Westinghouse at age 62, 63, or 64, or the death of either party. Wife was awarded 60% of marital property, including husband’s pension, pursuant to this agreement. Difficulty arose, however, when the parties attempted to prepare orders which embody the agreement. Because the Westinghouse plan is a qualified plan under the Retirement Equity Act of 1984, but the executive plan is not, the parties submitted two proposed orders, a Qualified Domestic Relations Order (QDRO) and a Domestic Relations Order. Husband’s proposed orders calculated his pension benefit by using his annual salary on the date of separation. Wife’s proposed orders calculated the amount of the pension benefit as of the deferred date, i.e., husband’s retirement, husband’s death, or the date wife begins receiving her portion of the benefit. 409 Pa.Super. at 358, 598 A.2d at 33. The trial court entered an order based on wife’s proposal and husband appealed. Superior Court reversed and this court granted allocatur. The trial court’s rationale was that LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986), controls and compels its result. In that case, the court determined that the marital share of husband’s pension was calculated by creating a fraction representing the number of years husband was in the pension plan as of the date of marital separation divided by the total number of years in the plan (“the coverture fraction”) , multiplied by the monthly pension to be received by husband at his normal retirement, multiplied by wife’s marital share as awarded at equitable distribution. This is the same method the trial court used in the present case. The trial court in this case expressed the belief that if wife were not paid in dollars calculated at the time of husband’s retirement, her share of the pension accumulated during marriage would be reduced in value by inflation. In the trial court’s words, wife would “be paid in the year 1994 with 1984 dollars even though his salary and thus his pension have been adjusted for inflation.” Common Pleas Slip Op. at 9. Superior Court reversed based on the following: (1) LaBuda was decided as it was because husband did not propose to the court another method of calculating the benefit owing to wife; (2) using husband’s retirement benefits at the date of retirement as the base on which to calculate wife’s marital share improperly uses husband’s non-marital contributions, i.e., those made after separation, to determine marital property; (3) husband in this case has proposed a method of calculating wife’s marital share of the pension which allows her to benefit from increases accruing from the date of separation until the date of payout without utilizing contributions made by husband after the date of separation. The pivotal questions are (1) whether the trial court’s method of calculating wife’s share of husband’s pension requires husband to pay, in part, with non-marital property acquired after separation; and (2) whether wife is unfairly penalized if her marital share of husband’s pension is calculated by utilizing husband’s salary as of the date of marital separation, even though she will not collect her share, possibly, for years after separation. As to the first question, the Divorce Code defines “marital property” as all property acquired during the marriage, with enumerated exceptions: (e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage, including the increase in value prior to the date of final separation of any nonmarital property acquired pursuant to paragraphs (1) and (3) except: s|s # S-Í ‡ & ❖ (4) Property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets. The Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(e), as amended 1988, February 12, P.L. 66, No. 13. This provision is substantially reenacted at 23 Pa.C.S. § 3501(a), Act of Dec. 19, 1990, P.L. 1240, No. 206, § 2. Thus, the Divorce Code excludes property acquired after the date of separation from consideration as marital property. The trial court’s order, however, relies on increased contributions made after separation as well as contributions made during the marriage. It may seem at first consideration that the trial court’s application of the coverture fraction (see note 5) to these increased contributions would prevent the post-separation (i.e., non-marital) increases from being distributed to wife. This, however, is not correct, for although the pension benefit would be reduced by the coverture fraction, the reduction would be applied to a pension that was partially produced by increased post-separation contributions. This is prohibited by section 401(e), for property contributed to the retirement plan after separation is not marital property. We conclude, therefore, that the trial court’s method of calculating wife’s share of husband’s pension benefits was in error. The evil which the trial court was trying to avoid, of course, was awarding wife a marital share of the pension which she would not receive for years and which would be dramatically diminished in value when she received it because of the time interval between being awarded a share of the pension and actually being paid that share. Husband’s proposal addresses this problem. Under his proposal wife receives 60% (her share of the marital property, including the pension) times the coverture fraction times the benefit at the determination date of the retirement plan on the basis of husband’s annual salary on July 31, 1984, the date of marital separation. Husband’s benefit statement, dated December 31, 1984, provides in pertinent part: YOUR CONTRIBUTIONS TO THE PLAN DURING 1984 - — TOTAL----- WITH INTEREST WITHOUT INTEREST $ 256.50 BASIC $ 840.60 $ 777.96 $1,796.25 SUPPLEMENTAL $26,283.43 $18,250.75 ' $2,052.75 TOTAL $27,124.03 $19,028.71 Assuming that you continue at your present benefit rate of pay and have no breaks in Credited Service up to your normal Retirement Date of July 1, 1997, your monthly pension will be $ 826.02 UNDER THE BASIC PORTION AND $2,773.22 UNDER THE SUPPLEMENTAL PORTION $3,599.24 MAKING YOUR TOTAL PENSION EACH MONTH Thus, husband’s employee benefit statement indicates that his monthly pension if he were to retire at the end of 1984, was $2,052.75; should he continue on until the age of 65 at the same rate of pay, his monthly retirement benefit would be $3,599.24, payable beginning July 1, 1997. Under husband’s proposal, if he were to work until age 65 and wife were to receive her share when husband retired, wife’s benefit would be calculated as follows: 350 months divided by 509 months (number of months husband contributed to the plan during marriage over total number of months husband was in the pension plan) times 60% (wife’s marital share) times the accrued pension payable based on husband’s July 31, 1984 salary, at age 65, subject to actuarial adjustments which may be necessary based on wife’s age when she begins to receive her portion of husband’s pension. We cannot complete the math in this example because we do not know what husband’s retirement benefit will be, even if it is based on his July, 1984 salary, since the plan’s formula may change or there may be other non-employee factors affecting its value. If we assume, however, that there were no other increases in benefits payable under the plan from sources other than husband’s non-marital contributions, wife’s benefits would be calculated as follows: 1. The coverture fraction would be 350/509, or .68762. 2. Wife’s marital share is 60%. 3. Husband’s benefits payable at age 65, based on contributions based on his 1984 salary, paid until he reached 65, are $3,599.24/month. 4. Wife’s benefits would be 350/509 (.68762) X .60 X $3,599.24, or $l,484.95/month, subject to actuarial adjustment. Although wife may benefit from calculating the final pension based on the fiction that husband will continue to make the same post-separation contributions that he made at the time of separation, this does not award wife non-marital property, since her share is reduced by the coverture fraction multiplied by the same salary husband made at separation, but paid over years until he actually retires. The only purpose in creating the fiction that husband will make the same salary and pay the same contributions into the fund until normal retirement is that it gives wife the benefit of favorable changes in the benefits payable, if there are any, owing to factors not based on husband’s increased contributions or efforts. Thus, husband’s proposal not only avoids awarding wife a share of non-marital property, but also allows wife to receive a marital share that is increased in value proportionate to the increase in value enjoyed by husband based on factors which have nothing to do with his increased contributions or effort. As husband puts it, his proposed orders which do not even limit her to a share of $3,599.24, give the wife a share of all increases except increases which are based on post-separation pay raises and post-separation contributions. Brief at 12. We believe that husband’s assessment of his proposal is correct. Accordingly, we hold that in a deferred distribution of a defined benefit pension, the spouse not participating may not be awarded any portion of the participant-spouse’s retirement benefits which are based on post-separation salary increases, incentive awards or years of service. Any retirement benefits awarded to the non-participant spouse must be based only on the participant-spouse’s salary at the date of separation. However, should there be increases in retirement benefits payable to the employee spouse between the date of marital separation and the date the non-participant spouse begins receiving benefits which are not attributable to the efforts or contributions of the participant-spouse, any such increased benefits may be shared by the non-participant spouse based upon his or her proportionate share of the marital estate. Affirmed. Remanded to the trial court for entry of a QDRO and Domestic Relations Order consistent with this opinion. LARSEN, J., did not participate in the decision of this case. CAPPY, J., files a dissenting opinion. MONTEMURO, J., files a dissenting opinion. . A defined benefit plan is one in which the employer promises a certain benefit; a defined contribution plan is one in which the employer promises a certain contribution. In a defined benefit plan, the benefit which is promised is calculated by a formula defined in the pension plan provisions. The employer pays a specified benefit at retirement. In some defined benefit plans, the employee contributes nothing; in others, the benefits are based, in part, on what the employee contributes. The employer’s contribution to the plan, however, varies from year to year based on the amount which is needed at any particular time to pay the benefits which are due. Individual accounts of each employee’s contribution, if any, are maintained, but these accounts do not specify an employer contribution. In a defined contribution plan, however, individual accounts specify not only the employee’s contribution, but the employer’s as well. The benefits to be paid in the defined contribution plan, however, unlike those in the defined benefit plan, are not fixed, for they depend upon the performance of investments which are made with the contributions. . The Retirement Equity Act of 1984 (REA) amended the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. and the Internal Revenue Code, 26 U.S.C. § 1 et seq., providing, inter alia, for the allocation and distribution of pension benefits at divorce: ERISA requires, as a condition of plan qualification, the inclusion of a spendthrift provision which prevents the assignment or alienation of pension benefits. This has sometimes presented a conflict to the plan administrator, whose duty extends not only to the plan and the plan participant, but also to the beneficiaries. The Retirement Equity Act eliminates this conflict by expressly providing for the allocation of pension benefits in matrimonial litigation. This allocation is achieved by means of a "qualified domestic relations order” (QDRO). The Act specifically exempts qualified domestic relations orders from the peremption provisions of ERISA. Wilder, Mahood, and Greenblatt, Pa. Family Law Prac. and Proc. Handbook (2d ed), § 14-10. . A QDRO: is a domestic relations order which creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under the plan. To be "qualified,” the order must contain certain required information and may not alter the amount or form of plan benefits. Wilder, Mahood and Greenblatt, Id. . A domestic relations order: is a judgment, decree or order, including approval of a property settlement agreement by the court, which relates to the provision of child support, alimony payments or marital property rights of a spouse, former spouse, child or other dependent of a plan participant and is made pursuant to a state domestic relations law. Wilder, Mahood, and Greenblatt, Id. . The coverture fraction is defined as: that portion of the value of the pension that is attributable to the marriage. The numerator of the fraction is the total period of time the employee spouse was a participant in the plan from date of marriage until date of separation, and the denominator is the total period of participation in the pension plan. LaBuda v. LaBuda, 349 Pa.Super. 524, 536 n. 9, 503 A.2d 971, citing King v. King, 332 Pa.Super. 526, 533, 481 A.2d 913, 916 (1984). . Every year from 1984 — 1990 husband increased his contribution to the pension plan. Thus, in the years after separation (1984), he contributed more on an annual basis than he did during 1984. R. Rec. 268a. . The parties do not dispute that the trial court properly employed the deferred distribution method, rather than the immediate offset method of dividing marital property, for there were insufficient assets in the estate to permit the husband to offset his interest in his pension by relinquishing a present interest in other marital property. . Under the husband’s proposed QDRO, the wife’s benefit determination date shall be the earliest of a. the Participant’s separation from service; b. the Participant’s death; or c. the date the Alternate Payee [wife] begins receiving her portion of the Benefit awarded to her hereunder. R. Rec. 272 a. . Under the husband’s proposed QDRO, wife's benefits begin: 9. Payments to the Alternate Payee will begin on the date selected by the Alternate Payee [see footnote 8] provided that such date cannot be earlier than the earliest date under the Plan that the Participant could have begun to receive benefits had he retired even if the Participant has not actually retired or separated from service with Westinghouse at that time or dies before then. R. Rec. 276a.

OPINION CAPPY, Justice. In this case, the appellee, Southeastern Pennsylvania Transportation Authority (“SEPTA”), moved for summary judgment under the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521-8528 (the “Sovereign Immunity Act” or “Act”), asserting that it may not be held liable to the appellant, Crystal Jones (“Jones”), for the injuries she allegedly sustained when she slipped on rock salt on a SEPTA train platform and fell. Jones responded that the Act’s real estate exception, 42 Pa.C.S. § 8522(b)(4), which serves to waive immunity, applies to her claim. We granted allocatur to clarify the parameters of § 8522(b)(4). We conclude that Jones’ claim does not fall within the exception. Accordingly, we affirm the Commonwealth Court’s order, affirming the trial court’s entry of summary judgment in favor of SEPTA. On December 23, 1996, Jones was injured when she slipped and fell on a train platform at SEPTA’s Fern Rock station in Philadelphia, Pennsylvania. On May 27, 1997, Jones commenced an action in negligence against SEPTA. Jones alleged that the sole cause of her slip and fall was the rock salt that lay on the train platform, and that SEPTA was negligent in not warning the public of the salt and in failing to clear it. In its Answer and New Matter, SEPTA denied Jones’ allegations of negligence, and as a Commonwealth party, raised sovereign immunity as an affirmative defense. Ultimately, SEPTA filed a motion for summary judgment. SEPTA contended that as a matter of general rule, the Sovereign Immunity Act shields it from suit, and that Jones had no evidence to support her assertion that her claim was allowed by the Act’s real estate exception found at 42 Pa.C.S. § 8522(b)(4). SEPTA argued that § 8522(b)(4) requires proof that Jones’ injuries resulted from a dangerous condition “of’ the train platform itself, as opposed to the presence of a substance or an object “on” it, and that since Jones neither averred nor could show such a condition, the real estate exception did not apply. The trial court agreed, and granted SEPTA summary judgment. Jones filed a timely appeal in the Commonwealth Court. A divided panel of the Commonwealth Court affirmed in a published opinion, also finding merit in SEPTA’s interpretation of the Sovereign Immunity Act’s real estate exception and its characterization of Jones’ position. Crystal Jones v. Southeastern Pennsylvania Transp. Auth. 748 A.2d 1271 (Pa. Cmwlth.2000). Based on our opinion in Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995), in which we interpreted the sidewalk exception to governmental immunity in the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542(b)(7) (the “Tort Claims Act”), the majority determined that SEPTA’s liability could only be premised on evidence that Jones’ injuries resulted from a dangerous condition that was “of’ SEPTA’s platform. As Jones sought to show that the dangerous condition was merely “on” the platform, the majority held that under Finn, Jones’ suit necessarily failed. Jones, 748 A.2d at 1274. Further, the majority rejected Jones’ contention that this court’s opinions in Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997) and Kilgore v. City of Philadelphia, 553 Pa. 22, 717 A.2d 514 (1998), in which we interpreted the real estate exception in the Tort Claims Act, 42 Pa.C.S. § 8542(b)(3), without referring to an “on” or “of’ dichotomy, indicated that we had abdicated Finn’s analysis. Jones, 748 A.2d at 1272-74. By contrast, the dissent believed that Grieff and Kilgore had overruled Finn, and that Jones’ claim could proceed under Kilgore’s teaching. Id. at 1274-75. This appeal followed. Our discussion starts with the well-settled rules that govern our review. Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Ass’n, Inc., 547 Pa. 224, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which “an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.” Pa.R.Civ.P. 1035.2(2). We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992). Our scope of review of a trial court’s order granting or denying summary judgment is plenary, O’Donoghue v. Laurel Savings Ass’n, 556 Pa. 349, 728 A.2d 914, 916 (1999), and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (1995). Given the opposing positions taken in this case with regard to the immunity statutes and our prior holdings, we begin with a review of those statutes and cases. The Sovereign Immunity Act was passed by the General Assembly in response to this court’s decision in Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978), to abrogate the doctrine that the Commonwealth enjoys immunity from suit. In § 8521(a) of the Act, the legislature reinstated the doctrine as a general rule. 42 Pa.C.S. § 8521(a). In § 8522, however, the legislature waived the bar of suit on a limited basis. 42 Pa.C.S. § 8522. Subsection 8522(a) announces that immunity is waived in certain instances and authorizes the imposition of liability against the Commonwealth “for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S. § 8522(a). Subsection 8522(b) then delineates the specific instances in which the defense of sovereign immunity may not be raised. The real estate exception that is directly before us states: § 8522. Exceptions to sovereign immunity (b) Acts which may impose liability.-The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by: U) Commonwealth real estate, highways and sidewalks.-A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5). 42 Pa.C.S. § 8522(b)(4) (emphasis added). The Tort Claims Act was also a legislative response to one of our decisions. The General Assembly enacted the Tort Claims Act when this court abrogated the doctrine of governmental immunity in Ayala v. Philadelphia Bd. of Pub. Educ., 453 Pa. 584, 305 A.2d 877 (1973). Like the Sovereign Immunity Act, the Tort Claims Act raises the bar of immunity, 42 Pa.C.S. § 8541, but not absolutely. Under § 8542, liability for damages on account of an injury to person or property will be imposed on a local agency if two conditions are met and if the injury occurred as a result of one of eight delineated acts. 42 Pa.C.S. § 8542. Two of the eight exceptions are relevant. The first is the sidewalk exception that we interpreted in Finn. It provides: § 8542. Exceptions to governmental immunity (b)Acts which may impose liability. — The following acts by a local agency or any of its employees 'may result in the imposition of liability on a local agency: (7) Sidewalks. — A dangerous condition of sidewalks unthin the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable. 42 Pa.C.S. § 8542(b)(7) (emphasis added). The second is the real estate exception interpreted in Grieff and Kilgore, which states: § 8542. Exceptions to governmental immunity (b) Acts ivhich may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: (3) Real property. — The care, custody and control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, ‘real property’ shall not include: (i) trees, traffic signs, lights and other traffic controls, street lights and lighting systems; (ii) facilities of stream, sewer, water, gas and electric systems owned by the local agency and within rights-of-way; (iii) streets; or (iv) sidewalks. 42 Pa.C.S. § 8542(b)(3) (emphasis added). Because the legislature’s intent in both the Sovereign Immunity and Tort Claims Acts is to shield government from liability, except as provided for in the statutes themselves, we apply a rule of strict construction in interpreting these exceptions. Finn, 664 A.2d at 1344. Moreover, as the immunity statutes deal with the same subject matter, we read them consistently. Id. Turning to our prior precedent, in Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989), we considered the meaning of the real estate exception in the Sovereign Immunity Act in the context of a Commonwealth roadway. The plaintiffs had stopped their car on the berm of a state highway. When they exited the vehicle, they scrambled up an embankment and fell into a mine pit. Relying on 42 Pa.C.S § 8522(b)(4), plaintiffs sued the Commonwealth’s Department of Transportation (“PennDOT”) for permitting a dangerous condition to exist within its right-of-way. More specifically, plaintiffs averred that PennDOT was negligent in failing to install lighting or physical barriers to warn the public of a deep chasm in close proximity to its highway. We concluded that given the clear wording of the statute, the limited waiver of § 8542(b)(3) did not apply, stating: “[t]he unambiguous language of section 8522(b)(4) in relevant part provides ‘A dangerous condition of Commonwealth agency real estate...’. These key words indicate that a dangerous condition must derive, originate from or have as its source the Commonwealth realty.” Id. at 311. In a footnote to this passage, we explained: “The critical word in the statutory language is the word ‘of.’ The meaning ascribed to this preposition is ‘(2) used to indicate derivation, origin or source.’ ” Id. at n. 5 (citation omitted). We held, therefore, that “sovereign immunity is waived pursuant to 42 Pa. § 8522(b)(4), where it is alleged that the artificial condition or defect of the land itself causes an injury to occur.” Id. at 312. As it was uncontroverted that the strip mine highwall, at the points where the plaintiffs fell, was some distance from the edge of PennDot’s right-of-way and that the absence of lighting did not create either an artificial condition or defect of the land itself, we concluded that § 8522(b)(4) was inapplicable to plaintiffs’ lawsuit. Id. at 312-13. In Finn, we interpreted the sidewalk exception to governmental immunity in the Tort Claims Act. 42 Pa.C.S. § 8542(b)(7). The plaintiff sued the City of Philadelphia for the injuries she allegedly suffered when she slipped on an accumulation of grease on a city sidewalk. We held that § 8542(b)(7) did not pierce the city’s immunity. Emphasizing the phrasing of the exception — “a dangerous condition of sidewalks” — and its reference to the “installation and repair of sidewalks”, we determined that the exception imposes liability for “the physical condition of the sidewalks themselves”, not for “objects and substances upon sidewalks” that “are not part of [their] physical condition.” 664 A.2d at 1345. Relying on our interpretation in Snyder of the “dangerous condition of” language of the Sovereign Immunity Act’s real estate exception, we held that application of the Tort Claims Act’s sidewalk exception depended ultimately on the “legal determination that an injury was caused by a condition of government realty itself, deriving, originating from, or having the realty as its source, and, only then, the factual determination that the condition was dangerous.” Id. at 1346. We stated: What is necessary, therefore, to pierce the Commonwealth agency’s immunity is proof of a defect of the sidewalk itself. Such proof-might include an improperly designed sidewalk, an improperly constructed sidewalk, or a badly maintained, deteriorating, crumbling sidewalk. Here however, we have no such allegation or proof. We have a perfectly designed and constructed sidewalk, undamaged, upon which an unidentified individual or individuals deposited a foreign substance which caused appellant’s injury. In the terms of Snyder, supra at 522 Pa. 424, 562 A.2d 307, the dangerous condition did not derive, originate from or have as its source the sidewalk. In the language of the statutory exception to governmental immunity, the dangerous condition was on the sidewalk, not of the sidewalk, and thus is insufficient to create liability in the city. Id. After Finn was decided, the lower courts and litigants fashioned an analysis apparently from the last sentence in this passage, commonly referred to as the “on/of distinction”, to identify claims that may proceed against the Commonwealth and a local agency under the Sovereign Immunity Act’s real estate exception, 42 Pa.C.S. § 8522(b)(4), and the Tort Claim Act’s sidewalk exception, 42 Pa.C.S. § 8542(b)(7), respectively. As reflected in the Commonwealth Court’s opinion, under this analysis, immunity is waived only if a plaintiff alleges that her injuries were caused by a dangerous condition “of’ the location at issue; allegations that a substance or object was “on” the location are insufficient. Jones, 748 A.2d at 1273. Lastly, in Grieff and Kilgore, this court addressed the real estate exception to governmental immunity in the Tort Claims Act. 42 Pa.C.S. § 8542(3). In the former case, the plaintiff was injured when paint thinner on the floor of a Fire Association’s station ignited; in the latter, the plaintiff was injured when an employee of the Philadelphia International Airport lost control of a motorized tug due to an accumulation of ice and snow on a roadway. In both cases, without referring to the “on/of distinction”, we held that allegations that a governmental agency was negligent in the care of its real property were encompassed by the Tort Claims Act’s real estate exception. Grieff, 693 A.2d at 197; Kilgore, 717 A.2d at 517. Our decision was premised on the “care, custody and control” language of the exception. Indeed, it was this language that compelled an outcome that differed from that in Finn. In Grieff, we explained: Finn involved the sidewalk exception to governmental immunity — not the real property exception. These statutory exceptions to immunity are distinct. The sidewalk exception subjects a municipality to liability for negligence related to a ‘dangerous condition of sidewalks.’ The real property exception more broadly subjects a municipality to liability for harm resulting from the negligent ‘care, custody or control’ of its property. Grieff, 693 A.2d at 196 n. 3 (citations omitted). In Kilgore, we added: “[although this Court has previously stated that the real estate and sidewalk exceptions to governmental and sovereign immunity should be interpreted consistently, the plain language chosen by the legislature cannot be ignored in doing so.” Kilgore, 717 A.2d at 518 n. 6. With this background in mind, we turn to clarifying the framework for distinguishing between claims arising out of the presence of a substance or an object on Commonwealth property that satisfy the terms of the Sovereign Immunity Act’s real estate exception at 42 Pa.C.S. § 8522(b)(4), and such claims that do not. This is an issue of statutory construction. As with any statutory construction question, the rules set forth in the Statutory Construction Act govern. 1 Pa.C.S. §§ 1901-1991. Our task in interpreting § 8422(b)(4) is to ascertain and effectuate the legislature’s intent in enacting the provision. 1 Pa.C.S. § 1921(a); Frontini v. Commonwealth Dep’t. of Transp., 527 Pa. 448, 593 A.2d 410, 411-12 (1991). In this regard, § 8522(b)(4)’s language and the statutory scheme in which it is found control. 1 Pa.C.S.A. § 1921(a)-(b); Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887, 889 (1974). The parties have, of course, weighed in on this matter. Interestingly, both Jones and SEPTA question the continued viability of the “on/of distinction”. The analysis that should control, in the event we reject it, is, not surprisingly, where the parties differ. Jones, on the one hand, directs our attention to the word “acts” in 42 Pa.C.S. § 8522(b), and asserts that the General Assembly authorized the imposition of liability on the Commonwealth under the real estate exception for more than conditions. Employing a traditional negligence analysis, Jones argues that immunity under 42 Pa.C.S. § 8522(b)(4) is waived in cases where it is proven that the Commonwealth owed the plaintiff a legal duty, the Commonwealth breached its duty, and the breach was the proximate cause of plaintiffs harm. Thus, according to Jones, SEPTA, like a private common carrier, may be held liable for any negligent act or omission that renders ingress and egress from its station unsafe, and her claim that SEPTA’s negligence in allowing a substance to accumulate on its platform and create a dangerous condition falls within the Act’s real estate exception. SEPTA’s approach, on the other hand, focuses on the “derive, originate or source” definition of the word “of’ in the “dangerous condition of real estate” phrasing of the § 8522(b)(4)’s exception, which we emphasized in Snyder, 562 A.2d at 311 & n. 5. SEPTA contends that the dispositive inquiry in these cases need not be cast in terms of whether a claim alleges that a substance or object was “on” or “of’, the real estate, but rather, should center on whether a claim satisfies that specific statutory language. Having carefully evaluated the parties’ respective arguments, and having had the benefit of years of observing how the so-called “on/of distinction” has affected this area of the law, we now conclude that the “on/of distinction” is problematic and of little or no use. Not only is it strained and confusing, it is also incorrect, because it works to exclude claims that fall within the parameters of the Act’s real estate exception. See infra, note 3. Therefore, we reject it. We now turn to each party’s alternative view of 42 Pa.C.S. § 8522(b)(4). Jones’ interpretation of the exception essentially incorporates the elements of a negligence cause of action. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680, 684 n. 5 (1983). By doing so, it only mirrors the Act’s threshold condition in 42 Pa.C.S. § 8522(a) that liability may be imposed on the Commonwealth for damages flowing from a negligent act where those damages would be recoverable under the common law or a statute against a person not having the defense of sovereign immunity available, and provides no suggestion as to the proper construction of the words of the real estate exception at 42 Pa.C.S. § 8522(b)(4), into which Jones’ claim, if it is to proceed, must fall. Appellant’s interpretation is, accordingly, unacceptable. By contrast, we find great merit in SEPTA’s approach. We agree that the key to § 8522(b)(4)’s meaning lies in the polestar of legislative intent, the plain meaning of the exception’s “dangerous condition of’ language. 42 Pa.C.S. § 8522(b)(4); 1 Pa.C.S. § 1921. We also agree that a return to our interpretation of § 8522(b)(4) in Snyder; which was founded on our understanding of that very phrase, is warranted. Accordingly, guided by Snyder, we conclude that a claim for damages for injuries caused by a substance or an object on Commonwealth real estate must allege that the dangerous condition “derive[d], originate[d] or ha[d] as its source the Commonwealth realty” itself, if it is to fall within the Sovereign Immunity Act’s real estate exception. Snyder, 562 A.2d at 311 & n. 5. In other words, assuming all other requirements of the statutory exception at 42 Pa.C.S. § 8522(b)(4) are met, the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, for example, that a substance or an object on Commonwealth realty was the result of a defect in the property or in its construction, maintenance, repair or design. At this point, we revisit the precedent we previously discussed. Our decision in this case and our decision in Finn are entirely consistent. Here, as there, we focus on the “dangerous condition of’ phrase that the statutory exceptions in the Sovereign Immunity and Tort Claim Acts share respectively, and are guided by Snyder’s teaching. Thus, Finn’s essential holding that application of 42 Pa.C.S. § 8542(b)(7) depends on the “legal determination that an injury was caused by a condition of the government realty itself deriving, originating from, or having the realty as its source”, 664 A.2d at 1346, is identical to our present holding. This is as it should be, since the material words the General Assembly used in the Sovereign Immunity Act’s real estate exception mirror the material words it used in the Tort Claims Act’s sidewalk exception. 42 Pa.C.S. §§ 8522(b)(4); 8542(b)(7),. Moreover, our interpretation of 42 Pa.C.S. § 8522(b)(4) does not conflict with Kilgore’s and Grieffs interpretation of the Tort Claims Act’s real estate exception. 42 Pa.C.S. § 8542(b)(3). As aptly noted in those cases, the language the legislature chose for subjecting the Commonwealth to liability under 42 Pa.C.S. § 8522(b)(4) — “a dangerous condition of Commonwealth agency real estate” — varies markedly from the language it chose for subjecting a local agency to liability under 42 Pa.C.S. § 8542(b)(3) — the “care, custody or control of real property....” See Kilgore, 717 A.2d at 518 n. 6; Grieff, 693 A.2d at 197 n. 3. Because the words the General Assembly used in the Sovereign Immunity Act are one way and the words it used in the Tort Claims Act are another, we are of the view that the legislature did not intend that § 8422(b)(4) and § 8542(b)(3) be interpreted in lockstep. It now remains to apply the Sovereign Immunity’s Act’s real estate exception to the claim before us. In her complaint, Jones avers that “salt on the ground” of SEPTA’s train platform constituted a “dangerous condition”, causing her to slip and fall and suffer bodily harm. (Complaint, paras.4,5,9). The complaint, however, has no averments, wThich if proven, would establish that the salt derived or originated from or had as its source the train platform itself. We conclude, therefore, that Jones’ claim does not satisfy the terms of 42 Pa.C.S. § 8522(b)(4), the Sovereign Immunity Act’s real estate exception, and that SEPTA is immune from Jones’ suit under 42 Pa.C.S. § 8521. Accordingly, we affirm the Commonwealth Court’s order, affirming the trial court’s order granting SEPTA’s motion for summary judgment. Justice NEWMAN did not participate in the consideration or decision of this matter. Chief Justice FLAHERTY files a concurring opinion in which Justice ZAPPALA joins. . The Sovereign Immunity Act provides: § 8521. Sovereign immunity generally (a) General rule. — Except as otherwise provided in this subchapter, no provision of this title shall constitute a waiver of sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise. 42 Pa.C.S. § 8521(a). . The two threshold conditions set forth in § 8542(a) are: § 8542. Exceptions to governmental immunity (a) Liability imposed. — A local agency shall be liable for damages on account of an injury to person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts in subsection (b): (1) The damages would be recoverable under common law or statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541...and (2) The injury was caused by negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, 'negligent acts’ shall not include acts or conduct which, constitutes a crime, actual fraud, actual malice or willful misconduct. 42 Pa.C.S. § 8542(a)(l)-(2). . Jones provided an illustration to support her contention that the "on/of distinction" should be rejected. The illustration also demonstrates the application of our interpretation of the Act’s real estate exception. In her Brief, Jones stated: Applying the '[on/of]’ analysis as a rule to determine whether or not immunity is waived will produce absurd, inconsistent and illogical results. If an individual is walking on [CJommonwealth property and steps in a hole in the walkway (defect of the property), (hen immunity is waived. However, if that same individual is walking on the same property and trips and falls over a chunk of the walkway that formerly had been filling the hole and now is sitting on top of the walkway (defect on the property), immunity applies. (Appellant’s Brief at 26). Jones is correct at least to argue that under the on/of distinction, immunity would be waived pursuant to 42 Pa.C.S. § 8522(b)(4) in the first scenario, but not in the second. Under our present holding, there is no argument that both of these scenarios would satisfy the terms of the Act's real estate exception. In both, the object on the walkway derived from, originated or had as its source the Commonwealth realty itself.

The opinion of the Court, filed was delivered by Black, C. J. — By an act of the legislature, passed April 5,1853, supplemental to the charter of the Lebanon Yalley Railroad Company, that corporation was authorized to increase its capital, to borrow money, to construct a branch, and to pay interest to its stockholders until the work was finished. The same act provided that the corporate or constituted authorities of Reading city, Lebanon county, and Lebanon borough, might subscribe for shares in the stock of the company. It was further provided that in case the constituted authorities of the city, borough, or county aforesaid should propose to make such subscription, they should fix upon, and give notice of a time for holding a public election, at which the people might vote for or against the subscription, which should be valid if a majority was for it, and otherwise should not be made. On the 10th of May last, the select and common councils of Reading met in joint session, and by a joint vote adopted a resolution, that an election should be held on the 15th of June, “ to decide for or against a municipal subscription of two hundred thousand dollars.” The election was had, and resulted in favor of the measure by a majority of more than two to one. This bill is brought to restrain the corporate authorities from making the subscription. The injunction is claimed on four different grounds, which may be stated as follows : 1. All laws authorizing subscriptions by municipal bodies to the stock of railroad companies, are unconstitutional and void. 2. This particular act is void, because it extends the charter of more than one corporation. 3. The act is void, for the further reason that it delegates legislative power to the people of Reading. 4. Supposing the law to be in itself constitutional and valid, it has not been properly complied with by the corporate authorities, inasmuch as they did not propose to subscribe before the election of the people was ordered. I shall consider these points in their order. I. The first one has been already decided in the case of Sharp-less v. Philadelphia. However easy it may be to demonstrate that public debts ought not to be created for the benefit of private corporations, and that such a system of making improvements is impolitic, dangerous, and contrary to the principles of a sound public morality, we can find nothing in the constitution on which we can rest our consciences in saying that it is forbidden by that instrument. II. The constitution, in sect. 25 of art. 1, provides that “ no corporate body shall be hereafter created,, renewed, or extended with hanking or discounting privileges, without six months’ previous notice of the intended application for the same, in such manner as shall be prescribed by law. Nor shall any charter, for the purpose aforesaid, be granted for a longer period than twenty years, and every such charter shall contain a clause reserving to the legislature the power to alter, revoke, or annul the same, whenever in their opinion it may be injurious to the citizens of the Commonwealth, in such manner, however, that no injustice shall be done to the corporators. No law, hereafter enacted, shall create, renew, or extend the charter of more than one corporation.” It is insisted that the last clause of this section is violated by the lawr before us, inasmuch as it extends the charters of the railroad company and of the city of Reading, as well as those of the county and borough of Lebanon. The object of this section seems to have been a restraint upon the chartering of banks. Whether it can be made to cover the ease of other private corporations, is a question which need not now be determined. But there is not the least reason to believe that public political corporations were in the minds of the convention when the amendment was agreed on, or thought of by the people when they adopted it. It was meant to meet a well-known evil, much discussed at the time, as well as before and since, and not to prevent what nobody ever thought to be wrong. Qui hceret in litera hceret in cortice is a maxim in the interpretation of all laws, the fundamental law among others. The constitution is entitled, like other instruments, to a construction, as nearly as may be, in accordance with the intent of its makers. Again: it is very far from being clear, that increasing the privileges of corporations, or assigning new duties to them, is an extension of the charter, within the meaning of the constitution. If it be, and i'f all corporations are included within this prohibition, then no law could be passed authorizing two railroad companies to connect their works, or two counties to make a contract with one another, even though. it should be to compromise a dispute; because these are powers which in their nature could not be given to, nor executed by one alone. What is still worse, a general law would be unconstitutional if it gave new privileges to a whole class of corporations. Is this Court expected to decide, that when the legislature desire to add to the public functions of supervisors, they must pass a separate bill for every township in the state ? Or that the many general laws already passed relating to improvement companies are unconstitutional, and everything done under them void? We must keep clear of these absurdities, if we can do so, without allowing the constitutional injunction to be disregarded. Let us see, therefore, if we cannot satisfy the words in another way. To create a charter, is to make one which never existed before. To renew a charter, is to give a new existence to one which has been forfeited, or which has lost its vitality by lapse of time. To extend a charter, is to give one which now exists greater or longer time to operate in than that to which it was originally limited. I do not say that these words have no other meaning in the English language. They are not entirely free from ambiguity. Their signification, like that of other words, must depend much on the context. But the definitions here given are consistent with the sense in which they are, if not always, at least very often used, both in popular and legal phraseology; and to understand them so here is no violation of the “jus et norma loquendi.” It is fair to suppose that they are not used in the first sentence of the section with a different meaning from that which they are intended to express in the last. What, then, do they mean' in the first ? The language is, “No corporate body shall be hereafter created, renewed, or extended.” Though an increase of privileges might be, in some sense, extending a eliarter, it can hardly be said that a corporate body is extended in any other way than by prolonging its entire existence. This construction is not unsupported by authority. It has not, indeed, received the direct sanction of any express judicial decision. But the legislature, with many members of the convention in it, has always acted upon this interpretation. And this has been done with the silent acquiescence of all the people, including the legal profession and the judiciary. The defendants’ counsel has produced us a list of two hundred and seventy-nine acts of Assembly, passed only within the last four years, creating one, and enlarging the powers of another corporation, or enlarging the powers of two corporations, both municipal and private. Some thousands of such laws have probably been passed since 1838. If we now declare them to be unconstitutional, and sweep away at once all the rights, publib and private, which have been acquired under them, we must do an amount of mischief which no man’s arithmetic can calculate. This is a proper element of legal judgment on such a subject. We are not to overlook the practice of the legislature, or disregard the consequences of doing so. The law questioned in Norris v. Clymer (2 Barr 277), was sustained by this Court principally because there had been many laws like it, and l’ights had grown up under them which it would be mischievous to annihilate. And the Supreme Court of the United States have declared (11 Peters 257), that the uniform exercise of an important power almost without question is no unsatisfactory evidence that the power is rightfully exercised. III. It is argued that this is not an exertion of legislative power by the assembly, but a mere delegation of it to the people of Reading. We cannot see it in that light. Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such a discretion is the making of the law. New privileges, conferred on a public corporation, need not be absolute and peremptory, so as to force them on the members against their consent. When individuals or corporators are merely authorized to do a thing, the doing of it necessarily depends on their own will; and we can see no reason why the acceptance of a new power, tendered to a public corporation, may not be made to depend on the will of the people when it is expressed by themselves, as well as when it is spoken by the mouths of their officers and agents. The case of Parker v. The Commonwealth (6 Barr 507), has been cited, and much ingenuity has been expended in the effort to make the principle there decided cover the facts which exist here. I do not propose to discuss it. In the case of the Cin., Wilm., & Zanesville R. R. Co. v. The Commissioners of Clinton County, very recently decided by the Supreme Court of Ohio, and not yet regularly reported, all the authorities which bear on the point, our own among them, are very carefully and ably reviewed. The opinion of the Court contains a full and convincing refutation of the plaintiffs’ argument here. When that case and the case of Slack v. The Maysville & Lexington R. R. Co., determined by the Supreme Court of Kentucky, shall come to be in the books, they will leave but little more to be expected or desired on the subject. But there is one view not distinctly taken by either of those courts, which I will add, because it strikes me as very conclusive. When the city was chartered, the legislature' had a right to prescribe, and did prescribe, how its municipal affairs should be ad ministered. They ordained that this should be done by two bodies called the Select and Common Councils. But they had the power to give it a very different organization. They could have made its government as purely democratic as that of Athens, requiring the people in their primary capacity to decide every question for themselves. Having this power at first, and there being nothing to forbid an alteration in the charter of a city, they could afterwards change it so as to increase the power of the people, and diminish that of the councils. This, in point of fact, is all that has been done. The law of 1853 is but an amendment of the charter, and declares that with reference to this affair of a railroad subscription the city shall be governed, not by the councils alone, but by the councils and the people together. IV. There is another objection to this subscription, which, though comparatively unimportant as a general principle, is much more serious than any of the rest in its effect on this case. The law says that in case the constituted authorities shall propose to subscribe, it shall be their duty to fix upon a time for holding an election, &c. I am of opinion that this made it the duty of the councils to meet separately, to deliberate on the question, and to decide it, before ordering an election — that the people had no more than a veto on the decision of the councils — and that an election before a formal proposal by the con'stituted authorities is void. Of this opinion also is Mr. Justice Lowrie. But the three other judges think differently. There is therefore no point in the cause on which a majority is willing to decree an injunction. Such a decree cannot be made either on the first or fourth without basing it on a foundation which the Court decide to be illegal. The motion for a special injunction is refused. Lewis, J., and Lowrie, J., dissented.

Chief Justice A shew delivered the opinion of the court, January 6 th 1876. This was an action by the widow of James McKean against Elkins, Bly and Co., manufacturers of refined petroleum or carbon oil. McKean died of burns received, either from the explosion of a lamp carried in his hand, or from a fall breaking the lamp and setting the oil on fire. The action was founded on the allegation that the defendants wilfully made and sold the oil for lighting purposes, knowing that it was highly inflammable, explosive and unsafe, and therefore unfit for use as a light. The case went to the jury distinctly on this proposition, the judge having charged in these words: “ If you should get beyond this question (to wit, the identification of the oil as made by the defendants), the next one which presents itself, and probably the most important question in the ease, is, Did the defendants wilfully and maliciously put it upon the market knowing it to .be, as she alleges in her declaration, unsafe, explosive, dangerous and unfit for illuminating purposes ? because if the}*- did not, under these allegations contained in this declaration or statement of her cause of action, there can be no recovery, and your verdict must be for the defendants.” According to this instruction no question of mere negligence, in putting the oil upon the market, arose or was presented to, the jury ; but their verdict of necessity must be founded upon the evidence of a wilful sale of such unfit oil, with a full knowledge of its inflammable and explosive character. Upon this precise statement the fifth and sixth assignments of error arise, that the court refused to say there was no evidence which would justify the jury in finding that the defendants knowingly and wilfully sold the oil, and that it was highly inflammable, unsafe and dangerous; and also that under the pleadings and evidence the plaintiff was not entitled to recover. Upon a careful review of the whole evidence there appears to be .none to justify the submission of the fact of the wilful sale by the defendants of ■ such an explosive and unfit oil for burning purposes with such a wilful and malicious knowledge as that set forth in the instruction. Indeed there is no evidence what the precise business of Elkins, Bly & Co. was — • what they manufactured, or what they sold; or that the oil in question coming from their house was sold as illuminating oil. That they made and sold illuminating oil appears from the barrels bearing their name, and the fire test, 110°, marked upon them, and from the testimony of J. M. Torrence; but that their business was confined to this branch alone does not appear. The contrary may well be inferred from the nature of the business of distilling crude petroleum in which various products are given off, used for different purposes. That the oil in the can'out of which Steele & Hart filled McKean’s lamp came from the manufactory of the defendants, may also be inferred from the evidence; but that this particular oil was sold by them as illuminating oil appears nowhere. The only testimony tending to identify the purchase of this oil, as from the defendants, is that of J. M. Torrence, the salesman of Arbuckle & Co., who sold the oil to Caskey. But Torrence does not undertake in the slightest degree to identify the sale of this particular oil, or to state for what purpose it was sold by the defendants, or to prove facts which would show that if it was the same oil, it was not delivered through accident, but must have been an intentional sale for lighting purposes of a product known by them to be below the proper fire test. The sum of his testimony is that Arbuckle & Co. were in the habit of buying large quantities at a time of oil in barrels, and having it delivered in small quantities to suit their sales, and that the books of Arbuckle & Co. show the sale of a barrel of oil to Caskey on the 11th or 12th of January 1873. But Caskey testifies that he frequently tried the oil bought of Arbuckle & Co., and found it always to bear the proper test. The only oil which did.not bear the test was that found in the can a day or two after McKean’s death, and whether this was the same oil with which McKean’s lamp was filled is left to depend upon the contradictory testimony of Steele and the boy Fedder, as to when the new barrel of oil was pumped into the can by Steele. And if it were the same, we are still met by the difficulty that there is no evidence that this particular oil was sold by Elkins, Bly & Co- for illuminating purposes. It may have been sold in a mistake, or may not have been, sold as bearing the fire test of 110°, but as one of their other products. Thus, upon the whole evidence, the turning fact of the case, viz.: a sale of this oil for illuminating purposes, with a guilty knowledge of its unfit and explosive character, is wanting in order to support the submission of the fact to the jury. This must reverse the judgment. The judgment must be reversed also on the third assignment of error, though I am inclined to believe it was an error of inadvertence. “ The first question (said the judge) will be, was the death of James B. McKean occasioned by the explosion occurring at the time, and in the manner claimed by the plaintiff ? In regard to this there can be no doubt whatever.” But if the testimony of Mrs. Emma Bear be believed (and it was for the jury to determine this), McKean’s death was the result of his tripping over a piece of wood in the cellar, in consequence of which he must have fallen and broken his lamp : and was not the result of a mere explosion of the gas in the lamp. The fact of such an explosion stood at the very threshold of the case, and in the face of this contradictory evidence it was too strong an affirmation of the fact, to tell the jury there could be no doubt that McKean’s death was occasioned by the explosion at the time, and in the manner claimed by the plaintiff. There is no doubt that his death -was caused by the burning oil at the time and place claimed by the plaintiff, and this is probably all the learned judge meant. But we must take the record for our guide, and when he said there was no doubt that the death was caused by the explosion in- the manner claimed by the plaintiff, he asserted too strongly, in view of the contradictory evidence. The other assignments of error are not sustained. What Mc-Kean said as to the cause of the accident when found enveloped in the flames of the oil, or within a few minutes afterwards, was clearly competent evidence as a part of the res gestee. This is so fully reasoned out and sustained in the following cases, that nothing can be said to make it plainer : Tompkins v. Saltmarsh, 14 S. & R. 275; Deardorff v. Hildebrand, 2 Rawle 226; Cattison v. Cattison, 10 Harris 275. The case of Fawcett v. Bigley, 9 P. F. Smith 411, was decided on a different principle. That was an attempt to make the narration of an agent of a past transac tion evidence against his principal, and was not competent. It was especially so when the agent had an adverse interest to relieve himself by his statements of the consequences of his own negligence. As to the second assignment of error, the reason given for excluding the evidence of the tests applied to the oil was unfounded. On the question of the identity of the oil in the can to which the tests were applied, the testimony of young Redder and Steele were in direct contradiction. If Fedder were believed, Steele did not pump the new barrel of oil into the can until after the oil had been taken out which was the subject of the tests. The case must of necessity have gone to the jury on the facts. Nor can the fourth assignment of error to the refusal to affirm the defendants’ second point be sustained. The substance of that point is, that after the oil had passed from the defendants in large quantities to Arbuckle & Co., and from them in smaller quantities to Caskey, and from Caskey to Steele & Hart, who sold the lampful to McKean, there can be no recovery. The argument in support of this point is founded upon the alleged successive intervening liabilities of the persons through whose hands the oil had passed. But this proposition is unsound as a legal defence. The number of hands through which the oil had passed might furnish a strong argument on the question of indentity, and the guilty knowledge of Elkins, Bly & Co. as to this particular oil, but could not constitute a legal bar to recovery, if the identity of the oil and the guilty knowledge were made clear. Certainly one who knowingly makes and puts on the market for domestic and other use, such a death-dealing fluid, cannot claim exemption from liability for his terrible wrong, because he has sent it through many hands. The length of its passage may create a doubt of its identity, or that it was sent on its mission of destruction with a full purpose and knowledge of its dangerous qualities, hut the facts being established,' he cannot escape the consequences of his crime against society. The maxim, qui facit per alium facit per se, applies as clearly as other maxim, sic utere tuo ut alienum non Icedas. When the article is thrown into the current of trade on the faith of the affirmation of its manufacturers that it is a fit oil for light, and can be safely used in the family, or where it maybe required for illumination, they cannot follow it, or avert its injuries, or determine how much of the responsibility is due to others. This is made more manifest by the testimony of Mr. Torrence, the salesman. He said: “ We never draw the bungs. We sell the oil in perfect confidence, relying on the manufacturers. We sell it as we receive it.” And so it may pass onward to the last person who retails it in the same confidence. A manufacturer who sells his product as an illuminating oil bearing the high and safe fire test of 110°, when in fact he knows that its fire test will not exceed 64 or 65 degrees of Fahrenheit, and that this is a most explosive and unsafe oil for domestic use, can plead nothing in defence of this wilful, terrible wrong done to a confiding community. He bears within him a heart regardless of social duty, evidencing malice in its legal sense in a high degree. But while the circuit through which the oil has travelled may be insufficient as a legal bar, proof which sustains the fact of a guilty knowledge should be clear in proportion to the great wrong thus charged against one who may be innocent. We have already said that the evidence offered in support of the guilty knowledge in this case was insufficient to be submitted to the jury. Judgment reversed, and a venire facias de novo awarded. Williams, J., concurred in the reversal of this judgment on the third assignment of error, but would not concur on the fifth and sixth assignments.

Opinion by Mr. Justice Patterson, This is an action for a divorce a vinculo matrimonii on the ground of indignities to the person by Harvey H. McKrell, appellee, against Frances Arline McKrell, appellant. The case was tried before a judge without a jury and the libel was dismissed. On appeal to the Superior Court the order was reversed and the record returned with a direction to enter a decree granting an absolute divorce. This Court allowed an appeal. The parties were married November 19, 1925, at Wellsburg, West Virginia. Following the marriage they lived at Avalon, Pennsylvania. McKrell, then a store manager for the Atlantic and Pacific Tea Company, later attended and was graduated from a chiropractic college and a school of naturopathy. He was subsequently licensed by the Commonwealth of Pennsylvania as a naturopath and opened an office in his residence. Three children, all of whom are living, were born of the marriage. No differences of a serious nature were experienced, and the parties to this litigation, with their three children, lived a normal happy life for seventeen years prior to June, 1941. Appellee prospered and family relations were harmonious. It was at this time that he secured the services of one Mrs. Eva McAnulty to assist him at the office. She was young and attractive, and. studied at the Universal College of Chiropractics at Oakland. She acted as secretary and stenographer, aided in the adjustment of patients, and made laboratory tests. Immediately after she became his assistant appellee began to remain at his office until twelve and tivelve-thirty in the morning. Rarely, if ever, was he at home with his family, putatively because both he and the assistant worked continuously, not only in the practice but also in the study of their profession. Appellant Avife protested this course of conduct. After having been informed that they had been seen together in public late in the evening, and having seen them upon one occasion in front of a theatre, she began to doubt the truth of his explanation. McKrell never manifested any intention of discontinuing the apparent close association with Mrs. McAnulty. As a result of the tension thus created appellant became troubled and suspicious of his infidelity. She sought the aid of his sister in restoring their previous happy family life. On January 17, 1942, Dr. McKrell, without any explanation to appellant and Avithout having provided for the maintenance and support of Mrs. McKrell and the children, left the family home and has never returned. Later he sent her $25 a Aveek for the maintenance of herself and the three children. He has never attempted, directly or indirectly, to effect a reconciliation. One year later, in January, 1943, he filed this libel in divorce. Tbe course of conduct charged by appellee against appellant is as follows: Prior to June, 1941, appellant was continually nagging; she made no effort to raise herself to the social standard which he was seeking to acquire; and she failed to conduct herself properly in the presence of patients. After June, 1941, when he se cured Mrs. McAnulty as Ms assistant, appellant became jealous and suspicious regarding their true relationship. Mutual professional interests and an increased clientele required that they work together practically every night, and that they attend professional meetings. They returned home together and npon several occasions secured the use of a taxicab rather than walk. Their association was purely for business purposes and his habit of walking home with her every evening was a matter of courtesy, since she lived only a block and a half from the McKrell home. Appellant refused to believe his explanations and on one occasion accused him of being a “whoremaster” and a “dirty lowdown son of a bitch.” Once she telephoned the assistant and called her a “hussy” and a “little whore”, and upon another occasion came to the doctor’s office and left a note in her typewriter, warning her to stay away from Dr. Mc-Krell. This suspicion and distrust continued to increase. On June 22, 1942, upon returning home late at night from a fraternity initiation appellee found the bedroom door locked and he was denied admittance to the room. Subsequent thereto accusations became more frequent. Appellant attempted to prejudice the children against their father, and in their presence accused him of indecency and improper conduct with Mrs. Mc-Anulty. As a result of this conduct, appellee contends that his professional standing and health have been affected. Appellant, Mrs. McKrell, denied that she interfered with her husband’s professional practice and that she was unreasonably jealous. She was a good housekeeper and mother, and prior to 1941 was happy and contented. Before Mrs. McAnulty became his assistant appellee rarely, if ever, came home late at night. She admits that as a result of her husband’s aforesaid association with Mrs. McAnulty she became suspicious and made accusations intimating infidelity, but denied the same were ever made in the presence of the children or any person other than her husband. Prior to June, 1941, she regularly met appellee in the city on Thursday evenings and they had dinner and enjoyed a movie or a show. After that date this routine ceased. She, however, continued to spend Thursday evenings in town. Upon one occasion she saw appellee and his assistant in front of the Penn Theatre. Several witnesses testified they had seen the appellee and Mrs. McAnulty going into the theatre together. They had been seen together at other places. One, Hazel Wilkie, positively identified them as the couple she had seen “with their arms around each other’s waists” on Euclid Avenue near Mrs. McAnulty’s home. Mrs. McKrell admitted calling the assistant on the telephone and telling her to stay away from her husband and that she wrote the note above referred to. The incident of the locked bedroom door was admitted. Appellant explained, however, that she was in great need of rest and, to prevent being disturbed by appellee’s habitual arrival at a very late hour, locked the door. Although the door was locked only upon that one occasion appellee thereafter never expressed any desire to be in the room. Admitting that she had believed rumors regarding the impropriety of appellee’s conduct and his infidelity, she testified at the trial that she did not then believe these rumors were true. She also desired a reconciliation for, despite the circumstances, she still regarded her husband with affection. After having seen and heard the parties and their witnesses, the hearing judge entered a decree dismissing the libel. The consideration which appellate courts are required to give to the conclusion of a hearing judge has been ably stated by Mr. Justice Linn in Wick v. Wick, 352 Pa. 25: “In determining which of the oral evidence to accept and which to reject, we lack the advantage possessed by the trial judge who, for several days, had the parties and witnesses before him, with ample opportunity to observe them during the trial. The findings of fact made by him have not the same effect on appeal as the verdict of a jury: Esenwein v. Esenwein, 312 Pa. 77, pages 80 and 81, 167 A. 350. Presumably, a trial judge’s opportunity to observe the parties and witnesses during the trial, became the basis of a rule that ‘when witnesses who are competent and equally interested, flatly contradict each other, the conclusion of the judge who heard them, as to which is to be believed, is not to be lightly disturbed.’ Krug v. Krug, 22 Pa. Superior Ct. 572, 573; Koontz v. Koontz, 97 Pa. Superior Ct. 70; Dearth v. Dearth, 141 Pa. Superior Ct. 344, 15 A. 2d 37. In accord with that rule, we have at times resolved doubt in dealing with conflicting testimony, by relying on expressed or implied conclusions of the trial judge.” “Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement: Evans v. Evans, 152 Pa. Superior Ct. 257, 31 A. 2d 590; Wittmer v. Wittmer, 151 Pa. Superior Ct. 362, 30 A. 2d 174; Viney v. Viney, 151 Pa. Superior Ct. 86, 29 A. 2d 437. The essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome: Esenwein v. Esenwein, 312 Pa. 77, 167 A. 350; Davidsen v. Davidsen, 127 Pa. Superior Ct. 138, 191 A. 619”: Martin v. Martin, 154 Pa. Superior Ct. 313, 317. What is meant by such indignities is left undefined in the law, and depends largely upon the circumstances of each case; they must consist of such a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse. Cf. Wick v. Wick, supra, p. 28. Appellee libellant has not established a case of sufficient merit to warrant the granting of a divorce. Alleged indignities occurring prior to 1941 are trivialities. They are isolated incidents with which the law is not concerned: Esenwein v. Esenwein, supra. Appellee’s broad generalization that appellant interfered with his business is supported only by specific reference to one occasion when she read a magazine in his office, and by his conclusion that at one time she must have looked through a keyhole to see him treat a lady patient. Ad mittedly, her conduct had in no way injured his business; at no time had it received a set-back but, by his explanations, had increased to such an extent that he was required to spend each day and night at the office with his assistant. It is clearly established by the testimony of both parties that the disturbed marital relations which finally led to the filing of this suit had its inception in June of 1941 Avhen Mrs. McAnulty became libellant’s secretary and assistant. The constant bickering and nagging, directed primarily toward Ms failure to come home at night before twelve and one o’clock and toward his close association with his assistant during these evenings, when considered from the viewpoint of a faithful and devoted wife, cannot be said to constitute a course of treatment unprovoked by him. Attempts to convince her that his explanations were true and that his absence from the home was due entirely to expanding clientele and an obsession to continue the study of his profession must be considered with evidence showing him and his assistant together in public places and his failure in any degree to remove the cause of complaint by discontinuing this close association with her. Despite the protestations of Mrs. McKrell, appellee continued to champion the innocence of Mrs. McAnulty. Rather than ease the distressed mind of his wife, he chose to flaunt his attentions to his assistant before her. He assumed an attitude that the matrimonial difficulties stemmed from an unreasonably jealous and irrational wife and not from any act or course of conduct on his part. It would indeed be arbitrary to say that, in view of the continued association and rumors regarding the same, the fears of the appellant wife were wholly unfounded. Her statement at the trial, that she did not then believe the rumors and her suspicions regarding his infidelity were true, does not remove from this case the circumstances upon which her prior assumption had been based. Appellee libellant has failed to establish unmerited reproach, habitual contumely, studied neglect, intentional incivility, malignant ridicule, or any other plain manifestation of settled hate and estrangement. He has not shown by clear and satisfactory evidence a course of conduct by her inconsistent with his relation and position as a spouse which has made his condition intoler able and life burdensome. “ ‘In a proceeding dissolving a marriage contract, the case is not to be disposed of on a doubtful balance of the evidence nor upon unsubstantial inferences. There must be a presentation of a clear and satisfactory case on which the determination of the court may be confidently rested, and one who would win a case of this character must be clear of everything which is charged as a cause of separation against the opposite party; Edmond’s Appeal, 57 Pa. 232; Angier v. Angier, 63 Pa. 450.’ ”: Stein v. Stein, 119 Pa. Superior Ct. 276, 278. The evidence compels the conclusion that appellant is not entirely to blame for this marital tragedy. If, instead of rushing to defend himself and his assistant, appellee had attempted to understand the feeling of the woman who had been his faithful wife for over seventeen years and the mother of his three children, their common interests, ideals, love and affection could have remained unimpaired. The decree of the Superior Court is reversed. The order of the court of common pleas dismissing the libel is reinstated and, so reinstated, is affirmed. Costs to be paid by appellee. He testified, on cross examination (p. 46-A) : “Q. Yon never attempted any reconciliation with your wife since? A. No. I liave made an attempt to see the children but I was not very successful.” “A. Nearly every mealtime, a hungering for money, and why didn’t I do this and why didn’t I do that? That is a long drawn-out affair which, however, due to the fact of the children and my standing in the community, I tried to bear that condition and came across as long as it was bearable, and lived a married life and conducted the home the best I could and saw my children were provided for. But, as far as being happy and harmonious, that is sort of an exaggeration” : Page 54-a, Notes of testimony. “A. I believe this: that had my wife endeavored to bring herself to the standard which I was trying to acquire myself, that is, in social standing in the community and our activities and social life— they were confined to too low a level, if you know what I mean— I would have liked her to have made some effort to lift me up rather than to keep me from getting up. Por the sake of yourself and the sake of endeavoring to be a decent citizen, you should try to elevate yourself in society. Now, the friends I acquired I was sometimes afraid to bring some of them home simply because I would lose my professional dignity. Q. You are telling me that as years went on you found your wife to be unable to meet the social standings you had set for yourself? A. No, I don’t mean she was unable. I mean she made no effort to do it”: Page 55-a, Notes of testimony. “A. Let me explain, if you will. I had a young married lady, and by that I mean between 30 and 35, I don’t recall the age, but I was giving this lady treatments while I had my office at home. In giving cervical work, that is, cervical work on the bones in the cervical neck, the patient is lying with the face upward and I stand at the head of the table to make corrections. In giving any kind of an adjustment there is more or less little irritation noticed at the site of contact, which we attempt to remove by a little counter-irritating stimulus. After this patient left, and as she was going out the door, my wife said, T hope she liked that little pat on the cheek you gave her.’ It is still a mystery to me how she looked through the key-hole and observed that I did that, but I didn’t think it was a proper statement and I didn’t think she should have even known it”: Page 53-a, Notes of testimony. “Evelyn — I am getting tired of the neighbors talking about you hanging after my husband so long, they even call me on the phone so if you want to stay healthy stop following him around like a puppy dog, he knows the way home without your assistance. I don’t want to have to tell you again. If you are married act like it. If I ever go to court it will be too bad for you”: Page 168-a, Notes of testimony. “A. He used to always make a point of being through at nine o’clock and lots and lots of times he was home by 9:30 and 10:00 o’clock in the evening”: Page 132-a, Notes of testimony. “A. My husband and my daughter and I, and I saw the couple with their arms around each other’s waists. I was especially attracted to it because she had on a white dress and his dark suit showed up against the white dress. That is what called my attention. I said to my daughter, ‘Oh, there are a couple of love birds’, and she said, ‘That is Dr. McKrell and his nurse.’ By that time we turned off Taylor onto Euclid and we turned to look and it was Dr. McKrell and the girl in his office”: Page 157-a, Notes of testimony. “A. Well, I think when there are children involved — I think they should have a complete home. Q. Today what is your attitude toward having the family hack together again? A. For the children’s sake, yes. Q. Have you any affection left for your husband? A. Well, to be honest, I have, yes”: Page 129-a, Notes of testimony. Illustrative of tlie generalization that Mrs. McKrell interfered with his business is the following excerpt (p. 21-a, notes of testimony) : “Q. Explain what interferences, if any, the respondent, Frances Arline McKrell has caused to be made to the running of your business? A. As to professional courtesy due a professional man, it has been handled rather improperly, I would say, inasmuch as when my patients would become familiar with Mrs. McKrell, they invariably lost the normal professional courtesy due the office and, instead of becoming a doctor in their eyes, I became known by my first name. In other words there was nothing done whatever to add to but rather detract from the office. In addition to that was the interference with the female assistant. I have never had any assistant who met with her approval until after they were gone but during the time the assistant was in the office, why, they were subject to her will to a certain extent.” Referring to the night association with the secretary, the doctor said (p. 44-a, notes of testimony) : “A. AVe make a point, we have a regular schedule to run until about 9:30 or 10:00 o’clock. However, there were occasions we go until 12:00 o’clock before we finish. Time is no criterion; as I said, we don’t watch the clock. Q. There were occasions when you and your assistant stayed in the office until twelve and sometimes later? A. There were many occasions. In fact, it was very irregular that we were through at nine o’clock. That was most unusual. Q. Would there be patients there until twelve or one o’clock? No. Not always. Sometimes the patients would be through at nine o’clock.” Appellee testified (p. 41-a, notes of testimony), as follows: “Q. So really the only difference between you and your wife was in 1942. That is when this thing came to a head? A. That is when the climax came. However, instead of making it a century of progress, long before this, naturally it was confined to as small a time as possible. If you would like further testimony, I will go back 17 years, if you wish. Q. Just answer the question. All the incidents you testified to on direct examination were in 1942? A. All that has been presented here of these particular incidents, that is right.” The appellant, Mrs. McKrell, testified as follows (p. 111-a) : “Q. Mrs. Mc-Krell, approximately how long or approximately when did the first difference arise between you and your husband? A. The most noticeable was in the last two years. Q. The two years immediately prior to the separation in January, 1943? A. Ves.”

Opinion by Mb. Justice Mitchell, The record in this ease presents twenty-nine assignments of error, occupying thirty-six printed pages, but they may be considered in three groups, and without being rehearsed in detail. All of them are without merit, technical or substantial, in law or in fact. The first five are to the alleged failure of the commonwealth to prove the commission of the murder in the county of Montgomery, and the refusal of the court to arrest judgment on that ground. It is not worth while to discuss the effect of a failure of the record to show a finding by the jury on the locality of the murder, for their verdict includes such finding. The indictment charges murder in the county of Montgomery, and the verdict of guilty necessarily means guilty in manner and form as indicted. It is not usual or necessary to write out or enter on the record the'form in full, but it is always understood and implied in the verdict of guilty. It is as much a part of the verdict in murder as in other crimes, and the fact that the jury in such case have the additional duty under the statute of fixing the degree does not change the effect of the verdict, but merely leaves it incomplete until the degree is added. Passing now to the evidence, there was competent proof that the place of the murder was in Montgomery county and within the jurisdiction of the court, which is the essential feature of the requirement. The witness K uhlman, in replying to a question as to his recollection assented to the locality as Montgomery county; and two others, Joseph Detterline and Joseph Beaumont, testified to the place as in upper Merion township, while others, though not so explicitly mentioning Upper Merion, described the locality so that there could be no doubt of its identity with that testified to by Detterline and Beaumont. This was ample. The court, on the motion in arrest of judgment, and this court now, are entitled to take judicial notice of the fact that Upper Merion township is in Montgomery county. For all technical purposes this was sufficient, and the locality was only in issue technically. As part of the commonwealth’s case it was requisite that some evidence of it should be given in the case, but it was never really disputed, and very slight evidence was enough. For the same reason it was not material that the court should specifically call the attention of the jury to the point. To load the juror’s minds with reference to undisputed matters, which though technically material have no practical bearing on the juror’s duties, would only tend to distract their attention from the matters really essential for them to consider and determine. This court recognizes, and always will fully recognize, the importance of preserving the technical rules of evidence and of legal procedure. They are the safeguards which the law has placed around the innocent, and the court will not be indulgent to a disregard of them or even to loose practice where it imperils substantial rights. But on the other hand such safeguards will not be allowed to be perverted into devices to defeat justice, and this court has set its face resolutely against trifling objections that raise no point of any real bearing on the fact of guilt or innocence. As said by the present Chief Justice in Com. v. Jongrass, 181 Pa. 172, “subtile distinctions that mart no substantial differences, and that do not affect the merits of a controversy unless it may be to obscure or defeat them, should not be allowed to thwart justice in the interests of disorder and crime.” The next five assignments of error are to the admission of evidence tending to identify Clemmer, under another name, as the man charged with participation in the murder. The commonwealth alleged a conspiracy between the prisoner and Clemmer to commit the murder. The prisoner alleged murder by a highwayman, a stranger. The learned judge at the trial held the proof of conspiracy insufficient, but admitted evidence tending to identify the other man seen by witnesses near the place and time of the murder. The evidence objected to was all competent for that purpose, and was carefully confined to it. The next eight assignments are to the charge and answers to points on the same subject. As already said, both sides asserted the presence of one if not two other men besides the prisoner at the commission of the crime. The commonwealth claimed a conspiracy, but the court held the evidence insufficient to sustain that contention, but admitted evidence of the presence and identification of accomplices. The question of accomplices and what they did is a different one from conspiracy, but the two issues run closely together in the mode of proof and the evidence to establish them. Of course there cannot be conspiracy carried into execution without participation of several, either as principals or accomplices, but there may be accomplices without previous conspiracy. The learned judge admitted evidence on the presence and identification of accomplices, and presented it to the jury on that view only, keeping the distinction as to conspiracy clearly marked, and excluding all evidence of acts or declarations of the other parties not relevant to their identification. His charge and answers to the points now complained of were a fair presentation of the evidence and its bearing on the issue, and we find no error in them. The remaining points relate to the charge in connection with the prisoner’s own testimony. This was fairly presented to the jury with a strong charge that unless the commonwealth had overcome it, had “ shown that it cannot be credited,” there could be no conviction. The evidence sustaining or opposing the prisoner’s statement was then reviewed correctly and fairly, though in general terms. It is complained that here and there items that bore in favor of the prisoner were not specially mentioned. It is probable that the commonwealth might make the same complaint. It is not possible nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that the counsel would consider adequate. In doing so he would run much risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on any particular point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing. The charge of the learned judge in this case comes fully up to this standard. The case was tried with great patience, care and impartiality,, and none of the alleged errors can be sustained. Judgment affirmed and record remitted for purpose of execution.

Opinion by Mr. Justice Walling, In March, 1919, William Wilhelm, the relator, was convicted of assault and battery, in the court of quarter sessions of Schuylkill County. Thereupon the record shows that: “March 24th, 1919, the court sentenced the defendant, William Wilhelm, to pay the costs of prosecution (sentence deferred).” No further action was taken until June 20, 1923, when the defendant was brought before the court on a capias and, after a hearing, sentenced to pay the costs and “undergo punishment in the Schuylkill County prison for and during the term of one year to commence and be computed from this date.” To test the legality of the latter sentence, Wilhelm petitioned this court for the writ of habeas corpus we are now considering. Such writ is a proper remedy where the relator is in confinement under a void or illegal sentence: Halderman’s Petition, 276 Pa. 1; and see Com. ex rel. Torrey v. Ketner, 92 Pa. 372; Ex Parte Lange, 18 Wallace 163. It is relator’s contention that the court had no power to impose the sentence complained of, over four years after his conviction. The right to temporarily defer sentence, while the court seeks information or the defendant applies for pardon or for other sufficient reason, is universally recognized. The practice of an indefinite suspension of sentence has also long been in vogue in this and some other states, although in a majority of jurisdictions such right is denied, on the ground that an indefinite suspension of sentence amounts to a pardon, which only the executive can grant: 8 R. C. L. 248. Where such practice is recognized the right to later impose sentence remains with the trial court, and the time of its exercise is a matter for judicial discretion; manifestly, however, it would be an abuse thereof to impose sentence after a great delay. Hence, under any view of the law, sentence must be imposed, if ever, within a reasonable time after conviction. In view of the decision in Ex Parte United States, Petitioner, 242 U. S. 27, the right to indefinitely defer or suspend sentence, in the absence of statutory authority, is at least doubtful; and see Ex Parte Singer, 284 Fed. 60. Happily, in Pennsylvania there is no cause for such doubt as the Act of June 19, 1911, P. L. 1055, provides, inter alia (section 1) : “Whenever any person shall be convicted in any court of this Commonwealth of any crime, except murder, administering poison, kidnapping, incest, sodomy, buggery, rape, assault and battery with intent to ravish, arson, robbery, or burglary, and it does not appear to the said court that the defendant has ever before been imprisoned for crime, either in this State or elsewhere,......and where the said court believes that the character of the defendant and the circumstances of the case such that he or she is not likely again to engage in an offensive course of conduct, and that the public good does not demand or require that the defendant should suffer the penalty imposed by law, the said court shall have power to suspend the imposing of the sentence, and place the defendant on probation for a definite period, on such terms and conditions as it may deem right and proper, said terms and conditions to be duly entered of record as a part of the judgment of the court in such case. (Sec. 4). “Whenever a person placed on probation, as aforesaid, shall violate the terms of his or her probation, he or she shall be subject to arrest in the same manner as in the case of an escaped convict; and shall be brought before the court which released him or her on probation, which court may thereupon pronounce upon such defendant such sentence as may be prescribed by law, to begin at such time as the court may direct. (Sec. 5). “Whenever it is the judgment of the court that a person on probation has satisfactorily met the conditions of his or her probation, the court shall discharge such defendant and cause record thereof to be made:' Provided, That the length of such period of probation shall not be more than the maximum term for which the defendant might have been imprisoned.” This act expressly authorizes what the courts, in the main, had previously assumed to do, for every indefinite suspension of sentence, during good behavior, whether ordered before or since the passage of the act, in effect placed the defendant on probation. Since that is now limited to the maximum term for which he might have been sentenced, it follows that a suspended sentence in connection therewith cannot extend beyond that time. Where, as here, the statute provides for a suspended sentence, in connection with placing the defendant on probation, the trial court cannot extend the former by failing to set forth the terms of the latter. In our opinion every suspension of sentence since the effective date of the Act of 1911 is subject to its provisions, without regard to the form of the order. In any event, sentence can be suspended only for a reasonable time, which, in conformity with the statute, we hold cannot extend be yond the maximum term of imprisonment, excluding therefrom time spent on motion for new trial, appeal, etc. The statute provides a general system of probation and suspension of sentence, hence, it supersedes the alleged common law right in that field, for, “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 agreebly to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect”: Act of March 21, 1806, 1 Purdon (13th ed.) p. 271, reenacted by section 183 of the Penal Code of 1860; therefore the statutory method for the suspension of sentence controls. While the Act of 1911 does not expressly say the suspended sentence shall be coextensive with the probationary period, such is its clear import, for at the end of the period, the defendant, having, in the judgment of the court, met the conditions of his probation, must be discharged ; he cannot thereafter be sentenced: 15 C. J. 1291, and see note in 3 A. L. R. 1003. True, for violation of the terms of the probation, the defendant may be brought in and sentenced, but of course, such violation must occur during the probationary period. In Com. v. Fox, 69 Pa. Superior Ct. 456, the sentence was imposed for a violation of the probation and within the maximum term for which defendant might have been sentenced. In the instant case, the defendant was not subject to probation for a longer period than one year, and there is no averment or proof of any misconduct on his part during that time; so the question as to whether a defendant can be sentenced after the expiration of the maximum term because of having previously violated his parole, is not here involved. We are aware of the conflict in the decisions in other states as to the effect of the probation statutes on the right of suspension of sentences, but believe the true rule is as held by the Supreme Court of Illinois in People ex rel. Boenert v. Barrett, 202 Ill. 287, 63 L. R. A. 82, 87, that, “The Act of 1899 providing a system of parole (Hurd’s Rev. Stat., 1901, p. 669) is the only law in this state [Illinois] authorizing the parole of a person convicted of crime. Provisions are made and means and instrumentalities are provided for its uniform operation and for its due administration. If the many criminal courts of the state had the power to enlarge persons convicted of crime, on their own recognizance, during their good behavior or at the discretion of the presiding judge, there would, in effect, be in full force another and different system of parole, without bounds or limitations and without uniformity, but wholly dependent in its operation in each individual case upon the discretion of the sitting judge. We are of the opinion, as we have already said, that no' such power exists in the courts”: see also People v. Cahill, 300 Ill. 279, 133 N. E. 227. It follows that, aside from the exceptional circumstances above mentioned, the court is without authority to impose sentence after the expiration of the maximum term of imprisonment for the offense of which defendant was convicted. Therefore, the sentence imposed on the relator, more than three years after the expiration of such term, cannot be sustained. The relator is discharged, costs to be paid by the County of Schuylkill.

Opinion by Mr. Justice Walling, While in defendant’s employ on September 5, 1924, the deceased, William Anderson, accidentally cut his left hand on a rain spout. It became infected and required medical attention for many weeks, but gradually cleared up so that on October 30th there was apparently no active infection although some swelling, a serious discharge and inability to use the hand. On November 25th, Anderson was stricken with lobar pneumonia, which caused his death four days later; thereupon this claim was presented by his widow. The referee, after hearing, made findings of facts and legal conclusions upon which he awarded compensation, which was affirmed by the workmen’s compensation board and court of common pleas; thereupon the defendant insurance carrier brought this appeal. The controlling question presented is, whether the referee’s finding that Anderson’s death on November 29th resulted from the injury to his hand on the fifth day of the preceding September, is supported by evidence. In our opinion it is not, and this is a question of law which, the courts may review: Smith v. Philadelphia & Reading C. & I. Co., 284 Pa. 35; Shickley v. Phila. & Reading C. & I. Co., 274 Pa. 360; Callihan v. Montgomery, 272 Pa. 56; Stahl v. Watson Coal Co., 268 Pa. 452. Under section 427 of the Workmen’s Compensation Act of June 26, 1919, P. L. 642, 666, an appeal brings up the entire record, including the evidence, yet the appellate court’s revisory powers are limited to a determination of the question whether there is evidence to support the findings and whether the law has been properly applied to them: Kuca v. Lehigh Yalley Coal Co., 268 Pa. 163; Strohl v. Eastern Pa. Rys. Co., 270 Pa. 132; Callahan v. Montgomery, supra; Roach v. Oswald Lever Co., 274 Pa. 139. Prior to the Act of 1919, above referred to, we were concluded by the facts as found by the compensation authorities, but even then a finding without sufficient evidence was an error of law: McCauley v. Imperial W. Co., 261 Pa. 312. In the instant case the pneumonia was so remote in time from the cut on the hand (eighty-one days) that common observation would suggest no connection between them, and the burden was on claimant to establish it by expert evidence. For this purpose, Dr. Ray Willoughby was called, who treated Anderson’s hand and also treated him the first two days of his fatal pneumonia illness; but his testimony went no further than to say: “It is possible to have a pneumococcus infection from any open abrasion; but it is usually an air-passage disease.” Dr. Raymond A. Leopold who treated Anderson the last two days of his fatal illness, wrote a letter to the referee, which by agreement was received in evidence, saying, inter alia: “I am certainly not prepared to state that a streptococcus invading organism in the hand had been carried by the blood route and deposited in the lung and there set up a pneumonia; but I can state that such invasion is extremely possible and likely.” The letter also states, in effect, that the writer found the deceased two days before his death in a shockingly low state of vital ity, -which, from the history of the case, Dr. Leopold attributed to the infected hand. He does not state that, taking into account all the attending data, it is his professional opinion the death did in fact result from the injury, or any other expression tantamount thereto. Hence, it was not sufficient under the rule stated in Fink v. Sheldon Axle & Spring Co., 270 Pa. 476; Zimmerman v. Weinroth, 272 Pa. 537; McCoy v. Jones & Laughlin Steel Co., 275 Pa. 422; Mauchline v. State Ins. Fund, 279 Pa. 524; McCrosson v. Phila. Rapid Transit Co., 283 Pa. 492; Gausman v. Pearson Co., 284 Pa. 348, and other cases. In the language of Mr. Justice Schaffer, speaking for the court, in Morgan v. Phila. & Reading C. & I. Co., 273 Pa. 255, 258: “In cases such as this, there must be a probable, direct relation shown between the injury and the disease resulting in death, otherwise liability would be fixed by surmise. No such direct relation appears by the record before us.” And see Miller v. Director Gen. R. R., 270 Pa. 330. The testimony of an expert that he is certainly not prepared to state that the disease in question resulted from the injury, but that such result is extremely possible and likely, is not equivalent to an assertion of his professional opinion that in fact it actually did so. The instant case is not like that of Jones v. Phila. & Reading C. & I. Co., 285 Pa. 318, or that of Davis v. Davis, Director Gen., 80 Pa. Superior Ct. 343, where plaintiff’s claim was strengthened by the natural sequence of events, for here there was no other evidence or circumstance indicating a connection between the injury to the hand and the pneumonia, except that the infection by lowering Anderson’s vitality may possibly have rendered him more susceptible to the pneumonia germ and less able to combat the disease; but that is unavailing. To be compensable, under the statute, the injury must be the direct or superinducing cause of the death or disability in question. There is a cardinal difference between lowering vitality and causing pneumonia, which is a germ dis ease. It is a matter of common knowledge that a large majority of delicate people with low vitality never contract pneumonia, while those who are robust often do and frequently with fatal results. It cannot be affirmed that whatever lowers a man’s vitality is responsible for any disease which may come upon him. See Morgan v. Phila. & Reading C. & I. Co., supra. The order of the compensation board should have been reversed and the award set aside; but, Should the lower court have remitted the record for a further hearing, and should we now so order? Section 427 of the Act of June 26, 1919, P. L. 642, provides, inter alia (p. 666) : “Any court before whom an appeal is pending from any action of the board may remit the record to the board for more specific findings of fact, if the findings of the board or referee are not, in its opinion, sufficient to enable it to decide the question of law raised by the appeal......If such court [of common pleas] shall sustain the appellant’s exceptions to a finding or findings of fact and reverse the action of the board founded thereon, the court shall remit the record to the board for further hearing and determination.” The referee’s conclusion, in effect, that Anderson’s death resulted from an accident sustained in the course of his employment, appears both among his findings of facts and his legal conclusions, but, wherever it appears, it is his deduction from the facts and is a legal conclusion. What we here do is not to reverse any finding of fact made by him, but to pass upon the question as to whether his legal conclusion is supported by evidence; as above stated, that is a matter of law, and when disposed of as such the record need not be returned for further hearing: Callihan v. Montgomery, supra. So long as the findings of facts are not disturbed, it is unnecessary for the court to remit the record for a further hearing. It should, however, be done when the facts found are not sufficient for a proper decision of the legal question, or questions, raised by the appeal. We find no necessity for so doing in the instant ease, which seems capable' of a proper solution on the record as presented. Unless there is apparently something omitted which should have been shown, the mere fact that the evidence fails to support the claim does not require a remission of the record. We have sometimes remitted the record in cases of this class for a further hearing or for a more complete finding of the facts; but in many instances have not found it necessary to do so. The judgment is reversed and the award of the referee, as approved by the workmen’s compensation board, is set aside.

Opinion by Mb. Chief Justice Jones, This appeal involves three separate cases which were consolidated in the court below. Each case involves the same basic questions of fact and law. The decedents, Eobert Utter and Cecil Bambrick, were both employees of the Asten-Hill Manufacturing Company [“Asten-Hill”]. The Utter cases involve a claim for disability by the decedent during his lifetime and a claim for dependency benefits by his widow. Both claims were brought pursuant to The Pennsylvania Occupational Disease Act of June 21, 1.939, P. L. 586, §§101-503, as amended, 77 P.S. §§1201-1603. In the Utter cases, Asten-Hill is represented by the State Workmen’s Insurance Fund. The Bambrick case involves a claim under the Act for dependency benefits by Cecil Bambrick’s widow. In this connection, AstenHill is represented by the Pennsylvania Manufacturers’ Association Insurance Company. These cases originated as awards of compensation by the referees below. Each award was affirmed by the Workmen’s Compensation Board and the Board’s decisions were upheld by the Court of Common Pleas of Philadelphia. The Commonwealth Court reversed (5 Pa. Commonwealth Ct. 664, 291 A. 2d 354 (1972); opinion of the court by Wilkinson, J.; concurring opinion by Blatt, J.; dissenting opinion by Kramer, J., joined by Crumlish, Jr., J.). We granted a petition for the allowance of appeal. The decedent, Eobert Utter, was employed by AstenHill from October 14, 1946, to August 10, 1966, as a weaver engaged in the manufacture of dryer felts made from asbestos. On September 26, 1966, Mr. Utter filed a claim for compensation alleging that he was suffering from asbestosis and had become totally disabled. He died on February 25, 1967, at the age of forty-four, before the initial hearing on his disability petition. We agree preliminarily with the decision of the Commonwealth Court that there is no evidence on the record on which to base a finding that Robert Utter was totally disabled prior to his death. 5 Pa. Commonwealth Ct. at 667, 291 A. 2d at 355. With respect to the claim of Robert Utter, therefore, the judgment of the Commonwealth Court is affirmed and the decedent’s claim petition for disability is dismissed. The dependency benefits claim of Margaret Utter presents a different question and is considered in this opinion with the claim of Alice Bambrick, the widow of Cecil Bambrick. Cecil Bambrick was employed by Asten-Hill from September 5, 1950 to October 30, 1962. This decedent, like Robert Utter, was employed as a weaver. From the date of his departure from Asten-Hill in 1962 until the date of his death on September 11, 1966, Mr. Bambrick was engaged in employment which did not present the hazard of asbestos exposure. The referee concluded that the cause of his death was carcinoma of the lungs from asbestos exposure. Initially we must note that it is not the prerogative of either the court below or the appellate court to usurp the fact finding privilege of the Workmen’s Compensation Board. The Board’s findings should prevail if there is competent evidence to sustain them. Follmer Truck ing v. Stump, 4 Pa. Commonwealth Ct. 110, 286 A. 2d 1 (1972); State Workmen’s Insurance Fund v. Young, 2 Pa. Commonwealth Ct. 423, 276 A. 2d 552 (1971). Our inquiry must be limited to the question of whether the findings of fact support the Board’s conclusions. Section 310(e) of the Act provides benefits for disability or death caused by asbestosis. At the time of its application in these proceedings, Section 108(1) defined asbestosis as a specifically compensable occupational disease: “The term ‘occupational disease,’ as used in this act, shall mean only the following “(1) Asbestosis in any occupation involving direct contact with, handling of, or exposure to the dust of asbestos.” 77 P.S. §1208(1). (Emphasis added) A simultaneous reading of Sections 310(e) and 108(1) permits only one conclusion: the legislature intended to compensate disability or death caused by asbestosis. In this legislative context, the appellants have offered evidence tending to show that each of the decedents died of carcinoma of the lung caused by exposure to asbestos. With respect to the death of Robert Utter, appellants’ medical expert testified as follows: “In my opinion there can be very little doubt that Mr. Utter’s death was due to lung cancer causally related to asbestos exposure. (Emphasis added).” Medical testimony respecting the death of Cecil Bambrick reached the same conclusion: “Ear from any uncertainty, I feel very confident that Mr. Bambrick died of a carcinoma of the lung consequent upon asbestos exposure. (Emphasis added).” Though we have scrutinized the record, we can find no evidentiary support for the conclusion that the decedents expired from cancer caused by asbestosis. Because death caused by asbestosis is compensable, and because the evidence as construed in a light most favorable to the appellants indicates that the cause of death in each instance was cancer caused by exposure to asbestos, the awards to these claimants under Sections 310(e) and 108(1) of the act are unsupported by the evidence. The second part of the ajipellants’ argument is that death benefits should be paid here under the provisions of Section 108 (n) of the act, added February 28, 1956, P. L. (1955) 1095, §1: “The term ‘occupational disease,’ as used in this act, shall mean only the following diseases: “(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population.” We have already considered expert testimony indicating that Robert Utter and Cecil Bambrick died of lung carcinoma causally related to asbestos exposure. The first evidentiary criterion under Section 108 (n) is thus satisfied: the decedents were exposed to an asbestos hazard which the Workmen’s Compensation Board and the court below determined caused their lung cancers, and ultimately their deaths. The second and third elements of an “occupational disease” as defined by Section 108 (n) present two sides of the same inquiry: is lung cancer peculiar to decedents’ occupation or is it common to the public? Appellants argue that the distinguishing characteristic of lung cancer in this context is its cause. That is, although lung cancer occurs commonly in individuals who are not abestos workers, these particular decedents were the victims of occupational diseases because a commonly occurring disorder was occupationally caused. In support of this thesis, the appellants recount expert testimony which indicates that the characteristics of the decedents’ disorders reveal a peculiarity associated with lung cancer in asbestos workers not associated with the typical manifestations of lung cancer in general: “Dr. Selikoff [expert witness for the claimants]: Lung cancer in general has certain characteristics and I don’t refer to the cell type which can be anyone of a number including adeno carcinoma, aquamous cell carcinoma, eat cell carcinoma, undifferentiated carcinoma etc., plus its tendency to metastasize in many parts of the body, plus its invasive and often fatal nature, plus its clinical symptoms such as coughing blood etc., but It has the characteristic in general of occurring in the large bronchi, the trachea, the main bronchus and the bronchi mar the main bronchus on either side. It is generally a main bronchus tumor. Q. Excuse me doctor, just to clear my own thinking here. You’re talking about cancer in general? A. In general not related to asbestos, in general. And that’s one of the reasons why it’s so frequently fatal as you know on the overall I don’t think we cure more than 5% because when it’s in the main bronchi you just can’t go far enough to remove it completely in many cases and when it hits the trachea or the carina you just can’t remove two lungs. There is a peculiarity about lung cancer associated with asbestos exposure however, in that it occurs typically peripherally in the outer part of the lung .” (Emphasis added) That Robert Utter’s cancer manifested itself peripherally in his lungs is indicated by hospital x-rays, as examined and testified to by Dr. Selikoff: “I have placed on the out box two x-rays dated July 16, 1966 at the Episcopal Hospital with the name of Robert C. Utter. Both taken on the same day but one taken in the posteri- or anterior projection and the other taken in the lateral projection. The films have two significant abnormalities. The first abnormality is the appearance of a mask lesion rather nodular in outline located peripherally in the right upper lobe and well seen also on the lateral projection. Its peripheral nature is beautifully demonstrated by clear lung between the hilar structures, the central bronchi in other words, and the lesion itself. This is similarly demonstrated on the lateral projection where again the main bronchi area seemed to be several inches away from this peripheral neoplasm, lesion.” (Emphasis added) The carcinoma in Cecil Bambrick’s lungs, according to Dr. Selikoff, was also peripherally located. Dr. Selikoff offered the following testimony with respect to the records of Mr. Bambrick’s hospitalization: “I was interested to read in Dr. Fite’s report lohen he talks about interpretation of his historical findings. He talks about the fact that it’s an epidermoid carcinoma which is another way of saying aquamus carcinoma, but he was struck by its peripheral location, he says the peripheral location in the lung parenchyma is somewhat atypical for a primary carcinoma of the lung however, on the assumption that no other epidermoid carcinoma has been identified in other parts of the body the primary palmonary nature of this lesion may be assumed. In other words what Dr. Fite is saying is that there is am, awfully unusual place for a lung cancer. Could it have been coming from somewhere else, this is very unusual for an ordinary lung cancer and it is. Most of the, usual lung cancers are central in location, the asbestos lung cancers are usually peripheral .in location although they may assume different forms that location is significant.” (Emphasis added) Appellees argue that Scott v. United States Steel, 203 Pa. Superior Ct. 459, 201 A. 2d 243 (1964), is dis-positive of the issue of whether these claimants may recover under Section 108 (n). In Scott, the claimant was employed as a laborer in the coal tar by-products division of United States Steel. When the claimant became totally disabled from lung cancer, and eventually died, his widow brought a claim for death benefits under Section 108 (n) of the act. The Superior Court affirmed the decision of the Workmen’s Compensation Board denying the claim, and in language bearing upon the decision here, expressed its view about the quality of evidence necessary to sustain a claim under Section 108 (n) : “The burden of proof under [§108(n) '| is a heavy one. [The claimant] must prove that the disease, in this case, lung cancer, is a hazard of his employment and that he was exposed to it; that cancer is a disease which is peculiar to the industry or occupation; and that it is not common to the general public. ... We must take judicial notice of the fact that lung cancer is not peculiar to this industry and that it is common to the general public. We might just as well say that this claimant was exposed, in this industry, as he might very well be, to the common cold and that it is peculiar to the industry and not common to the general public.” 203 Pa. Superior Ct. at 462, 201 A. 2d at 244. The Superior Court concluded in Scott that recovery under Section 108(n) could not be sustained because cancer is neither peculiar to the steel industry nor uncommon in the general public. The underpinnings of the Scott decision, and the position urged upon us by the appellees here, is that the legislature intended Section 108 (n) to apply only to the discovery of new diseases having their genesis in the claimants’ occupations. This interpretation severely limits the usefulness of Section 108(n) as a vehicle for compensation in situations like this one where the decedent’s fatal diseases, though not enumerated elsewhere in the act, are nonetheless generated by an occupational hazard. A more reasoned analysis of Section 108 (n), and one which we adopt in this setting, is that cancer can be an occupational disease, though it exists in the general public, if it may be shown by competent evidence that a claimant’s cancer is peculiar to the claimant’s occupation by its causes and the characteristics of its manifestation. Our review of this record indicates that appellants have shown by competent medical evidence that the decedents’ fatalities were caused by “occupational diseases” as that term is defined by Section 108 (n) of the Occupational Diseases Act. With respect to the claim of Robert Utter, the Commonwealth Court is affirmed and the decedent’s claim petition is dismissed. With respect to the death benefits claims of Margaret Utter and Alice Bambrick, the Commonwealth Court is reversed and the awards of the Workmen’s Compensation Board are reinstated. Mr. Justice Nix took no part in the consideration or decision of this case. “Asbestosis is a pneumoconiosis resulting from the inhalation of asbestos fiber dust (hydrated magnesium silicate in fibrous form). It is characterized by a diffuse pulmonary alveolar fibrosis, and the presence of ‘asbestos bodies’.” 5 Pa. Commonwealth Ct. at 668, 291 A. 2d at 356, Quoting from 4a Gordy-Gray, Attorneys' TextdooJc of Medicine, ¶2050.01 (3d Ed. 1970). “Compensation shall be payable, as otherwise provided in this act, for total disability or death caused by . . . asbestosis ....'’ 77 P.S. §1401 (e). Nor can we take judicial notice of a connection between asbestosis and cancer. The present state of medical knowledge does not permit such an assumption: “A number of British authors have done studies which show a significantly greater incidence of lung-cancer among asbestos workers than is found in the general population or among people who died of silicosis. On balance, the literature would appear to indicate that the suspicion of a correlation between asbestosis and lung cancer eannot be dismissed, but that sufficient evidence is lacking to make such a correlation definitive.” 4a Gordy-Gray, Attorneys’ Textbook of Medicine, ¶2050.34 (3d Ed. 1970). Section 108(1) was amended by House Bill No. 2478, October 17, 1972, effective June 1, 1973, so that it now reads as follows: “The term ‘occupational disease,’ as used in this act, shall mean only the following diseases: “(1) Asbestosis and cancer resulting from direct contact with, handling of, or exposure to the dust of asbestos in any occupation involving such contact, handling or exposure. [Emphasis added].”

Opinion by Mr. Justice Dean, This is the decree from which is brought this appeal: “ Now, March 1, 1894, after hearing, sureties on the within bond are approved, and the license as prayed for is refused.” Counsel for appellant, to sustain his appeal, argues, that as there was no denial of the necessity for the license and no allegation that the applicant was not a fit person, and as it appeared from the decree the bond and sureties were approved, the inference necessarily is, that the refusal was not the exercise of discretion, but the result of arbitrary will. Such inference is not warranted by the facts. The sixth section of the act of June 9, 1891, providing for licenses to wholesale dealers in liquors, says: “ The court of quarter sessions shall hear petitions from residents of the county in addition to that of the applicant in favor of and remonstrances against the application for such license, and in all cases shall refuse the same whenever, in the opinion of said court, having due regard to the number and character of the petitioners for and against such application, such license is not necessary for the accommodation of the public, or that the applicant or applicants is or are not fit persons to whom such licenses should be granted.” This section must be read in connection with the second of the same act, which directs the court to fix by rule or standing order a time at which all applications for and objections to.licenses shall be heard by evidence, petition, remonstrance, or counsel. The two sections enjoin upon the court the duty of hearing and considering. If there be nothing on the records of the court but the averments in the petition, these at the time fixed must be heard and considered. The court may hear oral tes timony or the arguments of counsel on either side ; it may, of its own knowledge of the unfitness of the applicant, or of his j failure in other material particulars to meet the requirements of the law, refuse the application, just as it may, of its own knowledge, approve for sufficiency or reject for insufficiency the sureties on the bond. The exercise of judicial discretion by the court is commanded by the statute. This being so, how far this court will go in reviewing the decrees of the quarter sessions, notwithstanding repeated decisions, seems still to be in doubt. Therefore, we again say : 1. The discretion must be exercised in a lawful manner. The applicant hath a right to be heard, and so have objectors.' A decree without hearing or opportunity for hearing at a time fixed by rule or standing order as the law directs, would be manifestly illegal, and on certiorari would be set aside. 2. If the court has in a lawful manner performed the duty imposed upon it, it is not our business to inquire whether it has made a mistake in its conclusions of fact. Whether the same facts induce in our minds the same belief as in that of the court below, as to the character of the applicant, or other material averments, is wholly immaterial; it is the discretion of the court of quarter sessions, not ours, that the law requires. 8. A decree made arbitrarily, or in violation of law, it is our plain duty to set aside. For example, if a judge should refuse a license, because in his opinion the law authorizing liceuses is a bad law, or if he should grant all licenses because he believed the law wrong as tending to confer a privilege on a special few, in either case there would be no exercise of judicial discretion ; both would be the mere despotic assertion of arbitrary will by one in power, that sort of lawlessness which is least excusable and excites most indignation. 4. If the record shows the decree was had after'hearing at a time fixed by rule or standing order, the presumption is, the decree is judicial and not arbitrary, and this presumption is not rebutted by an argument from evidence that the court ought to have reached a different conclusion. In the case before us, the record shows the license was refused after hearing. The act is an official one, performed by a public officer in the exercise of the functions of his office. The presumption in all such cases is that the officer performed his duty according to law;..he is not bound to set out legal reasons for his action ; he is only bound to have them. In Johnson’s License, 156 Pa. 822, relied on by appellant, the decree showed no hearing, nor did the record anywhere indicate that the decree was founded on a hearing, or that any opportunity to be heard had been afforded the applicant. The decree was reversed, and the case sent back that it might be heard and decided as the law directs. While, in these cases, the justices of the quarter sessions do not always set out on the record the reasons for their decrees, it is going very far to assume from that fact alone, as is done in the argument of this case, that they are made without lawful reasons. We can comprehend how a man’s conscience may condemn as wrong a law of the land; but that sort of a conscience, so tender as to withhold approval of a law, yet which voluntarily takes an oath to administer it according to its true intent and meaning, and then deliberately violates it, is beyond our comprehension ; we will not assume, without incontrovertible evidence of record, that there is such an one. The decree is affirmed, and the appeal is dismissed at costs of appellant. Cf. Mead’s License, below, page 376.

Opinion by Hoffman, J., This is an appeal from the order of the Court of Common Pleas, Northampton County, denying appellant’s motion to reinstate his appeal from an order of a Justice of the Peace. The City of Easton, through its administrative officers, brought complaints against appellant for a violation of the City’s housing code. The cases were heard by a Justice of the Peace who found appellant in violation of the code and imposed fines thereon. Appellant then filed an appeal from that judgment to the Common Pleas Court. In the caption of his notice of appeal, appellant directed the appeal to “The Court of Common Pleas of Northampton County, Civil Division”. On the day scheduled for the hearing, the City of Easton filed a praecipe to strike the appeals. The prothonotary struck the appeals and the hearing judge then ordered appellant to file a motion to reinstate the appeals. After it was filed and answered, the hearing judge denied the motion because of appellant’s failure to perfect the appeals in accordance with the rules of procedure governing appeals from orders and judgments of a justice of the peace. Specifically, appellant did not file a rule upon the City to file a complaint as required by Justice of the Peace Bule 1004B and serve same on the city as required by Bule 1005B. These rules regulate appeals from judgments and decisions of Justices of the Peace in Civil Matters. Appellant contends that the Court below abused its discretion in refusing to reinstate the appeal because appellant justifiably believed that the proceedings before the Justice of the Peace are criminal in nature, that the fines imposed are criminal penalties, and that the proper procedures to be followed in perfecting an appeal are contained in the Minor Judiciary Court Appeals Act, Act of December 2, 1968, P. L. 1137, No. 355, §§3-6, 42 P.S, §§3003-3006; and Pa. B. Grim. P. No. 67. Appellant’s appeal was in compliance with these rules. At one time it was true, as appellant argues, that the proper classification of an action before a magistrate or justice of the peace against an individual for the violation of a municipal ordinance as civil or criminal was confusing and unsettled. See Pleasant Hills Borough v. Carroll, 182 Pa. Superior Ct. 102, 125 A. 2d 466 (1956). This is, however, no longer the case. In York v. Baynes, 188 Pa. Superior Ct. 581, 149 A. 2d 681 (1959), Judge Woodside, writing for the court stated at p. 585: “The question is a procedural one and involves no great principle of law, but it is important that it be settled. We shall, therefore, . . . put the problem to rest.” The court held in unequivocal terms that “an action brought against a defendant for the violation of a municipal ordinance is a suit for the recovery of a penalty due the municipality and is a civil proceeding.” 188 Pa. Superior Ct. at 585. The action is civil despite the captioning of the case in the name of the Commonwealth, [see Commonwealth v. Ashenfelder, 413 Pa. 517, 198 A. 2d 514 (1964)]; despite the fact that the penalty imposed is termed a fine [see York v. Baynes, supra]; despite the designation of the offense as a misdemeanor, [see Steelton v. Rashinsky, 33 Dauphin 227 (1930), cited with approval in York v. Baynes, supra]; and despite the institution of an action by warrant, [see Commonwealth v. Ashenfelder, supra]. See also Commonwealth ex rel. Ransom Township v. Mascheska, 429 Pa. 168, 239 A. 2d 386 (1968); Philadelphia v. Home Agency, Inc., 4 Comm. Ct. 174, 285 A. 2d 196 (1971). Appellant’s allegation that he believed the appeal to be from a summary criminal conviction is belied by the fact that he treated the appeal as civil in nature and directed his appeal to the Civil Division of the Common Pleas Court. Since the case was a civil proceeding, appellant was bound to perfect his appeal in accordance with Pennsylvania Justices of the Peace Rules 1004 and 1005. By failing to do so appellant was subject to the sanction of Rule 1006, providing for the striking of appeals upon the praecipe of the appellee. Although the rules provide for reinstatement “upon good cause shown”, appellant’s allegation that he ivas confused as to the nature of the case, in light of his own treatment of the appeal and the well-established latv defining the nature of such a case did not establish the requisite “good cause”. Order affirmed. Rule 1004B provides: “B. If the appellant was the defendant in the action before the justice of the peace, he shall file with his notice of appeal a praecipe requesting the prothonotary to enter a rule as of course upon the appellee to file a complaint within twenty (20) days after service of the rule or suffer entry of a judgment of non pros.” Rules 1005 §§A&B require the appellant to serve the rule upon the appellee, and file proof of service of the rule with the prothonotary.- Appellant failed to comply with all these rules. Rule 1006 provides: “Upon failure of tlie appellant to comply with. Rule 1004A or Rule 1005B, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.” Neither party has objected to our jurisdiction to decide the instant appeal. The appeal is from a final order involving the application of the procedural rules, and not “the application, interpretation or enforcement of (i) any act of the General Assembly regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employes or agents thereof, acting in their official capacity, or (ii) any home rule charter or local ordinance or resolution.” The Appellate Court Jurisdiction Act, July 81, 1970, P. L. 673, No. 223, Art. IV, §402, 17 P.S. §211.402. Cases in the latter category are properly within the exclusive jurisdiction of the Commonwealth Court. See Commonwealth ex rel. Ransom Township v. Mascheska, supra.

Opinion bv Mb. Justice Gbeen, The facts of this case do not seem to be involved in controversy. -The defendant operates a line of street cars passing through Washington street, in the city of Allegheny. The plaintiff’s team, in charge of Orr, the driver, was engaged in hauling along C street, in the same city. In going along C street to his destination, Orr’s route crossed Washington street, and the defendant’s tracks therein, at right angles. When he reached the intersection he neither stopped nor looked, but drove' directly upon the defendant’s track. When in this position, he looked up, and saw the car just upon him. There was no time to escape. His wagon was crushed and he was injured. This action is brought by his employer, who is affected by the contributory negligence of his employee. The question upon which the case turned in the court below was, whether the evidence of the plaintiff established contributory negligence in Orr, the driver. Upon this subject the learned judge instructed the jury that there was no rule of law that required the driver to “ stop, look and listen,” but that it was for them to determine what it was his duty to do, and whether he actually did it on this occasion. They were thus left without any rule of law to apply, at liberty to make one to suit themselves for the purposes of this case, which the next jury might change to suit themselves, or disregard altogether. We cannot agree to this. The street railway has become a business necessity in all great cities. Greater and better facilities and a higher rate of speed are being constantly demanded. The movement of cars by cable or electricity along crowded streets is attended with danger, and renders a higher measure of care necessary, both on the part of the street railways, and those using the streets in the ordinary manner. It is the duty of the railway companies to be watchful and attentive, and to use all reasonable precautions to give notice of their approach to crossings and places of danger. Their failure to exercise the care which the rate of speed and the condition of the street demand, is negligence. On the other hand, new appliances, rendered necesssary by the advance in business and population in a given city, impose new duties on the public. The street railway company has a right to the use of its track, subject to the right of crossing by the public at street intersections ; and one approaching such a place of crossing must take notice of it, and exercise a reasonable measure of care to avoid contact with a moving car. It may not be necessary to stop on approaching such a crossing, for the rate of speed of the most rapid of these surface cars is ordinarily from six to nine miles per hour; but it is necessary to look before driving upon the track. If, by looking, the plaintiff could have seen and so avoided an approaching train, and this appears from his own evidence, he may be properly nonsuited: Marland v. R. R., 123 Pa. 487. It is in vain for a man to say he looked and listened who walks directly in front of a moving locomotive. An injury so received is due to his own gross carelessness: R. R. v. Bell, 122 Pa. 58; Moore v. R. R., 108 Pa. 349. Orr testifies that he knew the crossing, that he listened for the sound of a gong, but, not hearing it, drove on the track, and was instantly struck. He drove in front of a moving car so near to him as to make a collision inevitable. If he had looked, he could have seen the car and stopped, and the accident would have been avoided. Not to do so was, in the language of R. R. v. Bell, “gross negligence,” and justly defeats the action brought to recover from another damages that were self-inflicted. It is the duty of one about to cross a street railway track to look, so that he may not walk directly in front of a moving car to be struck by it. The first assignment of error is sustained. So, also, are the second and third. The judgment is reversed.

OPINION KAUFFMAN, Justice. This appeal is from an order of the Court of Common Pleas of Philadelphia denying appellant, Larry Miller, relief under the Post Conviction Hearing Act (“P.C.H.A.”). On September 30, 1965, at approximately 11:30 p. m., appellant shot and killed Edward David White in a gang related incident at 53rd and Locust Streets in Philadelphia, and was arrested almost immediately thereafter. In March, 1966, upon the advise of privately retained counsel, appellant entered a plea of guilty to murder generally, pursuant to a plea bargain agreement. In return, the Commonwealth certified that the case rose no higher than murder of the second degree. Appellant was adjudged guilty of murder of the second degree and sentenced to a term of imprisonment of four and one-half to twenty years. No appeal was taken from the judgment of sentence. Almost eleven years later, on February 10, 1977, appellant filed a pro se P.C.H.A. petition seeking to have his guilty plea set aside on the ground of ineffective assistance of counsel. Counsel was appointed, and an amended petition was filed. After an evidentiary hearing, the P.C.H.A. court denied the petition. This appeal followed. Appellant maintains that counsel was ineffective in advising him to enter a guilty plea: (1) without attempting to suppress an allegedly involuntary confession, and (2) in spite of counsel’s knowledge that at trial an alleged eyewitness would have retracted his prior statement implicating appellant. We disagree. “[B]efore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967), once it has been determined that the particular course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests, counsel will be deemed constitutionally effective. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Additionally, there is a presumption in the law that counsel is effective, Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); thus, the burden of establishing ineffectiveness rests upon appellant. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980); Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976). I Here, appellant contends that counsel was ineffective in failing to move to suppress his confession on the ground that he was only sixteen years of age at the time of the arrest and did not have the opportunity to consult a parent or other interested adult before waiving his Miranda rights and making his statement. Appellant supports this contention with the argument that a waiver of Miranda rights by a juvenile without benefit of adult guidance is involuntary and that any resulting confession is thus per se inadmissible. While it is now true that inculpatory statements made by minors in the absence of informed adult guidance are per se inadmissible, Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 541 (1976), this rule had not been adopted in this Commonwealth at the time of appellant’s guilty plea. See Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977). At that time, “youth was but one factor to be considered in determining whether the waiver of Miranda rights was knowing and [the] statement voluntary.” Commonwealth v. Triplett, 476 Pa. at 89, 381 A.2d at 880; see Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) (plurality opinion); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971). We have held repeatedly that counsel’s stewardship must be judged in light of the available alternatives and that he cannot be expected to raise motions unsupported by existing law. Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978); Commonwealth v. Logan, supra; Commonwealth v. Alvorado, 442 Pa. 516, 276 A.2d 526 (1971). Moreover, in Commonwealth v. Triplett, 476 Pa. at 89, 381 A.2d at 881, we rejected the precise claim here presented by appellant and refused to grant post-conviction relief where defendant’s guilty plea had been entered prior to our holding in McCutchen, supra. In Triplett, we emphasized our unwillingness to “impose upon trial counsel the qualities of a seer and fault him for not foreseeing that this Court would finally adopt per se rules as to juvenile waivers of Miranda rights. . . . ” Accord Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Roach, supra. Thus, we agree with the P.C.H.A. court that defense counsel could not reasonably have been expected under then existing law to argue for the suppression of appellant’s statement solely because he was denied the opportunity to consult with an interested adult prior to its making. II Appellant’s next argument, although not clearly articulated, is that his confession was involuntary under the totality of the circumstances, considering his youth and the fact that he was held in custody for fourteen hours without food or drink, and that his counsel was incompetent in recommending a guilty plea rather than moving for the suppression of the confession. However, in order successfully to attack a guilty plea in a P.C.H.A. proceeding on the ground that it was the product of an involuntary pre-trial confession, one must demonstrate all of the following: “(1) an involuntary pre-trial confession . . .; (2) that the guilty plea was primarily motivated by [the confession]; and, (3) that [appellant] was incompetently advised by counsel to plead guilty, in the circumstances, rather than stand trial.” Commonwealth v. Marsh, 440 Pa. 590, 593, 271 A.2d 481, 483 (1970). Conviction after a guilty plea is based not on evidence in the hands of the Commonwealth, including a pre-trial confession, but rather on a defendant’s admission in open court that he committed the crime. The existence of an involuntary confession does not, in itself, prove that a defendant did not have the opportunity to make a reasonable choice, and thus it cannot, in itself, establish that the plea was not intelligently and knowingly entered. Id. Thus, it is critical to prove not only that one’s confession was involuntary, but also that it “was the primary motivation for his plea of guilty.” Commonwealth v. Garrett, 425 Pa. 594, 598, 229 A.2d 922, 925 (1967). Here, even assuming arguendo that appellant’s confession was involuntary, he never attempted to prove at the P.C.H.A. hearing that his guilty plea was primarily motivated by the allegedly involuntary confession. Absent such proof, we cannot conclude that the P.C.H.A. Court erred in failing to find counsel ineffective in advising appellant to plead guilty rather than stand trial. Ill We also reject appellant’s contention that counsel was ineffective in advising him to plead guilty despite an eyewitness’s intended retraction of a damaging prior statement. In a statement to police shortly after the incident, an eyewitness, Melvin Joe (“Joe”), related: that he and two other young men, Ronald Tolver (“Tolver”) and Gilbert Richardson (“Richardson”) accompanied appellant to a poolroom on the night in question; that while there he saw appellant with a gun; that after leaving the poolroom, the four of them walked to 53rd and Chancellor Streets with the intention of confronting a rival gang; that shortly after they arrived, he and appellant walked up to a boy who was walking alone; that a few words were exchanged between the boy and appellant; and that appellant then shot him. According to appellant, sometime prior to the guilty plea proceeding, Joe informed appellant’s attorney of his decision to retract his statement, but counsel nonetheless advised him to plead guilty. At the time of the P.C.H.A. hearing, appellant’s attorney was deceased and thus unavailable to testify concerning his knowledge of the intended retraction. We therefore must review the record to determine whether there was any reasonable basis for counsel’s recommendation that appel lant plead guilty. See Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980). (Where counsel is not available to explain his course of conduct, a reviewing court shall look to the record to determine whether there was any reasonable basis for his action). That review has uncovered no evidence whatsoever, outside of appellant’s assertion, indicating that defense counsel was made aware prior to the guilty plea proceeding of Joe’s decision to recant. Moreover, appellant totally ignores the existence of the incriminating statements of Tolver and Richardson given to police not long after the murder. In his statement, Tolver related that shortly before the shooting, he had seen appellant display a gun in the poolroom and that immediately after the shooting, he heard Joe ask appellant for the gun, but appellant refused to give it to him. He also related that when police arrived, the gun was thrown under a mailbox and that appellant must have thrown it since “. . . he [was] the only one who had it.” Likewise, in his statement, Richardson confirmed that appellant had the gun immediately after the shooting, and added that, at that time, he heard appellant say, “We got one.” Richardson also acknowledged hearing some talk about the gun in the poolroom a short time before the shooting. Even if defense counsel had been aware of Joe’s decision to retract his prior statement, his recommendation to appellant to plead guilty was entirely reasonable in view of the other overwhelming evidence available to the Commonwealth and the obvious lack of credibility in Joe’s retraction of his prior statement. The record adequately reflects that counsel’s decision reasonably was made in an attempt to avoid appellant’s likely conviction of first degree murder and a sentence of death or life imprisonment. Accordingly, we hold that the P.C.H.A. petition correctly was denied. Order affirmed. . Act of January 25, 1966, P.L. (1965), 1580, 19 P.S. § 1180-1 et seq. . Although appellant was paroled from his 1966 sentence on April 17, 1970, he subsequently was arrested and convicted on a kidnap ping charge which resulted in his recommitment as a convicted parole violator on July 27, 1976. At the time he filed his P.C.H.A. petition, appellant was thus serving out the remainder of his 1966 sentence. . Abraham Berkowitz, Esq., defense counsel, died prior to the P.C. H.A. hearing and was therefore unavailable to testify. . Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 722(1). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Cf. Commonwealth v. Minarik, 493 Pa. 573, 427 A.2d 623 (1981). (Court made rules of criminal procedure, which are not of constitutional dimension, do not apply retroactively.) . Joe stated, “We went over there to ‘grease’ a Pine Streeter, we had talked about it, if there were only 2 or 3 we’d beat them up, but if there were too many we would use the [gun], Larry Miller and I decided this.” . Joe also was deceased at the time of the P.C.H.A. hearing. . Furthermore, we note that when Joe finally did recant his prior statement at the guilty plea proceeding, the presiding judge found his testimony so contradictory and confusing that he held him in contempt of court (N.T. 3/22/66, 40). Surely, it is reasonable to assume that defense counsel, if he were aware of Joe’s decision to recant, was, like the judge, cognizant of the dubious nature of that recantation. See Commonwealth v. Gaddy, 492 Pa. 434, 424 A.2d 1268 (1981). Under the circumstances then, it would have been reasonable for counsel to conclude that if appellant went to trial, a jury might well have disbelieved Joe’s recantation. . Defense counsel was aware of the statements of Tolver and Richardson. The record shows that, at the time of the 1966 guilty plea proceeding, the District Attorney’s Office had an “open file policy” with respect to homicides being discussed with a view toward a guilty plea, and that, under these circumstances defense counsel would have seen the entire file, including all of the witnesses’ statements. Furthermore, in the District Attorney’s file there was a copy of a letter written by the prosecutor to defense counsel indicating that witnesses’ statements had been sent to the defense.

The opinion of the Court was delivered by Rogers, J. This ejectment is for a Jot containing three or four acres, more or less, and the verdict is for 2 acres 28 perches and fW of a perch. In Smith v. Jenks, (10 Serg. & Rawle 153), a verdict “ that the defendant should have the third part of the 41 acres and 32 perches, neat, and if any overplus, it goes to the plaintiff,” was held too uncertain. In Burdick, v. Norris, (2 Watts 28), a verdict “ for the land claimed in the writ, except 10 acres, including the buildings,” was held bad for uncertainty. And in Stewart v. Speer, (5 Watts 79), a verdict “ for the plaintiff for 150 acres, part of the land claimed in the writ, and not guilty as to the residue,” was also held bad. So in ejectment for a mortgage, “ he to extinguish all claims of the Miles family,” was held erroneous. The cases cited were decided on the principle that a verdict must be sufficiently certain to enable the court to give judgment, and the sheriff to deliver possession on a habere facias. Green v. Watrous, (17 Serg. & Rawle 400). It is not good, unless it carries certainty on its face, or refers to something by which it may be made certain. Here it is neither certain on its face, nor can it be reduced to a certainty; and it is impossible for the court to know for what to render judgment, or for the sheriff to ascertain of what portion of three acres he is to put the plaintiff in possession. There is nothing on or dehors the record, which indicates the part recovered, or from what part the portion recovered is to be taken. The sheriff would not know where to begin, nor where tq end; and yet he is required to act at the peril of becoming a trespasser, if he unfortunately, or by mistake, delivered more to the plaintiffs than had been recovered. The verdict is therefore incurably uncertain; and for this reason the judgment .must be reversed. The 4th section of the Act to supply the Borough of Harrisburg with water, authorizes the- president and town council of the borough to purchase any land which may be required for the construction of the works. And the 5th section of the same Act directs the manner of proceeding, when the parties cannot agree upon the compensation to be made to the owner. The Act must be construed in subordination to the 4th section of the 7th article of the constitution, which prohibits the Legislature from investing any corporate body or individuals with the privilege of taking private property for public use, without requiring such corporation or individuals to make compensation to the owners of said property, or give adequate security therefor, before such property shall be' taken. It is matter of regret that the course marked out in the Act, in terms which it is impossible to mistake, were not pursued before the borough undertook to take property, and to erect their works. And the course pursued by the corporation is the more extraordinary, because it is apparent that in no other mode can a title be acquired; and this valuable and useful improvement must continue subject to an adverse claim, at least until the owner of the fee attains the age of 21 years, when he might assent to a sale of the property. There seems to have been *■% no agreement as to the compensation; nor could there be any, ; which would devest the interest of the owner of the fee, whose guardian has no power to dispose of it. But these obvious considerations seem to have been entirely disregarded; for what reasons, and with what view, it is impossible to discover. The constitution provides, that before property can be taken for > public use, the corporation or individual must make compensation \ to the owner, or give him adequate security. But here, among ) other omissions, it unfortunately appears that no compensation was made, nor was adequate security tendered. By the will of Henry Crangle, the former owner, a life estate is vested in his wife Elizabeth, with a remainder to his minor son, Henry, and the bond is given and tendered to R. J. Fleming, his guardian. There is no security whatever, adequate or inadequate, to Elizabeth Crangle, owner of the life estate, whose interest comes as much within the purview of the constitution as the owner of the fee simple. It is difficult to assign a reason why one should be protected and the other not; and yet this seems to have escaped the attention of the officers of the borough. After tendering the bond as above stated, a petition was presented under the Act, and the court appointed viewers, who reported the value of the ground at §1087.50. To the report, exceptions were taken; but, for some unaccountable reason, the court refused to dispose of them. In this the court were in error, for the pendency of the ejectment repdered a decision of exceptions absolutely necessary; nor should the ejectment have been tried until they were passed on, nor until the borough had a fair opportunity of endeavouring to ascertain the value of the land by another proceeding under the Act. At least, we think, if the report had been set aside, the latter course, under the circumstances, would have been but a fair exercise of the legal discretion of the court. But if, on the contrary, the report had been confirmed, it would have been a defence to the ejectment this far, that the plaintiff would not, in that event, have been entitled to judgment that she recover the possession, although it would be no answer to the action, so as to prevent the plaintiff from recovering damages for the trespass. An idea seems to have been entertained, at least it has been suggested in the argument, that no proceeding could be had under the 5th section of the Act, after possession had been taken. Aiut this we apprehend to be a mistaken view of the constitution; for j although it is provided that, before the property shall be taken / for public use, by a corporate body or individual, compensation ( shall be made to the owner, or adequate security shall be given; ] yet this cannot prevent either party, after an unauthorized taking, i from presenting his petition under the Act, and ascertaining, by v the report of viewers, the value of the land. / Such a proceeding ¿1/ would be perfectly competent, and would vest' theproperty iq, the corporation or individual, as the casS^iñS^Rje^Trae^SiiíjF'M'ect v„ rwiiTBeTthat notwithstanding the title may be afterwards devested, it is a trespass, and they are liable as trespassers to the owner for the unlawful entry. The intention is to take from the Legisi lature a power frequently exercised, of authorizing an entry .on I lands, without making compensation or giving security to the ' owner. As this is a useful public work of great value, a shadow of doubt should not be permitted to rest on the title. And for this reason, we would suggest that a final disposition should be made of the proceedings already instituted; that the borough ; should tender separate bonds in an amount entirely adequate— , one to the owner of the life estate, and the other to the owner of 5 the fee; and that afterwards the property should be valued in the manner pointed out by the Act, and that until that be done, the court be requested to stay proceedings on the ejectment. In this way, justice may be done to all parties. The bond should be drawn to Henry Crangle, although the tender must be made to his guardian. It must be remarked, that notwithstanding this course may be pursued, yet the plaintiff may proceed with the ejectment to recover damages for the trespass. But whether the plaintiff committed a trespass in entering on the land, we do not undertake to decide; for that will depend on the question whether they had a right to enter as the transferee of B. Hale, who claims to be the tenant of Elizabeth Crangle, the owner of the life estate. Judgment reversed, and venire de novo awarded.

Opinion by Mr. Justice Eagen, Gregory McNeal was convicted by a jury of rape, conspiracy to commit rape and murder in the first de gree. After denial of post-trial motions, a sentence of life imprisonment was imposed on the murder conviction as the jury directed in its verdict. A concurrent prison sentence of seven and one-half to fifteen years was imposed on the rape conviction. This one appeal followed. The prosecution followed the finding of the abandoned body of a nineteen-year-old female in a vacant lot in Philadelphia. The body bore evidence of horrible sex abuse and untimely death due to manual strangulation. It was the Commonwealth’s position at trial that McNeal and other males entered into an agreement or conspiracy to forcibly rape the victim, and in the perpetration of the rape she was killed by one or more of the group. McNeal testified that the victim willingly went with him and two others to a certain house where she voluntarily undressed and consensually engaged in sexual intercourse with his two companions; that four other males then arrived on the scene, and he left the premises because he feared there would be trouble due to the crowd. In this appeal, McNeal does not dispute entering into the conspiracy to rape, as charged by the Commonwealth, but contends “the felony-murder doctrine should not be applied where the murder is not committed in furtherance of the conspiracy.” This is, undoubtedly, correct legally and morally, but whether or not the killing in this case was “committed in further anee of the conspiracy” was a question of proof for the jury to resolve. Even though McNeal testified he had departed from the scene of the killing before it occurred, his credibility was for the jury. Furthermore, the fact that he left the scene before the killing would not, in itself, exonerate him from culpability for the killing, if the killing were committed in furtherance of the conspiracy of which he was a part. Commonwealth v. Waddy, 447 Pa. 262, 290 A. 2d 238 (1972), and Commonwealth v. Thomas, 410 Pa. 160, 189 A. 2d 255 (1963). And, it would matter not that McNeal did not anticipate the victim would be killed in furtherance of the conspiracy. See Commonwealth v. Guida, 341 Pa. 305, 19 A. 2d 98 (1941). Nor would it matter that others joined and participated in the conspiracy after it began. Cf. United States v. Dolasco, 470 F. 2d 1297 (3d Cir. 1972), and United States v. Nasse, 432 F. 2d 1293 (7th Cir. 1970). After studying the record, we are completely satisfied the proof was ample for the jury to find that McNeal and others conspired to rape the victim involved, and that the killing was committed in the furtherance of this conspiracy. We also have no doubt the jury was also warranted in finding McNeal had not withdrawn from the conspiracy before the killing occurred. Hence, the jury had the right to apply the felony-murder doctrine and return a verdict of guilty of murder in the first degree. Alternatively, McNeal maintains errors occurred during the trial which require a retrial. To these alleged errors, we now direct our discussion. First, it is asserted it was error for the trial court to admit into evidence the bloodstained clothing of the deceased victim without cautionary instructions to the jury. Concomitantly, it is urged this evidence had no probative value and its only purpose was to inflame the passions of the jurors. The trial record discloses that there was neither a request nor an objection to the failure of the court to give cautionary instructions. Additionally, the trial record discloses the admission of this evidence was not objected to at trial for the reasons now asserted. The only objection to the evidentiary use of the victim’s clothing voiced at trial was that it had not been established as belonging to the victim at the time it was offered for admission. It has long been the rule in this jurisdiction that if the ground upon which an objection to evidence is based is specifically stated, all other reasons for its exclusion are waived, and may not be raised post trial. Commonwealth v. Budd, 443 Pa. 193, 278 A. 2d 879 (1971), and Commonwealth v. Raymond, 412 Pa. 194, 194 A. 2d 150 (1963). Furthermore, the clothing was properly admitted in evidence under the circumstances. As noted before, it was McNeal’s contention that the victim voluntarily removed her clothing and consensually engaged in sexual intercourse. The trial evidence established that when the victim’s body was found, there was dry blood near her nose, mouth and rectum; there were lacerations in the area leading into the vagina; there were also lacerations of the peritoneum (the surface of the skin between the back of the vagina and rectum), and extensive lacerations of the rectal mucosa, plus tears of the anal sphincter. The clothing with bloodstains correlating to these injuries was relevant and of probative value to show the victim did not remove her clothing voluntarily, as contended by McNeal. Finally, the clothing was not unnecessarily displayed to the jury, and only exhibited at the time it was marked as a trial exhibit. This assignment of error will, therefore, be overruled. Cf. Commonwealth v. Johnson, 450 Pa. 575, 301 A. 2d 632 (1973). Next, it is alleged the district attorney exceeded the bounds of proper cross-examination of McNeal “by char acterizing Ms statements as lies and not worthy of belief.” The record fails to support this contention. The only portion of the district attorney’s cross-examination upon which tMs allegation could possibly be bottomed is as follows: “Q. What were you doing on the corner with Cooper and Myles? A. We were drinking. Q. And your answer, with the consulting of your attorney at that time, was no; is that right? A. I don’t recall but if it is in statement, I probably said it. Q. You said it. Your attorney was there when you said it, wasn’t he? A. Yes, he was. Q. In response to the question, were you drinking prior to going to Johnson’s house, your answer, no. Now, wMch do you want this jury to believe, that you were or you weren’t? A. Me. Pressman: Objection, sir. The Court: All right. Ask him which is correct. By Mr. Ejstauer: Q. WMch is correct? Which is true? A. We had two pints of wMskey. Q. And you were drinking them? A. Yes, we was. Q. All right. When you made this statement, you were lying? You told a lie? Mr. Pressman: Objection. The Court: Objection overruled.” In support of his position, McNeal relies on Commonwealth v. Potter, 445 Pa. 284, 285 A. 2d 492 (1971), but a comparison of tMs factual situation with what occurred in Potter readily manifests Potter is inapposite. In Potter the district attorney said this to the defendant during cross-examination: “What you have said about being beaten by the police is a malicious lie like the rest of your testimony.” TMs was clearly an expression of the Commonwealth representative’s personal opinion of the falsity of the defendant’s testimony and, as such, was improper and was violative of the trial conduct required of district attorneys. See ABA project on Standards for Criminal Justice Relating to the Prosecution and Defense Function. Section 5.6(b) (Prosecution Function) (Approved Draft 1970). See also Commonwealth v. Lipscomb, 455 Pa. 525, 317 A. 2d 205 (1974), and Commonwealth v. Toth, 455 Pa. 154, 314 A. 2d 275 (1974). Instantly, the prosecutor did not express his personal belief as to the truth or falsity of whether McNeal was drinking; he did, however, bring to the attention of the jury that McNeal was testifying at trial in contradiction of his earlier statement to the police which was made in the presence of his attorney. Since both statements could not possibly be true, the prosecutor was justified in asking McNeal whether he was “lying” when he made the initial statement. In retrospect, the words “lie” or “lying” may have been a harsh classification of McNeal’s misstatement of a particular circumstance; however, these remarks fall far short of the type of prejudicial remarks which in the past we have held to be reversible error. Compare Commonwealth v. Lipscomb, supra; Commonwealth v. Toth, supra; Commonwealth v. Brooks, 454 Pa. 75, 309 A. 2d 732 (1973); Commonwealth v. Revty, 448 Pa. 512, 295 A. 2d 300 (1972); Commonwealth v. Potter, supra, and Commonwealth v. Clark, 322 Pa. 321, 185 A. 764 (1936). We have consistently ruled that comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Cf. Commonwealth v. Hoffman, 439 Pa. 348, 266 A. 2d 726 (1970), and Commonwealth v. Capalla, 322 Pa. 200, 185 A. 203 (1936). The challenged remarks are clearly not in this category. The final two assignments of error concern the trial court’s charge to the jury. Initially, it is maintained the court’s “definition and description of the elements of second degree murder as ‘any killing with malice which is . . . not committed in the perpetration of or attempt to perpetrate rape’ withdrew from the jury their right to find the defendant guilty of that charge.” We are not convinced the jury was deprived of returning such a verdict. It is true that a jury has the power to fix the defendant’s guilt at murder in the second degree, even though the only evidence in the case establishes the killing was committed in the perpetration of a rape. See Commonwealth v. Meas, 415 Pa. 41, 202 A. 2d 74 (1964), and Commonwealth v. Turner, 367 Pa. 403, 80 A. 2d 708 (1951). And the trial court is required to so instruct the jury. Cf. Commonwealth v. Meas, supra. However, in evaluating the correctness of instructions to a jury, the charge must be read and considered in its entirety, and it is the general effect of the charge that controls. Commonwealth v. Fell, 453 Pa. 531, 309 A. 2d 417 (1973). After reading the entire charge in this case, we are convinced the jury was clearly apprised of its power to find McNeal guilty of murder in the second degree. In addition to that portion of the charge now challenged, the court told the jury: “If you believe beyond a reasonable doubt that the deceased was raped by the defendant and his associates, or raped only by his confederates, but that he aided, encouraged, assisted and abetted them; and that she was killed during the perpetration of the rape by one of his confederates in furtherance of the rape, and there was a direct causal connection between the rape and the death, and not an accidental killing, then the defendant is guilty of felony-murder even though one of his associates strangled the deceased. Under the statute, this is murder in the first degree. However, you may find him guilty of murder in the second degree.” Later, when asked to give an additional charge to the juiy elaborating on the differences between murder in the first and murder in the second degree, the trial judge instructed: “I also said that although under this statute it is murder in the first degree to commit a felony murder, you may still find a person guilty of murder in the second degree.” Clearly, the jury was not deprived of its power to fix the degree of appellant’s guilt. Cf. Commonwealth v. Schmidt, 423 Pa. 432, 224 A. 2d 625 (1966). The second complaint to the court’s charge is directed to that portion dealing with McNeal’s asserted withdrawal from the conspiracy. In substance, it is argued this portion of the charge left “much to be desired” and should have been “more definitive and complete.” The record discloses no request was made for additional instructions on this facet of the defense and only a general exception to the charge was entered. Further, this alleged error was not raised in the post-trial motions filed in the trial court. Under such circumstances, the issue will not be considered on appeal. Commonwealth v. Jones, 446 Pa. 223, 285 A. 2d 477 (1971). Judgments affirmed. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Roberts and Mr. Justice Nix concur in the result. Sentence was not imposed on the conspiracy conviction. Under the Appellate Court Jurisdiction Act, appellate jurisdiction of McNeal’s rape conviction and sentence is vested in the Superior Court. Act of July 31, 1970, P. L. 673, No. 223, Art. III, §302, 17 P.S. §211.302. The Commonwealth has not interposed an objection on this score however, and the failure to object operated to perfect this Court’s jurisdiction of the judgment imposed on the rape conviction, unless the Court orders otherwise. Appellate Court Jurisdiction Act, supra, 17 P.S. §211.503.

WIEAND, Judge: Is a district justice who finds a motorist guilty of a summary violation of Section 3743 of the Vehicle Code required to advise the motorist of a potential license suspension by the Department of Transportation in order that the appeal period begin to run? The trial court held that such a requirement did not exist and refused to allow an appeal nunc pro tunc five months after the conviction and sentence. We affirm. Regis Paul Englert was found guilty, after hearing on December 26, 1979, of failing to stop at the scene of an accident in violation of 75 Pa.C.S.A. § 3743(a). He paid the fine imposed by the district justice and took no appeal. On May 27, 1980, Englert filed a petition requesting leave of court to file an appeal nunc pro tunc. In support of this request he alleged that he had been unaware that a license suspension would follow his conviction. In fact, his license had been suspended for six months on April 15, 1980 pursuant to Section 1532(b)(1) of the Vehicle Code, 75 Pa.C. S.A. § 1532(b)(1). This section directs the Department of Transportation to suspend the operating privileges of a driver for six months upon conviction of Section 3743 of the Code. The trial court initially allowed the appeal but thereafter reconsidered and granted a Commonwealth motion to quash. This appeal followed. When an Act of Assembly fixes the time within which an appeal may be taken, courts are without power to extend the period or allow an appeal nunc pro tunc absent fraud or its equivalent or some breakdown in the court’s operation. West Penn Power Company v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Horner, 449 Pa. 322, 324, 296 A.2d 760, 762 (1972); Commonwealth v. Bey, 437 Pa. 134, 137 and n. 4, 262 A.2d 144, 145 and n. 4 (1970); Hesson v. Weinrebe, 288 Pa.Super. 216, 218, 431 A.2d 1015, 1016 (1981); Appeal of Girolamo, 49 Pa.Cmwlth. 159, 164, 410 A.2d 940, 943 (1980); MacKanick v. Rubin, 244 Pa.Super. 467, 470-472, 368 A.2d 815, 817-818 (1976); Commonwealth v. Lord, 230 Pa.Super. 96, 100, 326 A.2d 455, 458 (1974); Klugman v. Gimbel Brothers, Inc., 198 Pa.Super. 268, 275, 182 A.2d 223, 226 (1962). Judicial extensions of time, in the absence of fraud or its equivalent, are specifically prohibited by Section 5504 of the Judicial Code, which provides: § 5504. Judicial extension of time (a) General rule.—Except as provided in section 1722(c) (relating to time limitations) or in subsection (b) of this section, the time limited by this chapter shall not be extended by order, rule or otherwise. (b) Fraud.—The time limited by this chapter may be extended to relieve fraud or its equivalent, but there shall be no extension of time as a matter of indulgence or with respect to any criminal proceeding. Appeals from summary convictions are to be filed within thirty days. See: Pa.R.Crim.P. § 67(c) and 42 Pa.C. S.A. § 5571(b). Appellant’s petition for leave to appeal nunc pro tunc was filed one hundred and fifty-two days after he had been convicted of a violation of the Vehicle Code. He did not allege that his failure to file a timely appeal had been caused by “fraud or its equivalent” or because of a “breakdown in the court’s operation.” He contended merely that he had been unaware that the Department of Transportation would suspend his operating privileges because of such conviction. The suspension of operating privileges is a collateral consequence of a conviction for failing to stop at the scene of an accident in violation of 75 Pa.C.S. § 3743. It is a consequence, civil in nature, whose imposition has been vested in an administrative agency over which the magistrate had no control and for which he had no responsibility. “Courts have ... consistently held that a trial court’s failure to inform a defendant of [a] potential collateral consequence does not invalidate [a plea of guilty].” Commonwealth v. Wellington, 305 Pa.Super. 24, 27, 451 A.2d 223, 224 (1982). Accord: Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir.1973), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973); Tindall v. United States, 469 F.2d 92 (5th Cir.1972); Meaton v. United States, 328 F.2d 379 (5th Cir.1964), cert. denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965); United States v. Cariola, 323 F.2d 180, 186 (3rd Cir.1963); Redwine v. Zuckert, 115 U.S.App.D.C. 130, 132, 317 F.2d 336, 338 (1963); Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973); People v. Thomas, 41 Ill.2d 122, 125-26, 242 N.E.2d 177, 179 (1968); State v. Reid, 148 N.J.Super. 263, 265-66, 372 A.2d 626, 628 (1977). If unawareness of .collateral consequences will not prevent a knowing and intelligent plea of guilty, it is difficult to comprehend how such unawareness can. adequately excuse a failure to file a timely appeal from a summary conviction. See: Commonwealth v. Meshey, 278 Pa.Super. 73, 419 A.2d 1363 (1980). One can possibly contemplate many collateral consequences that may flow from a criminal conviction. To permit an appeal period to be extended whenever a defendant has failed to contemplate or has not been judicially advised of all collateral consequences of a conviction would be unrealistic and would, to a large extent, nullify established appeal periods. We conclude, therefore, that a fail ure to anticipate collateral consequences is an inadequate basis on which to allow an untimely appeal. Appellant has not contended that he was “prevented from appealing by reason of fraud or a wrongful or negligent act of a court official____” Conrad v. Kemmerer, 301 Pa.Super. 410, 412, 447 A.2d 1032, 1034 (1982). Thus, there is neither legal nor equitable reason for allowing an untimely appeal, and the trial court was correct in refusing to allow appellant to proceed nunc pro tunc. The order is affirmed. BECK, J., files a dissenting opinion. . This section provides as follows: The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary. . It may also be observed that appellant learned of the suspension on April 15, 1980, and, again, more than thirty days expired before he attempted to appeal nunc pro tunc.

Opinion by Mb. Chief Justice Mitchell, The want of harmony in the cases dealing with the period to which the words “ then living ” or similar phrases, in a will, should be applied, arises- mainly from the artificial canon of construction that the period intended is presumed to be the death of the testator. The. canon itself grew out of the preference in the policy of the law, in all doubtful cases, for vested rather than contingent interests. Like all artificial rules it had the constant tendency to become an arbitrary fetter instead of a mere instrument .for the ascertainment of the testator’s intent. The policy of the later cases in this state, if not everywhere, is to get back to the true rule of looking only to the actual intent. There is no sound reason in the nature of things why the actual meaning of the person using the words should not be sought in the case of a will exactly as it is in the case of a contract. But as wills very frequently affect the devolution of real estate and become part of the chain of title they acquire an importance which they would not have as temporary instruments of contract. Hence when certain forms of expression in wills have been given an interpretation and have got into the reports with that meaning and the draftsmen of other wills have followed them, they gradually assume the character of rules of property, which the courts will be careful in disregarding. Except so far as this consideration is a restraining force, there is no reason why the actual meaning of the testator should not be ascertained and enforced on the same lines as it would be in a contract, and the recent decisions contain frequent intimations that precedents in will cases are of little weight. Every will, said Chief Justice SharsWOOD in Fox’s Appeal, 99 Pa. 382, “ must be construed from its four corners to arrive at the true intention of the testator. Decisions upon other wills may assist but cannot control the construction.” In the present case there is no room for doubt as to the actual intent of the testator. His words are, after a devise to his widow for life, “ and from and immediately after her death or marriage, I give and devise my said real estate unto my children then living, and the issue of any that may be deceased, in equal parts and shares absolutely and in fee simple the issue of any deceased child to take only the deceased parent’s share.” All these remainders are clearly contingent. No child takes a vested interest because until the happening of the contingency prescribed, the death of the widow, it cannot appear that he will be in the class to whom the devise is made, to wit: those then living, and if he should die before then leaving issue such issue would claim directly in their own right under the terms of the will. That this was the time actually meant by the testator is so clear on the face of the will that it would not admit of contradiction by the presumption of a different intent under any rule of construction. But the case does not really involve the canon of construction relied on by appellant. It belongs to the class of Craige’s Appeal, 126 Pa. 223, where the rule is quoted approvingly from Smith on Executory Devises in this form : “ Where real or personal estate is devised or bequeathed to such children, or to such child or individuals as shall attain a given age, or the children who shall sustain a certain character or do a particular act, or be living at a certain time, without any distinct gift to the whole class preceding such restrictive description; so that the uncertain event forms part of the description of the devisee or legatee; the interest so devised is necessarily contingent on account of the person. For until the age is attained, the character is sustained, or the act is performed, the person is unascertained ; there is no person answering the description of the person who is to take as devisee or legatee.” The rule is- again approved in the same form in Reilly’s Est., 200 Pa. 288 (304), and to the same effect is Raleigh’s Estate, 206 Pa. 451. That is the exact situation in the present case. There is no person now answering the testator’s description of the persons who are to take, a child who has survived the widow, or the surviving issue of a child who has died before the widow, and it is altogether uncertain which if any of the persons now living may fulfil the description when the event shall happen which is to determine the contingency. Judgment affirmed.

Opinion by Mr. Justice Kephart, Plaintiff was injured by defendant’s automobile at a public crossing. He was on the northwest corner of Market and Twenty-third streets, Philadelphia, and intended to cross Market Street to the southwest corner. Before entering the cartway he observed the semaphore signal at “stop” for traffic, and on looking east of Twenty-third Street on Market Street he saw automobiles standing awaiting the traffic signal to proceed. His way was clear when he started over Market Street. About five feet from the north rail of the westbound trolley track, which is near the center of Market, a wide street, he noticed the traffic signal turned to permit vehicles to go east and west on Market Street; at the south rail of the same track he was struck by the defendant’s machine, and seriously hurt. Plaintiff recovered in his action for damages. Generally stated, it is the ordinary case of a signal, given by a policeman, at intersecting streets, for traffic to move while pedestrians are in the highway in the act of crossing the street. Some automobile drivers imagine this signal gives them a clear right of way against intersecting traffic; they start their machines recklessly and rapidly regardless of persons already in the driveway, terrifying if not actually striking them. It is a common occurrence for people to narrowly escape injury because of such carelessness. This misuse of the highway is just as culpable as if the drivers were using their cars at night without lights. We have held over and over again that at street crossings drivers must be exceedingly vigilant to have their cars under such control that they may stop at the slightest sign of danger. If they do not, and an accident results, they are liable in damages for its consequences. In the crowded condition of our public thoroughfares, traffic officers cannot always clear the intersecting ways before giving a signal for vehicular traffic to move on the street that is being crossed by pedestrians. The responsibility rests with the automobile drivers to so handle their cars as not to injure those already in the street. Of course the mere fact that a person is struck by an automobile does not raise a presumption of negligence of the driver (Flanigan v. McLean, 267 Pa. 553, 556; King v. Brillhart, 271 Pa. 301, 304), but where, as here, a pedestrian is crossing a highway at intersecting streets in the customary manner (Eckert v. Merchants Ship Bldg. Corp., 280 Pa. 340, 344; Banks v. Shoemaker & Co., 260 Pa. 280), and there is no obstruction to the driver’s view of the crossing, or of the pedestrian’s, it becomes the duty of the driver to be vigilant and have his car under such control that he can stop it if objects appear in his path: Anderson v. Wood, 264 Pa. 98, 99; Virgilio v. Walker & Brehm, 254 Pa. 241, 245; Silberstein v. Showell, Fryer & Co. (No. 1), 267 Pa. 298, 305. In the last-named case we said: “Of course, a driver need not stop if he can, with reasonable certainty, pass in front or in the rear of a pedestrian; by thus diverting the movement of his car, at a public crossing, he is under the definite duty of having it under control; if an accident cannot be avoided without stopping, he must stop his car. A driver is not, per se, negligent when he deflects his machine to pass around a pedestrian in the act of crossing the street at a public crossing, and he cannot, in the exercise of due care, be charged with neglect in not anticipating the unexpected thing to happen; it naturally follows that he must anticipate the expected thing to happen.” If there is any superior right to use the highway under circumstances such as described in this case, it is with the pedestrian who is in the cartway. It is quite clear the traffic should not run him down when he is in full view. And when it does, even at a moderate or slow rate of speed, the driver lacks the control of his car necessary under the circumstances and is chargeable with negligence: King v. Brillhart, supra. There is nothing in the evidence in this case that would warrant the court in holding plaintiff guilty of contributory negligence merely because he tried to cross the street when his pathway was clear. He had an undoubted right to leave his place on the sidewalk when nothing appeared before him, and the traffic signal was not turned against him. His position became perilous only through the unlawful act of defendant. Although Twenty-third Street is a little wider on one side of Market Street than on the other, the use made of it was such as to bring the place of the accident within what is usually termed a public crossing. The judgment of the court below is affirmed.

Opinion by Mr. Chief Justice Kephart, This appeal presents the usual right-angle collision at a public crossing with motions for judgment n. o. v. and a new trial. The evidence as it relates to the legal questions involved will be reviewed in the course of the opinion. Under the Act of April 22, 1905, P. L. 286, the court cannot enter judgment n. o. v. where the evidence is conflicting on a material fact, or where any other reason exists precluding a binding direction: Dalmas v. Kemble, 215 Pa. 410; Schwarz v. Glenn, 244 Pa. 519, 524. The court does not determine questions of fact based upon disputed evidence; it merely reviews the whole case on the record and does subsequently what it would have been proper to do under a request for a binding direction: Bond v. P. R. R. Co., 218 Pa. 34; Smith v. Standard Steel Car Co., 262 Pa. 550. Appellee must be given the benefit of every fact pertaining to the issues involved which may be reasonably deduced from the evidence : Kish v. P. R. R., 309 Pa. 439, 446; Conley v. Simmons, 312 Pa. 249. Appellant contends the evidence shows the deceased guilty of contributory negligence as a matter of law, and that this is established by incontrovertible physical facts. For this he relies upon the speed of deceased’s car and the position of the cars immediately preceding and following the collision, as established by oral evidence. We have frequently held that incontrovertible physical facts are never established by oral evidence as to position, speed, etc., of movable objects: Hegarty v. Berger, 304 Pa. 221, 226, and cases cited therein. “The question as to how fast a person walked or how fast an automobile ran is seldom, if ever, susceptible of mathematical proof after the event”: Ferguson v. Charis, 314 Pa. 164, 171. These are mere inferences or conclusions, based on oral testimony, which it is the province of the jury to pass upon. We cannot agree that “the logical and only consistent conclusion is that the deceased must have been traveling between 40 and 60 miles per hour” at the time he crossed the intersection. The record fails to bring to light any evidence conclusively rebutting the presumption that deceased exercised due care: Morin v. Kreidt, 310 Pa. 90; Michener v. Lewis, 314 Pa. 156. There is testimony from which the jury might readily find that the deceased was exercising due care at the time he approached and crossed the intersection. A witness testified the deceased’s car was about “the same distance [from the intersection], around three or four rods or so” as the defendant’s car, and “maybe 50 feet.” The jury could in fer from this that the two cars were equally distant from the intersection at a point between 50 and 75 feet away. Considered with appellant’s own testimony, supported by that of his wife, that he had slowed down to 12 miles an hour before he proceeded out into the intersection, it follows that the deceased must have been traveling at approximately the same rate of speed as appellant when he approached the crossing. The fact that 1,000 feet from the intersection deceased was traveling 25 or 35 miles per hour does not contradict this inference nor does it show the speed of deceased’s car as it approached the intersection. The only positive testimony' showing the deceased was traveling at an excessive speed comes from appellant’s witnesses. The jury could disregard this adverse testimony in the light of other evidence. When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left must yield the right of way to the vehicle on the right, unless this right of way is forfeited by traveling at an unlawful speed. See Act of May 1, 1929, P. L. 905, section 1013, as amended by Act of June 22, 1931, P. L. 751, section 2; Gray v. Ohio Grease Co., 283 Pa. 461; Alperdt v. Paige, 292 Pa. 1. It was for the jury to determine whether appellee was entitled to the benefit of this rule. A driver having the right of way at an intersection may properly assume that autos approaching on an intersecting street will recognize this fact and act accordingly: Swift v. Corrado, 292 Pa. 543; Galvin v. Kreider, 293 Pa. 395. Viewing the evidence in the light most favorable to appellee, appellant was clearly negligent in failing to yield the right of way, and since the deceased cannot be said to have been guilty of contributory negligence as a matter of law, the court below committed no error in refusing to grant a judgment n. o. v. In support of the motion for a new trial, it is urged that the verdict was against the weight of the evidence. The motion was addressed to the sound discretion of the court below. Our examination of the entire record convinces us the court did not abuse its discretion in refusing to grant a new trial. We do not reverse an order granting or refusing a new trial unless palpable abuse of discretion appears. Appellant argues the court erred in refusing to charge as follOAvs: “An automobile approaching an intersection in a residential section from the right of another oncoming car, forfeits any right of way that he may have to the intersection, if he is traveling at a speed of more than twenty (20) miles per hour within fifty (50) feet from the intersection, when he does not have a clear and uninterrupted vieAV of such intersection and of the traffic upon all the highways entering such intersection for a distance of two hundred (200) feet of such intersection.” This point is based directly on the act of assembly amended June 22,1931, P. L. 751, section 1013. The trial court agreed that the request was true as an abstract principle of law, but held that it did not apply to this case since the place where the accident occurred was not a residence district Avithin the meaning of the Act of May 1, 1929, P. L. 905, article I, section 102, defining it as follows: “The territory contiguous to a highway, not comprising a business district, Avhen the frontage on such highway for a distance of three hundred (300) feet or more is closely built up with dwellings, or by dwellings and buildings in use for business.” The record discloses nothing to indicate that the territory contiguous to the highAvays intersecting at the point Avhere the collision occurred constituted a residential district Avithin the statutory definition. Appellant’s exhibits preclude any such finding. The court should not instruct a jury as to a matter that has no support in the evidence, especially where such instruction merely confuses the issue. As a final reason for a new trial, appellant alleges misconduct, partiality and prejudice on the part of a trial juror. During a recess in the trial a witness for defendant testified that a juror had stated to him “that she [plaintiff] won’t need to worry, that we are going to take care of her in this case.” Had the juror admitted that he had made such statement, or had the trial judge found it as a fact, it would have exhibited a bias and prejudgment rendering necessary a new trial. In Schankweiler v. Pa. Light Co., 275 Pa. 50, a juror approached plaintiff as she left the witness stand, and stated his admiration of her way of doing business, concerning which she had just testified. We held that a new trial should be granted on that account and stated, “That confidence in trial by jury may be preserved and that parties may feel a verdict is based on an honest consideration of the evidence and not on prejudice or sympathy, every appearance of evil must be avoided and every precaution taken to guard against all matters tending in the slightest degree to corrupt or influence the verdict.” In Com. v. Hurd, 177 Pa. 481, we affirmed an order refusing a new trial on the ground that a juror had exhibited prejudice by a remark made to an outsider during the course of a trial because the juror’s statement was not sufficiently proven. But we stated: “Actions of jurors should be jealously scrutinized by courts; care should be taken that a fair and impartial trial by juries should be afforded a defendant and misconduct on the part of jurors showing a prejudgment of the case, or tending to bring scandal on the administration of justice should operate to the granting of a new trial.” Discussions for and against the abolition of trial by jury have been waged since the beginning of this century, and defects have been shown to inhere in the system. So far no plan has been developed to take its place that will meet public approval, and so long as the Constitution provides for a jury as the fact-finding medium, our efforts must be directed to keep this part of our judicial system above reproach. The jury’s efficiency and integrity must be maintained on the highest plane if we are to prevent its forced abandonment and the embarking upon an unchartered course of experimentation with other untried methods. It is the duty of jurors to so act that their conduct will not bring the administration of justice into disrepute and to perform with fidelity their duties as fact finders in accordance with the evidence presented, uncorrupted by external influences, and free of all bias and prejudgment, especially that arising from sympathy. To this end safeguards must be thrown about jurors in the exercise of their duties so that they may perform them without hindrance from any source. As was stated by Justice Brown in Mix v. North American Co., 209 Pa. 636, which we sent back for a new trial because of many proven charges of misconduct on the part of jurors: “It has been said that the greatest object of civil government is to get twelve honest men in the jury box. If this be true, after they get there they must be kept hedged around not only with their own integrity but with every precaution against evil communication which may corrupt them; and when they get to their room to deliberate upon an issue on which is involved the life, liberty or property of their fellowmen, their conduct in the discharge of such solemn duty must comport with it, otherwise confidence in the system which is the best achievement of civilization will be lost.” There is much that the jurors should know to preserve the integrity of trial by jury as guaranteed by the Constitution. To those acquainted with our judicial system these principles and the rules to promote it are well known. But jurors, their employment being temporary and their prior acquaintance with the system being but casual, are often unacquainted with the solemnity of their duties and have not a full comprehension of their scope. Wherever and whenever possible, therefore, the judges of the lower courts should fully instruct them as to the measure of their obligations and responsibilities, especially that of speaking to or permitting any one to speak to them about the case on trial, and should point out that not only is the violation of these duties immoral and dishonest, but that disregard of the court’s injunctions will be met with punishment. As stated in McKahan v. Baltimore & Ohio R. R. Co., 223 Pa. 1, when misconduct is disclosed: “On the instant the court should, of its own motion, take notice of the misconduct of the jurors and . . . impose proper punishment upon them. This is due to the orderly administration of justice and the court’s own dignity.” Judges should thoroughly instruct jurors at the opening of a session of court as to their duties and the punishment if overstepped; and they should again instruct them during each trial on the occasions when they separate. They should unhesitatingly punish disobedience of these admonitions. Fortunately the accusation in this case was without foundation. The court below found that “nothing was developed or proven to sustain this reason for granting a new trial.” This finding of fact precludes any action on our part since it is supported by the evidence. Judgment affirmed.

Opinion by Mr. Justice Kephart, Appellant instituted an action against appellee to recover damages received while riding as a passenger in a street ear. The jury found for defendant. The verdict established the following facts: Plaintiff was riding in the second seat from the rear on the left side of the street car, facing forward. The car was stopped at a traffic light, facing north on 13th Street. Appellee’s truck was also going north on the same street, and while the driver was attempting to pass the car in which appellant was riding, a child started to walk from the left curb; He swung his car to the right to avoid the child, and, in straightening up, the rear swerved against the trolley at a point opposite appellant’s seat. About one and a half feet of molding was torn from the side of the trolley, but no glass was broken. Plaintiff had testified a second trolley car was stopped a short distance in the rear, and defendant’s truck came down the right side of the street, cutting in between the two cars to reach the left side, but the space was not large enough for this movement and the rear of his truck collided with the car in which she was seated, throwing her forward and causing the injuries complained of. Appellant urges that by his charge the trial judge took from the jury the consideration of some of the facts bearing on defendant’s negligence. We have examined the charge and find no error in it. The trial judge carefully left to the jury the question of fact whether the truck attempted to cut between the two trolley cars. He said “If......he attempted to pass a standing trolley car in such a space that he could not pass without striking it, that would be negligence, and your verdict would have to be in favor of the plaintiff.” Moreover a trial judge may express his opinion upon evidence provided the charge as a whole leaves all issues of fact for the jury. The charge must be considered as a whole, and if when so considered the issues are fairly put up to the jury, the judgment will not be reversed, even though isolated portions of the charge may be the subject of criticism: Garver v. Lightner, 275 Pa. 401; Price v. Hamscher, 174 Pa. 73, 78. The defense was absence of negligence. The trial judge, commenting on the effect of the evidence of a sudden emergency created by the sudden appearance of the child on the curb, said: “Where one is confronted by a sudden emergency, so that one does not have the opportunity to act with the judgment that one ordinarily may exercise, one is held in law only to the exercise of his best judgment under the circumstances. If you believe therefore, that this accident was caused by the natural, impulsive act, not negligence, of the driver of the truck in seeking to avoid an imminent danger that was suddenly thrust upon him, and that he used his best judgment, there would be no negligence and your verdict would be in favor of the defendant.” The judge also stated that if the accident had not occurred in that manner, then the verdict should be for the plaintiff. The facts in the case support this instruction. The emergency did not arise while he was passing between the cars. It occurred after he was through and there was no evidence of undue speed or careless driving. We have frequently stated that the sudden emergency rule will not apply if the emergency arises through the prior negligence of him who seeks the protection of the rule: Montgomery v. Phila., 270 Pa. 346; Lieberman v. Pittsburgh Rys. Co., 305 Pa. 412; Stewart v. P. R. T. Co., 103 Pa. Superior Ct. 366. This limitation applies as well to the one causing the injury as it does to the injured party. When the driver of an automobile claims that he has been subjected to a sudden emergency in driving on the highways, to enable him to claim the benefit of this rule, it must appear that he was not driving in a reckless or careless manner, but with due regard to the condition of the highway and the traffic. One driving carelessly cannot say he was placed in sudden peril. If driving in a careful manner, the peril would not have arisen. The question, therefore, is usually one for the jury to determine, under proper instruction. The court made it very plain to the jury that if the driver was negligent in attempting to pass the car, they must find for the plaintiff. The other assignments of error relate to that part of the charge in which the judge commented upon the nature of the plaintiff’s injuries and the manner in which they were received. As no exception was taken at the trial, and no request was made to correct the wrong counsel felt had been done at the time, these remarks cannot be made the subject of assignments of error: Medvidovich v. Schultz, 309 Pa. 450; Gates v. Keichline, 282 Pa. 584, 593; Thomas R. S. Co. v. Phila. & Reading Ry. Co., 256 Pa. 549. The refusal of a motion for a new trial will be reversed only where it appears that the lower court clearly abused its discretion, and no such abuse is shown here: Stewart v. P. R. R., 293 Pa. 38; Fertax v. Spiegelman, 292 Pa. 139; Brand v. P. R. R., 292 Pa. 578. Judgment of the court below is affirmed.

OPINION NIX, Chief Justice. This appeal had its legal genesis in a trespass action which the appellant, Stephen Poyser, filed in the Court of Common Pleas of Philadelphia County against his employer, Newman & Company, Inc. (“Newman”). By that lawsuit appellant sought to recover damages for a physical injury he suffered while in the course of his employment. The action was grounded partly on a claim of products liability under section 402A of the Restatement (Second) of Torts (1965), and partly on a theory that Newman had caused appellant’s injury by willfully disregarding governmental safety regulations and by deliberately exposing him to a known hazard. Newman responded to the suit with an Answer containing. New Matter which alleged that the injuries and other losses sustained by the appellant were covered by Newman’s workmen’s compensation insurance policy, and further asserted that the trespass action was barred by the “exclusivity” provision in section 303(a) of The Pennsylvania Workmen’s Compensation Act (“Act”). Appellant followed with a Reply in which he denied generally the applicability of the asserted statutory bar, but admitted that he had received payments from the employer’s insurance carrier. After the close of the pleadings, Newman moved for judgment on the pleadings, based on the claimed bar of section 303(a) of the Act. The trial court granted the motion and entered judgment accordingly. That order was affirmed by the Superior Court in a memorandum opinion, 344 Pa.Super. 635, 495 A.2d 620 (1985). We granted an allowance of appeal to consider the question of whether the appellant’s second asserted ground for tort recovery, that his injury was caused by deliberate derelictions of the employer, operated to take the personal injury action out of the “exclusivity” provision of section 303(a) of the Act. Although the appellant’s suit also included a products-liability claim, that theory of recovery as such is not offered as a basis for negating the applicability of section 303(a). Because the appellant suffered an adverse judgment on the pleadings, we must, for purposes of review, treat all of his well-pleaded allegations as being true. Cantwell v. Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984); Karns v. Tony Vitale Fireworks Corp., 436 Pa. 181, 259 A.2d 687 (1969); Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966). The allegations of the appellant’s Complaint in Trespass set forth the following. On June 7, 1983, the appellant was in the course of his employment at Newman’s factory. While so engaged, he had occasion to be operating a device called a “notching” machine, which had been designed and manufactured by Newman itself. Part of this machine consisted of six sharp saw-blades, which would spin when the mechanism was turned on. At some point in the appellant’s operation of the machine on the day in question one of his hands came into contact with the spinning blades, causing him to lose a portion of the small finger. In support of the products liability claim, the Complaint alleged that the employer’s design and construction of the “notching” machine was defective because there was no cover or guard over the saw-blades to protect the hands of operators, and that such defect was the cause of the appellant’s injury. With respect to the companion theory of liability, the Complaint alleged that Newman, despite its awareness of the danger posed by the machine, deliberately forbade its workers from using a certain “feeding” device which would have greatly reduced the risk of hand injury. Another averment was that Newman also knew that the “notching” machine did not comply with federal and state safety regulations, and, for that reason, directed the appellant to remove it on the eve of an OSHA inspection which took place about eleven days before the accident. It was again placed in full operation when the safety inspectors departed. According to the Complaint, Newman’s course of conduct amounted to a deliberate and wanton disregard for the safety of its workers, and such was the cause of the appellant’s injury. As noted, the trial court’s order granting Newman’s motion for judgment on the pleadings was based on section 303(a) of the Act, 77 P.S. § 481(a). That section provides as follows: 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) or occupational disease as defined in section 108. (Emphasis added.) Section 303(a) is a version of the historical quid pro quo that employers received in return for being subjected to a statutory, no-fault system of compensation for worker injuries. Pursuant to its terms, an employer is given immunity from lawsuits by employees for any “injury” defined as such by section 301(c) of the Act, 77 P.S. § 411. In Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983), this Court upheld section 303(a) against a challenge of unconstitutionality, and, in so doing, observed that the Act “provides the exclusive means by which a covered employee can recover against an employer for injury in the course of his employment.” Id., 503 Pa. at 253, 469 A.2d at 159. We further stated that, because of the provision, a tort action by an employee against his employer for “any work-related injury” was barred. Id., 503 Pa. at 256, 469 A.2d at 160 (emphasis in original). Despite the language of section 303(a) and our statements in Kline, the appellant contends that Newman in the instant case should not be permitted to assert the statutory immunity from common law actions for employee injury. In so arguing, the appellant does not rely on any concept of “dual capacity”. See, e.g., Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 469 A.2d 111 (1983). And, although his Complaint sought to set forth a claim of products liability, he does not rely on that as a basis for piercing the shield of immunity. The appellant instead asserts that Newman’s willful and wanton disregard for employee safety was the legal equivalent of an intentional tort, and as such, should preclude Newman from raising the section 303(a) immunity. He also contends that Newman’s act of deliberately concealing the defective machine from OSHA inspectors should disqualify it from having the protection of that provision. There is no Pennsylvania judicial authority supportive of the result the appellant seeks. The argument he presents is one based entirely on his view of the relationship between the Act and other laws and regulations which bear upon safety in the workplace. According to the appellant, if an employer is to be allowed to escape common law liability for intentional misconduct causing harm to a worker, governmental policies aimed at promoting job safety will be undermined. Analogous theories have been propounded by various writers on the subject of workmen’s compensation. Some of these commentators take the position that the present statutory system of compensation, in not providing the injured worker with all that he might recover in a tort action, relieves the employer from bearing the full cost of maintaining an unsafe plant. According to these theorists, such a result should not be countenanced where an employee’s injury has resulted from the employer’s intentional creation of an injury-causing hazard. See generally, Note, Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 Harv. 1641, 1648 (1983). It is true that the appellate courts of some other states have held that wanton and willful misconduct by an employer is tantamount to an intentional tort, and as such, pre vents the operation of a statutory exclusive-remedy provision. See, e.g., Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978). It must be noted, however, that those cases rested on provisions in the state workmen’s compensation statutes which expressly preserved the right of an employee to sue in tort where his injury was caused by the employer’s intentional wrongdoing. There is no such provision in The Pennsylvania Workmen’s Compensation Act. The appellant’s argument is an interesting one; but it is one that must be resolved by the General Assembly, not this Court. What he is asking us to do is to engraft upon section 303(a) of the Act an exception the legislature did not see fit to put there. A reading of the Act will disclose that the legislature was not unmindful of the issue of intentionally caused harm. For example, in section 301(c)(1), 77 P.S. § 411(1), it is provided that “an injury caused by an act of a third person intended to injure the employe because of reasons personal to him ...” does not fall within the statutory definition of a covered injury. (Emphasis added.) And, under section 205, 77 P.S. § 72, which immunizes an employee from tort actions for harm caused to a fellow employee, an exception is expressly made for the intentional infliction of harm. Since it is clear that the legislature had the issue of intentional harm in mind, and yet did not mention it in connection with section 303(a), we are constrained to conclude that the legislature did not intend the result for which the appellant argues. Thus, the trial court was correct in holding that the appellant’s lawsuit was barred by the Act, and properly entered judgment on the pleadings in favor of the employer. For the reasons set forth herein, the order of the Superior Court is affirmed. LARSEN, J., files a dissenting opinion in which PAPADAKOS, J., joins. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 481(a). . The Reply concedes that the insurance carrier paid all applicable medical bills but alleges that only part of the wage loss was paid. . According to the Complaint, Newman is in the business of "manufacturing, distributing and selling pallets and skids.” There is no allegation that the employer manufactures "notching” machines for sale to others. . Under the "dual capacity" doctrine, “ 'an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort, to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers upon him obli gations independent of those imposed upon him as employer.’" Budzichowski, supra, 503 Pa. at 167, 469 A.2d at 114 (quoting from 2A LARSON, WORKMEN’S COMPENSATION LAW, § 72.80). See also Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982).

OPINION OF THE COURT Justice CASTILLE. This Court granted allowance of appeal in this domestic relations/support matter limited to a question of first impression: the proper interpretation of the counsel fee provision governing support proceedings under the Domestic Relations Code, i.e., 23 Pa.C.S. § 4351. For the reasons that follow, we hold that the trial court did not abuse its discretion in declining to assess counsel fees against appellee in this case pursuant to § 4351(a) and, accordingly, we affirm. In so holding, we take the opportunity to address the appropriate factors for a trial court to consider when ruling on a request for counsel fees under this statute. On September 19, 1997, the parties’ daughter, E.A.B., was bom. The parties were not then, and have never been, married to each other. Appellee, a physician serving as a Major in the U.S. Army, provided for the child’s support from before her birth until the January 4, 2000 filing of the instant support complaint. On July 17, 1998, appellant filed a complaint to establish both paternity and support for the child. Appellant filed the complaint specifically to obtain military recognition of the child as appellee’s daughter, thereby entitling the child to medical insurance and other affiliated military benefits. Two weeks after the 1998 filing, on August 3, 1998, appellee acknowledged paternity and entered into a verbal agreement with appellant for support. Because the parties had reached an agreement, neither appeared for the hearing scheduled on the complaint, and the trial court dismissed the action on September 29,1998. More than a year later, on December 29, 1999, appellee himself filed a petition for special relief to institute a new support case on the grounds that appellant had breached the parties’ verbal agreement for support by attempting to secure additional funds directly from the U.S. Army. Specifically, appellant had attempted, through the Judge Advocate General’s Office, to have appellee’s Basic Allowance for Quarters (BAQ) paid directly to her, in addition to the child support paid by appellee directly. Appellant then filed the support complaint that is the subject of this appeal on January 4, 2000, seeking an order of child support as well as counsel fees. The judicial hearing officer assigned to the complaint held an expedited conference on January 27, 2000, because appellee had been ordered by the Army to resolve the support issue by February 1, 2000. At the hearing, Appellee presented evidence through cancelled checks and credit card bills, which proved that the amount he contributed to the support of appellant and his child often exceeded the $800 per month the parties had initially agreed upon. In addition to the cash support paid, appellee permitted appellant to use an automobile titled in his name and for which appellee made car payments in the amount of $592 per month. Appellee argued that this car payment should be included as an additional part of his child support obligation. The hearing officer rejected that assertion. On February 13, 2000, the hearing officer fixed appellee’s child support obligation at $800 per month — i.e., the very amount set forth in the parties’ prior verbal agreement, the minimum amount appellee in fact had paid to appellant each month from the time of the child’s birth through January of 2000, and the approximate amount of appellee’s BAQ. The hearing officer declined appellant’s request for an award of counsel fees, stating: Counsel for the plaintiff also requested an award of attorney’s fees arguing that because the defendant would not agree to have his military allotment for BAQ paid over to the plaintiff, the filing of a complaint for support became necessary. Your Hearing Officer does not find that there was any behavior in [sic] behalf of the defendant which would require an award of counsel fees for the other party. Although your Hearing Officer may disagree with the defendant’s position with respect to the car payment, it is an issue that nonetheless had arguable merit and he should not be faulted or penalized for contesting on a good faith basis the support action. As stated, the defendant had previously paid support directly to the plaintiff. Moreover, the support case was filed as recently as January 4, 2000, and a hearing was conducted swiftly and an appropriate Support Order will be entered in a short period of time. There was no undue delay caused by the defendant, which furthermore makes an award of counsel fees inappropriate under the circumstances of this case. Report of Hearing Officer, 5. Both parties filed exceptions to the hearing officer’s decision, which the trial court dismissed, finding that “[t]he record reflects that the thorough report and recommendation of [the hearing officer] was correct.” The trial court entered a final order on April 13, 2000, awarding appellant $800 per month in child support. Although appellant raised the issue of counsel fees in her exceptions to the hearing officer’s decision, the trial court did not specifically address that issue in its opinion. Appellant appealed to the Superior Court, which affirmed in a panel opinion authored by then-Judge, now-Justice J. Michael Eakin. Bowser v. Blom, 766 A.2d 1259 (Pa.Super.2001). On the question of the denial of counsel fees, Judge Eakin began by noting that there was no existing case law interpreting 23 Pa.C.S. § 4351(a), which authorizes a court to award fees incurred in paternity or support matters to the prevailing obligee as follows: “If an obligee prevails in a proceeding to establish paternity or to obtain a support order, the court may assess against the obligor filing fees, reasonable attorney fees and necessary travel and other reasonable costs and expenses incurred by the obligee and the obligee’s witnesses.” Assessing the plain language of the statute, Judge Eakin reasoned that the statute did not mandate an award in every case where an order of support resulted. Indeed, in a case such as this where there was no denial of paternity or support, it would be difficult to say that the obligee “prevailed” in the proceedings. Similarly, it is unclear whether an obligee could be said to have prevailed in situations where the parties compromise or settle the matter, or in situations where the parties agree that support is due, but that there is some dispute as to the amount of support owing. Finally, Judge Eakin noted that the mere fact that an order of support results says nothing about the respective reasonableness of the litigation postures of the parties: [T]he posture of an obligee may be just as unwarranted [as the posture of an obligor], and this statute cannot force the potential obligor to accept an unreasonable demand on pain of being assessed the obligee’s counsel fees; agreement would be discouraged if the mere entry of an order triggered such an assessment. To award fees under subsection (a) just because an order results would penalize a parent whose cooperation and ongoing support of a child were antithetical to the need for significant legal expense in the first place. Bowser, 766 A.2d at 1262. In the Superior Court’s view, a counsel fee award under § 4351(a) would be appropriate where there was “conduct by the obligor that the court finds to unreasonably impede the determination of paternity or the timely flow of appropriate support to the child.” Id. Elaborating on this approach, Judge Eakin articulated the standard as follows: Counsel fees necessitated by an obstinate obligor who unreasonably impedes the determination of paternity or the appropriate support of the child may be awarded in the fair discretion of the trial court. As the obligee must prevail, the reasonableness of the conduct of obligor may be determined with hindsight, after the entry of an order. Recalling that the lack of good faith is an element of subsection (b) but absent in (a), fees may be awarded on a finding of less than bad faith; however, there still must be conduct which, in the discretion of the trial court, is not reasonable and warranted under all the circumstances. Id. at 1263. Appellant filed a petition for allowance of appeal, and this Court granted review limited to the issue of whether the lower courts erred in denying appellant’s request for counsel fees under § 4351(a). Our general standard of appellate review in child support matters is an abuse of discretion standard. Humphreys v. DeRoss, 567 Pa. 614, 790 A.2d 281, 283 ( 002); Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192, 1196 (1994) (citing Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975)). We have defined abuse of discretion as: “Not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is mani festly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record.” Humphreys, 790 A.2d at 283 (citing Blue v. Blue, 532 Pa. 521, 616 A.2d 628, 631 (1992) and In re Women’s Homeopathic Hospital of Philadelphia, 393 Pa. 313, 142 A.2d 292, 294 (1958)). Appellant argues that the lower courts erred by considering the conduct of either party as being relevant to a determination of the appropriateness of an award of counsel fees under § 4351(a). According to appellant, “these courts neglect the one truth indispensable to interpretation of this statute: the party meant to benefit from a child support award is not a litigant in the action. The ultimate purpose of child, support is to provide for the best interests and welfare of children.” Brief of Appellant at 9 (emphasis in original; citations omitted). If no provision were made for recouping the cost of obtaining the award, appellant notes, the cost of the litigation in many instances will effectively be borne by the child, thus reducing the ultimate and otherwise appropriate amount of support available for the child’s needs. Appellant thus contends that allocation of costs on the basis of need in obtaining a support order is necessary to “preserve the integrity of the award itself, and prevent the erosion of the benefit to the children.” Id. (emphasis in original; footnote omitted). In forwarding her “needs analysis” approach, appellant urges this Court to adopt a standard whereby the costs of obtaining a support award are allocated to the parties according to their respective shares of the combined net monthly income in the same manner as allocation of other expenses under the support guidelines. Such a standard, appellant claims, is the sole means of protecting children from bearing the costs of obtaining a child support award and is appropriate because the obligee’s legal fees are incurred in the defense of the rights and needs of the children. In appellant’s view, the obligor’s fees are a separate expense not designed to enhance the welfare of the children, but instead to advance the obligor’s own interests, which may be adverse to those of the children. Appellee counters that the plain language of the statute places an award of counsel fees within the discretion of the court. Appellee argues that appellant has not demonstrated any abuse of that discretion where the hearing officer determined (and the trial judge agreed) that appellee’s issues had arguable merit and concluded that appellee should not be penalized merely for contesting appellant’s support complaint. Appellee does not take a position as to whether the standard for an award of fees enunciated by the Superior Court in this case was appropriate, but he does argue that the standard proposed by appellant would result in an award of fees in every case, which is contrary to the plain language of § 4351(a). We begin our analysis of this question of statutory interpretation by examining the plain language of § 4351(a). See 1 Pa.C.S. §§ 1903(a), 1921(b); Sphere Drake Insurance Co. v. Philadelphia Gas Works, 566 Pa. 541, 782 A.2d 510, 513 (2001) (citing Commonwealth v. Bumsworth, 543 Pa. 18, 669 A.2d 883, 886 (1995) (when language of statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning) and Guinn v. Alburtis Fire Co., 531 Pa. 500, 614 A.2d 218, 220 (1992) (object of all interpretation and construction of statutes is to ascertain and effectuate intention of General Assembly; best indicator of legislative intent is plain language of statute)). Further, in construing statutory language, “[wjords and phrases shall be construed according to rules of grammar and according to their common and approved usage----” 1 Pa.C.S. § 1903. It is presumed “that the General Assembly does not intend a result that is absurd ....” 1 Pa.C.S. § 1922(1). See Commonwealth v. Wituszynski, 567 Pa. 49, 784 A.2d 1284, 1288 (2001) (citing Waugh v. Workmen’s Compensation Appeal Board, 558 Pa. 400, 737 A.2d 733 (1999) and Housing Authority of County of Chester v. Civil Service Commission, 556 Pa. 621, 730 A.2d 935 (1999) (“the first principle of statutory construction is that courts will not interpret legislative enactments in a manner which imputes absurdity to the legislative enactment”)). Bearing these principles in mind, we turn to the pertinent language of § 4351(a), which states that, “[i]f an obligee prevails in a proceeding to establish paternity or to obtain a support order, the court may assess against the obligor filing fees, reasonable attorney fees and necessary travel and other reasonable costs and expenses incurred by the obligee and the obligee’s witnesses.” The plain language of the statute, in particular the use of the non-mandatory word “may” in this section, carries a clear meaning: even when the obligee prevails, counsel fees are not automatic, but instead are contingent upon in the discretion of the court. Nothing in this section compels a court to award fees in a successful action to establish paternity or obtain support. The very language employed in § 4351(a) demonstrates the error in appellant’s proposed needs allocation standard for the award of counsel fees. The statute does not command an award of counsel fees in any instance, nor does it identify relative need as the exclusive, much less controlling, factor in determining when an award is appropriate. Moreover, appellant’s asserted standard would strip courts of the very discretion the statute plainly vests in them. Under appellant’s standard, an award of counsel fees would be required in virtually every successful child support action, with the obligor being required to pay the obligee’s counsel fees in the same percentage established for determining an appropriate child support order. Thus, an obligor who earned 60% of the combined net monthly income of the parties would be responsible for 60% of the obligee’s counsel fees, regardless of the obligor’s conduct in the child support proceedings. While we acknowledge that appellant’s proposed standard would provide certainty, and reflects one self-contained and policy-based view of the question, it is not the policy or view that is commanded, or even suggested by, the actual discretionary language of § 4351(a). Since it is not this Court’s prerogative to ignore plain statutory language, we must reject appellant’s reading. Although the statute makes the award of fees permissive and discretionary, rather than mandatory, the statute provides no specific guidance as to how that discretion should be exercised. Thus, the statute neither identifies relevant factors to be considered and balanced, nor does it exclude or minimize other factors. And so, this Court is called upon to articulate an appropriate standard for the exercise of the lower courts’ discretion. This is neither unusual, nor a great impediment for courts, which are well-versed in the formulation and application of such flexible, discretionary standards. The standard adopted by the Superior Court in this case is a reasonable starting point: “Counsel fees necessitated by an obstinate obligor who unreasonably impedes the determination of paternity or the appropriate support of the child may be awarded in the fair discretion of the trial court.” Bowser, 766 A.2d at 1263. We agree that unreasonable or obstreperous conduct on the part of the obligor in a child support action would warrant an award of counsel fees to the obligee. However, mounting a fair and reasonable defense in a child support action does not rise to the level of obstreperous or obstinate behavior and cannot be interpreted as unreasonably impeding the determination of paternity or an appropriate support order. In this case, appellant does not seriously impute such conduct to appellee. However, we are not prepared to say that obstreperous or unreasonable conduct on the part of the obligor in paternity or support litigation is the only basis upon which an award of counsel fees would be appropriate. The statute certainly does not so confine the court’s discretion. Moreover, the very failure of the General Assembly to specifically address the circumstances which would warrant an award of counsel fees demonstrates that it contemplated some degree of flexibility in application — which perhaps is not surprising in an area where the facts of the cases are myriad and difficult to categorize, and where the overriding concern is the best interests of the child. Thus, it must be the totality of relevant circumstances that informs the determination of whether to award counsel fees. We need not imagine or account for all conceivable relevant circumstances, in addition to the conduct of the obligor in the litigation, in order to render some guidance on the standard. It is enough to say that we envision cases, for example, where the necessity of an action to secure support is unquestionable, and where the incomes of the parties is so disparate (with the obligor’s income exceeding that of the obligee), or where the obligee’s financial situation is so strained that the cost of the action would necessarily affect the child, that an award of counsel fees to the obligee would be appropriate or, in some instances, required. Thus, although we do not approve a strict needs-based model, the relative financial positions and financial needs of the parties certainly may be relevant. Similarly, the prior relationship of the parties, including the course of any prior litigation between them and the conduct of the obligee, may have a bearing on the propriety of an award of counsel fees. As is usually the case in matters of discretion, where to strike the balance in weighing the relevant factors will be trusted, in the first instance, fairly to the trial judge. Viewing the totality of the circumstances in the case sub judice, it is clear that the trial court did not abuse its discretion in declining to award counsel fees to appellant. This is not a situation where the father was shirking his moral and financial obligations, requiring legal action to force him to accept his responsibilities. To the contrary, appellee readily acknowledged paternity and accepted his paternal responsibility, which led to the original support agreement and the dismissal of appellant’s initial support action. The instant support action, moreover, was actually triggered when appellee filed a petition for special relief to open a new support case, in response to appellant’s attempt to have the U.S. Army divert appellee’s BAQ to her, as a form of additional child support, despite what the parties had agreed upon. As the Superior Court noted, appellee understandably viewed appellant’s action as an attempt to “double dip.” Appellant sought that additional support despite the parties’ agreement, and despite the fact that appellee had faithfully paid support according to that agreement — and in an amount that was equal to, and often exceeded, the amount ultimately fixed by the hearing officer upon appellant’s support complaint. Six days after appellee filed his petition, appellant filed her support complaint. The litigation of appellant’s support complaint was neither protracted nor particularly contentious. Appellee did not deny — indeed, he has never denied — his obligation of support. Moreover, this support action was fast-tracked due to appellee’s obligations to the military. Thus, the hearing officer conducted the hearing on appellant’s complaint approximately three weeks after its filing and less that one month after appellee had filed his petition for special relief. The hearing officer rendered his decision within three weeks of the hearing. In short, there was neither delay nor obstructive or obstreperous conduct on the part of appellee. Indeed, it was appellant’s own action in seeking appellee’s BAQ as additional support, despite the parties’ agreement, that led to the litigation now before this Court. In this regard, it is important to note that the amount of support ultimately awarded was the very amount appellee had been voluntarily paying to appellant since the birth of their child, and approximately the same amount he received from the Army as his BAQ, which demonstrates that appellee’s defense in this support action was not unreasonable. Furthermore, appellant did not establish that she was financially unable to pay her own counsel fees; instead, she argued that an award of counsel fees should be automatic based upon her proposed allocation standard. But a blameless and responsible father/obligor such as appellee should not be required to finance the questionable decisions of the child’s mother, which inevitably led to this litigation. The fact that a support action was pursued at all in the case sub judice was due in the first instance to appellant’s conduct in attempting to obtain child support from the Army in an amount greater than that agreed upon by the parties, and greater than that ultimately determined by the hearing officer and trial court to be appropriate. Bearing in mind appellee’s voluntary payment of an appropriate amount of child support from the time of the child’s birth, it would be fundamentally unfair to saddle him with appellant’s counsel fees, which were necessitated by her own conduct, and where there appears to be no financial burden upon appellant to bear her own legal costs. Accordingly, because we conclude that the trial court did not abuse its discretion in declining to award counsel fees, the order of the Superior Court is affirmed. Former Chief Justice FLAHERTY did not participate in the decision of this case. . Basic Allowance for Quarters is a sum of money to which active duty military personnel are entitled when they do not live on post or in housing that is financed by the government. Soldiers who are eligible for BAQ and who have dependent family members are entitled to a greater amount of BAQ, which is referred to as "BAQ at the 'with dependents' rate.” In order to be eligible to receive BAQ at the "with dependents” rate, soldiers must pay toward the support of their dependents, at a minimum, the difference between BAQ at the "with dependents” and "without dependents” rate each month. To procure BAQ, the service member must go to his local finance officer, establish that he does not live on the military base in assigned family quarters, submit proof that he has legal dependents, and request BAQ. If the father has an illegitimate child, paternity must be legally established before BAQ will be awarded. It was for the purpose of establishing that appellee was the father of this illegitimate child that appellant filed the original 1998 complaint. . The Superior Court correctly found 23 Pa.C.S. § 4351(b) to be inapplicable as that subsection authorizes an assessment of costs and attorney fees in instances where a person subject to a child support order did not have good cause for failing to make support payments on time. . The record demonstrated that appellee went beyond the minimum required of him by the parties’ agreement, often paying monthly amounts well in excess of $800. In addition, appellee voluntarily provided appellant with an automobile, the payments for which cost him another $592 per month.

Opinion by Mr. Justice Mestbezat, This action was brought to recover damages for injuries sustained by the plaintiff in falling on the ice which had accumulated in a depression in the cinder sidewalk of Morris street in Allegheny city. The jury returned a verdict for the plaintiff which was taken “subject to a question of law reserved, whether there is any evidence in the case entitling the plaintiff to recover.” Subsequently the court entered judgment for the defendant non obstante veredicto on the ground that the plainti if was guilty of contributory negligence. The learned judge held that the evidence warranted the jury in finding the city negligent. He, however, was of the opinion that in attempting to pass over this part of the sidewalk the plaintiff was negligent as “ he knew the condition at this point and passed over it every day.” Morris street is an unpaved street with cinder sidewalks, each of which is about five feet in width. The depression or hole in the sidewalk in which the ice had accumulated on which the plaintiff fell was five or six feet in length, two inches deep and fifteen to eighteen inches wide. The accident occurred as the plaintiff was going the usual and direct route to his work at the Fort Wayne railroad shops shortly after midday on February 10, 1902. The ground was covered with an inch of snow which had fallen during the morning. Persons are not necessarily prohibited from using a street 01 a city because it is defective or may be partly obstructed. If this were so, business would be unnecessarily retarded and people would be greatly incommoded in the pursuit of their daily avocations. While, however, such conditions may not of themselves prevent the use of a street they nevertheless impose upon the person using it a higher degree of care than if the street were free from obstructions. In such cases the party traveling the street must use that degree of care demanded by the circumstances of the particular case. If he is injured in the use of the street, known by him to be defective, and the evidence shows that when he entered upon it the danger was imminent and immediate, the court, as matter of law, may declare him guilty of negligence. On the other hand, when the testimony shows a defect of such character that the street can be used with safety by the exercise of reasonable care notwithstanding its defective condition, it is not for the court, but for the jury, to determine whether the injured party performed the duty required of him under the circumstances. In 15 Am. & Eng. Ency. of Law (2d ed.), 468, it is said, citing numerous decisions of many states, including our own, in support of the rule, that “it is generally agreed that a traveler’s previous knowledge of a defect in the highway whereby he is injured is not of itself sufficient, as a matter of law, to prevent his recovery on the ground of contributory negligence.” In Stokes v. Ralpho Township, 187 Pa. 333, we held that one is not precluded from recovering for an injury received from a defect in a road, though knowing it was defective, unless the danger was so apparent that in the use of ordinary care he ought not to have undertaken the passage. “ A person who uses a street or highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination,” says Sterrett, Chief Justice, delivering the opinion in Mellor v. Bridgeport Borough, 191 Pa. 562, “ is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous, and therefore avoid it, that a trial court can say, as matter of law, that the person using the more dangerous route is guilty of contributory negligence. If the alternative route has dangers of its own, as was the fact in this case, and the dangers of the route actually taken are not so great and obvious as to deter the general public and ordinarily prudent and careful people from using it, the question of the contributory negligence of a person injured in using it is a question for the jury.” And in Brown v. White, 206 Pa. 106, this court said (p. 108 ) : “It is not necessarily negligence to attempt to pass over even a ‘noticeable accumulation’ of ice on the pavement. That may depend upon the size and shape of the accumulation, the obviousness and magnitude of the danger, the means at hand of avoiding it, and other circumstances. In the present case the plaintiff had passed over the obstruction the evening before, and whether it was prudent in her to try to do so again was for the jury.” Applying these principles to the facts of the case in hand, it is clear that the learned judge was in error in holding that the plaintiff’s negligence was a question of law for the court and not of fact for the jury. The danger was neither great nor imminent. On the contrary, it is apparent that the walk might have been used with comparative safety. The plaintiff and other persons in that vicinity of the city had been constantly using the walk and with but a single exception no one had fallen on the ice. It is therefore quite evident that it was not necessarily dangerous for one to attempt to use the walk at that point. Whether all the circumstances made it the duty of a prudent person to refrain from using the walk on that occasion was for the jury. At that time, snow covered the street as well as the sidewalks. This may have increased the risk of using the walk, but - to what extent, and whether the plaintiff exercised greater and proper care by reason of the fact, was a question the jury must determine. As suggested by the court, the depression covered by the ice was only about two feet wide and there was space on the walk on either side of the ice for the plaintiff to pass. For aught that appears in the testimony, he may have been attempting to do that very thing when he fell. If he knew of the defect, it was his duty to avoid it if reasonable care would enable him to do so. He testifies that at the time he fell he was walking carefully along the pavement. He says he “was walking along naturally, wasn’t hurrying, had lots of time, was walking very carefully.” In fact, there is very little, if any, evidence in the case that tends to show that the plaintiff was not exercising the care required of him on the occasion, if we except' the fact that he knew of the ice when he attempted to use the walk. This, as we have seen, would not, as a matter of law, convict him of negligence. We do not agree with the learned court that there was a safer way by which the plaintiff could have reached his destination and thereby have avoided the danger of the route which he took. The learned judge concedes that the walk on the opposite side of the street was in bad shape and icy. He also admits that the roadway was rough, but says that, according to the plaintiff’s witnesses, it was not dangerous. That was, however, a question for the jury, and under the testimony they could have found that the cartway of the road was very rough and was dangerous, as it had been cut in ditches by the wheels of the wagons driven over it. One witness testified that it was “very rough, frozen hard, almost impossible to walk on it.” This part of the street was covered with snow, and if the testimony of the witnesses was credible, the use of it by pedestrians might have been dangerous. In the language of the Mellor cáse quoted above, “the alternative route had dangers of its own.” Thus far, in considering the case, we have regarded the plaintiff as having prior knowledge, not only of the depression in the sidewalk, but also of the ice which had accumulated in it. In his opinion, entering judgment for the defendant, if we understand his language, the learned judge disposed of the case on that view of the facts. But the testimony does not clearly show that the plaintiff knew that there was ice in the depression at the time he attemped to pass over that part of the pavement. It is true that the evidence on that point was neither as full nor as clear as it should and could have been, but if we properly construe the plaintiff’s own testimony, he testifies that he could not see, and hence did not know, of the ice because it was covered by the snow which had fallen earlier in the day. He testified on cross-examination: “Q. There was considerable ice on the street everywhere that day ? A. I could not notice any ice because there was about an inch of snow.” And as the verdict was for the plaintiff the jury necessarily .found, under the instructions given them, that the plaintiff had no knowledge of the ice in the depression. In his charge to the jury, the learned judge said: “If he (plaintiff ) knew of this condition, knew that there was ice here, then ho had no right to go upon it, because a man knowingly going into a place of danger cannot hold anybody else liable for his injury. ” It is therefore difficult to see how the court could justify his action in declaring the plaintiff guilty of negligence if ho had no prior knowledge of the ice on the sidewalk, which was the conceded cause of his injuries. The law will not convict a pedestrian of negligence who, while using a sidewalk of a city street, is injured by a defect in the walk of which he was ignorant. We are of opinion that the learned judge should have directed judgment to be entered on. the verdict in favor of the plaintiff, and that he erred in entering judgment for the defendant. The judgment is reversed with direction to the court below to enter judgment for plaintiff on the verdict.

OPINION LARSEN, Justice. On November 1, 1977, following a jury trial, appellant was found guilty of murder of the second degree (felony murder), robbery and criminal conspiracy. After post-verdict motions were denied, appellant was sentenced to life imprisonment for the murder conviction. Sentence was suspended on the robbery and criminal conspiracy convictions. This appeal follows wherein appellant raises three contentions, all of which are without merit. Appellant’s first contention is that there was insufficient evidence to support his criminal conspiracy conviction. To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978). Viewed under this standard, the evidence presented at trial established the following facts: On the evening of February 13, 1977, Kevin Stanley, Eugene (Bud) Nixon, and appellant left the home of Nixon’s sister located in the Northside. The three men had agreed to “rob something” and then “split the proceeds”. After cruising the Northside and finding no target of opportunity, the three men drove to Duquesne, Pennsylvania. The Avenue News Store in Duquesne, Pennsylvania, was suggested by Stanley as a target and the threesome agreed to rob that store. Stanley and appellant waited in the parked car while Nixon took a gun from the glove compartment and headed toward the store. Nixon found the Avenue News Store was closed. On his way back to the car, Nixon accosted the victim, Richard Calkusic, in an alley behind the store and decided to rob him. The victim struggled and was shot and killed by Nixon. Nixon returned to the car, explained what had happened and the threesome drove back to the Northside. The Commonwealth has the burden of proving, by direct or circumstantial evidence, the existence of shared criminal intent, for, the essence of a conspiracy is an agreement to commit an unlawful act. Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972). “[W]hile more than mere association must be shown, ‘[a] conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of coconspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed . . . .' "Commonwealth v. Roux, 465 Pa. 482, 488, 350 A.2d 867, 870 (1976). The evidence established beyond a reasonable doubt that an agreement to accomplish a criminal objective, namely, to commit a robbery, had been reached by the threesome. Appellant’s presence in the car, his agreement to rob something, his agreement to split the proceeds and his continued association with Stanley and Nixon throughout the incident up to and including the ride back to the North-side was sufficient evidence to justify the jury’s verdict that appellant was a partner in the conspiracy to commit a robbery. Appellant’s second contention is that there was insufficient evidence to support his felony murder and robbery convictions. These convictions were based upon appellant’s criminal responsibility, as a member of the conspiracy, for acts done in furtherance of the conspiracy. Appellant argues that assuming the conspiracy did exist, the conspiracy terminated when co-conspirator Nixon found that the Avenue News Store was closed, and, therefore, the subsequent criminal acts (murder and robbery of the victim) were “independent, impulsive, random” acts beyond the scope of the conspiracy. This contention is without merit. Section 903(g)(1) of the Pennsylvania Crimes Code provides: Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired. The criminal object of the aforementioned conspiracy was to commit a robbery. When Nixon shifted the target for accomplishing that objective from the Avenue News Store to the victim, the essence of the conspiracy — the agreement to commit a robbery — remained unaffected. Nixon’s rob bery of the victim was within the scope of the conspiracy. Therefore, as a co-conspirator, appellant became criminally responsible for the commission of the robbery, and, for all natural and probable consequences occurring during the commission of that felony, namely, the murder of the victim. Commonwealth v. Williams, 443 Pa. 85, 277 A.2d 781 (1971). Hence, the appellant’s contention that there is no link between him and the robbery-murder is without merit. Appellant’s final contention is that the trial court committed prejudicial error by overruling defense counsel’s objections to testimony given by the Commonwealth’s principal witness, Kevin Stanley, alleging that appellant uses “dope.” The reference, which was unsolicited, occurred during direct examination in the following manner: BY THE COMMONWEALTH: Q Was there an agreement to that effect? Was there an agreement between the three of you to split the proceeds? A Yes. See, I don’t use dope. Right. Q All right. A But Bud and Tate do, and what they’re going to do— MR. LALAMA: Objection. THE COURT: Overruled. Go ahead. A What they was — they was going to do with that, that was their business. I don’t know what they were going to do with their money. Immediately preceding this colloquy, the trial judge issued the following cautionary instructions in response to an objection to a similar reference to “dope”: We’re not concerned with, members of the jury, any other plan or problems but only with the matter here under inquiry; namely, that alleged murder of this individual, and the other violations of which reference — or to which reference has already been made. We’re not concerned with any dope buying problems. Go ahead. We recognize that “the prosecution may not introduce evidence of [appellant’s] prior criminal conduct as substantive evidence of his guilt of the present charge.” Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972). However, as this Court stated in Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977): [W]e have never ascribed to the view that all improper references to prior criminal activities necessarily require the award of a new trial as the only effective remedy. Our decisions have indicated that there are situations where the taint resulting from an improper reference to an unrelated criminal act, may be expunged without resort to the extreme remedy of aborting an otherwise fair trial. We find that any taint resulting from this single unsolicited reference to “dope” was so attenuated that the cautionary instructions which preceded the statement were sufficient to expunge any prejudicial effect which this statement may have had on the collective mind of the jury. Judgments of sentence affirmed. ROBERTS, J., concurs in the result. MANDERINO, J., filed a dissenting opinion. . 18 Pa.C.S.A. § 903(a) provides: (a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he: (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. . Additionally, appellant argues that the evidence was insufficient on the grounds that much of the evidence was based on the testimony of a co-conspirator (Kevin Stanley) who was testifying pursuant to a plea bargain. This argument is without merit; the issue is one of credibility for the jury. See, Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973).

OPINION McDERMOTT, Justice. In this appeal the Commonwealth seeks reversal of the order of the Superior Court affirming the order of the Court of Common Pleas of Philadelphia County which quashed the criminal information filed against appellee, Robert McBride. 401 Pa.Super. 643, 577 A.2d 651. Following a preliminary hearing in Philadelphia Municipal Court, appellee was held for trial on the charge of criminal trespass. On December 22, 1988, appellee filed in the Court of Common Pleas of Philadelphia County a Motion to Quash the Return of Transcript (“Motion to Quash”), asserting that the evidence offered at the preliminary hearing was insufficient to establish a prima facie case as to a crucial element of the crime of criminal trespass: that element being the lack of privilege or license to enter the subject premises. On March 1, 1989, the Honorable Anthony J. DeFino, of the Court of Common Pleas of Philadelphia County, based on the transcript from the preliminary hearing, granted the motion to quash. Thereafter, the Commonwealth filed a petition for reconsideration and requested the matter be reopened and listed for argument. The court granted the petition and vacated its previous order. Following argument, the court reinstated its original order granting appellee's motion to quash and determined that the evidence presented by the Commonwealth at the preliminary hearing failed to establish a prima facie case. The Commonwealth appealed this decision to the Superior Court. That court affirmed by per curiam order. The Commonwealth filed a petition for allowance of appeal, which we granted. We are now called upon to resolve the issue of whether the Commonwealth introduced sufficient evidence to allow the preliminary hearing court to infer the existence of a material element of this crime. The testimony adduced at the preliminary hearing consisted of one Commonwealth witness, William Martin, who testified that on December 8, 1988, he was walking down the street on his way to the store. The record reflects that the time of day was late afternoon. He came upon appellee and one Myron Lloyd in a parked automobile. Sometime later, upon returning from the store and while standing on the corner talking with friends, Martin noticed Lloyd and appellee drive up and stop in front of the house of the victim, Lucille James. Martin then testified that appellee stepped from the car with a drawn handgun and walked to the house. Appellee kicked the front door approximately three times but the door did not open. Appellee then went around the house to the back door and kicked at this door. This attempt was successful: the door came off its hinges. Appellee, gun in hand, entered the building. The police were summoned and a short time later appellee was arrested. This testimony was the only evidence offered at the preliminary hearing. Defense counsel elected not to cross-examine the witness and immediately moved to dismiss the charges. The Commonwealth, in response, argued that while it did not offer direct evidence that appellee was without permission to enter the house, the circumstantial evidence was sufficient under the law for the court to infer from the facts that appellee was neither licensed nor privileged to enter the building. The basic principles of law with respect to the purpose of a preliminary hearing are well established. The preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual’s right against an unlawful arrest and detention. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). At this hearing the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Pa.R.Crim.P. 141(d). It is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt. Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). In order to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983). In the present case the Commonwealth relied upon the testimony of William Martin that appellee forcibly entered the premises with a drawn gun to permit the presiding judge to infer the existence of a crucial element, i.e., the lack of permission or privilege to enter. The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts that have been established. Commonwealth v. Whitman, 199 Pa.Super. 631, 186 A.2d 632 (1962). “An inference is no more than a logical tool enabling the trier of fact to proceed from one fact to another, if the trier believes that the weight of the evidence and the experiential accuracy of the inference warrant so doing.” Commonwealth v. Shaffer, 447 Pa. 91, 105-06, 288 A.2d 727, 735-36, cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). In Commonwealth v. McFarland, 452 Pa. 435, 308 A.2d 592 (1973), this Court set forth the test for reviewing evidentiary inferences: Evidentiary inferences, like criminal presumptions, are constitutionally infirm unless the inferred fact is “more likely than not to flow from the proved fact on which it is made to depend.” Turner v. United States, 396 U.S. 398 [90 S.Ct. 642, 24 L.Ed.2d 610] (1970); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972); Commonwealth v. Swiatkowski, 446 Pa. 126, 285 A.2d 490 (1971); Commonwealth v. Owens, 441 Pa. 318, 271 A.2d 230 (1970). McFarland, id. 452 Pa. at 439, 308 A.2d at 594 (emphasis supplied). See also, Commonwealth v. Wojdak, supra. Applying these legal principles to the specific facts of this case, we are convinced that the lower courts were in error in determining that the quantum of evidence available to the preliminary hearing judge was insufficient to require appellee to stand trial on the charge of criminal trespass. Although the Commonwealth did not present direct evidence that appellee was without permission to enter the home, it did offer compelling circumstantial evidence to establish this fact. The evidence available to the court that enabled it to logically infer that appellee lacked license or privilege to enter the building was straightforward and uncomplicated: appellee approached the house with a drawn handgun and succeeded in gaining entry to the house only after repeatedly kicking the front and then the back door, to the point where the door flew off its hinges. Given these events, it was both logical and reasonable for the preliminary hearing judge to infer that appellee lacked permission to enter. A judge at a preliminary hearing is not required, nor is he authorized to determine the guilt or innocence of an accused; his sole function is to determine whether probable cause exists to require an accused to stand trial on the charges contained in the complaint. Commonwealth v. Prado, supra. In the instant case, the Commonwealth’s use of this evidentiary inference to establish a prima facie nonprivileged entry was entirely proper. Therefore, we hold that the trial court was in clear error in granting appellee’s motion to quash the charge of criminal trespass. Accordingly, the order of the Superior Court is reversed and the case is remanded to the Court of Common Pleas of Philadelphia County for further proceedings not inconsistent with this opinion. ZAPPALA, J., files a concurring opinion. . Criminal trespass is defined in our Crimes Code at 18 Pa.C.S. § 3503, which provides in relevant part that "[a] person commits an offense if, knowing that he is not licensed or privileged to do so, he ... breaks into any building or occupied structure.” 18 Pa.C.S. § 3503(a)(1)(ii). Section 3503(a)(3) defined "breaks into” as "[t]o gain entry by force, breaking, intimidation, unauthorized opening of locks..." . A defendant may challenge the sufficiency of the evidence presented by the Commonwealth at the preliminary hearing by filing a motion for a Writ of Habeas Corpus in Common Pleas Court. In Philadelphia County, this motion is generally referred to as a Motion to Quash the Return of Transcript. See Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978). . An order dismissing criminal charges prior to trial is appealable by the Commonwealth. See Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980). . At this point, Martin attempted to testify as to what was said between Lloyd and himself, however, a defense objection was sustained by the court. . Additionally, the Commonwealth sought to have Martin testify as to what appellee said to one of Martin’s friends when asked what he was doing. To this question appellee replied that it was "none of your f— ing business, mind your f — ing business, because you ain’t got nothing to do with this.” It is unclear from the transcript whether the court sustained a defense hearsay objection to what was asked of appellee by the neighbor or as to appellee's reply. . At this point one naturally questions why the Commonwealth did not have the owner of the home, Ms. James, take the stand at the preliminary hearing and testify to this element. All that can be gleaned from this record is that at the preliminary hearing defense counsel made a comment that he had a statement from Ms. James to the effect that she was not willing to testify. At the hearing before the trial court, however, the Commonwealth, when asked by the court why it could not get the owner to testify, represented to the court that her testimony might come at trial but not at this level of the proceedings. We make mention of this fact not as a critical comment upon the Commonwealth's case but rather merely to explain this apparent omission. We note, however, that Ms. James did file the initial complaint with the police in this matter. . We note that circumstantial evidence and the inferences to be drawn therefrom can support a conviction under the more stringent standard of proof beyond a reasonable doubt. See e.g., Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035 (1990) cert. denied, — U.S. -, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990); Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982). See also, Commonwealth v. Lovette, 498 Pa. 665, 670, 450 A.2d 975, 977 (1982) cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983) ("The fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence.”) In the present case the Commonwealth's burden was considerably less; to wit, to demonstrate that there existed probable cause to believe that appellee was without permission or privilege to enter the subject premises. . While the notes of testimony of both hearings establish that appellee, a Pennsylvania State Police Officer, was holding a handgun, the record reveals, specifically the complaint, that the weapon in question was a semi-automatic weapon. This suggests that appellee was not using his service-issued weapon but rather a personal gun during this incident. . It is significant to note that neither defense counsel nor the trial court were impressed by the fact that during this incident appellee was armed with a gun. For that matter, counsel suggests that this very factor renders meritless the Commonwealth’s reliance on this fact to establish a lack of privilege or license to enter. We totally reject this argument as untenable. The fact that appellee was a trained law enforcement officer of this Commonwealth and exhibited this type of misconduct should have indicated to the trial judge that appellee’s actions were illegal. If appellee had reasoned that he somehow had permission to enter the house in this manner by virtue of his status as a police officer, he was sorely mistaken.

Mr. Justice Trunkey delivered the opinion of the court, March 3, 1884. The defendant pleaded in abatement that he was baptized by the name of Sabato D’Allessandro, and by that name always since has been called or known. It was unnecessary to make the averment of his baptism, but having made it, the burden was on him to sustain it by proper evidence. He was permitted to give evidence that he had borne and used the name as if he had not alleged it was his baptismal name. The jury were instructed that it was incumbent upon the Commonwealth to satisfy them beyond a reasonable doubt that the real name of the defendant is that stated in the indictment; otherwise to render a verdict in his favor. The question was submitted whether in this country the defendant had assumed and assented to the name Sabato Alexander, and there was ample testimony in the affirmative. One witness directly asked him if that was his name, and he answered that it was. Complaint is made that the Court remarked in the charge, “It appears in evidence that the Italian for the name Alexander is Allessandro or D’Allessandro,” and that there is no such testimony. But although objection was made when the Court asked the interpreter. “What is the Italian for Alexander?” subsequently the interpreter was called and sworn, and without objection to the form of the oath or to, his testimony,'he said that the Italian word D’Allessandro is the same as the English word Alexander. The second and third assignments of error are not sustained — the first was not pressed.. A motion was made in arrest of judgment upon the verdict in the issue on the plea in abatement, upon the alleged ground that the jury were permitted to separate during the adjournment of the court. This does not appear of record — the affidavit of Mr. Walter is not a part of the record — and the refusal of the motion therefore is not subject to review. But we remark in passing that in the trial of that issue neither the life nor liberty of the defendant was in peril; the trial was to determine whether his true name was set forth in the indictment or in his plea, and we think it was entirely discretionary witli the court below whether under the circumstances of the case there was good cause for keeping the jury secluded. After the names of forty-nine jurors had been drawn from the box which had contained sixty, and eight jurors had been separately sworn, it appeared that eleven of the paper pellets had been clandestinely removed; whereupon the Court directed the clerk to prepare eleven pellets in place of those which had been removed, and again put all the pellets in the box; and further ordered that the drawing of the jury be commenced de novo. The defendant complains that the tendency of that order was to put him twice in jeopardy, and that the Court had no power to make it. Ho was not in jeopardy at the time of making the order. The trial begins when the jury is charged with the defendant, and that is at the moment a full jury is impanneled and sworn; he is not in jeopardy before. Up to that point the Court may postpone the trial as lawfully at one stage of the proceedings as another. A man is not in peril from the verdict of a jury till the full number are qualified to hearken unto the evidence and make deliverance. Eleven jurors, or eight, can give no verdict. McFadden v. Com., 23 Pa. St., 12. The practice as to the time of administering the oath to the jurors is not uniform; in some districts each juror is separately sworn as called and unchallenged, and in others none are sworn until all are selected. In either case the tribunal is unorganized while there are less than twelve, and until it is organized, for good cause the Court may direct the drawing of the jurors to begin anew. With some- doubt as to the sufficiency of proof that' the deceased had assaulted the defendant, the Court admitted evidence of the reputation of the deceased for brutality, vindictiveness and violence. An offer was made to follow this with evidence that the deceased had committed divers crimes, involving a ferocious and cruel disposition on his part, and that before he was killed the defendant had knowledge of said offences. No precedent has been cited for the proof of such acts by the deceased in bis lifetime, nor does there seem to be reason for their investigation where they are not in issue. Conceding that the defendant had proved that he was attacked by -the deceased, then it was competent to prove his bloodthirsty character, his bodily strength, how he was armed, the manner of the assault and all other circumstances tending to show that the attack was felonious, or that it was believed to be felonious by the defendant. But it is settled that specific criminal acts at other times, affecting other people than the slayer, which may have given the deceased his bad character, are incompetent. Were evidence of such acts competent, so would be repelling evidence, and the side issues would become as numerous as the offences charged against the deceased. The offer to prove “ a series of five specific acts of violence known to the defendant,” meant an investigation of each act as plainly as did the separate offers to prove each. The Commonwealth gave evidence of the defendant’s declarations made in the office of Justice Hower. For the purpose of explaining these the defendant proposed to prove his declarations, made more than an hour afterwards, and a mile and a half distant from Hower’s office. Instead of showing that his offer was part of a continuous conversation began at the office of Justice Hower, the evidence shows the contrary. Its rejection was clearly right. The nineteenth assignment of error is to the following portion of the charge: “ Where the defendant sets up the plea of self-defence to an indictment of murder, he must satisfy you of the truth of the plea by the preponderance of testimony. If he failed to do so in this case, then he is guilty of murder in the first or of the second degree, or of voluntary manslaughter, as you find the facts may warrant.” This, if exceptionable by itself, with the context is free of error. In the instructions every point put by the defendant’s counsel was affirmed, and the facts submitted with fairness to him. The jury were told, “ If the facts, as proven will support any reasonable theory consistent with the defendant’s innocence, then the defendant must be acquitted.” Also, “ If the Commonwealth has satisfied you that the defendant inflicted the wounds on the body of the deceased, and that he died from said wounds, then your next inquiry will be whether the Commonweath has satisfied you beyond a reasonable doubt that the defendant is guilty of murder, and if so, of what degree, or of voluntary manslaughter.” Then the jury understood from the remark objected to, that if the defendant killed the deceased, and the killing was not in self-defence, he was guilty either of murder 'or voluntary man slaughter. The evidence admits of no other conclusion; or, really, there was no evidence that the killing was involuntary. Tinder the last assignment it was argued that there was not evidence of the existence of the ingredients necessary to constitute murder in the first degree. The evidence is too strong for doubt, that the deceased at tlie moment of the assault was in liis own bed, and all the other occupants of the room were in theirs, except the defendant; that none heard the defendant come into the room, and it was dark; that with his own hatchet he inflicted the numerous wounds upon the head and upper part of the body of the deceased ; that the defendant ivas not heard to make outcry, and received no injury unless a slight cut on the hand, which healed within a few days; and that the deceased cried, “ Stoppa, Jimmie ! Stoppa, Jimmie ! What is the matter with you ? ” and he was unarmed. The legitimate inference, we think, is not weakened, but strengthened, by other facts in evidence. When a man quietly approaches another’s bed in tlie night, and makes a furious assault with a deadly weapon, it is presumed that he intends the natural consequences of his act. If the jury believed the testimony they rightly found that the killing was wilful, deliberate and premeditated. The assignment that tlie Court erred in refusing to arrest judgment was not pressed, for the obvious reason that no ground for the arrest appears of record. But it was urged that tlie Court erred in denying the motion for a new trial because tlie jury- were allowed to separate and part of them, attending church, heard a sermon on the text, “ Thou shalt not kill.” At common law the refusal to grant a motion for new trial being a matter of discretion, is no ground, for a writ of error. The Act of May 19,1874, provides that on tlie trial of all cases exclusively triable in the Courts of Oyer and Terminer, 41 exceptions to any decision of the Court may be made by tlie defendant, and a bill thereof shall be sealed in the same manner as is provided and practiced in civil cases; and the accused after conviction and sentence, may remove the indictment, record and all proceedings to the Supreme Court.” It is contended that as any decision of the Court may be excepted to, and all proceedings may be removed, the refusal to grant a new trial may be reviewed. Previously it had been enacted that in all cases of imirder in the first degree removed to the Supreme Court, the judges shall review both the law and the evidence, and determine whether the ingredients necessary to constitute murder in the first degree were proved to exist; the Act of 1874 enables this to be done by providing for the removal of all proceedings. But it was not the intendment that decisions which have always rested in the sole discretion of the Court where the cause was tried, should be made subject to exception and review. If this were so the accused could except to the refusal of his motion to postpone the trial, or to the granting of a motion by the Commonwealth for continuance, or to the refusal of his apjclication for attachment for an absent witness, and the like, as well as to the refusal of his motion for new trial. The decisions subject to exception within the purview of the statute are similar to such as were so subject on the trial of a civil cause, as the admission or rejection of testimony and instructions to the jury. This is plainly expressed in the statute, and like plainness is requisite to overcome the rule at common law that decisions of matters within the discretion of the Court are not subject to writ of error. In this case we think there is little reason for regret that the refusal of a new trial is final. On its trial every doubtful question was solved in favor of the defendant. His claim that he struck in self-defence was submitted with fair instructions, although the evidence thereof was slight, if any at all. The learned judge recognized that, u It is undoubtedly the law of this State that on trials for homicide, jurors ought not to be permitted to separate while thé prisoner is in their charge ; ” and he believed this rule had been complied with, at least in its spirit. Upon careful consideration he concluded that the sermon (not a fragment of it) neither had nor tended to have the effect of biasing the minds of the jurors or of disqualifying them for the proper exercise of their functions; and in this view he was likely correct. There is a growing laxity in the observance of the rule which, if unchecked by the Courts of Oyer and Terminer, may induce legislation either abrogating the rule itself, or providing a remedy when it shall not have been enforced. It seems to us that compliance with the rule ought to be so strict that no plausible charge could be made that the jury were not kept free from every improper communication or intrusion. Increasing the number of subjects for review in homicide cases is detrimental to the public, and departure from old and familiar rules strongly tends to promote such increase. There was much appearance of departure in this case from an undoubted rule, and it is not strange- that the' learned and able counsel for the defendant have sougljf, for that cause, to obtain another trial. The judgment of the Court of Oyer and Terminer of Northampton County is affirmed, audit is ordered that the record be remitted to said court that the sentence may be executed.

WIEAND, Judge: The issue in this appeal is whether a borrower has stated a legally cognizable cause of action against a lending institution which, although it has not violated the terms of its loan agreement, has allegedly failed to deal with its borrower in good faith. The trial court held that the averments of the complaint were insufficient to state a cause of action and sustained preliminary objections in the nature of a demurrer. We agree and affirm. A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes For Youths, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor of overruling the demurrer. Mull v. Kerstetter, 373 Pa.Super. 228, 229-230, 540 A.2d 951, 951 (1988). The complaint in this case discloses that in 1983 Creeger Brick and Building Supply Inc. (Creeger, Inc.) purchased the Mt. Savage Refractories plant in Winburne, Centre County, intending to rehabilitate the facility and reopen a brick manufacturing plant. The principal financing was obtained in the form of a Small Business Administration loan from Mid-State Bank and Trust Company (Mid-State Bank) in the amount of two hundred and fifty thousand ($250,000.00) dollars. The Small Business Administration guaranteed ninety (90%) percent of this loan, which was also secured by a mortgage on the plant and on three residential properties owned by Donald Creeger, the president and sole shareholder of Creeger, Inc., and his wife, Marjorie Creeger. The Creegers contributed two hundred and forty thousand ($240,000.00) dollars of their own money to the venture and borrowed additional funds from the Centre County Commissioners/Department of Community Affairs, SEDA — Council of Governments, Moshannon Valley Development Fund, and the Phillipsburg Association of Commerce. All such loans were subordinated to the principal loan made by Mid-State Bank. The plant did not become operational until October 1, 1984 and, being seasonal in nature, closed for the winter months on November 22, 1984. It did not begin producing bricks again until February 15, 1985. Because of the delay in attaining full production, Creeger, Inc. suffered a cash shortage. In March, 1985, the business applied for a line of credit from Mid-State Bank in order to obtain needed working capital. The Bank refused to advance further funds. Donald and Marjorie Creeger then requested that one of their residences be released from the lien of the mortgage so that it could be sold. The Bank initially refused, but ultimately agreed to do so upon conditions which the Creegers could not meet. When Creeger, Inc. found a new lender who was willing to purchase ninety (90%) percent of Mid-State Bank’s loan and make additional advances, Mid-State Bank refused to assign such an interest. On July 8, 1986, the Small Business Administration notified Creeger, Inc. that Mid-State Bank had demanded, and it had made, payment under its loan guarantee. Thereafter, Creeger, Inc. suffered financial collapse. Creeger, Inc., as well as Donald and Marjorie Creeger, instituted suit against the lenders who had provided the funds with which they had rehabilitated the plant and started production. In Counts I and II of the Complaint, the plaintiffs alleged that Mid-State. Bank was liable to them because, although it had not breached any specific provision of the loan agreement, it had failed to deal with the borrowers in good faith. More specifically, it was alleged, Mid-State Bank had failed to deal with plaintiffs in good faith in the following respects: (a) Failing to provide [Creeger, Inc.] with a line of credit; (b) Establishing a commercially unreasonable method in which [Creeger, Inc.] was required to draw upon borrowed funds in the course of acquiring equipment and repairing [Creeger, Inc.’s] plant; (c) Failing to promptly release it’s mortgage against Plaintiff Creeger and Plaintiff Marjorie Creeger, [sic] Pittsburgh property to allow additional working capital to be provided to [Creeger, Inc.]; (d) Failing to cooperate with Plaintiff Creeger and [Creeger, Inc.] in their effort to obtain supplemental financing; (e) Over-collateralizing it’s loan to [Creeger, Inc.]; (f) Failing to advise [Creeger, Inc.] and Plaintiff Creeger of it’s demand for payment from the SBA on the SBA’s guarantee of [Creeger, Inc.] and Plaintiff Creeger’s loan with Defendant Bank; (g) Taking the position that [Creeger, Inc.] was not able to produce good and marketable brick and advising the subordinated lenders of the same when the same was in fact not true. Section 205 of the Restatement (Second) of Contracts suggests that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” A similar requirement has been imposed upon contracts within the Uniform Commercial Code by 13 Pa.C.S. § 1203. The duty of “good faith” has been defined as “[h]onesty in fact in the conduct or transaction concerned.” See: 13 Pa.C.S. § 1201; Restatement (Second) of Contracts § 705, Comment a. Where a duty of good faith arises, it arises under the law of contracts, not under the law of torts. AM/PM Franchise Association v. Atlantic Richfield Co., 373 Pa.Super. 572, 579, 542 A.2d 90, 94 (1988). See also: Clay v. Advanced Computers Applications, Inc., 370 Pa.Super. 497, 505 n. 4, 536 A.2d 1375, 1379 n. 4 (1988), allocatur granted, 518 Pa. 647, 544 A.2d 959 (1988). In this Commonwealth the duty of good faith has been recognized in limited situations. Most notably, a duty of good faith has been imposed upon franchisors in their dealings with franchisees. See: Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978); Loos & Dilworth v. Quaker State Oil Refining Corp., 347 Pa.Super. 477, 500 A.2d 1155 (1985). It has also been imposed upon the relationship between insurer and insured. See: Gray v. Nationwide Mutual Ins. Co., 422 Pa. 500, 223 A.2d 8 (1966); Gedeon v. State Farm Ins. Co., 410 Pa. 55, 188 A.2d 320 (1963). In Germantown Manufacturing Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985), the Superior Court implied that there may also be a duty of good faith in connection with an employer’s attempt to recoup theft losses from the wife of an employee who was responsible for the thefts. See also: Baker v. Lafayette College, 350 Pa.Super. 68, 504 A.2d 247 (1986) (employer had limited obligation to act in good faith in reviewing professional teacher’s performance). Conversely, the Supreme Court of Pennsylvania has refused to impose a duty of good faith which would modify or defeat the legal rights of a creditor. Heights v. Citizens National Bank, 463 Pa. 48, 342 A.2d 738 (1975). Other courts have also refused to apply a duty of good faith to alter or defeat the rights of a creditor which have been granted by law or contract. Thus, in Layne v. Fort Carson National Bank, 655 P.2d 856 (Colo.App.1982), the Colorado Court of Appeals held that it was not a breach of the requirement of good faith for a secured lender to refuse a borrower’s request for consent to sell collateral. And in Schaller v. Marine National Bank of Neenah, 131 Wis.2d 389, 388 N.W.2d 645 (1986), the Court of Appeals of Wisconsin held that a bank did not breach a duty of good faith by refusing to honor a customer’s overdrafts or notify him before dishonoring them. See also: Wagner v. Benson, 101 Cal.App.3d 27, 161 Cal.Rptr. 516 (1980) (not breach of good faith for secured lender to withhold information about management of borrower’s investment). But see: K.M.C. Co. v. Irving Trust Co., 757 F.2d 752 (6th Cir.1985) (lender had good faith duty to give borrower notice before refusing to advance further funds under financing agreement where established maximum credit limit had not been reached); Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3rd Cir.1964) (lender violated duty of good faith by repossessing automobiles despite repeated acquieseences in late payments and assurances of additional financing); First National Bank in Libby v. Twombly, 689 P.2d 1226 (Mont. 1984) (lender breached duty of good faith by accelerating due date of borrower’s loan and exercising offset against borrower’s checking account). See generally: Anderson, Uniform Commercial Code § 1-203. It seems reasonably clear from the decided cases that a lending institution does not violate a separate duty of good faith by adhering to its agreement with the borrower or by enforcing its legal and contractual rights as a creditor. The duty of good faith imposed upon contracting parties does not compel a lender to surrender rights which it has been given by statute or by the terms of its contract. Similarly, it cannot be said that a lender has violated a duty of good faith merely because it has negotiated terms of a loan which are favorable to itself. As such, a lender generally is not liable for harm caused to a borrower by refusing to advance additional funds, release collateral, or assist in obtaining additional loans from third persons. A lending institution also is not required to delay attempts to recover from a guarantor after the principal debtor has defaulted. Finally, if the bank in this case falsely represented appellants’ financial circumstances to other creditors for the purpose of damaging appellants’ ability to continue doing business, appellants may have causes of action in tort for slander, misrepresentation, or interference with existing or prospective contractual relations. There is no need in such cases to create a separate tort for breach of a duty of good faith. See: AM/PM Franchise Association v. Atlantic Richfield Co., supra. See also: Forms, Inc. v. American Standard, Inc., 546 F.Supp. 314 (E.D.Pa.1982), aff'd, 725 F.2d 667 (1983) (no need for additional remedy where tort of misrepresentation provides adequate remedy); D’Ambrosio v. Pennsylvania National Mutual Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981) (court refused to recognize separate cause of action for breach of good faith where adequate remedy was provided under Unfair Insurance Practices Act); Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985) (no need for separate tort remedy where alleged breach of contract committed for purpose of driving contracting party out of business). We conclude, therefore, that appellants failed to state a legally enforceable cause of action against the bank for failure to deal with its borrower in good faith. The trial court did not err when it sustained preliminary objections in the nature of a demurrer and dismissed the complaint. Affirmed. TAMILI A, J., files a concurring statement.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT LARSEN, Justice. Appellant Dorothea Dercoli appeals from an order of the Superior Court affirming an order of the Lawrence County Common Pleas Court which sustained a demurrer to her complaint and dismissed her lawsuit against appellees Pennsylvania National Mutual Insurance Company (Penn National) and Grange Mutual Casualty Company (Grange) for breach of fair dealing and good faith. In her appeal the appellant frames two issues: (1) whether our decision in Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981), abolishing the defense of interspousal immunity is to be given retroactive application; and (2) whether the duty of fair dealing and good faith requires an automobile insurer to properly advise its insured of the insured’s entitlement to present a claim or claims under the applicable policy where the insurer advises its insured that legal representation is unnecessary and induces the insured to rely upon the insurer to pay appropriate benefits? The issues presented by the appellant arise out of the following factual background: On the morning of July 21, 1980, the appellant was riding as a passenger in an automobile being operated by her husband, David R. Dercoli. The automobile was travelling on U.S. Route 422 in Lawrence County when, apparently, Mr. Dercoli became drowsy and fell asleep. With Mr. Dercoli asleep at the wheel, the automobile crossed over the centerline of the highway and crashed into the rear wheels of an on-coming tractor-trailer. Mr. Dercoli was killed instantly. The appellant was severely injured. At the time of the tragic accident Mr. Dercoli was insured under two automobile insurance policies. One of the policies was with appellee Penn National and the other was with appellee Grange. Both insurers were notified of the accident and the injuries and losses resulting therefrom. In the claim process that followed, the appellant relied upon the advice of the appellees’ agents to receive the benefits due her under the applicable policies. Subsequently, after receiving the advice of the appellees’ agents, the appellant began to receive certain benefits paid by the appellees under the policies in force. Appellant continued to receive the benefit checks until approximately, April, 1984. On July 14, 1981, approximately one year after the accident and while appellant was receiving benefit checks and relying upon appellees’ agents for advice, this Court decided the case of Hack v. Hack, supra. In Hack we abolished the defense of interspousal immunity as a bar to an action for personal injuries caused by the negligence of the injured victim’s spouse. The appellant did not learn of the removal of this bar to suit until sometime after March of 1985. In January, 1986, appellant filed a complaint in civil action against the appellees averring, inter alia, a breach of appellees’ duty of fair dealing and good faith. Specifically, the appellant sets forth, as relevant allegations in her complaint, the following: 16. [U]pon notice of said motor vehicle accident by or on behalf of Plaintiff, Defendants PENN NATIONAL and GRANGE, through their authorized Agents, cooperatively and equally undertook the handling, processing and payment of Plaintiff’s benefits under said Contracts. 17. At all times herein material, Plaintiff was not represented by legal Counsel, and Defendants’ Agents represented to and assured Plaintiff that her claim would be processed without the need for Plaintiff to be independently represented. 18. Plaintiff reasonably relied entirely upon the advice of Defendants’ agents as to the nature and extent of benefits which were due to her under said insurance contracts. Further, Defendant’s agents were fully cognizant of Plaintiff’s said reasonable reliance and lack of independent representation. 19. At all times material herein, and by reason of said insurance Contracts, Defendants PENN NATIONAL and GRANGE were each charged with a duty of good faith and fair dealing in respect of determination of entitle ment, processing, and payment of Plaintiffs benefits under said Contracts. This duty included, among other things, the obligation on the part of said Defendants to pay or advise Plaintiff as to any and all benefits to which Plaintiff reasonably appeared to be entitled under said insurance contracts. 20. By reason of the nature of said insurance Contracts, Defendants PENN NATIONAL and GRANGE occupied the position of a fiduciary with respect to determination of entitlement and payment of Plaintiffs benefits thereunder. 25. Upon the decision of Hack vs Hack, Supra, Defendants were thereby placed in a position of conflicting interests, in that presentation or consideration of any claim by or on behalf of Plaintiff and based upon the negligence liability of her said husband would have created a substantial additional risk of loss or liability to each Defendant. 26. Under the circumstances referred to above, and by reason of their said duty of good faith and fair dealing and their fiduciary relationship which they occupied with respect to Plaintiff, Defendants were each obligated to advise Plaintiff of her apparent right to benefits for liability coverage under said insurance Contract, in order that Plaintiff would have realized the maximum amount of benefits to which she reasonably appeared to be entitled. 27. Defendants PENN NATIONAL and GRANGE, and each of them, have breached the said insurance Contracts and the corresponding fiduciary duties and duties of good faith and fair dealing in that said Defendant had failed to advise Plaintiff as to her apparent entitlement to claim for benefits under the liability coverage of said insurance Contracts, of Defendants’ conflict of interests in advising or continuing to advise Plaintiff regarding her entitlement to benefits or of her possible need for independent legal counsel, and Defendants fur ther failed to pay or offer to pay to Plaintiff any benefits under the liability coverage of said Contracts. In response to appellant’s complaint the appellees filed preliminary objections in the nature of a demurrer. After argument on appellees’ demurrer, the lower court concluded that the appellee-insurers had no duty to inform appellant of the Hack decision and the effect, if any, that decision had on appellee’s ability to obtain benefits under the liability provisions of the applicable policies. In reaching this conclusion the lower court cited the case of Taglianetti v. Workmen’s Compensation Appeal Board, 503 Pa. 270, 469 A.2d 548 (1983) involving a workmen’s compensation claimant. The lower court analogized the situation in the instant case to that involved in Taglianetti. It was decided that the reasoning applied in Taglianetti which held that the insured-employer had no duty to advise a compensation claimant of the maximum possible benefits was applicable to this case. Accordingly, the demurrer was sustained and appellant’s complaint was dismissed. On appeal, the Superior Court affirmed. 369 Pa.Super. 289, 535 A.2d 163. Since this is an appeal from the sustaining of a demurrer, we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983), Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). In her complaint the appellant avers that upon the advice and assurances of appellees’ agents, she was induced to refrain from hiring an attorney to represent her in her dealings with the appellees. She alleges that she placed her entire trust and confidence in appellees’ agents and relied upon their advice as to the extent of the benefits available to her under the applicable insurance policies. The appellant argues that as the spouse of David R. Dercoli and as a resident of the same household with him, she is a “named insured” under the terms of the relevant insurance policies. She argues that by virtue of the relationship that existed between her and the appellee-insurers, the appellees were charged with a duty of fair dealing and good faith with respect to the determination of the benefits that appellant may reasonably be entitled to claim. Thus, appellant argues that when Hack v. Hack, supra, was decided, the appellees had a duty to inform her of the decision and of her apparent right to benefits under the liability provisions of the applicable policies as a result of that decision. In spite of the fact that appellant was assured by appellees’ agents that they would see to it that appellant received all benefits to which she was entitled, appellees’ agents failed to advise her of her right to seek liability damages. The appellant argues that this failure was a breach of appellees’ duty of fair dealing and good faith. In addition, appellant argues that when Hack abolished the bar of interspousal immunity, a conflict of interest arose with the appellees’ agents who were advising the appellant. On the one hand these agents were aware of appellant’s injuries and expenses and of her reliance on them for advice and guidance in her claims. On the other hand they knew that if they would advise appellant of the Hack decision and of her right to proceed against her husband’s estate for damages, such proceedings would substantially increase the financial exposure of the appellee-insurers. Nonetheless, the appellees’ agents continued to deal with the appellant on the same basis and continued to permit her to rely on them for all that she was entitled to under the policies. Considering all of the well-pleaded material facts in appellant’s complaint and the reasonably deducible inferences therefrom, we believe that the appellant’s arguments have merit. We have long recognized that: “the utmost fair dealing should characterize the transactions between an insurance company and the insured.” Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930). The appellees’ agents in this case voluntarily. undertook to provide assistance and advice to appellant and in the process advised her against retaining independent legal counsel. The appellees were bound to deal with the appellant on a fair and frank basis, and at all times, to act in good faith. The duty of an insurance company to deal with the insured fairly and in good faith includes the duty of full and complete disclosure as to all of the benefits and every coverage that is provided by the applicable policy or policies along with all requirements, including any time limitations for making a claim. See: Gatlin v. Tennessee Farmers Mutual Insurance Co., 741 S.W.2d 324 (Tenn. 1987). See also: Sarchett v. Blue Shield of California, 43 Cal.3d 1, 233 Cal.Rptr. 76, 729 P.2d 267 (1987). This is especially true where the insurer undertakes to advise and counsel the insured in the insured’s claim for benefits. Under such circumstances, the insurer has a duty to inform the insured of all benefits and coverage that may be available and of any potential adverse interest pertaining to the insurer’s liability under the applicable policy. When Hack was decided and the defense of interspousal immunity was abolished, an adverse interest pertaining to appellees’ financial exposure arose. Consistent with the obligation of fair dealing and good faith the appellees had a duty to inform the appellant of their conflict of interest, and of her apparent right to damages against her deceased husband’s estate which ultimately would be payable under the liability provisions of the policies that insured the decedent. The appellees’ failure to so inform the appellant was a breach of the duty of fair dealing and good faith. Assuring the appellant at the outset that she need not hire an independent attorney and that she would receive all that she was entitled to receive, and then failing to inform her of her apparent right to damages following the Hack decision is hardly dealing with appellant fairly and in good faith. The appellees, relying on the decision in Taglianetti v. Workmen's Compensation Appeal Board, 503 Pa. 270, 469 A.2d 548 (1983), argue that they had no affirmative duty to advise the appellant of the Hack decision and her ostensible right to file a claim for damages on which appellees would ultimately be liable. Taglianetti involved a claim for survivor’s benefits under the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended. The claimant’s husband had died of a fatal heart attack while in the course of his employment. The claimant requested information of her husband’s employer as to any widow’s benefits due her. She was not advised as to all possible benefits that she may claim. When she eventually learned of an additional claim available to her, the time limitation for that claim had expired. This Court held that the employer had no affirmative duty to apprise the claimant of all available benefits. (Larsen J. filed a dissenting opinion which was joined by Roberts, J.). We believe that Taglianetti was wrongly decided in that the decision in that case tends to relieve insurers and similar entities of the obligation to deal fairly, honestly, openly and in good faith with lay-claimants and non-experts who may be entitled to benefits and who are the very people the insurers have obligated themselves to protect. The remaining issue raised in this case is whether Hack v. Hack, supra is to be applied retroactively to appellant’s claim for damages. That is to say, did the abolition of the defense of interspousal immunity as promulgated in Hack apply to appellant whose claim arose out of an accident that occurred approximately one year prior to the Hack decision? Neither the trial court nor the Superior Court addressed this question in that each court found no duty to inform on the part of the appellees. Since, however, we have concluded that the appellees breached their duty of fair dealing and good faith in failing to inform the appellant of her apparent right to seek damages after the Hack decision, we are constrained to consider this issue. If Hack does not apply to appellant’s claim, that decision would be of no benefit to her. It would follow then that the appellees’ failure to inform appellant of Hack would not constitute a breach of their obligations toward her. If, however, Hack applies to appellant’s claim, then the failure on the part of the appellees to inform appellant of that decision would amount to a breach of fair dealing and good faith in that she was denied a claim to which she was entitled. In August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981), we said: “retroactive application is a matter of judicial discretion which must be exercised on a case by case basis.” We cited with approval the test proposed by Justice Roger Traynor of the California Supreme Court for deciding whether an overruling decision, (such as Hack v. Hack, supra), will have retroactive effect. The test involves a balancing of the relative hardships that would be imposed upon the respective parties. A judge is mindful of the traditional antipathy toward retroactive law that springs from its recurring association with injustice and reckons with the possibility that a retroactive overruling could entail substantial hardship. He may nevertheless be impelled to make such an overruling if the hardships it would impose upon those who have relied upon the precedent appear not so great as the hardships that would inure to those who would remain saddled with a bad precedent under a prospective overruling only ... [T]he outworn precedent may be so badly worn that whatever reliance it engendered would hardly be worthy of protection. Traynor, R., La Rude Vita, La Dole Giustizia; Or Hard Cases Can Make Good Law, 29 U.Chi.L.Rev. 223, 231-32 (1962). Balancing the hardships in this case would require that Hack be applied retrospectively to the appellant’s claim. The Hack decision eliminated the defense of interspousal immunity which acted as a bar to suit when one was injured at the hands of a negligent spouse. At the time of the Hack decision appellant’s claim was well within the applicable statute of limitations. Thus, with the bar removed and the claim being viable and within the time limitations, it would be unfair to continue the bar as to the appellant. Further, there is no equity favoring the appellees’ position that would dictate the opposite conclusion. The order of the Superior Court is reversed and this case is remanded to the Court of Common Pleas of Lawrence County for proceedings consistent with this opinion. PAPADAKOS, J., files a concurring opinion in which McDermott, j., joins. FLAHERTY, J., files a dissenting opinion in which ZAPPALA, J., joins. NIX, C.J., dissents.

Mr. Justice Paxson delivered the opinion of the court, April 19th, 1886. The deed from Henry McKeen to Babétta Memmert contained the usual clause of special warranty, as also the words “doth grant, bargain, sell,” &c. By the sixth section of the Act of 28th May, 1715, it is provided that “ all deeds to be recorded in pursuance of this Act, whereby any estate of inheritance in fee simple shall hereafter be limited to the grantee or his heirs, the words grant, bargain, and sell, shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit, that the grantor was seised of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor-, excepting the rent and services to the lord of the fee, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed; and the grantee, his heirs, executors and administrators and assigns may, in any action, assign breaches as if such covenants were expressly inserted,” &c., &c. By virtue of this Act the words “grant, bargain and sell,” contained in the deed, are a covenant of seisin, a covenant for quiet enjoyment, and a covenant against incumbrances. If, as was alleged, there was an incumbrance against the property ah the time of the sale by Henry McKeen to Babetta Memmert, the covenant against incumbrances was broken as soon as made: Cathcart v. Bowman, 5 Pa. St. Rep., 317. Incumbrances are of two kinds, viz., 1. Such as affect the title; and 2. Those which affect only the physical condition of the property. A mortgage or other lien is a fair illustration of the former; a public road or a right of way, of the latter. Where incumbrances- of the former class, exist, the covenant referred to, under all the authorities, is broken the instant it is made, and it is of no importance that the grantee had notice of them when he took the title: Cathcart v. Bowman, supra; Funk v. Voneida, 11 S. & R., 109. Such incumbrances are usually of a temporary character and capable of removal; the very object of the covenant is to protect the vendee against them; hence knowledge, actual or constructive, of their existence, is no answer to an action for breach of such covenant. Where, however, there is a servitude imposed upon, the land which is visible to the eye, and which affects not title, but the physical condition of the property, a different rule prevails. Thus it was held in Patterson v. Arthurs, 9 Watts, 152, that where the owner had covenanted to convey certain lots free from all incumbrances, a public road, which occupied a portion of sucli lots, was not an incumbrance within the meaniug of the covenant. This is not because of any right acquired by the public, but by reason of the fact that the road, although admittedly an incumbrance, and possibly an injury to the property, was there when the purchaser bought, and .he is presumed to have had knowledge of it. In such and similar cases there is the further presumption that if the incumbrance is really an injury, such injury was in the contemplation of the parties, and that the price was regulated accordingly. It was said by Justice Kennedy, in the case cited, “ Although a public highway no doubt is, in many instances, an injury instead of a benefit to the holder or owner of the land upon which it is located, and therefore tends to lessen its value in the estimation of a purchaser, yet it is fair to presume that every purchaser, before he closes his contract for his purchase of land, has seen it, and made himself acquainted with its locality and the state and condition of it, and, consequently, if there be a public road or highway open or in use upon it, he must be taken to have seen it, and to have fixed in his own mind the price that he was willing to give for the land, with a reference to the road, either making the price less or more, as he conceived the road to be injurious or advantageous to the occupation and enjoyment of the land.” See also Wilson v. Cochran, 48 Pa. St. Rep., 107. In the case of Kutz v. McCum, 22 Wins., 628, the land conveyed had been for a time, long enough to create a presumptive right, flooded by a mill pond created”by a dam on adjoining property, and it was held that the right of flooding was not an incumbrance within the covenant; that purchasers of property which was obviously and notoriously subject at the time to some easement or servitude affecting its physical condition, take it subject to such right without any express exceptions in the conveyance, and that vendors are not liable on their covenant by reason of its existence. “ This principle,” said the court, “ has been applied in the case of a highway opened and in use on the land, at the time of the conveyance.....seems fully applicable to the present case. There is no material difference, so far as this question is concerned, between a public highway and a right of flowing the land by a mill pond in actual existence upon it. In the ease of a highway the doctrine does not rest upon the fact that the right is in favor of the public, but that the easement is open and. notorious in its character, and that, therefore, the purchaser must be presumed to have seen it, and to have fixed his price for the land with reference to the actual condition at the time.” In the case in hand the alleged incumbrance consists of stone steps belonging to the adjoining house, and so constructed as to occupy a portion of the sidewalk in front of plaintiffs’ house. Both houses had originally belonged to the defendant below. . With the steps in this condition he sold one of' the houses to John Reilly in 1865, by a deed containing this clause: “Together with the right to the said John Reilly,' his heirs and assigns, to keep and maintain the front steps to said brick dwelling house as they "are now erected.” This fixed the servitude on. the brick dwelling house as.against Mclveen, his heirs and assigns. McKeefi sold said house to the plaintiff, as before stated, December 1st, 1866. The steps were then in existence, plainly visible to the eye, and a servitude upon the property, even if the deed to Reilly had contained no such stipulation. The husband of the plaintiff, as the agent, bought the house, examined it before doing so, and therefore took it with his eyes open to the servitude. It was a physical condition of the property, notorious in its character, and affecting its value, and, under all the authorities, we must presume the price to have been fixed with reference to it. If a recovery can now be had in damages under the covenant against incumbrances, the plaintiff will be twice paid. Further, the street in front of the house is as much an incumbrance, for anything we can see, as the steps upon' the sidewalk, yet no one at this day will seriously contend that a public street, occupying a portion of a lot on which a house is erected, is an incumbrance within the meaning of the covenant of general warranty or the Act of 1715. We find no error in this record. Judgment affirmed.

The opinion of the court was delivered, March 23d 1874, by Asnbw, C. J. In this case, if we confine our attention to the weapon, its previous preparation, the threat proved by Mr. Crooks, the time for deliberation, and the circumstances of the killing-of Mrs. Hughes by the prisoner, we might conclude that his crime was murder in the first degree. In this aspect the learned judge of the Oyer and Terminer had sufficient evidence to justify his finding of the degree. But ample time for reflection may exist, and a prisoner may seem to act in his right mind, and from a conscious purpose; and yet causes may affect his intellect, preventing reflection, and hurrying onward his unhinged mind to rash and inconsiderate resolutions, incompatible with the deliberation and premeditation defining murder in the first degree. When the evidence convinces us of the inability of the prisoner to think, reflect and weigh the nature of his act, we must hesitate before we pronounce upon the degree of his offence. That reasonable doubt which intervenes to prevent a fair and honest mind from being satisfied that a deliberate and premeditated purpose to take life existed, should throw its weight into the scale to forbid the sentence of death. Intoxication is no excuse for crime; yet when it so clouds the intellect as to deprive it of the power to think and weigh the nature of-the act committed, it may prevent a conviction of murder in the first degree. The intent to take life, with a full and conscious knowledge of the purpose to do so, is the distinguishing criterion of murder in the first degree; and this consciousness of the purpose of the heart is defined by the words deliberately and premeditatedly. Much has been said upon the meaning of these words, some of which may mislead, if we do not consider well the cases in which it has been uttered. In The Commonwealth v. O’Hara, tried in 1797, Chief'Justice McKean said: “ What is the meaning of the words deliberately and premeditatedly ? The first implies some degree of reflection. The party must have time to frame the design. The time was very short — it cannot be said to be done coolly. The legislature must have put a different construction on the words deliberately and premeditatedly. If he had time to think, then he had time to think he would kill. If you are of opinion he did it deliberately, with intention to kill, it is murder in the first degree. If he had time to think, and did intend to kill, for a minute as well as an hour or a day, it is sufficient.” The correctness of this charge to the jury will not be doubted, if we examine the circumstances, and yet this is essential to understand it properly. O’Hara was a journeyman shoemaker, sitting on his bench at work with Haskins and others. Aitkins, the deceased, his friend, came up stairs, and said to him: “ I have been talking about you below this hour.” “ Yes,” said Haskins, “about the five sheep you stole.” Thereupon O’Hara immediately left his work upon the bench, took up a shoemaker’s knife by his side, went up to Aitkins, and stabbed him in the belly. The act was not thoughtless, for the prisoner had time to lay down his work, take up the knife, rise and walk up to his friend, and to strike him in a vital part with an instrument of death. Upon every principle of human action, we must conclude, under these circumstances, that O’Hara intended to take Aitkins’s life, otherwise the thoughts of men never can be determined from clear and distinct acts evidencing the purpose of the mind. There was irritation, it is true, heightened by the previously existing story about the sheep ; but it was without any just cause of provocation to take life, and, therefore, evidenced a heart malignant, and ready to execute vengeance even upon a friend, in a moment of wicked passion. In such a case, a moment was sufficient to form and deliberate upon the purpose to take life, and premeditate the means of executing it. But these words of the Chief Justice are sometimes wrested from their application and applied to cases where reason has been torn up by the roots, and judgment jostled from her throne. Another case often quoted and misapplied, is that of Richard Smith, tried before President Rush, in 1816. Smith had become intimate with the wife of Captain Carson, and had a difficulty with him in his own house. He returned with Mrs. Carson, and went with her up into the parlor. Carson came up unarmed, and ordered him to leave. Smith had armed himself, and held one hand under his surtout, and the other in his breast. Carson told Smith he had come to take peaceable possession of his own house, and the latter must go. Smith said to Mrs. Carson, “ Ann, shall I go?” She replied “No.” Smith moved into the corner of the room, Carson following him, and telling him he must go, at the same time letting his arms fall by his side, and saying he had no weapon. Upon this, Smith drew a pistol from under his surtout, and shot Carson through the head, threw down his pistol, and ran down stairs. In this state of the facts, Judge Rush, charging upon the subject of deliberation, said: “ The truth is, in the nature of the thing; no time is fixed by the law, or can be fixed for the deliberation required to constitute the crime of murder.” Speaking, then, of premeditation, he says : “It is equally true, both in fact and from experience, that no time is too short for a wicked man to frame in his mind the scheme of murder, and to contrive the means of accomplishing it.” We cannot doubt the correctness of these remarks in the case in which they were made, but cases often arise where this readiness of intent to take life, when imputed, may do great injustice. Hence it was said in Drum’s case, 8 P. F. Smith 16 : “ This expression (of Judge Rush) must be qualified, lest it mislead. It is true that such is the swiftness of human thought, no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find the actual intent, that is to say, the fully formed purpose to kill, with so much time for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind fully and consciously the intention to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, then there is time to deliberate and premeditate.” This was said in the case of a sudden affray, where the circum-. stances made it a serious question whether the act was premeditated, or was the result of sudden and rash resentment. Thus we must perceive, that at the bottom of all that has been said on the-subject'of murder in the first degree, is the frame of mind in which the deadly blow is given — that state of mind which enables the prisoner either to know and be fully conscious of his own purpose and act,' or not to know. Why is insanity a defence to homicide ? Because it is a condition of the mind which renders it incapable of reasoning and judging correctly of its own impulses, and of determining whether the impulse should be followed or resisted. Intelligence is not the only criterion, for it often exists in the madman in a high degree, making him shrewd, watchful and capable of determining his purpose, and selecting the means of its accomplishment. Want of intelligence, therefore, is not the only defect to moderate the degree of offence ; but with intelligence there may be an absence of power to determine properly the true nature and character of the act, its effect upon the subject, and the true responsibility of the actor; a power necessary to control the impulses of the mind, and prevent the execution of the thought which possesses it. In other words, it is the absence of that self-determining power, which in a sane mind renders it conscious of the real nature of its own purposes, and capable of resisting wrong impulses. When this self-governing power is wanting, whether it is caused by insanity, gross intoxication, or other controlling influence, it cannot be said truthfully that the mind is fully conscious of its own purposes, and deliberates or premeditates in the sense of the act describing murder in the first degree. We must, however, distinguish this defective frame of mind from that wickedness of heart which drives the murderer on to the commission of his crime, reckless of consequences. Evil passions do often seem to tear up reason by the root, and urge on to murder with heedless rage. But they are the outpourings of a wicked nature, not of an unsound or disabled mind. It becomes necessary, therefore, to inquire upon the evi dence in this case, whether the prisoner was really able to deliberate and premeditate the homicide. William S. Jones had been upon bad terms with his wife. She had become too intimate with another Jones, called Charley. William S. Jones failing to break off the association got to drinking hard, and, finally after another quarrel with his wife on the 10th of June 1871, attempted suicide by taking a large quantity of laudanum. Dr. Davis found him lying on a lounge partly insensible, eyes nearly closed, pupils contracted, and face discolored by congestion. Energetic remedies were used, and he was so far restored as to be out of danger, but the effects of the laudanum remained. From this time until the night of the 19th of June, when he took the life of Mrs. Hughes, his mother-in-law, he was in a constant state of nervous excitement, continued drinking, and had bottles of laudanum about his person. Many witnesses describe him as without sense, constantly talking nonsense, wild in appearance, and incoherent in speech. Some say he acted like a man drinking hard, was intoxicated, and once fell from a horse. Others described him as looking crazy, talking to himself, his hands going, his head thrown back, walking to and fro, throwing his head about, swinging his arms, and wild, nervous and excited. He would jump upon a chair and begin to preach, and run off upon Charley Jones and his wife; said he was going to build a tavern on the mountain, and a church beside it; claimed all the property about, and was evidently much out of the way. These appearances were particularly noticed on the 19th day of June, the day of the homicide. He was then on very bad terms with his wife, yet seeking her and remonstrating with her, and on the afternoon of that day he had beaten and abused her, chasing her down stairs and into the street, and there striking and kicking her until separated by others. He continued in this condition down into the night of the 19th, when he came to Mrs. Hughes’s house, between nine and ten o’clock. Stepping inside of the door, he asked Mrs. Hughes if the fuss was settled ; said he had come down to settle it. She rose and told him to go away ; told Lizzie to fetch a poker ; said she would strike him, if he did not go away. He stepped back. She picked up a stool, and told him if he did not go away she would level him with it. He said, “I’ll level you now,” pulled out a pistol, stepped forward and shot her. Mrs. Hughes twice exclaimed, “ I am shot,” and went back into the kitchen, while Jones was seized by the persons present, and the pistol wrested from his hand. Between him and Mrs. Hughes there had been a state of good feeling, before he took the laudanum, and she attended him upon the day when he was under its influence. He spoke of her as his best friend. His conduct towards his wife, her daughter, had led Mrs. Hughes to resent it, and some feeling had arisen on the part of Jones, but after his arrest, he said he took the pistol to kill his wife, and the old woman had got it. Looking then at the state of Jones’s mind from the 10th until the 19th of June, and down to the very moment he fired the pistol, and, also, at the suddenness of his quarrel with Mrs. Hughes, her call for the poker, and lifting the stool, it seems to us a matter of grave doubt whether his frame of mind was such that he was capable either of deliberation or premeditation. It appears to have been rather the sudden impulse of a disordered brain, weakened by potations of laudanum and spirits, and of a distorted mind, led away from reason and judgment by dwelling upon the conduct of his wife, influenced by his continued state of excitement. It presents a ease of the preparation of a weapon, and an undefined purpose of violence to some one, where the time for reflection was ample; but where the frame of mind was wanting, which would enable the prisoner to be fully conscious of his purpose, or to resolve to take the life of the deceased, with deliberation and premeditation. Yet it was clearly murder, done without sufficient provocation and without necessity, and in a frame of mind evincing recklessness and that common-law malice, which distinguishes murder from manslaughter. There' was error, therefore, in ascertaining the degree, and sentencing to death. The judgment of the Court of Oyer and Terminer of Luzerne county is reversed, and this court proceeding now to determine, upon the same evidence, the degree of the crime whereof the said William S. Jones is convicted by his own confession, now finds and declares that the crime of the said William S. Jones is murder in the second degree, and gives judgment accordingly; and forasmuch as the said William S. Jones is confined in the public jail of Luzerne county, distant herefrom, it is further ordered that the record, together with this finding and judgment, be remitted to the said Court of Oyer and Terminer of' Luzerne county, with a direction to the judges thereof to proceed to pronounce sentence upon • the said William S. Jones, as for murder in the second degree, according to law, and for such term of imprisonment at labor, as they, the said judges, shall adjudge to be a fit and proper punishment for his said offence.

The opinion of the court was delivered by Sergeant, J. The right of the holder of a judgment binding real estate, to discharge by covenant or release, a portion of that estate from the lien, preserving it in force, against the rest, cannot, as between the creditor and debtor, be disputed. It is no more than an act of common justice, where the remaining property is sufficient to respond to the claim': and he would be thought a harsh creditor, who, under such circumstances should refuse it, when,by enabling the debtor to make a clear' title to a.purchaser, it might materially relieve him. It is in truth no more than perfecting a partial equity already existing, by which, if the debtor sells a portion of land bound by a judgment, the remaining land in the hands of the debtor or his heir or vendee, must first be proceeded against by the judgment creditor, before the land of the prior purchaser can be levied on. Sir Wm. Herbert's Case, 3 Co. 11. Nayler v. Stanley, 10 Serg. & Rawle, 450. Culp v. Fisher, 1 Watts, 494. An act, however, which is perfectly innocent and legal in itself, may become improper, if the party has notice that the rights of third persons may be impaired by it. As if such covenantor or releasor ■is apprised beforehand that a portion of the land is bound by a subsequent mortgage in favour of another person, and that if he discharges a different portion, and reserves his lien against the part bound by such mortgage, thus loading it with a double burden,- the claim of the mortgagee will be sacrificed by his priority. It is manifest that it is unfair and inequitable that he should voluntarily do an act producing these consequences. Sic utere tuo ut alienum non Icedas. Thus in an analogous case: A person may buy a legal title free from all secret trusts: but if he has notice of a trust, though he may have paid his money, equity will make him the trustee for the party beneficially interested. But it is essential that notice be shown. It is not sufficient to say, that by the release there is a possibility that injury may result to some one. Perhaps there is no exercise of a legal right, from which, by possibility, a loss may not result to. others, in particular cases. Whoever buys a legal title, may by possibility do injury by destroying trusts and equities of which he is not apprised. In itself the act is innocent. It becomes otherwise, when the party knows that it will occasion a loss to a third person. Had the defendant Mrs. Maris, given Mr. Taylor notice of her mortgage and desired him to retain his lien, or at least so much of it as would cover his claim, leaving the premises mortgaged for her use, it would have been his duty to refrain. But she never did; nor is there- the least pretence that he knew 'of it. It is insisted that the recording of the mortgage was constructive notice to him; but that cannot be. A mortgage or judgment is a lien: the recording a mortgage, or docket ting a judgment, is notice of that lien to a subsequent purchaser or incumbrancer, and he is bound to search for it. But what has the holder of a prior lien to do with- hunting up subsequent liens ? The task would be endless ; and no where more so than here, where liens are various in their nature, multiplied in their number, and scattered in their registry. What with mortgages, judgments, awards, testatums, transcripts, recognizances, legacies charged on land, mechanics’ claims, registered taxes, debts of intestates, &c. &c., there is no end to them; and if a man could not do a legal act, till he hunted up these varieties of liens, traced them through all their bearings, and examined how far he would displace or shake them in the hands of'strangers, of whose concerns he is ignorant, the right to act at all would be taken away; and a judgment entered up on a bond and warrant, or otherwise obtained, and binding lands to ten times the debt, must remain unalterable, pressing the debtor down, and tying up all his property from alienation. It is well settled inequity, that a judgment is not constructive notice. Sugden, in his treatise on Vendors says, the docketting of judgments is not of itself notice to a purchaser : for, says Lord Chancellor Talbot, judgments are infinite. Sudg. Vend. 539. 2 Ch. Cas. 47. Amb. 154. 1 Ch. Cas. 37. 2 Freem. 176. 2 Eq. Cas. Ab. 682. And I see no difference in this respect between judgment and other liens. It was the duty of the defendant if she meant to gain an equity, to notify the plaintiff distinctly of her position, and to caution him not to do an act by which her security would be diminished. The act of 2d April, 1822, in relation to the releasing of parts of mortgaged premises, has been alluded to in the argument. ■ This act enables a mortgagee in such case, to sue out a sci.fa. to recover his claim against the remaining property, but makes no provision as to the effect of the release, leaving that to be decided by established principles of law and equity. And according to these, I take it, the effect of such release must depend on the circumstances of the case. If the mortgagee has notice that by such act, he sacrifices the interest of a subsequent lien creditor, he will be bound to withhold his hand, or if he proceeds, will be held responsible for the loss incurred. He may have this knowledge in the very creation of the mortgage. As if two or more severally seised of land, join in a mortgage, they are all in-cequali jure, entitled to contribution amongst themselves; and if the mortgagee should release the land of one from the mortgage, leaving the whole sum to be levied of the remaining lands, he would be doing an act of the injustice of which he was fully conu sant. So where the mortgage was originally by one, and a purchaser of part from the mortgagor intervenes, and before releasing, that fact is known to the mortgagee. See Sir Wm. Harbert’s Case. And this is the principle of the case of Stevens v. Cooper, 1 Johns. Ch. 430; where the mortgagee of six lots, released four, after he knew that a third person had become the purchaser of one of the other two: it was held rateably to reduce the power of the mortgagee over the remaining lots, because it deprived the owners of those lots of their right of contribution as against-the lots so released. But in Cheesebrough v. Millard,in the same book p. 414, the decision was the other way,' because the. mortgagee who made an arrangement by which a portion of his security was relinquished, and a subsequent judgment creditor was cut out, had no notice. The language of Chancellor Kent is apposite to the present case. “If the judgment creditor had given notice to the owner of the first mortgage, before the arrangement and discharge took place, of the equity which he claimed and expected, I might probably have been inclined to have stayed to a certain extent the operation of the second mortgage. But there is no evidence nor even ground for presumption, that either Marvin or Millard, the owners of the mortgages, knew of the existence of the judgment, when the arrangement was made and carried into effect. They were not bound to search for the judgment, and the record was no constructive notice to them: and as the rule of substitution rests on the basis of mere equity and benevolence, the creditor who has thus disabled himself from making it is not to be injured thereby, provided he acted without knowledge of the other’s rights, and with good faith and good intention, which is all that equity in such case requires. (Pothier’s Traité des Oblig. No. 520.) “ The other debtors and sureties,”.to adopt the observations of Polhier, “ might as well as the creditor, have taken care of the right of hypothecation which he has lost: they might summon him to interrupt at their risk the third purchasers, or to oppose the decrees. It is only in the case in which they may have put the creditor in default, that they may complain that he has lost his hypothecation.” ^ The principles of English Chancery are the same. I shall content myself with citing a single case decided in that court, in which the doctrine was established; Griswold v. Marshman, 2 Ch. Cases, 370. There was due to Marshman four thousand pounds upon a mortgage made to him of lands. The mortgagor after the mortgage, acknowledged three judgments, to other persons for other moneys due. Two of those persons to whom the judgments were given, gave notice tó Mr. Marshman of their judgments, and desired him to accept of his money that was due upon the mortgage, which they said they were ready to pay him, and desired him to appoint a time when, and they would pay him his money within a fortnight, to the intent that his mortgage being set aside they might take execution on their judgments, but proved not any money actually tendered. But afterwards Marshman exhibited a bill against the mortgagor and had a decree to foreclose him of redemption: and afterwards took a further absolute conveyance from the mortgagor for a considerable sum of money. And now the two creditors had a decree against Marshman to pay them their money, but Powell the third creditor had no relief, because he gave no notice in time, of his judgment. Decree affirmed.

Opinion by Mr. Justice Mitchell, This case was unfortunately tried on a wrong basis through out. It was assumed that the agreement of May, 1892, was an accord, and as its terms had not been fully carried out, that there had been no satisfaction, that the agreement was therefore inoperative, and the parties were remitted to their rights and liabilities under the original contract. This was a radical error. The agreement of May, 1892, was a compromise of disputed rights. The defendants claimed that the plaintiff was violating the contract in such manner as to entitle them to rescind, and they had in fact taken possession of the land a short time before by force. The plaintiff on the other hand claimed that he was pursuing his contract rights, and he had in turn ousted the defendants by force from the land. The parties then came together, agreed upon a settlement, put its terms in writing which was signed by both, and partly carried out. Such an agreement is not an accord, but a compromise, and is as binding as any other contract. But it was not necessary to the validity of the agreement of May, 1892, that there should have been even a compromise of disputed rights. The parties to a contract may at any time rescind it, either in whole or in part, by mutual consent, and the surrender of their mutual rights is sufficient consideration. That is what the parties did in the present case, and their rights must be determined exclusively by the agreement of May, 1892. All questions of defendants’ previously asserted right to rescind the first contract and the reasons for it, and of the value of improvements, are irrelevant. The parties have made a final adjustment of all these matters, and the original contract of 1891 is of no further efficacy except as a guide in determining how much was due under it for the logs and bark mentioned in the agreement of 1892. The suit was properly brought by Flegal in his own name, as the agreement of 1892 was made with him, and he is entitled to recover under it whatever is due for logs and bark delivered, for the board of defendants’ men. at the agreed rate, if any board was furnished, and possibly for the failure to deliver up his bond, if any special damages can be proved. That is all there is left in the case. The statement includes all these items, and as it was not demurred to, the other matters in it may be treated as surplusage. The view we have taken of the case renders many of the as' signments of error immaterial, and it is not necessary to refer to them. As a matter of practice however it is proper to say that the refusal of leave to file an amended affidavit of defence was not the subject of exception. The case had passed the stage when the affidavit of defence was of any importance. The relevancy of evidence is determined by its bearing on the issue, and the issue is made up by the statement and the pleas. In the absence of a rule of court, the affidavit of defence has nothing to do with it. When it has prevented a summary judgment, it has performed its whole office, and is not before the court on the trial unless it is put in evidence, as an admission, against the party making it. It does not in any way limit the defence to be made at the trial. The cases cited by appellee on this point arose on questions of summary judgment, and had no reference to trial. The procedure act of 1887 has made no change in this respect. Judgment reversed and venire de novo awarded.

OPINION Chief Justice CAPPY. In this appeal we are asked to determine whether the Commonwealth Court improperly vacated a labor arbitrator’s award rendered pursuant to the parties’ collective bargaining agreement and the Pennsylvania Public Employe Relations Act (“PERA”). For the reasons more fully stated below, we reaffirm the deferential standard of review of grievance arbitration awards to be used by appellate courts under PERA; conclude that the Commonwealth Court improperly vacated the arbitrator’s award under that standard; and reinstate the award. The underlying facts, as found by the arbitrator, are as follows. The Office of the Attorney General (“Employer”) employed James Liptak (“Liptak”), as a Narcotics Agent II. On August 27, 1998, Liptak and his wife spent a portion of the early evening at the Wolfendale’s Bar in Indiana Borough, Pennsylvania. After returning home, Liptak decided to go to a convenience store for some food and to fill his state vehicle with gasoline. On his way to the convenience store, Liptak spotted Nathaniel Arthurs, the owner of Wolfendale’s Bar, standing outside of his establishment. Having some matters to discuss with Arthurs, Liptak entered the bar where he played darts and had three drinks. While at the bar, Liptak overheard a female patron ask Arthurs if he knew of the availability of drugs. Liptak engaged in a conversation with the patron who wished to go to another bar, possibly to purchase some drugs. Liptak offered to take the woman to the bar to investigate what could be a drug outlet. While going to his vehicle, Liptak was observed by an individual who was driving past the bar. The individual stopped a police officer, Officer Brian Murphy, and advised the officer that Liptak appeared to be intoxicated and that he had a woman with him as he was entering his vehicle. Officer Murphy investigated and after following Liptak’s vehicle for some distance, the officer, now with back-up, signaled for Liptak to pull over. Liptak exhibited signs of intoxication including slurred speech, glassy eyes, an unsteady gait, and an odor of alcohol. Recognizing that Liptak was a state employee, Officer Murphy asked if he was on duty. After Liptak evaded the question, he stated that he was involved in performing state work. When Liptak was informed that he was in no condition to perform any duties, Liptak became verbally abusive. The officers arranged for Liptak to be picked up by his wife. On October 26,1998, after the Employer interviewed Liptak and after the Employer investigated the incident, Liptak was charged with: (1) unbecoming conduct; (2) use of alcohol while off-duty; (3) operation of an official vehicle while off-duty and while using alcohol; (4) violation of standards of professional courtesy and etiquette; and (5) unauthorized use of departmental equipment. In a report dated October 28, 1998, the investigating agent found validity to the first three charges. On November 17, 1998, Liptak was terminated. Liptak’s union representative, Council 13, American Federation of State, County, & Municipal Employees, AFL-CIO (the “Union”), grieved the termination pursuant to the collective bargaining agreement between the parties and, after denial of the grievance through the collective bargaining agreement’s grievance procedure, the parties submitted the matter to arbitration. The parties chose Arbitrator Walter J. Gershenfeld to resolve the dispute. Furthermore, the parties stipulated to the specific issue to be determined by the arbitrator: “Under the agreement, was there just cause for the discharge of James E. Liptak, and, if not, what shall the remedy be?” In resolving this issue, Arbitrator Gershenfeld found that although Liptak had committed the alleged misconduct, there was not just cause for Liptak’s termination. Specifically, the arbitrator considered, “in determining just cause,” three extenuating circumstances raised by the Union. These circumstances included dissimilar discipline imposed upon other employees for like offenses, Liptak’s long service with the Employer, and Liptak’s subsequent rehabilitation. After considering these circumstances, Arbitrator Gershenfeld reinstated Liptak to his former position, without back pay, and conditioned Liptak’s reinstatement upon his ability to refrain from further misconduct during the first three months upon return to his employment. In essence, the arbitrator found that just cause was lacking for termination, but imposed upon Liptak a lengthy suspension and a “last chance” for continued employment. The Employer appealed the arbitrator’s adverse award to the Commonwealth Court contending that the award was erroneous and that pursuant to the agreement, once the arbitrator found that Liptak had committed the misconduct for which he was charged, the arbitrator was without authority to reduce the discipline imposed by the Employer. A three judge panel of the Commonwealth Court agreed. Specifically, the Commonwealth Court found that the terms of the collective bargaining agreement restricted the arbitrator’s authority solely to the issue of whether Liptak was terminated for just cause. The court went on to conclude that once the arbitrator determined that Liptak had engaged in the misconduct for which he was terminated, i.e., found just cause to exist, the arbitrator had no authority to modify the penalty imposed by the Employer, relying upon Township of Penn v. American Federation of State, County and Municipal Employees, AFL-CIO, 713 A.2d 1218 (Pa.Commw.Ct.1998). Thus, the Commonwealth Court in its decision impliedly equated the finding of misconduct with the contractual requirement of “just cause” for dismissal. Based on this reasoning, the Commonwealth Court vacated the arbitrator’s award. The Union appealed the Commonwealth Court’s decision and we granted allocatur to address whether the Commonwealth Court improperly vacated the arbitrator’s award. In doing so, we necessarily must consider whether the Commonwealth Court properly applied the standard of review to be utilized when reviewing a grievance labor arbitration award under PERA, i.e., the essence test, and whether under that test, the Commonwealth Court correctly equated “just cause” under the collective bargaining agreement to mean misconduct as engaged in by Liptak. Before we may address the issue on which we granted allocatur, however, we must resolve a threshold issue, raised by the Union, of whether the Employer properly preserved for review its challenge to the arbitrator’s award. In support of its position that the Employer waived the issue, the Union offers that the Employer never argued at arbitration that the arbitrator lacked the authority to consider mitigating factors or that the arbitrator did not have the authority to determine whether the penalty of discharge was too severe. Furthermore, according to the Union, the Employer did not object to the introduction of evidence by the Union regarding the Employer’s treatment of other employees accused of similar misconduct, evidence regarding Liptak’s work history, and evidence of Liptak’s post-incident rehabilitation. If the Employer believed that the arbitrator lacked authority to consider mitigating circumstances and to alter the discipline imposed under the collective bargaining agreement if it found that Liptak had engaged in misconduct, then it should have objected to the mitigating evidence offered by the Union. The Employer responds it did not waive the issue of the arbitrator’s authority to modify the discipline that it originally imposed as neither party knew of the arbitrator’s treatment of the evidence until he rendered his award. Thus, the Employer’s argument now regarding the arbitrator’s authority did not arise until the arbitrator sustained the reasons for the Employer’s actions and yet decided a lesser penalty was more appropriate. Furthermore, according to the Employer, it did object to the introduction of evidence regarding Liptak’s past performance. Finally, the Employer offers that the issue of whether an arbitrator exceeds his or her authority implicates subject matter jurisdiction, and therefore, cannot be waived. We find in this case, that the Employer did not waive its challenge to the arbitrator’s award on appeal. Specifically, the parties submitted to arbitration the issue of whether there was just cause for the discharge of Liptak, and if not, what the proper remedy should be. That is to say, the parties squarely placed before the arbitrator the issue of whether Liptak’s discharge was appropriate under the terms of the collective bargaining agreement. Thus, the issue before the arbitrator was one of contract interpretation. The Employer on appeal challenged the arbitrator’s interpretation of the agreement and the remedy awarded by the arbitrator. It is axiomatic that the parties could not have been aware at the arbitration how the arbitrator would interpret the just cause provision of the agreement which was directly implicated in the issue as framed. Therefore, we do not find waiver. To do otherwise would be to penalize a party for failing to anticipate and refute possible interpretations of a collective bargaining agreement at arbitration. Likewise, assuming arguendo that the Employer did not object to the mitigating evidence offered by the Union, this does not necessarily require a finding of waiver. Such evidence was entirely relevant to the remedy to be imposed by the arbitrator if he determined, initially, that there was not just cause for dismissal. Thus, because under the issue as stipulated to by the parties, there was an independent basis for admission of the mitigating evidence, the failure to object cannot be a basis for a finding of waiver. We now turn to the issue of whether the Commonwealth Court erred in vacating the arbitrator’s award and in doing so, analyze whether the Commonwealth Court properly applied the essence test and whether under that test, the court correctly concluded that once the arbitrator found that Liptak committed the misconduct with which he was charged, just cause for discharge was established, and the termination had to be upheld. To resolve this issue, we must first consider the essence test. All parties agree, and the Commonwealth Court recognized that judicial review of a grievance arbitration award under PERA is governed by the standard of review called the “essence test.” In State System of Higher Education (Cheyney University) v. State College University Professional Association (PSNEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999), we clarified that the test was of two prongs. First, we ask whether the issue submitted to arbitration, as properly defined, is encompassed within the terms of the collective bargaining agreement. Id. at 413. Second, we inquire into whether the arbitrator’s award can be rationally derived from the collective bargaining agreement. Id. If the arbitrator’s award can rationally be derived from the terms of the collective bargaining agreement, it must be upheld. In setting forth this two-prong test, we emphasized the deferential nature of the review. Specifically, strict adherence to the essence test is mandated by our Commonwealth’s strong historical preference for the swift and efficient means of settling disputes that arise under a collective bargaining agreement by a grievance procedure culminating in binding arbitration. This preference has its roots both in statute and in our case law. PERA mandates that the final step in the resolution of grievances or disputes arising from the agreement must be final and binding arbitration. 43 Pa.C.S. § 1101.903. Like wise, our Court, on a continual basis, has made clear the strong public policy of encouraging peaceful settlement of industrial disputes by means of arbitration. Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981); Community College of Beaver County v. Community College of Beaver County Soc’y of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977); see also, Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir.1969). We have indicated that arbitration is preferred in this context for a number of reasons. Arbitration allows disputes between labor and management to be resolved impartially by a specialized tribunal. Disputes are resolved promptly. Arbitration is a relatively inexpensive endeavor. Dispute resolution by arbitration also relieves the burden placed upon the already strained resources of the court system. Furthermore, arbitration has been heralded as an important factor in reducing industrial strife. Danville Area School District v. Danville Area Education Assoc., 562 Pa. 238, 754 A.2d 1255, 1259 (2000). Thus, by statute and by ease law, arbitration is the favored means of resolution of labor disputes, a fortiori, courts should play an extremely limited role in resolving such disputes. Indeed, “[f]requent judicial disapproval of the awards of labor arbitrators would tend to undermine a system of private ordering that is of the highest importance to the well-being of employer and worker alike.” Newark Morning Ledger Co. v. Newark Typographical Union, 797 F.2d 162, 165 (3d. Cir.1986). For this reason, it is the very deferential standard of review that is the essence test that is to be utilized in analyzing the arbitrator’s award and a court will vacate that award only where it “indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement.” Cheyney University, 743 A.2d at 413. In applying the essence test, the Commonwealth Court relied on its decision in Township of Penn v. American Federation of State, County and Municipal Employees, AFL-CIO, 713 A.2d 1218 (Pa.Commw.Ct.1998), in which the court concluded that once the arbitrator determined that the grievant had engaged in the misconduct for which he was terminated, just cause existed for the employer’s chosen discipline for that conduct, and the arbitrator was without authority to alter the discipline in order to obtain what the arbitrator believed was a more suitable result. Id. at 1222. Based upon this reasoning, the Commonwealth Court determined that in this case Arbitrator Gershenfeld found that Liptak had engaged in the misconduct for which he was terminated. Equating the factual finding of misconduct with just cause, the Commonwealth Court concluded that “having found that just cause existed for sanctioning Liptak” the arbitrator had no authority to modify the penalty imposed. Slip Op. at p. 6. Accordingly, the Commonwealth Court vacated the arbitrator’s award. To determine whether the Commonwealth Court erred in its analysis, we must initially review the terms of the collective bargaining agreement. The collective bargaining agreement between the parties provides in relevant part that the “Employer shall not demote, suspend, discharge, or take any disciplinary action against an employe without just cause.” Article 28, Master Agreement. The contract further states that “any grievance or dispute which may arise concerning the application, meaning or interpretation of this Agreement shall be settled” through the grievance and arbitration procedure. Article 37, Master Agreement. Additionally, the agreement speaks to the foundation for this dispute resolution process, “[e]ach case shall be considered on its merits and the collective bargaining agreement shall constitute the basis upon which the decision shall be rendered.” Article 37, Master Agree ment. Finally, the agreement places some restrictions on the arbitrator in resolving a grievance: “[t]he arbitrator shall neither add to, subtract from, or modify the provisions of the Agreement ... [and] shall be confined to the precise issue submitted for arbitration and shall have no authority to determine any other issues not so submitted.” Article 37, Master Agreement. With these terms in mind, we consider the first prong of the essence test, viz., whether the issue submitted to arbitration, as properly defined, is encompassed within the terms of the collective bargaining agreement. First, the parties stipulated that the question to be determined by the arbitrator was “Under the agreement, was there just cause for the discharge of James E. Liptak, and if not, what shall the remedy be?” Based upon the clear terms of the collective bargaining agreement which prohibit termination without just cause and a grievance and arbitration procedure for settling disputes arising under the contract, it is beyond cavil that the issue submitted to arbitration, as properly defined, was encompassed within the terms of the collective bargaining agreement. Thus, we find that the first prong of the essence test is satisfied. Next we turn to the second prong of the essence test— whether the arbitrator’s determination can be rationally derived from the collective bargaining agreement. The Employer argues, and the Commonwealth Court found, that the arbitrator’s award failed to draw its essence from the collective bargaining agreement, i.e., was not rationally derived from the collective bargaining agreement, because once the arbitrator found that Liptak engaged in the misconduct charged, just cause for the termination was established and the arbitrator was required to uphold Liptak’s discharge. This argument loses its traction when one considers the role of the arbitrator in interpreting the parties’ collective bargaining agreement and the concept of just cause as it is understood in labor relations. Initially, we note that the term “just cause” was not defined by the parties in the collective bargaining agreement. By failing to agree upon and incorporate a definition of just cause into the collective bargaining agreement, and by casting the arbitrator into the role of resolving disputes arising under the collective bargaining agreement, we believe that it is clear that the parties intended for the arbitrator to have the authority to interpret the terms of the agreement, including the undefined term “just cause” and to determine whether there was just cause for discharge in this particular case. See United Transportation Union, Local 1589 v. Suburban Transit Corp., 51 F.3d 376, 380-81 (3d Cir.l995)(reasoning that parties to a collective bargaining agreement, by including the undefined just cause provision, have intentionally introduced ambiguity into the agreement and have conferred authority upon the arbitrator to interpret a submission to subsume board review of an employer’s disciplinary actions). Likewise, as a general proposition, the concept of just cause as it is used in labor relations, is not capable of easy and concrete definition. A just cause provision, in its most basic terms, is a negotiated form of limited job security that to a degree restricts the employer’s otherwise unfettered right to discharge and discipline employees. Although there is no exact definition, there is a general consensus as to some of the factors that may be considered in determining whether there is just cause for discharge or discipline, and in evaluating the penalty imposed. Arbitrators have considered such factors as, inter alia, whether there was any investigation; post-discharge misconduct and pre-discharge misconduct; a grievant’s past employment record, length of service, post-discharge rehabilitation; and unequal treatment of other employees for similar misconduct. Frank Elkouri and Edna Asper Elkouri, How Arbitration Works, 650-54, 670-87 (4th Ed.). Based upon the undefined just cause provision contained in the collective bargaining agreement, the role of the arbitrator to interpret the terms of the collective bargaining agreement, and the general understanding of the concept of just cause, it becomes clear that the parties received the benefit of their bargain, i.e., the arbitrator was asked to interpret the “just cause” provision and did so consistent with how that term is generally understood. By equating the undefined just cause provision with the acts of misconduct engaged in by Liptak, the Commonwealth Court vitiated the bargained-for role of the arbitrator and discounted the general understanding of the concept of just cause. As noted above, the role of the arbitrator was to interpret the terms of the collective bargaining agreement to resolve disputes. Because the concept of just cause, as generally understood, may be more than a simple determination of whether the employee engaged in the misconduct, it was for the arbitrator to interpret the terms of the collective bargaining agreement and not the courts. See Cheyney University, 743 A.2d at 416. Based upon the above, it was entirely rational for the arbitrator to interpret the undefined just cause provision as permitting consideration of mitigating circumstances such as disciplinary actions taken against other similarly situated employees and Liptak’s substance abuse rehabilitation, and to conclude that Liptak was not discharged for just cause. Furthermore, based upon the issue stipulated to by the parties requiring the arbitrator to determine the appropriate remedy if just cause was not found, it was entirely rational for the arbitrator io impose the remedy of reinstatement without back pay and a-last chance situation. Thus, the arbitrator’s award was rationally derived from the collective bargaining agreement. As both prongs of the essence test were satisfied, we uphold the arbitrator’s award. The Employer relies upon our prior decision in Pennsylvania Liquor Control Bd. v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948, 954 (1989) in which our Court indicated that once an arbitrator found that the employee committed the charged acts of impropriety, that “fact” established just cause for dismissal. Specifically, our Court opined in Independent State Stores Union, “[t]hat finding [that a grievant committed the charged acts] established the ‘just cause’ for the dismissal. At that point, the inquiry should end and [the employer’s] action sustained.” Id. We are not, however, persuaded that Independent State Stores Union is dispositive of our decision today. First, in Independent State Stores Union, there was neither an in-depth examination of the concept of just cause, as that term has been understood in labor relations, nor meaningful discussion of the role of the arbitrator in interpreting an undefined term contained in a collective bargaining agreement. In fact, the Court in Independent State Stores Union determined that there was a definition of just cause contained in the rules and regulations published by the employer. Id. at 950. More importantly, our recent case law has emphasized the great deference our Court gives to an arbitrator’s interpretation of a collective bargaining agreement. To reduce the undefined term just cause to the equivalent of a mere factual finding of misconduct would be contrary to our deferential review and in substance, constitute a judicial interpretation of the terms of the collective bargaining agreement, something that this Court has made clear is not appropriate on appellate review. Thus, while Independent State Stores Union retains its vitality in other respects, see City of Easton v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 447, 562 Pa. 438, 756 A.2d 1107 (2000), it does not compel relief for the Employer with respect to this issue. Finally, our decision in City of Easton v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 447, 562 Pa. 438, 756 A.2d 1107 (2000), does not lead us to a different result. In City of Easton, we vacated an arbitrator’s award which reinstated an employee who had been terminated by the City of Easton for, inter alia, holding a second job with a security company, and submitting time sheets to both employers to collect double pay for hours. Thus, the employee had committed either a theft against the city itself or the security company while he was working for the city. We reaffirmed the deferential essence test, but noted that this usual deference to be accorded an arbitrator’s award is tempered in a situation in which the arbitrator’s interpretation of the agreement led to the governmental employer relinquishing essential control over the public enterprise, i.e., those powers essential to its ability to discharge its various functions. Id. at 1111. Specifically, we noted that the collective bargaining agreement at issue in that case included a disciplinary schedule which provided that an employee could be immediately dismissed for “willful misconduct.” In recognition of our prior case law emphasizing the need for government control over powers essential to the proper discharge of the functions entrusted to that governmental entity and the fact that governmental authorities do not have the freedom of private enterprises to discontinue or bargain away the control over such functions, we concluded that the arbitrator’s determination could not be rationally derived from the collective bargaining agreement where the award compelled a governmental entity to relinquish essential control over the enterprise— control the public employer could not surrender. Id. Thus we vacated the arbitrator’s award. Unlike the situation in City of Easton, the collective bargaining agreement at issue in this case does not provide for specific discipline for certain willful misconduct. Likewise, as noted above, the parties submitted the issue of whether there was just cause for Liptak’s discharge to an arbitrator asking him to interpret the term just cause and to alter the penalty if he found that just cause for discharge was not established. Arbitrator Gershenfeld did not find just cause for Liptak’s discharge, as he interpreted that term. Finally, we do not find that the award, reinstating an officer without back pay for off-duty misconduct has required the governmental employer to bargain away control over core powers that are essential to the proper discharge of the functions for which the governmental entity is responsible. City of Easton. For all of the above-stated reasons, the order of the Commonwealth Court vacating the arbitrator’s award is hereby reversed. The arbitrator’s award is hereby reinstated. Former Chief Justice FLAHERTY and ZAPPALA did not participate in the decision of this case. . 43 P.S. § 1101.101 etseq. . Master Agreement between the Commonwealth of Pennsylvania and Council 13, American Federation of State, County and Municipal Employees, AFL-CIO, Effective July 1, 1996. . The parties’ collective bargaining agreement contained a dispute resolution procedure for resolving contractual disputes between the parties. This procedure, in conformity with Section 903 of PERA, 43 P.S. § 1101.903, culminates in a final step which is "final and binding” arbitration. Article 37, Master Agreement. . As we find that the Employer did not waive the issue of the authority of an arbitrator to modify discipline under the collective bargaining agreement, we do not need to reach the Employer's contention that the issue implicates subject matter jurisdiction. . This statute, 43 Pa.C.S. § 1101.903, reads in pertinent part: Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory. The procedure to be adopted is a proper subject of bargaining with the proviso that the final step shall provide for a binding decision by an arbitrator or a tri-parte board of arbitrators as the parties may agree. . Moreover, the introductory provision to PERA declares that it is the public policy of this Commonwealth to promote orderly and construe tive relationships between public employers and their employees and that unresolved disputes between public employer and its employees are injurious to the public and the General Assembly is therefore aware that adequate means must be established for minimizing them and providing for their resolution. 43 Pa.C.S § 1101.101. . The Commonwealth Court stated that Arbitrator Gershenfeld found just cause for Liptak's termination. This is simply not the case. The arbitrator in his award did not find just cause for Liptak’s discharge. While the arbitrator found that Liptak engaged in misconduct, as discussed more fully below, this is not the equivalent of a finding of just cause for discharge. . Roger Abrams and Dennis Nolan, Toward a Theory of "Just Cause" in Employee Discipline Cases, 1985 Duke L.J. 594 (1985)(noting that while just cause for discipline is the most important principle of labor relations in the unionized sector, it is subject to a number of interpretations). . This unfettered right, is of course subject to applicable constitutional requirements and statutory labor and employment laws. . See also Clyde Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va. L.Rev. 481, 500-04 (1976)(finding that what constitutes "just cause” inevitably depends upon the work setting and special circumstances, but may include principles of management’s right to manage, notice of what is prohibited, the right to equal treatment, procedural fairness and corrective discipline). . Based upon the above, to the extent Township of Penn is inconsistent with our decision today, it is hereby rejected. . See American Federation of State County and Municipal Employees, District Council 88 AFL-CIO v. City of Reading, 130 Pa.Cmwlth. 575, 568 A.2d 1352 (1990)(taking into account consideration of disparate treatment of other employees as well as alcohol abuse rehabilitation). Of course, if the Employer desires to limit the arbitrator's authority to modify its discipline of an employee once it is determined that the employee actually committed the alleged transgression, it may attempt to obtain such a limitation at the negotiating table. . See also, County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988); Philadelphia Housing Authority v. Union of Security Officers # 1, 500 Pa. 213, 455 A.2d 625 (1983).

Kennedy, J. The first error assigned is an exception to the opinion of tbe court, admitting the evidence of Lawrence Miller. This evidence was offered by the defendant below, who is also the defendant here, after that he had read in evidence a deed of conveyance, as part of his title to the land in dispute, from Peter Vanetta, the elder, to Lawrence Miller, the father of the witness under whom the defendant claimed the land. It was admitted, that anterior to the execution of this deed Peter Vanetta was vested with the legal title to the land, and was .originally the owner of it; and from him both parties professed to derive their respective claims to it. The deed from Vanetta to Miller appears to have been executed on the 25th of May 1S02, a year after the time at which L. Miller, the witness, testified that the conversation took place with his father, in the presence and hearing, as -he thinks, of Peter Vanetta; in the course of which his father mentioned his wish to build a mill near the land in question, and pointed out the line of the land which it was understood he had then purchased or agreed to purchase of Vanetta, which line, as the father thought, would afford him a suitable site for the mill of which he spoke. But it is evident, and is established by all the evidence without contradiction, that the land in dispute is not embraced by the boundaries set forth in the deed. The testimony of Lawrence Miller, therefore, went to show that his father had contracted with Vanetta for the purchase of land not included within the deed of conveyance subsequently made to him. The deed, however, must be taken as “ the final accomplishment and consummation of all previous stipulations;” Lighty v. Shorb, 3 Penns. Rep. 450; and, hence, the inevitable conclusion is, that the father finally did not buy the land by the line then shown or pointed out. The deed must be considered as conclusive on this point between the parties to it, and those claiming under them; and cannot be contradicted by parol evidence, except it were to prove, that, either through mistake or fraud, land actually purchased was excluded from it; but the testimony of Lawrence Miller or that of any other witness has not the slightest bearing in this way. In the close of the defendant’s offer, however, under which the testimony of Lawrence Miller was admitted, it is true, that the defendant proposes to prove, among other things therein specified, that he, and those under whom he claimed, had had possession, including the premises in question, for nearly thirty years; and that Elias Dietrick, from whom the defendant bought, built the dam thereon in 1814, with Peter Valletta’s assentand assistance. To this part of the offer there was no objection made by the plaintiff; and had the defendant given evidence to this effect first, the other evidence might have been admissible in order to show that such possession was originally obtained by and with the assent of Vanetta. But this was not done ; and upon recurrence to all the evidence given on the trial of the cause, it does not appear that a tittle was given from first to last tending to show that Lawrence Miller, the elder, ever had possession of the land in dispute, or that possession was had of it by any other than Peter Vanetta until after Lawrence Miller, the elder, sold to Elias Dietrick the land embraced within his deed from Vanetta; when it appears that in 1814, Dietrick being about to erect the dam, he took possession of it from Vanetta not only against his'will and express prohibition, but, when the latter told him he would stop him from joining his dam to the bank of the creek, he, in reply, let him know that nothing except a force which he could not overcome should prevent him from doing so. As the evidence of Lawrence Miller could not control or extend the operation of the deed from Vanetta to his father, so as to pass land not included in the description of the land conveyed by it, it is therefore clear that it could not be admitted for that purpose. And as evidence of a distinct and different contract for the purchase of other land than that included in the deed, and for the purpose of passing an interest in it, it is equally clear that it could not be received ; because, as evidence of a contract, it was altogether defective; it did not go to show what the terms of the contract were; nor that any possession of the land was given and taken under it, nor that any money or other thing of value was paid upon it; and, being by parol, it was wholly insufficient to pass a right to land even had the terms of the contract been distinctly and clearly proved, because contrary to the statute against frauds and perjuries. In every point of view then that can be taken of this evidence we think it was inadmissible, and that the court erred in receiving it. The second error is also an exception to the opinion of the court, rejecting Peter Vanetta, the son and one of the heirs of Peter Vanetta, the original owner of the land now deceased, who was offered as a witness on behalf of the plaintiff. In 1830, after the death of Peter Vanetta, the elder, Peter Vanetta, the younger, with some of the other heirs of his father, agreed to sell to the plaintiff their respective shares and interests in the tract of land, of which the land in question forms a part, containing about two hundred and ninety-five acres, which descended to them from their ancestor. The plaintiff was married to another of the heirs and claimed a sixth of the land in right of his wife; and in 1831, pursuant to the agreement made with him by those other heirs, he received a deed from them conveying the land to him in fee, describing it by courses and distances, and referring to marks upon the ground so as to include the land in dispute with a covenant of special warranty only. It appeared by the articles of agreement entered into between them for the sale of the land, which were also read in evidence to the court, as well as the deed, that upwards of 900 dollars, part of the purchase-money, were not to be paid by the plaintiff till after the death of the widow of Peter Vanetta, the elder, but the interest thereof was to be paid annually to her, by the plaintiff, during her life, and bonds to be given by him for the payment of the principal to the vendors at her death. It was admitted that she was then living. The court below thought that if the plaintiff failed to recover the land in dispute, he would be entitled to have a deduction made from that part of the purchase-money which remained unpaid, as it would seem to be a loss of so much of the consideration for which the money was agreed to be paid, and under this view, conceiving that Peter Vanetta, the younger, was called as a witness to support his own interest, they held him incompetent. We, however, are inclined to think, under the circumstances disclosed, that Peter Vanetta will be entitled to demand and recover, on the death of the widow, his full proportion of the money remaining unpaid, without any deduction whatever on this account, notwithstanding the plaintiff should, in the mean time, have failed to recover. The plaintiff being interested in the land, in right of his wife, before he bought, must have known all about the defendant’s claim; he saw him in the possession, as it were; that his dam was abutted upon the bank of the creek, which belonged to the ancestor of his wife and those of whom.he was buying; where it had stood and been kept up for many years previously. The claim of the defendant and his occupation of the ground, being thus visible and known to them all, and the plaintiff buying with his eyes open, seeing the defendant in possession and enjoyment of the privilege, of which he now seeks to deprive him, yet requiring no provision in his contract for a deduction from, or return of anypoition of the purchase-money, in case he should be unable to recover the disputed ground from the defendant, but on the contrary, paying two-thirds of the purchase-money in hand, and agreeing positively to pay the remaining third on the death of the widow, which might be on the next day for aught he knew, and during the interim,- the interest on it, annually, to her, leads inevitably to the conclusion that he was to pay the whole of the purchase-money, whether the land in dispute was recovered or not. And this is in accordance with the principle laid down in Furhman v. Loudon, 13 Serg. & Rawle 386, and affirmed in Lighty v. Shorb, 3 Penns. Rep. 452, that “when the purchaser is aware of a flaw and provides not against it, he takes the risk of it on himself.” And the chief justice, in delivering the opinion of the court in the latter case, most aptly observes, pages 452-3, “ he shall be bound to perform his engagement, wherever his knowledge and the state of the facts continue to be the same they were at the time of the conveyance.” Beside, the land in dispute forms but a very insignificant part of the land sold to the plaintiff. And inasmuch as it appears, from all the circumstances attending the purchase, that it was not to be considered as having any influence upon the amount that was to be paid for the land, we think that Peter Vanetta was a competent witness, and that there was error in rejecting him. The two remaining errors are exceptions to the charge of the court to the jury on points submitted by the plaintiff’s counsel, and seem to present four questions. First, whether any of the evidence tended to prove either fraud or mistake in drawing the deed from Vanetta to Miller, so as to exclude the land in question, when, according to the contract and agreement of the parties, it ought to have been included. Second, whether it tended to prove that the dam had been erected, under a parol licence never distinctly revoked before the erection thereof. Third, whether from the evidence given, the jury could fairly infer an implied assent on the part of Vanetta to the building of the dam, or to the continuance of it after it was built, so as to conclude him and those claiming under him from setting up a right against it thereafter. And, fourth, whether Folk, .the defendant, might not, from the evidence, be regarded as an innocent purchaser for a valuable consideration, without notice of Vanetta’s claim, if he had any, from the conduct of Vanetta himself. As to the first question, the court below were of opinion that there was no evidence given tending to show either fraud or mistake, and in this we think the)7 were unquestionably right. In regard to the second question, however, the court instructed the jury that there was evidence from which they might find, if they thought it sufficient, that Vanetta did grant the right to, join the dam to his bank, and to raise the water for the purpose claimed and used by the defendant. In this we think the court erred by not presenting to the consideration of the jury at the same time, other evidence given in the cause, even by some of the defendant’s own witnesses, not attempted to be disproved, nor as much as denied, showing most clearly, that if he ever had granted a license or agreed that the dam should be joined to his bank of the creek, he expressly revoked it, and forbade it to be done, in the most peremptory manner possible, at the very first moment of commencing the work.' Now, supposing that he had given a parol license to abut the dam upon his land, it is certain that he had a right to revoke it, at any time before the expenditure 'of money was incurred, or work and labour were performed upon the faith of it; because, if granted at all, it was by parol and without consideration. But I must confess, that by a fair construction of the evidence, taking it all together, I am unable to perceive how it can be made out, that Vanetta ever consented that the dam should be constructed where it was. And as to his declarations about having sold land to Miller for a mill seat, and having injured his own by it, and that if he had it to do again he would not do so, it amounts to nothing; for, in any thing he said, he could only have had an allusion to the land which he sold and conveyed by his deed to Miller, because there is no evidence of a sale of any other; and it may be tr-ue that he thought Miller had a mill seat on the land he so conveyed to him. In this, however, he may have been mistaken, and if he were, that would not give Miller, or those claiming under him, a right to claim as much more land as would be necessary to make a mill seat. And it may be, too, that he thought he had injured a mill seat upon the remaining part of the land, which he still retained, by selling and conveying as he did to Miller. And without distorting these declarations, imputed to him by the evidence of Frederick Miller, it is utterly impossible to convert them into a license, or to make them evidence of an agreement on the part of Vanetta, that Miller should ever erect a dam upon any other land than upon that embraced within the deed. Tt may be thought by some, perhaps, that a dam would not be constructed by Miller without abutting upon the bank of Vanetta, but this would be a misapprehension; for, on large streams of water, such as this is said to be, it is not unusual to construct dams extending not more than half way across the stream, and to have water power enough for a mill, with the aid of a reasonable descent in the bed of the stream. Then, as to the third question, whether the jury, from the evidence, could have fairly inferred that the dam was constructed with the assent of Vanetta. It is admitted that Dietrick erected the dam after he bought of Miller; and the evidence shows, without contradiction, and beyond the possibility of doubt, even by the testimony of one of the defendant’s own witnesses, that at the time Dietrick commenced constructing it, Vaqelta expressly forbade him, and he, thereupon, gave Vanetta to know, that he intended to extend his dam across the creek, and to abut it upon Vanetta’s bank; and when Vanetta intimated that he would stop him, he replied to Vanetta that he must do it, then, by planting his great gun there, for join his bank he would. The language or manner of Dietrick here was certainly not very pacific towards Vanetta, and was calculated to impress him, as Dietrick doubtless intended it should, with the idea that he, Deitrick, would not be driven from his purpose, except by a force that he could not overcome. And the determined overawing manner of Dietrick, upon this occasion, may account for Vanetta’s not having entered into a contest with him, and trying to prevent him from erecting the dam as he did. But surely it cannot be, that a man is thus to be hectored out of his rights; or that, because he does not repel the assault thus made upon them, or immediately commence his suit to recover them back, when forcibly taken from him, it is to be construed into an assent on his part, to give them up forever. It is true, that if he lies by for the space of twenty-one years after he has been evicted of his land, he may lose his right to it, by the operation of the statute of limitations: but, then, nothing short of that period, without something more ought, or can be considered, sufficient to deprive him of it. But it cannot be pretended that the evidence disclosed any thing more in this case, which would render a less period than twenty-one years sufficient to bar the plaintiff of his right. It does not appear that Vanetta was acquainted with the intention of the defendant to buy the land, or that he had any knowledge of his purchase after it was concluded. But the defendant, when he bought, was certainly bound to take care and see that Dietrick had a good title for all he proposed selling to him, or otherwise he might lose, at some future day, what he expected to hold and to enjoy if he bought. The deed of Vanetta to Miller formed a link in the chain' of the only title that Dietrick had for what he sold to the defendant; the defendant was bound to know what was in that deed; and he must be considered as knowing, also, that it gave Dietrick no right to abut his dam on Vanetta’s side of the creek. Vanetta was living upon his land, on the opposite side of the creek, at the time, and the defendant, seeing that Dietrick had no title for the land, upon which the dam abutted at Vanetta’s side of the creek, ought, unless he were willing to run the risk of paying his money without getting a title, to have called upon Vanetta, and to have known of him whether he had any claim to the land or not; and if he had, to have inquired upon what terms he was willing to relinquish it. It was certainly gross negligence in him not to do so, and the law, therefore, imputes to him a full and complete knowledge of all the circumstances under which Dietrick buili his dam: and cannot view him in any other light than it would Dietrick, himself, were he the defendant. And as there is no ground for saying that he ever relinquished his right to Dietrick by his assent, there seems to be none for alleging that he ever did so to the defendant. Greenough, for plaintiff in error. Cooper and Bellas, contra. Now, as to the fourth question, it has been measurably, if not wholly, answered by what has been said in answer to the third. No man can be considered an innocent purchaser, who buys with a full knowledge of all the facts and circumstances connected with the subject of his purchase and the want of title to it on the part of the-seller. And although, in point of fact, the defendant, at the time of his purchase, may not have known, yet it has been shown, that if he had'used even ordinary caution, and exercised that discretion which, every one is bound to do in the purchase of real estate, he might,, upon inquiry, have known all that it was necessary for him to know in order to have guarded against the claim of the plaintiff. It must be taken for granted that he saw and examined, before he bought, the title of Dietrick, which, as it did not include the land in dispute, was sufficient to put him on his inquiry, which would necessarily have led him to a knowledge of all the circumstances which attended the erection of the dam, and that it was abutted upon the land of Vanetta under whom the plaintiff claims, against his consent. It being, then, his own fault if he did not know, full knowledge must be imputed to him, and he must be regarded as a purchaser, with full notice. And “ such a purchaser,” says the chief justice, in delivering the opinion of the court in Alexander v. Kerr, 2 JRawle 89,. ee voluntarily, and with full knowledge, takes the place of a wrongdoer and stands in no higher equity. He, therefore, has no right to be informed that the suffering party has not abandoned his right.” The circumstances in the case of Alexander and Kerr are in some respects like to those chiefly relied on here by the defendant, and the-principles, there laid down by the court are applicable here. Judgment reversed, and a venire de novo, awarded.

The opinion of the Court was delivered by Rogers, J. It is a general principle, that whenever trustees fail in the peformance of their duty, or exceed, or pervert the power with which they are invested, they and their representatives, whether deriving any benefit from it or not, become responsible to those for whom the trust property should be held; and are chargeable in equity for breach of trust. But it is not for every act of neglect that they are responsible. Thus, executors and administrators, or trustees, acting with good faith, and without any wilful default, or fraud, will not be responsible for any loss that may arise. All that a court of equity requires from trustees, is common skill, common prudence, and common caution. Executors, administrators, or guardians, are not liable, beyond what they actually receive, unless in case of gross negligence; for when they act as others do with their own goods, and with good faith, and not guilty of gross negligence, they are not liable. 1 Penns. Rep. 213. Theenigmote, appellant, v. Thimnell, assignee; Thompson v. Brown, Fay and others, 4 Johns. Cha. Rep. 619. A court of equity, as is said in Thompson v. Brown, always treated trustees acting in good faith, with great tenderness. In Knight v. The Earl of Plymouth, 3 Atk. 480, Dicken’s 120, Lord Hardwicke observes, if there was no mala Jides, nothing wilful in the conduct of the trustee, the court will always favour him. For as a trust is an affair necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, it is an act of great kindness in any one to accept of it. To add hazard or risk to that trouble, and to subject a trustee to losses which he could not foresee, would be a manifest hardship,, and would be deterring eveiy one from accepting so necessary an office. In that case, a receiver had deposited money with a banker of good credit, who afterwards failed, and as he was not chargeable with any wilful neglect or fraud, the court refused to hold him responsible for the loss of it. In Routh v. Howell, 3 Ves. 567, the same point was ruled. Executors were discharged from liability, for a loss arising from the insolvency of a banker, whom the testator had trusted, and with whom they suffered stock, deposited by the testator, to remain. This principle has an exceedingly strong bearing on the case in hand, as well as Wilkinson v. Stafford, 1 Ves. Jun. 41, and Van v. Emery, 5 Ves. 144, where the court of chancery determine to relieve trustees, acting upon professional advice, with the best judgment they could form, from losses of the heir’s property. The facts of this case are directly within the principles, which have been ruled in the cases cited, all of which have been distinctly recognised' by this court. It is not pretended but that the executors acted with good faith. Fraud is not even alleged; and nothing has been found, which shows a want of common skill, common prudence, or common caution; or differs their conduct from what is usually manifested in conducting otu own affairs. They reposed confidence, where the testator had reposed it; for it must not be forgotten that Mr Wright was' the counsel selected by the testator himself. The executors acted with professional advice, and we have it in proof that they called, at least twice, on their attorney, and how much oftener, it may be impossible to show, to inquire the state of the business, and were informed by him that the money was attached in the sheriff’s hands, and that as soon as it could be had, he would attend to it. I cannot perceive the force of the objection, that, when an offer was made by the purchaser of Gochenaur’s property, to let the money remain secured in the hands of the purchaser, until Good’s right to it should be ascertained, they rejected the proposition, and insisted on the money being paid to the sheriff. This was in the due course of law, and so far from this being a reason for charging them, a contrary course would have rendered them responsible to the legal representatives. It is true, they knew the money was in the hands of the sheriff, and it is equally true, that they had placed the business under the care and management of an -attorney, whose skill and integrity they had not the slightest reason to distrust, who, in addition, had been selected by the testator himself. It may be safely said, that few clients, whether acting for themselves or others, but would at that time have reposed a similar confidence in the honour and integrity of the counsel who was employed; and nothing had occurred, of which we have any evidence, which was calculated to awaken suspicion as to his skill and diligence. The executors reposed merely the usual confidence in him, and for this, we think it would show unwarrantable rigour, to subject them ■to the loss of assets which were never in their hands, nor subject to their control. If the testimony is believed, (and we have the positive testimony of the sheriff, to the fact) the money was' lost in consequence of the insolvency of the attorney; who, at the time, was in good standing and credit, and of whose actual situation the executors were not informed. Nor can it affect the liability of the executors, whether Mr Wright received the money or not, nor in' what capacity he received it, as they had a right to repose confidence in his skill. The money was lost by his misconduct, and the cases cited show, that trustees who act with good faith, are not liable for such mismanagement of their agents, as they can neither foresee, nor control. We are, therefore, of the opinion, that gross negligence has not been shown, and that the court erred in charging the executors with 2103 dollars and 33 cents and interest, the amount of the judgment against Adam and Abraham Gochenaur. With this correction, the account is confirmed. The decree reversed, so far as concerns the sum of 2103 dollars and 33 cents, and confirmed as to the residue.

Opinion by Mr. Justice O’Brien, The plaintiff-appellee filed a complaint in assumpsit in. which it alleged that the defendant had breached the terms of two contracts. The defendants then filed, on the plaintiff, a rule to show cause why the complaint should not be dismissed. The petition for the rule alleged that the contracts signed by the parties provided for arbitration; hence the action in assumpsit was premature and not in keeping with the Arbitration Act of 1927. The court below, after a hearing, discharged the rule and this appeal followed. The key question to be determined by this appeal is whether or not the contracts provided for arbitration in a case such as this. The facts as set forth in the complaint allege a breach of the contracts in that the defendant, Eltz, had failed to perform under the terms of the contract and that, pursuant to the contract, the authority notified the contractor, Eltz, that the Authority would complete the construction. We have examined the record in full and nowhere in the contracts is it clearly stated what is to be arbitrated. The contract provided for the arbitration procedure and the methods to be used in selecting the arbitrators ; however, the contract is silent on what types of claims are subject to this procedure. The appellants state that all claims are to be arbitrated, while the appellee claims that only technical matters which arise during the life of the contract are subject to arbitration. Our determination in this matter is governed by two basic propositions: (1) that arbitration agreements are to be strictly construed and that such agreements should not be extended by implication: Jacob v. Weisser, 207 Pa. 484, 56 A. 1065 (1904); Scholler Bros., Inc. v. Hagen Corp., 158 Pa. Superior Ct. 170, 44 A. 2d 321 (1945); McDevitt v. McDevitt, 365 Pa. 18, 73 A. 2d 394 (1950), and (2) that when the parties agree to arbitration in a clear and unmistakable manner, then every reasonable effort will be made to favor such agreements. Capecci v. Capecci, Inc., 11 Pa. D. & C. 2d 459 (1957), affirmed per curiam 392 Pa. 32, 139 A. 2d 563 (1958). On March 13, 1961, pursuant to Section B3:09 of the construction contracts, the Authority, by resolution, terminated the right of Eltz to proceed because of defaults under the contract. It would thus appear that all operative provisions of the contract as they relate to matters covered by the contract were terminated. It seems reasonable to us to infer that the arbitration clause covered only those problems which arose during the life of the contract. The reason we infer that the arbitration clause in this contract was not intended to survive this contract is contained in the sentence in Clause B4:08 of the contract which says that a demand for arbitration shall be filed in no case later than the time for final payment. This language indicates that the parties only intended the arbitration clause to be used during the life of the operation of the contract and not to extend after the contract had been terminated by performance, breach or otherwise. The arbitration clause also contains a sentence which says that the contractor shall not cause delay of the construction during any arbitration proceedings. This language also indicates that the parties intended the arbitration procedure to be utilized only during the life of the contract and not after the termination of the contract. We are thus led to the conclusion that the arbitration procedure was not intended to survive the life of the contract but only to aid in the administration of the contract during its life. The appellee raises the issue that the demand for arbitration comes after the time permitted for such a demand by the contract. However, we need not address ourselves to this issue in view of our conclusion that the arbitration clause is inapplicable. Order affirmed. Mr. Chief Justice Bell concurs in the result. It would seem that the better procedure would Rave been to raise tRe issue of arbitration by way of au answer containing new matter pursuant to Pa. R. C. P. 1030.

Opinion by Mr. Justice Linn, The appellants, trustees of the Estate of Edward H. Jennings, deceased, appealed to the common pleas from the decision of the Board of Adjustment under the Zoning Ordinance of the City of Pittsburgh. Their peti tion set forth that they had applied to the Bureau of Building Inspection for leave “to permit the occupancy of [certain] premises as a Fraternity House by the Rho Chapter of Phi Kappa Fraternity of the Carnegie Institute of Technology, which at the present time has a Lease on said premises”; that leave had been refused “for the reason that said use was prohibited by Section 9-A of the Zoning Ordinance . . .”; that an appeal had been taken to and dismissed by the Board of Adjustment. . The petition described the premises as occupied by a “2%-story brick and stone residence containing nineteen rooms and four baths; and a two-story brick garage which has space for four automobiles and living quarters for caretakers.” It averred that the property had been vacant since 1924; that they had spent large sums in carrying it meanwhile, and that they had been unable to sell or rent it “for one-family occupancy or for any purpose which was not prohibited by Section 9-A of the Zoning Ordinance.” They averred that the decision of the board was illegal in that the “refusal of a permit and the prohibiting of said premises to be rented as a Fraternity House amounts to confiscation of property without due process of law”; “deprives the petitioners of equal protection of the law”; “takes private property not for public use or welfare, but for the convenience of other owners of property and deprives the owners of the property in question of compensation or due process of law”; “the use of this property as a Fraternity House does not conflict with the public welfare, safety or health, and the prohibition of such use is not a-proper exercise of the police power.” Attached to the petition was the decision of the Board of Adjustment which showed that the three members of the board had inspected the property April 23, 1937; that a hearing was held April 26, 1937, at which evidence was received for and against the application. We quote the following from the report of the board incorporated in the petition: “Variation Requested — In Sec tion 9-A so as to permit the occupancy of a dwelling as a Fraternity House, the said use not being permitted in a ‘C’ Residence District, under the provisions of the zoning ordinance. “Conclusion — The property in question is improved with a large brick dwelling which has been vacant for several years. The lessees desire to occupy this building as a Fraternity House for students who attend the Carnegie Institute of Technology. Under decisions of the Court of Common Pleas of Allegheny County and the Supreme Court of the Commonwealth of Pennsylvania, the proposed use of this building and premises would necessitate a change in the Zoning Classification of the property and under the above mentioned decisions this is a function which is vested entirely in the City Council and is a matter over which the Board of Adjustment has no jurisdiction. Under these circumstances, this Board must deny this appeal.” The matter was then presented, pursuant to the statute, to the common pleas at the instance of appellants. The return of the board contained the evidence taken by it. A number of residents in the neighborhood became interveners. The court received evidence in support of and against the decision of the board and concluded as follows: “The only question properly before the court is whether, in refusing the variation requested, the Board of Adjustment was guilty of ‘a manifest and flagrant abuse of discretion.’ Unless it was, it should not be reversed: Liggett’s Petition, 291 Pa. 109, 117; Valicenti’s Appeal, 298 Pa. 276, 281. After a careful examination of the return made by the Board of Adjustment, and consideration of the testimony taken at the hearing on this appeal, and the extended and enlightening argument of counsel, we cannot say that there has been such a ‘manifest and flagrant abuse of discretion’ as would warrant us in reversing the Board of Adjustment. “The classification of appellant’s property as ‘C’ residential, no doubt works a serious hardship on the estate, and we are convinced that it is practically impossible to find a purchaser or lessee for single family occupancy at a fair selling or rental value. But it was held in Junges’ Appeal (No. 1), 89 Pa. Superior Ct. 543, 547, that, ‘The fact that the change (from class “C” to class “B”) might improve the selling or rental value of the property is not sufficient: People ex rel. Werner v. Walsh, 209 New York Supp. 454.’ “We are forced to the conclusion that this couiff is without authority to afford appellants the relief which they seek, and that it can be obtained only through legislative action.” The record shows that the lease from the appellants to the Rho Chapter provided for a term beginning May 1, 1937, and ending April 30, 1938, at the annual rental of $2,700. The chapter has 24 members. The particular district containing the property was changed from a “B” residence to a “C” residence district by amendment to the Zoning Ordinance passed September 21, 1926. The ordinance provides as follows: “Section 9-A. ‘C’ Residence District. In this district the land may be used and buildings or structures may be erected, altered or used only for the following Permitted Uses: “(1) One-Family Dwelling; “(2) Church; “(3) Library; “(4) Greenhouse (As an accessory building); “(5) Accessory Uses: (The provision shall be the same as prescribed in ‘A’ Residence District. See Section 8).” Section 3 of the ordinance defines a multiple dwelling as one “designed for or occupied otherwise than as a one family dwelling, two family dwelling or double house,” and includes fraternity houses in the class of multiple dwellings. It is therefore clear that by section 9-A a multiple dwelling or, what is the same thing, the use of a one-family dwelling as a fraternity house, was prohibited. As it appeared that the proposed use was as a multiple dwelling within the definition of the ordinance, and that it was a use prohibited by section 9-A, the action of the board was strictly in accord with the ordinance. Appellants, while apparently not denying that their proposed use is prohibited, contend that strict enforcement will result in unconstitutional deprivation of the use of their property for the reasons, quoted above, from their petition; that the decision appealed from is “a manifest and flagrant abuse of discretion” and that this court should now so declare. In their brief they quote, inter alia, from section 54 of the ordinance: “Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, the Board shall have the power in passing upon appeals to vary or modify any of the regulations or provisions of this ordinance in harmony with its general purpose and intent and in accordance with the general or specific rules herein contained so that the spirit of this ordinance shall be observed, the public health, the public safety and the general welfare secured and substantial justice done.” At the hearing before the board evidence was received, as has been said, of property owners in the neighborhood, who testified that the proposed occupation as a fraternity house would aid in further decreasing the value of real estate in the neighborhood experienced in recent years and would make the community less desirable for residence purposes. The record shows very clearly that the carrying charges of appellants’ property have been very high. In such circumstances the decision of an administrative board having jurisdiction to determine the fact, should be given great weight and should be set aside only for substantial reasons: Fleming v. Prospect Park Board of Adjustment, 318 Pa. 582, 178 A. 813. In view of the evidence taken, we think the provision quoted from section 54 of the ordinance and relied on by appellants is not applicable. There is no practical difficulty in limiting residences in this district to one-family dwellings; while enforcement of the ordinance is a hardship on this decedent’s estate, it is not the kind of hardship dealt with in section 54; what appellants desire is not that the board should “vary or modify any of the regulations or provisions” but that it shall set them aside. The power to “vary or modify any of the regulations or provisions” is one that must be exercised “in harmony with its general purpose and intent and in accordance with the general or specific rules herein contained so that the spirit of this ordinance shall be observed, the public health, the public safety and the general welfare secured and substantial justice done.” The court is not empowered to say that the “general welfare” of the other property owners whose use is limited to one-family residences is secured and the “spirit of this ordinance” is observed and “substantial justice” done by excepting from the operation of the ordinance the particular dwelling owned by the appellants. The power to establish residential districts is settled: Ward’s Appeal, 289 Pa. 458, 137 A. 630; Euclid v. Ambler Co., 272 U. S. 365; to establish residential districts in which only one-family dwellings are permitted: Locatelli v. Medford, 287 Mass. 560, 192 N. E. 57; Minims v. Pond, 326 Ill. 467, 158 N. E. 121; Brett v. Building Commissioner, 250 Mass. 73, 145 N. E. 269; flats or small apartment houses may be entirely excluded from residential districts: Beery v. Houghton, 164 Minn. 146, 204 N. W. 569, affirmed, 273 U. S. 671; Miller v. Board of Public Works, 195 Cal. 477, 234 Pac. 381; Fleming v. Prospect Park Board of. Adjustment, 318 Pa. 582, 178 A. 813.-See, generally, Kerr’s Appeal, 294 Pa. 246, 144 A. 81; Zahn v. Board of Public Works, 274 U. S. 325; Hadacheck v. Sebastian, 239 U. S. 394. The order appealed from is affirmed at appellant’s costs.

Opinion by Me. Justice Jones, These are appeals from a decree of a three-judge panel of the Philadelphia Court of Common Pleas enjoining the City of Philadelphia from enforcing certain revenue measures adopted by the City Council and approved by the Mayor on December 26, 1968, enjoining the enactment of certain appropriation transfer ordinances introduced in City Council on the same day and dissolving an injunction as to two revenue measures for the School District of Philadelphia. The genesis of this litigation goes back to December, 1967, when the City Council and Mayor approved an eighteen-month operating budget commencing on January 1, 1968, and terminating on June 30, 1969. The purpose of the eighteen-month budget was to convert the City from a calendar fiscal year commencing on January 1 to a fiscal year commencing on July 1. The total appropriations under this budget were estimated at $585,202,000, and anticipated revenues were estimated at $609,681,000. The difference between these two figures, $24,479,000, was allocated as “working capital surplus.” Meanwhile, the School Board of Philadelphia, which was already operating on a fiscal year beginning on July 1, submitted to the Mayor and City Council on April 3, 1968, its anticipated budget for the fiscal year beginning on July 1, 1968. Since its proposed expenditures exceeded its anticipated revenues by $33,945,926, the Board asked the Council for authority to levy taxes to collect this amount. On December 5, 1968, eight interim tax measures were introduced in City Council to raise money for both the City and the School District. The money for the School District was required to eliminate the deficit which had already been anticipated in the budget for the fiscal year commencing on July 1, 1968. The interim taxes for the benefit of the City, anticipated to yield $13,750,000, were, allegedly, necessitated by two unexpected expenses: first,. the City had signed- a new contract with the City policemen, firemen and non- uniformed employees which, it was estimated, would require the expenditure of an additional $12,809,400; second, the remaining amount was to be used to defray the increased cost of running the judicial system in the City resulting from the consolidation of the various courts brought about bjr the amendments to the State Constitution effective January 1, 1969. On December 26, 1968, all eight revenue measures were approved by the Council and signed into law by the Mayor. On the same day, fourteen appropriation transfer bills were introduced into Council. Thirteen of these transfer bills were designed to transfer most of the budgeted surplus of approximately $24 million from the “working capital surplus” to various City departments. The City Finance Director subsequently testified that, during the course of 1968, various City department heads requested permission to exceed their budgets because of unforeseen expenses and, when the Finance Director was satisfied that these expenses were necessitated, he authorized the department heads to exceed their budgets with the promise that he would ask City Council to reimburse them from the budgeted surplus. It was also decided that the Council would not make the transfers to the departments piecemeal but would wait until the end of 1968 to make all the transfers at one time. The result was the thirteen appropriation bills introduced on December 26. Tbe fourteenth and final transfer bill appropriated $12,809,400 of the anticipated $13,750,000 to be raised by the new tax measures to the Finance Director to cover the new salary increases and the balance to the Finance Director for working capital. Meanwhile, on December 19, 1968, appellees, in the capacity of taxpayers of the City of Philadelphia, filed suit against the City to enjoin collection of the new taxes. On December 31, a three-judge panel convened to hear the case enjoined the City from collecting the taxes and fines imposed by the revenue bills and from enacting the appropriation transfer bills. The court ruled, in effect, that the City had not established that the revenues to be raised by the new taxes were to meet “unanticipated emergencies” as required by §2-301 (a) of the Philadelphia Home Rule Charter. Two days later the Council held a hearing after which it passed a resolution finding specifically that the needs of the School District and of the City for the wage increases and for the court consolidation costs were “unanticipated emergencies” and that the appropriation transfer bills “provide for the payment of expenses which were unanticipated and could not reasonably be anticipated, and in very large measure were of an emergency nature, and are properly within the budget provisions of the Home Rule Charter authorizing transfers in appropriations.” The City went bach to the Common Pleas Court to ash that the injunctions be dissolved. The lower court handed down its opinion and order on January 9, 1969. The three judges unanimously held that the injunction pertaining to the two tax measures for the benefit of the School District should be dissolved. As to the tax measures for the City, the court was divided. Judge Smith, writing for the majority, held that the City lached the power to pass interim tax measures and that the transfer bills — with the exception of the bill transferring the money for the salary increases — were also invalid because dissolution of the budgeted surplus would create a deficit. Judge Barbieri, in a concurring opinion, argued that the funds to be transferred under the appropriation bill® were not for “unanticipated emergencies,” that the pay increases and increased costs of administering the courts should be paid for out of the operating surplus and that, therefore, there was no deficit and no “unanticipated emergency” requiring additional revenues. Judge Spaeth dissented to this part of the majority’s opinion, contending that the City had the right to pass interim tax measures, that the expenses of the pay raises and of the court system were “unanticipated emergencies” and that at least some of the budgeted surplus was not available for this emergency since the money had already been committed to various City departments. Judge Spaeth would have remanded the matter to Council for a determination as to which of the monies proposed to be transferred had, in fact, already been committed to the various departments. Finally, Judge Spaeth criticized the majority’s order upholding Bill No. 829 authorizing the School District to raise its real estate tax from $.42% to $1.10 on each $100 of assessed value and at the same time striking down Bill No. 826 decreasing the rate of real estate tax for use by the City from $2,375 to $1,825, pointing out that the result of the majority’s decision was to increase the real estate tax by $.67% on each $100 of assessed valuation, whereas the City Council had only intended to raise the rate by $.12%. The City has appealed to this Court. The Greater Philadelphia Movement and the Philadelphia Chamber of Commerce have intervened in support of the City’s position. Fogel’s Garage, Inc., and Donna M. Yokum, owners of public garages in Philadelphia, have also intervened. In so intervening, they maintain that, in the event that we uphold the Council’s right to pass the tax measures, we, nevertheless, must strike down Bill No. 825 increasing the tax on outdoor parking lots from 10% to 20%. Fogel and Yokum have also filed a separate action attacking the validity of Bill No. 825. The Authority of the City To Enact Interim Taxes In our approach to the resolution of the instant controversy, we bear in mind the salutary rule that the judiciary should not intrude into the legislative area of government unless it be demonstrated that the legislative body — in the present case the City Council— has acted in a manner violative of our Constitution, Acts of the General Assembly or the organic law of the City (the Home Rule Charter) or in a manner wherein the Council lacks the power or authority to act. The wisdom of the councilmanic action is not within our judgment; we only review the legal validity of such action. We do not and should not act as a “super councilmanic” body; we simply inquire whether the action of Council finds warrant in the law, bearing in mind that Council can act if it is empowered to do so by the Constitution, the General Assembly of the Commonwealth or the City Charter. The present controversy must be placed in its proper posture. The right of the Council in general to enact tax measures is not at issue. The issue is whether the Council has the right to enact new or so-called interim tax measures and to appropriate the proceeds therefrom after having adopted its operating budget for the fiscal year and after having enacted tax measures to meet the appropriations contained in the operating budget. We initiate our inquiry with a restatement of a concept basic and inherent in our form of government, a concept established beyond question in the law of this Commonwealth. The power of taxation, in all forms and of whatever nature, lies solely in the Gen eral Assembly of the Commonwealth acting under the aegis of our Constitution. Absent a grant or a delegation of the power to tax from the Genera] Assembly, no municipality, including Philadelphia, a city of the first class, has any power or authority to levy, assess or collect taxes. To determine whether a municipality possesses the power to tax and, if so, the extent of such power, recourse must be had to the acts of the General Assembly. In Fischer v. Pittsburgh, 178 Pa. Superior Ct. 16, 112 A. 2d 814 (1955), aff'd., 383 Pa. 138, 118 A. 2d 157 (1955), Judge Woobside, speaking for the Superior Court, stated: “Municipal corporations can levy no taxes upon inhabitants or their property unless the power to do so is plainly and unmistakably conferred by the legislature” (178 Pa. Superior Ct. at p. 20). (Emphasis added) Chief Justice Stern, speaking for the Supreme Court in Fischer, stated: “. . . municipal corporations can levy no taxes unless the power be plainly and unmistakably conferred by the sovereign state, and the grant of such right must be strictly construed and not extended by implication [citing authorities].” (383 Pa. at p. 141) (Emphasis added) Moreover, the determination of whether the General Assembly has granted to a municipality the power of taxation in a particular area is subject to a strict construction and the grant of such power may not be found by implication. See: Fischer v. Pittsburgh, supra; Murray v. Philadelphia, 364 Pa. 157, 163, 164, 71 A. 2d 280 (1950); Breitinger v. Philadelphia, 363 Pa. 512, 514, 515, 70 A. 2d 640 (1950); Marson v. Phila delphia, 342 Pa. 369, 373-375, 21 A. 2d 228 (1941); Wilson v. Philadelphia School District, 328 Pa. 225, 229, 230, 195 A. 90 (1937). As a necessary corollary to the exclusive competency of the General Assembly to authorize the imposition of taxes by a municipality, the General Assembly possesses the sole competency to determine not only the areas of permissible taxation but also when and in what manner such taxes shall be imposed. If, for instance, the General Assembly alone has the power to authorize the taxation of real estate by municipalities, it stands to reason that the General Assembly alone has the power to determine the frequency with which the power of taxation may be exercised. Were it otherwise, taxation by municipalities could well result in an intolerable situation. Now that we have outlined the general principles which must guide our decision, we turn to the specific issue involved in this case. The City contends that, by reason of certain “unanticipated emergencies” which have occurred during its current eighteen-month fiscal year but subsequent to the passage of its budget for the fiscal year and which emergencies have forced it to exceed its present budgetary appropriation, it has the right, in order to bring its budget into balance, to enact new tax measures during the fiscal year. On the other hand, the taxpayer-appellees maintain that the City lacks the power and authority to enact new tax legislation and to appropriate the proceeds therefrom after its operating budget has been adopted. We begin by looking at the case law on this question. The City cites two cases wherein this Court has upheld the adoption of interim taxing measures. Both cases are inapposite. In both Treaster and Dunkard, the statutes in question specifically granted the taxing authority the right to interim taxation during the fiscal year. The taxpayers rely, to some extent, on Rose Twp. v. Hollobaugh, 179 Pa. Superior Ct. 284, 116 A. 2d 323 (1955). In Rose Twp., Judge Woodside, speaking for the majority, pointed out that the Second Class Township Code involved in Rose Twp. provided for an annual budget which would show the estimated revenues and expenditures in the forthcoming fiscal year, all for the purpose of determining how much tax to levy. He then stated: “The budget required is more than a mere estimate of probable revenues and expenditures. It is a method whereby expenditures are controlled and limited during the fiscal period by designating the amount of money legally at the disposal of the supervisors and the purpose for which it may be expended. Kistler v. Carbon County, 154 Pa. Superior Ct. 299, 301, 302, 35 A. 2d 733 (1943). These budget provisions are not directory but dn the highest degree mandatory.’ Leary v. Philadelphia, 314 Pa. 458, 472, 172 A. 459 (1934). “The Supreme Court has required such strict compliance with the provisions of this section that township supervisors have been removed from office for failure to comply with them, even when the supervisors were depending upon their solicitor to file the required reports. Crane’s Appeal, 344 Pa. 624, 26 A. 2d 457 (1942), and others have been surcharged for making disbursements without previous appropriations according to the provisions of the section even though the township received a reasonable quid pro quo for the unauthorized outlays and no fraud or dishonesty on the part of the supervisors was shown. Lower Nazareth Township Supervisors’ Appeal, 341 Pa. 171, 19 A. 2d 92 (1941). “In Dunkard Township School Tax Case, 359 Pa. 605, 60 A. 2d 39 (1948) the court permitted a school district to impose a tax under Act 481 after the budget had been approved but the court placed its decision on the ground that the Act of July 5, 1947, P. L. 1266 specifically authorized a revision of the school budget for that year. “Justice, now Chief Justice Steen, indicated that the right not only to revise the budget but also to provide for additional revenue was limited to the one fiscal year. “Provisions concerning budgets have been in the second class township law for many years, but the budgetary requirements imposed upon the supervisors have become more strict and detailed with the passing years. “It is vital for the good administration of municipal affairs for its officials to budget expenditures for the necessary functions and thereby determine the amount of tax necessary for the operation of the municipality for the ensuing year. It was for the purpose of protecting the public against extravagance and waste in local government that the budget provisions Avere made more stringent over the years both by statutes and court decisions.” (pp. 291-293) “If we were to decide that a municipality could enact new tax legislation and appropriate the proceeds therefrom after the budget was adopted, Ave would, to a great extent, destroy the value of the provisions relating to budgets. We think that was not the intent of the legislature in passing Act 481 and its amendments.” (p. 294) The Court held in Rose Twp. that the municipality lacked authority to levy an interim tax measure. While we recognize that Rose Twp. can be distinguished from the instant case, because, admittedly, in Rose Twp. the tax aves not levied for emergency purposes and because the second class township therein involved did not operate under a “home rule charter,” nevertheless the rationale of Rose Twp. is clearly applicable to the instant situation. Since the case law is so meager on this question and because the exact issue before us is one of first impression, we must go back to the acts of the General Assembly which confer taxing powers upon the City. The specific question we must answer in this case is whether the General Assembly has conferred the power of interim taxation upon the City. The General Assembly could confer such power in either of two ways. First, in granting to the City the power of home rule, it could confer the power of interim taxation as one of the sovereign powers of a home rule government. Second, in granting to the City the power to levy a particular type of tax, it could grant to the City the additional power to levy that tax during the fiscal year. We start with the first method by which the General Assembly might confer the power of interim taxation upon the City. By an amendment to our Constitution (adopted November 7, 1922) titled Article XY, §1, cities, after appropriate action by the General Assembly and upon approval of the electorate of such cities, were granted “the right and power to frame and adopt their own charters and to exercise the powers and authority of local self-government, subject, however, to such restrictions, limitations, and regulations, as may be imposed by the Legislature.” Acting within such constitutional fiat and an act of the General Assembly (Act of April 21, 1949, P. L. 665, 53 P.S. §13101), a “Philadelphia Home Rule Charter” was prepared by a distinguished Commission, submitted to and approved by the electorate and became the organic law of the City subject, of course, to any legislatively imposed restrictions as contemplated by Article XY, §1, of our Constitution. The Act of 1949 does not grant any specific taxing powers to the City. Section 17 of the Act grants to the City “all powers and authority of local self-government” including “complete powers of legislation and administration in relation to its municipal functions. . . .” Although §17 appears to convey broad legislative powers to the City, it does not attempt to establish the City’s general taxing powers and structure. Section 11 of the Act of 1949 states in pertinent part: “Any new charter or amendments to the charter of a city thus proposed, which are approved by a majority of the qualified electors voting thereon, shall become the organic law of the city. . . . All existing acts or parts of acts and ordinances affecting the organization, government and powers of the city, not inconsistent or in conflict with the organic law so adopted, shall remain in full force. . . .” (Emphasis added) (Act of April 21, 1949, P. L. 665, §11, 53 P.S. §13111) We must look to see, therefore, whether there are any other acts of the General Assembly which deal with the question of taxation directly. If there are any such acts, they are controlling on the City by virtue of the section quoted above unless they are inconsistent with the Philadelphia Home Rule Charter. Article 17 of the First Class Cities Act, or the Act of 1919, deals specifically with the question of municipal finance. If this Act is applicable to this case — a matter upon which the court below divided — that Act provides that on or before December 15, the City Council shall, in one ordinance, adopt a “financial program for the ensuing year” (53 P.S. §12552), and, on or before December 15, the Council “shall levy and fix a tax rate for the ensuing year” and, upon Council’s failure to do so, the “rate for the current year shall be the rate for the ensuing year.” (53 P.S. §12553) The Act of 1919, supra, authorizing the Charter of Philadelphia, provides, inter alia, that: “Notwithstanding the grant of powers contained in this act, no city shall exercise powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are — (a) Applicable to a class or classes of cities on the following subjects: . . . (8) Limiting rates and fixing subjects of taxation; (9) Providing for the assessment of real or personal property and persons for taxation purposes. . . .” Neither in the title nor in any of the provisions of the Act of 1949, supra, is there any change pertaining to the time set by the Act of 1919, supra, when the tax levy shall be made and the tax rate fixed. The 1949 Act does not specifically repeal the Act of 1919, and we find nothing in the 1949 Act inconsistent with the provisions of the 1919 Act as to the time for the levying of taxes and fixing the tax rate which would, by implication, suspend the time provisions of the 1919 Act. In summary, therefore, we believe that the Act of 1919 is presently applicable, that under its provisions the tax rate for the current eighteen-month fiscal year had to be fixed by December 15, 1967, and no interim adjustment of the tax rate was provided therein. Since Vfe are forbidden to imply the grant of the power of interim taxation and since we cannot find any express provision therefor, we are of the opinion that the statutes which enable Philadelphia to levy, assess and collect taxes intend the levy and fixing of the tax rate by one and only one legislative act which must occur prior to the fiscal year. We have examined the various statutes granting to the City its home rule powers and dictating the requirements as to the City’s fiscal budget and have found no indication that the General Assembly intended to confer interim taxing power upon the City. Even if we were to assume that the 1949 statute did grant to the City the right to choose, through the medium of its Charter, the manner in which it would exercise its General Assembly-granted power to tax, this assumption does not aid the City because not only does the Charter fail to provide for interim taxation but its scheme contraindicates such taxation. In examining the Charter provisions, we must be guided by the well-settled principle that tax statutes must be strictly construed against the taxing authority and that all reasonable doubts must be resolved in favor of the taxpayer. See: Commonwealth v. Willson Products Co., Inc., 412 Pa. 78, 194 A. 2d 162 (1968); Commonwealth v. Allied Bldg. Credits, Inc., 385 Pa. 370, 123 A. 2d 686 (1956). The City, under the Charter, has “the power to enact ordinances and to make rules and regulations necessary and proper to carry into execution its powers; . . .” (§1-100), and the “legislative power of the City . . . [is] exclusively vested in and exercised by [the] Council, subject only to the provisions of this Charter.” (§1-101) Chapter 3 of the Charter, dealing with “Legislation,” provides that thirty days prior to the end of the fiscal year it shall be Council’s duty to adopt the annual operating budget ordinance for the next fiscal year (§2-300 (1)), that such annual operating budget ordinance shall provide for “discharging any deficit” and shall make appropriations to Council, the Mayor and all officers, etc., of the executive and administrative branches of government and “for all other items which are to be met out of the revenue of the City,” that the appropriations for the use of any departmental board or commission shall be made to the department with which it is connected (§2-300(a)), that the May- or’s estimate of receipts for the ensuing fiscal year and of surplus or deficit, if any, for the current fiscal year “may not be altered by the Council” (§2-300(3)), that the “annual operating budget ordinance may be amended after its passage to authorize the transfer of items but the aggregate of the appropriations made by it may not be increased and transfer of budget items may not be made during the last four months of any fiscal year”- except on the Mayor’s recommendation ( §2-300 (6)). (Emphasis added) Section 2-301 is of particular importance and reads, in pertinent part, as follows: “Section 2-301. Other Appropriations. The Council may not make any operating appropriations in addition to those included in the annual operating budget ordinance except: (a) To meet emergencies which could not be anticipated when the operating budget ordinance was passed; . . . “Unless paid for out of current revenues, all amounts appropriated under this section must be included as liabilities of the City in the next succeeding annual operating budget ordinance and except to meet emergencies, operating expenses shall neither be appropriated nor paid out of loan funds.” In commenting on this Subsection, the framers of the Charter explained its purpose as a limitation to prevent the “incurring of deficits,” that it embraces emergencies which “may not have been foreseen” when the annual operating budget was enacted, that, if it be resorted to, operating expenses shall not be appropriated or paid “out of loan funds” but “be made up out of current revenues or taken care of by the next operating budget.” Assuming, arguendo, that emergencies arose which were unanticipated within the intendment of §2-301, supra, does this Section confer upon the City the right to enact new interim tax measures to meet and fulfill the increased need? The taxpayer-appellees ar gue that, while §2-302 does permit the City to cope with “unanticipated emergencies” by making an emergency appropriation in addition to those included in the annual operating budget, the City has only three alternatives for finding the money to meet such additional appropriations: first, by the reduction of expenses in other areas of City government; second, by borrowing the necessary funds for the payment of which borrowing monies must be appropriated in the next fiscal year’s operating budget; and, third, by paying such appropriations out of “current revenues.” The taxpayer-appellees contend — and Judge Smith of the court below ■ agreed — that “current revenues” do not include the proceeds of taxing measures enacted during the fiscal year subsequent to the adoption of the operating budget. . The City argues that the provisions of §2-302 which-authorize Council, in the event of “unanticipated emergencies,” to make “operating appropriations in addition to those included in the annual operating budget ordinance,” grant the power to. pay for such additional appropriations by enacting new tax measures to meet the new appropriations. With this interpretation we cannot agree. The Charter clearly intended that the expenditures for each ensuing fiscal year be fixed by one legislative act. The entire Charter scheme, envisages but one legislative act and one operating budget. Our review of the Charter reveals no authority whatsoever to enact new or interim tax measures, and we find no evidence, either express or by implication, of any intent upon the part of the framers of the Charter to provide for interim taxation. The City argues that, since the Acts of 1919 and 1949 do not specifically prohibit interim taxing measures, such measures must be legal, and the City fur ther notes that it does not seek carte blanche interim taxing power but merely emergency interim taxing power. While willing to concede that, under the Charter, it can make unbudgeted appropriations only for unanticipated emergencies, it takes the position that it can levy interim taxing measures to meet such emergency appropriations. We are not convinced by the City’s argument. The City admits that its power to pass interim taxing measures, if it has such power, exists only in emergency situations. Such limitation is found in the Charter which forbids the City from making unbudgeted appropriations save in an emergency situation. The vital factor is that the enabling acts of the General Assembly make no distinction between emergency and nonemergency interim taxes; in fact, these statutes do not mention interim taxation. The logical result of the City’s argument is that, if there were no limitation on appropriations under the Charter, the City would have unlimited interim taxing power under the enabling statutes. If we are to limit the City’s interim taxing power to emergency situations, we would, in effect, be holding that the enabling acts permit unlimited interim taxation. Since the enabling acts are completely silent on this question, we would have to draw two implications from these statutes to uphold the City’s position; first, that the statutes permit interim taxing measures and, second, that the statutes limit interim taxing measures to emergency situations. The second implication is completely unwarranted by the language of the enabling statutes. Therefore, if the City has interim taxing power, it possesses such power in both emergency and nonemergency situations. To sustain the City’s position, we must accept the hypothesis that the enabling statutes grant the City unlimited interim taxing power, a result clearly in con flict with Rose Twp., supra. Moreover, we cannot believe that the General Assembly ever intended to permit the City unlimited interim taxing power. The General County Assessment Law, infra note 15, from which the City derives its authority to levy a real estate tax, speaks of assessing this tax at an annual rate, a clear implication that the legislature did not intend that the City should have the authority to raise its fixed and established tax rates during the fiscal year. Moreover, the Act of 1919 (Act of June 25, 1919, P. L. 581, §3, 53 P.S. §12553) requires that local governments balance their anticipated budgets and levy and fix the tax rate prior to the beginning of the fiscal year. The emphasis on requiring a balanced budget prior to the beginning of the fiscal year apparently results from a conclusion by the legislature that it is unwise for municipalities to wreak havoc with their adopted budgets by passing unlimited interim appropriations and taxing measures. The second method whereby the General Assembly could confer interim taxing power upon the City is by permitting the City to levy a particular tax during the fiscal year. We will now consider the two major statutes granting the City the power to levy particular taxes — the General County Assessment Law and the so-called Sterling Act. The former act empowers Philadelphia to assess and collect taxes upon real estate while the latter act empowers Philadelphia to levy, assess and collect certain additional taxes for general revenue purposes under certain restrictions. None of the acts of the General Assembly confer, either expressly or by implication, the right of interim taxation. Article LI, §201, of the General County As sessment Act, supra, provides, inter alia: “The following subjects and property shall, as hereinafter provided, be valued and assessed, and subject to taxation for all . . . city . . . purposes at the annual rate: . . (Emphasis added) Nothing in this statute warrants a valuation and assessment of realty other than by one act nor is there any authorization for the levy of taxes other than on an annual or fiscal basis. We cannot read into the language of this statute an implication of a grant of the power to tax real estate other than by one levy during the annual or fiscal year. The Sterling Act says nothing about how or when the taxes authorized by that act are to be collected. Therefore, we must assume that the acts of 1919 and 1949 establishing the City’s general authority to levy taxes are controlling. We have already determined that these acts do not confer interim taxing powers upon the City. Therefore, we must likewise conclude that the Sterling Act also does not confer interim taxing powers upon the City for the particular subjects covered by the act. The City contends that a decision adverse to it would be wrong from a policy standpoint because the City would now have to borrow money which would mean additional interest costs to be paid out of next year’s operating budget. This argument is only partially correct because the City has the further option of reducing and cutting expenses. While we are fully aware that many expenses of City government, such as providing adequate and effective police and fire protection, cannot and must not be reduced, there may well be areas in which municipal expenses can be reduced. We cannot fail to note some merit in the taxpayer-appellees’ argument that the taxpayers have a right to know at the outset of the taxing and fiscal year the extent of their responsibility for taxation and to plan therefor; certainly, in the absence of some statutory limitation on interim taxation, municipal government could run rampant. However, the problem of the grant of the right to interim taxation lies with the legislature and not with the courts. We are convinced that the Charter could not and does not grant Council the power of interim taxation. We are further convinced that the acts of the General Assembly do not, either expressly or even by implication, grant the power of interim taxation but, on the contrary, contraindicate the grant of such power. Absent such a grant, Council lacks any authority to tax on an interim basis and the taxing measures it enacted upon such basis must fall. If it is desirable that the City or any other municipality be permitted to enact interim taxation, such a problem is for the legislative and not the judicial branch of government. The Appropriation Transfer Bills In addition to passing six tax measures which would raise an estimated $13,750,000 for the City, the Council also began consideration of a series of appropriation bills which would transfer most of the $24 million surplus to various department heads and the $13,750,000 to be raised for the new salary increases to the Finance Director, principally to pay for salary and wage increases. The court below enjoined the Council from enacting any of the transfer bills except Bill No. 866 which would transfer the $13,750,000 to the Finance Director. Under §2-300(6) of the Home Rule Charter, Council is permitted to transfer items within the budget as long as it does not increase the total appropriations allotted in the budget. We will assume, arguendo, that if the City’s fiscal needs did not exceed the amount of the working capital surplus, the Council could transfer the surplus to the various department heads. Unfortunately, however, the City’s averred current needs total approximately $38,158,000, or about $14 million more than the amount of the surplus. The City would like to transfer the bulk of the surplus to the department heads under the authority of §2-300(6), thus depleting the surplus. The City would then like to appropriate the additional $13,750,000, allegedly still needed for the salary and wage increases, by invoking the provisions of §2-301 (a) : “The Council may not make any operating appropriations in addition to those included in the annual operating budget ordinance except: (a) To meet emergencies which could not be anticipated when the operating budget ordinance was passed; . . .” Following a hearing held after the lower court’s initial unanimous decision enjoining the enactment of the transfer bills, the Council specifically found that the expenses for the pay increases and for increased court costs were unanticipated emergency expenses. It did not find, however, that the expenses incurred by the department heads in excess of their budgets were necessarily unanticipated emergencies. All three judges below questioned the order in which the Council should enact the appropriation bills. The judges took the position that, if the Council is aware that it has an alleged emergency expense of $13,750,000 and that it has a surplus of $24 million which could be used to meet this expense, the Council cannot deliberately dissipate the surplus with nonemergency transfers and then claim it faces a deficit which will require an emergency appropriation. Judge Spaeth likened this logic to that of the boy who shot his parents and then asked for sympathy as an orphan. Accepting the City’s finding that these two items — pay increases and increased court costs — constitute unanticipated emergencies, we hold that the money to meet these expenses is available in the surplus and should come out of the surplus. Judge Spaeth believed that not all of the $24 million surplus is available to meet these expenses, pointing out that the Finance Director had made informal commitments to various department heads that they would be reimbursed from the surplus for sums spent in excess of tlieir budgets. Judge Spaeth would liave remanded the case to Council for a determination of how much of the surplus had been so committed and would have then held that the amount committed was no longer available to pay for the emergency expenses. However, the Charter states that only the Council can make budgetary transfers and, at least impliedly, informal commitments by the Finance Director are not legally binding under the Charter. In the face of an alleged emergency situation, the Council must postpone consideration of informal promises until the emergency has been resolved. Therefore, we affirm the court’s order below enjoining the enactment of all the transfer bills except Bill No. 866. We do not mean to imply that Council cannot now enact some of the bills so long as a deficit is not created. In short, we say nothing as to how Council should meet the informal commitments made to the department heads other than to say, of course, that Council cannot meet the obligations by passing interim taxing measures. Effect of Phillips v. Tate The City has strenuously argued before this Court that the present case is merely a sequel to Phillips v. Tate, 431 Pa. 124, 244 A. 2d 774 (1968), in which, it suggests, we impliedly gave approval to the City’s present actions. We cannot accept this broad reading of Phillips. In Phillips, we were interpreting §8-100 of the Home Rule Charter which reads, “For the present, the City’s fiscal year shall be the calendar year but the Council may by ordinance adopt a different fiscal year.” We held in Phillips that the City could adopt an eighteen-month fiscal budget in order to convert from a calendar fiscal year to a fiscal year beginning on July 1. We realized that the City would be unable to comply with certain technical requirements of the Charter because the Charter speaks in terms of an annual budget, whereas in order to change over from a calendar year fiscal budget — which Council had the authority to do under the Charter — the Council would have to adopt either a six or eighteen-month budget. That was the holding in Phillips. We certainly did not give the City license to revamp the tax structure of the City in the middle of the fiscal year. In its brief, the City argues that the Mayor and Council “were justified in assuming that the courts would not insist upon complete technical compliance with the provisions of the Philadelphia Home Rule Charter in this unique situation and that the courts would respect the sound discretion of City Council in meeting the practical problems inherent in the change of the fiscal year.” If this statement means that we would not insist on strict compliance with the requirements of the Charter that the City operate under an annual budget, we would agree that the statement is accurate. If, however, this statement means that in allowing the City to adopt a one-shot eighteen-month budget, we impliedly gave the City the authority to revise taxes after two-thirds of the fiscal year had expired, we cannot agree. A $13,750,000 tax increase during the fiscal year is more than a mere technical noncompliance with the provisions of the Charter. The City next argues that the Charter assumes that Council has the right to review the budget every twelve months. What the Charter says is that the Council will review the budget at the end of every fiscal year, which will be June of 1969. Having adopted an eighteen-month fiscal budget, the City must now wait until the expiration of the eighteen-month period before raising taxes or imposing new ones. In effeet, the City is arguing that it is just not possible to anticipate the needs of the City over an eighteen-month period. But, if the Council were so concerned about its limited forecasting abilities, it had the option of adopting a six-month fiscal budget. When the School Board of Philadelphia changed over from a calendar fiscal year in 1966, it adopted just this procedure. The City cannot be heard to say now that it made a mistake when it adopted the eighteen-month budget and that we should rescue it by somehow finding that it has the power of interim taxation when the legislature has not seen fit to confer such power upon the City. Finally, the City argues that we impliedly gave our consent to two tax periods during the eighteen-month budget when we said in Phillips, “Furthermore, we recognize, as do all the parties involved, that the proposed eighteen-month budget encompasses two substantial revenue periods while at the same time includes only one substantial expenditure period.” (431 Pa. at 127) The City has misconstrued the import of this sentence. In this statement, Justice Cohen, speaking for the majority, was attempting to answer the criticism of the three dissenters that the City was violating the requirements of a balanced budget because at the end of the first twelve months of the fiscal year, the City would face a $25 million deficit. We interpret Justice Cohen's statement to mean that the majority was aware of this fact and also of the fact that the $24.4 million surplus available at the end of the eighteen-month budget was perhaps smaller than it should have been in light of the fact that the eighteen-month budget encompassed the first halves of two years when two-thirds of the City’s annual revenues are collected. Nevertheless, the majority felt that the City was not violating the requirement of a balanced budget because, at the end of the eighteen-month budget, there would be no deficit. We do not read Justice Cohen's statement to mean that the City would have two shots at the taxing structure during the eighteen-month period. Increases in the Parking Fines Two of the measures — Bills Nos. 822 and 823 — increased the fines for parking violations and for parking meter violations from $3.00 to $6.00. The lower court dissolved its injunction as to these two bills, holding that the bills were properly enacted under Council's police power to regulate parking in the streets. The City, unquestionably, under its police power has the right to regulate parking in its streets by the imposition of parking fines. Section 1-100 of the Charter empowers the City to enact ordinances, rules and regulations and to enforce them by the imposition of fines not to exceed $300.00. This constitutes the only Charter-imposed restriction on the power of the City to impose fines. The taxpayer-appellees have cited a number of cases wherein this Court has held that municipalities, under the guise of police measures, cannot impose revenue taxes. On the state of the instant record, it is quite apparent that Bills Nos. 822 and 823 were enacted primarily as revenue measures. Even though it is apparent that these two bills were enacted as revenue-raising measures, we must disagree with taxpayer-appellees that, for that reason, these Bills must be invalidated. The cases upon which taxpayer-appellees rely all dealt with license fees and not fines; therein lies an important distinction. A license fee is a sum assessed for the granting of a privilege. In most instances, where a license is granted the City invariably incurs expense such as the cost of registration and inspection; it is only proper that one who seeks and receives a license should bear this expense. To defray the cost of a license a fee is charged to the licensee; however, this fee must be commensurate with the expense incurred by the City in connection with the issuance and supervision of the. license or privilége. See: American Baseball Club of Philadelphia v. Philadelphia, Moore, Mayor, 312 Pa. 311, 316, 167 A. 891 (1933). A fine or penalty differs substantially from a license fee. It is self-evident that a City in enforcing and collecting a fine or penalty incurs expense, an expense the fine is intended to recover. However, the primary purpose of a fine or a penalty is twofold: to punish violators and to deter future or continued violations. ■ Since it serves not only as a punishment but also as a deterrent, the amount of the fine can be raised to whatever sum is necessary to discourage future or continued violations, subject, of course, to any restriction imposed on the amount of the fine by the enabling statute or the Constitution. Thus, if the City finds that it costs $1.00 to enforce each parking violation, it is not restricted to imposing a $1.00 parking fine, if the payment of such an amount will not discourage illegal parking. There is another significant distinction between a license fee and a fine. A person who wants to possess and enjoy a privilege in the form of a license must pay the corresponding license fee and it is inequitable for a municipality to raise revenues for general purposes by imposing a larger license fee on a certain class of people who must pay the fee to secure the privilege or license. On the other hand, there is no requirement that one place himself in a position which subjects him to a fine; he may merely choose not to engage in the prohibited activity and, if he does not do the prohibited act, he need not pay a fine. Under the Charter, there is a $300.00 ceiling on fines, the only restriction imposed on the City’s power to impose fines. However, Article I, §13, of our Constitution provides that excessive fines shall not be imposed. If the City were to increase parking fines to $300.00 and a court of law found this sum to be excessive under constitutional standards, the fines would be stricken. The taxpayer-appellees do not contend, nor do we find, that a $6.00 fine for a parking violation is excessive. If the increase in parking fines does not offend the $300.00 restriction under the Charter or the reasonableness requirement of our Constitution, the fact that the City increased the parking fines, in order to raise its revenues, is irrelevant. Since neither Bill 822 nor 823 violates either the Charter or the Constitution, we affirm the holding of the court below as to these Bills. The School District Taxes The final two tax measures enacted by City Council — Bills Nos. 828 and 829 — were designed to raise an estimated $28,750,000 for the School District of Philadelphia. The court below unanimously agreed to dissolve its injunction as to these two bills, finding that the two bills were not interim tax measures. The history behind these two measures is important. Since July 1, 1966, the School District has operated on a fiscal year ending on June 30. In preparing its budget for the 1968-69 fiscal year, the School District submitted to the Mayor and City Council on April 3, 1968, a lump sum statement of anticipated receipts and expenditures as required by §12-303 (b) of the Education. Supplement to the Home Rule Charter [Supplement]. The School District reported that anticipated receipts totalled $208.1 million as against anticipated expenditures of $242 million. In order to balance its budget, the School District asked City Council for permission to levy taxes in the sum of $33.9 million. The Council failed to act on this request before May 31, 1968, the date on which the School District was required to submit its budget for the ensuing fiscal year. The budget submitted by the School District on that date was balanced at $213,215,000. At the same time the School Board announced that the schools could not operate beyond March 31, 1969, without an additional $28,845,926. In August, 1968, ordinances were introduced in City Council which would have given the School District the authority to impose taxes to raise the necessary funds. On December 5, 1968, Council enacted two of the ordinances, namely, the General Business Tax and the Unearned Income Tax and, finally, on December 27, Council enacted Bills Nos. 828 (Stock Transfer Tax) and 829 (increase in Beal Estate Tax), which taxes are the subject of the present controversy. Taxpayer-appellees argue that Bills Nos. 828 and 829 are interim taxes and, therefore, are outside the taxing authority of the Council or the School District. The School District takes the position that the tax measures were not interim taxes but were anticipated before the start of the fiscal year and that, therefore, it had the authority under the Supplement to enact such taxes. Bills Nos. 828 and 829 were enacted under the authority of the Act of August 9, 1963, P. L. 640, §1, as amended, 53 P.S. §16101. Section two of the Act reads as follows: “. . . Such taxes [enacted by the Council for the needs of the School District] shall be levied, assessed and collected in accordance with all provisions, restrictions, limitations, rights of notice and appeal as are applicable to like taxes imposed for city purposes.” (Emphasis added) In addition, §12-502(c) of the Supplement states: “The following Sections of the Philadelphia Home Rule Charter shall not apply to the Board of Education or to The School District of Philadelphia: [Listing sections which are not relevant to this case]. In all other respects the Philadelphia Home Rule Charter so far as pertinent shall apply to the Board and to the District.” (Emphasis added) We have already held that the Charter does not confer the right of interim taxation upon the Council and, therefore, unless the controlling sections of the Supplement differ in this regard from the corresponding sections in the Charter, we are constrained to hold under the authority of the Act of 1963 and of §12-502(c) of the Supplement that the School District also lacks the authority to levy interim taxes. The dispositive Section of the Supplement is 12-303(e) : “The Board shall have the power to make additional appropriations or increase existing appropriations to meet emergencies which could not be anticipated when the budget was adopted, the funds therefor to be provided from unexpended, balances in existing appropriations, from unappropriated revenues, if any, or from temporary loans. Under no other circumstances may the' Board increase the aggregate total of budget appropriations unless unappropriated revenues become available in sufficient amount to maintain the budget in balance, in which event the Board may make additional or increased appropriations.” (Emphasis added) The School. District concedes that the present situation does not entail an unanticipated emergency and, therefore, the second, rather than the first, sentence is crucial to the question of interim taxation. The School District argues, in effect, that §§1-100 and 1-101 of the Charter give the City authority to pass interim tax measures and that the reference to “unappropriated revenues” in the second sentence quoted above indicates that the framers of the Supplement were aware that the Council could enact interim tax measures,, thus providing funds which were not provided for in the annual operating budget. We have already rejected the first half of the School District’s argument when we held above that the Charter does not confer interim taxing power upon the City. Therefore, the only argument that the School Board can now make is that the. last sentence of §12-303(e) somehow implies the grant of interim taxing power to the School District. If the School District is correct in its argument that the second sentence confers interim taxing power upon the School District, then what is the import of the first sentence? If the second sentence confers unlimited interim taxing power upon the School District, then it was not necessary to include the first sentence to tell the School District how to deal with unanticipated emergencies. If the School District is empowered to levy interim taxes at any time, which means, in effect, that they can make “unappropriated revenues” available at any time, which further means they can increase the general appropriations at will under the authority of the second sentence, then why does the first sentence of the subsection limit additional appropriations to emergency situations? A logical construction of this section leads us to conclude that the reference to “unappropriated revenues” contained in the second sentence does not confer interim taxing power upon the School District. Section 12-303(e) of the Supplement closely parallels §2-301 of the Charter except that the Charter provision makes no reference to “unappropriated revenues.” What, then, do these words mean as they are used in the Supplement? The School District receives money from the State and Federal Governments and, at times, this money is not received until after the current fiscal budget has been adopted. We read this sentence to mean that, if the School District receives such money, it may appropriate it during the current fiscal year even though such funds were not included in the total appropriations in the operating budget. Under no reasonable construction of these words can we read this sentence to mean that the School District has the power of interim taxation. It is with extreme reluctance that we reach this result. We are well aware that the School District now faces the threat of an early cessation of the school year, a possibility calamitous to contemplate. This possibility is certainly not the fault of the School Dis trict. Nevertheless, our province is to interpret the language of the Charter and the Educational Supple^ ment, which, in our view, require that Council enact the tax measures necessary to balance the School Board’s budget before the date that the budget becomes effective. We are fully cognizant of the impact of our conclusion on both the City and the School District. If the right to levy taxes on an interim basis is to be granted, it must be by the legislature which has not done so and not by the judiciary which, under the language of the present statutory law, cannot find the existence of the right to interim taxation. Relief to the School District is imperative and vital and should be promptly and adequately given by the legislature. Decree as to Bills Nos. 822-827 and 854-867 affirmed. Decree as to Bills Nos. 828 and 829 reversed. Each party to pay own costs. Bills Nos. 822 and 823: Mr. Chief Justice Bell files a dissenting opinion. Bills Nos. 824-827: Mr. Chief Justice Bell files a concurring opinion. Mr. Justice Cohen and Mr. Justice Eagen file separate dissenting opinions. Bill No. 826: Mr. Justice Roberts files a dissenting opinion. Bills Nos. 828 and 829: Mr. Chief Justice Bell files a concurring opinion. Mr. Justice Cohen, Mr. Justice Eagen and Mr. Justice Roberts file separate dissenting opinions. Bills Nos. 854-865 and 867: Mr. Justice Cohen and Mr. Justice Eagen file separate dissenting opinions. Judge Smith wrote the majority opinion, in which Judge Barbieri concurred. Judge Barbieri also filed a concurring opinion. Judge Spaeth filed an opinion concurring in part and dissenting in part. This Court upheld the eighteen-month budget by a 4-3 vote in Phillips v. Tate, 431 Pa. 124, 244 A. 2d 774 (1968). The School Board is authorized to levy taxes with the approval of the General Assembly of the Commonwealth or of the City Council under Section 12-305 of the Educational Supplement to the Home Buie Charter. Bill No. 822 — Raising the fine for parking violations from $3.00 to $6.00. Bill No. 823 — Increasing the fines for parking meter violations from $3.00 to $6.00. Bill No. S24 — Increasing the City’s Mercantile License Tax from three (3) mills to four (4) mills per dollar on gross receipts. Bill No. 825 — Increasing the tax on outdoor parking lots from 10% to 20%, imposing such tax on the patrons rather than the proprietor and extending said tax to indoor parking facilities and imposing the duty of collection upon the proprietor. Bill No. 826 — Decreasing, the rate of the real estate tax for use by. the City of Philadelphia by $.55 from $2,375 to $1,825 per $100 of assessed valuation. Bill No. 827 — Increasing the Wage and Net Profits Tax from 2% to 3%. Bill No. 828 — Authorizing the School District to impose a tax of five cents (5</;) per. share on -all sales, transfers and deliveries of shares or certificates of stock in- Philadelphia. Bill No. 829 — Authorizing the School District of Philadelphia to raise- its real estate tax from $.42% to $1.10 on each $100 of assessed value of real estate. The Finance Director testified that this money was to be used to defray the increased expenses of the City’s courts. “That the power to tax is peculiarly a power of the legislature [citing authority] has never been questioned in this country and has frequently been asserted by our courts: [citing authorities].” Wilson v. Phila. School District, 328 Pa. 225, 229, 195 Atl. 90 (1937). Dunkard Twp. School Tax Case, 359 Pa. 605, 60 A. 2d 39 (1948); Treaster v. Union Twp., 430 Pa. 223, 242 A. 2d 252 (1968). Cf. Acts of March 4, 1862, P. L. 90, and June 25, 1919, 53 P.S. §12553. Act of April 21, 1949, P. L. 665, §17, 53 P.S. §13131. Most- important is the thrust of the statutory intendment that there be one levy of the tax rate which shall take place prior to the fiscal year. We realize that much of the argument both below and before this Court focused on the question of whether the revenue hills enacted by the Council are void because they were not passed on or before December 15. Because of the way we have decided this case, we find it unnecessary to resolve that particular issue. The provisions of the Act of 1919, supra, if inconsistent with the provisions of the Act of June 21, 1939, P. D. 617, 53 P.S. §15723, would be suspended. The Act of 1939, supra, authorizes cities of the first class to provide for the payment of certain defined deficiencies and indebtedness in certain equal annual installments and “to levy and fix the tax rate, and to make appropriations, and prepare and formulate the financial programs of such cities of the first class upon the basis of the discharge of such deficits and indebtedness” as outlined in the statute. The provisions of this statute as to levying and fixing the tax rate in no wise altered the provisions of the Act of 1919, supra, as to the time for levying and fixing of the tax rate. We find nothing in the Act of 1939, supra, which is inconsistent with those provisions of the Act of 1919, supra, which provide the time for the levying and fixing of the tax rate. Act of April 21, 1949, P. D. 665, §18, 53 P.S. §13133. Impliedly, the City, in fixing the tax rate for the current fiscal year, took the same position because it did levy and fix such tax rate on or before December 15, 1967. The purposes of the several sections of the Charter have been spelled out in Annotations by the framers of the Charter. Section 2-300(1) requires a submission by the Mayor of “a consolidated budget of all operating expenditures” and its enactment by Council thirty days before the end of the fiscal year, thus fixing “by one legislative act the expenditures for each ensuing fiscal year.” (Emphasis added) Section 2-300(6) is intended to serve as a check on the practice of transferring items of the budget at the end of the fiscal year. The’ Annotation to Subsection 6 states: “Some agencies, finding at the end of the fiscal year that they have surplus funds left under certain items, have from time to time requested and received authorization from the Council for spending those surpluses for other purposes.” Under §2-302, there is a warning that “to assure a balanced budget,” Council, when it passes the annual operating budget, must provide such revenue as, in the Mayor's opinion, will balance the budget and that, while the particular revenue measures to be passed rest in Council’s judgment, the Mayor’s estimate of the revenue yield is binding upon the Council. An examination of this Section clearly reveals that the Mayor ¿lone bears the responsibility of fixing the amount necessary to operate the City and the amount of the revenue yield; upon Council, subject to the limitations on the power to tax imposed by the several acts of the General Assembly, rests the responsibility of determining how the revenue is to be raised to meet the Mayor’s estimate of the revenue yield. Section 8-102 provides the method whereby the Mayor is enabled to avoid deficits and to check upon performance, a method which requires that from time to time, at the Mayor’s request, the various officers, department heads, etc., submit to the Mayor, through the Finance Director, estimates of the amount of money required for the ensuing month, quarter or other period of the current fiscal year as the Mayor shall prescribe, and, if such estimate fails to meet the Mayor’s approval, the Mayor has the authority to direct a revision, except in several instances not presently pertinent. Upon approval of any such estimate, it is unlawful for the Finance Director, absent a revision with the - Mayor’s approval, to approve the expenditure or the encumbrance of the appropriation or any part thereof. “An order [that the full amount of an appropriation shall not be expended] would be appropriate if it should appear that revenues will not equal expenditures.” The instant record is silent as to any compliance with the provisions of §8-102. Section 8-107 prohibits additional compensation for extra services for noneivil service employees unless such services are expressly authorized by the Administrative Board (the Mayor, Finance Director and Managing Director) prior to the rendering of such services and a certification of such authorization to the Comptroller. See also: Section 4-300. The instant record shows no compliance with this Section with respect to overtime payments to the policemen, firemen or other noneivil service employees. Act of May 22, 1033, P. L. 853, §201, as amended, 72 P.S. §5020-201. Act of August 5, 1932, P. L. 45, §1, 53 P.S. §15971. In the City’s brief in Phillips v. Tate, 431 Pa. 124, 244 A. 2d 774 (1968, argued November 14, 1967), it was stated as to this surplús: “This reserve for working capital is made necessary by reason of the fact that approximately two-thirds of the City’s revenues are received during the first half of the calendar year and only approximately one-third is received during the last half of the calendar year. Without such a reserve carried over from the prior fiscal year there would be a cash deficiency during the first half of the succeeding fiscal year, constituting the last half of the calendar year. In order to avoid the issuance of tax anticipation warrants or other temporary borrowing it is necessary to have such a reserve.” Part of the Council’s resolution states: “Whereas, The Council has previously recognized the financial emergency confronting the School District of Philadelphia and has authorized the School District to impose taxes to meet its financial emergency; and “Whereas, The Council has also recognized the unanticipated emergencies that have confronted and are continuing to confront the City of Philadelphia, including the unanticipated emergencies within Section 2-301 (a) of the Home Rule Charter set forth in appropriation Bill No. 866 which is recommended to this Council for passage this day pertaining to wage increases for municipal employees and additional funds needed to operate the newly consolidated Courts in Philadelphia; . . . “And Be It Further Resolved, That the appropriations recommended to the Council by Bills Nos. 854 through 865, inclusive, Bill No. 867 and Bill No. 868 are proper and necessary, provide for the payment of expenses which were unanticipated and could not reasonably be anticipated, and in very large measure were of an emergency nature, and are properly within the budget provisions of the Home Rule Charter authorizing transfers in appropriations.” The writer of this opinion joined with the majority in the 4-3 decision in Phillips. In Kittanning Borough v. American Natural Gas Co., 239 Pa. 210, 211, 86 A. 717 (1913), the Court stated: “If anything can be considered as settled under the decisions of our Pennsylvania courts it is that municipalities under the guise of a police regulation cannot impose a revenue tax. This principle has been so uniformly and repeatedly asserted that it is unnecessary to cite authorities in support of it.” See also, Olan Mills, Inc. v. Sharon, 371 Pa. 609, 614, 92 A. 2d 222 (1952); Flynn v. Horst, 356 Pa. 20, 28, 51 A. 2d 54 (1947); William Laubach & Sons v. Easton, 347 Pa. 542, 548, 32 A. 2d 881 (1943). The following testimony by the Finance Director conclusively demonstrates to us that the parking fines were increased primarily to raise additional revenues for the City: “In view of the fact that the recent wage negotiations conducted with the City employees has generated a requirement for an additional $.13 million, it is necessary that additional moneys be provided for the next six months to operate the City of Philadelphia. These tax ordinances that have been introduced will provide — and I will go down each one as it affects the City — {The Finance Director then discussed the wage, net profits and mercantile license taxes]. Parking fine increase in rate from S3 to $6 effective January 1, 1969, will generate $J.S million.” (Emphasis added) Testimony of Edward J. Martin before the City Council Committee of Finance. December 17, 1968. In National Biscuit Co. v. City of Philadelphia, 374 Pa. 604, 615-616, 98 A. 2d 182 (1953), Chief Justice Stern said: “The distinguishing features of a license fee are (1) that it is applicable only to a type of business or occupation which is subject to supervision and regulation by the licensing authority under its police power; (2) that such supervision and regulation are in fact conducted by the licensing authority; (3) that the payment of the fee is a condition upon which the licensee is permitted to transact his business or pursue his occupation; and (4) that the legislative purpose in exacting the charge is to reimburse the licensing authority for the expense of the supervision and regulation conducted by it.” “At least sixty (60) days prior to adoption of the annual operating budget, the Board shall adopt and submit to the Mayor and Council a lump sum statement of anticipated receipts and expenditures for the next fiscal year and a request for authority to levy taxes to balance its budget for the year. . . .” Authority to enact such taxing measures is found in the Act of August 9, 1963, P. L. 640, §1, as amended, 53 P.S. §16101. See, note 27 infra. “The Board of Education shall, at least thirty (30) days before the end of the fiscal year, adopt by majority vote of all its members an operating budget setting forth in lump sum amounts the proposed expenditures of the Board during the next fiscal year . . . and the estimated receipts of the Board during the next fiscal year, including approximate estimates of proposed revenues and all other receipts. The total amount of proposed expenditures shall not exceed the amount of funds available for School District purposes.” (Supplement, Section 12-303(a)) (Emphasis added) The School District does not argue that the revenues are needed to meet unanticipated emergencies. In light of the fact that the School District anticipated these needs in its report to Council on April 3, 1968, it could hardly make such an argument. “(a) The council of any city of the first class, coterminous with a school district of the first class may, by ordinance, authorize the board of public education of such school district to impose taxes for the purposes of such school district on any persons, transactions, occupations, privileges, subjects, and real and personal property which may now or hereafter be taxable by such city for general revenue purposes. . .

OPINION OF THE COURT NIX, Justice. This case is on appeal from the Order of the Commonwealth Court which reversed the Workmen’s Compensation Appeal Board’s affirmance of a Referee’s award of workmen’s compensation benefits to Mabel A. Epler as the result of the death of her husband, Franklin M. Epler. Decedent, Franklin M. Epler, was employed by North American Rockwell Corporation as a laborer and machine operator in its foundry. On the afternoon of May 19, 1972, decedent parked his car in a lot provided by his employer for employees who drove to work. The municipality in which employer’s plant was located had banned on-street parking in the vicinity of the plant, and thereby, required the employer to provide off-street parking facilities for its employees. The employer then established a pecking order in the allocation of off-street parking facilities, allowing managerial and supervisory personnel to park at a site contiguous to the plant while relegating other classes of employees, such as Mr. Epler, to an unpaved lot located across a public street, Park Road, adjoining the employer’s plant. The pecking order for the most desirable contiguous parking places was established by the issuance of parking lot permits to limit access to contiguous places to designated employees. Violation of employer’s directives as to where to park would result in warnings to the employee and disciplinary action for repeated violations. Upon the completion of his usual shift, punching in at 3:15 p. m. on May 19, 1972 and punching out at 12:18 a. m. May 20, 1972, Mr. Epler after saying goodnight to the guard at the gate of the plant, proceeded across Park Road heading toward his car where he had parked in the designated lot on the other side of the public thoroughfare. As he was crossing the road, Mr. Epler was struck and killed by one or two automobiles somewhere near the middle of the road at about 12:38 a. m. It was customary for foundry workers to wash up, take a shower, and change clothes after completion of the shift, and the decedent had apparently done this on the day of the accident since his soiled work clothes were found in a bundle in the roadway. We are called upon to decide whether or not the decedent’s death resulted from an “injury arising in the course of his employment” within the meaning of subsection 301(c)(1) of the Workmen’s Compensation Act. The operative language of section 301(c)(1) provides: “The terms ‘injury’ and ‘personal injury,’ as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury; and wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury. The term ‘injury arising 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.” The first question is whether the decedent was “on the employer’s premises” within the intendment of the Workmen’s Compensation Act. In construing the phrase “on the employer’s premises”, Pennsylvania courts have looked to whether the location of the accident was so connected with the defendant’s business or operating premises as to form an integral part thereof. Wolsko v. American Bridge Co., 158 Pa.Super. 339, 44 A.2d 873 (1945). Several Pennsylvania cases have recognized that a parking lot can be so related to the carrying on of the employer’s business as to constitute an integral part of its operations that accidents occurring thereon are compensable. Vardzel v. Dravo Corporation, 402 Pa. 19, 165 A.2d 622 (1962); Ingersoll-Rand Company v. Workmen’s Compensation Appeal Board, 12 Pa. Cm with. 502, 316 A.2d 673 (1974); Shaffer v. Somerset Community Hospital, 205 Pa.Super. 419, 211 A.2d 49 (1965); Hesselman v. Somerset Community Hospital, 203 Pa.Super. 313, 201 A.2d 302 (1964). Furthermore, the result is not affected by the fact that the parking lot was contiguous to the property on which appellant performed his duties. The Commonwealth Court has properly held that the fact that a parking lot is separated from the employer’s actual business operations or plant by a public thoroughfare is of no significance in determining whether the lot can be considered the employer’s “premises” within the intendment of the Act. IngersollRand Company v. Workmen’s Compensation Appeal Board, et al., supra. Here there can be no question that the parking lot, on which claimant’s vehicle was parked, was an integral part of the employer’s business. In Shaffer v. Somerset Community Hospital, supra, the court observed that: “In determining the instant appeal, we may not close our eyes to the needs of present day society. The automobile has become the universal means of transportation. A hospital must of necessity have a parking lot.” Although the instant case involves a manufacturing plant and not a hospital, the necessity for the establishment of the parking lot was created not for the mere convenience of the plant’s employees, but so that the employer could meet the obligation imposed on it by arrangement with the municipality in which it was located to furnish off-street parking by requiring a special sticker designating the places where employees were to park. Failure to comply with that directive was subject to disciplinary action. Further, the employee is entitled to compensation even where the accident occurs after the completion of the work assignment for a given day. Under established law of this jurisdiction any injury occurring to an employee up until the time he leaves the premises of the employer, provided that it is reasonably proximate to work hours, is compensable. Pineda v. Oliver B. Cannon & Son, Inc., 172 Pa.Super. 625, 93 A.2d 902 (1953); Barton v. Federal Enameling and Stamping Co., 122 Pa.Super. 587, 186 A. 316 (1936). Pennsylvania courts have denied benefits where the time of injury was not reasonably proximate to the time of work. Sheridan v. Glen Alden Coal Co., 160 Pa.Super. 115, 50 A.2d 540 (1947) (25 minutes before work time); Young v. Hamilton Watch Co., 158 Pa.Super. 448, 45 A.2d 261 (1946) (one hour before work time). Those cases are distinguishable from the case at bar because of the temporal proximity between the time of instant claimant’s injury and the time when he left the plant gate. Once it has been established, as in this case, that a parking lot is part of the employer’s business premises, injuries occurring to an employee upon the lot are compensable when the employee’s presence on the lot is temporally proximate to the hours of work. Ingersoll-Rand Co. v. Workmen’s Compensation Appeal Board, supra. Thus it is clear that claimant would have been entitled to recovery under the facts of this case if the fatal accident had occurred while he was on the non-contiguous parking lot preparing to leave for home. Thus the final question left for resolution is whether the fact that the accident occurred upon the public road, which he was required to traverse to reach the parking lot, changes the result. We find no justification in logic or law which would support the conclusion that compensation should be denied, under the facts of the instant case, solely because the accident occurred while the claimant was crossing a public road. Our cases have consistently recognized that the phrase “course of employment” is to receive a liberal construction. Haas v. Brotherhood of Transportation Workers, 158 Pa.Super. 291, 44 A.2d 776 (1945). To employ the distinction between accidents occurring on a public way and a private way. See Kasavage v. State Workmen’s Insurance Fund, 109 Pa.Super. 231, 167 A.2d 473 (1933); Dougherty v. Bernstein & Son, 160 Pa.Super. 587, 52 A.2d 370 (1947); Grazer v. Consolidated Vultie Aircraft Co., 161 Pa.Super. 434, 55 A.2d 538 (1947), under the facts of this case would place undue significance upon a fact that should not here be controlling. The real question is whether the site of the accident was an integral part of employer’s premises. The actual ownership of the area is not necessarily determinative of the question. We are satisfied that there are circumstances where an area can properly be designated as “on the employer’s premises” within the meaning of the Act even though the employer is not the legal owner of that area. A public roadway was deemed to be “on the employer’s premises” written the meaning of the Act, supra, in Meucci v. Gallation Coal Co., 279 Pa. 184, 123 A. 766 (1924). There this Court stated: The word “premises”, as appearing in the Compensation Act, . . . , does embrace [property] used in connection with the actual place of work where the employer carries on the business in which the employee is engaged, (citations omitted) In that decision we recognized that the critical consideration was not the employer’s title to the land but the use of the area in the business operation in which the employee was engaged. In Hesselman v. Somerset Community Hospital, 203 Pa.Super. 313, 201 A.2d 302 (1964) the Superior Court held that a public alley leading to the door of the laundry of the hospital where claimant worked was “on the premises of the employer.” In that case the court found that the alley was an integral part of the employer’s premises even though it recognized that the general public had the right to use the area. In Strunk v. E. D. Huffman and Sons, 144 Pa.Super. 429, 19 A.2d 539 (1941), where the decedent was struck by an automobile while crossing a public road, the injury was held compensable on the ground that the nature of the employer’s integrated business operations, consisting of a store, a hotel and a gasoline station which were separated by the public highway, made that location a part of employer’s premises occupied by the employee while engaged in the employer’s business. In Lints v. Delaware Ribbon Manufacturers, 173 Pa.Super. 540, 98 A.2d 643 (1953) the Superior Court stated: “Where an entrance or an exit is provided by the employer for his employes, or where such exit or entrance is available and intended for use, or is the usual means of ingress or egress ... to the [employer’s] place of business; . . . then such entrance or exit, whether located on property under the control of the employer or not, is part of the employer’s ‘premises’.” It therefore follows that it should not be significant that a portion of the area designated by the employer for egress or ingress is not located upon land owned by the employer. The foregoing decisions reflect the view that the critical factor is not the employer’s title to or control over the area, but rather the fact that he had caused the area to be used by his employees in performance of their assigned tasks. The basis for the compensation is that the employee was in the area where the injury was sustained directly because of his employment. Since the Workmen’s Compensation Act, supra, is not premised upon the wrongdoing or negligence of the employer, but rather is bottomed upon the employment relationship, there is no necessity to require a finding of ownership or control. It is sufficient if the employee is required to be in the area because of the employment. Order of the Commonwealth Court is vacated and the decision of the Workmen’s Compensation Appeal Board awarding compensation is reinstated. ROBERTS, J., did not participate in the decision of this case. POMEROY, J., filed a concurring opinion. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1) (Supp. 1978-79). . We expressly reject the restrictive reasoning of the Commonwealth Court in North American Rockwell Corporation v. Workmen’s Compensation Appeal Board, 21 Pa.Cmwlth. 437, 346 A.2d 379 (1975).

Opinion by Mr. Justice Roberts, In this appeal a school teacher hired pursuant to a temporary professional employee contract seeks to mandamus the School Board to reinstate him although he had received a good faith rating of unsatisfactory by the Board. We believe mandamus will not lie in this situation. On August 17, 1966, appellant Joseph Nicolella, Jr., contracted with the Trinity Area School Board in Washington County to serve for two years as a temper ary professional employee, after which, time he would be tendered a professional employee’s contract (tenure) provided he received a rating of satisfactory during the last four months of the second year. The contract was to continue in effect “. . . until the expiration of two years of satisfactory service rendered to the School District above named by the said Temporary Professional Employe, unless terminated by the Temporary Professional Employe by written resignation presented (60) days before the resignation becomes effective, or by the above mentioned Board in accordance with the provisions of Article 1201 of the School Code [presently Act of March 10,1949, P. L. 30, Art. XI, §1108, as amended, 24 P.S. §11-1108] for the dismissal of unsatisfactory temporary professional employees.” Appellant also entered into a supplemental contract to serve as an assistant wrestling coach. Appellant received a satisfactory rating at the end of the first semester. However, on May 9, 1967, the Assistant Superintendent informed appellant he had been rated as unsatisfactory, the areas of deficiency being “Professional Relationships, Professional Attitudes, Judgment, and Punctuality.” This rating was based upon the anecdotal records of the Principal of the Junior High School. An official rating card approved by the District Superintendent was included with the letter. On June 14, 1967, the District Superintendent notified appellant by mail that in view of his earlier unsatisfactory rating, appellant’s overall rating for the 1966-67 school year was unsatisfactory. Then, on June 23, 1967, the superintendent informed appellant the School Board had voted to terminate his temporary contract due to his unsatisfactory rating but that appellant would be heard if he so requested within ten days. At appellant’s request, hearings were held on August 2, 21, and 25, 1967, after which the Board votéd eight to one to reaffirm its termination of appellant’s contract. On September 14, 1967, appellant filed a complaint in mandamus seeking to compel his reinstatement for the remainder of the two-year period and the procurement of tenure pursuant to a professional employee’s contract unless he again received an unsatisfactory rating. He asserted he could only be discharged according to the procedures of Section 514 of the School Oode, Act of March 10, 1949, supra, 24 P.S. §5-514 which provides for a hearing prior to dismissal. The Board argued preliminary objections before the court en banc, asserting that a mandamus action would not lie and Section 514 was not applicable to temporary employees. The court sustained the objections, holding that mandamus did not lie, Section 514 only applied to permanent employees, and Section 1108, the provision covering temporary employees, empowered the Board in good faith to discharge a temporary employee after an unsatisfactory rating without a hearing. The court, however, granted appellant, leave to amend, which he did, alleging his discharge by the Board had been in bad faith and in disregard of the requirements of the School Code. The Board filed an answer denying appellant’s allegations and requesting the action be dismissed. A hearing was held, at which appellant offered into evidence the records of the hearings before the School Board and presented additional testimony concerning the personal animosity towards him by the Principal and Vice-Principal. He also attempted to suggest his discharge was due to his union activities in the Ameri can Federation of Teachers. The Board denied each of these accusations. The hearing court did not find appellant credible, and after reviewing both the record before the Board and the subsequent testimony, concluded that no basis existed “. . . upon which to decide that any bad faith was involved in the termination of the teacher’s employment and we will therefore find as a fact that there was none.” The Board’s motion to dismiss was granted. Exceptions to the decree nisi were filed, and the court en banc confirmed the hearing court’s action. This appeal ensued. Appellant presses two issues on appeal. His first contention is that mandamus is the appropriate remedy here to restore him to the employment from which he has been illegally removed. We disagree. “Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.” Travis v. Teter, 370 Pa. 326, 330, 87 A. 2d 177, 179 (1952) ; accord, Martin v. Garnet Valley School District, 441 Pa. 502, 505-06, 272 A. 2d 913, 915 (1971); Mullen v. DuBois Area School District, 436 Pa. 211, 217, 259 A. 2d 877, 881 (1969). We can perceive no clear legal right possessed by-appellant and no corresponding duty of the Board on the record before us. Appellant urges that Section 514 of the School Code should control, but we are in agreement with the hearing court that the relevant statute is Section 1108. Furthermore, as noted above, appellant’s employment contract provided for dismissal by the Board pursuant to the provisions of Section 1108 rather than Section 514. Appellant additionally asserts that since the hearing court inadvertently stated in its opinion that a temporary employee could be discharged by a supervisory principal instead of the School Board, somehow the entire proceedings before that court were so prejudicial as to require reversal. In our view, the court en banc made it entirely clear that the complained of language in the hearing court’s opinion was unintended and that no actual holding was made that a supervisory principal might discharge an employee. Moreover, appellant’s argument on this point is entirely unavailing because it is uncontested that it was in fact the School Board which voted to dismiss him. As we view the record, a temporary professional employee was rated unsatisfactory in accordance with the procedures of Section 1123 of the School Code, Act of March 10, 1949, supra, 24 P.S. §11-1123. Such a rating is the only prerequisite necessary for dismissal by the Board absent a showing of bad faith or arbitrary and capricious action on the part of the Board. See, e.g., Travis v. Teter, supra at 330-31, 87 A. 2d at 179. Appellant seeks to bring his appeal within the ambit of Mullen v. DuBois Area School District, supra. However, the cases are entirely dissimilar, for in Mullen, the hearing court specifically determined that the appellant in that case was competent and his dismissal was the result of an arbitrary and capricious exercise of the discretionary power vested in his employers. Our review of the evidence supported the hearing court’s finding. Id. at 215, 259 A. 2d at 879. In the case now before us, the hearing court specifically found that appellant’s rating of unsatisfactory had been in good faith. That finding is amply supported by the record, and appellant’s discharge was accordingly proper. The Board’s fairness is exemplified by its granting appellant a hearing even though not required to do so under the School Code. In effect, appellant by his complaint in mandamus is seeking judicial review of the Board’s proper exercise of its discretion to dismiss him. As was observed in Travis v. Teter, supra: “. . . It is well settled that in a mandamus proceeding a Court can compel a public official who is vested with discretionary power to exercise that discretion; but (unless the discretion is arbitrarily or fraudulently exercised or is based upon a mistaken view of the law) it cannot interfere with or control the official’s discretion of judgment. Expressed another way, it is the discretion and judgment of the official (who is vested with a discretionary power) which prevails and not that of a Court or a jury or a person aggrieved; and a Court cannot compel such official to exercise Ms discretion in a manner which will produce a result which the Court may deem wise or desirable: Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A. 2d 534; Tanenbaum v. D’Ascenzo, 356 Pa. 260, 51 A. 2d 757; Anderson v. Philadelphia, 348 Pa. 583, 36 A. 2d 442; Souder v. Philadelphia, 305 Pa. 1, 156 A. 245.” Id. at 330-31, 87 A. 2d at 179. Accordingly, a complaint in mandamus will not lie in the present case. We therefore need not reach any other issue raised by this appeal. The order of the Court of Common Pleas of Washington County is affirmed. Mr. Justice Jones took no part in the consideration or decision of this case. Section 514 provides: “The board of school directors in any school district, except as herein otherwise provided, shall after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove any of its officers, employes, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct. “On the removal by the board of school directors of any officer, employe, or appointee, such officer, employe, or appointee shall surrender and deliver to the secretary, or other person designated by the board, any and all papers, property, and effects of the school district in his hands at the time of such removal.” Section 1108 provides: “(a) It shall be the duty of the county superintendent of schools or the district superintendent, as the case may be, to notify each temporary professional employe, at least twice each year during the period of his or her employment, of the professional quality, professional progress, and rating of his or her services. No temporary professional employe shall be dismissed unless rated unsatisfactory, and notification, in writing, of suck unsatisfactory rating shall have been furnished the employe within ten (10) days following the date of such rating. The rating of a temporary professional employe shall be done as. provided in section one thousand one hundred twenty-three of this act. “(b) A temporary professional employe whose work has been certified by the county superintendent of schools or the district superintendent to the secretary of the school district, during the last four (4) months of the second year of siich service, as being satisfactory shall thereafter be a ‘professional employe’ within the meaning of this article. The attainment of this status shall be recorded in the records of the board and written notification thereof shall be sent also to the employe. The employe shall then be tendered forthwith a regular contract of employment as provided for professional employes. No professional employe who has attained tenure status in any school district of this Commonwealth shall thereafter be required to serve as a temporary professional employe before being tendered such a contract when employed by any other school district. “(c) Any temporary professional employe who is not tendered a regular contract of employment at the end of two years of service, rendered as herein provided, shall be given a written statement signed by the president and secretary of the board of school directors and setting forth explicitly the reason for such refusal. “(d) Temporary professional employes shaU for all purposes, except tenure status, be viewed in law as full-time employes, and shall enjoy all the rights and privileges of regular full-time employes.” With respect to appeUant’s claim of union prejudice, the court en banc noted: “We gave no credence to that plaintiff’s claim that he was poorly rated because of his alleged union activity. He apparently did not engage in any union activity. He stated the opinion that a union was unnecessary unless ‘Hitlers’ were running the school system. He apparently joined a union but there was no particular activity on the part of the union.” Appellant’s second issue is whether the hearing court and court en banc erred in not finding that the Board had abused its discretion in dismissing him. It should be noted, however, that today a similar situation would have to be considered in light of the Local Agency Law of 1968, Act of December 2, 1968, P. L. , No. 353, P.S. §11301 et seq. (Supp. 1971). Cf. Smethport Area School District v. Bowers, 219 Pa. Superior Ct. 269, 280 A. 2d 632 (1971).

Opinion by Mr. Chief Justice Frazer, Simon P. Romig, who, on January 15, 1932, and for a number of years before, had been employed by the Champion Blower & Forge Company, was, on the date mentioned, injured in the course of his employment and suffered temporary total disability. For more than six months previous to the date of injury, the foundry in which he worked had been operating two days a week, due to the exigencies of the world-wide.financial depression. Romig entered into a compensation agreement with his employer under which he agreed to accept $7 a week, or the minimum payment permitted under the provisions of the Workmen’s Compensation Act. Subsequently, all interested parties joined in a petition to the workmen’s compensation board to determine the weekly wage of claimant for the purpose of ascertaining the weekly compensation rate to which he was entitled. It was stipulated, among other things, that claimant’s wage was paid on a daily basis at the rate of $3.50 per day, and that claimant worked every day the foundry operated during the year preceding the accident. The board, following the provisions of section 309 of the Workmen’s Compensation Act, found the average weekly wage of claimant to be the sum of $19.25. This figure was reached by multiplying the daily wage of $3.50 by a working week of five and a half days. The amount of compensation was accordingly placed at $12.51, or sixty-five per cent of the weekly wage, as provided in section 306 of the act. The employer appealed from the award to the Court of Common Pleas of Lancaster County, which affirmed the finding of the workmen’s compensation board. A further appeal by the employer was heard by the Superior Court, which reversed the judgment of the common pleas on the ground that claimant was not in defendant’s “continuous employment,” inasmuch as he worked only two days a week, and for the further reason that it would be unjust to the employer to sustain an award of compensation in an amount greater than the actual wages of the injured employee. This appeal by claimant is from the judgment of the Superior Court. The question presented for our consideration is the determination of the proper amount of compensation payable to claimant under the facts as already outlined. This involves an examination of the Act of June 2, 1915, P. L. 736, as amended (the Workmen’s Compensation Act). By the terms of the act, the method used in determining the weekly wage of a claimant depends upon the type of employment in which he is engaged. Except for excluding from its operation persons whose employ ments are casual in character, the act mentions only two types of employment, — seasonal and continuous. In the case of seasonal occupations, the employee’s weekly wages are taken to be one-fiftieth of the total wages which he has earned from all occupations during the year immediately preceding the accident. As to continuous employments, section 309 of the act provides: “In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour, or by the output of the employee, his weekly wages shall be taken to be five and one-half times his average earnings at such rate for a working day, and using as a basis of calculation his earnings during so much of the preceding six months as he worked for the same employer: Provided, however, that if the employee regularly and habitually worked more than five and one-half days per week, the weekly wage shall be found by multiplying his average earnings for working day by six, six and one-half, or seven, according to the customary number of working days constituting an ordinary week in his occupation or trade.” It is obvious that claimant was not engaged in a seasonal occupation. The argument is consequently made on behalf of appellant that his work being neither casual nor seasonal must necessarily be considered continuous, since no other classification of employment exists in the act. We are constrained to the same conclusion, so far as concerns the method of determining claimant’s compensation, by other considerations, especially the meaning of the phrase “continuous employments.” The Superior Court took the view that employment could not be continuous, in the sense of unbroken or uninterrupted, where the employee worked only two days a week. That court’s opinion, however, admitted that an employee who was prevented from working by strikes, illness, or other temporary interruptions would nevertheless be considered in continuous employment. We are unable to understand how the situation is altered where the employee is prevented from working by á restricted schedule of operation made necessary by economic conditions. The employment is continuous in that the status of employer and employee persists between the parties even though no work is done on a particular day. Claimant worked only two days a week, and was paid by the day, but a new contract of hiring was not created each week. In other words, the employee was not discharged after each day’s work and reemployed when the foundry resumed operation. He was simply paid each week on the basis of the number of days on which the plant was operated. His employment was continuous, although the days on which work was performed were broken in sequence through no fault of his own. We are of opinion the language of the act indicates the intention of the legislature to make five and one-half days the minimum working week for purposes of fixing compensation. No formula is provided for ascertaining the compensation payable when the employee regularly works less than five and one-half days, although full instructions are given for computing the weekly wage where the claimant works more than five and a half days. Even though an employee, through no fault of his own, works less than five and a half days over such an extended period that the shorter number of hours becomes the normal and regular working week, what standard are we to apply in computing the compensation payable if the five and one-half day standard is not taken? Should the amount of wages actually received be the basis for estimating compensation, or shall we take a percentage of the amount actually earned? In the latter case the figure reached may well be below the f7 minimum prescribed by the act. No doubt it would be equitable to consider each case separately and arrive at a sum for compensation appropriate to the individual circumstances, but no such authority is conferred upon either the workmen’s compensation board or the courts. We must take the law as we find it and apply the rules there set forth. Nor can we obtain assistance from the cases cited by counsel. The precise point has not heretofore been decided in Pennsylvania, and the cases from other jurisdictions can be distinguished, not only on their facts, but also because the language of the statutes involved is entirely dissimilar. The principal reason advanced by appellee for sustaining the judgment of the Superior Court appears to be the injustice to the employer of requiring him to pay a larger sum in compensation than was received by the injured workman in wages. We are not convinced this results in actual inequality. In the first place, awards of compensation permitted by the act are not excessive, even when estimated on the basis of a five and a half day week. In times of prosperity, when high wages were paid and plants operated at capacity, the maximum compensation for an injured workingman rose no higher than $15 a week. This sum was hardly a figure which permitted an extravagant scale of living. The owner of a concern owes a duty to those who work for him and that duty extends at least to the point of providing adequate compensation for those employees who suffer injuries. Although we have not discovered precedents exactly in point for the question now before us, and none have been indicated by counsel, there are cases in which the amount designated as the weekly wage, for purposes of fixing the compensation, was higher than the sum actually received by the employee. In O’Donnell v. South Fayette Twp. School Dist., 105 Pa. Superior Ct. 488, the weekly wage of claimant was estimated at $20 despite the fact she received only $10. And see Jensen v. Atlantic Refining Co., 262 Pa. 374, in which claimant’s daily wage, considered from the point of view of elapsed working days, was $2.39, yet compensation was determined upon the basis of a daily wage of $3.39. The rule applied in the Jensen Case was upheld in Rakie v. Jefferson & Clearfield Coal & Iron Co., 262 Pa. 444, under similar facts. See also Bennett v. Fertig, 162 A. 95, and Beaver Dam Coal Co. v. Hocker, 202 Ky. 398. In the present case, we find nothing to indicate that the foundry in which claimant was injured and had been continuously employed for years may not soon resume operation on a five and a half day schedule. In such case the normal method of computing the weekly wage would be followed. Must the present claimant be prejudiced because he was injured at a time the plant was operating on a restricted schedule? We are of opinion, after full consideration of the question, that the five and a half day week was intended by the legislature to be the method by which compensation payments are to be fixed, based upon the daily wage. If this method of computation is not applied, injustice and inequalities between employees in the same establishment must result, and there will be no standard of measurement except the number of days worked in the week of the accident. Thus, if in the first week of a month there was but one day’s employment, in the second week three days, in the third week five and a half days, and in the fourth week, when the accident happened, but one day, the injured man would receive compensation only on the basis of the one day, whereas had he been injured on the first day of the previous week, the measure of his remuneration would have been on the full five and a half day basis. His fellow workman, employed as he was, injured in the third week, would receive the full compensation provided by the act, whereas he, injured in the fourth week, would receive a much smaller compensation for his injury. We think no such inequalities could have been intended. The judgment of the Superior Court is reversed and the judgment of the court of common pleas reinstated at the cost of appellee.

Per Curiam. When this court determined, as it did since the argument in Stoever v. Rice, 3 Whart. Rep. 24, that a sale by a sheriff is attended with the ordinary consequences of a sale by an individual, it decided the point before us. The purchaser may not be entitled to the possession or the rents and profits before his deed has been acknowledged, but he has, by the contract, an inceptive interest in the soil, which may be bound by a judgment, on the principle of Clarkhuff v. Anderson, 3 Binn. 4, and which, when perfected by payment and a conveyance, gives the incumbrancer, by relation, the benefit of his security to the extent of the whole estate. The plaintiff therefore was clearly entitled to priority. Judgment affirmed.

Opinion by Mr. Justice Jones, This appeal involves a challenge, successful in the court below, to the validity of a borough ordinance which seeks to regulate, within the territorial limits of the borough, the future mining of anthracite coal by the strip mine method. Since 1950, Harris-Walsh, Inc. (Harris-Walsh), has been engaged in the removal of anthracite coal by strip mining within the limits of the Borough of Dickson City (Borough), Lackawanna County. On June 28, 1963, the Borough adopted an ordinance, later amended on December 17, 1963, regulating future strip mining operations within the Borough limits. In accordance with the provisions of §5 of this ordinance, the Borough, by resolution on February 10, 1964, required that Harris-Walsh furnish a bond in the amount of $80,666 on or before February 17, 1964. On February 18, 1964, Harris-Walsh, averring that the ordinance was “illegal, unlawful and unconstitutional” for seventeen stated reasons and that it had been advised that, if the required bond was not posted, the Borough would invoke the ordinance-provided criminal penalties, instituted an equity action in the Court of Common Pleas of Lackawanna County against the Borough and requested a preliminary injunction. The court preliminarily restrained the Borough from enforcing the ordinance against Harris-Walsh. Thereafter, various hearings were held and, on October 5; 1964, the court entered a decree nisi which held the. ordinance invalid and permanently enjoined the Borough from its enforcement. Thereafter, the Commonwealth of Pennsylvania was permitted to intervene. On March 10, 1965, the court dismissed exceptions to its decree nisi and entered a final decree from which the Borough now appeals. Initially, we must consider whether the court below, sitting as a court of equity, had jurisdiction, to entertain this action to restrain the enforcement of this ordinance. Although none of the parties to this action question equity’s jurisdiction — in fact, the parties agree equity has jurisdiction — nevertheless, it is our duty to inquire into the existence of jurisdiction. We have recently said: “Jurisdiction can be raised at any' time, even at the appellate level and by the appellate court itself: [citing authorities]”: (Emphasis supplied) Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 185, 199 A. 2d 430. If at law there exists a remedy, complete and adequate in nature, equity will not assume jurisdiction; absent such a remedy, equity may act. A remedy at law may be provided under the statute or the ordinance the validity of which is attacked, but, unless such statute or ordinance provides a remedy adequate “to the task of resolving plaintiffs’ objections,” the mere existence of such remedy will not preclude the assumption of equitable jurisdiction: Bliss Excavating Co. v. Luzerne County, 418 Pa. 448, 451, 211 A. 2d 532. In the case at bar, does an adequate remedy at law exist? The only section of this ordinance which might be construed as remedy-providing is §8 which provides criminal penalties for violation of the ordinance but such remedy, which would require subjection to a criminal prosecution, is not of such adequacy as to oust equity of jurisdiction. No other remedy would be available to adequately meet this challenge to the validity of the ordinance. By way of contrast, recently in Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, supra, a group of strip mine operators instituted an. action in equity which challenged the validity of a county zoning ordinance which, inter alia, purported to regulate strip mining within the territorial limits of the county. In Bliss, both the zoning ordinance and the enabling statute provided administrative and judicial procedures sufficient to adequately determine all possible questions raised by the strip mine operators; we, therefore, held equity lacked jurisdiction to entertain that action. Unlike Bliss, the instant ordinance provides no such adequate remedy; therefore, equity does have jurisdiction to entertain this action. Two questions the Borough presents on this appeal: (1) has the Commonwealth of Pennsylvania preempted the field of regulation of strip mining of anthracite coal so as to prohibit the enactment by the Borough of this, strip mine ordinance? (2) did the chancellor err in excluding evidence as to relative conditions relating to the backfill of stripping pits within and without the Borough? Although the mining of anthracite coal by the strip mine method has been in p./ogress for many years, it was not until 1947 that the legislature took steps to protect the public’s interests by a regulation of such industry. In the meantime the strip mining of anthracite coal had created in the anthracite coal field in Northeastern Pennsylvania an intolerable situation. In disregard of the interests of the public, the strip mine operators scarred and defaced the region, removed the overburden from the coal and piled it in huge and unsightly refuse banks which constituted potential fire hazards, created holes, open pits and huge craters in the terrain which were left unfilled and in such condition as to constitute potentially dangerous' traps for unwary children and adults, converted vast areas of scenic beauty into unsightly and ugly surroundings and even conducted their mining operations in close proximity to the yards and homes of the public: in short, these operators created a situation which adversely affected the properties, the safety and the general welfare of the public in the area. The complete indifference of government on the state level to the creation and existence of this intolerable situation. up until 1947 is beyond understanding; even now, the condition remains but slightly alleviated. Prior to 1947, the only legislative step taken in connection with strip mining was the passage of a statute in 1941; the purpose of that statute was to protect “the health and safety of persons employed” in stripping. operations in both the anthracite and bituminous coal fields; this statute did not, nor did it purport to, regulate the operation of the industry. On June 27, 1947, the “Anthracite Strip Mining Law” was passed (Act of June 27, 1947, P. L. 1095, §1 et seq., 52 P.S. §681.1 et seq.). Its stated purpose was as “an exercise of the police power to provide for the improvement and conservation of lands affected by the mining of anthracite coal by .the open pit or strip mining method; to prevent the combustion of such coal and the pollution of rivers and streams and improve the use and enjoyment of such lands; to preserve the value of such lands for taxation, to decrease and prevent soil erosion and aid in the protection of game and wild life; and generally to provide for the public safety, health and general welfare.” (Act of 1947, supra, §1, 52 P.S. §681.1). The 1947 statute included provisions providing for the issuance of permits to, and the filing of bonds by, strip mine operators, blasting, back-filling, fire prevention, .drainage, replanting of stripped areas and the locations of operations in relation to highways, homes and public buildings and was applicable to all strip mining operations in the anthracite coal field. On August 13, 1963, the législature extensively revised and amended the 1947 statute and amendments thereto by a statute entitled the “Anthracite Strip Mining and Conservation Act” (Act of August 13, 1963, P. L. 781, §1 et seq., 52 P.S. §681.1 et seq.). The stated purpose of this statute was “the regulation of mim ing of anthracite coal by the open pit or strip mining method and for the conservation and improvement of lands affected directly or indirectly by such mining; requiring operators to be licensed, to pay license fees, to secure permits to engage in strip mining and to file bonds conditioned for compliance with this act; requiring backfilling of stripping pits and leveling and planting lands affected to prevent erosion and the pollution of waters and to protect public health, safety and web fare; .conferring powers and imposing duties upon thé Department of Mines and Mineral Industries; providing for appeals, and imposing penalties, and making appropriations.” The thrust of the Borough’s contention is that, even though it has enacted legislation dealing with the regu lation of anthracite coal strip raining, the Commonwealth has not preempted the field to the exclusion of legislative action in such field by political subdivisions, such as the Borough. The court below held that the Commonwealth has preempted the field. The validity of that ruling must- now be determined. In a landmark case, Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 380, 381, 77 A. 2d 616, this Court, speaking through Mr. Justice (later Chief Justice) Steen, enunciated the appropriate criteria for determining whether the Commonwealth, to the exclusion of its political subdivisions, has preempted by legislation the regulation of certain activities: “(1) There are statutes which expressly provide that nothing contained therein should be construed as prohibiting municipalities from adopting appropriate ordinances, not inconsistent with the provisions of the act or the rules and regulations adopted thereunder, as might be deemed necessary to promote the purpose of the legislation. On the other, hand there are statutes which expressly provide that municipal- legislation in regard to the -subject- covered by the State act is forbidden. Then there is a third class of statutes which, regulating some industry or occupation, are silent as to whether municipalities are or are not permitted to enact supplementary legislation or to impinge in any manner upon the field entered upon by the State; in such cases the question whether municipal action is permissible must be determined by an analysis of the provisions of the act itself in order to ascertain the probable intention of the legislature in that regard. It is of course self-evident that a municipal ordinance cannot be sustained to the extent that it is contradictory to, or inconsistent with, a state statute: [citing an authority]. . . . municipalities in the exercise of the police power may regulate certain occupations by imposing restrictions which are in addition to, and not In conflict with, statutory regulations: [citing authorities]. But if the general tenor of the statute indicates an intention on the part of the legislature that it should not he supplemented by municipal bodies, that intention must be given effect and the attempted- local legislation held invalid: [citing authorities].” In Department of Licenses v. Weber, 394 Pa. 466, 468, 469, 147 A. 2d 326, Mr. Justice Musmanno, speaking for this Court said.: “Of course, it is obvious that where a statute specifically declares it has planted the flag of preemption in a field, all ordinances on the subject die away as if they did not exist. It is also apparent that, even if the statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention, all ordinances touching the topic of exclusive control fade away into the limbo of ‘innocuous desuetude’. However, where the Act is silent as to monopolistic domination and a municipal ordinance provides for a localized procedure which furthers the salutary scope of the Act, the ordinance is welcomed as an ally, bringing reinforcements into the field of attainment of the statute’s objectives.” Through an examination of the state’s legislation on the subject, we must seek to determine, if possible, whether the legislature has manifested an intention to preempt the field of regulation of the anthracite strip mining industry. Section 10 of the “Anthracite Strip Mining and Conservation Act” (Act of 1963, supra, §10, 52 P.S. §681.20c) provides: “Except as herein provided, all coal stripping operations-coming within the provisions of this act shall be under the exclusive jurisdiction of the department [Department of Mines and Mineral Industries of the CommonAvealth] and shall be conducted in compliance Avith such reasonable rules and regulations as may be deemed necessary by the secretary [Secrétary of Mines and Mineral Industries of the CommonAvealth] for the health and safety of those persons engaged in the Avork. The secretary through the mine inspectors shall have the authority and poAver to enforce the provisions of this act and the rules and regulations promulgated thereunder by him.” (Emphasis supplied). The clear implication of this language in the statute is exclusive jurisdiction is vested in the Department over the totality of all coal stripping operations Avhich fall Avithin the statute, i.e., every “stripping pit located Avithin the boundaries of a mine inspection district” (Act of 1963, supra, §3, 52 P.S. §681.3) in which anthracite coal is mined or recovered “by removing the material which overlies the coal bed in its natural or previously mined condition” (Act of 1963, supra, §3, 52 P.S. §681.3). What does the phrase “exclusive jurisdiction” commonly and ordinarily connote or mean? Almost a half-century ago, the Superior Court in Commonwealth v. Supt. House of Correction, 64 Pa. Superior Ct. 613, 623, interpreting “exclusive jurisdiction” as used in a statute, said: “Nor can there be any doubt as to the meaning the legislature intended to give to the word exclusive. In its usual and generally accepted sense, as given by lexicographers, and in the ordinary speech of the people, it means, — possessed to the exclusion of others; appertaining to the subject alone, individual, sole; to confer exclusive jurisdiction on one court deprives all other courts of such jurisdiction, whether therefore exclusive or concurrent, conferred by statute. 3, Words and Phrases, 2550; possessed and enjoyed to the exclusion of others; debarred from participation and enjoy ment to any other; nor including, admitting or pertaining to any other; opposed to inclusive: 17 Cyc. 871-2.” See also: The Oxford English Dictionary, (1983), Vol. III, p. 384. The word “exclusive” is of Latin derivation — “ex” meaning “out” and “claudere” meaning “to shut”. “Exclusive” precludes any idea of co-existence and its usual, ordinary and generally accepted meaning is “sole”, “undivided” and “possessed to the exclusion of others”. Both by statute and decisional law we are required to construe words and phrases according to their common and approved usage; statutes are presumed to employ words in their popular and plain everyday sense and the popular meaning of such words must prevail unless the statute defines them otherwise or unless the context of the statute requires another meaning: Act of May 28, 1937, P. L. 1019, §33, 46 P.S. §533; Commonwealth v. McHugh, 406 Pa. 566, 569, 178 A. 2d 556; Jury Estate, 381 Pa. 169, 176, 177, 112 A. 2d 634. It is clear that the legislature has not specifically defined the phrase “exclusive jurisdiction” in the statute. Therefore, as it must, the Borough relies upon the provisions and context of the statute as mandating the assignment to the phrase “exclusive jurisdiction” a meaning other than its usual and ordinary meaning. The Borough contends that, when the legislature employed the phrase “exclusive jurisdiction” in §10 of the statute, an examination of the statute reveals that it intended to grant an undivided and exclusive jurisdiction (a) only in respect to the rules and regulations which affect the health and the safety of workers in the industry or (b) only to administer the provisions of the 1963 statute. The Borough would limit the exclusive jurisdiction of the state to the area of the safety of the workers in the industry by reason of what might be termed a grammatical argument. The important sentence in §10 con sists of two clauses: “all coal stripping operations coming within the provisions of this act shall be under the exclusive jurisdiction of the department” AND “shall be conducted in compliance with-such reasonable rules and regulations as may be deemed necessary by the secretary for the health and safety of those persons engaged in the work”. Relying on its supposition, that, the 1941 and 1959 statutes, supra, which deal with the safety of the workers in the industry might be considered to have been repealed, impliedly, by the 1963 statute; the Borough contends that the legislature wanted to remove any doubt that might arise as to the continued vitality of the 1941 and 1959 statutes and for that reason inserted into §10 of the 1963 statute the language in the second clause of the sentence. Such is the background of the Borough’s argument based on the word “and” connecting the two clauses. With that background in mind, the Borough then argues that the second clause modifies the first clause of the sentence and that such modification requires the conclusion that exclusive jurisdiction to the department and the secretary extended only in respect to the formulation and enforcement of rules aimed aLt the protection of the health and safety of workers in the industry which is the subject of the second clause. Of course, if that argument is sound, then there, is no express preemption of the field of anthracite strip mining by the Commonwealth to the exclusion of legislative action by its political subdivisions. Neither the 1963 statute nor any prior statutes which it amends, either by title or by provisions, purports to provide measures for the protection of the workers in the industry; the whole thrust of the 1963 statute and its predecessors is the protection of the public. A reading of the provisions of these statutés makes clear beyond any question the .purpose of these statutes. Viewed in such light, it would be absurd to attribute to the legislature’s employment of the phrase “exclusive jurisdiction” an intention to confine such exclusive jurisdiction to a field not covered by the provisions of the statute. We cannot interpret the grant of “exclusive jurisdiction” in so limited and restricted manner; to do so would render absurd, the legislative intention. . The Borough next contends that the phrase “exclusive jurisdiction” must be confined to the administration of the provisions of the statute and, since the Borough does not by its ordinance intend to administer the provisions of the state statute, the field in which the Borough intends to act has not been preempted; In this connection another provision of the 1963 statute must be noted. Section 10 provides, inter alia, for the creation within the Department of Mines and Mineral Industries of the Commonwealth of a new Bureau to be known as the “Bureau of Anthracite Conservation and Reclamation”. To this Bureau, §10 expressly commits the “power” and “duty” to “administer all of the laws of this Commonwealth governing and relating to the mining of anthracite coal by the open pit or strip method and, subject to the approval of the secretary, to exercise all the powers and perform all the duties by law vested in and imposed upon said secretary in relation to such open pit or strip mining”. (Emphasis supplied). Act of 1963, supra, §10, 52 P.S. §681.20b. Having spelled out by whom the provisions of the 1963 statute, as well as all other statutes dealing with anthracite strip mining, are to be administered the legislature would indeed be guilty of redundancy if it intended that the grant of exclusive jurisdiction contained in another sentence of the same section be restricted merely to the administration of the provisions of the statute. When the legislature wanted to make clear by whom the statute was to be administered it did so and no further grant of power to administer the statute was necessary. ... Neither argument of the. Borough has merit. The words “exclusive jurisdiction” must, be given their ordinary, plain and everyday meaning; there exists no reason to assign any other-meaning. Giving these words their plain meaning it. is clear beyond question that the legislature, by the employment of such words, intended that the Commonwealth, and only the Commonwealth, shall regulate the anthracite strip mining industry. These words, clear and plain in meaning, preclude legislative action in the same field by any political subdivision such as the Borough. The Commonwealth in. §10. of the statute has expressly preempted the field to the exclusion of the Borough and, in so ruling, the court below was correct. In view of the conclusion reached, we need not seek whether the statute by implication has preempted the field nor whether the statute and the ordinance so com flict that the latter must fall. Moreover, we need not inquire into the .validity of the rejection by the court, below of the evidence as to backfill conditions .within and without the Borough, the second question raised on this appeal. . . - It may not be inappropriate to note that the reason why the Borough passed this ordinance was its belief that the. Commonwealth has not acted adequately in attempting to regulate this industry and that the legislation enacted was simply a “half measure”, weak and supine. The belief of the Borough may be well founded. However, the adequacy of the legislation to cope with the problem and the wisdom or the lack thereof on the part of the legislature in framing this legislation is not for us to determine. Such questions are solely for the legislature to determine and upon, their province wé must not encroach. Decree affirmed. Eách party to pay own costs. Mr. Chief Justice Bell and Mr. Justice Roberts concur in the result. This coal is owned by Parmoff Corporation and Moffat Coal Company, Inc., which, had a contract of mine-lease with Parmoff to strip mine the coal. Harris-Walsh is strip mining the coal under agreement with both Parmoff and Moffat. By court order, Parmoff and Moffat were permitted to be joined as parties plaintiff in this .litigation. Section 4 of the ordinance requires that a strip mine operator, within one month after a strip mine operation is abandoned, “back-fill all stripping pits, so that the surface of the soil is restored as close as practicable to its natural condition as it existed prior to such mining.” In implementation of §4, §5 requires the strip mine operator, as a prerequisite to commencing to strip mine, to furnish a bond conditioned on compliance with §4 and the amount of the bond.is to be “based upon the estimate of the reasonable cost of such backfilling.” The Commonwealth in the court below took the position the ordinance was valid. A fine of not more than $100 and, in default of the payment thereof, not more than BO days imprisonment: each day’s violation constitutes a separate offense. Cf. Boggs v. Werner, 372 Pa. 312, 94 A. 2d 50; Palmer v. O’Hara, 359 Pa. 213, 58 A. 2d 574; Commonwealth v. Soboleski, 303 Pa. 53, 153 A. 898. The Borough Code (Act of May 4, 1927, P. L. 519, §1010, as amended, 53 P.S. §46010), which provides for appeals questioning the legality- of an ordinance, affords no adequate relief. Cf. Wood v. Goldvarg, 365 Pa. 92, 95, 74 A. 2d 100. Jurisdiction in the dual sense, that is, neither an adequate remedy at law nor an existing statutory procedure. The Act of June 18, 1941, P. L. 133, §1 et seq., 52 P.S. §1471 et seq. was amended by the Act of September 23, 1959, P. L. 958, §1, 52 P.S. §1472. The 1959 statute amended the 1941 statute in two respects: (a) it made the 1941 Statute’s provisions applicable to every strip mine operation in the Commonwealth; (b) it increased the penalties for violation qf the statute. The 1941 statute was specifically saved from repeal when the legislature in 1947 took the first step toward regulation of the industry with the passage of the “Anthracite Strip Mining Law”, supra (52 P.S. §681.22) and no later legislation has, either expressly or impliedly, repealed the 1941 statute, as amended. In this connection, it might be noted that the Borough, in interpreting §10 of the “Anthracite Strip Mining and Conservation Act of 1963”, supra, argues that, when the 1-941 statute was amended by the 1959 statute, the 1941 statute became a new statute and, therefore, the legislature in 1963, to eliminate the possibility that the 1941 and 1959 statutes might be considered as repealed by the 1963 statute, inserted §10 in the 1963 statute. Such argument is utterly without mérit. Both the 1941' and 1959 statutes, which provide for the health and'the safety of workers in the strip mine industry, remain in full force and effect and would have so remained in effect without the language of §10 of the 1963 statute. Between 1947 and 1963, the 1947 statute was amended by the Acts of May 18, 1949, P. L. 1471, §1, 52 P.S. §§681.6, 681.8, 681.9; of August 24, 1951, P. L, 1364, §1, 52 P.S.' §681.11; of July 2, 1953, P: L. 338, §§1, 2, 3, 4, 52 P.S. §§681.12, 681.14,' 681.16- 681.19’; of August 19, 1953, P..L. 1112, §1, 52. P.S. §§681,14, 681,16, 681.19; of April 4, 1956, P. L. (1955) 1398, §§1, 2, 9, 52 .P.S. §§681.3, 681.4, 681.5, 681.11, 681.15; of September 2,' 1961, P. It Í194, §§2-13, inc, 52 P.S. §§681.3, 681.5, ’ 681.6, 681.7, 681.8, '681.9, 681.11," 681.15, 681.16, 681.17, 681.18, 681.19, ‘681.20. As'to-the basic issue on this appeal, the particular provisions of these amendments are unnecessary to be noted. As to preemption by the Congress of the United States- to the exclusion of state legislation in. a field; see, Commonwealth v. Nelson, 377 Pa. 58, 104 A. 2d. 133; Whitehall Laboratories v. Wilbar, 397 Pa. 223, 154 A. 2d 596. This clause is of no importance on the issue raised on this appeal.

The opinion of the court was delivered, by Sharswood, J. In the nature of the case there is not and ought not to be any limitation of time to the power of a court to open a judgment entered by default for want of appearance. The lien of the judgment on real estate is not thereby disturbed, and even if there should be an outstanding fieri facias, and a levy under it on personalty, it is always in the power of the court to impose such terms as will preserve the lien of the execution or substitute sufficient security in the place of it. Thus no injury is done to the plaintiff beyond the delay. On the other hand, the liability of the sheriff and his sureties for a false return of “ served” to the original process, may be entirely lost to the de fendant, and a plaintiff, conscious of the inherent weakness of his cause, may purposely lie by, and suffer his judgment to sleep until the time for moving to open the judgment shall have elapsed. Thus irreparable injustice might be done to a defendant entirely ignorant that any proceeding had been instituted against him. The opening of such a judgment is, therefore, a matter purely within the discretion of the court below, which cannot be reviewed here. Nor for the same reason can we sustain the second error assigned to the order of the court, in granting leave to the defendant to withdraw his pleas and file a demurrer to the declaration. Had the plaintiff taken a writ of error on the order of the court of March 26th 1869, striking off the judgment of September 27th 1868, entered on the verdict of a jury, without taking any subsequent steps in the cause, there would be much reason to think that it could not be sustained as the record now stands. Opening a judgment and striking it off are two entirely different things. No court has power to strike off a judgment regular on its face. If there was a fact which ought but did not appear of record, which would render it irregular — as for example such as is alleged here, a point of law reserved at the trial — that fact should have been put upon the record by an amendment nunc pro tunc. The plaintiff, however, acquiesced in the order of the court, and went on to trial. It is entirely too late after this to take advantage of the error. The remaining assignments of error all depend upon a single question, and may be considered together. The case, which was an action of debt to recover a legacy, went to trial upon a plea of nil deiet and it may be some other pleas. There was also a plea of want of assets. The learned judge below ruled, and so instructed the jury, that the question for them was whether there were personal assets in the hands of the executor sufficient to pay the claim of the plaintiff, and that if they found that there were not, their verdict should be for the defendant. In this we think there was error. The plea, of want of assets was not before the jury for their determination. Their power was only to decide the issues upon the other pleas. The question of assets is committed by the law to another and more appropriate tribunal — the Orphans’ Court. The Act of March 21st 1772, 1 Sm. L. 383, entitled “ An act for the more easy recovery of legacies,” provided in the third section, “ that the respective courts, where the said actions shall be commenced upon the plea of the want of assets to pay all debts and legacies, shall appoint auditors to examine the accounts of the executors, &c., and upon their report the court shall award execution for such amount as shall be found payable to the plaintiff from the assets, and the judgment shall remain a security for the payment of the remainder of the said legacies and costs, when sufficient assets for the payment thereof come to the executors’ hands. This act, which was a temporary one, but made perpetual by Act of October 9th 1779, 1 Sm. L. 473, was a re-enactment of a former temporary Act of February 3d 1742-3, 1 Miller 150, which was continued from time to time and then expired. This machinery was cumbrous and expensive and to be repeated in every action, and accordingly in pursuance of a general and wise policy of committing all settlements of decedents’ estate to the Orphans’ Court, the Act of February 24th 1834, Pamph. L. 83, which supplied and superseded the Act of 1772, introduced a more simple and efficient course .of procedure. By the fifty-third section of that act, if the executor shall plead to an action for a legacy, want of assets, without any other plea, no further proceedings shall be had until an account shall have been taken in the proper Orphans’ Court; and by the fifty-fourth section, “If any other pleas be pleaded by such executor, the issue thereon shall be decided in due course, as in other cases” — and after judgment the executor may aver want of assets, and thereupon execution shall be stayed until such account is taken as is provided in the preceding section. “ The issue thereon” is ¡plainly the issue upon the other pleas, rather than the plea of the want of assets. It follows then clearly that the issue on the plea of want of assets was not before the jury. It is not referred to them by the law to try and decide ; but after verdict deciding plaintiff’s right to the legacy, and its amount upon the other issues, the question of assets wherewith to pay it, and what proportion the plaintiff shall receive, if anything, if the assets are insufficient to pay all the legacies, is referred to a subsequent proceeding in the Orphans’ Court. It may be true that by the residuary clause in the will of Josiah Hutchman, of which, however, we have not been furnished with a copy, blending together his real and personal estate, the legacies were charged upon the land; and it certainly is true that by the fifty-ninth section of the Act of 1834, the sole remedy of the legatee to reach the land is now by bill or petition in the Orphans’ Court: Downer v. Downer, 9 Watts 60; Strickler v. Sheaffer, 5 Barr 240; Miltenberger v. Schlegel, 7 Id. 241. When a legacy is exclusively payable out of the land in possession of the heir or the devisee, this is the only remedy. But this is not a proceeding to charge the land. The primary fund for the payment of all legacies, whether charged on land or not, unless special provision is made to the contrary, is the personal estate. “ The rule is general,” says Mr. Roper, “that in the absence of contrary intention, the personal estate is the first and natural fund for the payment of debts and legacies; and the real estate is only to- be resorted to in aid of the former:” 1 Roper on Legacies 463. “ When the real estate is merely charged with those demands, the personal assets are to be applied in tbe first place towards tbeir liquidationIbid. 574. The plaintiff, therefore, not only had the right, but it would seem was bound to proceed against and exhaust the personal estate before she could resort to her remedy against the land. It is not true then, as contended by the plaintiff, that the plea of no assets had the effect to oust the jurisdiction of'the court, and therefore should not have been allowed to be filed under the order' of the court in opening the judgment, that no objection should be taken to the form of the action, or the jurisdiction of the court. Judgment reversed and venire facias de novo awarded.

OPINION OF THE COURT FLAHERTY, Justice. Between November 13 and November 25, 1981 one David Crater and the appellants in this case, Dauntel Evans and Christopher Nolen, allegedly committed approximately nine house burglaries in the Middletown, Pennsylvania area. On November 21, 1981, according to the testimony of Crater, the three also committed a robbery of Ritchie’s Bar, also in Middletown. According to Crater, the robbery of the bar commenced when Nolen and Evans waited in the car while Crater “cased” it. When Crater returned to the car, he reported that Ritchie’s probably was not a very lucrative target, but Nolen and Evans decided to go through with the robbery anyway. Armed with handguns, their faces masked, Nolen and Evans then went into the bar while Crater waited outside in the getaway car. Shortly after they went inside, Crater heard three shots and Nolen and Evans came running out. As the three sped off, Nolen said that he had shot someone. The person shot was Mr. Ritchie, the proprietor of the bar. He died from an abdominal wound inflicted by a .38 caliber handgun. On November 24, 1981, three days later, Crater was arrested on an unrelated matter. During transportation to his arraignment, after Miranda warnings were given, he answered questions put to him by police officers concerning the Ritchie homicide. In his statement, Crater implicated Nolen and Evans as the other participants in the Ritchie murder. He also told police how the three planned to rob the bar, how he retrieved what was to become the murder weapon from safe-keeping for use in the robbery, and how after the robbery, he disposed of the gun by throwing it in a creek. As a result of information provided by Crater, Nolen and Evans were charged with and brought to trial for criminal homicide, criminal conspiracy and robbery. A jury, sitting in the Court of Common Pleas of Dauphin County, Criminal Division, found both guilty of second degree murder and otherwise as charged. Post trial motions were filed and denied, and sentence was imposed. Superior Court affirmed. 479 A.2d 595 and 481 A.2d 625. This Court granted allocatur primarily to address the question of whether the defendants’ cross-examination of Crater, the Commonwealth’s main witness, was improperly restricted. For the reasons that follow, we hold that it was. At the time of trial, Crater was charged, also in Dauphin County, with ten to fifteen burglaries and conspiracies separate and apart from the charges which were brought against him because of his participation in the Ritchie murder. Appellants were permitted to question Crater about whether he was promised leniency with respect to his involvement in the crimes at issue in this case, but were denied permission to cross-examine Crater on whether he had been promised lenient treatment with respect to other criminal charges which were also pending against him in the same county. In response to questions put on direct and cross examination, Crater testified that he was not promised anything in exchange for his cooperation in this case and that he agreed to testify to clear his conscience. On direct examination, Crater stated: Q. David, at the time you gave your statement to Trooper Lotwick out at the state police, were you promised anything in exchange for your statement? A. No. ¡}s * * * * # Q. You have discussed this case with me, have you not? A. Yes. Q. At any time have I or any other member of the district attorney’s office given you any promise whatsoever in this case? A. None. Q. Has any police officer given you any promise? A. None. I just like told it. It was on my mind at that time. I started drinking a little heavy and I just, the day we got down to— Q. let me stop you. Why did you tell these two detectives? A. It was kind of on my mind. I wanted to get it off my mind and that because I knew about what happened. Q. Had it affected you in some way? A. I started drinking a little heavy then a couple days. Q. What is your reason for coming in here and testifying today? A. I guess just to testify. N.T. 203-05. On cross-examination, Crater testified as follows: Q. And your testimony when Mr. Kleinfelter was asking you questions was that the reason you talked to the police was because this was on your mind? A. I wanted to get it off my mind. * * * * * * A. It was on my mind and I just wanted to get it off because it started to make me drink heavy and that is about it. N.T. 215-16. Thus, although appellants were permitted to question Crater about his motive in testifying in the present case, they were not permitted to question Crater about whether he had been promised or expected leniency with respect to other criminal charges pending against him in Dauphin County. This was error, they assert, because in the absence of such questioning, the jury was not in a position to consider whether Crater’s testimony may have been biased and self-interested on account of the number and seriousness of pending cases against him. Nolen and Evans argue further that the error was particularly egregious in that the Commonwealth’s case was based almost completely on Crater’s testimony. Superior Court stated: Crater’s testimony gave the prosecution its case against Evans and Nolen. Crater alone could place the boys at Ritchie’s Bar that night. The patrons present during the robbery failed to identify either Nolen or Evans, and could not even state with certainty the robbers’ race or sex. Appellants presented an alibi defense. Evans took the stand and denied any connection with the Ritchie incident. Without Crater’s testimony, the prosecution had little evidence to link the boys to the crime. Thus, the Commonwealth’s case rose and fell on Crater’s testimony. Having conceded the importance of Crater’s testimony, however, Superior Court held that it was not error to deny cross-examination on whether Crater might be biased in his testimony because of the possibility of lenient treatment on other crimes because “[t]he ‘general rule’ bars admission of a witness’ unconvicted bad acts.” Superior Court also noted, however, that proof of a witness’s unconvicted bad acts may be admitted into evidence to show the witness’s interest in the immediate matter, citing Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 663 (1969); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973), and that “the jury should be allowed to evaluate whether the witness testified for the prosecution to gain favorable treatment in his own case.” Id. 454 Pa. at 452, 311 A.2d at 898. Superior Court interpreted the above-stated Coades rule of impeachment, however, as limited by two requirements: (1) the existence of an indictment against the witness and (2) evidence that the prosecutor could promise leniency, citing Commonwealth v. Joines, 264 Pa.Super 281, 399 A.2d 776 (1979). Relying on the trial court’s view that the second requirement had not been met because it had not been established that the prosecutor had actually promised Crater anything in exchange for his testimony, Superior Court held that Crater could not be cross-examined about promises of leniency or his expectation of leniency with respect to the other pending charges against him. In short, Superior Court interpreted Crater’s denial of any promises to include promises with respect to pending charges as well as the charges in this case; and it rejected as too speculative the notion that Crater might testify for the Commonwealth with the expectation of leniency on the other crimes. As Superior Court stated, even though “the pendency of any indictment against a witness indicates indirectly a ... possibility of his currying favor by testifying for the state,” 3A Wigmore, Evidence § 967 (Chadbourn rev. 1970) (Emphasis in original), no Pennsylvania case has allowed cross-examination concerning a witness’s “unconvicted bad acts” to establish that a witness might hope for leniency. Finally, acknowledging that there is a Sixth Amendment dimension to the claim presented by Nolen and Evans, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), Superior Court held that in this case, even if there was a Sixth Amendment violation, the error was harmless beyond a reasonable doubt, Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), because the trial court carefully warned the jury that Crater’s testimony should be viewed with caution. Appellants, on the other hand, argue that denial of cross-examination on whether Crater had been promised leniency or had the expectation of leniency with respect to the other pending criminal charges not a part of this trial was a denial of their Sixth Amendment right under the United States Constitution and their right under Art. I. Section 9 of the Pennsylvania Constitution to confront the witnesses against them. Further, they argue that the denial of these rights was not harmless error because the Commonwealth’s case, as Superior Court itself observed, hinged on the testimony of Crater. Finally, the defendants argue that the court’s instruction to the jury that Crater’s testimony should be viewed with caution did not render the improper restriction of cross-examination harmless because the jury may have found Crater’s testimony incredible had they known not only that Crater was a co-actor, but also that Crater was accused of other crimes as well, thus increasing the possibility that his testimony was self-interested. Superior Court was correct in its observation that no case from this Court has clearly set out a rule which permits cross-examination of a prosecution witness about whether he is testifying in the present case in order to curry favor with the prosecution in other pending cases in which he is charged with criminal conduct, although there have been a number of cases on related matters. In Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973), a Commonwealth witness, one Blagman, testified against co-indictees who then sought to impeach his testimony by showing that his felony indictment for the same crime had been nolle prossed and that he had pled guilty to a misdemeanor. The trial court denied permission to cross examine Blagman for the purpose of showing bias and this Court reversed: [T]he proposed cross-examination should ... have been allowed to impeach Blagman by showing his bias. In Pennsylvania a witness under indictment for the same crime involved in the case in which he is testifying is permitted to be cross-examined about that indictment. Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). The rationale for permitting this type of cross-examina tion is that the jury should be allowed to evaluate whether the witness testified for the prosecution to gain favorable treatment in his own case. 3A J. Wigmore, EVIDENCE § 967 (Chadbourn rev. 1970). This possible bias is placed before the jury so that it may better weigh and judge that witness’s credibility. If we permit a jury to infer that a co-indictee’s testimony is biased because he may receive favorable treatment, we cannot logically preclude the jury from drawing the same inference when the co-indictee may have already received favorable treatment. “Whatever tends to show the interest or feeling of a witness in a cause is competent by way of cross-examination.” Commonwealth v. Farrell, 187 Pa. 408, 423, 41 A. 382, 384 (1898). External circumstances tending to indicate that a witness may have received money or some other reward which may produce biased testimony is admissible. 3A J. Wigmore, EVIDENCE, § 961 (Chadbourn rev. 1970). The defense was entitled to have the jury know that the witness, Blagman, was a co-indictee who received a three-month probation sentence to a misdemeanor charge and that the more serious felony charges against him were nolle prossed. Id. 454 Pa. at 452-53, 311 A.2d at 898. Subsequent to Coades, in Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) we held that the juvenile record of a prosecution witness must be made available to the defense for the purpose of allowing the defense to determine whether there was anything in the witness’s juvenile record which would indicate that the witness might be biased against the defendant g,nd in favor of the prosecution. In so holding, we noted: In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ... the Supreme Court held that the Sixth Amendment right of confrontation requires that a defendant in a state criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’s probationary status as a juvenile delinquent notwithstanding that such impeachment would conflict with the state’s asserted interest in preserving the confidentiality of juvenile delinquency proceedings. 482 Pa. at 550, 394 A.2d at 458-59. The same year Slaughter was decided, Superior Court in Commonwealth v. Joines, 264 Pa.Super 281, 399 A.2d 776 (1979), held that “the exception set forth in Coades ... is premised on only two requirements: the existence of an indictment against the witness; and evidence that the prosecutor was able to promise the witness leniency on the charges against him.” Id. 264 Pa.Super. at 284, 399 A.2d at 778. Superior Court’s interpretation of Coades, thus, broadened the applicability of bias cross-examination to include not only indictments for the same crime, but indictments for any crime within the same jurisdiction. We believe that the rule of Joines is correct, as far as it goes, and that Joines taken together with Slaughter, require that whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecu tion. And if that possibility exists, the jury should know about it. The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case. While the rule stated today is new, its formulation is actually a matter of evolution rather than innovation. As far back as 1909, this Court stated: It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial____ The right is not to be denied or abridged because inciden tally facts may be developed that are irrelevant to the issue and prejudicial to the other party. Commonwealth v. Cheatham, 429 Pa. 198, 203, 239 A.2d 293, 296 (1968), quoting from Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 70 A. 884, 885 (1908). While we have always acknowledged the right of a party to impeach by showing bias, new in the present case is our willingness to acknowledge what we had previously thought was too speculative: that a prosecution witness may be biased because of the expectation of leniency in some pending matter even when no promises have been made. Thus, we hold that the right guaranteed by Art. I Section 9 of the Pennsylvania Constitution to confront witnesses against a defendant in a criminal case entails that a criminal defendant must be permitted to challenge a witness’s self-interest by questioning him about possible or actual favored treatment by the prosecuting authority in the case at bar, or in any other non-final matter involving the same prosecuting authority. Reversed and remanded for a new trial. PAPADAKOS, J., joins the Majority Opinion and files a concurring opinion. HUTCHINSON, J., files a dissenting opinion. JUDGMENT ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Superior Court is reversed and remanded for a new trial. . Counsel for the defense made the following request with regard to the cross-examination of Crater: MR. LAPPAS. Your Honor, the first thing I want to put on the record at this time is that the defense has indicated to the Court and to the Commonwealth that it would propose to cross examine the next Commonwealth witness, David Crater, along the following lines: that he is currently charged with approximately ten or fifteen felonies being burglaries and conspiracies. That those crimes are being prosecuted by the Dauphin County District Attorney's office, that in each of those cases an Information has been filed against David Crater by the Dauphin County District Attorney’s Office and that none of those cases have been disposed of in court yet. There has been no trial and certainly no sentencing and no pleas of guilty in any of those cases. THE COURT: No convictions? MR. LAPPAS: No pleas of guilty and no trials. He has pleaded not guilty to all the crimes and there has been no conviction____ We would intend to cross examine the witness on that to show the fact that he has several undisposed of cases all being prosecuted by the same office that is prosecuting this very trial which gives him motivation to favor the Commonwealth in his testimony and biases him in favor of the Commonwealth for the reason that he may expect to receive favoring treatment by the Commonwealth or from the Commonwealth when his cases do come to court. N.T. 162-63. The court denied this request because, inter alia, to grant the request would be to open the trial to matters unrelated to the present case and because the defense would have ample opportunity to show bias by questioning Crater on favorable treatment with respect to the crimes involved in this case, with which he also was charged. . Art. I. Section 9 of the Pennsylvania Constitution, in pertinent part provides: In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face---- The Sixth Amendment to the United States Constitution, in pertinent part, provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him____ . Ironically, had Superior Court in this case followed its own rule as articulated in Joines, the cross-examination-for-bias issue would not have arisen on appeal to this Court, for criminal informations (the functional equivalent of indictments) had been filed against Crater, and the prosecuting attorney, realistically, was in a position to promise Crater leniency. The fact that Pa.R.Crim.P. 313 requires judicial approval of a nolle prosequi, and Rule 319 requires approval of a plea agreement does not mean that the district attorney is powerless to influence a witness in the absence of such approval, for experience suggests that courts do not unreasonably withhold approval of nolle prosequis and plea bargains which are presented by district attorneys. . Because of our disposition of this case, we do not address appellants’ claim that the improper restriction of cross examination violates the Sixth Amendment to the United States Constitution, but we note that in a recent case before that Court, Delaware v. Van Arsdall, — U.S. —, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) the United States Supreme Court held that a defendant in a criminal case was denied his Sixth Amendment right of confrontation when he was denied opportunity to cross-examine one of sixteen prosecution witnesses as to whether, prior to his testimony in this case, an unrelated criminal charge of drunkenness on a highway had been dismissed after the witness agreed to speak with the prosecutor. The Court went on to observe that even though denial of the right to cross-examine with respect to the unrelated case was a violation of defendant’s Sixth Amendment right of confrontation, not every such error requires a new trial if the error was harmless. Cf. Commonwealth v. Truesdale, 502 Pa. 94, 98, 465 A.2d 606 (1983). In the present case, contrary to the view of Superior Court, the error was not harmless, for in spite of the fact that the jury was instructed to regard Crater’s testimony with caution on account of his involvement in the same crimes, they were not given the additional information that Crater was vulnerable, and therefore possibly biased, with respect to other pending matters as well. . Because of our disposition of this case, we do not address appellants’ additional claim that it was error to introduce evidence of appellants’ participation in burglaries in which handguns were stolen, one of which was definitely identified as the murder weapon.

OPINION ZAPPALA, Justice. The issue raised in these consolidated appeals is whether the chemical tests of breath, blood, or urine taken pursuant to the implied consent provision of the Motor Vehicle Code, 75 Pa.C.S.A. § 1547(a)(2), violate the federal and state constitutional prohibitions against unreasonable searches and seizures. We hold that the chemical tests authorized by § 1547(a)(2) violate the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution. Nos. 183 and 188 Eastern District Appeal Docket 1990 Appellee Bruce Kohl was convicted of two counts of homicide by vehicle while under the influence of alcohol, two counts of homicide by vehicle, two counts of driving while under the influence of alcohol or controlled substance, and the summary offenses of reckless driving and driving a vehicle at unsafe speed. His convictions arose from a one-vehicle collision that occurred on March 30,1985, at approximately four o’clock a.m. While proceeding around a sharp bend in the road, Mr. Kohl’s vehicle left the road, struck a pole and a retaining wall. The accident resulted in the deaths of his two passengers, Jeffrey Greb and Mark Moser. Mr. Kohl was rendered unconscious. A patrolman arrived at the scene of the accident. He observed fire in the engine compartment that was spreading through the vehicle. Mr. Kohl and the two passengers were removed from the vehicle before it was engulfed in flames. Mr. Kohl was transported to a hospital for treatment. He had not regained consciousness by the time he was admitted to the hospital. An emergency room doctor ordered a blood test of Mr. Kohl for basic blood work. A police officer, who arrived at the hospital from the scene of the accident, requested that a blood sample be taken for analysis as to alcohol content. The police officers who investigated the accident did not observe any signs of alcohol consumption by Mr. Kohl or any other evidence that alcohol had been consumed prior to the accident. The analysis of the blood sample requested by the police indicated a blood alcohol level of 0.15%. At the time that the blood sample was taken from his body, the police did not have a warrant to conduct the test. No charges had been filed against Mr. Kohl, nor was he placed under arrest. Mr. Kohl was arrested upon his release from the hospital on April 29, 1985. In his pre-trial motions, Mr. Kohl sought to suppress the results of the blood test on the basis that the test violated his constitutional rights in that the police lacked probable cause to order the test and no consent was given for the test. The trial court denied the motion to suppress. Post-trial motions filed after his conviction were also denied by the trial court. On appeal, the Superior Court held that the blood alcohol test performed on him violated his constitutional rights against unreasonable searches and seizures. 395 Pa.Super. 73, 576 A.2d 1049. The judgment of sentence was vacated and a new trial was ordered. No. 11 Eastern District Appeal Docket 1991 During the early morning hours of September 29, 1987, the Coolbaugh Township police received a call for help from the Byrd residence. The police who responded to the call encountered a one-vehicle accident within a few hundred yards of the residence. The driver’s side of the vehicle was unoccupied. A male passenger with no apparent signs of life was found in the vehicle. The vehicle had collided with a tree stump and a utility pole laying on the side of the road. At the Byrd residence, the investigating police officer met the Appellee, Sharon Louise Danforth, who identified herself as the driver of the vehicle involved in the accident. She told the officer that earlier she had met a man who told her that he lived near her. At his request, she had agreed to give him a ride to his house. During the ride, the man lunged at her, grabbed at her clothes, and tried to remove her blouse. She lost control of the vehicle while trying to defend herself by pushing him away. After the accident, she ran to the Byrd residence and called the police. The police officer encouraged her to go to the hospital for treatment of her facial injuries. While she was receiving treatment at the hospital, the officer came by to ask more questions. She recounted the events that she had described earlier. The officer never suspected that she was under the influence of alcohol. There was no odor of alcohol about her; her eyes were not bloodshot. She did not need any assistance while walking and was able to maintain her balance while standing. Based solely on the severity of the accident and the occurrence of a fatality, the officer decided to request a blood sample be taken. The officer told her that he wanted to obtain a sample of her blood for analysis. She agreed to have a sample taken. The officer did not inform her that the blood test was part of a criminal investigation. She was not asked to sign a consent form. A hospital laboratory technician drew blood from her and gave the sample to the officer. The police crime lab test results indicated a .21% blood alcohol level. Ms. Danforth was arrested several weeks after the accident on October 16, 1987. She was charged with driving under the influence, homicide by vehicle, homicide by vehicle while driving under the influence and driving a vehicle at unsafe speed. In her pre-trial motions, she moved to suppress the results of the blood test on the basis that the test violated her constitutional rights against unreasonable searches and seizures. The motion to suppress was denied. The trial court concluded that her consent to the test was implied under 75 Pa.C.S.A. § 1547(a)(2). The issue of whether she voluntarily consented was not addressed. After a jury trial, she was convicted of driving under the influence. Post-trial motions were denied. The trial court sentenced her to a minimum term of imprisonment of forty-eight hours to a maximum term of one year. The Superior Court vacated the judgment of sentence and remanded for a new trial. 395 Pa.Super. 1, 576 A.2d 1013. The court held that the blood test administered pursuant to § 1547(a)(2) was unconstitutional because the police officer lacked probable cause to believe she was under the influence. The court further held that her consent was invalid because she had no notice of the criminal investigative purpose of the blood test. I. CONSTITUTIONALITY OF § 1547(a)(2) UNDER THE FEDERAL CONSTITUTION The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause----” The Fourth Amendment applies to the States by virtue of the Fourteenth Amendment of the Federal Constitution. New Jersey v. T. L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 738, 83 L.Ed.2d 720 (1985). The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. Schmerber v. State of California, 384 U. S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). The security afforded to personal privacy against arbitrary intrusion by the police is “at the core of the Fourth Amendment” and “basic to a free society”. Schmerber, 384 U.S. at 767, 86 S.Ct. at 1834, citing Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). In Schmerber, the petitioner was convicted of driving an automobile while under the influence of intoxicating liquor. He was arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile. A hospital physician drew a blood sample from the petitioner’s body at the direction of a police officer. The chemical analysis of the sample indicated a percent by weight of alcohol in his blood at the time of the offense and was admitted into evidence at trial. The petitioner challenged the admissibility of the evidence on the ground that the blood had been withdrawn despite his refusal to consent to the test. The U.S. Supreme Court held that the administration of a blood test is a search within the meaning of the Fourth Amendment. In analyzing the petitioner’s challenge to the admissibility of the evidence, the U.S. Supreme Court identified the issues as whether the police were justified in requiring the petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness. The U.S. Supreme Court stated that, “ ... the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner”. Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834. At the time the blood sample was taken, the petitioner had been arrested. The officer had arrived at the scene of the accident and observed that the petitioner’s eyes were bloodshot, watery, and had a glassy appearance. The smell of liquor was detected on the petitioner’s breath. The officer had noticed similar signs of petitioner’s intoxication at the hospital two hours after the accident. The petitioner was then placed under arrest and given Miranda warnings. Probable cause for the officer to arrest the petitioner and charge him with driving an automobile while under the influence of intoxicating liquor had been established. The lawful arrest in itself did not justify the warrantless search, however. Indeed, the Supreme Court stated that, The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search. 384 U.S. at 769-770, 86 S.Ct. at 1835. The facts established probable cause to arrest the petitioner for driving while intoxicated and gave rise to an inference that a blood test would disclose the presence of alcohol. The inquiry focused then on whether the police officer was permitted to draw the inference himself, or was required to obtain a warrant before the blood sample would be taken. Noting that search warrants are ordinarily required for searches of dwellings, the U.S. Supreme Court concluded that no less could be required where intrusions into the human body are concerned, absent an emergency. Under the special facts of the case, the attempt to secure evidence of the blood alcohol content was found to be an appropriate incident to the petitioner’s arrest. The U.S. Supreme Court indicated that the arresting officer might reasonably have believed that he was confronted with an emergency in which the delay necessary to obtain a warrant threatened the destruction of evidence. In holding that the record disclosed no violation of the petitioner’s right to be free of unreasonable searches and seizures, the U.S. Supreme Court cautioned that, It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. 384 U.S. at 772, 86 S.Ct. at 1836. The reasonableness of a search “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests”. Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The balance in most cases weighs in favor of the procedures described by the Warrant Clause of the Fourth Amendment. Except in limited circumstances, a search or seizure is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. Skinner v. Railway Labor Executives Association, 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989). The facts underlying the instant appeals do not meet the standard enunciated in Schmerber. Neither of the appellees was under arrest at the time the blood samples were drawn; nor did the circumstances establish probable cause to arrest the appellees. In both cases, the Commonwealth concedes that the police did not observe any signs or evidence indicating that the appellees were operating the vehicles under the influence of alcohol or a controlled substance. The searches conducted in these cases were undertaken pursuant to the implied consent provision set forth in 75 Pa.C.S.A. § 1547(a)(2). Section 1547(a)(2) provides: § 1547. Chemical testing to determine amount of alcohol or controlled substance (a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: (2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed. Section 1547(a)(2) authorizes the seizure and search of an individual’s blood based solely on the fact that the police officer has reasonable grounds to believe the individual was operating a vehicle that was involved in an accident in which death or an injury requiring medical treatment occurred. The statutory provision does not require any individualized suspicion of alcohol or drug use by the driver. The Superior Court held that although the absence of a warrant requirement under § 1547(a)(2) does not render the tests unreasonable under the Fourth Amendment, a test administered solely on the basis of the existence of the condi tions set by § 1547(a)(2) is an unreasonable search prohibited by the Fourth Amendment. We agree that a search conducted under the auspices of § 1547(a)(2), without any independent facts to establish probable cause to believe that the operator of the vehicle was driving under the influence, violates the Fourth Amendment. The Commonwealth contends that the search or seizure was not unreasonable because it fell within the “special needs” exception to the Fourth Amendment developed by the U.S. Supreme Court in a limited number of cases. The special needs exception to the probable cause and warrant requirements of the Fourth Amendment has been recognized in certain cases when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Skinner, supra, 489 U.S. at 619, 109 S.Ct. at 1414, citing Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3167, 97 L.Ed.2d 709 (1987). In Skinner, the U.S. Supreme Court upheld regulations promulgated by the Federal Railroad Administration that mandated blood and urine tests of employees who were involved in certain train accidents and who violated certain safety rules. Noting that employees governed by the regulations had long been the principal focus of regulatory concern, the U.S. Supreme Court concluded that the restrictions imposed on the employees were minimal given the employment context in which the testing was done. The purpose of the toxicological testing required by the regulations was found to be preventative in nature, rather than intended to assist in the criminal prosecution of employees, The Government’s interest in regulating the conduct of railroad employees to ensure safety was the primary focus of the regulations, rather than the Government’s interest in enforcing its laws through criminal prosecutions. As such, the Government’s interest in regulating the employees’ conduct presented a special need beyond normal law enforcement that justified departure from the usual warrant and probable cause requirements. No balancing test of the governmental and privacy interests to determine the need for a warrant and probable cause may be undertaken, however, when the governmental interest to be advanced is the normal need for law enforcement. The Commonwealth argues that the special needs exception is applicable in the instant cases because it has a vital interest in ensuring that only those qualified are permitted to operate motor vehicles and in removing drunk drivers from the highways. The special needs exception is not applicable in the context of these cases. As the Superior Court noted, the purpose underlying § 1547(a)(2) is to enable the police to obtain evidence of intoxication or drug use to be utilized in criminal proceedings. 75 Pa.C.S.A. § 1547(c). The gravity of the problem of alcohol related traffic accidents was addressed in Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). No matter how compelling, however, the Commonwealth’s interest in securing evidence that a driver is operating a vehicle under the influence of alcohol or drugs does not evince a special need that would justify departure from the probable cause requirements of the Fourth Amendment. Section 1547(a)(2) authorizes unreasonable searches and seizures in violation of the Fourth Amendment. No probable cause existed in these cases to believe that the individuals were operating their vehicles under the influence of alcohol or drugs. The results of the blood tests were improperly admitted as evidence in the trials of the appellees. II. CONSTITUTIONALITY OF § 1547(a)(2) UNDER ARTICLE I, SECTION 8 OF THE PENNSYLVANIA CONSTITUTION The constitutional protection against unreasonable searches and seizures afforded by Article I, section 8 of the Pennsylvania Constitution was in existence more than a decade before the adoption of the Federal Constitution, and fifteen years prior to the promulgation of the Fourth Amendment. Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). Article I, section 8 states: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. Article I, section 8 has an identity and vitality that is separate and distinct from that of the Fourth Amendment. The decisions of the U.S. Supreme Court are not dispositive of questions regarding the rights guaranteed to citizens of the Commonwealth under the Pennsylvania Constitution. A state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution. In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), we stated: Here in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they “are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees,” ... we are free to reject the conclusion of the U.S. Supreme Court so long as we remain faithful to the minimum guarantees established by the U.S. Constitution. 526 Pa. at 389-390, 586 A.2d at 895-896 (citation omitted.) “... [W]e are not bound to interpret the two provisions [of the state and federal constitutions] as if they were mirror images, even where the text is similar or identical.” 526 Pa. at 391, 586 A.2d at 896. While we have held that the searches authorized by § 1547(a)(2) violate the Federal Constitution, the constitutionality of the searches under Article I, section 8 must be addressed also. We conclude that the searches are impermissible under the Pennsylvania Constitution. The analysis underlying our holding is separate and independent from the analysis undertaken under the Federal Constitution. Therefore, our holding under the Pennsylvania Constitution would remain unchanged should the U.S. Supreme Court resolve the issue contrary to our analysis of the federal constitutional question. There is a presumption that lawfully enacted legislation is constitutional. Should the constitutionality of legislation be challenged, the challenger must meet the burden of rebutting the presumption of constitutionality by a clear, palpable, and plain demonstration that the statute violates a constitutional provision. James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 477 A.2d 1302 (1984); Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). The administration of a blood test is a search within the meaning of Article I, section 8 if performed by an agent of, or at the direction of the government. Commonwealth, Department of Transportation v. McFarren, 514 Pa. 411, 417, 525 A.2d 1185, 1188 (1987). Generally, a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause. Probable cause exists when an officer has knowledge of sufficient facts and circumstances, gained through trustworthy information, to warrant a prudent man to believe that the person seized has committed a crime. The implied consent provisions of § 1547(a)(1) and § 1547(a)(2) dispense with the need to obtain a warrant. As the U.S. Supreme Court held in Schmerber, supra, the importance of collecting blood samples in circumstances establishing probable cause to believe that an operator was driving under the influence justified waiving the warrant requirement under the “exigent circumstances” exception to the Fourth Amendment warrant requirement. We agree that in instances in which probable cause has been established, the absence of a warrant requirement under the implied consent provisions does not render the blood, breath, and urine tests unreasonable under Article I, § 8 of the Pennsylvania Constitution due to time’s dissipating effect on the evidence. The Appellees’ challenge to the constitutionality of § 1547(a)(2) must be sustained, however, because that provision impermissibly dispenses with the probable cause requirement as well. It is instructive on this point to examine the difference between § 1547(a)(1) and § 1547(a)(2). Under subsection (a)(1) of the implied consent provision, the officer must have reasonable grounds to believe the person to be tested has been driving while under the influence of alcohol or a controlled substance. “Reasonable grounds” is not defined in the statute, but has been construed to mean probable cause by the Superior Court in Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974) (plurality opinion). In Quarles, the Superior Court concluded that the constitutional basis for a blood, urine, or chemical test under § 1547(a)(1) was the existence of probable cause to believe that the suspect had been driving under the influence of alcohol or a controlled substance. The Superior Court specifically rejected an interpretation of the provision that would premise the constitutionality of the provision on the driver’s implied consent alone. In adopting the construction of “reasonable grounds” to mean “probable cause”, the Superior Court upheld § 1547(a)(1) as constitutional. The construction applied to § 1547(a)(1) was consistent with the basic principle of statutory construction that the Legislature does not intend to violate the federal or state constitutions. 1 Pa.C.S. § 1922(3). Under § 1547(a)(2), however, the officer must only have reasonable grounds to believe that the operator of the vehicle was involved in an accident involving a fatality or in which treatment at a medical facility was required. No knowledge of sufficient facts and circumstances to warrant a belief that the operator has committed a crime is required. A search or seizure conducted under circumstances in which there is no probable cause to warrant a belief that a crime has been committed is constitutionally impermissible. Indeed, if the police officers had observed any signs of intoxication, the blood tests would have been authorized by 75 Pa.C.S.A. § 1547(a)(1). The tests authorized by § 1547(a)(2) violate Article I, § 8 of the Pennsylvania Constitution. The Commonwealth does have a compelling interest in protecting its citizens from the dangers posed by drunk drivers. The criminalization of such conduct and the stringent punishment imposed for violation of the laws proscribing the conduct are permissible legislative responses to promote the Commonwealth’s interest. The protections afforded to individuals under the Pennsylvania Constitution may not be diminished, however, by the Commonwealth’s vigilance in promoting that interest. The Commonwealth contends that the judgments of sentence should not be vacated if, as this Court has held, § 1547(a)(2) is declared unconstitutional. We must reject that contention. As we stated in Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905, 907 (1981), The principle that a court does not have power to enforce a law which is no longer valid but rather must apply the law as it exists at the time of its decision has been recognized since as early as United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801). In Schooner Peggy, Justice Marshall wrote: “But if, subsequent to the judgment and before the decision of the appellate court a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.... In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” The judgments of sentence must be vacated in the instant cases and new trials must be ordered because the appellees have successfully challenged the Commonwealth’s use of evidence that was illegally obtained under § 1547(a)(2). “To do otherwise in criminal proceedings is to impose an unwarranted hardship on defendants which affects their most fundamental rights of life and liberty, while serving no legitimate societal interest in applying an offensive law no longer valid.” Commonwealth v. Brown, 494 Pa. at 385-386, 431 A.2d at 908. The orders of the Superior Court vacating the judgments of sentence and granting new trials to the Appellees, Bruce A. Kohl and Sharon Louise Danforth, are affirmed. McDERMOTT, J., did not participate in the decision of this case. LARSEN, J., files a dissenting opinion in which PAPADAKOS, J., joins. PAPADAKOS, J., files a dissenting opinion. . We dismiss the Commonwealth’s contention that the test results were admissible because Ms. Danforth voluntarily consented to the testing. The Superior Court properly concluded that the test results were not admissible because Ms. Danforth did not knowingly and voluntarily consent to the search.

OPINION Justice EAKIN. Appellants, Chanceford Aviation Properties, LLP and Chanceford Aviation, Inc., own five acres of land in Chance-ford Township, York County, upon which a public airport is situated. Appellants are successors in interest to the property’s former owner, Loretta Baublitz. Baublitz brought a mandamus action asking the trial court to enter judgment against the Chanceford Township Board of Supervisors, directing the Township to enact a zoning ordinance in compliance with the Airport Zoning Act (AZA), 74 Pa.C.S. § 5911 et seq. The parties filed cross-motions for summary judgment; the trial court granted Baublitz’s motion and directed the Township to enact such an ordinance. The Commonwealth Court reversed the trial court’s order. For the following reasons, we reverse the Commonwealth Court. Loretta Baublitz’s late husband, Levere, owned and operated a private airport prior to the Township’s adoption of a zoning ordinance in 1979. R.R., at 61a. In the early 1980s, Mr. Baublitz received a public airport license from the Pennsylvania Department of Transportation, Bureau of Aviation (PennDOT). Id. The legislature enacted the AZA in 1984. See 74 Pa.C.S. § 5911 et seq. In 1985, every township with a public airport received notice of the AZA’s requirements. R.R., at 76a. In 1991, Mr. Baublitz notified the Township of its obligation to adopt an airport hazard zoning ordinance, which he believed the AZA required. Id., at 119a, 125a-26a. The Township discussed an airport hazard zoning ordinance at a number of meetings in 1993 and 1994, but no such ordinance was enacted. Id., at 119a, 128a-30a. Mr. Baublitz died in 2000, and the license expired since it was in his name only. Id., at 65a. PennDOT, however, issued a “letter of continued operation” authorizing Loretta Baublitz to continue operating the airport. Id., at 66a. PennDOT continues to extend that authorization. See id., at 99a. In January, 2002, Baublitz requested the Township enact an airport hazard zoning ordinance in accordance with the AZA. Id., at 27a. Such an ordinance was discussed at a number of meetings of the Township’s Board of Supervisors. The minutes of the January 13, 2003 meeting reflect that airport hazard zoning was discussed, and the Township solicitor stated he and his predecessor discussed the matter, and his predecessor stated unless the airport’s owner wanted to bring a mandamus action, the topic should not be approached. Id., at 29a, 120a. Notwithstanding that statement, airport hazard zoning was discussed in subsequent Board meetings during 2003; however, no such ordinance was adopted. Id., at 30a-44a. In July, 2003, Baublitz filed a complaint requesting the trial court enter a mandamus judgment in her favor directing the Township “to enact a zoning ordinance in compliance -with the [AZA], within the shortest time frame permitted by laws governing municipalities and the [AZA].” Complaint, 7/22/03, at 3. The parties filed cross-motions for summary judgment; the trial court denied the Township’s motion and granted Baublitz’s motion, directing the Township “to enact appropriate airport hazard zoning as required by, and consistent with, the [AZA], within six (6) months of the date of [the] order.” Trial Court Order, 4/1/04. In reaching its decision, the trial court examined § 5912(a) of the AZA, which provides: § 5912. Power to adopt airport zoning regulations (a) General rule. — In order to prevent the creation or establishment of airport hazards, every municipality having an airport hazard area within its territorial limits shall adopt, administer and enforce, under the police power and in the manner and upon the conditions prescribed in this subchapter and in applicable zoning law unless clearly inconsistent with this subchapter, airport zoning regulations for such airport hazard area. The regulations may divide the area into zones and, within the zones, specify the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow. A municipality which includes an airport hazard area created by the location of a public airport is required to adopt, administer and enforce zoning ordinances pursuant to this subchapter if the existing comprehensive zoning ordinance for the municipality does not provide for the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow in an airport hazard area. 74 Pa.C.S. § 5912(a)(emphasis added). The court found “shall” in the first sentence of the statute to be mandatory. Trial Court Opinion, 4/1/04, at 11. It found the legislature used “may” to grant townships discretion as to the content of the ordinances they enact. Id., at 13. The court also found the third sentence “requires Townships with airport hazard areas to enact and enforce airport hazard zoning, if its current zoning does not provide for the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow.” Id. The court determined § 5912(a) requires townships with public airports to enact reasonable and necessary airport hazard zoning, but that the content of such ordinances are at the township’s discretion, so long as the ordinances meet the legislature’s goals and objectives. Id., at 14. The court further determined mandamus was appropriate to compel the Township to comply with § 5912(a). Id., at 7. The Township appealed. The Commonwealth Court reversed, concluding the AZA does not mandate that “the Township adopt a model airport hazard zoning ordinance that will result in a servitude being imposed on the properties of hundreds of landowners and thousands of acres of property, potentially at the Township’s expense, all to favor the owner of a single, privately owned five-acre tract of land.” Baublitz v. Chanceford Township Board of Supervisors, 865 A.2d 975, 979 (Pa.Cmwlth.2005). The court noted § 5912’s title is “[p]ower to adopt airport zoning regulations”; thus, it concluded § 5912(a) is a grant of power, not a legislative mandate. Id., at 978. The court observed that under § 5915(c) of the AZA, “a municipality ‘shall adopt, either in full or by reference, any provision of any model zoning ordinance or other similar guidelines suggested or published by the [Federal Aviation Administration] regarding airport hazard areas.’ ” Id. (emphasis added by Commonwealth Court) (quoting 74 Pa.C.S. § 5915(c)). The court stated § 411 of the Township’s Zoning Ordinance contains a provision prohibiting flight obstructions, and a provision incorporating, by reference, FAA and Penn-DOT standards; therefore, the court concluded, since § 411 incorporates FAA guidelines, it is sufficient to comply with § 5915(c)’s mandate. Id., at 978. Finally, the court reasoned that “[l]anguage is regarded as ‘mandatory’ when it is the ‘essence of the thing required,’ ” id. (citing Dubin v. County of Northumberland, 847 A.2d 769, 772 (Pa.Cmwlth.2004)), and § 411 of the Township’s Zoning Ordinance fulfills the essence of the thing to be done by the AZA — prevent the creation or establishment of airport hazards. Id. Baublitz filed a Petition for Allowance of Appeal, which we granted. Prior to argument, appellants filed an Application for Relief for Substitution of Parties Pursuant to Pa.R.A.P. 502(b), requesting this Court to substitute them for Baublitz. The application was granted. An appellate court may reverse the grant of a motion for summary judgment if there has been an error of law or an abuse of discretion. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002). Since the issue as to whether there are no genuine issues as to any material fact presents a question of law, our standard of review is de novo; thus, we need not defer to the determinations made by the lower tribunals. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002). We must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038, 1041 (1996) (citing Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992)). Appellants separate their argument into three sections: whether the AZA mandates the Township enact an airport zoning ordinance; whether § 411 of the Township Zoning Ordinance meets the AZA’s requirements; and whether mandamus can compel a local municipality to enact an ordinance mandated by the legislature. Whether the AZA mandates the Township to enact a zoning ordinance is a question of statutory construction. The purpose of the interpretation and construction of statutes is to ascertain and effectuate the legislature’s intent. 1 Pa.C.S. § 1921(a). In construing statutory language, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.... ” Id., § 1903(a). “When the words of a statute are clear and free from all ambiguity, they are presumed to be the best indica tion of legislative intent.” Hannaberry HVAC v. Workers’ Compensation Appeal Board (Snyder, Jr.), 575 Pa.66, 834 A.2d 524, 531 (2003) (citing Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84, 87 (1995)). It is only when the statute’s words are not explicit that the legislature’s intent may be ascertained by considering the factors provided in 1 Pa.C.S. § 1921(c). The word “shall” by definition is mandatory, and it is generally applied as such. Oberneder v. Link Computer Corp., 548 Pa. 201, 696 A.2d 148, 150 (1997). However, the context in which “shall” is used may leave its precise meaning in doubt. See Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758, 764-65 (2005); see also In re Canvass of Absentee Ballots of November 4, 2003 General Election, 577 Pa. 231, 843 A.2d 1223, 1231-32 (citations omitted) (“Although some contexts may leave the precise meaning of the word ‘shall’ in doubt ... this Court has repeatedly recognized the unambiguous meaning of the word in most contexts.”). When the context in which “shall” is used creates ambiguity, this Court has used the factors in § 1921(c) to ascertain the legislature’s intent. See Gardner, at 765. This Court, however, has “recognized that the term ‘shall’ is mandatory for purposes of statutory construction when a statute is unambiguous.” Koken v. Reliance Insurance Company, 586 Pa. 269, 893 A.2d 70, 81 (2006) (citations omitted). Appellants argue the requirements of the AZA are mandatory, not directory. They contend the AZA, and specifically the term “shall” in § 5912(a), is clear and unambiguous. Appellants argue that even assuming § 5912(a) is subject to interpretation, the term “shall” is mandatory since, among other reasons, such an interpretation is in accord with the statute’s primary purpose of preventing airport hazards, and “shall” replaced the former statute’s use of “may.” The Township asserts the Commonwealth Court’s review of the AZA properly considered the Act in its entirety, the Act’s nature and objective, and the consequences of its construction, and correctly concluded “shall” is directory rather than mandatory. It argues the effects on Chanceford Township and other municipalities of interpreting the AZA as mandatory indicate the legislature intended the Act to be a directory grant of authority, not mandatory. It asserts mandatory adoption of the model ordinance will affect thousands of acres of property in favor of a single five-acre parcel of property, and such is not in accord with the Act’s mandate that regulations adopted under it be reasonable. Township’s Brief, at 11-12 (citing § 5915(a)). It also argues mandatory adoption would have far-reaching effects, as 80% of municipalities in the Commonwealth with airport zones have not adopted airport hazard zoning. The Township anticipates that if the “shall” in § 5912 is interpreted as mandatory, Chanceford Township, as well as other municipalities, will be subjected to de facto takings claims and may be required to compensate landowners for their property rights. The Pennsylvania State Association of Township Supervisors (PSATS) filed an amicus curiae brief, asserting because the AZA is ambiguous, statutory interpretation tools must be used to determine the legislature’s intent. It asserts the statute’s ambiguity is created by the legislature’s use of both mandatory and permissive language. It further asserts that reading the AZA as a whole suggests the legislature intended § 5912(a) to create a discretionary power in local government, not a mandatory function. PSATS argues § 5912(a)’s ambiguity must be resolved by looking outside of its plain language. The first sentence of § 5912(a) states: In order to prevent the creation or establishment of airport hazards, every municipality having an airport hazard area within its territorial limits shall adopt, administer and enforce, under the police power and in the manner and upon the conditions prescribed in this subchapter and in applicable zoning law unless clearly inconsistent with this subchapter, airport zoning regulations for such airport hazard area. 74 Pa.C.S. § 5912(a) (emphasis added). This sentence clearly provides the legislature’s purpose in enacting this statute— preventing the creation or establishment of airport hazards. It also clearly states that every municipality having an airport hazard area shall adopt, administer, and enforce airport zoning regulations for such an area. The second sentence of § 5912(a) states: “The regulations may divide the area into zones and, within the zones, specify the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow.” Id. (emphasis added). This sentence permits municipalities to exercise discretion over the content of the zoning ordinance required by the preceding sentence. The third sentence of § 5912(a) states: A municipality which includes an airport hazard area created by the location of a public airport is required to adopt, administer and enforce zoning ordinances pursuant to this subchapter if the existing comprehensive zoning ordinance for the municipality does not provide for the land uses permitted and regulate and restrict the height to which structures may be erected or objects of natural growth may be allowed to grow in an airport hazard area. Id. (emphasis added). This sentence requires a municipality with an airport hazard area to adopt, administer, and enforce airport zoning, if its zoning ordinance does not (1) provide for the land uses permitted, and (2) regulate and restrict the height that structures may be erected or natural objects may be allowed to grow. The plain language of § 5912(a) commands municipalities with airport hazard areas to enact and carry out airport zoning regulations. The legislature’s use of the term “shall” clearly establishes that municipalities must comply with this mandate. Interpreting “shall” to be directory, rather than mandatory, would allow municipalities to freely disregard the statute, which would not serve the legislature’s purpose of preventing airport hazards. Neither the title of § 5912 nor the use of both mandatory and permissive language used in § 5912(a) creates ambiguity regarding whether the legislature intended to mandate the adoption of airport zoning regulations. The title of § 5912 is “Power to adopt airport zoning regulations.” The Township asserts this title indicates a grant of power, not a legislative mandate. However, interpreting § 5912(a) as a grant of power would make the statute superfluous since 53 P.S. § 10603(b)(2)2 * already grants municipalities the authority to regulate and restrict the height and location of structures. See 1 Pa.C.S. § 1922(2) (legislature intends entire statute to be effective and certain). Additionally, the use of both mandatory and permissive language does not create ambiguity; rather, it allows municipalities to exercise discretion as to the content of the required ordinance. That discretion must be exercised within the confines of AZA, including § 5915. Accordingly, the Commonwealth Court erred in determining the AZA does not mandate the Township to enact an airport zoning ordinance. Next, appellants argue the Commonwealth Court committed an error of law in determining § 411 of the Chanceford Township Zoning Ordinance complies with the AZA’s requirements. Appellants contend § 411 does not fulfill the AZA’s purpose of preventing the creation or establishment of airport hazards; rather, § 411 imposes zoning requirements on applicants who desire to use their properties as airports-it allows an airport to be operated as a special exception, provided specific conditions are met. Appellants assert this section applies only'to the airports themselves, and thus does not impose any requirements on surrounding properties or implement AZA requirements throughout the Township. The Township argues § 411 complies with the AZA’s requirements since it incorporates FAA and PennDOT regulations. The Township contests appellants’ assertion that § 411 does not impose requirements on surrounding properties, stating § 411(c), “prohibits ‘existing flight obstructions such as towers, chimneys, or other tall structures or natural obstructions outside of the airport and located within the proposed approach zones.’ ” Township’s Brief, at 15 (quoting § 411). PSATS adds § 411 regulates existing airports and the erection of structures on adjoining properties, as well as the creation of airports as special exceptions. Specifically, PSATS contends § 411 imposes requirements on adjoining property owners to limit the height of structures and growth in airport approach zones. PSATS’s Brief, at 16 (citing § 411(d), (e)). Thus, since § 411 incorporates federal and state regulations, PSATS asserts the ordinance satisfies the provisions and purposes of the AZA. The clearly expressed purpose of the AZA is “to prevent the creation or establishment of airport hazards.” See 74 Pa.C.S. § 5912(a). The legislature achieves this purpose by requiring every municipality with an airport hazard area to adopt, administer, and enforce airport zoning regulations for the airport hazard area. The AZA further provides “[a] municipality shall adopt, either in full or by reference, any provision of any model zoning ordinance or other similar guidelines suggested or published by the [FAA] regarding airport hazard areas.” Id., § 5915(c). While § 411 incorporates FAA guidelines, its scope does not extend beyond establishing conditions that must be met for an applicant to operate his property as an airport as a special exception. Section 411 does not provide for the land uses permitted, nor does it regulate and restrict the height of structures and natural growth in an airport hazard area; rather, it dictates criteria that are required for a property to be operated as an airport. Section 411 simply does not qualify as an attempt to regulate “airport hazard areas.” See n. 3, swpra. As such, the Commonwealth Court erred in determining § 411 is sufficient to comply with the AZA’s requirements. Third, appellants argue mandamus is appropriate to compel a municipality to enact an ordinance mandated by the legislature. “Mandamus is an extraordinary writ that will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other appropriate or adequate remedy.” Jackson v. Vaughn, 565 Pa. 601, 777 A.2d 436, 438 (2001) (citation omitted). It may be used to compel performance of a ministerial duty, or to compel action in a matter involving judgment or discretion. Pennsylvania Dental Association v. Commonwealth Insurance Department, 512 Pa. 217, 516 A.2d 647, 652 (1986). However, it may not be used to direct the exercise of judgment or discretion in a particular way, or to direct the retraction or reversal of an action already taken. Id. “Mandamus is a device that is available in our system to compel a tribunal or administrative agency to act when that tribunal or agency has been ‘sitting on its hands.’ ” Id. Appellants assert mandamus is appropriate here because the legislature required the Township to enact an airport zoning ordinance consistent with the AZA. The Township argues mandamus is not appropriate because the AZA is a directory grant of power and not a legislative mandate. The Township argues it is outside the province of the judicial and executive branches to compel local legislative bodies to amend, repeal, and reenact their zoning ordinances since these legislative bodies may act, or not act, as they wish. Township’s Brief, at 16 (citing East Lampeter Township v. County of Lancaster, 744 A.2d 359, 365 (Pa.Cmwlth.2000)). Here, § 5912(a) commands that municipalities with airport hazard areas enact and carry out airport zoning regulations. Since the Township has a public airport, and thus airport hazard areas, it must comply with the legislature’s mandate. Hence, appellants have a clear right to have the Township enact airport zoning regulations in accordance with the AZA. The Township further asserts mandamus is inappropriate since mandamus is appropriate only when refusal to perform an act or duty is clear, and not speculative. Id., at 18 (quoting Nason v. Commonwealth, 90 Pa.Cmwlth. 130, 494 A.2d 499 (1985)). The Township asserts it never refused appellants’ request for adoption of an airport zoning ordinance and, in fact, was “actively investigating the AZA’s model ordinance and had discussed the ordinance at numerous public meetings.” Id., at 18. Appellants reply without citation to authority, but instead argue the Township clearly indicated its decision to not adopt an ordinance, pointing to the period of time the Township had notice of the requirement to adopt the ordinance. Appellants’ Reply Brief, at 6-7. Appellants note the AZA was enacted in 1984, and every township with a public airport received notice of the AZA’s requirements in 1985. Id. (citing R.R., at 50a). Further, appellants claim they notified the Township of its duty to adopt an airport zoning ordinance pursuant to the AZA in 1991, id. (citing R.R., at 119a, 125a), and again requested the Township enact an ordinance to comply with the AZA in 2002. Id. (citing R.R., at 119a, 131a). Appellants state although the Township studied the feasibility of adopting an ordinance from January, 2002, through the filing of the complaint in July, 2003, no ordinance has been adopted. Id. (citing R.R., at 121a, 123a). While it does not appear the Township has formally refused to adopt an airport hazard zoning ordinance in compliance with AZA, it does appear the Township has been sitting on its hands. It is clear the Township has not adopted an airport zoning ordinance even though it has been aware of the AZA’s requirements for over 20 years. Thus, in this case, common sense dictates that the Township’s failure to comply with the AZA’s requirements, of which it was on notice for two dec ades, in the face of appellants’ repeated requests, is a clear indication of the Township’s refusal to comply with its duty. Finally, the Township argues appellants have means other than mandamus to gain control of airspace surrounding their property. It suggests appellants could obtain easements or purchase neighboring properties or the air rights to such properties in order to control the airspace. The Township contends appellants clearly have other means, but are attempting to “impose the burden and cost of controlling its airspace on the Township and its residents.” Township’s Brief, at 19. Appellants assert this argument is without merit because it assumes the owners of the neighboring properties will sell an easement or property rights. We agree with appellants. The mandamus action here is seeking to have the Township comply with the legislature’s statutory mandate. No purchase of property rights could bring the Township into compliance with the AZA. Thus, mandamus is appropriate to compel the Township to comply with the AZA’s mandate. For the above reasons, the Order of the Commonwealth Court is reversed. Jurisdiction relinquished. Former Justice NIGRO did not participate in the consideration or decision of this case. Former Justice NEWMAN did not participate in the decision of this case. Chief Justice CAPPY and Justice CASTILLE and BAER join the opinion. Justice SAYLOR files a dissenting opinion. . The Aviation Code, 74 Pa.C.S. § 5101 et seq., defines "public airport” as "[a]n airport which is either publicly or privately owned and which is open to the public.” 74 Pa.C.S. § 5102. It further defines "airport” as: Any area of land or water which is used, or intended to be used, for the landing and takeoff of aircraft and any appurtenant areas which are used, or intended to be used, for airport buildings or air navigation facilities or rights-of-way, together with all airport buildings and facilities thereon. Unless indicated otherwise, airport shall include heliports and public airports. Id. . The factors in § 1921(c) are: (1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar subjects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute. 1 Pa.C.S. § 1921(c). . The Aviation Code defines "airport hazard” as "[a]ny structure or object, natural or manmade, or use of land which obstructs the airspace required for flight of aircraft in landing or taking off at an airport or is otherwise hazardous to the landing or taking off of aircraft,” and "airport hazard area” as “[ajny area of land or water upon which an airport hazard might be established if not prevented as provided in this part." 74 Pa.C.S. § 5102. . Section 10603(b)(2) provides: (b) Zoning ordinances may permit, prohibit, regulate, restrict and determine: (2) Size, height, bulk, location, erection, construction, repair, maintenance, alteration, razing, removal and use of structures. 53 P.S. § 10603(b)(2). . Section 411 Airport Where indicated as permitted by special exception, this use is permitted subject to the following: a. Lot Area: ten (10) acres minimum. b. The approach zone to any of the proposed runway landing strips shall be in accordance with the regulations of applicable Federal and/or State agencies. c. There shall be no existing flight obstructions such as towers, chimneys or other tall structures or natural obstructions outside of the airport and located within the proposed approach zones. d. Any building, hanger or structure shall be located a sufficient distance away from the landing strip in accordance with the recommendations of applicable Federal and/or State agencies. e. Building heights in airport approach zones shall be limited to provide a clear glide path from the end of the usable landing strip. The glide path shall be a plane surface laid out in accordance with the operating characteristics of the aircraft for which the airport is designed. The first five hundred (500) feet of the glide path shall be wholly within the airport property. f. The facility must be permitted under applicable PAA and FAA regulations. g. If in the Conservation Zone or Agricultural Zone, the provisions of Sections 206.9 and 207.9 shall apply to the site location and to reduce the number of dwelling units permitted on the tract where the use is located. R.R., at 205(a) (Chanceford Township Zoning Ordinance § 411). . Appellants assert § 411 is inapplicable to their property since the airport is a nonconforming use. Appellants' Brief, at 7. The Township responds, "[t]o the contrary, the provisions of Section 411 clearly do apply to [appellants].” Township’s Brief, at 15. The parties do not rely on any authority in making this argument and do not sufficiently develop it for our review; thus, it will not be addressed. . The Township further argues appellants used § 411 for removal of airport hazards on neighboring properties. It asserts appellants "recently brought action in district justice court against one of its neighbors who erected a pole in violation of the fly zones. The neighbor subsequently removed the obstruction.” Township's Brief, at 15. The Township, however, provides no authority to support this contention. In light of our conclusion that § 411 establishes conditions that must be met for an applicant to operate his property as an airport as a special exception, we need not address this argument. . The Township did not prove § 411 regulates airport hazard areas.

OPINION LARSEN, Justice. This case involves an insurance policy provision which requires the insured to promptly notify the insurance company in the event of an accident or loss. At one time such provisions were strictly enforced in our Commonwealth, and late notice would release the insurance company from its contractual duties, even where the late notice did not harm the insurance company in any way. See Meierdierck v. Miller, 394 Pa. 484, 147 A.2d 406 (1959). However, we rejected the strict enforcement approach in Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977), holding that late notice would release the insurance company only where the late notice was prejudicial. Whether the new law should be applied retroactively to cases pending on appeal when this Court decided Brakeman is the issue in this case. The accident in question occurred on November 22, 1973. John Stasak was the driver of a car which struck a telephone pole, injuring Timothy E. August and David C. Belzner (appellants) who were passengers in the car. John Stasak and his parents (appellees) did not inform their insurance company of the accident until seven months later on June 25, 1974. Appellant August had already sued the appellees; appellant Belzner sued soon thereafter. The insurance company investigated the claim but refused to defend or indemnify the appellees, asserting that the required prompt notice was not given. Appellees retained their own counsel to defend the suit of appellant August, but on May 28, 1975 August recovered a verdict of $12,150.26. Appellant Belzner obtained a default judgment on August 4, 1975, and a verdict was rendered in the amount of $4,120.00. These trials both occurred well after the insurance company had notice of the accident. In order to satisfy their judgments, appellants instituted attachment proceedings against appellees’ insurance company in 1975. At trial, the court expressly found that the insurance company was not prejudiced by the late notice because the company had access to all the witnesses, the police accident report, and appellee’s personal defense counsel’s files. Furthermore, adequate time to prepare for trial remained even after late notice. However, the court denied relief, holding that the insurance company’s refusal was proper under the prior law. August v. Stasak, No. 387 January Term 1974, No. 356 January Term 1975 (Court of Common Pleas of Northampton County, filed February 1, 1977). In 1977, while an appeal to the Superior Court was pending in this case, this Court decided Brakeman, supra, and changed the law. The Superior Court, however, refused to apply our holding in Brakeman retroactively to this case and denied relief. August v. Stasak, 253 Pa.Super. 311, 384 A.2d 1359 (1978). Judges Hoffman and Spaeth dissented and would have extended the new law to cases pending on appeal. We granted allocatur to consider this question. This Court’s Brakeman decision is silent as to whether the holding applies to cases pending on appeal, although the new law was applied retroactively to the parties to that litigation. Also, recourse to precedent is inconclusive because there is no fixed rule as to what effect an overruling decision should have. At common law, an overruling decision is normally retroactive. See Buradus v. General Cement Products Co., 356 Pa. 349, 52 A.2d 205 (1947); Harry C. Erb, Inc. v. Shell Construction Co., 206 Pa.Super. 388, 213 A.2d 383 (1965), allocatur denied. However, a sweeping rule of retroactive application cannot be justified. Box Office Pictures, Inc. v. Board of Finance and Review, 402 Pa. 511, 166 A.2d 656 (1961). Retroactive application is a matter of judicial discretion which must be exercised on a case by case basis. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Justice Roger Traynor of the California Supreme Court has proposed an elegant test for deciding whether an overruling decision will have retroactive effect — balancing the hardships imposed upon parties: A judge is mindful of the traditional antipathy toward retroactive law that springs from its recurring association with injustice and reckons with the possibility that a retroactive overruling could entail substantial hardship. He may nevertheless be impelled to make such an overruling if the hardships it would impose upon those who have relied upon the precedent appear not so great as the hardships that would inure to those who would remain saddled with a bad precedent under a prospective overruling only. ..[T]he outworn precedent may be so badly worn that whatever reliance it engendered would hardly be worthy of protection. Traynor, R., La Rude Vita, La Dolce Giustizia; Or Hard Cases Can Make Good Law, 29 U.Chi.L.Rev. 223, 231-32 (1962). Balancing the hardships in this case clearly mandates that the appellants prevail. The equities in this case are exactly the same as the equities in the Brakeman case which characterized the prior law as permitting a forfeiture and being inequitable: Allowing an insurance company, which has collected full premiums for coverage, to refuse compensation to an accident victim or insured on the ground of late notice, where it is not shown timely notice would have put the company in a more favorable position, is unduly severe and inequitable. Brakeman, supra 472 Pa. at 73, 371 A.2d at 196. This Court will not protect the expectations of the company by enforcing an unfair forfeiture provision in an insurance policy. Forfeitures of insurance policies are not favored either at law or in equity. Poles v. State Mutual Benefit Society, 129 Pa.Super. 297, 195 A. 429 (1937). Forfeiture in this case would impose a severe hardship on appellants, the accident victims, whose outstanding judgments may well remain unsatisfied if forfeiture is permitted. The Brakeman decision also sought to effectuate the reasonable expectations of the insured that coverage would not be forfeited by nonprejudicial late notice: “[W]e do not think such a result [forfeiture] comports with the reasonable expectations of those who purchase insurance policies.” Id. 472 Pa. at 76, 217 A.2d at 198. See generally Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 594, 388 A.2d 1346, 1353 (1978) (“The reasonable expectation of the insured is the focal point of the insurance transaction involved here.... Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled.”) The insured, appellees in this case, had a reasonable expectation that the coverage would not be forfeited by nonprejudicial late notice. We must balance the above hardships to the appellants against the hardships to the insurer from a retroactive application of Brakeman. The insurance company is being called upon to perform its duty of indemnification, for which it has received full premiums — this can hardly be counted as a hardship. Moreover, the insurance company has not presented any evidence that remotely suggests it could have obtained a more favorable result if it had defended. Prejudice in the abstract is not prejudice. Finally, the insurance company’s decision not to defend was made even though it had adequate notice and opportunity to prepare for trial. Thus, any hardship here in failing to defend was of the insurer’s own doing. The insurance company has not demonstrated hardships greater than those of the appellants, if at all. Therefore, applying the approach advanced by Justice Traynor, appellants must prevail. In fact, this case is factually similar to the Brakeman case and may well have been the case which overruled prior law if Brakeman had not been decided while this case was pending on appeal. Since no distinction can be drawn between appellants and the injured party in Brakeman, the same relief should be available. See: Gibson v. Commonwealth, 490 Pa. 156, 165, 415 A.2d 80, 85 (1980) where in an analogous situation Mr. Justice Roberts stated for this court: “There is no principled reason to discriminate now against appellants whose causes also accrued before [the overruling decision] ... both classes of suits affect the Commonwealth in equal measure, and therefore must be treated in like fashion.” Applying Brakeman retroactively is in perfect accord with numerous recent decisions in this state. See: Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966) (change of conflicts of law rule applied to case pending on appeal); Snyder v. Shamokon Area School District, 226 Pa.Super. 369, 311 A.2d 658, 659 (1973) (Abrogation of governmental immunity of school district applied to cases pending on appeal; Superi- or Court relied on actions of this court in making this determination); Wheeling-Pittsburgh Steel Corp. v. Board of Revision of Taxes, etc., 40 Pa.Cmwlth. 306, 397 A.2d 1253 (1979) (ruling that certain property not subject to taxation applied retroactively); Gibson v. Commonwealth, supra (judicial abrogation of sovereign immunity applied retroactively). It is unnecessary to remand because the trial court found that the insurance company was not prejudiced by the late notice. The order of the Superior Court is reversed. ROBERTS, J., filed a concurring opinion in which O’BRIEN, C. J., and FLAHERTY, J., joined. FLAHERTY, J., joins the majority opinion and ROBERTS, J., concurring opinion. NIX, J. concurred in the result. . The insurance policy in this case provides: NOTICE In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to the Company or any of its authorized agents as soon as practicable... If claim is made or suit is brought against the Insured, he shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative ... ACTION AGAINST THE COMPANY — ... No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy ...

Opinion by Mr. Justice Barnes, Plaintiff, a trucker, engaged in the general hauling business, was under a contract with the defendant for the removal weekly of waste paper and rubbish from a number of its stores. The store of defendant in which the accident here occurred was located in Turtle Creek Borough, Allegheny County. Plaintiff had been collecting refuse matter from this store regularly for about a year. The waste materials were kept in the basement of this store, which was reached from the outside by pavement doors, and also from the inside of the store by an enclosed stairway leading from the first floor. At the head of and closing this stairway was a door behind a store counter. When the stairs were not in use this door was kept locked, and the key thereto was retained by the manager of the store. To remove the rubbish from the cellar, the key to the inside door was always obtained from the manager. According to the testimony, at the time when rubbish was to be removed, the plaintiff and his helpers would proceed down the inside stairs and unlatch from within the cellar the outside pavement doors, through which the actual removal of the waste material would take place. A vegetable stand was located in the front of the store, not far from the head of the stairway in question, but neither produce for this stand, nor spoiled vegetables discarded from it, were stored in the basement. Vegetable produce was not opened or unpacked in the cellar, but always on the main floor; refuse vegetables were deposited in a garbage can located at the rear of the store on the main floor, thence to be removed by the borough. Plaintiff at no time removed garbage from the store. The stairway was not used by customers, but only by defendant’s employees, and by plaintiff and his helpers when they came weekly to remove the rubbish. The stairway was dark, and the only means provided for lighting it was by an electric light located in the ceiling of the cellar. There was no switch by which this light could be turned on from the head of the stairs. It was necessary to descend the stairs, proceed to the center of the cellar and to screw in the electric bulb to obtain light. In the forenoon of August 21, 1930, the plaintiff came to the store for the purpose stated. He obtained the key from the manager, and unlocked the cellar door behind the counter. As he was descending the stairway in the darkness “his feet flew out from under him” and he was thrown to the concrete floor at the foot of the stairs, sustaining severe and permanent injuries to his spine. When the cellar light was turned on immediately after the accident, the stairway was littered with decayed “bananas, lettuce leaves, beans and tomatoes,” according to the testimony of plaintiff, and one of his helpers who went to his assistance. To recover for the injuries received, plaintiff brought this action of trespass. The jury returned a verdict against the defendant, and from the judgment entered thereon defendant company has appealed, assigning as error the refusal of its motions for a new trial, and for judgment non obstante veredicto. When this appeal was first before this Court for oral argument, the question was raised whether appellee was guilty of contributory negligence as a matter of law when he voluntarily attempted to descend the dark stairway into the cellar. As it appeared that proper consideration had not been accorded this element of the case, leave was granted to appellant to file a supplemental brief upon this question, and like consent was given to appellee to file a reply brief. Subsequently, we concluded to grant a reargument confined to the question of contributory negligence. At the reargument which followed, appellant earnestly contended that appellee was contributorily negligent as a matter of law. It relies upon the fact that appellee must have known from past experience that the steps in this store would be dark, that he was going to descend them as usual, and therefore, in the exercise of due care and caution, it was his duty to have prepared himself with some means of lighting his descent. Appellee, it says, should be held to have assumed the risk of injury when he voluntarily committed himself to the dark stairway, and to have brought the injuries upon himself by his disregard of the manifest dangers of the darkness: Conboy v. Osage Tribe, 288 Pa. 193; Murray v. Earl, 282 Pa. 517; Fordyce v. White Star Bus Lines, 304 Pa. 106; Smalley v. First Natl. Bank of Wilkinsburg, 86 Pa. Super. Ct. 280. Contributory negligence should be declared here, it is argued, just as in those decisions where a person injured in “testing” the dangers of a dark place with which he was entirely unfamiliar, has been so found guilty and denied recovery: Johnson v. Wilcox, 135 Pa. 217; Sweeny v. Barrett, 151 Pa. 600; Davis v. Edmondson, 261 Pa. 199; Hoffner v. Bergdoll, 309 Pa. 558; Modony v. Megdal, 318 Pa. 273; McVeagh v. Bass, 110 Pa. Super. Ct. 379; McGreal v. Merchants Whse. Co., 121 Pa. Super. Ct. 336. See also Cathcart v. Sears, Roebuck & Co., 120 Pa. Super. Ct. 531. On the other hand, it is alleged by appellee that the injuries sustained were not caused by the darkness of the stairway, but were due to its condition and the presence of foreign matter thereon, a risk which he did not anticipate and assume, and which in reality, he says, were the proximate causes of the accident: Curry v. Atlantic Refining Co., 239 Pa. 302; Baker v. Ellis, 248 Pa. 64; Kinsey v. Locomobile Co., 235 Pa. 95; Greis v. Hazard Mfg. Co., 209 Pa. 276; Reid v. Linck, 206 Pa. 109; Fredericks v. Atlantic Refining Co., 282 Pa. 8. After full consideration a majority of the Court is of opinion that under the facts shown plaintiff was not guilty of contributory negligence as a matter of law. On the question of negligence, appellant contends that there is no evidence to show that it or its employees had notice or knowledge of the presence of the vegetable refuse on the stairway at the time of the accident. The burden was on the appellee to establish negligence beyond the mere happening of the accident, and there must be shown negligence for which this appellant is responsible. We feel that appellee has sustained that burden of proof. The store employees used the stairway whenever necessary to carry boxes and cartons into and out of the cellar when packing a customer’s order. The appellee and his helpers had not been in the store for an entire week prior to the accident. There was no evidence that any other person had used the stairway. The accident happened immediately upon appellee’s entering the stairway to descend to the cellar. The store employees in the use of the stairway were put on notice of its dangerous condition, and such knowledge possessed by them is imputed to the appellant by rule of law. Therefore appellant must be held to have known the condition of the stairway, and failure to correct that condition before permitting appellee to use the stairway was evidence of negligence to be submitted to the jury. The appellee was lawfully on the premises as an invitee. Appellant owed him a duty to use due care for his protection and to keep the premises in a reasonably safe condition, for the uses and purposes of the invitation, so as not to expose appellee to danger. It is true that in cases such as the present the person in ownership or control of the property is not the insurer of the safety of the invitee; his duty is discharged by the exercise of reasonable care. To such effect we have declared the rule in several of our recent decisions. Mr. Justice Simpson, in Nettis v. Gen. Tire Co., 317 Pa. 204, 209, said: “All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended: Newingham v. J. C. Blair Co., 232 Pa. 511; Craig v. Riter-Conley Mfg. Co., 272 Pa. 219.” To the same effect we recently held in Kulka v. Nemirovsky, 314 Pa. 134, 139: “Defendant owed to the plaintiff the affirmative duty of keeping his premises reasonably safe for business visitors, such as plaintiff, and of giving warning of any failure to maintain them in that condition: Robb v. Niles-Bement-Pond Co., 269 Pa. 298; Markman v. Bell Stores Co., 285 Pa. 378; Newingham v. J. C. Blair Co., 232 Pa. 511; Pauckner v. Wakem, 231 Ill. 276; Starcher v. So. Penn Oil Co., 81 W. Va. 587, 602; Restatement, Torts, section 332 (see comment a). Plaintiff was entitled to rely on defendant’s performance of this duty: Restatement, section 343 (see comment d) ; Yuhasz v. Pitt. Const. Co., 305 Pa. 166; Adams v. Fields, 308 Pa. 301, 305; Blondin v. Oclitic Quarry Co., 11 Ind. App. 395; Gobrecht v. Beckwith, 82 N. H. 415.” It was for the jury to decide whether appellant and its employees had notice of the condition of the cellar steps prior to the time of the accident. The learned trial judge fairly submitted this question to the jury, especially by the affirmance of appellant’s point for charge on the subject. Tbe rulings made at the trial are not challenged nor is the charge of the court complained of as being either erroneous or inadequate. It fairly presented and analyzed the testimony for the jury, and the law applicable thereto was correctly stated. There is no complaint that the verdict was excessive, or error alleged which would make the amount of the verdict a question for review. Moreover, in considering the sufficiency of the evidence to sustain the verdict, upon the motion for judgment n. o. v. the court was required to view the evidence and the inferences deducible therefrom in the light most favorable to the plaintiff: Laudenslager v. Pa. P. & L. Co., 312 Pa. 169,170; Guilinger v. P. R. R. Co., 304 Pa. 140, 144; Simon v. P. R. T. Co., 306 Pa. 466, 470. The judgment is affirmed.

OPINION OF THE COURT O’BRIEN, Justice. This appeal is before the court on a petition for allowance of appeal from an order of the Superior Court which affirmed an order of the Court of Common Pleas of Allegheny County. The order of the Court of Common Pleas confirmed an arbitration award in favor of State Farm Mutual Automobile Insurance Company (State Farm), appellee. The award denied uninsured motorist insurance coverage to appellant, Alfred Williams. The facts in this case are undisputed and are as follows. On February 11, 1975, appellant, Alfred Williams, was driving his wife’s 1970 Plymouth automobile when he was involved in an accident with a vehicle driven by an uninsured motorist. As a result of that accident appellant suffered unspecified physical injuries and damages. There is no dispute that the owner-operator of the uninsured vehicle was at fault. At the time of the accident appellant’s wife, Patricia Williams, was insured by State Farm with the mandated uninsured motor vehicle coverage provisions. Also at that time, appellant was the titled owner of a 1973 Chevrolet truck, which was also insured by State Farm and the policy contained similar uninsured motorist provisions. Appellant filed a claim against State Farm under both his and his wife’s uninsured motorist coverage. State Farm paid appellant the $10,000 limit under his wife’s policy, but refused payment under his policy. Appellant requested arbitration to determine if he was entitled to any uninsured motorist coverage pursuant to his contract of insurance. The request for arbitration was granted and an arbitration hearing was held pursuant to conditions and requirements of the Act of April 25, 1927, P.L. 381, No. 248, § 1, 5 P.S. § 161-181 (hereinafter “the act of 1927”). The arbitrator denied coverage for appellant. The basis of the denial of coverage was an exclusionary provision which stated in pertinent part: “This insurance does not apply . (b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, such vehicle is not an owned motor vehicle. . . . ” The arbitrator based his determination upon the Superior Court case of Nationwide Mut. Ins. Co. v. Ealy, 221 Pa.Super. 138, 289 A.2d 113 (1972) (allocatur denied). Appellant filed an exception to the arbitrator’s award and the Court of Common Pleas of Allegheny County, pursuant to State Farm’s motion, confirmed the arbitration award. Appellant appealed to Superior Court, which affirmed per curiam. He then petitioned this court for allowance of appeal, which was granted. The basis of this appeal is the contention that the Superior Court case of Ealy, supra, .relied upon by the arbitrator, as well as by the Court of Common Pleas in confirming the award, is at variance with this court’s decision in Harleysville M. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968). I. Scope of Review. The instant case arose from an arbitration award pursuant to the act of 1927, which contains two provisions affecting the scope of review that a court must use in determining appeals from arbitration awards. Section 10 of the act of 1927, 5 P.S. § 170 provides: “In either of the following cases the court shall make an order vacating the award upon the application of any party to the arbitration: “(a) Where the award was procured by corruption, fraud, or undue means. “(b) Where there was evident partiality or corruption on the part of the arbitrators, or any of them. “(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or any other misbehavior by which the rights of any party have been prejudiced. “(d) Where the arbitrators exceeded their powers or so imperfectly executed them that a final and definite award upon the subject matter submitted was not made. “Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.” Section 11 of the act of 1927, 5 P.S. § 171, provides: “In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration: “(a) Where there was an evident material miscalculation of figures, or an evident material mistake in the description of any person, thing, or property referred to in the award. “(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted. “(c) Where the award is imperfect in matter of form not affecting the merits of the controversy. “(d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict. “The court may modify and correct the award or resubmit the matter to the arbitrators.” Our review indicates that appellant’s requested relief is cognizable under Subsection (d) of § 11, 5 P.S. § 171, which reads: “(d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.” In McDevitt v. McDevitt, 365 Pa. 18, 73 A.2d 394 (1950), this court stated: “. . . But in the present instance it seems to be agreed by both parties that the arbitration under the partnership agreement was to be governed by the Act of April 25, 1927, P.L. 381; that Act provides (section 11(d)) that the court shall modify or correct the award upon the application of any party to the arbitration where the award is against the law and is such that had it been a verdict of the jury the court would have entered a different or other judgment notwithstanding the verdict; therefore, mistakes of law, but only mistakes of law, may be rectified on appeal: Navarro Corporation v. Pittsburgh School District, 344 Pa. 429, 432, 25 A.2d 808, 810. . . ” (Emphasis in original.) We therefore determine that the issue raised in this appeal is properly cognizable. II. Merits. Appellant argues that the arbitrator committed an error of law when he upheld the exclusionary clause of appellant’s uninsured motorist coverage. We agree and reverse and remand for proceedings consistent with this opinion. The Pennsylvania uninsured motorists coverage provision provides: “(a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of Article XIV of ‘The Vehicle Code,’ act of April 29, 1959 (P.L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, Provided, that: “(1) An owner or operator of (i) any motor vehicle designed for carrying freight or merchandise or, (ii) any motor vehicle operated for the carriage of passengers for hire or compensation, having in either instance been granted a certificate of public convenience or a permit by the Pennsylvania Public Utility Commission or been issued a certificate of public convenience and necessity or a permit by the Interstate Commerce Commission, and “(2) An owner or operator of any other motor vehicle designed for carrying freight or merchandise or operated for the carriage of passengers for hire whose employes are insured under the provisions of ‘The Pennsylvania Workmen’s Compensation Act,’ act of June 2,1915 (P.L. 736), as amended, shall have the right to reject such coverage in writing in which event, such coverage need not be provided in or supplemental to a renewal policy where such insured had rejected the coverage in connection with a policy previously issued to him by the same insurer. “(b) For the purpose of this coverage the term ‘uninsured motor vehicle’ shall be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency. “(c) An insured’s insolvency protection shall be applicable only to accidents occurring during a policy period in which its insured’s uninsured motorist coverage is in effect where the liability insurer of the tort-feasor becomes insolvent within six years after such an accident. “(d) In the event of payment to any person under the coverage required by this section, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, includ ing the proceeds recoverable from the assets of the insolvent insurer. Whenever an insurer shall make payment under the coverage required by this section, which payment is occasioned by an insolvency, such insurer’s right of recovery or reimbursement shall not include any rights against the insured of said insolvent insurer, but such paying insurer shall have the right to proceed directly against the insolvent insurer or its receiver, and in pursuance of such right such paying insurer shall possess any rights which the insured of the insolvent insurer might have had if the insured of the insolvent insurer had personally made the payment. “(e) The coverage required by this section does not apply: “(1) To property damage sustained by the insured. “(2) To bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefor. “(3) In any instance where it would inure directly or indirectly to the benefit of any workmen’s compensation carrier or to any person qualified as a self-insurer under any workmen’s compensation law. “(f) Nothing' herein contained shall be construed to prevent any insurer from affording the coverage required by this section under terms and conditions more favorable to its insured than are provided herein.” August 14,1963, P.L. 909, § 1 as amended, December 19, 1968, P.L. 1254, No. 397, § 1, effective January 1, 1969. The legislature has provided that all motor vehicle liability insurance sold within the Commonwealth for vehicles registered or “principally garaged” in this Commonwealth must contain provisions to compensate the insured for damages incurred by the insured because of the conduct of an owner or operator of an uninsured motor vehicle, if such conduct causes bodily injury, sickness, disease and death. The uninsured motorist provision requires a determi nation that the owner or operator of the uninsured motor vehicle is legal cause of the insured’s physical injuries. The legislature has permitted two exceptions to the mandatory inclusion of uninsured motor vehicle protection: 1. P.U.C. or Interstate Commerce Commission certified vehicles designed for freight handling or certified as passenger conveyors; and 2. The owner and/or operator of a vehicle that hauls freight or transports passengers and whose employees are covered by the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915 (P.L. 736), as amended, 77 P.S. § 1, et seq. The owner and/or operator of the above two classes of motor vehicles have the right to reject in writing the uninsured motorist protection. Where there exists a valid contract of insurance which contains uninsured motorist coverage, an insurance carrier is obligated to compensate the insured for damages inflicted upon the insured because of the conduct of the owner and/or operator of an uninsured motor vehicle except for three statutory exclusions. An insurance carrier is not obligated to compensate an insured within the ambit of the uninsured motorist provision for: 1. Property damage. 2. Bodily injury damages when the insured or his representative has without written consent of the insurance carrier settled or prosecuted to judgment any action against any person or persons liable for such injuries. 3. Any damage, the payment of which would be for the direct or indirect benefit of a workmen’s compensation carrier or any person who would qualify as a self-insurer under any workmen’s compensation law. The statute concludes by permitting insurance carriers to offer more favorable uninsured motorist protections. The above statute mandates a floor of minimum protection to be afforded to the owner/operator of a motor vehicle within the Commonwealth. The legislature has per mitted enhancement of that minimum protection, but we believe the statute does not permit a diminution of that protection below the statutory limits. The court in Harleysville, 429 Pa. at 395-96, 241 A.2d at 115, gave the following interpretative guide to the above statute: “. . . The purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers. The amount of the coverage to be afforded by the uninsured motorist feature of the policy is set by the statute, but nowhere, explicitly or implicitly, does the act place a limit on the total amount a victim may recover if he suffers a loss resulting from the negligence of an uninsured motorist. “In Pattani v. Keystone Ins. Co., 426 Pa. 332, 231 A.2d 402 (1967), we quoted with approval the language of Katz v. American Motorists Ins. Co., 244 Cal.2d 886, 53 Cal.Rptr. 669 (1966), that such statutes are ‘designed to give monetary protection to that ever changing and tragically large group of persons who while lawfully using the highways themselves suffer grave injuries through the negligent use of those highways by others.’ We there declared for liberal construction of the statute in order to achieve the legislative intent, and we here adhere to that declaration. “We do not wish to imply that injured parties may be permitted to pyramid separate coverages so as to recover more than the actual loss. Such a ruling is not necessary to the decision of this case and we do not make it. We do hold, however, as did the court in Sellers [v. U.S.F. & G. Co., Fla., 185 So.2d 689 (1966)] that where the loss exceeds the limits of one policy, the insured may proceed under other available policies up to their individual limits or to the amount of the actual loss.” In Harleysville, this court interpreted the following “exclusionary” clause: “. . . ‘Part IV. Protection against Uninsured Motorists — “Other Insurance”. With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this Coverage exceeds the applicable limit of liability of such other insurance. " 'Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.’ ” (Emphasis added.) The facts of Harleysville are as follows. Blumling, the appellant, was injured in an automobile accident with an uninsured motorist while driving a truck owned and insured by his employer, Lockhart Iron & Steel Company. Lock-hart’s insurer was Travellers Insurance Company and its uninsured motorist coverage was $10,000. Blumling owned an automobile which was insured by Harleysville Mutual Casualty Company. Blumling’s coverage also contained a $10,000 uninsured motorist provision. He sustained injuries which resulted in damages in excess of $10,000. After collecting $10,000 from Traveler’s, Blumling filed a claim with his insurance company for the excess amount of unreimbursed damage. Harleysville denied coverage and sought a declaratory judgment of nonliability. The basis of Harleysville’s denial of coverage was the above-quoted exclusionary clause. This court permitted the injured party to collect on his uninsured motorist coverage up to the amount of actual damages, when those damages exceeded the amount of uninsured motorist coverage of primary insurance of the motor vehicle involved in the accident. In the instant case, State Farm seeks to limit its liability under appellant’s uninsured motorist provision by the following exclusionary clause in its policy: “This insurance does not apply . (b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, such vehicle is not an owned motor vehicle. . . . ” The above exclusion prohibits all recovery by the insured under his policy, if the injury was sustained while he occupied another motor vehicle owned by a resident of the house, and if that vehicle was not an insured vehicle under his policy. In Ealy, supra, the Superior Court upheld an exclusionary clause which permitted Nationwide Insurance Company to write non-cumulative, non-pyramiding uninsured motorist coverage for an insured who owns more than one vehicle. Ealy was the owner of five motor vehicles, all insured under separate policies. Ealy, the insured, and his wife were injured in an automobile accident with an uninsured motorist. No dispute existed as to the legal responsibility of the uninsured motorist. All the uninsured motorist provisions limits were $10,000 per person, $20,000 per accident. The Ealy injuries were in excess of $20,000. The rationale of the Superior Court in Ealy was: “The above-quoted act [Uninsured Motorist Act, 40 P.S. 2000] has as its purpose the protection of innocent victims from irresponsible drivers. Harleysville Mut. Cas. Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968). The primary thrust of the act is to insure that the innocent victims are not left completely uncompensated. Accordingly, insurance companies are required to provide at least minimal uninsured motorist coverage for their insureds. However, nothing in the act authorizes insureds to cumulate their individual coverages in order to exceed the minimum coverage required by law. Since in the present case the appellees contractually agreed not to cumulate the coverages on their five vehicles, and since they will still be afforded recovery on one of the policies in compliance with the minimum standards set by the state, we find that they cannot recover on the other four policies covering the vehicles not involved in the accident.” (Emphasis added.) We believe Ealy cannot stand in light of the uninsured motorist statute and this court’s decision in Harleysville. As discussed supra, we believe the legislative intent, as expressed in the words of the uninsured motorist statute and as interpreted in Harleysville, is clear. The insured may recover uninsured motorists benefits: 1. If the injured party paid the premiums of the policy and was the named insured; and 2. If the recovery under the second uninsured motorist coverage was limited to actual damages; and 3. If the recovery is not limited by the statutory exclusions. The language in Harleysville is applicable to the “household” exclusion in this case, as it was to the “excess insurance” exclusion in Harleysville. In the instant case, the record is devoid of any reference to the amount of actual damages, if any, in excess of the $10,000 already recovered by appellant under his wife’s policy. Therefore, pursuant to § 11 of the act of 1927, the case is remanded to consider appellant’s claim in light of Harleysville. Order of the Superior Court is reversed and the case is remanded for the appointment of a new arbitrator and for proceedings consistent with this opinion.

The opinion of the court was delivered, by Agnew, J. This case cannot be well stated without a summary of the facts gathered from the evidence, and the rejected offers assigned now for error. They are about these : The basin in the Monongahela river, opposite the city of Pittsburgh, formed by the slackwater dam above the bridge and the shoals below the city, is filled with shipping; the wharf from the bridge to the point being lined with coal-boats, canal-boats and steamboats, and perhaps some other craft. On the south side of the river, for a mile or more below the bridge, the shore, is occupied by boats at different points.- The coal trade of Pittsburgh with the country below on the Ohio and Mississippi is very great, amounting to millions of bushels. It is carried on chiefly in large barges or flats, very deep, broad and unwieldy, carrying from eight to eleven thousand bushels in each. Those coming chiefly down the slackwater, after passing through the locks, are collected in fleets in front of the city, and moored in convenient and safe places to await freshets in the river to carry them out, called coal-boat rises. About twelve feet over the bars is considered a good coal-boat rise. They arc then taken in tow by a steam coal-tug and floated to market below. Safety of moorage would seem, therefore, to be a matter of moment to the shipping filling that basin, and confined to it in low stages of water. The defendant, being engaged in the coal trade, had a fleet of barges laden with coal lying moored at and fastened to one of the piers of the bridge, between five and six hundred feet from the southern shore, where a strong current prevails in a coal-boat rise. While so moored one of his barges sprang a leak, and sunk so rapidly after discovery of her condition that she had to be cut loose from her lashings to prevent her carrying others down. After sinking she was carried beneath the surface downwards, and across to the south side, where she lodged beneath the plaintiff’s boats, some of which, when the water subsided, settled upon her and were sunk and injured. The action was for this injury. The cause of the leak which sunk the defendant’s barge was unknown. All that is known of it is, that when recovered she was found to have her bow planks sprung at the knuckle of the rake, opening a seam of about half an inch. The doctrine of the court below was, that as the cause of sinking was unknown, it must be presumed it happened without the defendant’s fault, and therefore that the place of moorage was immaterial, and to be excluded from the consideration of the jury. On this principle the danger of mooring to a pier out on the river where, on a rise, a strong current sets in accompanied by floating drift, was ruled out of the proof, and the court instructed the jury that their inquiry began with the conduct of the defendant when he discovered his boat was sinking ; and their question was, whether he was then guilty of negligence or carelessness in regard to something which naturally conduced to the plaintiff’s injury. The judge, with commendable fairness and clearness, planted himself squarely upon this position, both in his rulings upon the evidence and his charge, giving to the defendant every advantage he could ask for revision. The doctrine of the court negatives all duty in moorage, and throws upon others the risk of sinking there; as though it were inevitable accident, and not arising from any fault of the defendant in the selection of a place for his boats to lie. In argument it was said that no one but the bridge company could complain of his tying up his boat to their pier, and that it was as lawful to moor in the stream as at the shore. But did the defendant owe no duty to others who had the same rights of moorage in the river at that place ? If others had the same right of mooring in that basin, and many vessels were there, if these coal-barges are large, unwieldy and difficult to be handled; if owing to their size and immense tonnage of coal they are liable to accident and readily to sink; and if the place of moorage was unsafe, and likely in case of sinking to produce injury to some one else, did not a duty lie upon the defendant to avoid this place, and to seek a safer one ? The maxim sio utere tuo ut alienum non Icedas clearly applies. Where a party is dealing with a subject full of risk, greater caution and diligence are required to prevent injury by reason of it; more care is required of him who stores powder or petroleum than of him who keeps coffee or sugar. The general rule is, that a man is answerable for the consequences of a fault which are natural and probable, and might therefore be foreseen by ordinary forecast, while it is true that if his fault happen to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the unexpected result. These principles ruled the opposite cases of Morrison v. Davis & Co., 8 Harris 171, and Scott v. Hunter, 10 Wright 192. In the latter case, which in principle resembles the one before us, it is said that the maxim causa próxima non remota spectatur is difficult of application, and that it is impossible to draw a line between causes of injury such as are sufficiently proximate and those too remote to be the foundation of an action. The same doctrines were held by Black, C. J., in The City of Pittsburgh v. Grier, 10 Harris 54. The city of Pittsburgh having the control and receiving revenue from a wharf, suffered a pile of iron to lie near the water’s edge for a length of time, forbidden by its ordinance, and a steamboat having landed at a reasonable stage of water, was forced by a rise in the river upon the pile of iron, to avoid which she was backed into the stream, and there was struck by a floating boat or raft and sunk. It was held that the city was liable for negligence in not removing the iron, and that the cause of injury by the floating body, in the stream, was not so remote as to shift the loss from the city. The Chief Justice saying, it is not the law that men are responsible for their negligence only to the extent of the injuries which they knew would flow from it. If it were, there could be no recoveries except for malicious wrongs. In Beach v. Parmeter, 11 Harris 196, the present' Chief Justice remarking upon an injury by collision, said that “for inevitable accidents, and for such as result from mutual negligence of parties, the law gives no redress; but when the injury comes from the exclusive negligence of one party, he cannot shield himself from liability by calling it an accident.” The maxim causa próxima non remota spectatur means but this. We are not to link together as cause and effect, events having no probable connection in the mind, and which could not by prudent circumspection and ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without the concurrence of our act with the event which immediately caused the injury, but we are not justly called to suffer for it unless the other event was th§ effect of our act, or were within the probable range of ordinary circumspection when engaged in the act. But when we are engaged in an act which the surrounding circumstances indicate may be dangerous to others or their interests, and when the event whose concurrence is necessary to make our act injurious, is one which we can readily see may occur under these circumstances, and unite with the act to inflict an injury, we are culpable if we do not take all the care which prudent cir cumspection would suggest to avoid the injury. This may be illustrated by the case instanced in criminal law, where a workman throws a stick of timber from the top of a building into a street. If it be-in the unfrequented street of a small village, and he gives loud warning to any who might chance to pass by, he will not be held guilty of felonious homicide. But if he should cast it into the street of a populous city, where many are passing, and death ensue, he would be guilty of the homicide, notwithstanding his cry of warning. He cannot claim it to be an accident, but is taught by the circumstances themselves that the presence of passers is probable, and that it is improbable every one would hear his warning, or hearing understand it. He would be held to greater care, and to see that there were no one beneath. Accountability for civil injuries is even greater than for criminal acts. The cases of Morrison v. Davis & Co., and Scott v. Hunter, also furnish illustrations. In the former the injury happened because the boat chanced to be near a dam, when the flood came and carried it over, causing the loss of the goods. The alleged fault in the carrier was his using a lame horse, causing^a delay which chanced to bring the boat to the dam when the flood overtook it, otherwise the dam, and with it the danger, would have been passed. While it is evident the delay caused by the lameness was by its concurrence with the flood an element in the cause of loss, yet the occurrence of the flood, the immediate cause of injury, just then and there, was not within the circle of probable foresight. Hence the maxim causa próxima non remota spectatur, had its proper application. In Scott v. Hunter it was also the concurrence of a fortuitous flood with the act of the defendant which swept the boat over the dam; and yet he was held to be liable. Why the difference ? It appears to be this. The act of the defendant was directly connected with the condition of the stream, which was a circumstance to give warning and lead his mind to perceive the danger. He wrongfully and unnecessarily continued to obstruct the entrance to the locks, and thereby held the plaintiff’s boats out in the stream. He knew that others had an equal right to enter each in his turn. He knew that the stream was liable to floods by the fluctuations of the weather, and that the weather is unstable. He was therefore warned by the circumstances that an undue continuance in the entrance exposed the plaintiff’s boat to danger if a flood came. He had reason to apprehend injury from his wrongful act. While the flood was therefore fortuitous in this instance, as well as in the former, yet he was reasonably led to know it might happen, and if it did, that his own act would be likely to injure those whom it exposed to the action of the swollen current. The same principle may be applied to the case before us, according to the character of the facts which may be found by the jury. Had there been no harbor or basin filled by numerous boats, moored all along the wharf, and opposite shore, his mooring his fleet in the current exposed to accident there, and his want of wisdom or danger in mooring there, would not connect itself with probable danger to others. It would scarcely be expected that a sunken boat at the pier would be moved across the current to the spot where only a few boats lay, and lodge beneath them. It could not readily he held that his act would lead to probable injury to any but himself. But if he knew he was mooring his fleet of boats in a harbor contracted by low water into a limited basin, where many others lay, — if he knew that such barges filled with coal are ponderous, unwieldy, and difficult of control, are liable to injury, and easily sunken, and that the place of mooring, by reason of the strength of the current and floating drift, was one of danger, and most likely to cause such boats to sink, and also knew that this place, in case of the-sinking of his boats, was likely to prove to be dangerous to some of the many boats lying below, and that the] flood would come — for it was his purpose to await its coming, to carry him out — it could scarcely be held that these circumstances did not indicate to his mind the greater danger of mooring there, and if an accident should happen, the danger to which it would expose others. The injury under such circumstances would not be so remote that it ought not to be taken into account. But it must be observed that these are inferences of fact which belong to the jury, whose province it is to determine what are the circumstances and the inferences of probability to be drawn from them. We think, therefore, the court erred in withholding from the jury all the evidence as to the place of mooring the fleet, and in charging them that, -whether the defendant was careful or careless, wise or foolish, in mooring at the pier, no negligence could be imputed to him, because the' cause of injury to his barge was not explained, and that the sinking of it in the absence of proof must be presumed to be without fault on his part. We are not to be understood as expressing our opinion upon the propriety or safety of mooring boats at the pier, or its probable consequences. There may be difficulty in determining the facts which can be solved only by the testimony of those who understand these matters well. But -we decide that the court erred in excluding all the evidence upon this branch of the case, and in confining the jury to a single view of it. The judgment is reversed, and a venire facias de novo awarded.

Opinion by Judge Williams, Jr., This is an appeal by Thomas Hando (appellant) from an order of the Court of Common Pleas of Montgomery County upholding the suspension of appellant’s driving privileges by the Department of Transportation (Department) under Section 1547 (b)(1) of the Vehicle Code, 75 Pa. C. S. §1547(b) (1), for his refusal to submit to a breathalyzer test. We affirm. At the hearing before the court of common pleas the police officer who charged appellant with driving-under the influence testified that when he arrested appellant he asked him to take a breathalyzer test, which appellant refused. A second officer testified he later asked appellant at the station to take a breathalyzer test and warned appellant his operating privileges would be suspended for six months if appellant refused. Appellant testified that he was never taken to the police station in question, but rather to a different station, was never informed that he was placed under arrest for driving under the influence, or warned of the consequences of a failure to take the test. The court of common pleas found that appellant refused to submit to a breathalyzer test, even after the officers warned appellant that his refusal to take the test would result in a six month suspension of his operating privileges. In order for a suspension for a refusal to submit to a chemical test of breath or blood to be sustained, the Department must prove that a driver was placed under arrest upon the charge of driving while intoxicated, the officer had reasonable grounds to believe the driver was driving while intoxicated, that the driver was requested to submit to a breathalyzer test and refused and, where the issue is raised, that the officer fulfilled his statutory duty to warn the driver that his operating privileges would be suspended or revoked upon his refusal to submit to a chemical test. Department of Transportation, Bureau of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 450 A.2d 235 (1982). Anything substantially less than an unqualified unequivocal assent to take a breathalyzer test constitutes a refusal. Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa. Commonwealth Ct. 333, 442 A.2d 407 (1982). Appellant contends that the common pleas judge committed numerous errors which rendered the suspension hearing unfair, that the judge had shown a predisposition to favor the Department and had prejudged the appellant and that the suspension was brought by the Department solely in retaliation for appellant’s contesting the criminal charge of driving under the influence and being acquitted. In cases where the court of common pleas is the fact finder, our scope of review is limited to whether or not the court based its findings of fact on substantial evidence or committed an error of law. Department of Transportation, Bureau of Traffic Safety v. Stafford, 28 Pa. Commonwealth Ct. 157, 159, 367 A.2d 816, 817 (1977). Questions of credibility and the resolution of testimonial conflicts are for the common pleas court. Department of Transportation, Bureau of Traffic Safety v. Fullerton, 31 Pa. Commonwealth Ct. 609, 612, 377 A.2d 1024, 1025 (1977). Appellant argues that the common pleas judge committed reversible error when he failed to make further inquiries regarding a subpoena allegedly issued by appellant and not honored by the Horsham Police Department, However, as the Department correctly notes, appellant did not present the common pleas judge with a proof of service required by Section 5904(d) of the Judicial Code, 42 Pa. C. S. §5904(d), to obtain a bench warrant to secure the presence of the absent witness. Under Section 5904 (d) it is the obligation of the party seeking enforcement of a subpoena to produce proof of the subpoena’s service to the court and request a bench warrant, the court is not required to elicit that information when a party fails to request a bench warrant. Appellant also failed to request a continuance under Pa. R.'C.P. 216(D) when the subpoenaed witness failed to appear and to request enforcement of the allegedly ignored subpoena. As appellant failed to avail himself of either 42 Pa. C. S. §5904(d) or Pa. R.C.P. 216(D), we find no error in the common pleas judge proceeding with the suspension hearing. Appellant’s next complaint is that the common pleas judge erred by limiting defense counsel’s cross-examination of the two Montgomery Township Police officers. The lines of questioning which defense counsel pursued attacked the credibility of both Officer Webster and Officer Simes rather than challenged the substance of their testimony. Appellant contends the judge’s limiting of counsel’s cross-ex- animation of Webster and Simes was evidence of tbe judge’s bias in favor of the police and his attempt to shield them from embarrassing questions. We note that a trial judge has broad discretion in determining the extent to which a witness may be cross-examined as to his credibility. Fischer v. Commercial National Bank, 321 Pa. 200, 184 A. 57 (1936). After reviewing the entire hearing transcript, we find no abuse of discretion on the part of the common pleas judge in limiting appellant’s cross-examination of Officers Webster and Simes. The transcript, rather than •showing a bias on the part of the judge against appellant, shows the judge gave appellant’s counsel considerable latitude and exercised considerable restraint in dealing with defense counsel’s repeated failures to confine his questions to the issue before the court. We cannot say that by limiting defense counsel’s cross-examination as to the credibility of either Webster or Simes any relevant evidence was excluded. We next turn to appellant’s charge that the com.mon pleas judge was predisposed in the Department’s favor and had prejudged the ease before appellant had the opportunity to present his evidence. Our review of the transcript reveals no such predisposition on the part of the common pleas judge. The remarks of the judge about which appellant complains are merely an attempt by the judge to explain to appellant his ruling on an evidentiary objection. Appellant’s accusations against the common pleas judge are unfounded and show appellant’s lack of understanding as to the actual issue before the common pleas court. Finally we turn to appellant’s contention that the Commonwealth initiated the proceedings to suspend his operator’s license in retaliation for his successful defense of the driving under the influence charge. This contention is frivolous. Section 1547 of the Vehicle Code, popularly known as the “Implied Consent Law,” is not penal in nature and is designed to protect the public by providing an effective means of denying intoxicated motorists the privilege of using the roads. Wisniewski v. Commonwealth, 73 Pa. Commonwealth Ct. 318, 457 A.2d 1334 (1983). The Department’s suspension proceeding for a refusal to take a breathalyzer test is an independent civil proceeding separate and distinct from any criminal charges brought against a motorist. Id. at 322, 457 A.2d at 1337. See also Commonwealth v. Clawson, 9 Pa. Commonwealth Ct. 87, 305 A.2d 732 (1973) (suspension of operator’s license upheld despite motorist’s acquittal of criminal charge of driving while under the influence). There is no support in the record for appellant’s charge of improper conduct on the part of the Department or the common pleas judge. For the foregoing reasons we affirm the order of the common pleas court dismissing appellant’s appeal. Order And Now, the 19th day of July, 1984, the decision of the Court of Common Pleas of Montgomery County at Civil Action No. 80-00486 dismissing appellant’s appeal and upholding the suspension of appellant’s operator’s license for six months is affirmed. Section 5904(d) of the Judicial Code reads, as follows: §5904 Subpoena of witnesses (cl) Bench warrants — Upon proof of service of a subpoena, the court may issue a bench warrant for any witness who fails to appear in response to a subpoena. However, such warrant cannot be issued if service has been by first class mail. Pennsylvania Buie of Civil Procedure Number 216 reads, in pertinent part, as follows: Buie 216. QrounAs for Oontvrmance (A) The following are grounds for continuance: (1) Agreement of all parties of their attorneys, if approved by the Court: (2) Illness of counsel of record, a material witness, or a party. If requested a certificate of a physician shall be furnished, stating that such illness will probably be of sufficient duration .to prevent the ill person from participating in the trial; (3) Inability to subpoena or to take testimony by deposition, commission, or letters rogatory, of any material witness, shown by affidavit which shall state: (a) The facts to which the witness would testify if present or if his deposition should be taken; (b) The grounds for believing that the absent witness would so testify or give his deposition; (c) The efforts made to procure the attendance or depositicn of such absent witness; and id) The reasons for believing that the witness will attend the trial at a subsequent date, or that his deposition can and will be obtained; (e) Such special ground as may be allowed in the discretion of the court. (D) No continuance shall be granted due to the absence from court of a witness duly subpoenaed, unless: (1) Such witness will be absent because of facts arising subsequent to the service of the subpoena and which would be a proper ground for continuance under the provisions of Rule 216(A) ; or (2) On the day when the presence of such witness is required a prompt application is made for the attachment of such absent witness; or (3) The witness, having attended at court has departed without leave, and an application for attachment is made promptly after the discovery of the absence of such witness; or the court is satisfied that the witness has left court for reasons which would be a proper ground for continuance under Rule 216(A). Throughout the suspension hearing and in his brief appellant refers to the proceedings as a criminal prosecution. Appeals from the Department’s operating license suspension orders stemming from a motorist’s refusal to submit to a breathalyzer test are civil proceedings to which the Rules of Civil Procedure apply. See generally Wisniewski v. Commonwealth, 73 Pa. Commonwealth Ct. 318, 457 A.2d 1334 (1983). Our review of the suspension hearing transcript shows that throughout the hearing, defense counsel consistently attempted to litigate the issue of whether or not appellant was actually intoxicated when stopped by Officer Webster. The issue before the com mon pleas court was not whether appellant was intoxicated but whether the officer had reasonable grounds to stop appellant and request appellant take a breathalyzer test, see Department of Transportation, Bureau, of Traffic Safety v. Sinwell, 68 Pa. Commonwealth Ct. 605, 450 A.2d 285 (1982) ; Corry v. Commonwealth, 59 Pa. Commonwealth Ct. 324, 429 A.2d 1229 (1981), and ultimately, whether appellant refused to submit to such a test.

The opinion of the Court was delivered by Kennedy, J. As to the first question. The act of the 21st of March 1772, which prohibits the bringing of a suit against'a justice of the peace for any thing done by him in the execution of his office, until notice in writing of such intended suit shall have been delivered to him or left at his usual place of abode by the party, his attorney or agent, thirty days before suing out of the writ, requires that “in the notice shall be clearly and explicitly contained the cause of action which the said party hath, or claimed to have against such justice of the peace.” Hence it is evident that the cause of action, whatever it may be, must be clearly and explicitly set out in the notice; or otherwise it is not such as the act of assembly expressly requires. It is manifest from all the provisions contained in the act that it was intended for the protection of justices of the peace in the execution of their offices, and ought therefore to be liberally construed with a view to promote that end. Mitchell v. Cowgill, 4 Sinn. 24. But it seems to me, that upon no construction of it can the notice in this case be held sufficient, because it contains no cause of action whatever. It is not even possible from its terms to conjecture what particular act it was that the defendant had wished done, or omitted to do, in granting the attachment, that the plaintiff intended to make the gravamen of his suit. In the first part of his notice the plaintiff says, “The cause of action which I claim against you, is as follows. On the 22d day of October instant, you, as justice of the peace for said county, issued a domestic attachment at the instance of Edward Pearce against me, illegally and contrary to the provisions, rules, regulations and restrictions of the acts of general assembly of Pennsylvania, in such cases made and provided.” And then, after reciting the greater part of the first section of the act of 1752, he in conclusion of his notice again repeats, “ my cause of action therefore against you is, that the aforesaid attachment was issued by you as a justice of the peace against me, contrary to the spirit and intent of said acts of assembly.” These are the only allegations contained in the notice which purport to state or specify in any way what the cause of action is. They are nothing more than that the plaintiff’s cause of action against the defendant is for having granted the writ of domestic attachment against him contrary to the spirit and intent of the act of assembly. And after reading this notice, the mind, instead of being satisfied, has the question necessarily forced upon it — to which it is utterly impossible to find an answer in the notice — In what particular was the attachment granted contrary to the acts of assembly 1 Surely the notice ought to have been such as would have prevented the question from arising. But as it is, it is no better than if the plaintiff had said in it, without more, “Unless you tender me sufficient amends, I will sue you after thirty days for granting a domestic attachment against me, at the suit of Edward Pearce, contrary to the acts of assembly.” It was contended that the recital of the first section of the act of 1752 supplied what was wanting to make the notice perfect, but. I am not satisfied!that this was not rather calculated to mislead than to inform the defendant correctly; for it will appear presently that so far as that section of the act of 1752 declares and points out the case and conditions in which a domestic attachment may be granted, it has been altered and repealed by the act of 1807. The notice, according to the very terms of the act itself, and I do not know that more forcible or less ambiguous could have been used, “ ought clearly and explicitly to set forth the cause of action,” that the justice may be fully apprised of the particular ground of the complaint, and consult with his counsel or friends so as to satisfy himself and know whether he, by his conduct, has done an injury to the plaintiff for which he is bound to tender amends. We think, therefore,' that the court below were clearly right in holding the notice to be insufficient. The second question. Although nothing appears either in the notice or the declaration to bring it up distinctly in this cause, yet it was raised by the counsel for the plaintiff in the argument of the cause before the court arid jury. He contended there, and has done the same here, that because it did not appear from the face of the oath made by the plaintiff in the attachment before the defendant as a justice of the-peace, previously to the latter, granting the writ, that the plaintiff had absconded from the place of his usual abode for the space of six days; that the plaintiff was therefore not the proper subject of such a writ, and that the defendant violated the act of assembly in this particular by granting the attachment, and thereby became liable to pay the penalty of 100 dollars. The decision of the question might be pretermitted after having decided the first in favour of the defendant; but as it has been argued, and the court below seemed to think it one of some difficulty, it may be proper to express our opinion upon it also. By the first section of the act of the 22d of August 1752 it is enacted, as alleged by the plaintiff’s counsel, that before granting the attachment the person requesting the same, or some other sensible person for him, shall, upon oath or affirmation, declare, that the defendant in such attachment is indebted; and that the defendant is and has been absconded from the place of his usual abode for the space of six days. But then by the first section of the act of the 4th of December 1807 it is enacted that “ it shall, and may be lawful, for the respective courts of common pleas, on the oath or affirmation of any creditor, or any other credible person for him, of the truth of his debt, and that his debtor or debtors had absconded or departed from the place of his or their usual abode in this state, or remained absent from the state, or have confined him or themselves in his or their own house or houses, or concealed him or themselves elsewhere, with design, as is believed, to defraud his or their creditors, and that the said debtor has not left a clear real estate in fee simple, within the state, sufficient to pay his debts, so far as such deponent knows or believes, to issue writs of attachment against all the lands, tenements, goods and chattels of such person or persons so absconding, absenting, confining or concealing him or themselves.” And again, by the fifteenth section of this same act, it is further enacted, “that the jurisdiction of the justices of the peace and aldermen shall be, and the same is hereby extended to all cases of attachment authorized by this act where the debt or demand of the plaintiff does not exceed 100 dollars.” Now what are the cases of attachment authorized by this. act 1 They are clearly those specified in the first section of it, which has been repeated. First, where (he debtor has absconded or departed from the place of his usual abode in the stale, with a. design, as is believed, to avoid his creditors : second, where he has remained absent from the state with a like design : third, where he has confined himself in his own house, with a like design: fourth, where he has concealed himself elsewhere with a similar design. Now here are four cases provided for by the act of 1807 in which domestic attachments may be sued out, and the jurisdiction of justices of the peace is expressly extended to them. By the act of 1752 one case alone is provided for in which a writ of domestic attachment may be.granted, and that case is altered by the act of 1807, by leaving out the words “for the space of six days,” so that in no case is it necessary, since the act of 1807, that a debtor should have absconded for the space of six days from his place of usual abode with a design to defraud his creditors, in order, to authorise the granting of a domestic attachment against him. The title of the act of 1807 indicated the intention of the legislature to make the alterations, as well as the body of it. The title of it is “ an act to alter and amend the several laws of this commonwealth relative to domestic attachment,” and the twentieth section of it expressly declares, “so much of any act of assembly as is thereby altered and supplied, to be thereby repealed.” This construction is likewise fortified by the provision of the' act of the 4th of April 1809, entitled “an act supplementary to the act of 1807.” The legislature thinking, inasmuch as no express authority was given by the act of 1807 to justices of the peace to administer the oath required by the first section of that act, before granting the attachment, that there might be some difficulty or doubt in regard to it, or possibly knowing that some had previously occurred, and therefore to remove any thing of the kind in future, passed the act of 1809, by which it is declared, that the oath required by the first section of the said act of 1807 shall be administered either by the prothonotary of the court, or .before a justice of the peace, as the case may require: thus plainly declaring where the writ of domestic attachment is to be made out by the prothonotary of the court, he shall administer the oath; but where it is required to be granted by a justice of the peace, then he shall administer the oath prescribed by the first section of the act of 1807. Hence the oath prescribed by the act of 1752 has not, since the passage of the act of 1807, been authorized to be administered in any case; and therefore the exception taken by the counsel of the plaintiff on the trial of the cause in the court below, to the oath administered by the defendant, before granting the attachment against the plaintiff, was most clearly not sustained. The court below therefore decided the second question rightly against the plaintiff. I do not however wish to be understood as deciding that the oath brought in question in this case is free from exception, because I think otherwise. The averment contained in it is, “ that they have absconded from the county, or do evade civil process, with design, &c.” That is, they have done one of two things, but it is not certain which. If their place of usual abode had been within the county, upon that being shown to be the fact, possibly it might have aided, and made the oath sufficient to have brought the defendants in the attachment within the first case provided for by the act of 1807, had not the subsequent alternative averment been superadded. I think the oath or affirmation ought to show particularly in which of the cases provided for by the act of 1807 it is that the defendant has put himself. Besides there is also another objection to the latter averment in the alternative. It does not conform to the terms used in the act in designating any of the cases in which attachments may be sued out. It may be said, to be sure, that the debtor who conceals himself in his own house or elsewhere to defraud his creditors, being a case expressly provided for by the act, does thereby evade civil process if any be sued out against him. But suppose he appear openly and publicly, but by force repel every attempt made to serve civil process upon him; in doing so, may it not be said with the same propriety, that he evades' civil process? Indeed I am rather inclined too to think, that the first averment is fatally defective in not stating that “ they had absconded from the place of their usual abode, &c.” instead of “county.” From the oath it cannot well be inferred or collected, shat they had ever had a place of abode within the county. Their place of residence or usual’abode may have been in another county, and if 'so, it would be difficult, I apprehend, to support the attachment. I would advise the words of the act to be adhered to in all cases, in order to avoid error, and possibly something still worse upon some occasions. Judgment affirmed.

The opinion of the Court was delivered by Sergeant, J. This case presents the consideration of the question that has so repeatedly been a theme of litigation in our courts, whether the transaction between these parties is to be considered as a mortgage or as an absolute sale in the first instance, with a subsequent distinct and independent agreement by the vendee, that on repaying him within a limited time the amount of the purchase money and interest he would reconvey the property. If it is the latter, the deed being executed and delivered on the 16th of October 1834 prior to the judgment, gives a better title than that under the sheriff’s sale upon the judgment. Whereas if the transaction was a mortgage, then the defeasance not being recorded with the deed nor prior to the judgment (nor indeed till long after), the conveyance to Bailey was an unrecorded mortgage, and will be postponed to the title under the judgment, agreeably to the decision in Freedly v. Hamilton, 17 Serg. & Rawle 70. I do not perceive in this evidence on what grounds this transaction can be treated as a mortgage. It is true a deed with a defeasance on payment of money is put on the same footing by a court of equity as a deed of mortgage in which the condition is contained in the same instrument. If it is in reality a security for the loan of money, it is the same whether it be contained in one or more instruments. But there is no evidence here that this transaction was in reality a loan of money, or that these instruments constituted one transaction, and that the conveyance was intended only as a security for the loan. On the contrary, all the evidence given in the case goes to show that the sale and conveyance were, in the first instance, absolute; and that the agreement to reconvey was a separate and independent bargain. The deed to Bailey purports to have been executed and delivered on the 16th of October 1834: the evidence of Mr Stewart goes to show that it was executed, acknowledged and delivered on that day, and there is no parol evidence to the contrary. Of course the title vested absolutely in Bailey on that day, if there were nothing further. The defeasance is not dated till five days after, viz. the 21sL of October; and there is no parol evidence that it was executed sooner. So far, then, from appearing t.o be one transaction on the face and dates of the papers, they appear to be distinct and unconnected ; and unless we go to the extent of saying that when a person has obtained an absolute deed he shall not, at any distance of time, be permitted to agree to reconvey on recovering back his purchase money and interest, without being placed in the predicament of a mortgagee, and subjected to the loss of both land and debt by the liens of intervening creditors, it would be impossible to treat this as a mortgage. It is true dates and papers of this kind may be affected, if it can be shown that the whole was merely a scheme or contrivance; that in reality it was a loan merely; and that the defeasance was understood and agreed on in the original arrangement, and the discrepancy of dates was merely accidental or with a sinister design. But that must be shown in a case like the present aliunde. It is contended that this is proved by the clause in the paper of the 21st, “the land he, Sampson, sells me this day,” and that Bailey was estopped by this averment from alleging that in fact the deed was executed and delivered previously. I do not think so. On the general issue before a jury the plaintiff is not estopped from showing that these words were mistakenly introduced, nor is the jury estopped from finding the truth. Estoppels to shut out the truth and deprive a party of his property, contrary to the real merit of his title, are odious; nor are they available unless strictly pleaded. We permit parol evidence to show mistakes in the execution of instruments; and a court of equity examines into the real merits of a transaction of this nature, where the papers are inconsistent, to ascertain what was the transaction between the parties. The whole evidence in this case tended to show that in fact the deed was executed and delivered on the 16th, and that the agreement of the 21st was a distinct and unconnected matter. . At least I am not aware that there is any to the- contrary; though I would not wish to be understood as intimating an opinion that may operate should any new facts on the subject be disclosed on another trial of the cause. As to the authorities which have been relied on, the cases in which the decisions occurred were very different from the present. In Kerr v. Gilmore, 6 Watts 405, the conveyance and the defeasance were dated and executed on the same day, and Mr. Justice Huston, in delivering the opinion of the court, draws the distinction between the case of a deed and agreement of separate and distinct dates and arising out of contracts really separate, and where they are of the same date and executed at the same meeting of the parties before the same witnesses and therefore in point of law one transaction; holding that the latter must be a mortgage, whereas the former may be a sale, if there are not circumstances showing it to be a security for a loan of money. And in Colwell v. Woods, 3 Watts 138, the deed of conveyance and covenant were executed contemporaneously,- and constituted in law one instrument, and were considered as if inserted in one conveyance; and the ground of the decision was, that the evidence showed that the transaction was founded on a loan of money, and the deed of conveyance was given as a security for its repayment. See 6 Watts 420, 421. None of these features occur in the present case on the evidence given. In relation to the bills of exception, I am of opinion that the first proposition, as a whole, was properly rejected, because it contained some matters which were certainly not evidence, such as the inferences from the acts and declarations of the parties, and the assurances of Thompson’s agent or attorney as to Bailey’s having his money refunded ; but that the residue ought to have been received, to enable the court and jury to judge better of the real nature of the transaction, and -to explain any ambiguities arising on the face of the papers. ■ The second bill of exceptions is not sustained. The bill of Thompson relates to the judgment, and notice to him is immaterial; it would not put him in the situation of a purchaser with notice; it could not do so without affecting the right and interest of the judgment creditor in the value of the property to the full. The same remark applies to the residue of the offer. Judgment reversed, and a venire facias de novo awarded.

Opinion by President Judge Bowman, Dr. William F. Bruteyn has appealed from a decision of the State Dental Council and Examining Board (Board) revoking his license to practice dentistry. He contends that his due process rights to a fair and impartial hearing were violated alleging that both the prosecuting Deputy Attorney General and the Board itself unconstitutionally commingled the investigatory, prosecutory, and adjudicative functions. These proceedings find their genesis in a complaint filed with the Board December 3, 1973 by the Lancaster County Dental Society charging Dr. Bruteyn with improper advertising and unprofessional treatment of patients. The Board scheduled an informal meeting with Bruteyn on January 14, 1974, after which an investigation was ordered. The initial investigation was conducted into the allegations presented by the Lancaster County Dental Society. Thereafter, an independent investigation was pursued by Melvin R. Shuster, Deputy Attorney General, and Lawrence Alexander, Assistant Attorney General, which culminated in formal charges and a citation by the Board. Several major allegations of professional misconduct were included: improper use and administra tion of intravenous sedation and general anesthesia; fraudulent advertising; self-administration of drugs; improper delegation of surgical and orthodontic duties to dental assistants; and the false reporting of a crime to law enforcement authorities, thereby evincing moral turpitude. On September 30, 1975, the Board adjudicated Bruteyn (hereinafter Appellant) guilty on all counts and revoked his license. Appellant deems this adjudication suspect on two .separate though related grounds. He complains initially that the Board, by issuing the formal charges against him, and by authorizing an investigation into those charges, became so inextricably intertwined with the prosecution that an independent and impartial adjudication into his guilt or innocence became an impossibility. Appellant next asserts that the Deputy Attorney General prosecuting the case before the Board served also as the Board’s legal advisor before, during and after the hearing, so tainting the proceedings as to deprive Appellant of his constitutional right to a fair trial. In order to determine the viability of these allegations some further facts are necessary. As the minutes from the Board’s meeting with Appellant on January 14, 1974 indicate, it was the Board which .made the initial decision that a complete and thorough investigation be made by the Law Enforcement Division. Upon completion of this investigation the Board forwarded the file on May 13 to the Legal Department with its recommendation that a formal hearing be held. At the next Board meeting on July 29, a hearing was scheduled for September 24. A citation and no tice of hearing were prepared, signed by the Board chairman, and forwarded to Appellant. One of the principals in these prehearing events was Deputy Attorney General Shuster. He had met initially with the Board prior to the January 14 meeting with Appellant to review the file, represented the Board at the meeting, and coordinated the resultant investigation. The decision to prosecute was ultimately made by the Justice Department, ostensibly by Deputy Attorney General Shuster who informed the Board at its July 29 meeting that a hearing had been scheduled. He then drew up the citation, and undertook the role of prosecuting attorney. During the course of the hearing the Board was unrepresented by counsel. On two separate occasions it became necessary to rule on motions by Appellant to strike portions of the citation. On each occasion the prosecuting attorney solicited unilaterally a written opinion from his superior at the Division of Commercial, Financial and Governmental Services which was then submitted to the Board to aid in passing on the motions. Appellant cites this as evidence of the continuing role played by the prosecuting Deputy Attorney General as legal advisor to the Board. On September 30, 1975, the Board met to deliberate and adjudicated Appellant guilty of each of the ten counts contained in the citation. Appellant’s license was thereupon revoked. The Board directed that an Adjudication and Order be prepared and forwarded to the Justice Department for approval. This was done by the prosecuting attorney. In so doing, he included additional facts which, while supportive of the Board’s conclusion, had not been voted on or considered at the September 30 meeting. On December 30, 1975, these amendments were unanimously accepted by the Board. Appellant timely filed his appeal, exceptions and application for supersedeas, which appeal is now before us for disposition. It is conceded that a “fair trial in a fair tribunal is a basic requirement of due process,” In re Murchison, 349 U.S. 133, 136 (1954), and this requirement is as applicable to administrative agencies as it is to the courts. Withrow v. Larkin, 421 U.S. 35 (1975); Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961). There has been, however, a tendency in the decisional law in which the issue is one of a fair tribunal to give precedential value to prior decisional law in which the sole issue or controlling issue concerned the commingling of functions of staff personnel of an administrative agency, an issue which basically relates to a fair trial rather than a fair tribunal. Of course, it cannot be gainsaid that the end product of the want of a fair tribunal is an unfair trial nor that the want of a fair trial regardless of the impartiality of the tribunal must be condemned; but in our search for even justice before administrative adjudicatory agencies, these two concepts must be delineated in defining the elements of a fair trial and the criteria of a fair tribunal. Turning first to the role played here by the Board it must be noted that a not insignificant number of our State administrative agencies, The Dental Board included, are authorized under their operative statutes to investigate possible violations of the law, to act as complainant in enforcement proceedings and to adjudicate enforcement proceedings, including those initiated by the agency as complainant. Whereas we feel the Board may indeed have participated in the initial decision to prosecute, and may have supervised the initial probable cause investigation, this does not render its adjudication invalid per se. The procedures followed here by the Board comport favorably with those expressly sanctioned in State Dental Council and Examining Board v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974), which recognized that a State administrative agency in performing its statutorily authorized dual function of complainant and adjudicator of the complaint is not an unfair tribunal so long as these two functions are adequately separated. The initial investigation was here conducted by the Law Enforcement Division of the Bureau of Professional and Occupational Affairs, the legal office of which, as represented by prosecutor Shuster, determined a hearing was warranted. The same legal office drafted the citation. “A fortiori, there is no Due Process violation in the administrative structure . . . where (the prosecutory and judicial) functions (are) handled by distinct administrative entities with no direct affiliation to one another.” State Dental Council and Examining Board v. Pollock, supra at 271, 318 A.2d at 915 (emphasis in original); see also Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa. Commonwealth. Ct. 295, 3.01, 361 A.2d 497, 501 (1976). We do not mean by this holding to minimize ,.the potential dangers arising when those who investigate also adjudicate. We are simply recognizing, that inquiries into probable cause do not raise an unconstitutionally high risk of bias or' prejudgment so as to invalidate ipso facto a decision, after a contested hearing, that there has been a violation of statute. See generally Withrow v. Larkin, supra; 2 K. Davis, Administrative Law 175 (1958). Some finding of actual bias is required. To hold otherwise would “(overlook) the purpose of judicial and quasi-judicial proceedings as well as the ability of honest men to perform the duty required of them as normal human beings endowed with intellect and reason.” Vandergrift Borough v. Polito, 407 Pa. 286, 288, 180 A.2d 215, 215 (1962). We by no means intend to compromise prior decisional law condemning procedures which conjoin in an individual the prosecutorial and judicial functions. See Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975); Horn v. Township of Hilltown, 461 Pa. 745, 337 A.2d 858 (1975); English v. North East Board of Education, 22 Pa. Commonwealth Ct. 240, 348 A.2d 494 (1975). “Every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio, 273 U.S. 510, 532 (1926). Despite our holding that Appellant was not deprived of a fair tribunal, we do feel that there are sufficient indications in the instant case to warrant a conclusion that this balance was not properly set by the prosecuting Deputy Attorney General, thereby depriving Appellant of a fair trial. The role of the prosecutor is to fashion as strong a case against the accused as the evidence will allow. This is manifestly at odds with the impartiality required of the adjudicator. "When the prosecutor as an individual is permitted in some manner to fulfill the role of the fact-finder one of the necessary elements of a fair trial is lacking. This situation differs markedly in substance from that in which the exigencies of modern corporate government require that one entity within a particular agency make the decision to prosecute, and another to sit as adjudicator. In State Board of Medical Education and Licensure v. Grumbles, 22 Pa. Commonwealth Ct. 74, 347 A.2d 782 (1975), we held that when an attorney general from the same staff as the prosecutor prepares the adjudication such came “perilously close” to violating due process. In Pennsylvania Human Relations Commission v. Thorp, Reed & Armstrong, supra, we questioned in a similar manner the actions of the Pennsylvania Human Relations Commission’s legal department acting as both prosecutor and legal advisor to the hearing examiner, albeit through different attorneys. The decision in the latter case, while acknowledging that “[t]he fact finding process . . . must be afforded the broadest dimensions of constitutional protection,” turned on the fact that there was no actual prejudice rendering the hearing constitutionally infirm. We feel these holdings to be consistent with that in State Dental Council and Examining Board v. Pollock, supra, wherein the Supreme Court, although condoning the action of the prosecuting assistant attorney general in “aiding” the Board in drafting the adjudication, did so upon the express finding that such assistance came after the Board had reached its decision and the assistant in no way participated in or influenced the decision. . . . While it would he a better practice to have review of adjudications conducted by an individual who did not participate in the prosecutorial role, we can find no prejudice here where the Board reached its decision independent of and prior to any assistance from the representative of the Department of Justice. Appellant was not denied Due Process in this regard. Id. at 272-73, 318 A.2d at 915. As the prosecuting attorney was here responsible for drafting the Adjudication and Order there was no constitutionally permissible separation of duties such as existed in Thorp and Grumbles. Nor do we find the independence of Board from prosecutor upon which Pollock rested. When the same attorney general who investigated and prosecuted a case then drafts a final Adjudication and Order in which he takes it upon himself to amend and supplement certain findings, we feel the adjudicatory stage of the proceedings to have been unconstitutionally tainted. This is particularly true when the Board had theretofore relied upon the same attorney general to advise it in preinvestigation meetings, to schedule the formal hearing, and to supply it with legal opinions regarding the defendant’s evidentiary motions. Such confluence of prosecutor and adjudicator creates the atmosphere of dependence which distinguishes the instant case from Pollock. Standing alone, the legal advice supplied by the prosecutor would fall subject to the actual prejudice requirement of Thorp, as it did not emanate from the prosecutor himself. It is, however, significant when attempting to define just what role the prosecutor played in these proceedings. An attorney providing prehearing legal advice to an adjudicatory body should not then serve as prosecuting attorney; the prosecutor should not assume a role of providing legal advice to the hearing body; and finally, the drafting and review of the final Adjudication and Order should be the responsibility of someone other than the prosecutor, particularly any amendments thereto. Taken together such procedures create a sufficient appearance of impropriety as to warrant a denial of due process. Cf. Horn v. Township of Hilltown, supra; see also Department of State v. Chairman, 31 Pa. Commonwealth Ct. 615, 377 A.2d 1022 (1977). Although we are unconvinced any actual prejudice adhered to Appellant’s case, such procedures are so susceptible to prejudice that a remand for a proper hearing is required in order to insure the integrity of the administrative process. Judge Kramer did not participate in the decision in this case. Order Now, December 2,1977, the order of the State Dental Council and Examining Board revoking the dental license of William P. Bruteyn, D.M.D. is hereby reversed. The proceedings are remanded to the Board for new proceedings consistent with this opinion. Pursuant to Section 3 of The Dental Law, Act of May 1, 1933, P.L. 216, as amended, 63 P.S. §122. As the Commonwealth outlines in its brief, the Division of Commercial, Financial and Governmental Services supervises the attorneys assigned to the Legal Office of the Bureau of Professional and Occupational Affairs, and reviews as to legality all adjudications and orders which are prepared by the professional licensing agencies of the Bureau. See Section 36 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, added by Section 4 of the Act of September 28, 1951, P.L. 1561, as amended, 71 P.S. §1710.36. The Commonwealth concedes in its brief that the prosecuting attorney prepared the Adjudication and Order. It does contest, however, Appellant’s assertion that the prosecutor also fulfilled the function of approving the same. The record does not indicate through what chain of personnel passed the Adjudication and Order. The record does indicate, however, that the prosecuting attorney assumed responsibility for returning the documents to the Board, and informing it of the additions and amendments. A supersedeas was granted by Order of this Court dated January 19, 1976. Again, the Commonwealth disputes just who prepared the additions and amendments; the record is deficient in this regard. It is clear that the prosecutor assumed responsibility for them in his communications with the Board.

Opinion by Judge MacPhail, James Harold Davis (Petitioner) has filed a petition for review alleging that the Pennsylvania Board of Probation and Parole (Board) erroneously recomputed his sentences. The Board filed an answer with new matter and attached a certificate of the chairman of the Board setting forth the Petitioner’s official record with the Board. The Petitioner filed a reply and a motion for summary judgment whereupon the Board filed a cross-motion for summary judgment. Pursuant to an order of this Court, the matter has been submitted upon the filing of briefs. It appearing that the pleadings are closed and that there is no dispute as to the essential facts, the case will be disposed of pursuant to the provisions of Pa.R.C.P. 1035. Prom the pleadings it appears that the Petitioner received two sentences on January 26, 1974, each for a term of 9 to 59 months in the Berks County Prison. On October 30, 1974, he received another sentence of 9 to 59 months in the same county prison. Subsequently, he was paroled on both sentences, the date of the last parole being September 4, 1975. On May 20, 1976, he was arrested for new crimes in Berks County. On May 28, 1976, the Board filed a parole violation' detainer against the Petitioner. The Petitioner was convicted on November 12, 1976, with respect to the charges for which he had been arrested on May 20, 1976. After a revocation hearing, the Petitioner was recommitted as a convicted parole violator on November 12, 1976, “when available.” On September 7, 1977, the Petitioner was sentenced on his new charges (upon which he had been convicted on November 12,1976) to a term of not less than 2 nor more than 7 years in a state correctional institution. The trial judge ordered that the effective date of the sentence would be September 7, 1977, with the Petitioner to receive credit on that sentence of 475 days for time served. On October 20,1977, the Board reaffirmed the Petitioner’s recommitment as a convicted parole violator “when available.” Thereupon the Petitioner began his sentence in the State Correctional Institution at Graterford. According to the certificate of the Chairman of the Board, the Petitioner’s present status is that he is in a state correctional institution serving his 2 to 7 year term with an effective date of sentence of August 29, 1977, with the minimum term expiring August 29,1979, and the maximum term expiring August 29, 1984. Although there is no allegation in any of the pleadings that the sentence imposed by the Berks County Court of Common Pleas on September 7,1977, included a provision that the Petitioner should receive credit for 475 days on those sentences, both briefs assume that to be the fact and it is apparent that the crux of the petition now before us is how that credit should be applied. It is obvious that the Board applied the credit to the Petitioner’s original sentence. It is the Petitioner’s position that the Board’s action in that respect violates the laws of the Commonwealth of Pennsylvania, the Buies of Criminal Procedure and the provisions of the eighth amendment to the Constitution of the United States prohibiting cruel and unusual punishment. The Board relies upon our decision in Mitchell v. Pennsylvania Board of Probation and Parole, 31 Pa. Commonwealth Ct. 243, 375 A.2d 902 (1977) when it applied the Petitioner’s confinement time to the Petitioner’s original sentences. In the Mitchell case the Board argued that under the provisions of Pa.B.Crim. P. 1406(b) it had the discretion to apply the Petitioner ’s confinement time to his original sentence or to any new sentence in the circumstances where a parolee had been arrested on a new charge and the Board subsequently filed a detainer against the parolee. Our Court said: However, once the Board, as an agency with statewide jurisdiction, lodges its detainer or causes a parolee to be arrested on its warrant, a parolee is in the custody of the Board and is no longer incarcerated Tor the offense or offenses for which such sentence is imposed’ as those words are used in Pa.R.Crim.P. 1406(b). Cf. Commonwealth ex rel. Bleecher v. Rundle, 207 Pa. Superior Ct. 443, 217 A.2d 772 (1966). The Board, not being compelled to lodge a detainer against a prisoner who will remain incarcerated in any event, must abide by the consequences of its election to do so. Id. at 249, 375 A.2d at 905. It is now apparent that we must clarify what was intended by that language. First, it must be noted that the only issue in Mitchell was the Board’s discretion. Specifically, our Court did not address itself to the question of what the situation would be where a trial court, as part of its judgment of sentence, directs that the defendant shall receive credit for time served on the new sentence. Second, although a footnote (No. 3) in the Mitchell case may indicate otherwise, an exhibit attached to the petitioner’s brief in that case indicates that the petitioner had posted bail on the new charges one day after the Board lodged its detainer. Accordingly, the petitioner in Mitchell was eligible for release and would have been released hut for the Board’s detainer. To the extent that it is necessary for us to do so, we now modify our holding in Mitchell to mean that where the Board’s detainer is the sole reason the prisoner is being confined, the Board must apply the time in confinement to the prisoner’s original sentence or sentences. Next, we reach the issue of what the result should be when a trial judge, bound by the provisions of Pa. R.Crim.P. 1406(b), directs in the judgment of sentence that the prisoner should receive credit on his new sentence for time spent in custody for the offenses for which he is being sentenced. Here, the over-riding question again is whether the prisoner spent his time in prison pursuant to his arrest on new charges or pursuant to the detainer lodged by the Board. The answer will depend upon whether the prisoner was eligible for and satisfied bail requirements for the new offenses. Assuming that the defendant’s confinement is due solely to the new charges and that the Board has done nothing to assume jurisdiction over the prisoner other than to file a detainer which assures that the prisoner will be turned over to the Board “when available,” we hold that the terms of a judgment of sentence which ’ conforms with Pa.R.Crim.P. 1406(b) must prevail in recomputing the prisoner’s maximum sentence. Were we to hold otherwise the prisoner (as has happened in the case now before ns) would serve a longer minimum and a longer maximum sentence than the trial judge intended. Whether or not such a result reaches constitutional dimensions we need not decide. For the reasons stated, we must sustain the Petitioner ’s motion for summary judgment in this respect. The Petitioner also objects to the fact that he was compelled to commence serving his new sentence rather than serving the balance of his original sentence as a convicted parole violator. Moreover, he avers that by virtue of this fact the Board has somehow waived its jurisdiction over him. We hold that the Board acted properly in following the mandatory provisions of Section 21.1(a) of the Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401 as amended, 61 P.S. §331.21a(a), which provides that the service of a new sentence shall precede the commencement of service of the balance of the original sentence in circumstances where the parolee is paroled from a county penal or correctional institution on his original sentence and his new sentence is not to be served in the same county penal or correctional institution. Here, the Petitioner was originally paroled from a county institution and his new sentence is to be served in a state institution. Accordingly, the Board’s position is correct with respect to that aspect of the case and, therefore, there has been no waiver of jurisdiction. Order And Now, this 16th day of November, 1978, the motion for summary judgment filed by the Petitioner, James Harold Davis, is sustained only as to that part thereof relating to the recomputation of his maximum sentence and it is ordered that the Pennsylvania Board of Probation and Parole recompute the Petitioner’s maximum sentence in accordance with the foregoing opinion. In all other respects judgment is entered for the Board of Probation and Parole. The Petitioner was confined in the Berks County Prison from May 20, 1976, until September 7,1977. Now on appeal to the Supreme Court of Pennsylvania (No. 614 January Term 1977). “A sentence to imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense or offenses for which such sentence is imposed, which date shall be specified by the judge. Credit, to be calculated by the clerk of court, shall be given as provided by law for any days spent in custody by the defendant for such offense or offenses prior to the imposition of sentence.” Pa.R.Crim.P. 1406(b).

OPINION OF THE COURT O’BRIEN, Justice. This appeal arises from an order of the Commonwealth Court, affirming the order of the Court of Common Pleas of Allegheny County, which granted appellees’ request for summary judgment. We granted allocatur. The factual setting in which this appeal arose is as follows: On June 24, 1971, County Detectives Robert L. Hartshorn and Michael Davis, appellees, notified County Commissioners Leonard C. Staisey, Thomas J. Foerster and William R. Hunt, M.D., and District Attorney Robert Duggan, appellants, that appellees wished to conduct collective bargaining under the Act of June 24, 1968, P. L. 237, No. Ill, Section 1, 43 P.S. § 217.1 (Act 111), which provides a procedure for policemen to bargain with their employer. Appellants did not respond. On September 10, 1971 appellees notified appellants of their intention to engage in binding arbitration under Act 111. Again, appellants did not respond. Appellees then filed a complaint in mandamus against appellants, in which they sought to compel arbitration. Appellants filed preliminary objections to the complaint alleging, inter alia, that the Court of Common Pleas of Allegheny County lacked jurisdiction in the matter, since the issue of whether appellees were covered by Act 111 should first be determined by the Pennsylvania Labor Relations Board and, further, that appellees were not policemen as defined in Act 111. Subsequent to the final disposition of appellants’ preliminary objections, the Commonwealth Court, in Venneri v. County of Allegheny, 5 Pa.Cmwlth. 105, 289 A.2d 523 (1972), held that deputy sheriffs did not have to seek a Pennsylvania Labor Relations Board determination of whether they are covered by Act 111, but rather they could and should, seek a court determination on the issue. In light of this case, the Court of Common Pleas in the instant case dismissed appellants’ preliminary objections relating to jurisdiction, and thereafter granted appellees’ motion for summary judgment and ordered appellants to arbitrate. The Commonwealth Court affirmed that decision. We granted allocatur and now affirm. We are of the opinion that appellees need not seek an initial determination from the Pennsylvania Labor Relations Board as to whether they are policemen within the meaning of Act 111. In our opinion, the Second Class County Code, Act of July 8, 1953, P.L. 723, Art. XIV, § 1440, 16 P.S. § 4440(b), which provides: “(b) County detectives shall at all times be subject to the orders of the district attorney, and shall investigate and make report to the district attorney as to the conduct in office of magistrates, constables, deputy constables and other officers connected with the administration of criminal justice, to make investigations, and endeavor to obtain such evidence as may be required by the district attorney in any criminal case, and perform such other duties as the district attorney may direct. Said detectives shall be general police officers and shall have all powers now conferred on constables by existing laws of this Commonwealth, so far as they relate to crime or criminal procedure, and they shall serve subpoenas in cases in which the Commonwealth is a party in a court of record.” (Emphasis supplied.) makes clear that the legislature intended the county detectives to be classified as policemen. Since 16 P.S. § 4440(b) establishes that appellees are policemen, their right to collective bargaining is then clear under Act 111, making mandamus the proper remedy to enforce such bargaining. Order affirmed. POMEROY, J., filed a dissenting opinion.

OPINION, Mr. Justice Paxson : There is no question raised here as to the title of the one hundred and thirty-three shares of the capital stock of the Allegheny Gas Company, held by the appellants. The petition avers, and the demurrer admits, that said stock belongs to the estate of James Marshall, deceased; that it was wrongfully pledged by James Marshall, Jr., one of the executors of said estate, for his individual debt, and that appellants knew when the stock was pledged with them that it belonged to the estate of James Marshall. This leaves the single question whether the Orphans’ Court had jurisdiction in this proceeding to compel appellants to deliver up said stock to the parties legally entitled thereto. The Orphans’ Court has jurisdiction over the estates of decedents. While its authority to try disputed questions of title may well be doubted, it is very certain that it has the control of the assets which admittedly belong to the estate of a decedent. It was held in Brooke’s App., 102 Pa. 150, that the surety of a guardian who had received certain bonds belonging to the minor’s estate, could be compelled by the Orphans’ Court to deliver them up to the guardian notwithstanding an express stipulation in which the latter had joined that the bonds should remain ha his hands until the minor arrived at age. The act of May 19, 1874, P. L. 206, provides that the Orphans’ Court “shall have power to prevent by order, in the nature of writs of injunction, acts contrary to law or equity, prejudicial to property over which they shall have jurisdiction; provided that security shall be given as is now required by law in cases of writs of injunction.” This act was but declaratory of the law as it stood prior to its passage, and if this were not so, the act in express terms gives the Orphans’ Court chancery powers, so far as an injunction is concerned, in regard to property over which it has jurisdiction. The court had jurisdiction over this property for the reason that it belonged to the estate of James Marshall. It cannot be doubted that under the act of 1874, it had the power to issue a restraining order in the nature of an injunction to prevent the appellants from transferring this stock. This would be the exercise of a chaneeiy power expressly conferred upon the Orphans’ Court. This equitable jurisdiction having attached, it was sufficient to embrace every relief necessary for a full disposition of the case: Winton’s Appeal, 97 Pa. 385; Mc-Gowin v. Remington, 12 Pa. 63; Souder’s Appeal, 57 Pa. 498. When a cause is once within the grasp of a court of equity, or a court lawfully exercising equity powers, it has no need to call in the aid of a court of law. Its process is plastic, and its power is only limited by the necessities of the case, and by its duty to administer equity in accordance with established rules. In such case it needs no other court to finish its work. The decree is affirmed, and the appeal dismissed at the costs of the appellant.

The opinion of the court, which was delivered upon the whole case, was on this point as follows: Tjxghman C. J. The point which required most consi- deration, was, whether the case was of such a nature as called for á mandamus; and we think that it is, because the supervisors are public officers, directed by the act of assembly to pay such orders as are legally drawn by the justices, and because the surveyors have no other specific remedy. It is said that the supervisors may be indicted for neglect of duty. But if they were indicted and convicted, the orders might still be unpaid. It is said also that if they withhold payment without just cause, they are liable to an action. Granting that they are, it must be brought against them in their private capacity; and there is no form of action against them, which, being carried to judgment, will authorize an execution to be levied on the treasury of the Northern Liberties. Now it was to this treasúry that the surveyors had a right to look, when they acted under their commission from the governor. It may be said, that in truth their contract was with the township, and from the township they have a right to expect payment. The court ordered the rule to be made absolute for a mandamus in the case of each surveyor. Rule absolute.

The opinion of the Court .was delivered by Kennedy, J. It is doubtless true, that after the end of the term in which the court has rendered judgment upon a case stated on a special or general verdict, from which an appeal may be taken by writ of error, or otherwise, it cannot alter or change it, with a view to correct what the court upon further reflection may consider an error therein. But it would be going too far, to say, that such court may not afterwards, before any proceeding has been had upon the judgment, correct a mere mistake that has arisen in entering it differently from what was intended, and perhaps, directed. Whenever there is something to correct the mistake by, as for instance, the notes of the presiding judge, no danger need be apprehended from doing so: and the general rule on this subject,, as well as the reason of the thing, would seem to justify it. Here, it would seem, that the design of the court was, to enter judgment for the patentee, believing him, at the moment, to be the plaintiff, when in fact, he was the defendant, and under this misapprehension entered the judgment for the plaintiff. But the presiding judge, on his way, returning home from the court, after the end of the term, discovered his mistake in having directed the judgment to be entered for the plaintiff, instead of the defendant, and thereupon, by a note to the clerk of the court, directed it to be corrected, which was accordingly done. But admitting this to have been wrong, still it cannot avail the plaintiff in error, if the defendant below was entitled to have the judgment of the court rendered in his favour upon the case as stated; for it is the duty of this court, when they reverse the judgment of the court below, given either upon a case stated, or a special, or general verdict that is good, upon a writ of error taken out, by either the plaintiff or the defendant below, to give such judgment as the court below ought to have given. Gildart v. Gladston, 12 East 668; Slocumb’s Case, Cro. Car. 442; Butcher v. Porter, Cro. Jac. 400-1; S. C. Carthew 242; Anonymous, 1 Salk. 401; S. C. 7 Mod. 2, 3; Bret v. Bagill, Comb. 398; 9 Vin. Abr. 579, tit. Error,pl. 1, p. 580,pl. 8; 2 Tidd’s Prac. 1237-S; Commonwealth v. Ellis, 11 Mass. 466. These authorities go to show clearly, that whether the writ of error be sued out by the plaintiff or the defendant below, the court of error ought in all cases to give the same judgment, which the court below ought to have rendered; thus showing, likewise, that the distinction taken in Baker v. Lade, Carthew 254; and Parker v. Harris, 1 Salk. 262; Philips v. Bury, 1 Ld. Raym. 10; and recognized by Sergeant Williams, 2 Saund. Rep. 101, w and k in notes; King v. Amery, 1 Anstr. 178; Mellor v. Moore, 1 Bos. & Pull. 30; Pangburn v. Ramsay, 11 Johns. Rep. 141; Swearingham v. Pendleton, 4 Serg. & Rawle, 389. Where it is laid down, that if judgment be given for the plaintiff, and the defendant bring a writ of error, upon which the judgment is reversed, the judgment shall be merely to reverse the former judgment, because, as is there said, the writ is brought only to be eased and discharged from the judgment: but if judgment be given for the defendant, and the plaintiff bring a writ of error, the judgment shall not only be reversed, but the court shall give such judgment as the court below should have given; for the writ of error, as it is there alleged, is to revise the first cause, and to recover what he ought to have recovered in the first suit. But this reason is far from being satisfactory, because not well founded; for, if we refer to the form and tenor of the writ of error, setting forth the authority and duty to be exercised and performed under it, it will be seen, that they are the same, whether the writ be taken out by the defendant or the plaintiff below; and that it is, in short, in either case, a commission giving to the judges of the court of error an authority, and at the same time requiring them to correct the error therein complained of, and to do speedy justice to the parties: or as is said in 7 Mod. 3, the judges “ are to reform as well as to affirm or reverse.” Besides the circumstance of there being nothing in the writ of error to warrant the distinction, it is perfectly evident, that to reverse the judgment merely upon the defendant’s writ of error, without giving such judgment as the court below should have given, would in many cases neither be correcting the error fully, nor doing speedy justice to the parties, as is required by the writ, and enjoined by the constitution of the state, which requires that justice shall be administered without delay. The important question, therefore, to be decided here, is, are the facts, as set forth in the case stated, sufficient to entitle the plaintiff in error to recover the land in question? It seems to be admitted, that if the survey made and returned upon the warrant granted to John Hendrick, under which the defendant claims, be good, that the plaintiff cannot recover: and, indeed, it is very clear, that unless this survey be wholly void, the plaintiff has not even the colour of title. The objection made to- the survey is, that it was made upon land lying in Westmoreland county, and not upon land in Northumberland or Huntingdon county, according to the call of the warrant. In support of this, the 15th sect, of the act of 8th Of April 1785, Purd. Dig. 614; and the 6th sect, of the act of the 3d of April 1792, Purd. Dig. 619, are relied on. By these sections, it is enacted, that in making any survey, by any deputy surveyor, he shall not go out of his proper district to perform the same, and every survey made by any deputy surveyor without his proper district shall he void and of no effect. Now, admitting these sections to be applicable to land lying, as the land here does, within the purchase of 1768, though it has been said to have been ruled otherwise, the survey was not made by a deputy surveyor without his district, which is the thing that is prohibited by those sections. The survey in this case, appears to have been made by the deputy surveyor of Westmoreland county, upon land lying within that county at the time, which was clearly within his district, and therefore, does not come within the prohibition contained in the sections of the acts cited. It was certainly competent for the surveyor-general, upon being informed by the holder of the warrant here, that the land which he wished to have surveyed under it, lay in Westmoreland county, to have directed it to his deputy in that county, and if a survey had been accordingly made by such deputy, it scarcely can be doubted, but it would have been good. Now for aught that appears to the contrary, the survey here, may have been made by the deputy surveyor of Westmoreland county, under such air authority, written upon the copy of the warrant put into his hands, which has not been produced. And after an acquiescence for upwards of thirty years on the part of every body, in the survey as made and returned here, it ought to be presumed, on account of the public peace and security of titles to real estate, that it was rightly made. In Bellas v. Levan, 4 Watts 294, this court held, that such an acquiescence for upwards of twenty years in a survey returned, purporting to have been made by the deputy surveyor, going on the ground as required by law, could not be gainsaid, and that the presumption of law arising therefrom, that it was rightly made, was conclusive. But supposing it were not, the acceptance of the survey from him, by the surveyor-general, may well be considered as equivalent thereto, Omnis raiihabitio retrolrahitur et mandato priory •atur. at most, it is only in effect, shifting the location of the warrant from the land mentioned therein, as lying in one county, to land lying in a different county, which in principle cannot be materially different from shifting a warrant from land described in it, as lying in a certain township, to land lying in another township of the same county, which has been every day’s practice, and held good. This indulgence seems to have been conceded at all times by the state, to the holders or owners of land warrants; and, indeed, it has been the only means of redress, to which the owner of a warrant taken out for land, which happened to be previously appropriated, could resort. Judgment affirmed.

Opinion by Mr. Justice Roberts, The facts of the case before us need be presented only in their brief essentials. In 1940, Leon Butler was arrested and, during his arrest, confessed to murder. Butler had no counsel at his preliminary hear ing, although two court-appointed attorneys represented him when the case was tried before a jury on defendant’s plea of not guilty. The confession was introduced into evidence and the trial transcript is replete with testimony by the defense attempting to establish that Butler was beaten and coerced into giving an involuntary confession. Basing his petition on these central facts, as well as others, Butler sought a writ of habeas corpus in 1964. In essence, the petition framed two significant questions: (1) Does lack of counsel at preliminary hearing in this Commonwealth, in and of itself, amount to a deprivation of due process of law? and (2) Is the ruling of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), to be given retroactive effect? Answering both questions in the negative, the Court of Common Pleas No. 1 of Philadelphia County dismissed the petition without hearing. I Petitioner does not allege, nor does the record show, any consequences which flowed from the absence of counsel at the preliminary hearing. No legal right was lost; no factual or legal disadvantage was suffered. Petitioner’s flat assertion is that lack of ■ counsel at this stage of the proceedings, in itself, violates due process. Reliance is placed on Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963), by the petitioner. More closely related, of course, is White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963). The court below rejected petitioner’s assertion. Our Superior Court has ruled to the same effect. Commonwealth ex rel. Land v. Rundle, 202 Pa. Superior Ct. 509, 198 A. 2d 433 (1964), allocatur denied, 203 Pa. Superior . Ct. xxxvi (1964); Commonwealth ex rel. Jones v. Rundle, 204 Pa. Superior Ct. 316, 204 A. 2d 487 (1964). And this Court has reached a like result. Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A. 2d 283 (1965); Commonwealth ex rel. Herge v. Rundle, 415 Pa. 36, 202 A. 2d 24 (1964); Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A. 2d 565 (1964); Commonwealth ex rel. Wagner v. Myers, 414 Pa. 35, 198 A. 2d 540 (1964) ; Commonwealth ex rel. Whiting v. Rundle, 414 Pa. 17, 198 A. 2d 568 (1964); Commonwealth ex rel. Parker v. Myers, 414 Pa. 427, 200 A. 2d 770 (1964). The holding of these cases is that a preliminary hearing in this Commonwealth is not ordinarily a critical stage in the proceedings against the accused. As this Court has noted, the situation in White v. Maryland, supra, is distinguishable. There the accused entered a plea of guilty at the preliminary hearing without the benefit of counsel and that plea was subsequently used against the accused at his trial after he had changed his plea to not guilty. Thus, the plea of guilty at. the hearing in that case became important. These facts transformed the preliminary hearing in that instance into a critical stage. In the absence of unusual circumstances which transform the proceeding into a critical stage, lack of counsel at preliminary hearing in this Commonwealth does not constitute a deprivation of due process. No such transformation occurred in the instant case. II As has been noted, the appellant-petitioner raised the alleged involuntariness of his confession during the 1940 trial. In dealing with that contention, the trial judge submitted the confession to the jury along with instructions that the jury must determine whether the confession was, in fact, voluntarily given. If it was found to be involuntary, the trial judge charged, it must be completely disregarded. This method of submitting contested confessions to the trial jury without a prior independent judicial determination of voluntariness was established practice in this Commonwealth and was considered to be in accord with constitutional requirements of due process and had been so held in Stein v. New York, 346 U.S. 156, 73 S. Ct. 1077 (1953). However, in June of last year, the Supreme Court of the United States again reviewed this question and reached the conclusion that procedures such as ours failed to afford due process of law because they were not “fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession . . . .” Jackson v. Denno, 378 U.S. 368, 391, 84 S. Ct. 1774, 1788 (1964). Since the relator in this case was tried, and his judgment finalized, the case clearly presents the important issue of whether the Jackson ruling operates on cases tried prior to its date of filing. We have no express decision by the Supreme Court of the United States on the issue, but we think it abundantly clear from both the nature of the declared constitutional infirmity and implications of recent decisions of the Supreme Court of the United States that the Jackson ruling is to be applied to finalized convictions. We note, in passing, that this Court has implicitly so ruled. See Commonwealth ex rel. Gaito v. Maroney, 416 Pa. 199, 204 A. 2d 758 (1964). The most persuasive authority for the proposition that the principle of Jackson v. Denno is to be applied to convictions finalized prior to the date of that decision is Jackson itself. Although none of the various opinions filed in the numerous proceedings in the case give the exact date of the conviction, Jackson must have been convicted in late 1960 or early 1961. The New York Court of Appeals affirmed his conviction. 10 N.Y. 2d 780, 177 N.E. 2d 59, 219 N.Y.S. 2d 621 (1961), amended, 10 N.Y. 2d 816, 178 N.E. 2d 234, 221 N.Y.S. 2d 521 (1961). The Supreme Court of the United States denied certiorari. 368 U.S. 949, 82 S. Ct. 390 (1961). Thereafter, Jackson filed a petition for habeas corpus. 206 F. Supp. 759 (S.D. N.Y.), aff’d, 309 F. 2d 573 (2d Cir. 1962). It was to review these habeas corpus proceedings that the Supreme Court granted certiorari, 371 U.S. 967, 83 S. Ct. 553 (1963), and made its decision in 1964. The thrust of this history is to show that the now rejected procedure of deciding issues of voluntariness was held to be constitutionally insufficient in a case which had already been finalised. Jackson itself was a collateral proceeding and it would seem untenable to conclude that the holding of that case may not be equally applied to other collateral proceedings. Logic and constitutional imperatives shy away from such arbitrary inconsistency. In what appears to be a further indication of the correctness of our conclusion, the Supreme Court of the United States, by memorandum decisions dated the same day as Jackson v. Denno, remanded numerous cases to various courts for further proceedings not inconsistent with its opinion in Jackson. Most of these cases were on certiorari review of affirmances of convictions which were being directly appealed. How ever, one of these additional cases was a review of habeas corpus proceedings. In that case, the defendant had been convicted in 1961 and his conviction had been finalized. In our view, this represents a further indication that the ruling in Jackson was not meant to apply only to future proceedings. And certainly, if the Supreme Court had meant to draw such a distinction in application of the rule between collateral proceedings attacking past convictions and those convictions not yet finalized, it would likely have chosen to use as a vehicle for its pronouncement one of the numerous cases before it which involved a review of a direct appeal, rather than one involving a collateral attack. An even more recent case is available for support. In Boles v. Stevenson, 379 U.S. 43, 85 S. Ct. 174 (1964), the defendant had been convicted in 1960 and his conviction had been affirmed. Simultaneously granting certiorari, the Supreme Court reviewed the proceedings in which the defendant had collaterally attacked his 1960 conviction. The Supreme Court modified the court of appeal’s order to make it conform with the decision in Jackson. Some have seen an intention to limit the ruling in Jackson in the Court’s language that it “is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence.” 378 U.S. at 395, 84 S. Ct. at 1791. This language was clearly prefatory to the Supreme Court’s conclusion that a new trial need not be automatically granted to defendants whose confessions have already been passed upon by the trial jury. The import of this discussion was that convictions obtained before Jackson need not be reversed if the state now provides “an adequate evidentiary hearing productive of reliable results concerning the voluntariness of . . . [a] confession.” 378 U.S. at 394, 84 S. Ct. at 1790. We find these indicia compelling. But even beyond the authorities, an examination of the nature of the constitutional deprivation which was found to exist in Jackson leads us to the same conclusion. The underlying rationale of Jackson posits the rule that a conviction obtained upon a trial into which an involuntary confession has been introduced cannot stand in the light of the Fourteenth Amendment. 378 U.S. at 386, 84 S. Ct. at 1785. Given this prohibition, Jackson held that prior jury methods of determining voluntariness did not afford adequate safeguards by which courts could adjudicate whether a conviction was, in fact, based on a jury’s improper consideration of a coerced confession. 378 U.S. at 388-91, 84 S. Ct. at 1787-88. Since previous practice has been held to fall short of the requirements of due process, many of those defendants whose confessions were submitted to the jury on the issue of voluntariness may, in fact, be serving sentences on convictions unconstitutionally obtained. The realization that such a fundamental infirmity may exist can hardly be deferred to the future, and ignored as to the past. We are painfully aware that, for a time, our conclusion may exert further strain on our courts. Yet we are also aware that when liberty is denied without constitutional assurances of due process of law, the conviction may not be permitted to stand. We cannot sacrifice to mere expediency the wise restraints and constitutional safeguards which make men free and advance the quality of criminal justice. The order of the court of common pleas is vacated and the record is remanded for an evidentiary hearing in conformity with the standards announced in Jackson v. Denno, supra. If, as a result of the judicial determination herein directed, the confession is held to have been voluntarily given, then the court shall dismiss the petition. If the confession is found to have been involuntary, then the court shall issue the writ and grant a new trial. Vacated and remanded. Mr. Chief Justice Bell concurs in the result. Mr. Justice Cohen would grant a new trial. At the time the petition was dismissed (April 15, 1964), without opinion, the decision in Jackson (June 22, 1964) had not yet been handed down. Subsequent to the filing of this appeal, the court of common pleas filed an opinion in support of the dismissal. By this time, the Jackson opinion had been filed. In that opinion, the court discussed the lack of counsel issue and, in dictum, the retroactivity issue. Technically, the court might have been correct in dismissing the petition at the time it did so (if it reached the proper result on the first issue) regardless of the answer to the retroactivity issue, because Jackson was not then available for petitioner’s support. However, we view the petition as squarely presenting both problems for our consideration. The Commonwealth has devoted a large portion of its brief in arguing against applying Jackson retroactively and we think it opportune, for the benefit of our courts, to explicitly pass upon this issue. The new Supreme and Superior Court Eules of Criminal Procedure provide that, in the future administration of criminal justice, instruction on the right to counsel will be given prior to the preliminary hearing. Pa. R. Crim. P. 116(b). See Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 527 n.19, 204 A. 2d 439, 445 n.19 (1964). The courts of New York have so far held that Jackson is not to be given retroactive effect. People v. Hovnanian, 22 App. Div. 2d 686, 253 N.Y.S. 2d 241 (1964) ; People v. Milford, N.Y.S. 2d (S. Ct. 1964), 33 U.S.L. Week 2123. Gaito was convicted in 1960. His conviction was affirmed by the Superior Court, 195 Pa. Superior Ct. 356, 172 A. 2d 184 (1961), and this Court denied allocatur, 196 Pa. Superior Ct. xxxi. Subsequently, the Supreme Court of the United States denied certiorari. 368 U.S. 998, 82 S. Ct. 623 (1962). Upon dismissal of Gaito’s petition for habeas corpus, and after affirmance by the Superior Court, 203 Pa. Superior Ct. 715, 200 A. 2d 912 (1964), we remanded for a hearing in conformity with the 1964 decision in Jackson. See, also, Commonwealth v. Coyle, 415 Pa. 379, 203 A. 2d 782 (1964). The decision in Jackson intervened between the time of Coyle’s trial and our decision in the case on the direct appeal. Nevertheless, we remanded for a hearing so that the requirements of Jackson might be fulfilled. Catanzaro v. New York, 378 U.S. 573, 84 S. Ct. 1931 (1964) ; Del Hoyo v. New York, 378 U.S. 570, 84 S. Ct. 1928 (1964) ; Harris v. Texas, 378 U.S. 572, 84 S. Ct. 1930 (1964) ; Lathan v. New York, 378 U.S. 566, 84 S. Ct. 1923 (1964) ; Lopez v. Texas, 378 U.S. 567, 84 S. Ct. 1924 (1964) ; McNerlin v. Denno, 378 U.S. 575, 84 S. Ct. 1933 (1964) ; Muschette v. United States, 378 U.S. 569, 84 S. Ct. 1927 (1964) ; Oister v Pennsylvania, 378 U.S. 568, 84 S. Ct. 1926 (1964) ; Owen v. Arizona, 378 U.S. 574, 84 S. Ct. 1932 (1964) ; Pea v. United States, 378 U.S. 571, 84 S. Ct. 1929 (1964) ; Senk v. Pennsylvania, 378 U.S. 562, 84 S. Ct. 1928 (1964). People v. Del Hoyo, 19 App. Div. 2d 696, 240 N.Y.S. 2d 941 (1963) ; Harris v. Texas, 370 S.W. 2d 886 (Ct. Crim. App. 1963) ; People v. Lathan, 12 N.Y. 2d 822, 187 N.E. 2d 359, 236 N.Y.S. 2d 345 (1962), amended, 13 N.Y. 2d 670, 191 N.E. 2d 668, 241 N.Y.S. 2d 164 (1963) ; Lopez v. Texas, 366 S.W. 2d 587 (Ct. Crim. App. 1963) ; Muschette v. United States, 322 F. 2d 989 (D.C. Cir. 1963) ; Commonwealth v. Oister, 201 Pa. Superior Ct. 251, 191 A. 2d 851 (1963), allocatur denied, 201 Pa. Superior Ct. xxvi; State v. Owen, 94 Ariz. 404, 385 P. 2d 700 (1963) ; Pea v. United States, 324 F. 2d 442 (D.C. Cir. 1963) ; Commonwealth v. Senk, 412 Pa. 184, 194 A. 2d 221 (1963). McNerlin v. Denno, 378 U.S. 575, 84 S. Ct. 1933 (1964). United States ex rel. McNerlin v. Denno, 324 F. 2d 46, affirming 214 F. Supp. 480 (S.D. N.Y. 1963). Conviction aff’d sub nom. People v. McNerlin, 11 N.Y. 2d 738, 181 N.E. 2d 456, 226 N.Y.S. 2d 443 (1962), amended, 11 N.Y. 2d 796, 181 N.E. 2d 776, 227 N.Y.S. 2d 36 (1962). Certiorari had been denied. 371 U.S. 850, 83 S. Ct. 88 (1962). Aff’d sub nom. State v. Stevenson, 127 S.E. 2d 638 (W.Va. S. Ct. App. 1962), cert. denied, Stevenson v. West Virginia, 372 U.S. 938, 83 S. Ct. 886 (1963). 221 F. Supp. 411 (N.D. W.Va. 1963), aff’d, 331 F. 2d 939 (4th Cir. 1964). See People v. Hovnanian, 22 App. Riv. 2d 686, 253 N.Y.S. 2d 241 (1904). The court below, in its dictum, was in accord with Hovnanian. We reject without lengthy discussion the Commonwealth’s argument that the issue here is closely akin to that raised in determining whether the decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961) (unconstitutionally seized evidence inadmissible in state court proceedings) is retroactive. This Court in Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A. 2d 143 (1963), expressed the view that Mapp was not to be applied retroactively, and we are urged to make an analogous holding here. Our decision in Wilson, however, was based on our announced belief that the primary purpose of Mapp was deterrent in nature, and that such a purpose was not served by retroactive application. 412 Pa. at 118-22, 194 A. 2d at 147-49. See also Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U. Pa. L. Rev. 650 (1962). As was said of the deficiency found to exist in Mapp: “[T]he fairness of the trial itself and the truth of the verdict are not involved. The constitutional injury lies elsewhere.” State v. Smith, 37 N.J. 481, 485, 181 A. 2d 761, 763 (1962). The deficiency in the Jaelcson situation does go to the fairness of the trial since conviction and trial based on what may be an involuntary confession are unquestionably unfair. See Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 416 (1953).

OPINION OF THE COURT CAPPY, Justice. This is a direct appeal from the denial of petitioner’s request for relief pursuant to the Post-Conviction Relief Act (PCRA). For the reasons set forth herein, the order of the trial court is affirmed. Petitioner and his co-defendant, Richard Laird, were convicted of first-degree murder and sentenced to death on May 21, 1988. This court affirmed the convictions and sentence on direct appeal. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991). The docket reflects that a “pro se” “Petition Requesting Evidentiary Hearing on After discovered Evidence” was filed on June 2, 1995. The requested evidentiary hearing was held, in fact a portion of the testimony was heard on May 25, 1995, prior to the docketing of petitioner’s “pro se” petition. The evidentiary hearing was concluded on April 1, 1996. These hearings related to an allegation of jury tampering which is discussed more fully, later in this opinion. The discrepancy in docketing of the petition after the evidentiary hearing had already begun was due to the difficulty petitioner encountered in communicating with counsel; the court and counsel discussed this fact on September 8, 1995. (N.T. 9/8/95 p. 7). Also on September 8, 1995, counsel received leave of court to withdraw the pro se petition for evidentiary hearing and incorporate the allegations therein in a post-conviction petition. On April 17, 1996 a counseled PCRA petition was filed. On July 18, 1996 current PCRA counsel entered his appearance. A hearing on the PCRA petition was held January 21st through the 28th, 1997. An opinion and order denying PCRA relief was entered on September 2,1997. This appeal followed. This court in the opinion on direct appeal summarized the facts underlying the conviction for first degree murder as follows: During the evening of December 14, 1987, Anthony Milano, the deceased, went to his father’s home to advise his father that he intended to go out for the evening. The victim left the father’s residence at approximately 11:15 p.m. in a 1976 Chevrolet Nova registered in the name of Rose Milano, the mother of Anthony. The deceased proceeded to the Edgely Inn, where the appellants also happened to be on that occasion. Appellants had been in the tavern for quite some time prior to the arrival of Milano. Both appellants had exhibited quarrelsome and aggressive behavior before the deceased arrived at the Inn. Chester, who possessed skills in the art of Karate, had threatened to assault one of the male guests at the establishment and Laird was loud and argumentative that evening in the premises. The victim arrived at the Inn sometime after 11:15 p.m. and left shortly after closing time, accompanied by appellants. The three men were last observed in the Nova with Milano driving and Laird supplying directions as to their destination. There was also testimony that during the time that the three men were in the tavern the appellants at one point were taunting Milano as to his masculinity. On the evening of December 15, Officer McGuigan responded to a report of a car fire. The vehicle involved was a Chevrolet Nova. A search of the wooded area adjacent to where the automobile was parked resulted in the discovery of the body of the deceased, Anthony Milano. The body was lying face up with the left eye partially open, contusions in the facial area, and multiple “slashings” on the neck and throat. A postmortem examination revealed that the victim had been assaulted about the face and had sustained lacerations about the face, throat, neck and shoulder. The pathologist concluded that the deceased had been kicked and/or punched in both the right and left temple areas and the chin. A hairline fracture at the base of the skull was attributed to a blunt instrument striking the head. The lacerations were made by a sharp instrument, consistent with a utility knife. The pathologist opined that the “slashings” were hard enough and deep enough to sever the fifth and sixth vertebrae and were too numerous to count. It was also concluded that the victim aspirated on his own blood for five to ten minutes before expiring. Officer McGuigan testified that when he arrived at the scene he first observed the vehicle ablaze and assisted in extinguishing the fire. The vehicle was identified as being the 1976 Chevrolet Nova registered in the name of Rose Milano, the mother of the deceased. Police records further established that Mrs. Milano had reported the deceased as a “missing person” when he failed to return to the family home in the early morning hours of December 15, 1987. This officer further testified that prior to the response to the car fire, at approximately 1:30 a.m. on December 15, he had responded, with two fellow officers, to a reported stolen car which was found in a parking lot of the Edgely Inn. To pursue their investigation they began interrogating the customers in the Edgely Inn. During that investigation he observed Chester, Laird, and the decedent at the bar. The time was fixed at approximately 1:30 a.m., December 15. He requested identification from each of these individuals and was satisfied that they were not involved in the car theft. At approximately 2:10 a.m., while he was still in the parking lot, he observed the deceased, Chester, and Laird leave the Inn together. This testimony was confirmed by the two officers that responded with Officer McGuigan to the stolen car complaint. The fire marshal for the township testified that in his opinion the fire which involved the Milano vehicle was deliberately and intentionally ignited. In addition, the Commonwealth presented evidence to establish that at approximately 4:00 a.m., December 15, Chester and Laird approached on foot, the apartment of a friend of Chester’s, Richard Griscavage. Griscavage’s apartment was located less than a mile from the murder scene. Griscavage testified that both were visibly agitated and were covered with blood. Chester attempted to explain their condition by stating that they had been engaged in a fight and “the dude is dead.” Griscavage took both men to Laird’s apartment where they attempted to remove and conceal their bloody clothing. The Commonwealth also produced additional witnesses to whom appellants made incriminatory statements and actions that reflected their complicity in the murder. The Commonwealth also produced a transcription of a consensually intercepted telephone call between Chester and Laird, during which Laird suggested that Chester leave town, recommended ways Chester could pass a polygraph examination, and commented on the Commonwealth’s inability to prove a case without evidence. Both defendants testified at trial and admitted being at the scene. Chester, 587 A.2d at 1371-72. Before discussing the substantive issues presented we must first address the PCRA court’s ruling that only issues arising from the guilt phase of petitioner’s original trial were cognizable under the current PCRA. The PCRA court reasoned that as penalty phase issues relate to the imposition of sentence, rather than the determination of guilt, penalty phase issues do not provide a basis for relief under the current PCRA. The PCRA court did permit the introduction of testimony as to penalty phase issues, and granted leave for PCRA counsel to submit additional written proffers of evidence that would be presented if penalty phase issues were cognizable so that a record would be available to the appellate court. (N.T.1/23/97). In its opinion denying PCRA relief the court did not address the merits of any issues relating to the penalty phase of petitioner’s trial. Petitioner’s initial objection to the PCRA court’s ruling is that this PCRA petition was filed prior to the effective date of the new amendments. This claim is belied by the docket which clearly records the filing date of the petition as April 17, 1996. The amendments at issue became effective January 16, 1996. This argument fails and the lower court correctly applied the PCRA as amended. Section 3(1) of Act 1995 (Spec.Sess. No. 1), Nov. 17, P.L. 1118, No. 32, effective in 60 days. As we conclude that the amended PCRA does apply to petitioner’s claims, we must address petitioner’s allegation that the PCRA court erred in finding that the PCRA now bars review of claims arising from the penalty stage of a capital case. The PCRA court reached this conclusion by reference to the 1995 amendments to the PCRA. The lower court found that the amendments limit review of claims to only those issues that “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place ” 42 Pa.C.S. § 9543(2)(i) and (ii). Focusing on the highlighted language, the PCRA court held that issues regarding the penalty phase of a capital case do not affect the truth-determining process as they do not impact upon the reliability of the verdict for the underlying murder. Finding that penalty phase issues relate only to the sentence, and not guilt or innocence, the lower court held that such claims are not cognizable. The PCRA court reasoned that with the deletion of former subsection (v), which had provided for relief upon “a violation of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner”, the PCRA now limits sentencing claims to allegations that the sentence is beyond the lawful maximum. 42 Pa.C.S. § 9543(2)(vii). Finding none of petitioner’s penalty phase issues to raise a question regarding the lawful maximum, the PCRA court refused to address penalty phase issues in the PCRA context. (N.T. 1/23/97 pp. 212-222). Petitioner argues that the PCRA court’s interpretation of the amended PCRA is incorrect as it precludes review of federal constitutional errors as they relate to capital sentencing, it acts as a suspension of habeas corpus, it is inconsistent with the principle of relaxed waiver in capital cases, it is a miscarriage of justice, and it would allow the execution of an illegal sentence of death. In the alternative petitioner asks that if this court finds the PCRA precludes review of penalty phase questions then those issues should be considered as if petitioner had applied for habeas relief. We agree that the PCRA court erred in interpreting the PCRA to preclude review of claims of constitutional error and/or claims of ineffective assistance of counsel as they relate to capital sentencing. The relevant portion of the PCRA provides: (2) That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reli able adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. § 9543(2)(i)-(ii). By interpreting the phrase “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” to bar review of penalty phase issues, the PCRA court failed to consider the actual nature of the penalty phase proceedings in a capital case. A penalty phase hearing is a “truth-determining process.” A penalty phase hearing involves the presentation of evidence, a determination of facts, and an adjudication setting forth specific findings. 42 Pa.C.S. § 9711(a), (b) and (f). In a penalty phase hearing the Commonwealth carries the burden of presenting evidence of aggravating circumstances, which if proven beyond a reasonable doubt, would make the defendant eligible for the sentence of death. 42 Pa.C.S. § 9711(c)(iii). The defendant has the right to present evidence of mitigating circumstances which, if established by a preponderance of the evidence, must be weighed against the aggravating circumstances before a reliable adjudication can be reached. 42 Pa.C.S. § 9711(c)(ii) and (iv). The judge or jury sits at penalty phase as fact finder. 42 Pa.C.S. § 9711(b) and (f). Without proof beyond a reasonable doubt that the particular case at issue falls squarely within the class of cases for which death can be imposed, the defendant cannot be subject to the penalty. Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439, 457 (1995); 42 Pa.C.S. § 9711(h)(4). Contrary to the conclusion of the PCRA court, we explicitly find that a penalty phase hearing in a capital case is a “truth-determining process.” Nor do we accept the limitation the PCRA court imposed upon the concept of “guilt or innocence” that restricts those words to encompass only the conviction for the underlying criminal offense. While recognizing the familiar identification of “guilt or innocence” with the legal responsibility of the accused vis-á-vis the underlying criminal act, we find that capital cases present another facet to the common understanding of “guilt or innocence.” In a capital case the defendant may be guilty of murder in the first degree, yet he may not be subject to the penalty of death. Thus, not only is a penalty phase hearing in a capital case a “truth-determining process,” but it is also a process encompassed within the concept of “guilt or innocence” for the purposes of review of penalty phase issues alleging ineffective assistance of counsel and/or constitutional error within the scope of the PCRA. Finally, we are not convinced by the PCRA court’s reasoning that the legislature intended to limit eligibility for post-conviction relief to only those issues arising during the guilt phase of a capital case by employing the phrase “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”. The legislature first added this particular language to the PCRA in 1988 when it modified the Post-Conviction Hearing Act (PCHA). Since 1988 this court has consistently reviewed claims of error brought in a PCRA petition that allege constitutional violations and/or ineffective assistance of counsel arising in the penalty phase of a capital case. Commonwealth v. Crawley, 541 Pa. 633, 663 A.2d 686 (1995) (ineffectiveness at penalty-phase); Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995) (ineffectiveness at penalty phase); Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995) (ineffectiveness and constitutional claims at penalty phase); Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467 (1995) (ineffectiveness and constitutional claims at penalty phase); Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38 (1994) (ineffectiveness and constitutional claims at penalty phase); Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994) (ineffectiveness at penalty phase); Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167 (1994) (ineffectiveness at penalty phase); Commonwealth v. Fahy, 537 Pa. 533, 645 A.2d 199 (1994) (ineffectiveness at penalty phase); Commonwealth v. Cross, 535 Pa. 38, 634 A.2d 173 (1993) (ineffectiveness at penalty phase); Commonwealth v. Carpenter, 533 Pa. 40, 617 A.2d 1263 (1992) (ineffectiveness at penalty phase). Since the phrase “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” was not added to the PCRA with the 1995 amendments, that phrase cannot suddenly evidence a legislative intent to amend the long standing practice of this court in finding penalty phase issues cognizable within the scope of the PCRA. In fact, the failure of the legislature to specifically amend the PCRA to exclude penalty phase issues from the PCRA’s scope of review evidences a presumption that this court’s interpretation of the statutory language is in accordance with the legislative intent. Commonwealth v. Willson Products, Inc., 412 Pa. 78, 194 A.2d 162, 167 (1963). For these reasons, we do not read the phrase “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” to preclude review of claims arising from the penalty phase of a capital case. Accordingly, we hold that claims alleging a violation of the constitution of this Commonwealth or the United States, or alleging ineffective assistance of counsel, which affected the reliable adjudication of the penalty in a capital case are cognizable under the PCRA in a first PCRA petition. As we find petitioner’s penalty phase claims cognizable under the PCRA, we need not address those claims separately as requests for habeas relief. Prior to the enactment of statutory post-conviction remedies, habeas corpus petitions were frequently utilized for obtaining post-conviction review in criminal cases. Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965). Recently in Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), this court discussed the legislative scheme wherein “the PCRA subsumes the remedy of habeas corpus with respect to remedies offered under the PCRA .... the writ continues to exist only in cases in which there is no remedy under the PCRA.” Id. at 640. Although allegations of constitutional import affecting an adjudication of death would be reviewable within the confines of a writ of habeas corpus, the writ of habeas will not lie when other avenues of relief are available. Commonwealth ex rel. Adams v. Banmiller, 391 Pa. 140, 137 A.2d 508 (1958), cert. denied, 357 U.S. 929, 78 S.Ct. 1374, 2 L.Ed.2d 1372 (1958). The legislature has clearly directed that the PCRA provide the sole means for obtaining collateral review and relief, encompassing all other common law rights and remedies, including habeas corpus. See 42 Pa.C.S. § 9542; Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718, 721 (1997). As certain penalty phase claims, which are not waived or otherwise forfeited are cognizable on traditional habeas corpus review, section 9542 plainly requires that they must be considered exclusively within the context of the PCRA. Such claims could not be legislatively foreclosed, since the Pennsylvania Constitution provides, with limited exceptions not here applicable, that the privilege of the writ of habeas corpus shall not be suspended. Pa.Const. article 1, section 14. Given that the choice was between a unified statutory procedure or bifurcated review having statutory and common law components, it seems clear that the General Assembly intended to channel all claims requiring review through the framework of the PCRA. Thus, as petitioner’s penalty phase claims are cognizable under the PCRA they will be addressed solely within the context of the PCRA, and any remedy to be afforded petitioner must be within the scope of the PCRA. We now turn to the substantive allegations raised in this appeal. As each claim is prefaced by an allegation of ineffectiveness of counsel, and where necessary each such claim alleges the ineffectiveness of both trial and appellate counsel, our standard of review is that set forth in Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773, 778 (1996): [I]ineffective assistance of counsel will excuse the waiver under 42 Pa.C.S. § 9543(a)(3)(iii) only with regard to claims of ineffectiveness of counsel at trial and on direct appeal and provided the standards announced in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), and its progeny are met. [A] defendant must demonstrate: (1) the underlying claim is of arguable merit; (2) counsel’s performance was unreasonable; and (3) counsel’s ineffectiveness prejudiced defendant. An appellant cannot obtain post-conviction review of claims previously litigated on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. Commonwealth v. Peterkin, supra. Our review begins with petitioner’s claim that trial counsel rendered ineffective assistance by presenting a “defense” that conceded petitioner’s guilt, and that appellate counsel erred in failing to pursue this claim on direct appeal. Petitioner argues that trial counsel should have investigated evidence of petitioner’s mental state, which evidence would have dictated pursuing a trial strategy of diminished capacity. Petitioner avers that he suffers from brain damage due to a childhood head injury and that he was highly intoxicated on the night of the murder, conditions, which would have prevented him from forming the specific intent to kill. Petitioner asserts that trial counsel had to be aware of petitioner’s high level of intoxication because of the extensive testimony at trial regarding the alcohol consumption of petitioner and his co-defendant on the night of the murder. Petitioner further asserts that trial counsel could have discovered the information regarding petitioner’s brain damage if he had conducted the appropriate inquiry at the time of trial. In support of his claim for relief petitioner references the testimony provided by numerous trial witnesses regarding the amount of alcohol he and his co-defendant, Richard Laird, consumed on the night of the murder. (Brief of petitioner at p. 37). Petitioner extrapolates from this anthology that as he matched co-defendant Laird, drink for drink, and a trained forensic toxicologist opined that Laird had a blood alcohol level of .46% to .52% on the night of the murder, then petitioner also had a blood alcohol level of the same degree. Bridging further from this construct, petitioner avers that he was obviously too intoxicated to form the specific intent to kill on the night of the murder. In addition to the matter of petitioner’s intoxication, petitioner avers that he suffers from organic brain damage that exacerbated his ability to control his cognitive functions when on the night of the murder he was patently under the influence of alcohol. Evidence of petitioner’s brain damage was supplied through the testimony of his mother, Mrs. Holly. Mrs. Holly testified that petitioner fell from a train at age 12 or 13, rolled down a hill and suffered a concussion. (N.T. 1/24/97 pp. 29-31). Mrs. Holly testified that trial counsel never questioned her regarding this information. Petitioner argues that he was prevented from gathering further support for his claims of intoxication and brain damage as the PCRA court refused to authorize appointment of medical experts to develop this information. Contrary to this assertion the record reflects that the PCRA court did agree to appoint medical experts, and authorized payment for those services. Only one request for expert services was refused. A request for the appointment of an expert is addressed to the discretion of the court. Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61, 73 (1994). Petitioner fads to demonstrate that an abuse of discretion occurred in this instance. Two requests for expert witnesses were granted. Those experts presented no reports. Petitioner offers no illumination as to why the previous expert reports were not utilized, nor why in light of the failure to present the expert testimony already obtained, an additional expert was necessary. As this court stated in Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28, 37 (1991) “[a] defendant is not entitled to unlimited court appointed experts until he finds one that renders the opinion he desires.” We find no merit to the claim that petitioner was prevented from establishing evidence of his organic brain damage because the PCRA court abused its discretion in denying the request for appointment of a third expert witness. Carter, supra. Given the nature of the evidence petitioner presents to support his assertion of intoxication and brain damage the merit of this allegation is questionable. Regardless of the merit of petitioner’s claim of diminished capacity, the gravamen of his present allegation of ineffectiveness of trial counsel is the tactical decision to present a defense of innocence. Thus, our review of this allegation will focus on the reasonableness of counsel’s chosen course. Where the course chosen is reasonable counsel cannot be faulted for failing to pursue another path. Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613 (1991). A defense of diminished capacity is only available to a defendant who admits criminal liability but contests the degree of guilt. Commonwealth v. Weaver, 500 Pa. 439, 457 A.2d 505 (1983). A defense of diminished capacity would directly contradict the sworn testimony of petitioner. At trial petitioner testified that he was with the victim and co-defendant Richard Laird on the evening of the murder. Petitioner provided a detailed account of his activities on the night of the murder. Petitioner testified that he had been drinking heavily throughout the night. However, petitioner also provided considerable detail as to who was in the bar that evening, what they discussed, which persons were playing pool together and where the various individuals were seated through-out the evening. (N.T. 5/18/88 pp. 460-473). Petitioner described how he, Laird and the victim left the bar together made a stop to buy cigarettes at the Seven-Eleven and then drove to two other residences, presumably in search of drugs. (N.T. 5/18/88 pp. 475-478). Having arrived at Tommy Mains’ house and exited the vehicle, petitioner described how he witnessed Laird punch the victim for no reason. Petitioner testified that he ran towards Laird and knocked the victim to the ground in an effort to prevent Laird from punching him again. Petitioner claimed that he was frightened of Laird, who told him to back off. Petitioner saw Laird grab the victim and thought that Laird was punching him until he saw the head of the victim turn and realized that Laird had slashed the victim’s throat. Petitioner testified that he was horrified and immediately turned and ran. At some point he realized that Laird was behind him as he ran to the nearby apartment of their mutual friend, Rich Griscavage. (N.T. 5/18/88 pp. 479-480). Petitioner insisted that Laird alone killed the victim. (N.T. 5/18/88 pp. 476-481). In light of the testimony of petitioner the decision to go forward with a defense of innocence rather than diminished capacity was a reasonable trial strategy. Trial counsel cannot be found ineffective for failing to pursue a trial strategy that is in direct conflict with his client’s sworn testimony. Paolello, 665 A.2d at 455 (Pa.1995). Petitioner next claims that the trial court erroneously charged the jury on the issue of specific intent for first-degree murder where the defendant is charged as an accomplice. This claim fails. This issue was previously litigated in the direct appeal. Chester, 587 A.2d at 1384. Claims that have been finally litigated are not cognizable under the PCRA. 42 Pa.C.S. § 9544(a)(2). Accordingly, petitioner is precluded from seeking relief on this claim. Petitioner also claims the trial court erred in its charge to the jury by improperly stating the definition of reasonable doubt. This claim was waived as petitioner failed to raise it in his petition for post-conviction relief. A claim for post-conviction relief cannot be raised for the first time on appeal to this court. Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, (1998). Petitioner’s attempt to raise the claim under the theory of relaxed waiver in unavailing. As stated in Albrecht, the relaxed waiver rule will no longer be applied to PCRA appeals in death penalty cases. Id. at 700. Petitioner next claims error by the trial court in accepting inconsistent verdicts by the jury. Petitioner was convicted of first, second and third degree murder. Petitioner argues that the three verdicts are inconsistent, as each degree of homicide requires a different mental state. Petitioner asserts that the trial court should have required the jury to continue its deliberations until it could reach a conclusion as to only one degree of homicide. Petitioner argues that trial counsel was ineffective in failing to object to the jury’s verdicts as rendered. This issue was raised by petitioner in his post-trial motions and addressed by the trial court. (Trial court opinion, June 29, 1989, pages 37-38). The allegation was not pursued on direct appeal, thus, the claim has been waived. 42 Pa.C.S. § 9544(b). Further, the issue was not raised in the petition for post-conviction relief and cannot now be revived. Albrecht, supra. Petitioner further argues that trial counsel was ineffective in failing to poll the jury as to each degree of homicide individually found as to each defendant. Polling of the jury provides an opportunity for any juror, who may have felt pressure to acquiesce in the verdict by other jurors, to speak out as to the voluntariness of the verdict. Commonwealth v. Rompilla, 539 Pa. 499, 653 A.2d 626, 631-632 (1995). In this case the jury was polled and each juror affirmed the verdicts as read by the foreman. (Notes of Testimony 5/20/88, pp. 728-731). Petitioner makes no attempt to argue that the verdict was the product of undue pressure on any individual juror. Petitioner ignores the purpose of polling the jury and instead proposes a form of individual voir dire after the verdict in cases involving multiple charges and multiple defendants. Petitioner’s claim, while creative, does not present an arguable claim of ineffective assistance of counsel. Given that this jury was polled and each juror affirmed the verdict, counsel had no reason to request a further poll of the jurors. Counsel cannot be ineffective for failing to raise a meritless claim. Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991). Petitioner’s next claim of error alleges juror misconduct and prosecutorial misconduct. This claim involves a photograph of the decedent, identified in the record as photograph No. 5. Prior to trial the trial court ordered that this photograph be cropped by stapling a blue sheet of paper over the more gruesome portion of the photograph displaying the severity of the knife wound to the decedent’s throat. Petitioner asserts that the cropping was tampered with by the removal of a staple allowing the jury to view the inflammatory portion of the photo. Petitioner argues that a juror committed this act in violation of the dictates of the trial judge, and that the prosecutor was aware of the tampering and took no action to correct the problem. This issue was raised on post-trial motions. The trial court found any error in the jury’s viewing of the cropped photo harmless in light of the other photos, and the detailed testimony of the coroner. (Trial ct. opinion 6/29/89, pp. 14-15). Following the trial court’s disposition of this issue, appellate counsel argued to this court that the photograph in question was so inflammatory that its prejudicial effect outweighed its probative value and that its admission was not harmless. This court rejected the restyled attack on the admission of the photograph. Chester, 587 A.2d at 1373-74. Petitioner seeks to relitigate this issue reverting back to the theories of juror and prosecutorial misconduct. Regardless of which theory petitioner now argues, this claim has been finally litigated and petitioner cannot obtain post-conviction relief on this basis. Beasley, supra.; 42 Pa.C.S. § 9544(a)(2). Petitioner next argues that jury tampering occurred during the deliberative process at the penalty stage of the proceedings. The tampering is alleged to have occurred on the morning of May 21, 1988 when the jury, which had been sequestered, was leaving the hotel to begin deliberations on the penalty. According to the testimony of juror Maurizzio, he (juror Maurizzio), casually commented to another juror “I hope we can reach a decision today.” From the hallway behind where he was standing, juror Maurizzio heard a response to his remark from a man he believes was either a tipstaff or deputy sheriff. The response was “well there’s only one decision you can make.” This exchange was revealed to the trial judge in the spring of 1995. Petitioner had raised this allegation pro se, prior to filing a PCRA petition, and requesting an evidentiary hearing. An evidentiary hearing was held on May 25, 1995 where juror Maurizzio recounted the exchange set forth herein. An additional hearing was held on April 1, 1996 where the remaining original jurors were questioned about the exchange revealed by juror Maurizzio, and juror Maurizzio was recalled for additional questioning as to the identity of the person who made the remark. Two of the original jurors were unavailable. Juror Hawkins was deceased and juror McCarty had just suffered a second heart attack. (N.T. 4/1/96 p. 39). Petitioner argues that the remark at issue improperly encouraged the jury to return a sentence of death. The fact that the remark was delivered by a court officer heightens the level of prejudice. Further, the inability of the court to question two of the jurors makes it impossible for the court to determine that the effect of the remark on the jury as a whole was harmless. This precise issue was addressed in Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999). In rejecting this claim for relief we stated: The general rule of law is that a juror may not impeach his or her own verdict after the jury has been discharged. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978). An exception to this rule is made for those situations where a jury has been exposed to an ex parte influence, which possesses a reasonable likelihood of prejudice. Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983)..... We find the Commonwealth’s position sound on this issue. A remark remembered by only one juror eight years after the verdict, where the juror cannot recall who made the comment, or when in the deliberative process it occurred, presents a weak basis to attack an unanimous verdict of a jury. The unavailability of two of the original twelve jurors is insufficient to create a reasonable likelihood of prejudice, in light of the unwavering denials of the other nine jurors that they never heard the remark, let alone were influenced by it. In addition we agree that the remark itself is ambiguous and not of such a nature that it can be said without hesitation that the speaker intended to influence a decision adverse to petitioner. For the same reasons set forth above, we find that the ex parte communication at issue did not possess a reasonable likelihood of prejudicing the verdict against petitioner. Bradley. Petitioner next argues that trial counsel was ineffective in failing to present mitigating evidence at the penalty stage of the proceeding regarding petitioner’s mental state and his abusive childhood. Specifically petitioner argues that his mental state was substantially impaired due to organic brain damage, a history of mental health problems and childhood abuse. Petitioner alleges that trial counsel failed to investigate relevant information of petitioner’s background, which would have revealed these serious mental and emotional problems. To support this contention petitioner revisits the averments he made earlier regarding a childhood head injury and that he was precluded from presenting further evidence of his mental state by the PCRA court’s refusal to appoint an expert psychiatrist/neurologist. As stated previously, the PCRA court authorized appointment of two experts on petitioner’s behalf, the third request was denied. Petitioner failed to present the results of the examinations of the first two ex perts, and has failed to offer any reason why the court’s refusal to appoint a third expert under these circumstances was an abuse of discretion. Carter, supra. The only indication that petitioner had a history of mental problems appears in the unsupported allegations in the brief to this court. On the allegation of organic brain damage petitioner offers the testimony of his mother regarding her recollection of a head injury petitioner suffered at age 12 or 13. (N.T. 1/24/97 p. 31). No hospital records, which would be readily available to petitioner, regarding this injury were offered. The claim of childhood abuse that appears in the brief to this court is refuted by the testimony of petitioner’s mother at the PCRA hearing, where she emphatically stated that petitioner had not been abused. (N.T. 1/24/97 p. 41). Trial counsel cannot be faulted for not discovering or presenting evidence where petitioner fails to meet his burden of establishing that the evidence actually exists. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Petitioner next argues prosecutorial misconduct on the basis of improper prejudicial remarks made during the closing argument of the Commonwealth in the penalty phase. This issue was addressed on direct appeal wherein this court found no prosecutorial misconduct. Chester, 587 A.2d at 1377-78. Petitioner attempts to overcome the fact that this issue has been finally litigated by arguing that trial counsel was ineffective in merely objecting to the prejudicial remarks, when counsel should have also requested a curative instruction. Since this court found no prosecutorial misconduct, a cautionary instruction would not have been warranted. Petitioner’s attempt to resurrect this claim by arguing a new theory of ineffectiveness does not present a basis for post-conviction relief. Beasley, supra. Petitioner next argues that he is entitled to a new penalty hearing because he was forced to appear before the jury in shackles. This issue was also addressed on direct appeal and rejected. Chester, 587 A.2d at 1378. This court found that a trial judge has the discretion to restrain a defendant for the security of the courtroom. Id. This issue has been finally litigated. 42 Pa.C.S. § 9544(a)(2). We also note that this issue was not raised in the petition for post-conviction relief and on that basis must also be rejected. Albrecht, supra. Petitioner next argues that he is entitled to a new penalty hearing as the instructions to the jury led them to believe that unanimity was required before they could find a mitigating circumstance, in violation of the holding of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Petitioner also asserts that the verdict slip sent with the jury during their deliberations reinforced the impression that unanimity of the jurors was necessary before a mitigating factor could be found. Trial counsel is alleged to have rendered ineffective assistance for failing to object to the infirm verdict slip. Appellate counsel is alleged to have rendered ineffective assistance for failing to raise these claims on direct appeal. This issue was recently addressed and rejected in Laird. As we stated in that decision, jury instructions and the accompanying verdict slip which echo the words of the Pennsylvania death penalty statute do not violate the rule in Mills. Laird, 726 A.2d at 359. Accordingly, petitioner’s claim for relief is denied. Petitioner next argues error by the trial court in failing to charge the jury during the penalty phase that a sentence of life means life without the possibility of parole. Petitioner asserts the ineffectiveness of trial counsel for failing to request such a charge, and the ineffectiveness of appellate counsel for failing to raise this issue on direct appeal. Petitioner claims that the absence of this charge violated his due process rights as set forth in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Petitioner argues that Simmons provides an entitlement to a “life means life” charge in all cases where the jury is considering a sentence of death. First, we note that petitioner’s interpretation of Simmons is incorrect. A Simmons instruction is only required in those cases where the future dangerousness of the defendant is at issue in the penalty phase. Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877, 889 (1995), cert. denied, 516 U.S. 872, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995). As the Commonwealth did not present any argument from which it could be reasonably inferred that the jury was being asked to consider the future dangerousness of petitioner as a sentencing factor, a Simmons instruction was not required. Further, regardless of whether or not a Simmons instruction was required in this case, counsel could not be found ineffective for failing to request such a charge, as this court has determined that Simmons will not be given retroactive effect in a collateral attack upon a petitioner’s sentence. Christy, 656 A.2d at 889. For these reasons petitioner’s claim regarding the absence of a Simmons instruction is meritless. Petitioner next asserts that the trial court failed to properly instruct the jury on the nature and use of aggravating and mitigating circumstances. Petitioner asserts the ineffectiveness of trial counsel for failing to object to this charge and the ineffectiveness of all subsequent counsel in failing to raise the issue. In reviewing a challenge to a jury instruction the entire charge is considered, not merely discrete portions thereof. Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704, 708 (1992). The trial court is free to use its own expressions as long as the concepts at issue are clearly and accurately presented to the jury. Faulkner, supra. The specific language to which petitioner objects is as follows: Whether you sentence a defendant to death or to life imprisonment would depend on what, if any, aggravating or mitigating circumstances you find are present in this case. In general terms, aggravating and mitigating circumstances are circumstances concerning the killing and the killer, which make a first degree murder case either more serious or less serious. (N.T. 5/20/88 p. 733). This issue was also addressed in the recent opinion of Laird. For the reasons stated therein, the allegation is also rejected in this case. Laird, 726 A.2d at 360. Petitioner next claims that he was denied meaningful proportionality review when this court conducted that review in his direct appeal. Petitioner asserts that because he was never provided the materials upon which this court relied in conducting that review he was not afforded “meaningful” proportionality review. Petitioner alleges the ineffectiveness of appellate counsel for failing to raise this challenge and investigate the data complied by the Administrative Office of the Pennsylvania Courts. (AOPC). As for petitioner’s allegation that he was not provided information compiled by the AOPC for his proportionality review, petitioner fails to state when and from whom he requested the information. We note that the information gathered by the AOPC for use in death penalty proportionali ty review is available to the general public free of charge. Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986). The substance of petitioner’s claim is that he was deprived of due process because he was not afforded an opportunity to respond to the information used by the court in reaching a decision on the proportionality of his sentence. Proportionality review is not an adversarial proceeding. Proportionality review is an appellate process, statutorily mandated, to ensure that sentences of death are not imposed by Pennsylvania juries and/or jurists, in a disproportionate manner. Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467, 474 (1995). Petitioner’s claims regarding the proportionality review conducted by this court in his direct appeal are without merit. Finally petitioner claims he is entitled to relief on the weight of the cumulative errors compiled herein. As this court has rejected each of petitioner’s specific claims of error there can be no cumulative effect. Thus, petitioner’s final claim does not warrant relief. Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992). For the foregoing reasons we affirm the denial of post-conviction relief. Justice NIGRO concurs in the result. . 42 Pa.C.S. § 9546(d). . The sentence of death was imposed after the jury found no mitigating circumstances and two aggravating circumstances: 42 Pa.C.S. § 9711(d)(6) the defendant committed the killing while in the perpetration of a felony, and (d)(8) the offense was committed by means of torture. . The substantive issues raised in this case are identical to those addressed in the opinion affirming the judgment of the post-conviction court in the case of Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1998). Laird was petitioner’s co-defendant, a joint post-conviction hearing was held but due to the disparate procedural postures of the two appeals this court has disposed of them separately. . This court addressed the legislative intent underlying the use of this phrase within the PCRA in Commonwealth v. Kimball, 724 A.2d 326 (Pa.1999). In Kimball, we ascertained that the intent of the legislature in adding this phrase to the PCRA was to incorporate a prejudice requirement equivalent to that applied by the federal courts under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The heart of the Kimball decision went to the standard of review in allegations of ineffectiveness of counsel in a collateral attack. The PCRA court's decision that this phrase precludes review of penalty phase issues is a question addressing the scope of review. See Morrison v. Commonwealth, Dept. of Public Welfare, 538 Pa. 122, 646 A.2d 565, 570 (1994) (the standard of review addresses how an issue is to be examined, while the scope of review addresses what claims can be considered). Contrary to the PCRA court, and for reasons set forth more fully herein above, we do not view this language as also evidencing an intent to constrain the scope of post-conviction review. . Federal habeas corpus relief extends to penalty phase issues in capital cases where a constitutional error in the penalty phase of the proceeding has occurred. Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). . The awkward juxtaposition of "innocence” with "death penalty” was commented on by Chief Justice Rehnquist, writing for the majority of the court, in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The Sawyer court discussed the difficulty in using the phrase “innocent of death” when considering whether a petitioner bringing a successive or defaulted habeas claim had shown that he was "actually innocent” so that the court could reach the merits of the issue. The petitioner did not assert innocence as to the murder, but only as to the penalty. The court held that the “actual innocence” standard, which is a narrow exception allowing relief in successive, abusive, and/or defaulted habeas petitions, extends to penalty phase claims where the claim alleges that the petitioner is innocent of death. Id. at 349, 112 S.Ct. 2514. . The PCHA was repealed and replaced with the PCRA on April 13, 1988. 42 Pa.C.S. § 9541 et seq., 1982, May 13, P.L., 417, No. 122 § 2, imd. effective. Amended 1988, April 13, P.L. 336, No. 47 § 3, imd. effective. The phrase "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place” was included in the 1988 Act. . Petitioner requests a remand to present additional evidence on the penalty phase issues. A remand is not necessary as a sufficient record was made by the trial court to permit this court to review all of the claims. The trial court permitted the introduction of some evidence on penalty phase issues, and extensive legal argument. The trial court also granted leave to counsel to submit affidavits to supplement the record. No effort to supplement the record has been made, nor does petitioner make specific averments as to what evidence he now would present. This claim for relief is denied. . Rather than follow the shotgun arrangement of issues as set forth in petitioner's brief to this court we have reordered the sequence and will address the claims raised beginning with the guilt phase issues and concluding with the penalty phase issues. . Exhibit No. 54, Order of March 12, 1996 authorizing appointment of a psychologist or psychiatrist. Exhibit No. 57, Order of April 19, 1996 authorizing retention of National Medical Services to investigate petitioner’s possible intoxication at the time of the murder. Exhibit No. 59, Order of May 1, 1996 authorizing payment to Dr. Cooke for psychological evaluation of petitioner. Exhibit No. 67, dated January 8, 1997 is the only order denying application to retain another expert, Dr. Fabaraga, a psychiatrist/neurologist. . As part of this allegation of error, petitioner argues that counsel pursued a defensive strategy that inadvertently conceded guilt. Petitioner reasons that by offering a defense that admitted presence at the scene, trial counsel conceded petitioner’s guilt as an accomplice. Petitioner’s testimony squarely placed petitioner at the scene, not counsel’s strategy. This argument is wholly without merit. . Although this claim was finally litigated for purposes of PCRA review, we must acknowledge the arguable merit of petitioner's allegation. The charge on accomplice liability as given at petitioner’s trial appears facially inconsistent with this court’s holding in Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994). A general accomplice charge, while legally correct on the law of accomplice liability, when given in conjunction with a charge of first degree murder, must clarify for the jury that the specific intent to kill necessary for a conviction of first degree murder must be found present in both the actual killer and the accomplice. The rationale used by this court on direct appeal in resolving this issue fails to acknowledge this distinction. The holding of Huffman was grounded on the decision in Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983), and thus, did not create new law. However, given the fact that in the instant case petitioner and his co-defendant were also charged with conspiracy to commit first degree murder, and convicted of that charge, petitioner would not be able to establish prejudice. Commonwealth v. Wayne, 553 Pa. 614, 720 A.2d 456 (1998). . Petitioner does not specify the mitigating circumstances that this evidence would support. From the nature of the proposed evidence we will assume he is referring to 42 Pa.C.S. § 9711(e)(3) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (e)(8) any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. . In support of his argument that the jury charge at issue violated the rule in Mills, petitioner relies upon a Third Circuit Court of Appeals decision in Frey v. Fulcomer, 132 F.3d 916 (3rd Cir.1997). Petitioner's reliance on the decision in Frey is unavailing for several reasons. First, although we may look to decisions of the intermediate federal courts for guidance in interpreting federal case law, those decisions are not binding on this court. Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 39 (1998). Second, the instructions and accompanying verdict slip examined in Frey, are not identical to the charge and slip at issue. In fact, the instruction and verdict slip in this case mirror the words of the charge and verdict slip which the third circuit found not to violate Mills, in Zettlemoyer v. Fulcomer, 923 F.2d 284, 306-07 (3rd Cir.1991). Third, the Third Circuit fails to follow the holding of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1988), which prohibits retroactive application of decisions declaring new constitutional principles in criminal cases to cases on collateral appeal. The Third Circuit dismisses Teague by noting that the government failed to raise it. However, Teague sets a threshold that must be established before a habeas petitioner can qualify for relief. . It must be noted that a minority of this court is of the view that a Simmons instruction should be given, prospectively, in all capital cases regardless of whether the issue of a defendant’s future dangerousness is raised. Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31 (1998) (Nigro, J. concurring, joined by Flaherty, C.J., joined in relevant part by Zappala, J.) . We note that the provision of the death penalty statute requiring proportionality review was stricken by legislative enactment. 42 Pa. C.S. § 9711(h), as amended June 25, 1997, No. 28 § 1 (Act 28), effective immediately. See Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426, 440 (1997). . The Prothonotary of the Supreme Court is directed to transmit the complete record of this case back to the Governor. 42 Pa.C.S. § 971 l(i).

Opinion by Mr. Justice Linn, This is a bill by the administrator pendente lite of Harrison Nesbit, deceased, to subject $755,655.02, the net proceeds of certain life insurance policies on Nesbit’s life, to the claims of his creditors. The right of plaintiff to file the bill is not questioned. The defendants are (1) trustees who hold the proceeds pursuant to unfunded insurance trust agreements; (2) decedent’s wife and three children, beneficiaries named in those agreements; and (3) Ohio National Bank of Columbus, ultimately dismissed as a party. The decree awarded to plaintiff part of the sum claimed; it has appealed to No. 220. Defendant trustees and beneficiaries, contending that plaintiff is entitled to no part of the proceeds, have appealed to No. 223. The general question is, were the policies, or certain of them, transferred in fraud of creditors: Uniform Fraudulent Conveyance Act of May 21, 1921, P. L. 1045, 39 P. S., section 351 et seq.; 13 Eliz., clause 5, Roberts’s Digest 295. Nesbit died October 21, 1931, insolvent. For many years, and up to June 23, 1931, he had been president of the Bank of Pittsburgh National Association which closed September 21, 1931, with the appointment of a receiver, three months after Nesbit ceased to be president. On September 11,1928, he executed an insurance trust agreement (hereafter referred to as the first agreement) describing himself as donor. The trustees named were the bank of which he was president and his son. Pursuant to its terms, he deposited with the trustees a number of policies of insurance on his own life, taken out from 1898 to 1928; the total of these policies is over $553,000. In all except two of the policies, the beneficiary named was his wife and, if he survived her, his estate. Plaintiff does not contend that the transfer of these policies in September, 1928, was fraudulent. In all of the policies, the insured had reserved the right to change the beneficiary. When they were deposited, the change of beneficiary from his wife to the trustees was formally endorsed on each policy together with' a reference to the agreement. The learned chancellor found that the donor was solvent on September 11, 1928. This finding is not questioned and these policies would not require further consideration in disposing of this appeal but for two contentions, one arising under the Ohio bank agreement made by the donor May 12, 1931, and the other based on plaintiff’s position that the agreement is testamentary, both to be considered later. Between March 16, 1929, and April 5, 1929, the donor obtained three additional policies in the total amount of $275,000, designating his estate as beneficiary. The net proceeds of these policies, $255,456.15 (the face value less sums borrowed by the donor) were claimed by plaintiff ; its claim was rejected, and shall now be considered. These three policies, though taken out after the first agreement was executed, were deposited with the trustees without fair consideration pursuant to a provision authorizing the subsequent deposit of additional policies. Steps to deposit two of them began October 8, 1929, and the third October 15, 1929; the changes of beneficiary were made October 11th and 26th, respectively, when the deposit may be said to have been completed. In each case the donor exercised his power to change the beneficiary and appointed the trustees in place of his estate. The chancellor found that the donor was solvent when he made these changes and that there was no intent to delay, hinder or defraud his creditors. The validity of these conclusions depends on the application of the law to the facts found, and inferences to be made from them and the undisputed evidence. We, of course, accept findings of fact that are supported by evidence, but “Where facts found are mere deductions from undisputed testimony, they are given no greater weight than findings of law”: Commercial Motors Mortgage Corp. v. Waters, 280 Pa. 177, 180, 124 A. 327. Applying that rule to the conveyance of these three policies, we must differ from the learned chancellor. Section 4 of the Uniform Fraudulent Conveyance Act, supra, provides: “Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without fair consideration.” Section 5: “Every conveyance made without fair consideration, when the person making it is engaged, or is. about to engage, in a business or transaction for which the property remaining in his hands after the conveyance is an unreasonably small capital, is fraudulent as to creditors, and as to other persons who become creditors during the continuance of such business or transaction, without regard to his actual intent.” Section 6: “Every conveyance made and every obligation incurred without fair consideration, when the person making the conveyance or entering into the obligation intends or believes that he will incur debts beyond his ability to pay as they mature, is fraudulent as to both present and future creditors.” Section 7: “Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors, is fraudulent as to both present and future creditors.” On the findings of fact made, and on inferences from them and from the undisputed evidence, it appears clearly that the conveyances were made “with actual intent, as distinguished from an intent presumed in law” (section 7) to hinder, delay and defraud creditors. If, however, we did not reach that conclusion, we should be obliged by the record to find that the conveyances are condemned by sections 4, 5 and 6. Prima facie, a voluntary conveyance by one in debt is fraudulent as to creditors: Peoples Savings Bank v. Scott, 303 Pa. 294, 154 A. 489; American Trust Co. v. Kaufman, 287 Pa. 461, 469, 135 A. 210; Goodman v. Wineland, 61 Md. 449; Marmon v. Harwood, 124 Ill. 104; In re Ellitson, 174 Fed. 859; Knight v. Parkes, 12 N. J. Eq. 214. The beneficiaries had the burden of proving “that, at the time, his liabilities were not out of proportion to his assets”: Peoples Savings Bank v. Scott, supra; American Trust Co. v. Kaufman, supra. That burden they have not sustained. While it would unduly prolong this opinion to recite all the evidence (presented in the long and complicated record brought up) from which we conclude that the conveyance was made with actual intent to defraud, we shall briefly refer to the principal parts of it under four general divisions: (1) the donor’s activities as president of the bank; (2) his participation in stock market manipulation; (3) his increased borrowing of money and of securities which he was unable to return; (4) the admitted fact that insolvency soon followed, assuming, for the moment, that it did not then exist. (1) The donor had been president of the bank for more than 20 years immediately prior to his retirement in June, 1931, and owned over 2,600 shares of its capital stock. For some years before October, 1929, and while president of the bank, he had been “engaged,” as the chancellor found, “in the business of and transactions in buying and selling securities for profit and continued to conduct the said business transactions until his death.” Not only was much of this business highly speculative, but part of it was unlawful, and the fact must be accepted, that this experienced bank president knew that his conduct was unlawful. The chancellor made a finding, showing details, that the bank, beginning July 30, 1929, and continuing for more than a year, under the donor’s direction, was engaged in buying shares of its own stock and carrying the purchases as “cash items”; this was done, in the words of the finding, “for the purpose of supporting the market for said stock.” Those transactions were unlawful (12 U. S. C. A., section 83) and ground for prosecution (Morse v. U. S., 174 Fed. 539, 544 et seq.). What was his purpose in “supporting the market for said stock”? The answer stands out clearly in the light of the fact that, in October, all his shares of the bank’s stock (and indeed all his other securities except shares in a club) were pledged for his loans payable on demand. Not only was he interested in keeping up the market price of the bank shares for purposes of collateral, but the evidence discloses another reason which must have given him serious concern: he was vitally interested in preventing public discovery that his bank stock had little or no intrinsic value; and for a while he succeeded. It is not difficult to understand what would have happened to his loans, and, doubtless, to his bank, if its true condition had not been concealed. Early in October, 1929, before the conveyance of these three policies, national bank examiners made an examination and (as stated in the finding) “assets of the bank were criticized in aggregate approximate amounts as follows: Slow $5,300,000. Doubtful $702,000. Estimated losses $302,000. At the time of these examiners’ report the capital stock of the bank consisted of 60,000 shares of the par value of $50 each or $3,000,000. The surplus was $3,000,000 and the undivided profits and the reserves were approximately $2,300,000.” There is another finding that in May, 1928, the report of the bank examiners “showed assets then under criticism in the approximate amount of $2,800,000. This was in excess of all undivided profits and reserves which aggregated approximately $2,035,000.” At this time, too, there was dissension among the bank directors. For the purposes of his conclusion that the donor was solvent on October 8,1929, the chancellor found the “fair salable value” of the donor’s property, all, except his farm and race horses in Virginia, and his gun club shares, pledged as collateral for demand loans, and, in doing so, valued his bank stock at $135 per share, a total of $349,110. In view of the conclusion we have reached, we merely note at this point that there was error in finding the “fair salable value” instead of the “present fair salable value” as provided in tbe statute. Tbe omission to give effect to the word “present” (by allowing a period of time for marketing the shares instead of a single sale which might or might not break the market) runs through other parts of the record; the word “present” may not be disregarded: Brock’s Assigned Est. (No. 3), 312 Pa. 92,100; see, too, Castellano v. Osborne, 16 Eed. (2d) 187; Fousek v. DeForrest, 90 Mont. 448, 4 Pac. (2d) 472; Hoffman v. Nolte, 127 Mo. 120, 29 S. W. 1006. Moreover, the chancellor expressly declined to consider the actual value of the stock. This also was error. As the 'subject of inquiry was the donor’s knowledge, motive and conduct in the circumstances, his knowledge of the actual value was of significant importance. The chancellor said: “Testimony as to the actual value of the Bank of Pittsburgh National Association stock was excluded and the evidence was confined to the testimony as to the public and private market and opinion evidence. In the light of future events which cannot be considered in determining this question it may be doubted whether the Bank of Pittsburgh National Association stock had any actual value during the periods under consideration, but that it had a market value we have no doubt......” While the market value of an asset is generally controlling, this record, as a result of the donor’s fraudulent concealment, necessarily presents an exception to the general rule; his state of mind, for the purpose of finding his actual intent, must be ascertained in the light of what he knew. He knew all about the real condition of his bank and its effect on the value of his shares, and on his ability to go on, and his intent must be inferred in the light of that knowledge, and not from a market value fraudulently created by him, or which he helped to create, in his own interest. Concealment, — guilty knowledge, — is evidence of actual intent. In Jarvis v. Bell, 296 Pa. 568, 574, 146 A. 153 (although evidence of market value was not available), book value of the property of corporations was rejected in favor of the actual value of property owned by them, in determining whether a grantor was solvent at the time of a conveyance. meats cannot be considered because contingent. But tbe statute includes contingent liabilities in the word “debt”; even under the statute of Elizabeth such liabilities were taken into account: Peoples S. & D. Bank, etc., v. Scott, 303 Pa. 294, 296, 154 A. 489; Schline v. Nine, 301 Pa. 586, 591, 152 A. 845; Brock’s Assigned Est. (No. 2), 312 Pa. 18; Am. Security Co. v. Marotta, 287 U. S. 513; In re Riddler, L. R. 22 Ch. D. 74 (1883); Crossley v. Elworthy, L. R. 12 Eq. 158 (1871). Also, see section 10 of the act: Richards v. Jones (Del.), 142 A. 832; Babirecki v. Virgil, 97 N. J. Eq. 315, 127 A. 594. (2) From September 3, 1929, to the dates of the October conveyances, the remarkable decline in stock market prices correspondingly reduced the donor’s equities in his pledged stocks. Some of them were highly speculative and others salable only in restricted markets. On October 8th, his indebtedness on demand paper was over $1,460,000; by October 26th, it exceeded $1,500,000. Between September 16th and October 2, 1929, he borrowed over $270,000, of which more than $120,000 came from his own bank. As has been said, he had nothing remaining that he could pledge except his farm and horses in Virginia, and 150 shares of Woodmont Rod and Gun Club stock. Calls for additional collateral were made with which he was unable to comply. As bearing on the wrongful (cf. McElroy v. Harnack, 213 Pa. 444, 63 A. 127) and speculative character of the donor’s business, the chancellor notes that among the pledged assets on October 8th were 4,953 shares of Copperweld Steel stock, which the chancellor then found had a value of $272,415. One of the findings is that from June 1, 1929, to August 28, 1929, “the market......was to a considerable degree what has been called a rigged market owing to the opera tions of a pool which had been formed to deal in said stock of which pool [Nesbit’s bank] represented by Nesbit, was a member. One purpose of the pool was to inflate the market quotations of this stock so as to induce the holders of an issue of $1,500,000 in par value of the preferred stock of the company to change their holdings for common shares. By the operations and manipulations of this pool the price of the common stock...... was inflated on the market until it reached $84 per share on or about August 28, 1929, and in this way practically all of the holders of the said issue of preferred stock were induced to exchange their shares for common stock.” On October 1st, the donor was confronted with serious disappointment in the speculative value of what appears to have been his largest investment, 1,200 shares of Weir-ton Steel Company stock, then pledged as collateral. For some time the merger of that company with others had been under consideration. The chancellor said: “There is also testimony that Nesbit was a bull on the Weirton Steel stock in September, 1929, holding it for $1,000 per share when it was selling for $500 to $600 per share.” The terms of the merger were disappointing to the donor. The chancellor found that on October 8, 1929, the “fair salable value” of the stock was $375 per share. (3) The donor realized the impossibility, in October, of converting his property and the equities in his pledged assets, into cash at prices that would enable him to pay his demand obligations, but he gained time by making new loans to pay old ones, in the vain though common hope of a change in the market (Ex parte M’Clenachan, 2 Yeates 502, 508; Shapiro v. Wilgus, 287 U. S. 348, 354), and the record shows the hopeless struggle to keep afloat. Less than three weeks after conveying the third policy, he borrowed 1,000 shares of Copper-weld Steel Company stock, had them transferred to his own name and assigned them to a bank as collateral for a loan. He was never able to return that stock. On January 8,1930, he borrowed 2,000 more shares of the stock, pledged it for Ms debts, and was never able to return it. In July, 1930, he borrowed 1,000 shares of Pittsburgh Screw, etc., Company stock, and, in October, 1930, 400 shares of Columbia Cas & Electric Company stock; both blocks of stock were pledged for loans and were never returned. In the case of each of those borrowings, the chancellor finds that the donor was “pressed for additional collateral.” In April, both in 1930 and in 1931, he borrowed from the insurers on the three insurance policies issued in 1929 (taken down from the trust agreement under his reserved powers) more than $21,000, all that the insurance companies would lend; and it is to be noted that these were advances on the proceeds ultimately payable, and that he could not be required to repay them. On other insurance policies, between March, 1930, and July, 1931, he likewise obtained over $56,000. Though all these transactions followed the conveyances, the short interval, large amounts, continuous transactions and the constant decline indicate a disturbing unsoundness of condition in October of which he must have been conscious. On November 12, 1930, he borrowed $200,000 from his bank on a demand note signed by his wife but guaranteed by him. When she was sued on the note, she successfully defended on the ground that she signed for her husband’s accommodation. It may be noted at this point, as reflecting the donor’s condition during the period from October onward, that the chancellor finds that on June 5, 1930, the donor’s assets, át valuations made by the chancellor, exceeded his liabilities by only $45,904 and that on that date “the property in the hands of Nesbit was an unreasonably small capital for the conduct of his business of, and transactions in, buying and selling securities for profit......” But, when the amount at which the Bank of Pittsburgh stock was taken for the purposes of that balance sheet, $262,-400, is deducted, as it should be, and the liabilities are also increased by the shareholder’s assessment, it will be seen how hopelessly insolvent the donor then was; the subject is now referred to, merely to show the chancellor’s view of the change of the donor’s condition between October, 1929, and the following June. (4) The chancellor records the gradual diminution of the donor’s assets and the increase of his liabilities during the period beginning in September, 1929, and finds that, on April 22, 1931, he was insolvent and remained so until his death. This condition and the borrowing referred to above, though subsequent to October 26th, is relevant in determining the donor’s condition at the time of the conveyances and his intention in then changing the beneficiary of his insurance : Trust Co. v. Sedgwick, 97 U. S. 304, 307; Hood v. Jones, 5 Del. Ch. 77. In Crossley v. Elworthy, L. R. 12 Eq. 158, insolvency followed nine months after the challenged conveyance; Malins, Y. C., referred to the speculative character of the insolvent’s business, considered as one of the circumstances in the general problem, a contingent tort liability reduced to judgment after the date of the conveyance. In considering solvency in October, 1929, the court below was influenced by the donor’s credit, saying that “he maintained his credit until he died.” But, as has been shown, what he did to this end was done by concealment and false pretences, made with knowledge that they were false. Such false pretences support the inference of actual intent. In dealing with this element of credit, it must be remembered “that the test of a trader’s insolvency is ability to pay his debts in the ordinary course, not inability to raise the money for them in the ordinary course”: Peabody v. Knapp, 153 Mass. 242; see, too, Baily v. Hornthal, 154 N. Y. 648; Alpha Hardware, etc., v. Ruby Mines Co., 97 Cal. App. 508, 275 Pac. 984; Lee v. Kilburn, 3 Gray 594; Ex parte Russell, L. R. 19 Ch. D. 588. The appellee beneficiaries contend that tbe donor withdrew nothing from his creditors to pay premiums, and that, as creditors had no claims to the loan or cash surrender values of the policies at the time of the conveyances, nothing was taken from them by changing the designation of beneficiary. This argument disregards the true nature of the transaction. Each policy was a chose in action, an obligation to pay the insured’s legal representatives on his death, if he complied with the conditions of the policy. That obligation was of value to the insured’s creditors; he was able to borrow on the policies, and the proceeds, when received by his executors, would help pay his debts: McKown’s Est., 198 Pa. 96, 47 A. 1111; Huff’s Est., 299 Pa. 200, 205, 149 A. 179; Burnet v. Wells, 289 U. S. 670, 679. By conveying that asset in fraud of creditors’ rights, a constructive trust resulted for their benefit; on familiar principles, applied in tracing trust property, they may follow the asset in whatever form it takes, which, in this case, is the fund in the custody of the trustees. In October, 1929, the donor could not, with reason, have considered that he had not provided adequate insurance for his wife and children, because they were then, under the trust agreement, the beneficiaries of insurance greatly in excess of $500,000 and his own affairs were in very precarious condition. In addition, his wife was the beneficiary of a $25,000 policy, not deposited under the trust agreement. From the circumstances referred to, we think only one inference is permissible, and that is, that the donor actually intended to deprive his creditors of their expectancies in the policies. No other inference will explain or reasonably account for the gift. The reservation of the right to deal with the policies as his own is some evi dence of the actual intent to hinder, delay and defraud his creditors. If he intended only to benefit his family, it was unnecessary to reserve power to revoke and to appoint to others: Cf. Mitchell v. Stiles, 13 Pa. 305, 309. Considered in another aspect, the transaction is condemned by section 5, under which neither intent nor insolvency at the time is of moment. If the donor were considered solvent in October, 1929, his surplus must have been too small for the conduct of his speculative business. With his property pledged, as has been stated, the possibility of continuing operations depended on the manipulation of equities in a wildly fluctuating stock market. The precarious chance of successful issue of business conducted with such slender margin must be considered and would warrant finding that conduct was fraudulent: Carpenter v. Roe, 10 N. Y. 227; Brown v. Case, 41 Ore. 221, 69 Pac. 43. The event demonstrated that his capital was inadequate, and while others also failed to forecast the rapidity of the deflation in stock market prices in October, 1929, and following months, the test, under section 5, is not intent, but reasonable sufficiency of assets for what is undertaken. Our conclusion on this branch of the case, therefore, must be that plaintiff is entitled to the net proceeds of these three policies. We come now to the questions arising out of the beneficial interest conveyed to the Ohio National Bank of Columbus as additional collateral for a demand loan of $200,000. In the first trust agreement, the donor reserved power to modify or revoke it in whole or in part. In an agreement of June 5, 1930, between the donor and his trustees (hereafter called the second agreement), the parties, following a recital of the delivery of the first agreement and the deposit of the insurance, enlarged and elaborated the terms of the first agreement and also subjected all the deposited policies to the terms of the second agreement, perhaps intended as a substitute for the first agreement, The donor again reserved extensive powers over the trust property, as appears by a provisiou quoted in the margin. Pursuant to that reservation, on May 12, 1931, the donor and his trustees executed an amendment (hereafter called the Ohio bank agreement) of the second agreement and delivered it to the Ohio National Bank of Columbus. Part of this agreement is quoted in the margin. The donor was insolvent when the Ohio bank agreement was executed. It was delivered in response to a request from the bank for additional collateral. The chancellor stated that the Ohio bank must be “held to a knowledge that the transaction which it proposed to the trustees was fraudulent.” Within 15 days of the donor’s death the Ohio bank offered (second paragraph of agreement) the note and accompanying collateral to the trustees for payment in accordance with its terms. It was not paid. The learned chancellor also held that the Ohio bank agreement was “an assignment of property in trust by a debtor to trustees on account of the debtor’s inability at the time of the assignment to pay his debts, to prefer one creditor over others, which must be held and construed to inure to the benefit of all the creditors of Harrison Nesbit in proportion to their respective demands, under section 1 of the Act of April 17, 1843, P. L. 273......,” and awarded to plaintiff that sum with interest, less the stipulated value of the collateral sold by the bank, making an award of $57,494.20. On its appeal, plaintiff contends that the entire amount with interest should have been awarded. The defendants, in their appeal, assert that plaintiff is not entitled to any part of this amount: that (a) the Act of 1843 was repealed by the Insolvency Act of 1901, P. L. 404, 423; (b) the Ohio bank agreement was not accepted by the bank; and (c) that insurance payable to a wife and children is exempt by statute from the claims of creditors. We shall consider these in the order mentioned. (a) As the Bankrupt Act of 1898 was in force when the Act of 1901 was passed, such parts of the local law as dealt with matters comprehended within the Bankrupt Act never became operative. It dealt with the general subject of insolvency and, specifically, with various elements of that subject, some within the scope of the Bankrupt Act, and some without. The title gives notice of this. It is “An act relating to insolvency; embracing, among other matters, voluntary assignments for the benefit of creditors, and adverse proceedings in insolvency by creditors; forbidding, also, certain preferences; providing for the distribution of the insolvent’s estate, and in certain contingencies relieving him, and others liable with him, from further liability for his or their debts.” The right, solvent or insolvent, to make a voluntary assignment for creditors is not dependent on statute, but is an incident of ownership. Assignment for the benefit of others creates a trust which would be administered on equitable principles in the absence of statute. Legislative provision for the administration of such assignment is therefore not necessarily an encroachment on thé federal field; whether it is or not depends on the text of the statutes; that is also true of the administration of preferences. Provisions for the discharge of an insolvent from liability for his debts are in a different category (Hanover Nat. Bank v. Moyses, 186 U. S. 181, 185 et seq.) and are within the scope of the bankruptcy legislation. The legislature was, of course, cognizant of the paramount federal power. There is no obstacle to the separation of one class of provisions in the act from the other. The provisions of the Act of 1901 regulating the administration of voluntary assignments for creditors are separable from its bankruptcy provisions. Provisions for discharge, for example, are necessarily inoperative so long as the Bankruptcy Law is in existence: Boese v. King, 108 U. S. 379, 384, 387; Stellwagen v. Clum, 245 U. S. 605, 615; International Shoe Co. v. Pinkus, 278 U. S. 261, 266; Pobreslo v. Boyd Co., 287 U. S. 518, 525; Johnson v. Star, 287 U. S. 527. The state law is not suspended by the fact that a voluntary assignment for creditors may be an act of bankruptcy, and, in some circumstances, set the Bankrupt Act in motion: Randolph v. Scruggs, 190 U. S. 533, 537; the subject is fully treated in Pobreslo v. Boyd Co. and Johnson v. Star, supra. We are of opinion that the provisions for the administration of voluntary assignments for creditors are, and have been, effective ever since the passage of the act, and that only the provisions covering matters comprehended within the Bankrupt Law have been and are suspended. The Act of 1843, expressly repealed (1901, P. L. 423), was entitled “To prevent preferences in assignments.” It dealt with voluntary assignments, for the administration of which provision is made in the repealing statute. A comparison of the voluntary assignment provisions of the Act of 1901 with prior acts, repealed by section 42, shows that provisions of the Act of 1901 were intended to be in substitution and revision of the earlier acts specifically repealed, and indicates legislative intention that the repeal of legislation, not within the purview of the Bankrupt Act, should become effective at once. The Act of 1843 was not a bankrupt act; the repeal is therefore effective. Section 3 of the Act of 1901 provides that a preferential assignment shall act as an assignment of all the debtor’s estate; such an assignment is also contrary to the Uniform Fraudulent Conveyance Act. (b) There is a presumption that the bank accepted the agreement. “The assent of the creditor is presumed to be given to a trust created for his benefit and after such assent the trust is irrevocable by the grantor”: Bispham, Equity, 9th edition, section 68, and cases cited in note 3 (on page 130), among them McKinney v. Rhoads, 5 Watts 343; Read v. Robinson, 6 W. & S. 329. But, in addition, there is evidence that in September, 1931, the Ohio bank exercised its veto power (see first paragraph of agreement), when the donor desired to take down various policies for the purpose of borrowing on them; and, as has been cited, within 15 days after his death the bank called on the trustees for performance. (c) We must also reject the contention that the Ohio bank transaction is within the statutory exemption saving family insurance from creditors (e. g., Act of June 28, 1923, P. L. 884). The right of the wife and children to participate in the insurance was an expectancy measured by the policies and the insurance trust agreements. One of the conditions of the donor’s gift was that, by the exercise of power expressly reserved, he might destroy altogether the expectancy of his wife and children. By the Ohio bank agreement, he diminished the contingent beneficial interest theretofore conferred on his family, and subordinated that interest in the insurance proceeds to the extent of the loan and interest. The situation, presented by the Ohio bank agreement, was this: in the collateral, the donor had an equity, the value of which depended on whether he paid the note, or, if the collateral was foreclosed, whether it realized more than the debt. As the bank held the collateral at the time of the donor’s death, that equity then passed to his personal representatives. The collateral was afterward sold by the bank for less than the debt, the equity had no value to the estate and ceased to be an element in the problem with which we are now dealing. While the statute exempts insurance payable to the family, it does not exempt proceeds payable to a creditor or creditors and the family; the creditor’s interest is not exempt. The Ohio bank agreement was a conveyance, to the bank, of an interest in the proceeds expected to come into the hands of the trustees; the value of the right was the face of the note with interest. Though it turned out that the bank did not realize on the conveyance, the failure to obtain the value which the donor had carved out of what was once an expectancy provided for his family alone, did not revest that interest in the family. It remained where it was, an asset of the donor, which on his death passed to his personal representatives in such amount as the bank might have claimed. The plaintiff is therefore entitled to that interest in the proceeds. There was error in awarding to the plaintiff merely the difference between the note, with interest, and the stipulated value of the collateral; for the reasons stated, the entire amount must be awarded to the plaintiff. This amount is $200,000 with interest from the date to which it has been paid, to October 21, 1931, the date of the donor’s death, but no longer, as the estate is insolvent. The next situation to be considered grows out of action by the donor in April, and in July, 1931, when he was insolvent. Exercising the reserved power to modify or revoke the insurance trust agreement, on April 22,1931, he requested a change of beneficiary of a certain policy in the sum of $10,000 from the trustees to his estate. The change was made and endorsed on the policy April 25, 1931. Thereafter, perhaps on the same date, the beneficiary was again changed from his estate to the trustees. On or about July 24, 1931, he requested another insurer to change the beneficiary in a policy in the sum of $25,000 from the trustees to his estate; the change was made and endorsed on the policy on or about that date. Subsequently on July 30,1931, he caused the beneficiary under this policy to be changed from his estate to the trustees. It is said that these changes were made to enable him to borrow money, though there is evidence that he could have done that without making the changes. The reason or motive for the change does not appear; we can deal only with the fact that it was made. After his death, the trustees received $4,132.37 as the net proceeds of the first policy, and $19,189.41 as the net proceeds of the second policy, in each case, the face of the policy, less loans or advances to the donor. The question now is whether the proceeds of these policies, which, for the short period indicated, had been payable to his estate, and which, while insolvent, he appointed to the trustees, should go to the plaintiff for creditors, or whether, having once become an expectancy, liable for debts, the rights of creditors may be defeated by the conveyance to the trustees. The learned court below said, “The estate of Harrison Nesbit was not decreased by these changes of beneficiary.” It is certain, if the donor had not made the last change of beneficiary, that the proceeds would have gone to plaintiff as the personal representative of the decedent. There was no consideration for diverting the course of the proceeds from his estate. Once an expectancy in the estate, they remain so for all purposes (subject only to the conditions of the policies), unless properly conveyed for fair consideration. As the donor was insolvent, the conveyance is within the statute (Mc-Kown’s Est., supra; Huff’s Est., supra) and the trustees are not entitled to receive the proceeds. Finally, plaintiff claims the entire proceeds on the ground that the insurance trusts were testamentary because of the large powers reserved to the donor and an alleged desire to have the proceeds applied for the benefit of his general estate. It is said that the agreements “vested no present interest in anyone but Harrison Nesbit and only appointed [pointed out] what was to be done after his death.” But as the beneficiary-trustee had an expectancy in the insurance proceeds which would become the res of the trust, this objection must be rejected: Johnson v. Scott, 76 N. Y. Misc. 641, 137 N. Y. Supp. 243; cf. Beirne v. Continental-Equitable Trust Co., 307 Pa. 570, 576, 161 A. 721. When the donor executed the agreements, he also executed wills, said to contain trust provisions, for his estate, similar in character to those declared in the agreement for the insurance, and ap pointed the same parties as executors and trustees. The insurance trustees were empowered to “purchase stocks, bonds or other property, real or personal, from the executors or other representatives of the donor’s estate, or ......make such loans to them, which loans may be secured or unsecured” without personal liability for loss. Even if this indicated, as appellant contends, an effort to facilitate, or otherwise benefit, the administration of his estate, it does not make the agreement testamentary, or deprive the proceeds of their exempt character: Cf. Blumberg v. Coxe, 8 Fed. (2d) 735. The record shows that the donor did not intend to deprive his family of the benefit of the insurance except as to the interest granted to the Ohio bank; leave to invest in nonlegal securities is consistent with the donor’s wish to aid his family and not to unite the proceeds with his estate. In determining whether an instrument is testamentary, intention is important (Beirne v. Continental-Equitable Trust Co., 307 Pa. 570, 161 A. 721; Kimmel’s Est., 278 Pa. 435, 123 A. 405; Davis’s Est., 275 Pa. 126, 118 A. 645; Windolph v. Girard Trust Co., 245 Pa. 349, 360, 91 A. 634; Hurley’s Est., 16 D. & C. 521, 523) ; here the evidence is conclusive that he sought to keep as much of the proceeds as possible within the statutory exemption from creditors and separate from his estate which was not exempt. ORDER In No. 220, the record is remitted with instructions to modify the decree as follows: To award to the plaintiffs the net proceeds (1) Of policy No. 892762, dated April 5, 1929, issued by Massachusetts Mutual Life Insurance Company in the sum of $100,000. (2) Of policy No. 1391182, dated April 4,1929, issued by the Mutual Benefit Life Insurance Company in the sum of $125,000. (3) Of policy No. 2155522, dated March 16, 1929, issued by the Northwestern Mutual Life Insurance Com pany in the sum of $50,000; the total of the net proceeds of said three policies appearing to be $255,456.15. Also to award to the plaintiffs (4) The amount of $200,000, the subject of the agreement dated May 12, 1931, amending the insurance trust agreement of June 5, 1930, with interest on that amount unpaid to the date of the death of Harrison Nesbit; (5) The net proceeds of policy No. 112325, dated December 31, 1909, issued by State Mutual Life Insurance Company in the sum of $10,000, the net proceeds appearing to be $4,132.37; (6) Also the net proceeds of policy No. 2117188, dated December 14, 1915, issued by the Equitable Life Assurance Society of the United States in the sum of $25,000, the net proceeds appearing to be $19,189.41; and (7) To award to defendant trustees the balance of the proceeds in suit in their hands. The costs of this proceeding shall be paid out of the fund for distribution. No. 223 is a joint appeal, not authorized by statute and must therefore be dismissed. We have however considered the merits in disposing of No. 220. Costs to be paid as in No. 220. Plaintiff was appointed by the register of wills of Allegheny County on the petition of corporate creditors engaged in business in that county. They alleged that Nesbit was indebted to them; that he died insolvent, a resident of the State of Virginia; that the receiver in Allegheny County of the Bank of Pittsburgh held the proceeds of life insurance policies on Nesbit’s life which were liable for Ms debts; and that petitioners bad filed a caveat against the probate of any will left by Nesbit. His liabilities at that time are given as $1,302,932.80; his assets, $1,883,160. “Conveyance includes every......transfer......of property ......” section 1. The horses and colts were valued by the chancellor at $82,200, but when sold at public sale by competent parties in June, 1932, brought only $6,200 gross, $3,800 net. The gun club stock could be sold only in 40 share lots to a buyer approved by the board of governors of the club. See section 6 of the act declaring fraudulent conveyances by one intending to incur debts. Section 2 of the act provides: “A person is insolvent when the present, fair, salable value of his assets is less than the amount that will be required to pay his probable liability on his existing debts as they become absolute and matured.” “ARTICLE FOURTH. Until the death of the Donor, he reserves to himself at all times the following rights: to sell, assign or hypothecate any policy of insurance included under the provisions hereof; to exercise any option or privilege granted by any of said policies; to borrow any sum in accordance with the provisions of any of said policies; to receive all- payments, dividends, surrender values, benefits, or privileges of any kind which may accrue on account of any of said policies; to cause additional policies of insurance, securities or other property to be brought within the operation of this trust, or to withdraw from its operation any or all of the policies, securities or other property at any time subject to the terms hereof; and by an instrument in writing delivered to the Trustees to modify, alter or revoke this agreement in whole or in part, provided, however, that the duties, powers and liability of the Trustees hereunder shall not be substantially changed without their written consent.” “WHEREAS the Donor is indebted to the Ohio National Bank of Oolumbus, Ohio, in the amount of Two Hundred Thousand Dollars ($200,000.00), evidenced by his collateral note dated May 22nd, 1930. “Now this agreement witnesseth:— “First. That so long as the Donor is indebted to the Ohio National Bank of Columbus, Ohio, its successors or assigns, in any amount, the aforesaid Agreement dated June 5th, 1930, shall not be revoked or amended without the consent in writing of the said Ohio National Bank of Columbus, Ohio. “Second. In case of the death of the Donor, the Trustees shall within fifteen days purchase the aforesaid note of the Donor or any renewals or extensions thereof from the Ohio National Bank, of Columbus, Ohio, its successors or assigns, for the amount then due on said note, or any renewal or extension thereof, including interest thereon to the date of purchase, upon the assignment of said note to the Trustees and the delivery to them of the collateral securing said loan. “Third. This amendment to the Agreement dated June 5th, 1930; shall be in full force and effect until and unless the Ohio National Bank of Columbus, Ohio, shall certify to the Trustees that the debt of the Donor to it is fully paid and satisfied.” After the decree nisi, the Ohio bank, then still a party defendant, filed a petition for an order of discontinuance as to it, setting forth that it had then “sold a part of said collateral securities and is about to sell the remainder thereof, in consequence of which it no longer has any interest other than such claim as the creditors of Harrison Nesbit generally may be found to have in funds now held by the trustees of Harrison Nesbit, now deceased, under the life insurance trusts A’ and ‘B’ [first and second agreements] and is now desirous of discontinuing the said suit insofar as your petitioner has sought and prayed for affirmative relief.” The petition was granted.

OPINION OF THE COURT MONTEMURO, Justice. Kathleen Tarnopolski (Tarnopolski) appeals from an order affirming a decision of the Court of Common Pleas of Monroe County which dismissed her appeal from the suspension of her operating privilege by the Department of Transportation, Bureau of Driver Licensing (DOT). 138 Pa.Cmwlth. 698, 589 A.2d 287 (1991). The issue presented is whether DOT offered sufficient evidence of a conviction to support the suspension. Finding that DOT failed to meet its burden of proof, we reverse. Tarnopolski received a citation charging her with violation of § 6308 of the Crimes Code. 18 Pa.C.S.A. § 6308 (underage consumption of alcohol). On December 6, 1989, Tarnopolski, in accordance with Pa.R.Crim.P. 62, 63, pled not guilty to the charge, and returned the citation to the district justice. The district justice set a hearing for February 6, 1990. According to the testimony of Tarnopolski, on January 4, 1990 her father requested an earlier hearing date since the February 6 hearing date conflicted with her school schedule. After the district justice found that an earlier date could not be arranged, her father paid the fine for underage drinking. The district justice found that the father’s payment of the fine was an admission of guilt by Tarnopolski. On January 4, 1990, the district justice certified Tarnopolski’s conviction for underage drinking to DOT. 18 Pa.C.S. § 6310.4. Tarnopolski consulted a lawyer who advised the district justice’s office that the payment was not authorized, and that Tarnopolski wished to reinstate her not guilty plea and proceed with a hearing on the merits. As evidence of her desire to reinstate her not guilty plea, Tarnopolski points to an unsigned letter dated January 9, 1990, from District Justice Balliet’s office to the Bureau of Driver Licensing. The letter reads: Putting hold on suspension of license for Kathleen Tarnopolski! To whom it may concern: Would you please put a hold on the license suspension of Kathleen Tarnopolski which was sent in by our office on January 4, 1990. She has changed her plea to not guilty and requesting a hearing. If you have any more questions please feel free to contact my office. (Appellant’s Appeal From Suspension of Driving Privileges, Exhibit C). The record does not reveal whether this letter was ever sent. However, since the district justice set another hearing date for the underage drinking charge, it is clear that reinstatement of her written not guilty plea was permitted. On March 20, 1990, the district justice held a hearing on the underage drinking charge. Tarnopolski pled guilty to disorderly conduct, and the underage drinking charge was dismissed. Meanwhile, on February 21, 1990, DOT suspended Tarnopolski’s operating privileges effective March 28, 1990. The suspension was appealed to the Court of Common Pleas, which held a hearing on May 23, 1990. On May 30, 1990, the trial court dismissed Tarnopolski’s appeal, and reinstated the ninety day suspension ordered by DOT. The Commonwealth Court affirmed. Tarnopolski v. Commonwealth Department of Transportation, Bureau of Licensing, 138 Pa.Commw. 698, 589 A.2d 287 (1991) (Pellegrini, J. dissenting). We granted allocatur and now reverse. Our standard of review is identical to that of the Commonwealth Court. We are limited to determining whether the trial court’s findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court’s determinations demonstrate a manifest abuse of discretion. Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). In a license suspension case, the only issues are whether the licensee was in fact convicted, and whether DOT has acted in accordance with applicable law. DOT carries the burden to produce a record of the conviction that supports the suspension. Zeitlen v. Department of Transportation, 106 Pa.Commw. 170, 525 A.2d 876 (1987). DOT concedes that Tarnopolski could have appealed her conviction based on the unauthorized entry of a guilty plea. Nonetheless, DOT asserts that it has met its burden of proof by admitting into evidence a certified record of the January 4, 1990 conviction. The fact that the magistrate committed a patent legal error by entering the plea upon Tarnopolski’s father’s payment of a fine does not permit Tarnopolski to challenge her criminal conviction in a collateral civil proceeding. Rather, DOT argues that Tarnopolski must correct the magistrate’s error by appealing the judgment of sentence of the underlying criminal conviction for underage drinking. DOT then reasons that the magistrate’s subsequent dismissal of the criminal charge should not be given evidentiary weight at the license revocation proceedings because any action taken after the initial conviction was a nullity. See Pa.Crim.R.P. 86(g); Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559 (1990) citing Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990) (exclusive method of challenging guilty plea to a summary offense is by direct appeal). Tarnopolski responds that evidence of the March 20, 1990 dismissal of the underage drinking charge rebutted DOT’s evidence of conviction. The Commonwealth Court held that the exclusive method for challenging a summary conviction is through an appeal of that conviction to the trial court. Therefore, once the conviction was not appealed, District Justice Balliet did not have jurisdiction to alter any determination of guilt. The court further held that since Tarnopolski cannot collaterally attack the validity of the underlying criminal conviction during a civil license suspension proceeding, the Commonwealth has met its burden of proof that the licensee was in fact convicted. In essence, the Commonwealth Court held that Tarnopolski is not entitled to relief because of her failure to challenge, by direct appeal, the underlying summary conviction. However, the Commonwealth Court’s analysis is flawed because the unauthorized guilty plea was withdrawn. Tarnopolski requested and received reinstatement of her prior not guilty plea. This reinstatement, by necessity, would require the magistrate to permit a withdrawal of the January 4, 1990 guilty plea. Once the guilty plea is withdrawn, and the charge for underage drinking dismissed, there was no longer a conviction to appeal. Further, the Commonwealth did not object to reinstatement of the not guilty plea during the underlying criminal proceedings and cannot now challenge whether the district justice committed legal error in permitting the withdrawal. DOT, relying on Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990) and Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559 (1990), argues that the magistrate lacked jurisdiction to reinstate the not guilty plea and subsequently to dismiss the action. In Liptak, the Superior Court interpreted Rule 86(g) to preclude a party from withdrawing a guilty plea to a summary conviction subsequent to sentencing. We do not find Liptak to be an accurate interpretation of Rule 86(g), and to the extent that it stands for the proposition that a defendant cannot withdraw a guilty plea subsequent to sentencing in a summary proceeding, it is expressly overruled. Rule 86(g) discusses the method of appealing a summary offense, and does not foreclose a post-sentence petition to withdraw a plea. Therefore, the district justice did have jurisdiction to permit a withdrawal of the guilty plea, and the subsequent dismissal of the underage drinking charge was not a nullity. Accordingly, Tarnopolski’s underage drinking charges were dismissed, and the evidence of the dismissal was sufficient to rebut DOT’s evidence of a conviction. As a result, the suspension cannot stand. Order Reversed. NIX, C.J., did not participate in the consideration or decision of this case. . Section 6310.4 requires the court to order the suspension of the operating privileges of a person who is convicted or adjudicated delinquent, or is admitted to any preadjudication program for violating, inter alia, § 6308 of the Crimes Code. A copy of the order is then transmitted to DOT, which then institutes a civil license revocation case. . While the payment of a fine constitutes an admission of guilt for a Vehicle Code offense, Tarnopolski was cited for violating the Crimes Code. Thus, the proper mechanism for pleading guilty to a summary offense when a complaint is filed is set forth in Pa.R.Crim.P. 62, 64. . Rule 86(g) provides: “This rule shall provide the exclusive means of appeal from a summary conviction. Courts of common pleas shall not issue writs of certiorari in such cases.” Pa.R.Cr.P. 86(g), 42 Pa.C.S.A. . A litigant who petitions to withdraw a plea under these circumstances must meet the difficult post-sentence plea withdrawal standard. See Commonwealth v. Khorey, 521 Pa. 1, 555 A.2d 100 (1989). In the present case, DOT cannot challenge whether Tarnopolski met this standard in this collateral proceeding.

Opinion by Mr. Chief Justice Bell, May a convicted slayer relitigate in the Orphans’ Court the issue of murder and the question of his guilt? Ethel Kravitz, the appellant, was indicted for the murder of her husband, Max Kravitz, in their home in Wynnewood, on July 4, 1958. She pleaded not guilty; she was found guilty of murder in the second degree by a jury on December 12, 1958, and on July 17, 1959, she was sentenced to an indeterminate sentence in the State Industrial Home for Women at Muncy, Pennsylvania. On June 28, 1960, this Court in Commonwealth v. Kravitz, 400 Pa. 198, 161 A. 2d 861, affirmed the judgment and sentence. Max Kravitz left surviving him, his widow Ethel Kravitz, a brother Harry Kravitz, and a sister Esther Passon. Kravitz left a will in which he bequeathed his residuary estate to his wife if she survived him by ninety days. Having so survived him, she presented her claim to her husband’s residuary estate at the audit of his executor’s account. Her claim was disallowed and dismissed in a learned Opinion by President Judge Taxis. Ethel Kravitz did not testify in the criminal case in which she was convicted of murdering her husband. However, in the present case she offered (a) to take the witness stand in support of her claim, and (b) to testify that she was innocent of the murder of her husband, and (c) to support her claim of innocence by the testimony of additional witnesses. The auditing Judge (1) refused to permit the question of her guilt or innocence to be relitigated, and (2) held that the finding of the jury and the sentence of the Court in the above mentioned case of Commonwealth v. Kravitz was conclusive of her guilt, and (3) that under the Slayer’s Act of August 5, 1941, she was not entitled to any part of her husband’s estate which had been bequeathed to her in his will. The exact questions presented by this appeal have never been specifically decided in Pennsylvania. Be fore analyzing the language of the pertinent Act of August 5, 1941, we shall first discuss prior cases and the reasons for the enactment of the 1941 Act. In Carpenter’s Appeal, 170 Pa. 203, 32 A. 637, a son had murdered his father for the purpose of securing his estate. Nevertheless, the Court allowed the son to inherit his father’s estate on the ground that the crime did not destroy his right to inherit under the then existing Intestate Act. Thereafter, the Legislature passed the Intestate Act of June 7, 1917, which, in §23, prohibited a person “who shall be finally adjudged guilty of murder” from inheriting (under certain circumstances) any part of the estate of the person killed. This Act was interpreted in Tarlo’s Estate, 315 Pa. 321, 172 A. 139, to mean that where a father murdered his wife and daughter and then took his own life, his heirs could inherit through him his daughter’s estate because the father had not been “finally adjudged guilty of murder.” As the result of the decision in Tarlo’s Estate, the Legislature repealed §23 of the Intestate Act of 1917, and enacted the Slayer’s Act of August 5,1941. The pertinent provisions of the Act of 1941 are as follows: Section 2. “No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent, but such property shall pass as provided in the sections following.” Section 14. “The record of his conviction of having participated in the wilful and unlawful killing of the decedent shall be admissible in evidence against a claimant of property in any civil action arising under this act.” Section 15. “This act shall not be considered penal in nature, but shall be construed broadly in order to effect the policy of this State that no person shall be allowed to profit by his own wrong, wherever committed, It will be instantly noted that there is no express provision in the Act of 1941 covering the specific question whether a person convicted of murder can relitigate the issue (a) of the crime, or (b) of his (or her) guilt or innocence thereof, in a proceeding in the Orphans’ Court to determine the distribution of the decedent’s estate. From the failure of the Slayer’s Act to expressly cover this question, appellant and appellee reach exactly opposite conclusions. Public Policy and Recent Analogous Cases The trend of the law in Pennsylvania — both statutory and decisional, as well as the public Policy of our Commonwealth — is clear. In Commonwealth v. Evans, 399 Pa. 387, 389, 398, 160 A. 2d 407, James F. Torrance was convicted of misbehavior in office and of conspiracy to defraud the Commonwealth of Pennsylvania in connection with the construction of a part of the Northeastern Extension of the Pennsylvania Turnpike. After Torrance’s conviction, the Turnpike Commission brought an action of assumpsit against the surety to recover $300,-000 because of Torrance’s participation in the conspiracy to defraud the Commission and his failure to faithfully perform his duties. Torrance had given two bonds, one in his capacity as a member of the Pennsylvania Turnpike Commission and the other in his capacity as Secretary-Treasurer of the Commission. In each of these bonds the United States Fidelity & Guaranty Co. was surety, and bound itself unto the Commission for the faithful performance by Torrance of the duties required in his performance of the aforesaid offices. In that case, namely, Pennsylvania Turnpike Commission v. United States Fidelity and Guaranty Co., 412 Pa. 222, 194 A. 2d 423, this Court held that the record of the criminal proceedings against Torrance was admissible, and that the judgments of conviction entered against Torrance were conclusive as to the defendant’s liability for the face amount of the bonds. The Court said (pages 225, 226, 227 and 228) : “In their answers to the complaint, Torrance and Fidelity specifically denied the existence of the conspiracy to defraud, and misbehavior in office, and that the former had breached the conditions of the bonds; also that the conviction of Torrance was conclusive of their liability. . . . “Import of the Criminal Judgments “The rule in most jurisdictions is that a judgment entered in a criminal case is not proof of anything in a subsequent civil action growing out of the same facts, except the fact of its rendition. See 50 C.J.S., Judgments §754 ; 30A Am. Jur., Judgments, §472, and 2 Freeman, Judgments, §653 (5th ed. 1925). The rule is a carry over from the early days of the common law. See 18 A.L.E. 2d 1287. With the lapse of time, it has been recognized that the reasons for the rule are weak and outdated. A growing minority would admit the criminal record as evidence of the facts determined in the criminal proceeding unless it is excluded by statute. See, Developments in the Law Res Judicata, 65 Harv. L. Rev. 818 (1952); Schindler v. Royal Ins. Co., 258 N.Y. 310, 179 N.E. 711 (1932), and 18 A.L.R. 2d 1287 and 1289. The federal courts have now adopted a progressive view and hold that the issues essential to a guilty verdict must be regarded as having been determined by the judgment. See, Local 167, I.B. of Teamsters v. United States, 291 U.S. 293 (1934); United States v. Gramling, 180 F. 2d 498 (5th Cir. 1950); United States v. Salvatore, 140 F. Supp. 470 (1956); United States v. Doman, 255 F. 2d 865 (3rd Cir. 1958), aff’d 359 U.S. 309 (1959). “. . . in Mineo v. Eureka Sec. F. & M. Ins. Co., 182 Pa. Superior Ct. 75, 125 A. 2d 612 (1956), it was held that the named insured in a fire insurance policy or his assignee was conclusively barred from recovery on the policy by the conviction of the insured on the charge of arson. Also, it has been held that a person convicted of murder cannot take as beneficiary under an insurance contract on the life of the victim. See, Greifer’s Estate, 333 Pa. 278, 5 A. 2d 118 (1939). “The question of the involvement of Torrance, the principal on the bonds, in a conspiracy to defraud and misbehavior in office, was thoroughly explored in a long and well conducted trial. The convictions which followed necessarily established that Torrance participated in a conspiracy to defraud the commission, and that he wilfully permitted payment of vast sums of money to Manu-Mine to which it was not entitled. “. . . we therefore conclude, that the breach of the conditions of the bonds has been established.” In Greifer’s Estate, 333 Pa., supra, the Court held that a wife who was convicted of the murder of her husband could not claim the benefit of the policies of insurance upon her husband’s life which were a part of an inter vivos trust created by him for her benefit. Justice (later Chief Justice) Schaffer, speaking for a unanimous Court, distinguished Carpenter’s Estate, 170 Pa. 203, 32 A. 637, and Tarlo’s Estate, 315 Pa., supra, and said (page 279) : “. . . She is barred by the common law principle that a person will not be permitted to profit by his own wrong, particularly by his own crime: Robinson v. Metropolitan Life Ins. Co., 69 Pa. Superior Ct. 274; Cleaver v. Mutual Reserve Fund Life Assn. [1892], 1 Queen’s Bench 147; Schmidt v. Northern Life Assn., 112 Ia. 41, 83 N.W. 800; Smith v. Todd, 155 S.C. 323, 152 S.E. 506; Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591; Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565, 139 N.E. 816. For complete citation of cases, see 70 A.L.R. 1539; 91 A.L.R. 1486. We imagine it would not be contended that the murderess could take under the policies of insurance if she had been directly named as beneficiary therein, instead of indirectly through the deed of trust.” Pennsylvania Turnpike Commission v. United States Fidelity and Guaranty Co., 412 Pa., supra, was followed and approved in Hurtt v. Stirone, 416 Pa. 493, 206 A. 2d 624. In that case an action of assumpsit was brought by an employer to recover money extorted from him by defendant. The Court directed a verdict for plaintiff. The Court specifically ruled that since defendant has been convicted in a Federal Court of violating the Hobbs’ Anti-Racketeering Act as a result of the money payments to defendant involved in the present civil action, the record of defendant’s conviction was properly admitted in evidence and conclusively established the fact of defendant’s extortion. The Court said (page 498) : “The same principles of public policy enunciated in Mineo, supra, and Pennsylvania Turnpike Commission, supra, apply with equal force to the present case. The defendant was presented with more than ample opportunity to overcome the charges lodged against him while he was swathed in a cloak of presumed innocence. His case was twice presented to a federal jury which found him guilty of extortion beyond a reasonable doubt, upon tbe same facts which are now urged as the basis for his civil liability. To now hold that the effect of those jury determinations is nil not only would be to fly in the face of reason, but also would be a general indictment of the whole American jury system.” The Slayer’s Act of 1941 enunciates not only sound law, but wise public policy. As we have seen, it specifically provides (a) that “No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent” and (b) that “This act shall ... be construed broadly in order to effect the policy of this State that no person shall be allowed to profit by his own wrong, wherever committed” and (c) “The record of his conviction of having participated in the wilful and unlawful killing of the decedent shall be admissible in evidence against a claimant of property in any civil action. . . .” The intent of the legislature and the la ’guage of the Slayer’s Act are, we believe, clear — a person convicted of murder is not entitled to receive any property of the person he (or she) wilfully or unlawfully killed. Our conclusion is fu ther strengthened by §6 of the Intestate Act of April 24, 1947, P. L. 80. Section 6, Forfeiture — subsection (c) provides: “(c) Slayer’s share. Any person win participates either as a principal or as an accessory before the fact in the wilful and unlawful killing of any person shall not in any way acquire property r receive any benefits as the result of such killing but such property or benefits shall be distributed as provided by law.” The Commission’s comment provides: Subsection (c). “This subsection overlaps some of the provisions of the ‘Slayer’ Act of 1941, P. L. 816, 20 P.S. §§3441-3456. It is not intended to supplant the provisions of the Slayer Act, but is included here for completeness and to avoid any suggestion of partial repeal of tlie Slayer Act.” Tlie interpretation of the Slayer’s Act advocated by appellant, namely, that after a conviction of murder and judgment and sentence thereon — -proved not as in civil cases by a fair preponderance of the evidence, but by evidence beyond a reasonable doubt — the issue of “murder” and of “the guilt or innocence” of the convicted slayer can be relitigated anew by a jury in the Orphans’ Court or in a civil action in any other Court, would make a mockery of the law and of Justice. One other point remains for consideration — What does §14 of the Act of 1941 mean by “the record of his conviction”? The Slayer’s Act of 1941 provides, as above noted, that the record of Mrs. Kravitz’s conviction of having participated in the wilful and unlawful killing of the decedent, shall be admissible in evidence in considering and disposing of her claim to her husband’s residuary estate. The correct rule in these “Slayer” cases is that the record of her conviction includes the indictment, the verdict of the jury, the judgment and sentence of the Court, and any decision, order and judgment of this Court and of the Supreme Court of the United States. It is obvious that the interests of Justice, as well as long established practice, would make all of the aforesaid a part of the record. Cf. Commonwealth ex rel. McClenachan v. Reading, 386 Pa. 165, 169, 6 A. 2d 776. Considering the above-mentioned analogous cases and considering especially the language of the Slayer’s Act of 1941, and the reasons for its enactment, its principal purpose and objective and the wise and salutary public policy which it proclaims — we have no doubt of the legislative intent and of the proper construction of the Act. We therefore specifically rule (1) that the record of conviction and judgment of sentence of Ethel Era vitz for the murder of her husband, is not merely prima facie evidence thereof, but is a conclusive bar to her right to take under or against her husband’s will, and (2) that neither the question of “murder” nor her guilt or innocence of the crime can be relitigated in the Orphans’ Court. Decree affirmed at appellant’s cost. P. L. 816, 20 P.S. §3442. P. h. 429. By a divided Court of 4-8. Italics throughout, ours. By a sharply divided Court. In a unanimous Opinion by the six Judges wbo sat in that case.

Opinion by Mr. Justice O’Brien, Appellee, Benjamin Miller, brought an action' of assumpsit against appellant, Boston Insurance Company, to recover for the loss of a diamond ring, which was insured by appellant under a Jewelers’ -Block Policy. The policy insured appellee against “all risks of loss of of damage . . . arising from any cause whatsoever except: ... (M) Unexplained loss, mysterious disappearance or loss or shortage disclosed on taking inventory”. On March 11, 1958,.Miller, a dealer in jewelry, consigned -the ring to Jacob Friedman, who-was also a jewelry dealer."- On the following day,'Friedman consigned'the ring to another dealer; David Willñer, who was attempting to sell the ring; Winner’s body was recovered from the East River in New York City in July of 1958. The day before his death, Winner stated he had the ring “in his pocket” and was still’trying to sell it. The record is bare as to any evidence of the cause of Willner’s death, and the ring was not returned, to either Friedman or appellee. On August 16, 1958, appellee, by letter, requested the return of the ring from Friedman. This letter, and other inquiries, produced no results. The written mem; orandum under which Friedman obtained the ring from appellee holds Friedman responsible for the care, custody and return of the ring. Friedman, made inquiries of Willner’s executor, and his attorney also investigated as to the whereabouts of the ring. The ring was never returned or, to, appellee’s knowledge, found by Friedman or any person acting in his .behalf. At trial, the jury returned a verdict for appellee against the appellant, the Boston Insurance Company, and the additional defendant, Jacob Friedman. The only issue the lower court submitted to the jury was whether it believed the testimony of appellee, Miller, and the additional defendant, Friedman. These issues resulted from the lower court’s interpretation of the insurance policy’s coverage. Following the verdict, appellant made motions for judgment n.o.v. and for a new trial. This appeal followed denial of the motions and entry of judgment on the verdict. In Connolly v. P.T.C., 420 Pa. 280, 216 A. 2d 60 (1966), we stated: “In considering a motion for judgment- n.o.v., the evidence together with all reasonable inferences therefrom is considered in the light most favorable to the verdict winner. Lewis v. United States Rubber Co., 414 Pa. 626, 202 A. 2d 20 (1964); Pritts v. Wigle, 414 Pa. 309, 200 A. 2d 386 (1964); Chambers v. Montgomery, 411 Pa. 339, 192 A. 2d 355 (1963), and in reviewing on appeal, we stated in Vignoli v. Standard M. Freight, Inc., 418 Pa. 214, 210 A. 2d 271 (1965): ‘The grant or refusal of a new trial, will not be reversed on appeal, absent an abuse of discretion or error of law which controlled the outcome of the. case.’ ” See Weed v. Kerr, 416 Pa. 233, 205 A. 2d 858 (1965), and cases cited therein. Viewing the record in the light of these standards, we conclude that the judgment must be affirmed. Initially, before considering the policy in the instant case, we must first set forth some general rules which we have held applicable to insurance policies. In Warner v. Employers’ L. Assur. Corp., 390 Pa. 62, 133 A. 2d 231 (1957), we said: “While policies of insurance will be construed most strongly against insurer (Blue Anchor Overall Co. v. Pennsylvania Lumbermens Mutual Insurance Company, 385 Pa. 394, 397, 123 A. 2d 413), it is a necessary prerequisite to recovery upon a policy for the insured to show a claim within the coverage provided by the policy: Fullmer v. Farm Bureau Mutual Automobile Insurance Company, 350 Pa. 451, 452, 39 A. 2d 623.” In Armon v. Aetna Casualty and Surety Co., 369 Pa. 465, 469, 87 A. 2d 302 (1952), we held: “A defense based on an exception or exclusion in a policy is an affirmative one, and the burden is cast upon the defendant to establish it: Bowers v. Great Eastern Casualty Company, 260 Pa. 147, 148, 149, 103 A. 536; Watkins v. Prudential Insurance Co., 315 Pa. 497, 508, 173 A. 644, 650; Zenner v. Goetz, 324 Pa. 432, 435, 188 A. 124, 125; Gardocki v. Polish National Alliance of United States of America, 141 Pa. Superior Ct. 53, 59, 14 A. 2d 604, 607; Brier Hill Coal Co. v. Hartford Steam Boiler Inspection & Insurance Co. of Hartford, 146 Pa. Superior Ct. 193, 196, 22 A. 2d 230, 231.” It is hornbook law that in construing any written instrument, and particularly an insurance contract, the instrument must be strictly construed against the writer. See Barnes v. N. A. Accident Insurance Co., 176 Pa. Superior Ct. 294, 107 A. 2d 196 (1954). Appellant in its brief indicates “The only issue in this case is whether the plaintiff has proved ‘a loss of property’ under an All-Risks Policy by showing that the last known consignee of the property died without-returning the property to the insured.” Appellant relies chiefly upon Mellon v. Federal Ins. Co., 14 F. 2d 997 (D.C.S.D. N.Y. 1926), which involved damage to ship’s boilers and what Judge Hand considered to be an “all risks” policy. Judge Hand in that case stated-: “The perils clause is an ‘all risk’ clause, and. the. libelant has discharged his burden when- he has proved, that the loss was due to. a casualty and was caused by some event,, as here by the hydrostatic .test, covered by the general expressions of the policy.. ‘He is. not bound to go further, and prove the exact nature of the accident or casualty which- in fact occasioned his loss.’ British & Foreign Marine Ins. Co. v. Gaunt, (1921) A. C. 41. In the Inchmaree clause the casualty came within a specified risk. ... As Lord Sumner, said, in the recent case of British & Foreign Marine Co. v. Gaunt, (1921) 2 A.C. at page 57: ‘The expression' does not cover inherent vice or mere wear and tear. It covers a risk, not a certainty; it is -something which happens to the subject-matter from without, not the. natural behavior of that subject-matter, being what it is, in the circumstances under which it is carried. Nor is it a loss which the assured brings about by his own-act, for then he has not merely exposed the goods to the chance of injury; he has injured them himself. Finally, the description ‘all risks’ does not alter the general law; only risks are covered which it is lawful to-cover, and the onus of proof remains where it would have been on a policy against ordinary sea perils.’ See, also, Schloss Brothers v. Stevens, [1906] 2 K.B. 665; Grant Smith & Co. v. Seattle Construction & Dry Dock Co., [1920] A.C. 162.” •Black’s Law Dictionary defines the-word “Risk’-’ as follows: “In insurance law; the danger or hazard of a loss of the property insured; the casualty contemplated in a contract of insurance; the degree of hazárd;. a specified contingency or peril; and, colloquially, the specific house, factory, ship, etc., covered by the policy.” George J. Couch, in his excellent “Cyclopedia of Insurance Law”, 5 Couch on Insurance, p. 4152, Sec. 1169, says: “ 'All risks.’ — An insurance may be in general terms, by a policy covering all risks. Thus, a policy against all risks,’ the words being inserted in writing, ordinarily covers every loss that may happen, except by the fraudulent acts of the insured.” See also Sun Ins. Office, Ltd., v. Clay, 133 So. 2d 735 (1961). Therefore, we must conclude that the very nature of the term “all risks” must be given a broad and comprehensive meaning as to covering any loss other than a wilful or fraudulent act of the insured. The basic problem before us, then, in this case, is whether appellee has proved the loss of property under the all-risks policy. The applicable rule of law was initially set forth in Agriculture Insurance Co. v. A. Rothblum, Inc., 147 Misc. 865, 265 N.Y.S. 7. It was there held that the sole obligation of the plaintiff was to furnish the defendant with such explanation as it, in good faith, had received and accepted as to the time and cause of the loss. If we were to require the plaintiff to go further and guarantee the accuracy of the explanation of the loss that might have been given to it by the person to whom custody of the goods had been entrusted and who, himself, might be guilty of a fraud unknown to the plaintiff, the inclusive character of the Coverage afforded by the insurance policy would be a mere delusion. If the custodian of the property converted the same and was guilty of a breach of trust, the defendant should establish that fact. This rule was followed in Chase Rand Corp. v. Central Ins. Co. of Baltimore, 63 F. Supp. 626 (D.C.S.D. N.Y. 1945), affirmed 152 F. 2d 963 (2d Cir. 1945), in which the plaintiff brought an action to recover from the defend ant Insurance Company for the alleged loss of a quantity of jewelry protected under the provisions of a Jewelers’ Block Insurance Policy issued by the defendant. The plaintiff, at trial, proved delivery of the jewelry to Ben Levit, a jewelry dealer, on consignment. Ben Levit, in turn, entrusted certain items of jewelry which he had received from the plaintiff to his nephew, Hyman Levit, who was employed by his uncle as a salesman. Hyman Levit reported the jewelry in his custody was stolen while he was on the road going to Van Horn, Texas. There was serious question at the trial as to whether the alleged robbery, in fact, did occur. Defendant, in its answer, in addition to a general denial of the allegations set forth in' the complaint, set forth six affirmative defenses, all but two of which were abandoned. The ones that remained were: “(2) That the defendant, by an exception contained in the policy, is without liability, if loss, damage or expense occurs to the assured as a result of theft or an act of dishonest character on the part of the assured or his employee, or any person to whom the insured property may be delivered or entrusted. It is then alleged that the jewelry in question was entrusted to Ben Levit on memorandum, and .that he, in violation of his trust, delivered the same to Hyman Levit and that the loss was due to a breach of trust. (6) That the loss, if it occurred at all, was the result of the. conversion of plaintiff’s merchandise by Hyman Levit, to whom Ben Levit had entrusted it, and that such conversion is not within the .terms of the policy.” The court, in following-the rule set forth in Agricultural Insurance Co. v. A. Rothblum, Inc., supra, held that: “Neither of these defenses, in my judgment, has been established, and if either of - them is tó be available to defendant, it is defendant’s burden to sustain the same. As has been previously said, the condition of this record is insufficient to enable me to find that the loss was due to any malfeasance on the part of Hyman Levit. My suspicions of his good faith are based, more or less, upon drawing one inference from another, and this process of reasoning cannot be utilized for the purpose of making a judicial determination. In addition, I do not believe that plaintiff is required, as defendant contends, to bear the burden of proving the loss was due to the robbery of Hyman Levit. . . .” In a brief Per Curiam opinion, the Circuit Court of Appeals, Second Circuit, 152 F. 2d 963, p. 964, in affirming the decision, stated: “The statements as to plaintiff’s information about the theft from the consignee’s employee in the complaint were surplusage. The burden of proving that the loss came within the exception rested on defendant. Agricultural Insurance Co. v. Rothblum, 147 Misc. 865, 265 N.Y.S. 7.” The trial judge, in the instant case, drew from the Chase Rand case, supra, the proper conclusion, stating: “The true significance of this case is that all the plaintiff must prove to make out a prima facie case, is that upon making demand of the return of jewelry covered by an ‘all risk’ policy, the jewelry was not returned. He has the additional burden of giving to the insurer whatever reason or cause of the loss was given him, in good faith, but plaintiff need not prove the actual cause of the loss at the trial.” In Balogh v. Jewelers Mutual Insurance Co., 167 F. Supp. 763 (S.D. Fla. 1958), affirmed 272 F. 2d 889, plaintiff brought an action on an all risk insurance policy. A box containing certain rings was missing. A thorough search was made for the ring box and rings but they were never found. There was no evidence of possible entry, either of the store or the safe where the box was stored. The missing rings were insured under provisions of a Jewelers Mutual policy. Various defenses were raised by the respective defendants, similar to those in the instant case. In considering the first defense, that of mysterious disappearance, the court very clearly and, we believe, correctly answers this question, stating: “Considering the first defense — mysterious disappearance — raised by Jeweler’s as a defense to the suit brought against it by Julien and Harriet Balogh, and by Western Assurance as a defense to the suit brought against it by David Balogh, we must begin with the proposition that this is not a theft policy. Plaintiffs in the respective suits are not required to show a theft before they are entitled to recover. The policy here involved is much broader and is of the type known as an ‘all-risk’ policy. It is axiomatic that plaintiff must show that the loss falls within the risks insured against, but it is also axiomatic, that it is for the defendant to show that the loss was not due to one of the risks insured against but rather to an excepted cause. It would seem that all plaintiff need show in such a case is a loss, since losses from all causes are covered. Defendant, arguing that a mysterious disappearance is ‘any disappearance the circumstances of which excite — and at the same time baffle — wonder or curiosity.’ attempts to distinguish between the classic cases of lost or misplaced property, and a case which is baffling and therefore a mysterious disappearance. Assuming that it has proved its point, at least in the first instance, defendant argues that plaintiff was therefore under the obligation to go forward and prove a theft, and, having failed to do so, cannot recover. As can be seen, defendant relies to a large extent on semantics. Under his theory, any loss, the exact cause of which could not be proved by at least a preponderance of the evidence, would automatically be classed as a mysterious disappearance, and recovery would be defeated unless the plaintiff could prove a theft, embezzlement, or some other specific cause. What then becomes of the ‘all-risk’ feature of the policy? As the Court said in Chase Rand Corporation v. Central Ins. Co. of Baltimore, in construing such a feature of a jeweler’s block policy: ‘Plaintiff’s sole obligation was to furnish defendant with such explanation, as it, in good faith, received and accepted concerning the time and cause of the loss, and this it has done. If plaintiff were required to go further . . . the inclusive character of the coverage of the insurance policy would be a delusion, and a snare’ (emphasis in original) citing and relying upon Agricultural Insurance Co. v. A. Rothblum, Inc., which had held that ‘in an action by the insured against insurer, the onus would not be upon the insured to allege and prove, as a condition precedent, that the loss was not occasioned by the specified exceptions. Rather it would be incumbent upon the insurer to allege and prove, as a condition subsequent, that the loss arose from one of the excepted causes.’ “If the clauses in each of the policies, that of Jeweler’s Mutual and that of Western Assurance, be examined, it will be found that they read: ‘This Policy Insures Against All Risks Of Loss Of Or Damage' To The Above- Described Property Arising From Any Cause Whatsoever Except: ... (M) Unexplained loss, mysterious disappearance or loss or shortage disclosed on taking inventory.’ ” In considering either the unexplained loss, mysterious disappearance, or shortage on taking inventory, the court further states: “It would appear that the phrase ‘disclosed on taking inventory’ not being set off by commas, was intended to modify disappearance and loss as well as shortage. In fact the whole-exception seems to concern itself with losses, disappearances or shortages disclosed upon the taking of inventory. At least it is equally susceptible of such an interpretation and the ambiguity is to be resolved against the party drawing the instrument. Furthermore such an interpretation would be more in keeping with the ‘all-risk’ feature of the policy than would defendant’s suggested interpretation. It must be observed that the cases upon which defendant relies do not involve ‘all-risk’ policies, but rather theft policies, in which a mysterious disappearance is made prima facie evidence of theft. This type of policy is so different from that with which we are here concerned that the cases construing such theft policies are of little or no weight in the present situation.” In Wzontek v. Zurich Ins. Co., 418 Pa. 30, 208 A. 2d 861 (1965), we determined the insurance company to be liable under a policy insuring Braden. The insurance company, in that case, sought to avoid liability by contending that the loss came within an exception of their policy. We followed our earlier decision reached in Newman v. Mass. Bonding & Ins. Co., 361 Pa. 587, 65 A. 2d 417 (1949): “The Coverage Analysis recited the business of the assured (commercial photographers) and provided that the coverage was on ‘all operations— including studios.’ The court must give effect to every word that can be given effect. By the familiar rule applicable in such circumstances, that typewritten provision, which is the parties last expression of their intention, must be given effect to the exclusion of the printed portions in Exclusion (h) [Citing cases.].” In giving effect to each word in the policy issued by the Boston Insurance Company to Benjamin Miller, we must reach the conclusion that “against all risks of loss of or damage to the above described property arising from any cause whatsoever. . . .” means that the loss in question must fall within the limits of that provision. It would be both unfair and unreasonable under a policy such as this to make the insured prove more than the loss. As the burden of proof that a loss comes within the scope of an exception or an exclusion in a policy is an affirmative one, it necessarily follows that the burden is 'placed upon the defendant. “It is only when tbe existence of facts constituting an affirmative defense is admitted by tlie plaintiff, or is established by uncontradicted testimony in tlie plaintiff’s case, that such burden is removed from the defendant.” Armon v. Aetna Casualty and Surety Co., supra. No such condition exists in the instant record and, appellant having failed to-carry its burden of establishing an affirmative defense, we conclude that the loss does not fall within the exclusionary provisions of the insurance policy. Judgment affirmed.

OpinioN, Mb. Chief Justice Paxson : This was an action on a policy issued by the defendant company, insuring the life of Simeon B. Lantz, for the benefit of his wife, Evalina E. Lantz, the plaintiff below. The policy stipulated that the premiums should be paid quarterly, on the nineteenth days of February, May, August, and November in each year; that if the said premiums should not be paid on the days named and in the lifetime of the assured, the policy should cease and determine; that the acceptance of a premium after maturity should not be deemed or construed as a waiver, or as any evidence of an agreement to waive the payment of any future premiums at the time the same shall, by the terms of the policy, become payable; and that no person except the president and secretary, acting together, are authorized to make, alter, or discharge contracts, or waive forfeitures. Upon the trial below it was among the admitted facts of the case that the premiums falling due in May, August, and November, 1887, were not paid at maturity, but were paid after maturity, and accepted by the company ; that the premium due on February 19,1888, was not paid at maturity; that on March 2, 1888, a brother of the insured, who was also a policy-holder, called on the general agent of the company in Philadelphia, and informed the latter that Simeon B. Lantz would be down on March 6th to pay his premium, and was told that he, the agent, did not make out his monthly report until the tenth of the month, and that if the premium was .paid by the ninth it would be all right. So far there is no dispute. But Mr. Lantz, the witness, testified that there was no condition annexed to the promise to receive the money, while Mr. Ryer, the agent, testified that he said he would receive the money provided the insured was in his usual health at the time; that he would have to be satisfied upon this point, either by a health certificate, or by seeing the insured personally, and that in the mean time the latter was carrying the risk himself. This question of fact was submitted to the jury, and they have found there was no condition annexed to the promise. We must, therefore, treat the case upon this basis. It may simplify the discussion somewhat to note the following admission of the learned counsel for the company, to be found on page 12 of his paper-book: “ It was admitted on the trial that the insured had paid three prior premiums after maturity, which had been received by the defendant; and also that the manager was in the habit of, and practically had authority to receive premiums and deliver renewal receipts after maturity, provided that the insured was at the time of the payment in good health. This was as far as the testimony went. There was no evidence which, even the plaintiff pretends, goes to show that the agent had authority, or has ever acted beyond this, or that the company had ever known of or ratified such agreement; and it was further admitted, that, if Simeon B. Lantz, the insured in this case, had on March 9th been alive and in good health, and had tendered payment of the premium, it would have been received.” Simeon B. Lantz, the insured, was in good health on March 2d, but was taken ill on the next day, and died on March 6th. The above admission disposes of any question as to the authority of the general agent to receive overdue premiums. But we must stop where the admission ends, unless a further or greater authority is to be found in the evidence. In order to establish an authority to receive an overdue premium, after the dehth of the insured, one of two things must be shown, viz.: (a) An express authority to do so, conferred upon him by the company; or (5) such a course of dealing on the part of the company, by ratifying or recognizing such acts of the agent, as would justify persons dealing with said company in assuming that he possessed such authority. There is not a word in the testimony to sustain either of these propositions. All that it shows was the receipt of overdue premiums on three occasions. But the insured was in full life and health at the time. The case of the plaintiff, if sustained at all, must rest upon the promise of the agent to receive the premium up to the ninth day of March. This promise, as before observed, the jury have found to be an unconditional one. This I understand to mean, that the money would be received as late as the ninth of March, without regard to the health of the insured, or even his death prior to that time. It remains to consider the legal effect of such promise. The first question which logically suggests itself is, what was the legal effect upon the status of the policy, by the default or failure to pay the premium due on the nineteenth of February ? Did it continue to bind the company and protect the insured thereafter ? And, if so, how long did it remain in force ? Was it for a week, a month, or a year ? I know of no instance in which a policy was held to be in force after such a default, unless in pursuance of a contract made between the company and the insured contemporaneous with the insurance, or during the life of the policy. In Helme v. Insurance Co., 61 Pa. 107, the plaintiff offered to prove “ that it is the custom among insurance companies to receive premiums if tendered at any time within thirty days of the time they fall due, provided the insured is in usual health, and that this is the custom among companies issuing policies stipulating that non-payments of premiums at the day shall be a forfeiture.” This offer was rejected by the court below, and the rejection was held to be error, Chief Justice THOMPSON saying: “ It might have been a difficult thing,to prove such a custom, but that was not a good ground on which to refuse the offer.” The grounds of this decision are obvious. While a custom which has grown into a law may not be heard, as a general rule, to affect the terms of a statute, nor a contract, to the extent of enlarging or abridging the force of it, yet it may interpret either: Rapp v. Palmer, 3 W. 178. The Chief Justice gives a number of examples of the application of this principle ; among others, the familiar instance of the days of grace on commercial paper. By the custom of merchants, so universal as to have grown into law, such paper is not due until three days after it purports to be due; or rather, the remedy is suspended during that period. It was not alleged that any such custom existed in this case. There was not even an offer to show it, much less proof to support it. Did the fact that the company upon three prior occasions accepted the premium from the insured after maturity, the insured being in good health at the time, continue the policy in force after the default on the nineteenth of February? I know of no authority for such a proposition, and none has been called to our attention. It was at most a mere personal indulgence, a matter of grace on the part of the company; and all that can be claimed for it is that it may have led the insured to believe that, if he again neglected to pay on the day, the money would be accepted if paid shortly thereafter, provided no change had occurred in his condition of health. The law upon this subject is so clearly stated by Mr. Justice Bradley, in Thompson v. Insurance Co., 104 U. S. 252, that I need make no apology for quoting it at length: “ The last replication sets up and declares that it was the usage and custom of the defendants, practiced by them before and after the making of said note, not to demand punctual payment thereof at the day, but to give dajs of grace, to wit, for thirty days thereafter; and they had repeatedly so done with Thompson and others, which led Thompson to rely on such leniency in this case. This was a mere matter of voluntary indulgence on the part of the company, or, as the plaintiff himself calls it, an act of leniency. It cannot be justly construed as a permanent waiver of the clause of forfeiture, or as implying any agreement to waive it, or to continue the same indulgence for the time to come. As long as the assured continued in good health, it is not surprising and should not be drawn to the company’s prejudice, that they were willing to accept the premium after maturity, and waive the forfeiture which they might have insisted upon. This was for the mutual benefit of themselves and the assured, at the time ; and, in each instance in which it happened, it had respect only to that particular instance, without involving any waiver of the terms of the contract in reference tó their future conduct. The assured had no right, without some agreement to that effect, to rest on such voluntary indulgence shown on one occasion, or on a number of occasions, as a ground for claiming it on all occasions. If it were otherwise, an insurance company could never waive a forfeiture on an occasion of a particular lapse, without endangering its right to enforce it on occasion of a subsequent lapse. Such a consequence would be injurious to them and to the public.” The consequence of a default in the payment of the premium is defined in the policy itself. It declares that, if not paid oil the days named and in the lifetime of the insured, the policy should “ cease and determine.” By this I understand that it is suspended; it ceases to bind the company and to protect the assured, and this without any act or declaration on the part of the former. It does not require a formal forfeiture. This term is often used, and, I think, inaccurately, in such cases. Nor, is the policy void in the general sense of that term. It is voidable at the election of the company, and that election can be exercised without notice to the assured, for the reason that the policy itself is notice that his rights cease with the non-payment of the premium. As to him it is a dead policy. It is true it may be restored to life, by the subsequent payment of the premium and its acceptance by the company. This, however, is a new contract by which the compan3r agrees in consideration of the premium to continue in force a policy which had previously expired; in other words, it is a new assurance, though under the former policy : Want v. Blunt, 12 East 183. I do not understand it to be contended that, had the assured died between the nineteenth of February and the second of March, there could have been a recovery on this policy. It seems almost a work of supererogation to cite authorities for so plain a proposition, and I will refer to but few, out of an abundance. In Washington Ins. Co. v. Rosenberger, 84 Pa. 873, which was a case of fire insurance, our Brother Stekrett, after saying that the default suspended the protection of the policy, continued: “ Upon the payment of the assessment the policy would have been revived in its full vigor; but it was never paid, or even tendered, until after the fire, and, as delinquent policy-holders, they had no right to maintain the action without showing that the default was either waived or excused by the company. There is no evidence of waiver, nor do we think there is any evidence to excuse the default. There was considerable testimony showing that great indulgence was extended to delinquent members, and that the company was accustomed to receive assessments long after they were due; but this is entirely consistent with the fact that, while the default continued, the protection of the policy was suspended.” In Lycoming Ins. Co. v. Rought, 97 Pa. 415, it was said by Mr. Justice Merctjb : “ It is well settled, if a member of a mutual insurance company is in default in the payment of an assessment upon his policy, after due notice according to the by-laws and rules of the company, the protecting power of the policy is suspended until the assessment is paid. No recovery can be had for a loss sustained during the continuance of such default: ” citing Hummel’s App., 78 Pa. 320; Columbia Ins. Co. v. Buckley, 83 Pa. 293; Washington Ins. Co. v. Rosenberger, 84 Pa. 373; Crawford Co. Ins. Co. v. Cochran, 88 Pa. 230. It is true, these were cases of fire insurance companies, but the principle is equally applicable to a case of life insurance. This we think sufficient to show that no recovery could have been had upon this policy, had the assured died between the date of the maturity of the premium, and the promise of the agent to accept the premium on the ninth of March. Regarding that' as a promise to accept the premium, even in the ease of the previous death of the assured, we are led to inquire, in the first place, what authority had the agent to make such a promise ? The condition of the policy is explicit that the premium must be paid “ in the lifetime of the insured.” Had the agent the authority to waive this condition? The policy not only declared that no person except the president and secretary, acting together, are authorized to make, alter, or discharge contracts, or waive forfeitures, but a notice to the same effect was printed on the back of each renewal receipt given to Mr. Lantz. It was not alleged that the president and secretary, acting together or singly, had ever waived this condition in the policy, or that they, or either of them, had given authoi'ity to the agent to waive it in this or any other instance. No course of dealing was shown on the part of the company by which the grant of such authority to the agent could be implied. There was not even an attempt to prove that the company or its agent had ever received an overdue premium after the death of the assured. There is nothing within the four corners of this record to show that the agent had authority, express or implied, to waive this condition. What right had the assured to. suppose, with this condition in the very front of his policy, that the agent would receive his overdue premium after his death ? We are not without authority upon this point. The leading case is Want v. Blunt, 12 East 183. The following statement of the facts is condensed from the opinion of Lord ElleN-BOBOTJGH: The policy provided for the payment of quarterly premiums on March 25th, June 24th, September 29th, and 20th of December, during the life of the said W. W. Want, or within such time after those days, respectively, as is or shall be allowed for that purpose by the rules of the said society. It was provided by the rules of the society that if any member neglected to pay the quarterly premiums for fifteen days after the same become due, the policy will be void. This provision was attached to the policy. The quarterly payments were all paid at maturity, until the one that came due on December 20th, which was not paid, and Want died on December 25th; and on December 27th, two days after his death, but within the fifteen days, his executors tendered the payment of the premium, which was refused. The court sustained the refusal, Lord ElleNBOROTJG'H saying, inter alia : “ This is a contract of assurance, and must be construed according to the meaning of the parties as expressed in the deed or policy. The risk insured against is his death, and the premium is a quarterly payment, to be made by him to the society during his life. The duration of the insurance is so long as he shall continue to make those quarterly payments; but the insurance is not to be void if he pay the quarterly premium within such time after the quarter day as is allowed by the rules of the society. The covenant on the defendant to pay the wife’s annuity after Want’s death is, ‘if Want shall pay, or cause to be paid, the quarterly premium on every quarter day during the life of Want, or within such time after as shall be allowed by the rules of the society for that purpose; ’ in construing which sentehce, the expression, ‘ during the life of Want,’ must be understood as applying to and carried on to the latter part of the sentence, and is the same as if the words ‘ during the life ’ had been repeated after the words ‘ within such time after,’ i. e., or ‘ within such time after, during the life ’. For these reasons we are of opinion that the death of W. W. Want, which happened on the 25th of December, was during a period of time not covered by the policy, and that, on the true construction of the policy and rules of the society, the insurance could not be continued beyond the expiration of the quarter which ended on the 20th of Decern- ber, by a tender of the premium by his executors after his death, though within fifteen days after the quarter day, so as to include within the policy the period of his death.” In Simpson v. Insurance Co., 2 C. B., N. S., 257, the words of the policy were: “ Provided he, the said insured, on or before .pay or cause to be paid to the defendant the annual premium;’’and on this point the court said: “The policy was to continue, provided he, the insured, paid the premium within the twenty-one days; and this, we think, did not give the executors the right to pay it after his death.” To the same point is Pritchard v. Society, 3 C. B., N. S., 622; Insurance Co. v. Ruse, 8 Ga. 534. The rule laid down in Want v. Blunt, supra, appears to have been followed in all subsequent cases where the same point arose. If there has been any departure it has not been called to our attention. If, however, we are wrong in this; if we regard the condition in the policy that the premium must be paid in the lifetime of the insured, as of no effect, or, if effective, that it has been waived, there is another reason why the company was not bound to receive the premium after the death of the assured. I have endeavored to show that by the failure to pay the premium, the policy lapsed, or was suspended, on the nineteenth of February. With the policy in this condition, the plaintiff proved, as already stated, an unconditional promise, on the part of the agent of the company, to accept the premium up to the ninth of March. In the ordinary case of the payment of an overdue premium, as all the authorities show, the policy does not bind between the default and the payment. The plaintiff claims that this case does not come within the rule; that the promise enlarged the time of payment, precisely as if March 9th had been the period stipulated in the policy; and that from the time the promise was made until the time it was to be fulfilled the policy was in full force. But if, as I have at least endeavored to show, the policy did not bind between the default and the promise, what occurred on the second day of March to change the situation of the parties and restore this dead policy to life? Was it the payment of the premium? The premium was not paid. Was it a promise to pay it? There was no such promise. There was nothing bat the bare promise of the agent to accept the premium if paid by the ninth of March. Had it been paid by the assured prior to that date, and accepted by the company, the policy undoubtedly would have been restored to life. This would result, not by virtue of the promise of the agent, but from the acceptance of the premium as a consideration for the renewal. It would have been a new assurance under the old policy. The mere promise of the agent, made after the default had occurred, to receive the premium up to March 9th, was a nudum pactum. It was not a contract, because there were no contracting parties. The assured gave nothing; promised nothing. A lapsed policy can only be restored to life, so far as the assured is concerned, by the actual payment and acceptance of the premium, or a contract based upon a sufficient consideration. What consideration did the company receive for carrying this risk from the nineteenth of February until the ninth of March ? Had the insured lived until the latter date, and then refused or neglected to pay his premium, he would have had the benefit of an insurance on his life during said period without paying a dollar of consideration. For, as before stated, he did not give anything, nor did he promise anything. It was optional with him to pay; the company could not have enforced it against him had he declined. There is no provision in the policy which covers such a case. If the insured does not pay, the policy drops, and the contract relation ceases. Marvin v. Insurance Co., 85 N. Y. 282, is so exactly like the case in hand upon the facts that a reference to it will not be out of place. In that case one Milton B. .Marvin had a policy of |3,000 on his life, payable to his wife in case of his death. The premium due on the thirteenth of April was unpaid. On the 27th of April, Hinkle, the agent of the company, told the assured that if he paid the premium the next morning, the 28th, he, the agent, would receive the same. Hinkle went to the house of the assured the next day, and there found him lying sick upon his bed, and, on being offered the overdue premium by the assured, declined to receive it at that time because the assured was then sick, but told him to keep the money, and when he got well, he, Hinkle, would receive it, and keep the policy alive. The assured never did recover from his sickness, the premium was not paid, and the company notified the assured that it would hold itself absolved from the contract by reason thereof. The assured died in the following September. Under this state of facts it was held there could be no recovery upon the policy, the court below saying: “We think the plaintiff was properly nonsuited. As we understand the law, as laid down by the court of last resort in such cases, in order to a valid extension of the time for the payment of a premium upon a life-policy after the time of payment has gone by, there must be some valid consideration for the extension or waiver of the condition of payment, or there must be something said by or on behalf of the insurance company while the party bound to make the payment has still time and opportunity for so doing, by which the insured is induced to believe the condition is waived, or that strict compliance will not be insisted on. This introduces an element of estoppel in the case. In such a case, it would be unjust to allow the insurance company to repudiate the agreement, and to insist that, because of the non-payment of the premium punctually, which omission had beep, induced or countenanced by its own act, it should be absolved from the performance of its part of the contract.” This case was affirmed in the Court of Errors and Appeals in an opinion by FINCH, J., principally upon the ground that, even if Hinkle was the general agent of the company, he had no authority to waive the condition as to payment, the clause in the policy containing a condition similar in this respect to that in the policy in this case. For this reason, the court did not deem it necessary to express an opinion upon the ground upon which the court below rested the case, viz., the want of consideration for the promise, but said expressly: “It must not be inferred that we deem the ground of the decision below incorrect.” This case is valuable for the further reason that it shows very clearly the ground of the distinction between a promise to extend the time of payment, made before the time of such payment, and one made after the default. In the former instance the assured may have relied upon the promise, and allowed the time to slip by; whereas, without such promise, he might have procured the money and paid the premium. Hence, the cases hold that the company, having misled the assured to his harm, are estopped from alleging a default be cause of non-payment on the day. But, where a promise is made after the default, the assured has not been misled or injured in any manner. He has allowed his policy to lapse by his own neglect; it can only be restored by the consent of the company, and he has no reason to suppose that if he dies before the matter is perfected by the payment and acceptance of the premium the company will pay as in the case of a live policy. In nearly every case cited to show the authority of an agent to bind the company, by a promise made after a default to pay the premium, the decision of the court was rested upon the ground of estoppel, a principle which I do not think has any application to the case in hand. In Dean v. Insurance Co., 62 N. Y. 642, the agreement to extend the time was not only made before the premium became due, but the company had actually received the notes of the assured for the payment of three fourths of the premium. This not only introduced the element of estoppel, but the notes received constituted a valid consideration for the waiver of punctual payment. In Homer v. Insurance Co., 67 N. Y. 478, the agreement extending the time of payment was also made before the premium fell due, and thus the policy-holder was prevented from paying the premium on the day it became due by the terms of the policy. In Tennant v. Insurance Co., 81 Fed. R. 322, the credit was extended while the policy was in full force. In Church v. Insurance Co., 66 N. Y. 222, the dealings were between the assured and the home office, and no question was involved as to the authority of the agent. The court held there was evidence to go to the jury that a credit was intended, inasmuch as it showed a prior dealing with the assured for many years, and that he was in the habit of getting policies without paying for them at the time. In Insurance Co. v. Norton, 96 U. S. 234, there is an expression by Mr. Justice Bradley which indicates that he did not see any difference between a promise to extend the time of the payment of the premium, made before the default, and a promise made after such default. In this case, however, there was not only a promise made to pay, but this was followed up by an actual tender of the premium, and a refusal by the company of such tender. This presents an entirely different state of facts from the case I am discuss ing, and Mr. Justice Bradley’s remark must be taken in connection with the particular facts to which he was referring. In Insurance Co. v. Eggleson, 96 U. S. 572, the question was whether the assured was excused for not paying his premium at maturity. This clearly appears from the concluding portion of the opinion of Mr. Justice Bradley. It is as follows: “ The insured, residing in the state of Mississippi, had always dealt with agents of the company, located either in his own state or within some accessible distance. He had originally taken his policy from and had paid his first premium to such agent, and the company had always, until the last premium became due, given him notice what agent to pay to. This was necessary, because there was no permanent agent in his vicinity. The judge rightly held that, under these circumstances, he had reasonable cause to rely on having such notice. The company itself did not expect him to pay at the home office; it had sent a receipt to an agent located within thirty miles of his residence; but he had no knowledge of the fact, at least such was the finding of the jury from the evidence.” Insurance Co. v. Doster, 106 U. S. 30, is somewhat similar as to its facts. The assured was entitled to a dividend on the business of the company, which was set apart to the insured in part discharge of his premium. The company failed to notify him of the amount, and it was the cause of the delay in the payment. In Universal Ins. Co. v. Block, 109 Pa. 535, the premium had been paid, and the question was whether it had been paid to the proper person. In Lebanon Ins. Co. v. Hoover, 113 Pa. 591, which was the case of a payment of the premium'on a fire policy after maturity, there was a course of dealing by which the agent gave the assured a credit in his accounts, and became himself the debtor of the company therefor. This clearly appears from the following extract from the opinion of Mr. Justice Stbrrett: “ On the trial, evidence was received tending to show that Fredrick, through whom the insurance was placed, was the recognized agent of the company for the purpose of securing risks, receiving and remitting premiums, etc.; that in his dealings with the company he was made its personal debtor for premiums on all policies issued through him, and that he periodically accounted to it therefor, whether the money was received by him from the persons to whom the policies were issued' or not; that he made the persons or firms to whom he delivered policies his personal debtors, and dealt with them in that relation, charging them with the premiums on his books, sending them bills in his own name, and making himself responsible to the company for the same; and that the bills for premiums were generally rendered some time during the month after the insurance was effected.” I have not of course, reviewed all the authorities cited; I have considered the most important. To review them all would protract this opinion to such a length that no one would probably read it. No Pennsylvania case was cited which is in serious conflict with the views above expressed, nor have I been able to find one after a careful examination of the digests. It is possible I may, in the press of business, have overlooked some such case. We have little leisure to search for cases that are not cited. But I regard the overwhelming weight of authority, both in this state and elsewhere, to be in accord with the principles above stated; moreover, I believe them to be sustained by the sounder reason. Under the circumstances, we think it was error for the learned judge below to charge the jury as follows: “ Therefore I think the question arises, and it is for you to say, in this case, whether this general superintendent, residing here in Philadelphia, with his principal in Vermont, and in the constant habit of doing this very thing, — because we find a number of receipts where he did receive the money subsequent to the time fixed, and it is testified to in this case that he certainly agreed to do it, and had done it in the case of Mr. Lantz, his brother, so that, if the rule was to be enforced as it is written, he would have no right to do this thing which he was in the habit of doing, and that therefore it is a question for you to say whether he had any authority; whether the company, having permitted him to do this thing constantly and knowingly, had not authorized him, — the secretary and president had not authorized him, — to perform the acts that he was doing.” See first assignment. The “ thing ” which the agent had done and which the company had ratified was the acceptance in three instances of overdue premiums from the assured, he being in full life at the time. Authority beyond this could not be inferred from any act of the company or its agent. It was not denied, — indeed, it was expressly admitted, — that had the assured tendered the premium during his lifetime, it would have been accepted, and the policy reinstated. No inference can be properly drawn from this, however, that the company would receive the premium after the death of the assured. The learned judge failed to note the difference between the renewal of a lapsed policy by the actual payment and acceptance of the premium, and a mere attempt to renew it without any consideration moving from the assured to the company. The one is a completed transaction, and therefore binding; the other is uncompleted, and does not even amount to a contract. The same error runs through the charge. The assignments are all sustained. We think there should have been a binding instruction in favor of the defendant. Judgment reversed. Mr. Justice Sterrett and Mr. Justice Clark noted their dissent.

Opinion by Mb. Justice Roberts, Racial unrest swirling about the area of Southern High School in Philadelphia produced, in 1960, several vicious attacks by gangs of Negro youths against white boys, and vice versa. The present case stems from one such incident. On March 21, 1960, the deceased, John Campiglia, was attacked by a group of young Negroes, beaten, and fatally stabbed. Appellant, Norman Wilson, was a member of the group responsible. Privately retained counsel represented appellant; after consultation with this lawyer, Wilson entered a plea of guilty to murder generally. He was adjudged guilty of murder in the first degree and sentenced to life imprisonment, an adjudication from which no direct appeal was taken. Appellant subsequently filed a petition under the Post Conviction Hearing Act in which he alleged that a confession was coerced from him which in turn motivated the entry of his plea, that trial counsel was ineffective, and that a conflict of interest resulted from trial counsel’s dual representation of Wilson and Lonnie Jackson, a co-defendant and fellow gang member, who also pleaded guilty to murder. Jackson’s crime was certified by the Commonwealth as rising no higher than second degree and he was subsequently convicted of that offense. Post-conviction counsel was appointed for Wilson, ah evidentiary hearing held, and relief denied. It is from this denial that appellant now appeals. On the issue of his confession and subsequent guilty plea it is clear that Wilson cannot prevail. No claim is made that the plea itself was not knowingly and intelligently entered. Eather, as was argued in Commonwealth v. Garrett, 425 Pa. 594, 229 A. 2d 922 (1967) and Commonwealth v. Baity, 428 Pa. 306, 237 A. 2d 172 (1968), appellant here contends that the plea was motivated by a confession allegedly coerced. He therefore seeks to avail himself of the right to set aside the plea and collaterally attack the confession, a right guaranteed by Garrett only when petitioner can demonstrate that the confession was the “primary motivation” for his plea of guilty. To resolve the question of what motivated Wilson’s plea, the court below heard the testimony of both Wilson and Isaiah Crippins, Wilson’s trial counsel. Quite predictably, appellant maintained that he was told nothing about entering a plea except that he should do so because the police had his confession and there was nothing Mr. Crippins could do about it. However, this testimony was flatly contradicted by Crippins himself. When asked by the court below to explain why he advised Wilson to plead guilty, Mr. Crippins was both explicit and convincing. He said: “The reason I advised him to plead guilty was I had seen the file of the District Attorney. I knew what their witnesses would testify to because I had access to the statements. I explained to Norman Wilson, Avho would testify against him and what they would say. . . . “I had seen the medical report where there was only one stab wound. [Wilson has always admitted stabbing the deceased, but claims that he was not the only assailant.] I had seen the pictures of the body. I felt I knew the climate in Philadelphia at that time. The newspapers were screaming, the media was screaming, ánd I had only two alternatives, either to- plead him not guilty and take a jury trial, at which jury trial he could have received the death penalty; or, I could get the agreement from the District Attorney that he was not going to ask for death ... so I thought it was better' to make sure that I save Norman Wilson’s life than it was to take a chance on a case which I couldn’t win anyway. “That is' why I asked him to plead guilty.” (Record át 42-43.) Later, in the same hearing, Mr. Crippins again reiterated that he had told Wilson about all the evidence against him, including several eye witnesses. Although Crippins frankly admitted- that the existence of the confession played a part in his -advice to his client, we think it clear that, if believed, Crippins’ testimony decimates any attack based upon Garrett. Since the hearing judge’s opinion states that he chose to believe Crippins’ testimony, we see no reason to disturb the lower court’s holding as to the guilty plea. . Although appellant’s counsel below stated that he was unwilling to examine Mr. Crippins on the issue of ineffectiveness, it is apparent to us that 'the ineffectiveness claim is keyed to the same factual allegation that allegedly supports the conflict of interest claim. We shall therefore treat this factual allegation as underpinning both of Wilson’s remaining arguments. According to appellant, Mr. Crippins prevailed upon his client to plead guilty because a bargain had been reached with the district attorney that if Wilson pleaded guilty to murder generally, the Commonwealth would be willing to certify that Lonnie Jackson, Crippins’ other client, had committed an offense rising no higher than second degree murder. Wilson, of course, maintains that he was never told of any suqh bargain. We think it clear that if appellant’s trial counsel had indeed so compromised appellant’s position in order to secure a lighter sentence for another client, this would be an obvious conflict ■ of interest, requiring the grant of, a new trial. Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A. 2d 641 (1962). However, we are again faced with credible testimony from Mr. Crippins that no such compromise was ever made. According to Crippins, although plea bargains were made concerning both Wilson and Jackson, these were separate arrangements, completely unrelated, and each the sole product of Crippins’ evaluation of the evidence available against the particular defendant involved. Therefore, since the hearing judge accepted this explanation, and accordingly refused to find a conflict of interest, appellant’s argument must stand or fall solely upon the statement in his brief that mere dual representation, of necessity, forced Mr. Crippins to trade off between defendants. We cannot agree with this contention. Admittedly, Whitting announces the prophylactic rule that whenever a conflict of interest reveals itself to an appellate court the conviction below cannot stand, even though the appellant may have been unable to show that any specific harm befell him at trial. However, one never reaches this prophylactic rule unless and until the defendant can demonstrate that a conflict in fact existed at trial. Unfortunately for appellant, there is no prophylactic rule equating dual representation with conflict of interest. Quite to the contrary, this Court has held that dual representation alone does not amount to a conflict of interest. See Commonwealth ex rel. Corbin v. Myers, 419 Pa. 139, 213 A. 2d 356 (1965), cert. denied, 386 U.S. 1013, 87 S. Ct. 1361 (1967). To make the dual representation rise to a true conflict, appellant need not show that actual harm resulted, for that would vitiate Whitting but he must at least show the possibility of harm, e.g., that he had a defense inconsistent with that advanced by ■the other client, or that counsel neglected his case in order to give the other client a more spirited defense. Cf. Commonwealth v. Meehan, 409 Pa. 616, 187 A. 2d 579 (1963). In the present case, given the lower court’s acceptance of Crippins’ testimony that he advised Wilson to enter the plea simply because there was overwhelming evidence of guilt, and because he had bargained away a death sentence, appellant has failed to show conflict of interest. Nor has appellant demonstrated to our satisfaction that Crippins’ decision to represent Wilson and Jackson, rather than jettisoning one of them, rendered appellant’s representation constitutionally ineffective, as we have defined that term in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A. 2d 349 (1967). To constitute ineffective counsel in Pennsylvania it must appear that the conduct of the attorney had no reasonable basis designed to effectuate his client’s interest. Realizing as we do the possibility for harm arising from dual representation, we think that a proper application of Washington to any alleged conflict of interest requires a showing that counsel’s actions on behalf of his now complaining client would have been sufficient under Washington even-had there been no dual representation. Thus, we must ask ourselves: assuming that Mr. Crippins had represented only Wilson, and had still advised him to plead guilty, would this advice have had some reasonable basis designed to effectuate appellant’s interest? Applying this test, we think it clear from our prior discussion that counsel here did the very best thing possible for his client, given the overwhelming evidence of guilt. See Commonwealth v. Hilly 427 Pa. 614, 617, 235 A. 2d 347, 349 (1967). Order affirmed. • Mr. Chief Justice Bell concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case. The record of Wilson’s degree of guilt bearing cannot be" located; the Commonwealth’s brief before this Court recites that Wilson and Jackson were given separate trials, although the same attorney represented both defendants. We find nothing in the post-conviction hearing record or in appellant’s brief inconsistent with this statement by the Commonwealth. Appellant’s post-conviction trial counsel remained by Wilson’s side on this appeal, but counsel’s appellate brief raises only the conflict of interest issue. Appellant himself, however, has also filed a brief preserving the coerced confession and ineffective counsel issues. In Commonwealth v. Baity, 428 Pa. 306, 237 A. 2d 172 (1968), where appellant’s testimony that he entered the plea solely because of the confession was actually corroborated by trial counsel, an additional problem of waiver tinder §4 of the Post Conviction Hearing Act was presented; We point out, however, that the §4 waiver issue need never be faced when, as here, appellant cannot even meet the Garrett test of “primary motivation.” But for the factual allegation concerning the conflict of interest, there would be no factual allegations to support an ineffectiveness claim. The evidence against Wilson and Jackson lends additional support to Orippins’ explanation. It appears that Wilson actually-wielded the knife, whereas Jackson was merely holding the deceased at the time. There is also some testimony that Jackson transported the knife to the fight scene in a duffel bag, although other evidence points to a boy nicknamed “Country” as the true custodian of the gang’s arsenal.

Opinion by Hirt, J., In this proceeding, the wife’s petition for an order on her husband for support was dismissed by the lower court, but only after serious consideration of all of the testimony. A judge who sees and hears the witnesses in a case such as this is in better position than we to decide the issue on its merits (Com. ex rel. v. Wm. Goldstein, 105 Pa. Superior Ct. 194, 160 A. 158) and our function on appeal, therefore, is merely to determine whether the lower court is chargeable with an abuse of discretion. Com. ex rel. Myerson v. Myerson, 160 Pa. Superior Ct. 432, 51 A. 2d 350. The order of the lower court here is clearly supported by the evidence and will be affirmed. The parties were married on February 20, 1945, in Leesville, Louisiana, while the respondent was in military service. He is sixteen years older than his wife. Following their marriage they lived together near a number of military camps throughout the south where respondent was stationed from time to time. When he was discharged from the army, on age, in September 1945, the parties came to live in Philadelphia where respondent had lived and was employed when inducted into the service. On his return he resumed teaching in a girl’s school and also conducted a retail women’s apparel shop in Philadelphia in partnership with his brother. Immediately after moving to Philadelphia their marital troubles began. Eelatrix left her husband on two occasions thereafter, the last on May 9, 1947. This proceeding was brought under section 733 of the Act of June 24, 1939, P. L. 872, 18 PS 4733. Since this statute, in substance, is a reenactment of the Act of April 13, 1867, P. L. 78 (Com. v. Shankel, 144 Pa. Superior Ct. 476, 19 A. 2d 493), rules of construction of the prior Act are equally applicable to the present statute. Where a wife seeking support has left her husband, the issue is whether he has neglected to maintain her “without reasonable cause”. A voluntary withdrawal of a wife from her husband without adequate legal reason defeats her right to support. Com. of Pa. v. Bachman, 108 Pa. Superior Ct. 422, 164 A. 833. This has always been the rule. As to the husband, the only “reasonable cause” justifying his refusal to support his wife is conduct on her part which would be a valid ground for a decree in divorce. Commonwealth v. Henderson, 143 Pa. Superior Ct. 347, 17 A. 2d 692. But a wife who has withdrawn from the marital domicile, on seeking support is not held to that high degree of proof and need not establish facts which would entitle her to a divorce. It is sufficient if she justifies living apart: from her husband for any other reason adequate in law. Thus in Commonwealth v. Jageman, 159 Pa. Superior Ct. 52, 46 A. 2d 738, an insane wife when paroled from an institution where she had received treatment, went to the- home of her father. In the appeal in that support proceeding we said: “If she lives away from her husband because she blames him for her commitment to the asylum, or because she has lost affection for him, or if returning home is distasteful to her, she is not entitled to support. On the other hand, if living with her father is a necessary measure for her recovery from her mental disease, the husband is as much liable for her support during such cure as if she was physically ill in some hospital or mentally ill in the asylum”. In Com. ex rel. Whitney v. Whitney, 160 Pa. Superior Ct. 224, 50 A. 2d 732, we held that a wife seeking Support must establish facts sufficient to enable her to secure a divorce. The testimony was ample in that case to meet that high degree of proof and no one was injured by the ruling. However, the Whitney case is not to be regarded as authority for any change in the established rulé as to the burden on a wife seeking support, while living apart from her husband, without his consent. Relatrix at the time of the hearing in this case, was suffering from a nervous disorder according to her physician’s testimony and a psychiatric examination ordered by the court confirmed that diagnosis. Although the parties professed fondness for each other there undoubtedly was a clash of temperaments and the respondent was not wholly blameless. But the court was right in refusing to attach weight to the extravagant language of the relatrix in testifying to respondent’s alleged improper treatment of her amounting to indignities as the cause of her malady and we need not discuss that phase of her complaint. Relatrix was of a high strung and nervous disposition. But she also demonstrated a total lack of self-discipline. She was immature and uncooperative. The real cause of the separation was her overpowering desire to be with her mother in New York. When after respondent’s discharge from the army the parties spent two weeks in Atlantic City on a “delayed honeymoon” her mother accompanied them at the insistence of relatrix. She had stated that she was torn between love for her husband and her mother, and her conduct confirmed the statement. While in Philadelphia, she telephoned her mother daily and visited her in New York about once each week. She lived with her mother during the first separation from January to May in 1946 when she returned to Philadelphia. Her 'mother complex’ was largely responsible for the strained marital relations. She complained of her husband’s penury but without good cause. He supported her adequately according to his means. The truth undoubtedly is that she had grandiose notions as to how he should provide for her and made demands on him accordingly. True, the apartment in which they lived was little more than adequate but in a shortage of housing it was the best available on respondent’s discharge from the army. He was willing to buy when a suitable home could be found. She insisted that respondent resign his school position and close out his business in Philadelphia and move to New York, taking the chances of making profitable connections there. It seems apparent that relatrix’s nervous disorder was not caused by respondent’s conduct and was not wholly involuntarily suffered at its inception by her but was largely self-induced by her wilful and determined dissatisfaction with life with her husband in Philadelphia and the testimony is insufficient to support a finding that living apart from her husband is essential to a cure of her malady. A circumstance of some general significance is the fact that at the argument before the lower court on July 21, 1947, appellant stressed her right to support on the ground that the order would be but temporary pending her return. The lower court testing the sincerity of that argument did not enter an order in the case until October 28, 1947, and in the meantime had a number of conferences with counsel looking toward a reconciliation, without success. And up to the date of filing this opinion in the present appeal, relatrix, eight months later, still contends for support to satisfy a temporary need. It is a reasonable inference from the testimony that relatrix has no present intention of ever returning to her husband and that her nervous disorder is but an excuse for obtaining support While separated. The lower court found that the relatrix has not met the burden of proving a separation from her husband upon adequate legal reasons. The court is not chargeable with an abuse of discretion in that conclusion from the evidence. Eelatrix’s persistence in the separation amounts to wilful desertion which relieves the respondent from the obligation under the statute to support his wife. Order affirmed.

Per Curiam. The law of the case has been so fully and accurately stated by the president of the Orphans’ Court, that it is unnecessary to do more than express the concurrence of this court in the opinions delivered by him. Decree affirmed.

Opinion by Keller, J., We held in tbe case of Johnson v. Jeddo Highland Coal Co., 99 Pa. Superior Ct. 94, that tbe limitation in tbe amendment of April 13, 1927, P. L. 186, 195, to section 413 of tbe Workmen’s Compensation Amendatory Act of June 26, 1919, P. L. 642, 661, did not apply to agreements “procured by tbe fraud, coercion, or other improper conduct of a party” or those “founded upon a mistake of law or of fact.” This would require us to reverse the judgment of the lower court in this ease, if the agreement sought to he set aside was founded upon a mistake of law or fact, within the meaning of the section. But a careful consideration of the agreed facts, in the light of the arguments of counsel, has failed to convince us that the agreement in this case comes within that category. The mistake of law or fact mentioned in the act refers to a mistake of law or fact existing at the time the agreement was made. It does not embrace conditions resulting from subsequent change or development. The injury to claimant in this case was a compound fracture of the right leg between the knee and ankle, suffered on November 9,1923. A compensation agreement was entered into whereby claimant was to receive the sum of $12 per week for an indeterminate period beginning November 20, 1923. On May 23, 1925, the defendant filed a petition alleging that the disability had terminated, which was later withdrawn. On April 30, 1926, another petition was presented alleging that total disability had ended and that claimant was only partially disabled. The hearings on this petition were continued until October 20, 1926, when the parties agreed that the injury had resulted in the permanent loss' of the use of claimant’s right leg, entitling him to compensation under schedule 306 (c), for the loss of the leg, to wit, two hundred and fifteen weeks, and extending his compensation for the period of eighty-nine weeks from April 21,1926; and a formal finding and conclusion to that effect was entered by the referee on October 23, 1926, and an award made, and accepted by the parties, under which compensation was paid the claimant up to and including January 3, 1928, a period of two hundred and fifteen weeks. On October 1, 1928, the claimant presented his petition to the Workmen’s Compensation Board alleging that he was totally disabled by reason of the injury and entitled to compensation for total disability. At the hearing before the referee the defendant moved to dismiss the petition for the reason that it was barred by the Act of April 13, 1927, P. L. 186, 194, section 413, the petition not having been filed within the definite period fixed by the award of October 23, 1926. To this claimant made answer that the agreement and award of October 23, 1926, were founded on a mistake of fact and law, and that the petition was not barred. The referee found that the claimant had lost the permanent use of his right leg and that the injury was confined entirely to the right leg; having been a fracture of the tibia and fibula with resultant shortening of the leg of about one and one-quarter inches. The claimant walked about with a cane but complained that he was unable to work. The referee stated that the medical testimony disclosed that “there was some overlapping and a great amount of callus thrown out which interfered with the muscle and nerve supply, some shortening and contraction of the muscles and tendons, drawing the toes upward somewhat, stiffening of the ankle joints and some stiffening in the knee.” He concluded that the limitation prescribed in the Act of 1927, supra, was a bar to further recovery; but aside from that, ruled that the claimant was not entitled to further compensation, irrespective of the Act of 19'27, because the injury was confined entirely to the leg, and the claimant had already been paid compensation for the permanent loss of the use of the leg. On both grounds he dismissed the petition. An appeal from his order to the Workmen’s Compensation Board was dismissed. On appeal to the common pleas of Lawrence County the court held that the evidence of claimant’s physician showed that while the injury was confined to his right leg, it had affected injuriously his entire nervous system with the result that the claimant’s nervous system was degenerating, disabling him from working. The evidence quoted in the opinion in support of this ruling was as follows: “Q. Taking into account his present condition of the leg, is he able to work with it as well as if he had lost the leg entirely? A. No sir.' Q. Why? A. Because his continuous pain there interferes with the use of that limb. Q. How does that affect the rest óf the body? A. It has a nervous effect on it and it is simply producing a nervous degeneration.” The court further held that as this testimony was not contradicted, the referee was not warranted in disregarding it, and that his order so far as it related to disallowance of compensation on the ground that claimant was confined to the period fixed by schedule 306 (c) was an improper and mistaken one, which might be reviewed, modified or set aside; but he also ruled that the limitation of the Act of 1927, supra, applied to orders founded on a mistake of law or fact, referred to in the first paragraph of section 413 of the Act of 1919, and therefore barred a recovery by the claimant, and dismissed the appeal. We have already referred to our ruling in Johnson v. Jeddo Highland Coal Co., supra, as opposed to this interpretation of the Act of 1927. We shall discuss our reasons for holding that the award of October 23, 1926, made pursuant to the agreement of October 20, 1926, was not an order founded on a mistake of law or fact within the ruling in the Johns on-Jeddo Highland Coal Company case, because there is no proof of any mistake of law or fact existing at the time it was entered. The exact date of the hearing at which claimant’s physician testified as above quoted does not appear, but it could not have been earlier than March 20, 1929, or two years and five months after the date of the agreement in question. The words in the testimony which we have italicized show that the examination was not as to the claimant’s condition on October 20, 1926, when the agreement was made, but when the hearing was held — “Tits present conditionand related to changes and developments which have occurred since the agreement was made — that the pain “is producing a nervous degeneration.” We pointed out in the Johnson-Jeddo Highland case that section 413 of the Act of 1919, supra, (which is a consolidation of two separate sections in the Workmen’s Compensation Law of 1915 — sections 423 and 426), relates to two distinct classes of cases for the review, modification, &c., of compensation agreements; that the first class, those procured by fraud, coercion or other improper conduct of a party, or founded on a mistake of law or of fact, do not relate to changes that have occurred in the employe’s physical condition since the agreement or order in question was made; while the second class, those dependent on proof that the disability of an injured employe has increased, &c., do, and that the limitation of the Act of 1927 is confined to the second class, which relates to changes that have occurred in the employe’s physical condition since the order complained of was made. It is clear from the testimony above quoted that the application in this case is based on an alleged total disability, due t6, changes that have occurred in claimant’s nervous system since October 20, 1926, a nervous degeneration produced by pain, and not to any mistake in the finding that his injury had resulted in the permanent loss of the use of his right leg or that this was the equivalent of the loss of his leg (Section 306-c). Section 306 (c) provides an arbitrary fixed and exclusive schedule of compensation for the loss of certain members of the body, which is to be paid irrespective of the actual period of disability or loss of wages, in an attempt to approximate the loss of earning power. The period of compensation so established is not dependent on the actual loss of wages or earning power but is fixed at an arbitrary number of weeks, although the claimant may be disabled for a less or greater period. Thus the compensation for all disability resulting from the loss of a leg is to be sixty per centum of wages during two hundred and fifteen weeks irrespective of whether the claimant is actually disabled because of it for three weeks or three hundred weeks, provided there is no distinct effect upon the physical structure from the injury apart from the loss of the leg; but if the loss of the leg develops injury to, destruction or affection of, other organs or parts of the body, causing disability separate, apart and distinct from the loss of the leg, compensation may be allowed for partial or total disability extending beyond two hundred and fifteen weeks: Lente v. Lucci, 275 Pa. 217. But such later development comes within the limitation prescribed by the Act of 1927. To take the example given in Lente v. Lucci, supra, if the loss of a leg renders active a latent tubercular condition in another part of the body, the employe is entitled to compensation for disability, partial or total as the case may be, resulting therefrom extending beyond the period of two hundred and fifteen weeks fixed in schedule 306 (c), but under the Act of 1927 he must make application for such additional allowance within the definite period fixed in said schedule. The additional compensation is not given because of any mistake of law or fact but by reason of the change or development that has occurred in the claimant’s physical condition since the original award was made. The same rule applies here. We do not think it is affected by the amendment of March 29, 1923, P. L. 48, 49. The addition of the words “or the permanent loss of the use of the hand, arm, foot, leg or eye, as hereinbefore provided” to the clause providing for the cumulation of compensation for the loss of two or more members, not constituting total disability, was intended to allow payment of the aggregate amounts specified in schedule (c) where there was the loss of a member and the permanent loss of the use of a member, or the permanent loss of the use of two members, not constituting total disability; for the amendment still retains the definite later provision: “Permanent loss of the use of a hand, arm, foot, leg or eye shall be considered as the equivalent for the loss of such hand, arm, foot, leg or eye,” with its consequence of an arbitrary and exclusive schedule of compensation. We agree with the learned court below that the Act of April 13, 1927, in so far as it amends section 413 of the Act of 1919 relates to procedure and applies to pending cases and is not confined to accidents which occur after its passage and approval. The Act of 1927 expressly provides in section 9 that sections 1 and 2, which affect the third article of the Workmen’s Compensation Act, shall not apply to any accident or injury occurring prior to January 1, 1928; but that the remaining provisions, which affect the fourth article, shall be in force upon its passage and approval. The fourth article of the Workmen’s Compensation Act relates to “Procedure,” and in Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 166, it was held the amendments of the Act of 1919, P. L. 642, to the fourth article went into effect at once and applied to cases then pending. Retroactive laws are not in violation of the Constitution which do not work an impairment of contracts, and which affect remedies of procedure only: Myers v. Lohr, 72 Pa. Superior Ct. 472, 477. Statutes of Limitations are to be construed liberally and provisions in them which are retroactive in character will be upheld if a reasonable time is given the parties affected to pursue their remedy: Kenyon v. Stewart, 44 Pa. 179. See also Com. v. Duffy, 96 Pa. 506; Gault’s App., 33 Pa. 94; Waters’ v. Bates, 44 Pa. 473; Olay v. Iseminger, 187 Pa. 108; Kille v. Reading Iron Works, 134 Pa. 225, 227; Lane v. White, 140 Pa. 99; Cleary v. Quaker City Cab Co., 285 Pa. 241. This claimant had over eight months after the approval of the act within which to move for the extension of his compensation award", which we deem reasonable. With this disposition of the case we need not consider and do not pass upon the other questions arising from the action of the court below, viz.: (1) whether the nervous degeneration resulting from pain attending an injury, equivalent to the loss of a leg, is so separate, distinct and apart from the loss of the leg as to justify additional compensation beyond that fixed in schedule 306 (c) which is declared to be exclusively applicable (Sharcheck v. Beaver Run Coal Co., 275 Pa. 225; Lente v. Lucci, supra, p. 222), and (2) whether the finding of fact of the referee, approved by the board, that the injury of the claimant was confined entirely to his right leg, can be set aside by the court because a physician testified without contradiction that the pain in the leg was producing a nervous degeneration. The assignments of error are overruled and the appeal is dismissed.

The opinion of the court was delivered by Lowrie, J. Wherever we notice a change in the administration of legal principles, gradually progressing for a considerable period and under a series of judges, it may be very safely assumed that it has a much more legitimate foundation than that of judicial arbitrariness. This is illustrated by the practice under the statute of frauds and perjuries: and we very naturally ask, how happens it that any exceptions at all have been made to a statute so general and so peremptory in its terms, and that judges are now so much inclined to restrict the sphere of those exceptions ? However we may define that portion of the law which courts of equity take as their guide, it is very apparent that the equitable exceptions that have been made to this statute have gone upon the principle of correcting the law in that wherein it was, by reason of its universality, defective. They proceed upon the assumption that our experience furnishes no universal rules, either for legislation or jurisprudence, but only general ones. Though we give to laws the form of universality, yet they must always be subject to modification or exception, when a new experience arises to which they are not jdstly adapted. To regard them otherwise would be to treat them as mere'arbitrary rules, and not, as they ought to be, a generalization and improvement of the results of our social experience. The demands of natural justice and the nature of our minds impose upon us the necessity of excepting out of the letter of the law those cases that are not equitably within its intention, and this necessity finds its expression and its measure in many accepted rules of interpretation. The English statute of frauds and perjuries was passed in 1676, and was intended to- change the common law theretofore existing, by which title to land could be passed by livery of seisin without writing; and to get clear of the frauds, perjuries and subornation of perjuries, and the uncertainties of titles that had grown out of the old law. But as the customs of the country can never be suddenly and entirely broken down even by an act of Parliament, it was natural that many cases should arise, founded on the old customs, where great injustice would be done unless the statute should, receive an equitable interpretation; and the presumption that the legislature did not intend any innovation on the common law, further than the case absolutely required, came in aid of such an equitable interpretation as would ease off the severity of the operation of the new enactment. But exceptions founded on this principle must naturally be but temporary expedients, which must die away when the new law itself has become part of the general customs of the country.' We might say that there is a natural provision for this sort of indulgences, in the fact that no man is .perfect enough to bear a strict application of rules, and very few hearts are hard enough to enforce, without flinching, the letter of the law when it results in upholding injustice. When the settlement of Pennsylvania commenced, the English statute had not broken down the old customs relative to passing titles to land, 'and we did not at first adopt it as part of our law: 1 Dall. 1. And when our statute was passed in 1772, of course it was necessary to treat the old customs of granting lands with the indulgence already indicated. And ás, with us and on account of the small value of our lands, our customs in relation to convey anees were more loose than they had been in England — 1 Yeates 220, 500 ; 2 Id. 124, 379; 3 Binney 187 — this indulgence here was greater than there. But here, as there, it was evidently temporary, and in its very nature it presented a caution against its own permanence. This temporary reason influenced also the recognition of the statutes providing .for the recording of titles, and for the limitation of actions and of liens of judgments; but it ‘has answered its purpose, and now the only difficulty is to know how to fall back upon those essential exceptions to which all laws are, in their very nature, subject; because-no people can bear an entirely literal and ■unbending application of any rule of law. We can make this regression intelligently only by carefully noticing the experience of the past, and not by ignoring and rudely rejecting all the modifications with which the statute has been applied in practice. If we attempt to gain, at one bound, our true position, we shall probably light beyond it. Even in seeking the correction of admitted error, our experimentations must be grounded on our experience. A delivery of possession in pursuance of a verbal contract is now regarded as essential to the enforcement of if; but there is a plain reason why it ought not to be treated as securing that result, or as having as much force now as it. once had.. When livery of seisin was at common law a sufficient form of transferring title to land, it was- an open and notorious act, performed in the presence of the neighbours, accompanied by the symbolical delivery of the turf or twig, and the -declaration of the quantity of the estate granted. But even this solemn investiture was so open to frauds and perjuries that it called for the correction of the statute requiring the contract to be put into writing. Now, that common law form has worn out, and delivery takes place without any form at all, almost always by a mere entry on a permission, express or implied; and thus the publicity and form of the delivery no longer avails as a cheek upon the mere invention of the sale. In our first endeavour to administer these equitable exceptions through the instrumentality of a common law trial, we very often failed by reason of our want of skill in applying such remedies in a form so unusual. Very often the law and the facts were committed to the jury, and out of them they made a general verdict as best they could; but experience has shown that their mental training was not at all of a kind to enable them to thread their way through all the complications of such questions, and that generally they cut the knot, and decided each case according to their feelings, and not according to the laws by which titles to land are regulated. This experience has forced upon the courts a more careful study and application of equity practice, and a consequent rejection of all the evidence of a verbal contract, if, being taken as true, it does not make out such a case as is entitled to stand as an exception to the statute: 9 W. & Ser. 49; 9 Watts 109; 1 Harris 21; 7 Id. 461, 471. This improvement in the practice tends to the security of written titles, even if the exceptions to the principle of the statute remain. In the case of Brawdy v. Brawdy, 7 Barr 157, the judge who tried the cause heard the evidence of the verbal contract, and then withdrew it all from the jury as being entirely insufficient to make out the case, and this practice was expressly approved, though this does not very clearly appear in the report of the case, and not at all in the syllabus. We may notice still another principle of law that is applied very beneficially to restrain the exceptions to the statute, and which is of especial importance in this case, though its application is not peculiar to cases under this statute. We allude to the law of evidence that grows out of the family relation. It is so usual and natural for children to work for their parents even after they arrive at age, that the law implies no contract in such cases. And it is so natural for parents to help their children by giving them the use of a farm or house, and then to call it theirs, that no gift or sale of the property can be inferred from such circumstances. It is so entirely usual to call certain books, or utensils, or rooms, or houses, by the name of the children who use them, that it is no evidence at all of their title as against their parents, but only a mode of distinguishing the rights which the parents have allotted to the children as against each other, and in subjection to their own paramount right. The very nature of the relation, therefore, requires the contracts between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. It must be direct, positive, express, and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it, and nothing else: 2 Penn. Rep. 365; 8 Barr 213; 9 Id. 262; 2 Harris 201; 7 Id. 251-366; 1 Casey 308; 2 Jones 175. The importance of this rule is very apparent; for it requires but a glance over the cases of this class to discover how sad has been the experience of the courts in family disputes, growing out of the exceptions which have been allowed to this statute; and how many and how distressing must have been the ruptures of the closest ties of kindred that have been produced and perpetuated by the encouragement thus given to try the experiment of extracting legal obligations out of acts of parental kindness. The arrangement out of which the present controversy arose is so entirely similar in its spirit and intention to that which appeared in the case of McClure v. McClure, 1 Barr 376, that it ought to have been disposed of in the same way. This plaintiff had one son, Jacob, and one daughter, married to the defendant. Some nine years before the arrangement in controversy, he had given his farm to his son and son-in-law to farm on the shares, they giving him two-fifths of the produce. After they had farmed it awhile, Kilgore moved to another place in the same county, and Jacob then farmed the whole of it on the same terms. In 1844 the plaintiff went to Kilgore to get him to come hack; and here we let the witness Fetter tell the story. The plaintiff said to his son-in-law, “ if he would come back he would make a man of him; he would give him the half of the farm and Jacob the other half; if he would come back and give him, Avhile he lived, the third of all he raised, he should have the farm at his death. Jesse agreed to the proposal. The offer was made three or four times within the year, and Jesse agreed to it every time.” Jacob testifies that the bargain, as he'calls it, took place at his house on the farm. “ At first he gave us the place to farm, and said we should have it after his death. He told us we should farm and go on, and we should have it and everything, and then after his death we should have it as our own. We were to give him one-third of the produce.” " Kilgore accepted the offer and moved on the land. No division line was fixed in this so-called bargain, but the plaintiff shortly afterwards called a surveyor, and directed him how to make the division, and it was done accordingly, giving Jacob 103 acres, and Kilgore 91. There is much evidence of the declarations of the plaintiffs; but, while this may corroborate the story of the direct witnesses of the arrangement, it can change nothing of the substance of it as they narrate it. There is much evidence also of the acts and declarations of both Jacob and Kilgore, that show very plainly that they did not regard the transaction as a present and executed gift. But we may lay all this out of the question. It only confirms, as matter of fact, what we assume as matter of law from the story of the two principal witnesses — that the father was merely putting into experimental operation, for the benefit of his son and daughter, an arrangement which he expected to confirm at his death. The bargain, as it is called, is said to have been made four or five times, and this seems absurd. If the parties had understood it as a contract, they would have lived up to it or accused each other of a breach of it. If they had understood the three or four conversations that Fetter speaks of as a bargain, they would not have made another afterwards in connexion with Jacob. We take this one as the best and only proper evidence of the transaction, because it is the last. “ He gave us the place to farm, and said We should have it after his death.” Here is nothing but a promise to give, and that cannot be enforced. The division line was not settled by a bargain, but the father fixed it as he pleased. The statute forbids verbal conveyances of land, and we presume that the parties did not transgress it. It is not probable that the father was putting his property entirely beyond his control in his lifetime, and the .terms of the arrangement do not require this inference. The delivery of possession does not demand such an inference, for it is perfectly accounted for by the relation of the parties, and by the annual delivery of a share of the produce, as a tenancy from year to year, which is allowed by the statute. If a contract to farm land on the shares, and a delivery of possession under it, can be supplemented by another for an absolute grant, then certainly, as between parent and child, delivery of possession becomes a worthless protection against violations of the statute. Both the terms of this arrangement and the possession under it may readily be'accounted for as founded on other intentions than that of a gift of the land, and therefore the law forbids us to infer that purpose: 3 Ser. & R. 546; 3 Penna. R. 365; 9 Watts 42, 109; 7 Harris 469; 1 Johns., ch. 149. Some reliance is placed upon the improvements made by the defendant, but, having been made without an actual gift, and only on the expectation or promise of a gift, they do not avert the rule of the statute: 1 Barr 379; 3 Watts 138, 255. They are no evidence of the gift itself, and may be fully accounted for on the expectation of it. They are estimated at $2000; but this gives no idea of the real outlay of the defendant. The only things worth naming are the house and the barn, and the only money proved to have been paid for these, was under $250. Most of the materials seem to have been got from the place. Much of the work was done by frolics, and $50 of the money and some materials were furnished by the plaintiff, and the whole of it was conducted as such matters usually are in the country, when a father is providing a home for his son on his own land. The fact that, since the arrangement relied on, the plaintiff has married again, and has another child, can have no influence, except as accounting for and justifying the change of his intentions, on the same principle that a will is revoked by marriage or the birth of a child after it was written. On the defendant’s own evidence, the court ought to have instructed the jury that he had no title to the land. Judgment reversed, and a new trial awarded. Lewis, C. J., and Black, J., dissent.

The opinion of the court was delivered by Portee,, J. The resolution which gave the plaintiff his only hold, wanted the essential elements of a contract. It was but an .expression of the mind of the corporate body, for that which a man may accomplish by the power of speech, an artificial person is compelled to do by written resolve, and, in either case, a change of intention is not necessarily a breach of contract. The agreement which the resolution embodied, had no sufficient consideration for its support. If rested on the ground of moral obligation, that principle will be found so restrained by Kennedy’s Executors v. Ware, 1 Barr 445, and by other cases of like character, as to yield the plaintiff little support. But no such ground existed, for although he performed the work faithfully, his labours fell within the limit of his duty as a director, and the fact that he performed them with an exuberance of good faith, imposed upon the corporation no moral duty to pay for them. The legal obligation was as defective as the moral. When the resolution was passed, the consideration had been executed, for the services compensated by this verdict had been previously rendered, and there is no proof of a precedent, or contemporaneous request. It is quite true that they were beneficial to the defendant, and a request might, in' the liberal spirit of the modern decisions, be implied, but in the instance of gratuitous services performed by a party in the line of his legal duty, there is no case which authorizes such an inference. Our decision must be placed on yet higher ground. We regard it as contrary to all sound policy to allow the director of a corporation elected to serve without compensation, to recover payment for services performed by him in that capacity, or as incidental to his ofiice. It would be a sad spectacle to see the managers of any corporation, ecclesiastical or lay, civil or eleemosynary, assembling together and parcelling out among themselves the obligations or other property of the corporation in payment for their past services. At such conduct the Act of 25th April, 1855, aimed a well directed blow, by making it punishable by indictment. The civil law, however, required not this support from a criminal statute. In Collins v. Godfrey, 1 Barn. Ald. 956, a director of a bank was prevented from receiving a reward offered by the bank for the recovery of stolen property, because he performed nothing but his duty in endeavouring to recover it. In Dunston v. The Imperial Gas Co., 3 Barn. & Ald. 135, a resolution formally adopted, allowing the directors certain compensation for attendance on courts, &c., was held insufficient to give a director a right to recover for such services. This is a clear and pointed case. Chandler v. The Monmouth Bank, 1 Green 225, is not an authority to the contrary, for the charter of that bank contained a peculiar clause forbidding compensation to a director, “ unless the same shall have been allowed by the stockholders.” Thus stands the law. We have no fear of practical inconvenience from it. If the services of the director become important to the corporation, let him resign and enter its employment like any other man. If it be proper that directors generally should receive compensation, let it be so provided in the organic act which creates the body. Those who commit their money to its care, will then do it with their eyes open. Until this be provided, there is no reason in law or morals for allowing their property to be taken without their knowledge or consent. Judgment reversed.

Opinion by Stadtfeld, J., This is an action in trespass brought by Lena Lutz against the City of Scranton to recover damages for personal injuries sustained by a fall from the topmost step of a footbridge, which was alleged to have been in a defective and unsafe condition. The City of Scranton maintained a footbridge spanning the right of way of the Delaware, Lackawanna and Western Railroad Company at the intersection of the railroad with Myrtle Street, to enable pedestrians to cross the railroad line above the grade. The bridge consisted of an iron framework supporting concrete stairways leading to and from each end of the flat concrete footway comprising the central span of the bridge. The steps of the stairways were covered with sheet metal treads attached and fastened to the concrete of the steps by means of expansion bolts. On December 18,1937, about 7:00 o’clock in the evening, plaintiff, while on her way from her home on Myrtle Street to visit her daughter, proceeded up the southeasterly stairway of the bridge and across the level footway. When she had reached the topmost step of the northwesterly stairway, she placed her foot on the metal tread thereof. The tread tipped forward under plaintiff’s weight, and she fell down the stairway. Plaintiff’s grandson, Henry Weller, who preceded her by a few feet, turned around and saw her in the act of falling. The evidence discloses that the concrete riser, or vertical section of the stairstep, supporting the top step at the northwesterly end of the footway, had cracked and broken away from under the sheet metal tread. The expansion bolts holding the tread to the step had loosened, some having fallen out, and the metal tread was loose. This condition had existed for upwards of six months prior to the date of the accident on December 18, 1937. The issue was tried before Lewis, J., and the jury-brought in a verdict for the plaintiff in the amount of $5000. The court discharged a rule for judgment n. o. v. and for new trial, conditioned on the plaintiff remitting $2500 of the verdict. This was done and judgment was entered on the verdict in the sum of $2500. This appeal followed. One reason presented in this appeal for reversing the judgment of the court below, relates to appellee’s failure to aver and prove that any notice in writing of her claim, stating the facts briefly, was given to the appellant, City of Scranton, within six months from the date of the accident complained of, as required by the Act of July 1, 1937, P. L. 2547, 53 PS 2774. This Act was in effect when the appellant sustained her injury on December 18, 1937. On March 2, 1938, she brought suit against the city on this cause of action by filing her praecipe for summons and sworn statement of claim. Summons was issued the same day and on the following day, March 3d, the sheriff served the writ together with a copy of the statement of claim on the appellant, and on the following March 10th, the City Solicitor entered a general appearance in the action for the appellant, so that this case was at issue less than three months after the accident. In enacting the statute the legislature clearly intended to provide municipalities with a safeguard against the loss of an opportunity to make timely investigation and thus avoid the difficulty of defending against stale and fraudulent claims. The question here raised is whether or not appellee complied with the Act by filing her sworn statement of claim and serving it within three months after the injury as the record on its face indicates. On this issue the court below in its opinion stated: “In the instant case the City had full notice when the plaintiff’s statement was served upon it within a period of three and one-half months after the accident. The plaintiff’s statement gave to the defendant city more information than is contemplated under the Act of Assembly. The law does not require one to perform a useless thing. To impale this plaintiff for failure to give notice as required under the Act of Assembly when it already had sufficient notice in the filing of the plaintiff’s) statement of claim would be a denial of justice.......” We are in entire agreement with the view of the court below. Such a holding does not deprive a municipality of one iota of the protection that the Act was designed to give. A proper statement of claim gives to the municipality considerably more information than is contemplated by the statute. The statement has the added virtue of having been made under oath. This Act is to be construed as far as possible so as not to change or impair rights, liabilities or principles of law as they existed prior to its enactment. In order to justify binding instructions or the entering of judgment n. o. v., this Act would have to be construed to require the plaintiff in this case to aver and prove not only that notice was given within six months of the accident but to aver and prove that notice was given prior to suit. This Act does not expressly create a condition precedent. It contains no words indicating an intent to create a condition precedent, nor does it contain any words indicating any intent to impair the right of action. Appellant raises the question as to whether the evidence justified the learned trial judge, Lewis, J., in submitting to the jury the issue of notice to appellant of the existence of the defect in the topmost step of the westerly side of the bridge. Plaintiff’s grandson, Henry Weller, testified that to his knowledge the metal tread over the top step had been loose and the concrete under it broken for two weeks prior to the accident. He also stated that he examined the step on the day following the accident and found the tread to be even less firm and the concrete crumbled away. Plaintiff’s son, Edward Lutz, testified that the concrete had been coming out from under the top step for a year or two prior to the accident and that the metal plate had been loose for some time prior thereto, so that stepping upon it caused it to tilt and make a noise. Carl Bising, who was an employee of the Erie Railroad and made frequent trips across the bridge, gave substantially the same testimony. On the basis of such testimony, the question of appellant’s constructive notice of the defect was properly for the jury: Jeske v. City of Pittsburgh, 110 Pa. Superior Ct. 274, 168 A. 323. James B. Hawley, called as a witness by defendant, had been employed by the city to take care of the bridges maintained by it. He testified that his inspection of this particular bridge in April or May of 1937, at least seven months prior to the accident, revealed that the concrete had broken out in the riser supporting the top step and that some bolts had come out of the metal tread over it. He further stated that following his inspection, he recommended that the bolts be replaced and that the bridge be scraped and painted. Cyrus M. Roberts, called by the defendant, was employed as an engineer by the city. His testimony as to the condition of the metal tread and riser of the topmost step prior to the accident, was substantially the same. The testimony of these witnesses was sufficient to sustain a finding by the jury that the city had actual notice of the condition of the metal tread on the top step of the bridge and of the concrete riser supporting it. Appellant contends, however, that the appellee was guilty of contributory negligence by reason of the fact that she had passed over the defect of the bridge in question on numerous occasions. It is urged, therefore, that appellee was chargeable with notice of its existence and legally bound to use means of avoiding it. Appellee’s testimony stands alone as evidence of the circumstances of her fall. She testified that as she walked over the bridge in a westerly direction, “it was a little dark”; that she watched where she was stepping and noticed nothing wrong with the metal plate before stepping on it. It may readily be understood that the danger of the defect arising from the crumbling concrete of the riser below the top step was not apparent to appellee upon her approach in a westerly direction toward that step. Moreover, the absence of the expansion bolts in the metal tread was not likely to be noticed in walking under conditions of partial darkness. As stated by this court in Graham v. Reynoldsville Borough, 132 Pa. Superior Ct. 296, 298, 200 A. 681: “It is only when the danger is so obvious that an ordinarily prudent person would regard it as a risk or hazard, and therefore avoid it, that it could be said as a imatter of law that the person taking a chance is guilty of contributory negligence.” The question of appellee’s contributory negligence, as well as the question of appellant’s negligence, was a matter properly to be submitted to the jury. Since the jury found a verdict in favor of the plaintiff, we have considered the evidence in the light most favorable to her, and have come to the conclusion that the learned court below properly treated this feature of the case. Appellant further complains of the trial judge’s action in permitting Dr. Yan Dyke, appellee’s physician, to testify that in his opinion appellee suffered pain, and relies upon Littman v. Bell Telephone Co. of Pa., 315 Pa. 370, 172 A. 687, as authority for a reversal of the judgment. In that case the physician testified that plaintiff suffered “the pain that he complains of”; in the instant case the witness merely testified that plaintiff suffered pain. Here there was no attempt to indicate the intensity of the sensation nor to corroborate testimony as to the precise nature of the subjective phenomenon experienced, as was done in the case referred to. In the instant case, appellee had testified that she had suffered pain, so that the physician’s testimony did not stand alone. We do not regard the admission of the physician’s testimony as reversible error. Nor do we regard the charge given by the learned trial judge on the matter of damages for pain and suffering as grounds for reversal. The charge simply instructed the jury that, in determining the damages to which plaintiff would be entitled, it could take into consideration, her pain and suffering. It is true that the charge on this point could easily be improved upon. Pain and suffering constitute an element of damages for which the injured party is entitled to reasonable compensation. Appellant now complains of the inadequacy of the charge on this point, but having failed to ask for more definite instructions when the opportunity was presented, it is deemed to have waived any objections that might otherwise have been made: Hysong v. Kenny Transfer Co., 304 Pa. 102, 154 A. 922. In view of the fact, moreover, that the court below reduced appellee’s verdict from $5000 to $2500, any possible harm to appellant because of inadequacy or failure to set forth a proper test on this item of damages, was corrected. Judgment affirmed.